EMERGING TRENDS IN PROOF OF SEXUAL : Causation, Standard of Proof and Corroboration Loretta P. Merrit and Sandra Susckind Torkin Manes LLP

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Introduction Sexual abuse does not occur in a vacuum. Rather, it is one aspect of a life (albeit a meaningful one) that will have significant implications. Primarily the injuries that result from sexual are psychological. Psychological injuries can affect one’s enjoyment of life and ability to earn an income, as well as give rise to needs for counseling and therapy. There may also be intervening events or multiple unrelated factors contributing to the psychological condition of a plaintiff making sexual assault cases somewhat different than other personal injury cases. Courts have grappled with how to apply traditional legal principles to cases of sexual assault. In the past, sexual assault has been examined using legal principles analogous to personal injury cases. However, for various policy reasons, this application is often unhelpful or incorrect. In M.K. v. M.H.i, the Supreme Court of Canada recognized that historical sexual assault cases are unique for many reasons: 1. There has often been a significant lapse of time between the sexual assault and the trial; 2. There are usually no witnesses so the courts must weigh the testimony of the plaintiff against that of the defendant; 3. The survivor is conditioned to feel responsible for the sexual abuse and maintaining silence; 4. There is a sense of powerlessness by the invasion of and manipulation of the survivor as fear is instilled; 5. The long-term effects suffered by the victim lead to a myriad of symptoms including a vulnerability to revictimization;

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6. There is an inherent stigmatization associated, which instills feelings of shame and guilt; 7. Betrayal is sometimes a factor as survivors are often in a position in which they are dependant upon the person that caused the harm; and 8. Silence and secrecy are prevalent since the survivors are forbidden to speak about the injury and insidious methods are used by the perpetrator to prevent disclosure.

In M.K. v. M.H .the Supreme Court seems to be cognizant of this need for change in .ii This was a historical incest case where the Court addressed the discoverabilty rule. The Court stated that if the plaintiff shows scientific of post-incest syndrome, then a presumption will arise that he or she only realized the connection between the childhood assault and injuries during psychotherapy and therefore he or she does not run the risk of exceeding the limitation period imposed on bringing suit.iii The Court recognized that plaintiffs in cases of incest typically repress the abuse through parental insistence of secrecy. Therefore, to apply strict limitations legislation would in essence be equivalent to rewarding the defendant for forcing the child to keep silent.iv AUntil recently, powerful taboos surrounding sexual abuse have conspired with the perpetrators of incest to silence victims and maintain a veil of secrecy around the activity.”v To not extend the Limitations Act in that case would be in essence rewarding the defendant for using insidious methods to maintain the secrecy of the incest by the plaintiff.vi This paper will discuss the current law pertaining to issues of causation, standard of proof and sufficiency of evidence and how the application of the law should develop in light of the policy considerations in sexual assault cases. In light of the factors outlined in M.K. v. M.H. the courts’ applications of fundamental tort principles must recognize the uniqueness of historical sexual assault cases and the law must evolve based on our developing understanding of the nature and consequences of sexual assault.

I. CAUSATION This issue of causation will be divided as follows: 1. to examine how the courts assessed causation prior to Athey v Leonativii ; 2. the Athey decision itself; and 3. how Athey has been applied to sexual assault cases.

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a) Pre-Athey Causation is established where the plaintiff proves that the defendant caused or contributed to the injury. Causation is not to be determined precisely or rigidly. Rather, it must be governed by common sense.viii In determining causation before Athey, the test that was predominantly used is the “but for” test, involving an assessment of whether the plaintiff would not have been injured “but for” the of the defendant.ix In the past, this test has been useful to the courts in restoring the plaintiff to his or her original position. When there are multiple tortious causes, the “but for” test may still be utilized so as to divide liability among several defendants. Apportionment is permitted through negligence statutes allowing for , leaving the plaintiff fully compensatedx (see for example the Ontario Negligence Act, R.S.O. 1990, c. N.1). However, where tortious and non-tortious causes exist, the “but for” test becomes unworkable because the plaintiff can no longer recover 100% of his or her . In the past, the courts have sometimes found sufficient causation to exist where the defendant “materially contributed” to the injury.xi This means that the defendant’s negligence contributed to the injury beyond the de minimus level. It is left to the discretion of the trial judge to discern what this minimum level may be on a particular set of facts. In cases where there are multiple causes or intervening events or the plaintiff has a pre- existing medical condition, the courts have predominantly applied the “thin skull” or “crumbling skull” principles to apportion damages.xii

i) Thin Skull When the courts utilize the ‘thin skull’ test, a plaintiff recovers full damages for the injuries they have suffered.xiii The principle underlying the “thin skull” doctrine requires the defendant to take the plaintiff as he or she finds the plaintiff and therefore, any pre-existing frailty or vulnerability does not reduce the damages. “Thin skull” is driven by the theory that a defendant should take his or her victimxiv as he or she is found.xv

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ii) Crumbling Skull When the “crumbling skull” principle is applied, a reduction in the quantum of damages will be made to account for the plaintiff’s pre-existing condition.xvi “Crumbling skull” can be a combined application of both the “take your victim” and “vicissitudes principle”.xvii The vicissitudes principle reduces liability to the extent that the plaintiff experienced a sufficient non-tortious cause after the defendant’s negligence but before trial. The tortfeasor does not need to relieve the plaintiff of all losses during the course of his or her life. Crumbling skull also means that the defendant will not have the burden of losses that the plaintiff would have suffered anyway.xviii Therefore, the pre- existing condition of the plaintiff is taken into account and it becomes the Aoriginal position” to which the plaintiff must be restored.xix Applying the “crumbling skull” theory, the plaintiff would not be able to recover 100% of the damages for his or her injuries. The “crumbling skull” and “thin skull” tests have been applied in a large majority of sexual assault cases with multiple causes before the Athey decision. More often than not, the courts were more comfortable with being able to apportion damages in pre-Athey sexual assault cases, regardless of whether or not the causes were tortious or non- tortious.xx There was a general reluctance to apply the “thin skull” principle or any other tests that would allow the plaintiff to recover 100% of the damages for his or her injuries.xxi It was often difficult enough for the courts to find that acts of sexual abuse were perpetrated because in cases of historical sexual assault, much of the evidence is destroyed and the recollections of the witnesses are often vague and/or contradictory.xxii Once the courts found liability to exist, for the most part, they seemed uncomfortable in apportioning the myriad of injuries to one defendant, especially where the defendant’s actions were not the sole cause of the injuries. Therefore, perpetrators who prayed on vulnerable plaintiffs were able to escape full liability because they could rely on the pre- existing injury of the plaintiff and have their damages apportioned. However, the tendency to apportion damages due to the plaintiff’s pre-existing conditions is fundamentally flawed. Perpetrators of sexual assault should not be rewarded for preying

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on those that are already damaged. Rather, defendants should be deemed to take their victims as they find them and the “thin skull” principle should be applied so that the plaintiff may recover fully. Obviously, this should not be the case for intervening factors or tortious factors completely unrelated to sexual assault (e.g. motor vehicle accidents), but it is wrong to apportion damages just because the plaintiff was psychologically vulnerable when they fell victim to sexual assault.

