General Principles
To show the tort of assault the plaintiff must show an intentional overt act, whether physical or verbal, which, to a reasonable person, would cause fear or emotional upset and does cause actual harm. 1
This tort is frequently used in cases of sexual assault. Assault is the act which shows the intent to cause harmful conduct, or an imminent apprehension of same. The defendant's conduct must cause a reasonable apprehension of imminent harm. Examples of threats which do not reach the grade of "imminent" will include "shaking a fist at someone who is out of reach, making a threat over the telephone, or reaching for someone who is safely standing behind a counter". 2
If non-consensual physical contact occurs, that is the tort of battery.
With respect to battery, all contact outside of the “generally accepted or expected in the ordinary course of life, is prima facie offensive". 3
Battery is used where there has been a physical assault. Battery is “the intentional infliction of an unlawful force on another person”. It is actionable without proof of damage. The consequential liability is not limited to that which is foreseeable. 4 For these reasons, it is the tort of choice when the fact pattern may support the claim.
The “cap” on damages for compensatory awards does not apply to intentional torts of a quasi-criminal nature, such as sexual assault.5
Aggravated Damages
Given conduct which has shown to be humiliating or committed in an undignified context, aggravated damages may also be awarded. When so allowed, such damages are typically not made as a discrete claim but rather included within the general damage sum. 6
The factors leading to such an award include:
Aggravating circumstances can include the relationship between the parties, particularly where it is one of trust or dependence, the duration of the abuse, the number of assaults, the age of the plaintiff, whether and to what degree there was physical violence, threats or coercion, the nature of the actions, the physical pain, the mental suffering, a lack of remorse or other callous or reprehensible surrounding or accompanying conduct by the part of the defendant:
Sexual Assault Cases
The Supreme Court of Canada 7 agreed with the trial judge in his analysis of the factors relevant to a claim for sexual assault, set as follows:
(a) the circumstances of the victim at the time of the events, including factors such as age and vulnerability;
(b) the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were;
(c) the circumstances of the defendant, including age and whether he or she was in a position of trust; and,
(d) the consequences for the victim of the wrongful behaviour including ongoing psychological injuries.
The accepted general approach is to identify the salient features of the case at bar and proceed to look to similar cases and to then identify the accepted range. This should require no authority. 8
In sexual abuse cases, the general damage award typically is inclusive of aggravated damages. The range accordingly should include both components. As noted, often the aggravated damage component is not specifically addressed.
The Objective
The purpose of the damages for the sexual wrongdoing such as assault and battery is not intended solely to compensate purely for physical or mental injuries suffered by the victim.
The assessment of damages for sexual battery represents a difficult mission. As noted by the B.C. Supreme Court in its 2021 decision: 9
It is difficult to assess the impact sexual abuse has on an individual. As Justice Southin so eloquently wrote at para. 55 of Y.(S.):
We are just beginning to understand the horrendous impact of sexual abuse. To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water.
[62] Compensation awarded should be fair and reasonable to both parties: Andrews at 261, 299; Trites v. Penner, 2010 BCSC 882 at para. 189. Comparison with the awards made in similar cases can helpful in maintaining consistency, which is a gauge of fair and reasonable treatment. However, the impact of sexual abuse on an individual is very difficult to measure, and so other cases only provide a “rough guide” for assessing what is fair and reasonable in any particular case: Y.(S.) at para. 56.
The goal is broader, intending to “provide solace for the victim’s pain and suffering and loss of enjoyment of life, to vindicate the victim’s dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts”.10
The Relevant Persuadors
The factors to be considered will include: 11
- The circumstances of the victim, including their age and vulnerability;
- The context of the assault(s), the number of them, frequency, the degree of invasiveness, and the extent of violence, and degradation;
- The position of the wrongdoer, including their age, and whether the wrongdoing emanated from a position of trust;
- The consequences of the wrongdoing upon the victim, including whether there was an ongoing psychological trauma.
