Why victims increasingly choose civil court and what makes these cases so complex
Over the last decade, Ontario courts have seen a sharp increase in the number of civil sexual assault cases filed, especially those involving historical allegations. Many of these cases involve teachers, pastors, youth group leaders, camp counsellors, coaches, and other individuals in a position of trust and authority over young people.
In Canada, there is no statute of limitations on sexual assault both in civil and criminal court. This means that a victim can go to the police or file a lawsuit years, or even decades, after the alleged assault occurred.
In situations where an accused is criminally charged and convicted, their criminal court conviction may be used against them in civil court. This is especially true where the accused pled guilty to the criminal allegations. Even where the accused did not plead guilty, a criminal conviction will serve as strong evidence in a civil lawsuit due to the much higher standard of proof in criminal court. In these instances, the accused may find themselves needing the services of both a civil and criminal sexual assault lawyer.
Civil court can be more appealing to victims for many reasons, including the much lower standard of proof. Civil lawsuits are decided on a balance of probabilities, meaning the court must only be 51% sure the defendant is guilty. Additionally, a civil lawsuit allows the victim to collect damages for the harm caused by the assault, which is typically not possible in criminal court.
Where significant damages are being sought, it is common for victims to file the lawsuit against the institution or organization that employed the alleged perpetrator at the time of the alleged assault. This allows victims to collect more than they would from a single individual.
Given the lower burden of proof, civil litigation often centers around causation and damages. To be successful in a lawsuit, a plaintiff must prove not only that the defendant assaulted them but also that the assault caused damages. The plaintiff must justify the amount of damages they are suing for in a quantifiable way.
Quantifying damages in sexual assault cases, particularly historical ones, can be particularly difficult. How does one put a number on the harm caused by an assault or the negative consequences that resulted thereafter? Furthermore, how does one determine which negative consequences were directly related to the assault and which would have occurred regardless? These questions make determining appropriate damages a complex and difficult process.
In many cases, litigation may involve the use of experts and psychiatric assessments to assist in proving causation. It is common for both the defendant and plaintiff to hire experts of their own who will often provide conflicting opinions. If a settlement cannot be reached, the matter will go to trial and the court will be left to determine how damages should be awarded.
Jordan Donich is a civil sexual assault lawyer at Donich Law.
This article was provided by Donich Law