b) Athey The Supreme Court of Canada in Athey provides an excellent analysis of how to properly apply the test for causation in tort claims.xxiii In that case the plaintiff Jon Athey had a history of back and neck problems.xxiv He was involved in one motor vehicle accident in February 1991 and then a second motor vehicle accident in April of that year.xxv In the summer of 1991, he began a regimented exercise program which further aggravated his injuries.xxvi He was hospitalized for three weeks and then after several months, he underwent surgery for a disc herniation.xxvii Athey then proceeded to trial against the defendants in each motor vehicle accident. The issue in Athey was not “fault,” as the defendants admitted liability. Rather, the question was whether or not the motor vehicle accidents materially contributed to the disc herniation suffered by Athey. Furthermore, since there was a pre-existing susceptibility to back and neck problems, the defendants sought to reduce their portion of the damages (which they succeeded in doing at the trial level).xxviii The Supreme Court of Canada stated that the general test for causation is the “but for” test. Major J. explained the terminology of the “thin skull” and “crumbling skull” rules and applied them to the case, stating: The “crumbling skull” argument is the respondents’ strongest submission, but in my view it does not succeed on the facts as found by the trial judge. There was no finding of any measurable risk that the disc herniation would have occurred without the accident, and there was therefore no basis to reduce the award to take into account any such risk.

The appeal involves a straightforward application of the thin skull rule. The pre- existing disposition may have aggravated the injuries, but the defendant must

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take the plaintiff as he finds him. If the defendant’s negligence exacerbated the existing condition and caused it to manifest in a disc herniation, then the defendant is a cause of the disc herniation and is fully liable.xxix

According to the Court, the more appropriate test will involve examining whether the defendants’ actions “materially contributed” to the plaintiff’s injuries.xxx Materially contributing to the injuries means that the contribution is beyond the de minimus range. In summary, Major J. outlined the following causation principles: 1. The standard of proof for causation is “balance of probabilities”; 2. The general test for causation is the “but for” test; 3. The “but for” test is often times unworkable so courts have found causation to occur where the negligence materially contributed to the occurrence; and 4. Apportionment between tortious and non-tortious causes is contrary to tort law because the defendant would escape full liability.xxxi

The primary issue of contention and debate that arose from Athey was that the Court seemed to state that non-tortious contributing causes do not reduce damages.xxxii However, if courts were to account for non-tortious contributing causes when apportioning damages, then the plaintiff would rarely recover fully because there are often multiple causes or intervening factors in a person’s life. The Supreme Court of Canada essentially reinforced the “thin skull” principle and held that once negligence is proven based on a tortious cause, there is no reduction for the existence of non-tortious causes if there is material contribution by the defendant.xxxiii It is therefore irrelevant to the question of causation that the defendant’s negligence is not the sole cause of the plaintiff’s injuries. Indeed, there will often be other events which are preconditions to the damages caused. However, the Court did state that if the injury could have realistically occurred in the future absent the tortious cause of the defendant, then a reduction may be considered.xxxiv Two years later, the Ontario Court of Appeal reviewed the tests for causation laid out in Athey. In Alderson v. Callaghan, the Court of Appeal considered apportionment of causation in the context of a plaintiff who was involved in a motor vehicle accident and had several pre- existing conditions, as well as subsequent tortious causes that may have aggravated her

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injuries.xxxv In this case, Alderson was a passenger in her common-law husband’s car when she was involved in a head-on collision.xxxvi The defendant, Callaghan, admitted full liability for the accident. The defence put forward an interesting argument; that the injuries experienced by the plaintiff were the result of several past that were perpetrated by Callaghan on her, a further assault by a stranger to the accident and pre-existing psychological and emotional conditions.xxxvii The Ontario Court of Appeal reiterated the principles laid out in Athey and held that the should have been instructed that if the accident had materially contributed to the plaintiff’s injuries, then the pre-existing psychological condition and abuse did not reduce the damages.xxxviii The Court of Appeal held that the jury should have been instructed that, in the alternative, if they found no material contribution to the plaintiff’s overall condition, they should have assessed which damages suffered by the plaintiff could be attributed to the accident.xxxix Accordingly, the Court set aside the verdict and ordered a new trial. The courts have therefore established the following principles of causation in tort cases:

1. Where there are tortious and non-tortious causes and the court cannot separate the injuries, and where the tortious action materially contributed to the injury in question, the plaintiff should fully recover. This principle is in essence akin to the “thin skull” rule which allows the plaintiff to be compensated for 100% of the damage. 2. Where there are multiple tortious causes, negligence statutes may be applied and liability may be apportioned according to the statute. The result of this application would be full compensation for the plaintiff and a determination of the extent to which each defendant should contribute.xl 3. In situations of multiple sufficient causes, where each cause could independently produce the injury, the “but for” test often does not work.xli As a matter of fairness, a rule cannot allow the claimant to improve his position if the evidence would support that each cause was capable of independently producing the injury.xlii The plaintiff should not be put in a position that is better than his or her original position. If the non- tortious conduct precedes the tortious cause, the “take your victim” principle and restoration principle can combine to deny all or a portion of the damages.xliii This is in essence the “crumbling skull” test where the plaintiff’s damages would be apportioned according to how much the defendant’s actions are found to have contributed to the injury.

c) The Application of Athey to cases of Sexual Assault

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Athey has Acast doubt on the correctness of some earlier decisions in the sexual abuse area, where plaintiffs’ losses arising from indivisible injuries were apportioned and their awards discounted based on the degree of causation attributed to the defendants’ wrongful conduct as opposed to other tortious or non-tortious causes.”xliv Since Athey, courts have experienced difficulty applying the above-mentioned principles of causation to sexual assault cases for the simple reason that it is often challenging to divide the injuries, assess causation and determine if the assault has materially contributed to the injury. “Individuals, such as the plaintiffs in these matters, come before the courts with diagnoses of post-traumatic stress disorder, depression, substance abuse and other psychological conditions. Unraveling the question of causation in these cases arising as they do from committed so long ago is a daunting task.”xlv While the test is logically simple, that the plaintiff should be put in the position he or she would have been in absent the sexual abuse, “the challenge lies in its application.”xlvi It is often virtually impossible to differentiate specific psychological ailments caused by sexual abuse from psychological ailments caused by other life events. This is especially true when the time period under consideration spans decades.”xlvii Since Athey, in sexual assault cases, the courts have delved into explanations of how to interpret the principles set out by the Supreme Court of Canada. For example, in M.A. v. Canada, the Saskatchewan Court of Queens Bench stated: “Athey was not so much a relaxation of causation principles as it was a re-statement and application of existing and well established tort principles.”xlviii Likewise, in W.R.B. v. Plint, the Court held that in historical sexual assault cases, it is not uncommon to find numerous unpleasant experiences unrelated to the sexual assault. xlix The Court stated that the way in which Athey should be applied once the sexual assault is proven, is to first consider whether the act caused an injury and second, the extent of the injury.l In examining the post-Athey sexual assault cases dealing with causation, a discernable pattern has emerged. The cases have generally aligned with one of the following principles:

i) If the court is able to separate specific injuries then they may assess damages according to those injuries that the defendant caused. Separation between

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divisible injuries is not really apportionment, it simply makes the defendant liable for the injuries he or she has caused; ii) If the court can determine the extent to which a pre-existing condition is aggravated, then the court can apportion damages according to the percentage of the injury for which the defendant is liable. This is essentially the “crumbling skull” argument that relies on the fact that the pre-existing condition was inherent in the “original position” of the plaintiff and the defendant is therefore only liable for additional damages; iii) If there are multiple tortious causes and all defendants properly are before the court, then the court may apportion liability between them according to percentages of fault; or iv) If there are multiple causes contributing to the injury which are incapable of separation and the defendant is found to have materially contributed to the injury, the defendant pays 100% of the damages.li

I will now demonstrate how each of these principles has been applied in specific cases and discuss which analysis is the most appropriate for cases of historical sexual assault.

