Recent Canadian Court Decisions Concerning the Impacts of Child Sexual Abuse on Earnings
This article was originally published in the winter 1999 issue of the Expert Witness.
We reviewed approximately 35 Canadian tort cases involving sexual assault that had been decided in the last decade. In this section, we review the findings of those cases under three damage headings: loss of earnings, loss of opportunity to marry, and punitive damages.
No loss of earnings
In approximately one quarter of the cases we reviewed, the courts denied the plaintiff’s claim for loss of earnings (after sexual assault had been proven). In some, – for example, B(KL) v. B(KE), M(LN) v. Green, and H(JL) v. H(DH) – the courts concluded that the non-pecuniary damages were "adequate" and, hence, pecuniary damages were not necessary. In others, for example C(P) v. C(RJ) and A(T) v. K(R), it was concluded that the plaintiff had not offered sufficient evidence on which to base an award. Finally, in both Gray v. Reeves and S(T) v. P(JW), the court could find no difference between the income the plaintiff would have expected to earn had he or she not been assaulted and the income he/she was actually earning.
These cases strike us as being consistent with the academic literature, which found that many victims of sexual abuse had not suffered long-term effects, particularly on earnings. Hence, it is not unexpected that some plaintiffs would be denied damages on this ground, particularly if they had not provided strong evidence of long-term (significant) harm.
Loss of earnings
In approximately three quarters of the cases which proceeded to trial, the plaintiff was able to obtain damages for loss of earnings. This is a higher percentage than the literature would lead one to expect. However, it must be remembered that the cases that reach trial are not a random sample of all possible cases. Presumably, few individuals who suffered no loss of income would press a case to that point.
The most common basis for the calculation of loss of income was that the plaintiff had suffered a reduction in the level of educational attainment, or had suffered a delay in reaching his or her ultimate educational level. In A(C) v C(JW), for example, it was found that one of the plaintiffs would have become an automobile mechanic and would only do so now, if at all, after a significant delay. In C(PA) v. T(JC), it was found that the effect of the abuse had been to prevent the plaintiff from graduating from high school. In P(J) v. Sinclair, the plaintiff’s actual earnings were compared to those she would have made had she completed two years of post-secondary education. And in P(S) v. K(F), the court concluded that it was reasonable to assume that the plaintiff would have completed high school but would not now do so.
Alternatively, in many cases, the courts accepted the argument that the plaintiff had achieved the same level of education as she or he would have in the absence of the abuse, but that the plaintiff would now suffer from higher unemployment, increased part-time work, or reduced overtime work. In B(J) v. M(F), the abuse was so severe that the court concluded the plaintiff would now be unable to work at all. In C(H) v. C(GC), the court accepted the argument that the effect of the abuse would force the plaintiff to reduce working hours from full-time to part-time. And in J(A) v. D(W), the court found that the plaintiff had missed a considerable amount of time from work during the pre-trial period.
In many of the cases in which damages for loss of income were awarded, the court implicitly recognised the argument that the victim’s low income might be due not only to the sexual abuse, but also to a dysfunctional family background. In A(C) v. C(JW), for example, there were four plaintiffs. The court noted that four out of five of plaintiff LK’s siblings had criminal records, were drug abusers, or otherwise had exhibited "lack of vocational success." It appears that the court reduced LK’s damages on this basis. In the same case, on the other hand, the court noted that all three of plaintiff CH’s brothers had been successful and it awarded substantially more to CH than it had to LK. Similarly, in K(W) v. Pornbacher, because the plaintiff had a pre-existing prognosis of attention deficit disorder, the court reduced the damages it would otherwise have awarded. And in T(KA) v. B(JH), the court reduced the past loss to take account of "other contingencies" that might have affected the plaintiff’s earning capacity.
A common thread running through many of the cases in which victims were awarded damages for loss of income was the expectation by the court that the victim would soon "recover" from the effects of the abuse. The incomes of individuals who had suffered abuse 10 or 20 years prior to the trial were expected to "catch up," within a few years of the court’s decision, to the incomes of those who had never been abused. In D(PA) v. H(AE), for example, the court awarded damages for only two years future loss. In V(JL) v. H(P), the court accepted the contention that the plaintiff would fully catch up within 5 years. And in P(J) v. Sinclair, the court assumed that the loss would continue for only 10 years into the future.
Loss of opportunity to marry
In two cases, the plaintiff argued that the effects of the sexual abuse had impaired her ability to marry. In Gray v. Reeves, the court concluded that the plaintiff had failed to provide adequate evidence concerning this claim, and refused to award damages. In LMN v. M(MJ), however, the court accepted the claim. Unfortunately, the court awarded a single sum to cover both loss of income and loss of marital prospect. Hence, it is not possible to determine what the value of the award was for loss of marital prospect.
