Every member of the legal team at Preszler Injury Lawyers is committed to delivering superior results for our personal injury clients. In the case of one client, a victim of childhood sexual abuse, we are proud to say our efforts paid off, not only by awarding the client the compensation he deserves and needs, but also by prompting Canadian courts to rethink how it compensates other victims of childhood sex abuse.
In this case, D.S. v. Quesnelle, the plaintiff was represented by Jeffrey A. Preszler and Aron Zaltz of Preszler Injury Lawyers. We filed legal action against Louis Omer Quesnelle for intentional torts of assault, sexual assaults, and other misconducts of a sexual nature.
The case resulted in the Ontario Superior Court awarding our client $400,000 in general damages for the sexual abuse he suffered at the hands of his stepfather starting at the age of five and continuing through the age of 10.
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The Significance of this Judgment
General damages also referred to as non-pecuniary damages deal with the compensation a plaintiff may receive for losses to which it is difficult to assign a monetary value. Examples of such damages include pain and suffering, mental anguish, and diminished quality of life.
Starting in the late 1970s, a group of three cases known as the trilogy (Andrews v. Grand and Toy Alberta Limited, Thornton v. District No. 57, and Arnold v. Teno), established a rule precluding plaintiffs from recovering more than $100,000 to be adjusted for inflation for general damages arising from catastrophic personal injury.
The recent judgment passed down in D.S. v. Quesnelle is monumental in that it underscores the evolution of law related to the sexual abuse of minors. The judge in our case 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.
Laws Related to Sexual Abuse Are Evolving
When Mr. Justice Macfarlane of the Court of Appeal for British Columbia commented on this issue, he spoke plainly about how much we are realizing we do not know about sexual abuse and, consequently, how much we have to learn about how to handle sex abuse cases in courts of law.
“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.”
Laws are changing all around the world to account for the long-overlooked mysteries surrounding sexual abuse. Just over the past year, a wave of new laws crossed the United States, for example, with states extending statutes of limitations for childhood sex abuse victims to account for the many psychological factors that might impede a victim from seeking justice in a timeframe closer to the incidents of abuse.
The Impact of “Aggravating Features” and Other Case Law on Sexual Abuse Cases
Justice C.M. Smith, to whom we presented our case on behalf of the plaintiff in D.S. v. Quesnelle, considered reams of evidence and case law when evaluating appropriate damages for our client. One case that came to bear in the judge’s decision was a 2005 Supreme Court case, Blackwater v. Plint, wherein legal action was filed by students at a residential school against the Canadian government and United Church, with allegations of sexual abuse.
This case called to the court’s attention the idea of “aggravating features,” to determine the severity of the plaintiffs’ suffering and other non-pecuniary damages. The aggravating features to be considered are as follows:
- Specifics related to the victim, such as age and vulnerability, when the sexual abuse took place
- Specifics related to the sexual assaults, including the total quantity of incidents, their frequency, and the level of violence, degradation, and invasiveness they perpetrated on the plaintiff
- Specifics related to the defendant, most especially their age and their status as being in a position of trust
- How the sexual abuse victim was affected by the incidents
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Seeing Our Client’s Abuse as the Worst-Case Scale
When Smith applied the above factors to D.S. v. Quesnelle, he concluded that the circumstances of the case amounted to “the upper end of the worst-case scale,” adding that, “Can there be anything more innocent or vulnerable than a five-year-old child?”
Given the plaintiff’s young age at the time of the abuse, the degrading and invasive nature of the abuse, the age difference between the plaintiff and the defendant, the defendant’s position of trust as the plaintiff’s stepfather, and the debilitating effect the abuse has rendered unto the plaintiff throughout his life, the judge naturally came to the conclusion that to apply the general damages cap in this case would be a miscarriage of justice.
In addition to presenting evidence of non-pecuniary damages suffered by our client, we also laid out for the court the extreme, negative impact the plaintiff’s childhood sexual abuse has had—and will continue to have—on his ability to earn a living.
Smith found our evidence and arguments to be compelling and awarded our client economic damages totaling $1,533,416.
Because the defendant had already been sentenced to five years in the penitentiary as a result of the criminal charges brought against him for his abuse of the plaintiff, the judge did not find it fitting or necessary to award punitive damages.
Preszler Injury Lawyers Can Fight to Recover the Damages You Deserve as a Victim of Sexual Abuse
Preszler Injury Lawyers prides itself on serving the injured people of Ontario for over 60 years. If you suffered sexual abuse as a child—or even as an adult—and wish to collect compensation for your economic losses, pain and suffering, and other damages, we can fight for your right to receive this compensation.
We have consultation offices all over Ontario. Call Preszler Injury Lawyers today at 1-800-JUSTICE to speak with a lawyer in a free consultation.