Where the courts have been able to separate injuries In some cases, the courts are able to separate injuries and apportion damages according to liability for each injury. In actions where this is possible, the plaintiff would be fully compensated for the injuries caused by the defendant and be returned to the place he or she would have been in had the injury not occurred. This principle is ideal because damages are apportioned fairly based on the court being able to separate the injuries and then decide for which injuries the defendant is liable. This principle can be successfully utilized if the injuries are completely separate, (for example if defendant X is responsible for the broken arm and defendant Y is responsible for the broken leg). However, in cases of sexual assault, the plaintiff suffers from a myriad of symptoms and their origin is often impossible to decipher. Practically, the trier of fact will hardly ever be able to attribute psychological problems to

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each separate cause since psychological symptoms are intertwined and exacerbated by a variety of causes and factors. In E.B. v. Oblates of Mary Immaculate, the Court determined causation based on each injury suffered by the plaintiff. In that case, the judge attempted to separate the psychological problems of the plaintiff and then attribute to the defendant only those caused by the sexual assault.lii The plaintiff had been sexually assaulted as a child in a residential school by a baker employed by the defendant.liii The plaintiff suffered from a range of symptoms stemming from the assault. Although one could argue that all these separate symptoms came from the same injury, the Court separated out the symptoms and then decided whether the defendant was liable for each symptom. The Court found that the sexual assaults materially contributed to the plaintiff’s anxiety, symptoms of post-traumatic stress disorder, depression, alcohol abuse and difficulties with interpersonal relationships. Therefore the plaintiff deserved compensation for those specific ailments.liv However, the Court found that the plaintiff wet the bed prior to the assault and therefore, the defendant was not liable for this injury. Thus, where the courts are able to separate injuries and apportion damages according to liability, the plaintiff is fully compensated for his or her injuries and can be returned to the place he or she would have been in had the injury not occurred. This principle is ideal because damages are apportioned fairly to the tortfeasor who is responsible for the specific injury he or she caused. Here, the Courts are able to separate out injuries and apportion damages according to liability. In this case, the plaintiff would be fully compensated for their injuries and be returned to the place they would have been in, had the injury not occurred. This principle is ideal because damages are apportioned fairly based on the Court being able to separate out the injuries and then utilize the material contribution test. The problem that arises with this analysis is that it is often difficult, if not impossible, for the court to decipher whether the psychological symptoms all stem from the same or separate causes. While it worked in the E.B. v. Oblates of Mary Immaculate case because the Court had evidence that the bed-wetting began before the assault, it will be a difficult analysis to apply in future cases where the evidence is not as clear.

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Where the courts can estimate to what extent a pre-existing condition is aggravated When the courts are able to determine the extent to which a pre-existing condition is aggravated by the injury, they can apportion damages according to the percentage of the injury for which the defendant is liable. In essence, this is the “crumbling skull” rule, which does not allow the plaintiff to recover fully since the plaintiff should not be placed in a better position than he or she was in before the tortious act. The court must decipher what the original position of the plaintiff is in light of pre-existing conditions and strive to put him or her back in that position. The problem this principle presents is that it becomes fundamentally flawed for policy reasons when applied to cases of historical sexual assault. By allowing the courts to take the pre-existing condition of the plaintiff into account in assessing causation, is the equivalent of rewarding the predator for preying on a vulnerable victim. This principle is not appropriate unless, as stated in Athey, the injury would have occurred regardless of the tortious conduct, in which case, apportionment is appropriate.lv In R.A.R.B. v. British Columbia, the British Columbia Supreme Court held that the plaintiff should be classified as a “crumbling skull” because awarding 100% of the damages would put the plaintiff in a better position than what he or she would have been in prior to the injury.lvi The Court found that it would be appropriate to apportion damages in view of the pre-existing behavioral problems and personality disorder of the plaintiff.lvii Specifically, the Court mentioned the fact that the plaintiff had organic brain damage, which strained his relationship with his mother. He was sexually and physically abused by his father on numerous occasions and was blamed for the crib death of two siblings. The plaintiff also experienced sexual relationships at school with other young boys. When he entered into Woodlands (a school run by the defendant) he claimed to be sexually and physically abused at the school.lviii The court found that the school was liable for one of the sexual assaults and awarded $20,000 in non-pecuniary damages which it stated took into account the plaintiff’s pre-existing conditions.lix In T.M.B. v. R.R., the Court took into account the fact that the plaintiff had alcoholic parents and therefore, would have been vulnerable to injury regardless of the sexual abuse by her uncle that lasted from ages 8 to 11. As a result, the Court decreased the plaintiff’s future

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and past income loss, as well as non-pecuniary damages by 30%.lx In J.L.M. v. P.H., the Court held that the plaintiff had pre-existing vulnerabilities that were not the fault of the defendant.lxi While the British Columbia Supreme Court mentioned Athey, it stated that the plaintiff in that case was in the “crumbling skull” category due to her pre-existing conditions including; being separated from her birth and foster mother, the emotional abuse she suffered at the hands of her adoptive mother, the death of her adoptive mother when the plaintiff was young, and an attempt by the plaintiff to take her own life.lxii The plaintiff had been severely sexually and physically abused by her adopted father for over 10 years after her mother’s death, causing countless psychological traumas and eventually leading to several suicide attempts.lxiii Considering the pre-existing condition and the severity of the abuse, the Court found that an award of $80,000 for general damages would be appropriate.lxiv In H.L. v. Canada (Attorney General), the Saskatchewan Court of Appeal found that the trial judge erred in not considering the plaintiff’s problems with alcohol as a contributing factor.lxv The Court went on to find that apportionment of damages was appropriate in that case and the trial judge attributed too much of the damages to the sexual encounters.lxvi However, after much analysis, the Court found that the non-pecuniary damages awarded at trial were reasonable and therefore, should not be varied. However, it did set aside damages for loss of past and future earning capacity because the trial judge was found to have erred in attributing the plaintiff’s criminal behavior and earning capacity problems to the defendant. The above-mentioned cases are demonstrative of the problems inherent in applying the “crumbling skull” principle to cases of historical sexual assault. The Courts in those cases were uncomfortable with attributing 100% of the damages to the defendant due to the vulnerability of the plaintiff, yet they were unable, for the most part, to come up with a percentage by which damages should be reduced. Instead, most of the courts accepted a figure that they stated took the pre-existing conditions of the plaintiffs into account. This method leaves the trier of fact with great discretion to determine exactly the original position of the plaintiff and then award a figure based on this assessment. It also gives them the opportunity to reduce the damages they would have contemplated were inappropriate due to the pre-existing conditions of the plaintiff. By apportioning the damages, the court is in essence rewarding the defendant for preying on a

