The Ontario Superior Court has awarded general damages in excess of the cap in a sexual assault case, a first for the province, say lawyers.
Known as the trilogy, three cases from the late 1970s – Andrews v. Grand and Toy Alberta Limited, Thornton v. District No. 57 and Arnold v. Teno – established that plaintiffs could not recover more than $350,000 (adjusted for inflation) for non-pecuniary damages as the result of a catastrophic personal injury.
In D.S. v. Quesnelle, Justice Clyde Smith awarded $400,000 to a man repeatedly sexually assaulted by Louis Omer Quesnelle between 1987 and 1992. In a criminal trial, Quesnelle was convicted in 2013 and sentenced to five years in prison.
The nature of the assaults in D.S. v. Quesnelle made it “the worst of the worst cases,” says Loretta Merritt, a lawyer at Torkin Manes LLP, whose practice focuses on historical sexual abuse.
In awarding damages for pain and suffering, courts consider the age, vulnerability and subsequent impact of the plaintiff; the number, frequency and nature of the assaults and whether the respondent was in a position of trust, Merritt says. At the time of the abuse, the plaintiff was between five and 10, there were numerous, serious assaults and the assaults were “as invasive and degrading as they could be,” she says.
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