Look to Comparable Cases to Define the Range
Once the above four factors have been weighed, the court must then examine similar fact situations to determine the appropriate expanse of the relevant range of damage awards.12 13 This analysis has been described as one of “horizontal comparison”.14 This is an exercise in examining similar cases to show a pattern of comparable facts and then determine the range attributed to such awards, adjusted by inflation where required.
BMG
In the BMG decision, the trial judge had found that the appropriate range for non-pecuniary damages was from $125,000 to $250,000 and proceeded to award the sum of $125,000.
The facts of the case were particularly unattractive. The victim was 14 years old when he was anally raped by a grown male adult. He was diagnosed as suffered from Post-Traumatic Stress Disorder of a chronic nature. The trial judge also found that part of the emotional issues suffered by the plaintiff were due to his abusive home life. The trial court also noted that he did not suffer from erectile dysfunction or substance abuse.
It was noted that the abuser was in a position of trust and that there was a considerable age difference. It was also observed that the assaults were “of relatively short duration”, yet of a disturbing nature.
On the appeal initiated by the A-G yet, it was argued that the damage range missed the mark by using an inappropriate comparable range of cases, resulting in an excessive award. This is often the basis of the appeal as once the range has been determined, the trial judge will be allowed considerable discretion to set the damage award within the relevant range.
The Court of Appeal found in favour of the trial judge’s appointed range, reasoning that there was in this instance severe and continuing abuse, effected upon a child by a trusted adult and which contributed to or caused ongoing negative repercussions to the plaintiff victim.
The trial decision was upheld.
OCA Recent Review
The Ontario Court of Appeal recently considered the same question in the proper assessment of a damage claim for sexual assault.15 In this instance, the offence took place on a unique occasion, involved forced intercourse by the male physician upon a female colleague at the home of the male co-worker.
The appellate court concluded that the trial judge had rightly considered the factors as set out above and proceeded to identify the relevant range of the possible damage award.
The trial judge awarded $175,000 as compensatory damages and $25,000 for punitive damages. In assessing the first question of the damage range, the trial judge determined this to be from $144,000 to $290,000.
The appellant had suggested, unsuccessfully, that the incorrect range had been applied and that the appropriate range was from $20,000 to $50,000. This became the substantive ground of appeal on this issue.
The trial judge’s determination of the appropriate range for cases of this genre was accepted, as was the ultimate damage assessment within this range.
Costs were also awarded by the trial judge of $325,000. The scale of costs is not apparent in the trial decision.
Comparator of Human Rights Cases
Tribunal decisions in Ontario, as reviewed here, clearly the most generous forum for human rights claims in Canada, would not have been nearly as high. These facts would likely have seen a compensatory award in the range of $50,000. 16
There are no punitive damages allowed in the Ontario tribunal, nor are costs awarded.
Medical Evidence
While the law may well be 17that medical evidence is not required to prove a recognizable mental injury, clearly professional evidence is the best means of proving the case.
The same analysis used in the tort cases has not been used in human rights claims
Victims' Bill of Rights Act
A plea should also be made, where there is a criminal conviction, in Ontario, under the Victims’ Bill of Rights, which makes a person convicted of certain prescribed offences, of which sexual assault is one, liable to every victim of such crime. The victim is presumed to have suffered emotional distress. The sentence of the wrongdoer is not be considered in the assessment of the damage award, apart from punitive damages. The statute also states costs are to be awarded on a solicitor client basis. 18
Review of Other Sexual Assault Cases
A decision from B.C. in October of 2021 allowed for a composite award of $981,900. The decision consisted of general damages of $157,500, past lost income of $284,400 and a future income loss of $540,000. The court found that the sexual assaults led to PTSD and a major depressive disorder which interfered with her ability to obtain comparable employment. 19
In an Ontario 2000 decision, the wrongdoer accused of sexual assault was the plaintiff suing for wrongful dismissal. The plaintiff was fired for just cause, a defence which succeeded at trial and on appeal. The cause allegations were based on the employee’s allegations that she was raped by the plaintiff who had sued the employee for defamation. She counter-claimed successfully for assault and was awarded $100,000. 20
In a further case, tried by a jury, $300,000 was awarded was awarded for assault and battery due to four sexual assaults. The jury at trial also awarded $25,000 in aggravated damages. 21
The plaintiff held the position of a commissioned sales representative. From January to October of 2004, she was subjected to four sexual assaults by her direct supervisor and part owner of the corporate defendants, Mickey Weig. The conduct of Mr. Weig resulted in four criminal convictions for sexual assault, one of which was forced sexual intercourse, two convictions for forced confinement, one conviction for uttering a threat to cause death and a further conviction for uttering a threat to cause serious bodily harm. Mr. Weig was sentenced to 30 months in jail for these convictions. He remained in jail as of the date of the civil trial.