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frail plaintiff, rather than asserting the proposition that if a defendant perpetrates a sexual assault, he or she must “take your victim as you find them.” Furthermore, in discussing damages and the arbitrary way in which they tend to be apportioned, Nathalie Des Rosiers and Louise Langevin state: “On what basis does the judge arrive at the decision that the current injury suffered by the plaintiff is 60 or 75 per cent due to the attacker, when medical science is unable to ascertain liability with such certainty?”lxvii Since medical opinion cannot ascertain liability and damages to a certainty, then the courts should not be put in a position where they are forced to decipher an arbitrary and fictitious percentage to reduce the liability of the defendant. Rather, they should merely decide if the act contributed to the injury and award damages based on the “thin skull” principle. This may seem to be contrary to the principle of tort law that states the plaintiff should not be put in a better position than they would have been in before the tortious act. However, sexual assault cases pose different policy concerns such as not rewarding those that would prey on the vulnerable. Otherwise, the policy that would flow from these cases is that the only way to retrieve full damages is for the plaintiff to be in perfect mental health before the sexual assault, and have had no other subsequent traumatic life events. Ideally the “crumbling skull” principle would only be used in extreme cases where full compensation would be completely inequitable. An example of applying this principle correctly was found in T.E.G.H. v. P.K. In that case, the Court held that due to the fact that sexual assault cases are increasingly complicated, courts have often adopted other tests in order to prove causation. It went on to suggest a third category of causation being, “[a]n aggravation of an existing injury.”lxviii This is in part due to the fact that “thin skull” and “crumbling skull” have been difficult to apply when the plaintiff has a pre-existing psychological condition that seems to have been exacerbated by the defendant’s negligence.lxix On the facts of that case, the court went on to suggest utilizing a “crumbled skull” test which would go beyond the aggravation of an existing condition or “crumbing skull” because the plaintiff was so severely damaged before he met the defendant that it was almost impossible to assess the defendant’s damage beyond that of “grave insult.”lxx

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When there are multiple defendants apportion accordingly If there are multiple tortious causes and all defendants are before the court, then the court can approximate the liability of each defendant and apportion damages accordingly. Negligence statutes and the principles of contributory negligence are utilized under this principle (see for example the Ontario Negligence Act, R.S.O. 1990, c. N.1). This approach was applied in W.R.B. v. Plint.lxxi In that case, the British Columbia Supreme Court found that the plaintiffs were sexually abused at the Alberni Indian Residential School operated by the United Church of Canada and the Federal Government.lxxii The Government was found to have a special duty of diligence and therefore, the Church and the Government were both found to be vicariously liable.lxxiii The Court apportioned non- pecuniary damages 25% to the Church and 75% to the Government because the latter was the senior partner in the operation of the school.lxxiv In this case, the result was logical as both defendants were before the Court and the plaintiffs were able to receive 100% of their damages. However, a problem arises when the torts are not concurrent. For example, in O’Neil v. Van Horne, the defendant attempted to join the plaintiff’s parents and former boyfriend as third parties.lxxv In that case, the defendant was accused of making oral contact with the plaintiff’s genitalia.lxxvi The defendant alleged that the damages sustained were caused by abuse by the plaintiff’s parents and the subsequent sexual assault by a former boyfriend.lxxvii The Ontario Court of Appeal held that joining the other defendants would be contrary to s.1 of the Negligence Act because each individual is responsible for their own conduct.lxxviii Furthermore, the tortious acts of the proposed third parties were not concurrent with the alleged tort and therefore s. 1 had no application in the case.lxxix The defendant was concerned that due to the Athey decision, he would be found 100% liable for the damages of the plaintiff. The Court pointed out the problems with dividing injuries in a case where the injuries are intertwined, but it reiterated that the burden is on the plaintiff to prove what injuries were caused by the defendant.lxxx The policy that flows from this case is that each tortfeasor is responsible for his or her actions, and even if the injuries that the plaintiff experienced are a result of multiple causes,

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it is the responsibility of the plaintiff to prove that the defendant’s conduct led to her particular injuries.

Where there is material contribution, the plaintiff recovers 100% When the courts are faced with a situation where there are multiple causes contributing to the injury of the plaintiff, and such causes are incapable of separation, then the defendant is 100% liable if the defendant materially contributed to the injury. This principle in essence is the “thin skull” rule. For example, in M.M. v. R.F, the British Columbia Court of Appeal overturned a lower court’s ruling that apportioned damages.lxxxi The Court stated that if the abuse is above the de minimis range, the plaintiff should recover 100% of the damages.lxxxii The Court of Appeal further held that while the plaintiff may have been vulnerable due to a genetic predisposition to alcoholism, this was irrelevant since the tortious conduct materially contributed to the injury.lxxxiii In T.L. v. T.R.W., the defendant who abused the plaintiff for five years as a child tried to rely on intervening events to minimize his damages for instance, the defendant relied on the fact the plaintiff had been involved in prostitution and had experienced a bad marriage.lxxxiv The Court found that there should be no apportionment because the symptoms were not independent of the abuse by the defendant and he was a significant contributing factor to her damages.lxxxv Also, in N.C. v. Blank, the Ontario Court of Justice applied the “thin skull” rule and explained that even though the injuries were unexpectedly severe owing to a pre-condition, the tortfeasor materially contributed to the injury making him 100% responsible for the damages.lxxxvi In that case, the sexual abuse was by a therapist who was in a position of trust.lxxxvii In K.I.M. v. R.J.P. , the Ontario Superior Court of Justice found that while the plaintiff had experienced other abuse, the majority of the abuse was perpetrated by the defendant and the defendant caused the majority of the damages making him 100% liable.lxxxviii One of the best applications of this principle can be found in T.W.N.A. v. Clarke. Here, the British Columbia Supreme Court tried a case where seven plaintiffs were sexually assaulted at St. George’s Indian Residential School during the 1960s by their dormitory supervisor. The Court applied Athey in the following way:

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First, if the plaintiffs’ current psychological difficulties would exist regardless of the sexual assaults at St. George’s, the defendants are not liable. Second, if both the sexual assaults and other traumatic life events were necessary, in combination, to cause the plaintiff’s psychological dysfunction, the defendants are liable. Third, if the sexual assaults and the other traumas were each in and of themselves sufficient to cause the psychological harm, then the question arises whether upon a balance of probabilities the sexual assaults materially contributed to the harm. If so, the defendants are liable.lxxxix