We were able to identify six cases in which punitive damages were discussed. In three, M(TD) v. G(KS), N(JL) v. G(KS), and Glendale v. Drozdzik, the court refused to award punitive damages. In the latter, the British Columbia Court of Appeal quoted approvingly from Huff v. Price, to the effect that:
The award of punitive damages should not try to do again what has already been done by the compensatory damages, including the aggravated damages. … And, of course, if a criminal penalty has been imposed then that should be taken into consideration. (p. 300)
Nevertheless, the court in Glendale added that:
…the rule would be too absolute if it were that punitive damages cannot be awarded if there has been a criminal penalty. Sometimes the criminal penalty might be as little as a conditional discharge…
In none of the three cases in which punitive damages were awarded were the defendants jailed for their assaults on the plaintiffs. In B(JD) v. M(F), the defendant was charged criminally for offences against other children, but not for those against B(JD). In C(H) v. C(GC), no criminal charges were laid against either of two defendants. And in M(M) v. F(R), the defendant received only three years probation on the criminal charge. All three, therefore, appear to be consistent with the view that punitive damages should, generally, only be awarded when there have been no criminal penalties, or those penalties have not been severe.
To summarise, the courts have looked for evidence that the plaintiff’s past and future earnings were impeded by the sexual abuse. This involved examining factors such as the plaintiff’s likely education without the sexual abuse, work history, and foreseeable career path in the future. Other factors that were given weight in the decisions included the accomplishments of siblings and the environment that the plaintiff grew up in (excluding the sexual abuse). The courts have not, in general, been overly generous to plaintiffs in their awards for lost earnings.
A (C.) v. C. (J.W.), 1997, 36 C.C.L.T. (2d) 224, 35 B.C.L.R. (3d) 234 (BCSC)
A.(D.A.) v. B. (D.K.), 1995, 27 C.C.L.T. (2d) 256 (Ontario Court of Justice (General Division))
A (T.) v. K. (R.), 1995, 15 B.C.L.R. (3d) 274,  3 W.W.R. 720 (BCSC)
B. (J.D.) v. M. (F.) 1998, Docket: Bracebridge 233/96, (Ontario Court of Justice (General Division))
B. (K.L.) v. B. (K.E.), 1991, 7 C.C.L.T. (2d) 105, 71 Man. R. (2d) 265 (Man. Q.B.)
C. (H.) v. C. (G.C.) 1998, Docket: 101497/96, 101496/96, (Ontario Court of Justice (General Division))
C. (P.) v. C. (R.J.), 1994, 114 D.L.R. (4th) 151, (Ontario Court of Justice (General Division))
C. (P.A.) v. T. (J.C.), 1998, Docket: Courtenay S3229, (BCSC)
D. (P.A.) v. H. (A.E.), 1998, 49 B.C.L.R. (3d) 340,  2 W.W.R. 139, (BCSC)
Glendale v. Drozdzik, 1993, 77 B.C.L.R. (2d) 106, 101 D.L.R. (4th) 101, (B.C.C.A.)
Gray v. Reeves, 1992, 64 B.C.L.R. (2d) 275, 10 C.C.L.T. (2d) 32,  3 W.W.R. 393, 89 D.L.R. (4th) 315, (BCSC)
H. (J.L.) v. H. (D.H.), 1999, Docket: F/C/259/96 (NBQB)
H. (S.) v. L. (R.G.), 1993, 85 B.C.L.R. (2d) 232,  2 W.W.R. 276 (BCSC)
Huff v. Price, 1990, 51 B.C.L.R. (2d) 282 (B.C.C.A.)
J. (A.) v. D. (W.) 1999, 136 Man. R. (2d) 84 (Man. QB)
K. (W.) v. Pornbacher, 1997, 32 B.C.L.R. (3d) 360, 27 C.C.E.L. (2d) 315, 34 C.C.L.T. (2d) 174,  3 W.W.R. 149 (BCSC)
LMN v. M. (M.J.), 1998, Docket: New Westminster SO-41750 (BCSC)
M. (L N) v. Green Estate, 1996, Docket: Doc. Vancouver C932295, (BCSC)
M. (M.) v. F. (R.), 1996, 22 B.C.L.R. (3d) 18,  8 W.W.R. 704, (BCSC)
M. (T.D.) v. G. (K.S.) 1997, Docket: Vancouver C961248, (BCSC)
N. (J.L.) v. L. (A.M.),. 1 W.W.R. 438, 47 C.C.L.T. 65, 56 Man. R. (2d) 161 (Man. Q.B.)
P. (J.) v. Sinclair, 1999, Docket: Victoria 93/3581, (BCSC)
P. (S.) v. K. (F.),  3 W.W.R. 161, 1996, 150 Sask. R. 173, 32 C.C.L.T. (2d) 250, (Sask. QB)
P. v. F., 1996, 24 B.C.L.R. (3d) 105 (BCSC)
S. (J.E.) v. M. (P.D.) Estate, 1998, Docket: Victoria 97 2335, (BCSC)
S. (L.) v. R. (L.), 1996, Docket: Vancouver C942578 (BCSC)
S. (P.) v. S. (J.), 1996, Docket: Milton C12210/93, (Ontario Supreme Court General Division)
S. (T.) v. P. (J.W.), 1999, Docket: Victoria 98/1477, (BCSC)
T. (K.A.) v. B. (J.H.), 1998, 51 B.C.L.R. (3d) 259, (BCSC)
T. (L.) v. T. (R.W.), 1997, 36 C.C.L.T. (2d) 207, 36 B.C.L.R. (3d) 165, (BCSC)
V. (J.L.) v. H. (P.), 1997, 31 B.C.L.R. (3d) 155 (BCSC)