Sexual abuse as a potential exception to the general damages cap for personal injuries

In DS v Quesnelle,¹ the Ontario Superior Court of Justice found that the long-standing cap on general damages for personal injuries does not apply to sexual abuse cases in Ontario.

The cap on general damages

In 1979, the Supreme Court of Canada released a trilogy of decisions in which it capped the general damages available for personal injuries at $100,000.² Adjusted for inflation, the cap currently stands at roughly $350,000.

In 1996, the British Columbia Court of Appeal found that the policy reasons for imposing the cap were not applicable to sexual abuse cases.³ While the Ontario Court of Appeal has noted it is possible to create exceptions to the cap and recognized the principled basis for an exception for sexual abuse,⁴ it has not decided either way whether such an exception existed in Ontario. Courts in Ontario have accordingly awarded general damages for sexual assault that have at times approached but have not exceeded the cap.

The claim

In Quesnelle, the plaintiff sued his stepfather for sexual abuse he suffered as a child. The stepfather had already been convicted of assault, sexual assault and sexual interference and given a five-year penitentiary sentence. The stepfather did not defend the action and the plaintiff moved for default judgment.

In considering the appropriate quantum of general damages, the judge relied primarily on the BC case law to conclude he did not have to apply the cap.

The judge found that the plaintiff’s claim was comparable to the worst cases of sexual abuse: the plaintiff was only five when the abuse started, the abuse continued weekly for over five years, the nature of the sexual assault “could not possibly be more invasive or degrading,” the stepfather was in a position of trust towards the plaintiff and the plaintiff was dealing with a vast assortment of emotional and psychological problems as a result of the sexual abuse. In the absence of the cap, the judge awarded general damages of $400,000.

Conclusion

The judge’s decision in Quesnelle will not be readily applicable to other cases – it was the product of an uncontested motion with a particularly horrific set of facts. Nonetheless, defendants can expect plaintiffs to continue to push at the constraints of the cap in cases involving sexual assault or other intentional torts involving criminal behaviour.