The Court found that the pre-school and post-school experiences suffered by the plaintiffs would not have caused their current psychological harm, had the sexual assault not occurred, making the defendants fully liable.xc An interesting development is occurring as a trilogy of cases in which causation and Athey are in issue has been heard by the Supreme Court of Canada. The decisions have been reserved, however, the Supreme Court of Canada will be given the opportunity to discuss, among other issues, how Athey should be applied in cases of sexual assault. The three cases are: K.L.B. v. British Columbia, M.B. v. British Columbia and E.D.G. v. Hammer. In K.L.B. v. British Columbia, all the plaintiffs (siblings) were placed in a foster home where they each experienced physical and sexual abuse to varying degrees.xci The British Columbia Supreme Court went through an extensive analysis of the type of abuse each child endured, which they concluded was not severe, and included hitting, sexual assaults between the children and exposure to adult sexual misbehavior.xcii The Court found the plaintiffs to be in the “crumbling skull” category because they were all affected by their prior home life where their parents abandoned and neglected them.xciii The Court ordered damages in the range of $10,000 to $25,000 for each plaintiff. On appeal to the British Columbia Court of Appeal, they concluded the claims of physical abuse were time barred, with the exception of the one incident of sexual assault against the plaintiff K.xciv Since the only claim that was not time barred was K’s sexual assault, the Court reduced K’s award of damages from $25,000 to $10,000 as only 40% of the award were found to be due to the sexual assault. In E.D.G. v. Hammer, the plaintiff was abused by the janitor of her school as a child, and was subsequently abused by other men and involved in motor vehicles accidents.xcv The British Columbia Supreme Court held that there was an overlap between the injuries arising from the

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plaintiff’s motor vehicle accidents and the assaults. However, the injuries from the motor vehicle accidents did not relieve the defendant of liability. The Court referred to the principles set out in Athey and found that “[a]s long as he [the defendant] is a part of the cause of the injury, even though his acts alone did not create the entire injury, his responsibility for the damage that flows from that injury is established.”xcvi The trial judge was able to separate out the injuries that flowed from the sexual assault and therefore no apportionment was necessary. The case was appealed to the British Columbia Court of Appeal where they upheld the trial judge’s decision.xcvii In M.B. v. British Columbia, the plaintiff came from a dysfunctional home where her mother was ill and addicted to drugs, and her father was abusive.xcviii She was placed in foster care where she experienced one incident of sexual assault.xcix The British Columbia Supreme Court awarded her $80,000 in non-pecuniary damages for the sexual assault.c On appeal to the British Columbia Court of Appeal, the concurring opinion of Mackenzie J.A. dealt with the issue of damages and causation. The majority of the Court found that the trial judge erred by excluding the prior abuse of the plaintiff from the assessment of damages. They also found that on comparison, $80,000 was “inordinately high” and reduced the damages to $30,000, which is within the range for incidents of similar, singular incidents of sexual misconduct.ci There is no easy answer to the issue. An equitable solution must be found between the victim’s right to full indemnification and that of the defendant to pay only for those injuries for which he or she is responsible. Ideally, the material contribution principle should be used more frequently by the courts. Defendants should not be allowed to capitalize on the fact that the plaintiff may have had pre-existing conditions. The defendant must take their plaintiff as he or she finds them, and must pay fully for the damages caused. The principle is clear; once the court has determined causation, it should not reduce the damages because of the existence of non- tortious factors. To introduce other non-tortious or tortious acts to apportion damages means that in essence the court is introducing third parties into the proceeding who are not defendants or alternatively examining non-tortious factors that should not reduce the plaintiff’s damages. The defendant cannot be rewarded for preying on a vulnerable victim because a sexual predator will tend to choose his or her victim precisely because they are vulnerable. Furthermore, examining

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the weaknesses of the plaintiff is the equivalent of reproving them for having predispositions that caused exposure to sexual assaults. This is especially true since victims of sexual assault often are at a greater risk of having another attack, of being drawn to violent men, having little self- esteem and becoming more submissive to abuse.cii

II. CIVIL STANDARD OF PROOF IN SEXUAL ASSAULT CASES The civil standard of proof is one of a balance of probabilities. However, there are degrees of probability within the civil standard of proof depending on the seriousness of the allegations and on whether the issue being proven is liability, causation or damages. The various standards of proof that have been applied by courts in sexual assault cases will be examined below.

a) Standard of Proof for Liability When it comes to assessing the standard of proof for liability in sexual assault cases, the courts have often times suggested that a higher standard of proof be applied.ciii This approach stems from established legal principles that in a civil case where there are quasi-criminal allegations, a court is justified in scrutinizing evidence more carefully. In Continental Insurance Co. v. Dalton Cartage Co., Laskin C.J.C. held Athat where allegations of conduct that is morally blameworthy arise in civil cases, the relevant standard remains the civil one though there is necessarily a matter of judgment involved in weighing evidence and a trial judge is justified in scrutinizing evidence with care.”civ Many cases involving sexual assault or abuse rely on this case and use the higher standard of care in assessing the evidence.cv This standard is otherwise known as the “clear and cogent” evidence requirement which means the evidence should be subject to greater scrutiny.cvi The test as stated in Re Bernstein and the College of Physicians and Surgeons of Ontario is that the evidence needs to be clear and cogent because the allegations of sexual assault are of such a serious nature and have such potentially harmful effects on the reputation of the accused.cvii The Court explained: “A man’s professional reputation, threatened by allegations of misconduct against which he pledges his credit as a witness, should be upheld unless there is very strong evidence shattering his defence of that reputation.”cviii

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Some courts have gone even further and suggested that the standard of proof applied should depend not only on the seriousness of the allegations but also on whether or not the defendant is present in court. In W.R.B. v. Plint, the Court suggested that when determining the standard to be applied, the court must take into account the fact that some of the perpetrators are deceased and cannot defend themselves or deny the allegations.cix However, there are significant difficulties with imposing a higher standard of proof in cases of sexual assault. Applying a higher standard in such cases, tends to place an exaggerated burden upon plaintiffs.cx As N. Des Rosiers and L. Langevin state in their article L”indemnisation des vitimes de violence sexuelle et conjugale (Cowansville, Qc.: Yvon Blais, 1998) at 266: [Translation] It is important that under the guise of a stricter application of the evidentiary proof required for the criminal act, the myths that surrounded proof of sexual offenses are not reborn.cxi

What this essentially means is that in the past there has been suspicion that the survivors in sexual assault cases were fabricating their stories. Putting plaintiffs to a higher standard of proof, is the equivalent of saying that a higher standard is necessary to weed out false claims and protect defendants whose reputations are being threatened by these fabrications.cxii The standard of proof in cases of sexual assault should be the same or similar to any other tort action. Although allegations of sexual assault may damage a defendant’s reputation, the trial affords the defendant an opportunity to exonerate himself or herself if the claims are truly false. A higher standard essentially places an unfair burden on the plaintiff who already enters the courtroom with a disadvantage since in historical sexual assault, there is little evidence available. The problems that surface in proving liability are often a direct result of the defendant’s behavior. For example;

1. Defendants operate secretly and there is usually no eye-witnesses or other corroborating evidence; 2. Defendants use insidious methods to keep the plaintiff quiet like threatening vile consequences if the assault is revealed; and 3. Plaintiffs may help defendants to hide their conduct because of feelings of shame and guilt.

