Ontario Court Says Sexual Abuse Cases Are Exempt From General Damages Cap

    TORONTO, ON, October 03, 2019 /24-7PressRelease/ -- Jeffrey A. Preszler and Aron Zaltz, of Preszler Injury Lawyers, obtained a judgment in the Ontario Superior Court that took the legs from under a decades-old cap on recoverable damages for victims of sexual assault.

The sexual assault case, D.S. v. Quesnelle, resulted in the plaintiff being awarded $400,000 for the pain and suffering damages he suffered from years of sexual abuse at the hands of the defendant, Louis Omer Quesnelle. The abuse took place from January 1, 1987, to November 11, 1992, a period during which the plaintiff was five to 10 years of age. According to the judgment, damages were based on the defendant's "intentional torts of assault, sexual assaults, and other misconducts of a sexual nature."

What This Judgment Means

"This judgment is monumental, in that it underscores the evolution of law related to the sexual abuse of minors," Preszler commented in his law firm's blog.

"The court showed sensitivity to the fact that there is no way to determine the depths to which suffering sexual abuse as a child can impact a victim throughout their life. Certainly, capping damages as you would the damages for other types of personal injury does not seem consistent with the delivery of justice, and it would appear that the court agrees."

Mr. Justice Macfarlane of the Court of Appeal for British Columbia spoke to this very issue and is quoted in the judgment as follows:

"We are just beginning to understand the horrendous impact of sexual abuse," Macfarlane explained. "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."

History of the General Damages Cap

The cap for non-pecuniary damages resulting from a catastrophic personal injury in Canada was established with three cases from the late 1970s: Andrews v. Grand and Toy Alberta Limited, Thornton v. District No. 57 and Arnold v. Teno. Commonly referred to as "the trilogy," these cases set a maximum of $100,000 to be adjusted for inflation for noneconomic damages, such as pain and suffering, in such cases.

The Impact of "Aggravating Features" and Other Case Law

When delivering the judgment in D.S. v. Quesnelle, Justice C.M. Smith referred to case law, aggravating features, such as the age of the victim, the defendant's position of trust, and the extensive and ongoing consequences suffered by the plaintiff as a result of the defendant's abusive actions.

Justice Smith pointed out that when the sexual abuse began, the plaintiff was five years old. "Can there be anything more innocent or vulnerable that a five-year-old child?" Smith asked rhetorically.

He continued, stating, "The defendant took an innocent five-year-old boy, used him horribly for his own purposes and satisfaction for five years before effectively discarding him and leaving him to deal with the fallout from that horrible mistreatment. The plaintiff has been dealing with a vast assortment of emotional and psychological problems ever since, and his prognosis for recovery is, at best, 'guarded,'" Smith continued.

Given this perspective, Smith concluded that the general damages cap should not apply in this case.

Other Damages

Preszler and Zaltz also presented evidence of economic damages resulting from the plaintiff's inability to earn a living. Smith was moved by the nature and extent of the evidence presented and concluded that not only had the plaintiff suffered economic loss from his childhood abuse, but he also would continue to do so. The judge awarded economic damages in the amount of $1,533,416.

Punitive damages were considered unnecessary, given the fact that the defendant was already given a five-year sentence in criminal court.

About Preszler Injury Lawyers

Preszler Injury Lawyers has represented injured people all over Ontario for more than 60 years.

The firm represents clients who have suffered personal injury from a wide variety of accidents, from vehicular to premises liability, defective products, medical malpractice, wrongful death, and more.

The firm's headquarters is located at 151 Eglinton Ave W, Toronto, ON M4R 1A6, and they have consultation offices throughout Ontario. Call 1-800-JUSTICE to speak with a lawyer.

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