Unfortunately, sexual assault is a common but underreported crime. In 2021, 34 242 police-reported sexual assaults occurred in Canada.[1] All provinces experienced an increase in sexual assault from 2020 to 2021.[2]
Sexual assault survivors, undoubtedly, face many negative effects. Childhood sexual abuse is associated with mental illness and substance abuse in adulthood.[3] It is also associated with higher levels of adult unemployment or employment in less lucrative careers.[4]
In addition to pursuing criminal charges, sexual assault survivors can bring actions for battery or assault against alleged assailants.[5] Damages, awarded to successful plaintiffs in civil sexual assault actions, can help address the above-mentioned negative effects. While the Criminal Code does provide for restitution, the major purpose of criminal law is not restitution.
Pecuniary damages can address the negative financial impacts of sexual assault, especially for victims of childhood sexual abuse[6], and provide coverage for psychotherapy costs.[7] General damages demonstrate “… solace for the pain, suffering and loss of enjoyment of life flowing from the assaults”[8] and courts have awarded punitive damages in particularly egregious cases of civil sexual assault[9].
Forensic accountants can assist counsel in obtaining relevant pecuniary damages in sexual assault cases.
Loss of Income and Loss of Earning Capacity
Courts have highlighted the importance of having a professional assist them in determining the quantity of loss income.
When determining the loss of earning capacity in KT v. Vranich, the court stated that it was regrettable that it did not have evidence from an actuary or economist.[10] In LR v. SP, the court stated that it, regrettably, had no expert reports, regarding the impact of sexual abuse on the victim’s “vocational abilities”.[11] The court concluded that there was no causal connection between the sexual abuse that the plaintiff experienced and her education and career choices.[12] It did not award her any damages for loss of earning capacity.[13]
The benefits of retaining a professional to calculate loss of income or loss of earning capacity continue.
Professionals, like forensic accountants, can make multiple reasonable calculations regarding a plaintiff’s loss of income and courts may reward one of these amounts. Sexual assault often occurs early in life before an individual may have made significant career and related-educational choices. In SL v. Prince, the accountant, retained by the plaintiff, calculated two total loss of income scenarios.[14] One scenario was for if the plaintiff had graduated college and one for if the plaintiff had graduated university.[15] The court felt that the Plaintiff’s artistic interests would have directed him towards a college education and awarded him the corresponding college amount.[16]
Loss of Housekeeping Capacity
This might not be the first head of damages that comes to mind in a civil sexual assault action. However, it is an important head of damages. As noted earlier, sexual assault survivors are at higher risk for many mental illnesses. Recognizing that a depressive disorder impaired the plaintiff’s ability to perform household duties and daily activities of life, the court awarded in $10,000 in housekeeping capacity in NM v. Contreras-Ramirez.[17]
Forensic accountants calculate loss of housekeeping capacity for various torts.
Loss of Interdependent Relationships
Sexual assault survivors often face difficulty forming and maintaining relationships. Therefore, their lawyers should claim damages for loss of interdependent relationships.[18] This head of damages includes both pecuniary and non-pecuniary aspects; the pecuniary damages recognize that interdependent relationships produce economic benefits.[19]
To receive damages under this head, the plaintiff must establish:
first, that as a result of his injuries, there is a real and substantial possibility that his chances of forming an interdependent relationship have been detrimentally affected or impaired; and second, that such a relationship would have been economically advantageous to him.[20]
Claims often fail to establish the second element and courts have noted that merely citing relevant case law is insufficient.[21] A serious approach is necessary[22] and a forensic accountant can provide this approach.
[1] Statistics Canada, The Daily, “A Comprehensive portrait of police-reported crime in Canada, 2021” (2 August 2022), online: Statistics Canada < https://www150.statcan.gc.ca/n1/en/daily-quotidien/220802/dq220802a-eng.pdf?st=8IxdmJA3> [“A Comprehensive portrait of police-reported crime in Canada, 2021”].
[2] Ibid.
[3] “Childhood Sexual Abuse: A Mental Health Issue” (2022), online: heretohelp https://www.heretohelp.bc.ca/infosheet/childhood-sexual-abuse-a-mental-health-issue.
[4] CMA v. Blais, 2022 BCSC 214 at para 139.
[5] Additionally, survivors can bring claims against institutions, where sexual abuse occurred, for negligence and they can bring claims for breach of fiduciary duty if the assailant was in a position of trust.
[6] See, for example, SL v. Prince, 2015 ONSC 7450 [SL].
[7] See, for example, KT v. Vranich, 2011 ONSC 683 [Vranich].
[8] Doe 464533 v. ND, 2016 ONSC 541 at para 55 [ND].
[9] See for example Whitfield v. Whitfield, 2014 ONSC 2745 [Whitfield].
[10] Vranich at para 124.
[11] LR v. SP, 2019 ONSC 1737 at para 55 [LR].
[12] LR at para 62.
[13] Ibid.
[14] SL, above note 6 at para 42.
[15] Ibid.
[16] Ibid at para 47.
[17] NM v. Contreras-Ramirez, 2021 BCSC 1341 at paras. 71-80 [NM].
[18] KM v. Marson, 2018 ONSC 3493 [KM].
[19] Ibid at para 695.
[20] Ibid at para 697.
[21] Ibid at paras 705-707.
[22] Ibid.