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It seems unfair to impose a higher burden of proof on plaintiffs in sexual assault cases where it is the defendant’s own conduct which makes proof difficult. In A.J. Carnie Estate, the Court found that a higher standard of proof in sexual assault cases is inappropriate.cxiii The Court stated that the standard should be the same as in any other tort action.cxiv While there are not many courts that take this position on the standard of proof, it is a proposition that should be more readily accepted. Since it is often times that the defendant’s conduct makes proof difficult or non-existent, the standard of proof should be lowered to reflect this reality. At a minimum, these policy reasons dictate that no higher standard ought to be imposed on plaintiffs in sexual assault cases.

b) Standard and Burden of Proof in Determining Causation and Damages The burden of proving causation falls upon the plaintiff, who must prove that the injuries resulted from the defendant’s tortious act.cxv Usually the standard of proof for causation is on a balance of probabilities. The defendant may argue that the damages which the plaintiff has suffered are too remote or not foreseeable. “The test is reasonable forseeability of probable or possible risks and is often shaped by policy considerations.”cxvi In Canson Enterprises Ltd. v. Boughton and Co.(“Canson”), McLachlin J. discussed the correct approach to forseeability, she said: [T]he plaintiff’s actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Forseeability is not a concern in assessing compensation, but it is essential the losses made good are only those which, on a common sense view of causation were caused by the breach.cxvii

While the above finding was not the majority analysis in that case, it is a persuasive argument, especially in light of the fact that there has been some uncertainty as to what the standard is in cases involving breach of fiduciary duty.cxviii While there has been no thorough analysis of the standard of proof that should be applied when assessing causation and damages in sexual assault cases, many courts have alluded to a normal standard. In W.R.B. v. Plint, the Court stated that: “Ultimately it is for the court, rather than the experts, to determine whether the plaintiff has satisfied the onus of establishing, on a balance of probabilities, that the defendant’s negligence caused or materially contributed to her

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symptoms”cxix McLachlin J.’s analysis in Canson was applied to a case of sexual assault in K.L.B. v. British Columbia, where the British Columbia Supreme Court used this approach to assess the effect of the sexual abuse on the plaintiffs, and found that based on this common sense standard, the breach of fiduciary duty materially caused the damage.cxx In several cases, the courts have specifically referred to the lower standard set out in Snell v. Farell (‘snell”)a medical case.cxxi In that case, the Court held if the defendant created a risk and the injury was within the area of risk, then the defendant can be said to have caused the injury.cxxii Snell illustrates the appropriate standard of proof to be applied and recognizes that certain types of tortious actions tend to create problems with proof, which may deny the plaintiff relief.cxxiii According to the Court, “[T]he plaintiff need only prove that the defendant created a risk of harm and that the injury occurred within the area of risk.”cxxiv Then an inference of causation can be warranted; “in that there is no practical difference between materially contributing to the risk of harm and materially contributing to the harm itself.”cxxv Some sexual assault cases refer to Snell v. Farell when assessing causation, while others are silent on the standard of proof to be applied. The Snell standard of proof should be applied to all cases of sexual assault because, like in medical malpractice cases, in sexual assault cases there are complexities of proof that may lead to survivors ultimately being deprived of relief.cxxvi The general rule should be, once the defendant is found to have committed the sexual assault, and if he or she is found to have contributed to the risk of injury, and the injury in fact occurs, he or she is then liable for the damages. In some cases the burden of proof should shift to the defendant. For instance, in extreme cases where utilization of the “crumbling skull” test is appropriate because the plaintiff was so severely damaged before the defendant’s conduct.cxxvii In these cases, the burden should shift to the defendant to prove that he or she is not responsible for all the injuries. The policy reason for shifting the burden at this point is that scientific studies are not yet sufficiently sophisticated to prove to a medical certainty that all the plaintiff’s injuries flowed from the conduct of the defendant.cxxviii “This shortcoming places an additional financial burden on the plaintiff, even though it is the defendant who has put her in this difficult situation.”cxxix Therefore, the burden should shift in those extreme cases where full recovery by the plaintiff would result in an

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injustice. The defendant should bear the expense of proving to the court that apportionment of damages is justified. With respect to future damages, an even lower standard of proof should be applied. In sexual assault cases, the approach has been utilized involves a sliding scale from the high standard applied in assessing liability down to a lower standard to assess causation and damages, and then to an even lower standard when assessing future damages.cxxx With regard to future pecuniary loss, the court does not have to assess the risk on a balance of probabilities. Rather, it has to determine whether there is a reasonable chance that the loss will occur.cxxxi This approach was applied by the Supreme Court of Canada in Athey. In Athey, the Court found that “[a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation.”cxxxii Thus, the court must estimate the chances of a particular thing happening in the future and reflect that in the damages it awards. The court estimates the chance of a future loss by utilizing experts or cogent evidence and not on mere speculation. The reasoning behind this is that the court cannot predict a future event happening, all it can do is evaluate the chance. This lower standard of proof is based on the principle that the person who has been injured should not bear the burden of the uncertain future risk.cxxxiii

III. CREDIBILITY AND CORROBORATION Similar Fact Evidence and Corroboration a)Credibility In pursuing civil actions against the perpetrators of abuse, survivors may be motivated by any number of factors in the hopes of obtaining justice. Justice to these survivors may include the condemnation and punishment of the abuser, the public vindication of the truth of their experiences, or even the social advocacy involved in exposing the prevalence of sexual abuse.cxxxiv Indeed, many plaintiffs speak of the psychological progress that they experience after having enjoyed their “day in court.”cxxxv While these benefits are compelling, the civil justice system is renowned for its primary incentive of providing successful claimants with monetary compensation for injuries sustained.

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In the past, there was skepticism attached to allegations of sexual assault. However, attitudes surrounding sexual assault have since evolved.cxxxvi Even so, myths surrounding sexual assault are still alive and well as many judges still do not understand things such as why a complaint was not filed as soon as possible, inconsistencies in the narrative, the history of the survivor, and what factors account for the appearance of the survivor as they testify as a witness, (e.g.the fact that they are nervous when testifying).cxxxvii Particularly where claims of sexual abuse are brought against wealthy institutional defendants, it is possible to imagine a motive for fabricated allegations of sexual abuse. It has even been said, “where there is money Y there will be false claims.”cxxxviii Often, the problems that courts have in assessing sexual assault survivors’ evidence can be attributed back to the conduct of the defendant. For example, the fact that the survivor has a criminal record should not be used against him or her to undermine credibility if she or he has resorted to prostitution as a direct result of the assault.cxxxix Also, the low self-esteem of the survivor may contribute to how he or she is perceived on the witness stand. The survivor may hesitate, perspire and avoid eye contact as a result of the abuse.cxl Furthermore, inconsistencies in the narrative may be due to the survivor blocking out the event. Alternatively, the survivor may have revealed parts of his or her story at different times due to a fear of revealing the nature of the assault, especially since the importance of secrecy has been imposed upon him or her by the defendant.cxli Consequently, the legitimacy of these claims, as determined through an assessment of the plaintiff’s credibility, frequently becomes the focus of the proceedings. Often times in sexual abuse cases, there are no witnesses other than the plaintiff and the defendant. In order to assist in assessing the credibility of the parties, the courts will often allow corroborating evidence to be admitted. Nevertheless, with historical sexual assault cases, credibility issues become prevalent as the prolonged passage of time “brings difficulties in recollection, evidentiary challenges, and problems in ascertaining with accuracy what occurred so long ago.”cxlii The passage of time means that witnesses are forced to remember experiences that have remained dormant for years and relate evidence that is often compromised.cxliii As has been articulated by the British Columbia Court of Appeal, a plaintiff’s credibility is determined through a multi-factor assessment that encompasses a plaintiff’s