The evidence showed that the plaintiff suffered from depression, anxiety, fatigue, lost sexual desire and was suicidal due to the conduct in question. Experts from both sides confirmed that the plaintiff suffered from post- traumatic stress disorder and major depressive disorder.
An award of $150,00022was made in favour of a woman who was employed as a youth care worker at a mental health agency who was attacked and sexually assaulted by a resident in the facility.23
Non-Sexual Cases
Although an unusual award outside of sexual assault case, such a claim was made in a 2008 Ontario case. 24 Liability was found at trial.
The damage award then given was, however, a composite sum intended to compensate for this claim and the tort claim, as was then found for the negligent infliction of mental distress in the total sum of $45,000. 25.
The sum of $15,000 for the assault and battery claim was found as fair by the Court of Appeal, in addition to an award of aggravated damages for unfair conduct on termination in the sum of $45,000. 26
Perhaps such a claim is not as unusual as suspected.
In December of 2022, the Ontario Superior Court found in favour of the plaintiff in both assault and battery. The plaintiff had been struck in the testicles by his immediate manager necessitating the surgical removal of same. $100,000 was allowed in aggravated damages for battery, $10,000 in assault and $25,000 in punitive damages against the personal offender. 27
The Federal Court in Boothman found in favour of the plaintiff for the tort of assault and noted these facts in support:
Mr. Stalinski’s language and actions towards plaintiff grew progressively more violent as plaintiff showed her determination to resist his attempts to dominate her. He intentionally assaulted the plaintiff on numerous occasions by wilfully creating an apprehension of immediate harmful or offensive contact and, on one occasion, resorting to direct force against the plaintiff thereby causing bodily harm. In addition, Mr. Stalinski humiliated, insulted, manipulated and harassed the plaintiff at every turn. He exploited her and succeeded in destroying the plaintiff’s self-esteem. He intended to cause her harm and succeeded in that attempt. The damage resulting from these actions is psychological in nature and includes depression and anxiety attacks, feelings of suicidal despair and social isolation.
This decision cited the prior case of Timmermans v Buelow, which remains unreported. Timmermans considered the test for the tort of assault: 28
(a) In assault, the apprehension felt by a plaintiff must be of imminent and unwelcome physical contact to himself. In Wilkinson cases, that may be so, but typically is not. Thus, Mrs. Wilkinson was afraid only for her husband’s safety, as was Mrs. Purdy in her case: while Mademoiselle Janvier’s fear was not of physical contact at all, any more than Miss Rahemtulla’s was; and poor old Mrs. Bielitski was stricken with unnecessary grief for her supposedly dead son, rather than any fear for herself. (b) Assault is commonly held, upon the somewhat shaky authority … to be an essentially physical tort, necessarily involving some physical gesture and thus incapable of being committed by words alone. In contrast, the tort committed in Wilkinson cases is typically … entirely verbal …. (c) In one respect, the Wilkinson tort, generally complementary to assault, is narrower than the latter tort. For in assault, a plaintiff need only show “apprehension,” the slightest emotional disquiet or annoyance being apparently enough. In Wilkinson v. Downton cases, by contrast, the plaintiff is compelled to show a devastating trauma to the nervous system sufficient in law to amount to that unscientific notion of “nervous shock”.