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“[o]pportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has said and heard, as well as other factors.”cxliv While these factors are all applicable to the credibility of plaintiffs within sexual abuse cases, the following specific variables have been highlighted by Grace and Vella, as relevant to the determination of a plaintiff’s credibility: 1. Consistency in the plaintiff’s description of events since the first disclosure of abuse; 2. Candidness by the plaintiff about her or his ability to recall matters, such as the frequency of the abuse; 3. Timing of and circumstances surrounding a plaintiff’s recollection or disclosure of abuse, or her or his decision to come forward and assert a claim after many years of inaction; 4. Confirmation through expert evidence, that the plaintiff suffers from symptoms consistent with the trauma of sexual abuse, the testimony of a witness who observed the plaintiff at a significant point in time, or contemporaneous recording in a diary of an event associated with the abuse; and 5. Extrinsic corroborating evidence, which is rare in historical abuse cases, but includes physical injuries or property of the plaintiff which relates in some way to the abuse.cxlv

b) Corroboration Some courts view witnesses and credibility in sexual abuse cases with skepticism because of a perception that false claims may arise and have therefore applied stricter standards when assessing credibility. Therefore, corroborating evidence becomes a useful tool for plaintiffs to overcome their evidentiary burden. Corroborating evidence is admissible based on the discretion of the trier of fact who must, in light of the evidence, assess its reliability.cxlvi However corroboration is not required and the court should not find the absence of corroboration surprising due to the lapses of time and circumstances involved in these cases. There is also concern about collusion of memories through therapists and family members. For these reasons, the courts have sometimes been reluctant to admit corroborating evidence. However, since the passage of time has often destroyed most of the evidence and the defendants’ conduct may have made proof more difficult to obtain, corroboration should be

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more readily admitted and strict evidentiary standards should not be applied. The following section will discuss how corroboration is used in aiding the trier of fact in assessing liability and damages.

i) Liability The courts do not require corroboration. However, lack of corroboration may lead courts to dismiss testimony that stems from recovered memories of sexual abuse.cxlvii For example, in L.H. v. W.U. the Court found that the plaintiff had been exposed to collusion because she only remembered flashbacks of sexual abuse through speaking to her family and going to therapy.cxlviii The plaintiff did not remember the sexual assaults until she was in therapy, and due to the lack of corroboration, the Court found these memories to be unreliable.cxlix Thus, the case was dismissed. Sometimes, evidence of family members that witnessed strange or unusual behavior may be useful to the courts.cl In T.K.S. v. E.B.S,. the British Columbia Supreme Court found corroboration to be useful in determining the credibility of the plaintiff when her sister and cousin testified that they remembered specific acts taking place involving the plaintiff and the defendant. The Court accepted the testimony as truthful based on the credibility of the witnesses and found the act to have occurred.cli The plaintiff’s recollection of the assault was incomplete since the memory was recovered over a period of time. Therefore, corroboration was a key factor in the trier of finding in favour of the plaintiff.clii The symptoms of sexual abuse may be introduced as corroborative evidence since there are several common symptoms experienced by both male and female survivors of abuse experience.cliii Corroborative medical evidence includes the courts recognizing that disturbed sexual behavior can be associated with sexual abuse of children. For example, in Strong v. M.P.P, the Court admitted evidence that the defendant could not recognize limits on appropriate sexual contact.cliv Also, giving specific details about the place where the assault occurred may lend weight and help corroborate the plaintiff’s testimony. However, in K.G. v. B.W., the plaintiff was unsuccessful when she gave a detailed account of the layout of the apartment where she

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alleged she was sexually assaulted.clv The Ontario Superior Court of Justice held that due to discrepancies in the plaintiff’s testimony, the evidence did not corroborate her allegations.clvi The plaintiff in this case went on to describe another house where she was sexually assaulted, but the Court found this was only indicative of the fact that she had been there and did not corroborate her testimony that a sexual assault had occurred.clvii One of the reasons cited by the Court was that the plaintiff had frequently visited the home for benign purposes and therefore, the recollection of the layout was not given much weight.clviii Another form of corroboration is a contemporaneous recording in a diary of an event associated with the abuse. In A.D. v. M.D., the Court found that the diary kept by the plaintiff which recorded the events of sexual abuse was equivalent to contemporaneous corroboration of the incident in question.clix As for corroboration of physical symptoms, the delay between the assault and the medical examination often does not leave any physical signs of the assault, making it improper to insist on this type of corroboration.clx The most prevalent type of corroboration found in cases of sexual assault is similar fact evidence. The expression “similar fact evidence” is “an umbrella term which encompasses a loose category of evidence tending to show a person’s discreditable disposition, past conduct, possessions or reputation.”clxi Similar fact evidence is used in both criminal and civil cases to corroborate the allegations. Despite the broad definition of similar fact evidence, evidence that only serves the purpose of introducing past immoral conduct and bad behavior is inadmissible.clxii Similar fact evidence is inadmissible if the evidence only shows a “general disposition, habit or propensity” to commit the act, or if the evidence reveals “similar acts done by others, similarly circumstanced to [the defendant/accused].”clxiii The Supreme Court of Canada has stated that similar fact evidence must be specifically assessed in the context of other evidence and may be used in determining credibility.clxiv The evidence must reveal a general pattern of behavior and must be more than a coincidence.clxv It can be used to demonstrate a pattern, to rebut a defence, to show the defendant’s knowledge of the harm, or to rebut the character of the defendant.clxvi When using similar fact evidence to rebut a defence, a lower degree of probative value will be required.clxvii

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The test to be applied in deciding whether or not to admit similar fact evidence in criminal cases is whether the prejudice outweighs the probative value.clxviii The judge must decide the reliability and credibility of the witnesses, the evidence must reveal a general pattern of behavior, and the probative value must outweigh the prejudicial effect.clxix In civil cases, the evidence must go to the probability of the fact, and the court must decide if the evidence is oppressive and unfair. clxx The standard that is used to decide if the evidence is prejudicial varies. A stricter standard is used to prove identity (i.e., that of “striking similar”), whereas the threshold to prove a fact in issue is lower. The courts must keep in mind that the evidence does not need to establish truth, but only “increase or diminish the probability of the existence of a fact in issue.”clxxi “Even where similar fact evidence does not rise to the level of striking similarity, it may still have probative value, particularly where identity is not an issue.”clxxii There are several examples of civil sexual assault cases where courts have allowed similar fact evidence. In M.A. v. Canada, the Court found that the testimony of two witnesses that claimed to be sexually abused at Gordon’s Student Residence by the same defendant was found to be substantially similar and therefore, relevant in determining credibility.clxxiii Following similar reasoning, in A.(C.) v. C. (J.W.) the British Columbia Supreme Court admitted evidence that adduced a pattern of abuse by the defendant and stated that this type of evidence increased the probability of the abuse alleged by the plaintiff. The court allowed evidence of five other residents of the youth facility that corroborated the sexual abuse of the plaintiffs.clxxiv Also, in D.M.M. v. Pilo, seven other patients of the doctor testified as to the defendant’s inappropriate actions and played a large part in the plaintiff’s success.clxxv In a recent criminal sexual assault case, the Ontario Court of Appeal took an interesting view of similar fact evidence. In R.v. H. (T.R.), the Court created an appendix to the case and set out the similar fact evidence and the specific complaints made in order to decipher the similarity of the evidence.clxxvi It looked at everything from the words used by the accused, the reaction if the accused was confronted, location of the acts, frequency of the acts and factual nexus with other complainants. This process is effective and could be easily used in civil sexual assault cases to assess similarity.

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Sometimes, the courts will have looked only at one specific aspect of the evidence to determine its admissibility.clxxvii For example, in W.P. v. H.B.D., the Court found that the alleged similar fact evidence was not similar enough to be admitted.clxxviii The plaintiff stated that the defendant had acted inappropriately on three occasions. On the first occasion the defendant commented that her assailant in a previous sexual assault was attracted to her and she should be flattered. The second time he touched her thigh and then made her touch his thigh. In the last encounter, the defendant kissed her on the lips and became sexually aroused.clxxix There was evidence from two patients that testified about uncomfortable discussions about sex, the defendant taking off his shoes and hugging which they found to be inappropriate.clxxx The Court held the evidence only served to show that the defendant had a pre-disposition to human contact and the facts of each witness were distinguishable.clxxxi Therefore, allowing the evidence to be admitted could be highly prejudicial to the defendant.clxxxii However, the problem with this case is that the Court seemed to suggest that plaintiff’s counsel was trying to assert a similarity that showed a pre-disposition to inappropriate physical conduct. The Court began a lengthy discussion of all the physical touching the plaintiff complained of that was not similar (for example, the other patients had not described sexual arousal or kissing).clxxxiii Counsel for the plaintiff should not have concentrated on the similarities between the physical touching. A better approach would have been to draw the Court’s attention to the similarities of the inappropriate behavior so that the Court could use the same type of analysis used in R.v. H. (T.R.) and look at the behavior as a whole (for example, everything from the inappropriate language to the frequency of contact to the malicious nature of the abuse). Another case where similar fact evidence was not admitted was T.P.S. v. J.G,. In that case, although several other witnesses in the foster home offered evidence, the Court held that there was no common pattern and therefore the evidence should not be admitted.clxxxiv This was found in spite of the fact that the Court held that some of the sexual encounters were similar, the progression of the abuse was “identical” and found that the witnesses were credible. clxxxv In this case, the Court imposed too high a standard. The law is clear that the pattern does not have to be identical; it just has to be sufficiently similar. In M.R. v. British

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Columbia, the plaintiffs alleged sexual, physical and emotional abuse to have occurred in their foster home.clxxxvi The plaintiffs tried to call witnesses that were residents of the foster home at the same time as the plaintiffs.clxxxvii These witnesses were prepared to testify to various acts of cruel punishment and sexual assault. The British Columbia Supreme Court found that the allegations were so diverse, that no pattern could be discerned. The example the Court used was that one of the witnesses was forced to crawl up the driveway, and none of the other witnesses recalled that incident nor were they compelled to do that themselves.clxxxviii The Court therefore found the evidence of the witnesses to be inadmissible. Perhaps the evidence in both of the above-stated cases could have been presented differently in light of the analysis in R.v. H. (T.R.), allowing the court to examine the totality of the abuse and not impose such stringent, inflexible standards for admissibility. The preferable approach in cases of sexual assault is to follow the Court of Appeal in R.v. H. (T.R.) and perform an extensive analysis of the totality of the evidence. Stringent standards of admitting evidence is not appropriate for cases of sexual assault. Rather, the trier of fact should concentrate on deciphering a pattern of inappropriate behavior. The policy reasons for this are that the witnesses’ recollections overtime may become fuzzy over time and therefore, punishing survivors for not remembering exact identical details would be the equivalent of penalizing them for the time passage, which is attributable to the defendant. Courts should allow the evidence to be admitted and then assess reliability based on all of the similarities, not just specific physical acts. In doing so, they will be making the evidentiary burden lower and allowing more room for the admission of similar fact evidence.

ii) Damages Corroboration can also be used when assessing damages. The most common type of corroboration under this category is expert evidence that suggests that the plaintiff suffers from symptoms consistent with the trauma of sexual abuse.clxxxix For example, in S.P. v. F.K., the Court relied heavily on a psychologist’s testimony that corroborated the damages of the plaintiff and used that testimony to determine the effect of the assault on her life and to quantify damages.cxc

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Corroboration can also be used in determining causation. In D. P.A. v. H. A.E., the Court found, based on expert testimony, that had the plaintiff not been sexually abused by her step- father she would have overcome low self-confidence. Therefore the defendant was found to be fully liable.cxci In D.W. v. Canada (Attorney General), the Court accepted psychiatric evidence to the effect that while the plaintiff’s background may have made him susceptible to post-traumatic stress disorder, it was the defendant’s action that led to the mental disorder, making the defendant liable.cxcii Sometimes the evidence of family members regarding the behavior of the survivor ( e.g. nightmares, feelings of isolation and agoraphobia) will be admitted.cxciii In one case, the Court relied on the affidavit filed by the plaintiff’s mother to assess damage based on her observations of her sexually abused daughter. Here the court found that the plaintiff came from a normal healthy family and the defendant was entirely the cause of the damage. Therefore, the affidavit filed by the plaintiff’s mother documenting how the abuse affected her daughter’s life was relevant.cxciv Similar fact evidence may also be used in assessing punitive damage. While the courts do not call it similar fact evidence, they do examine whether or not similar acts have occurred in the past, and assess damages based on whether or not the defendant ought to have known that it would have occurred again in the future. For example, in M.T. v. Poirier, the Court admitted past complaints against a priest that preceded he assault. The Court used this evidence in finding that the Church knew of the abuse and let the priest continue to work with young children. The Court found that such conduct warranted punitive damages.cxcv Similarly in R.G.B. v. Hollett, the Nova Scotia Court of Appeal varied the trial decision and increased the punitive damages award due to evidence that there were prior complaints about an abusive counsellor.cxcvi In summary, similar fact evidence can be very useful to the trier of fact in assessing credibility. The fact that there is little other evidence available is often due to the perpetrator’s own conduct in forcing his or her victim into secrecy, the subsequent time passage and destruction of evidence. Therefore, in the cases where similar fact evidence can be found, the defendant should not be rewarded by excluding evidence that is not “strikingly similar” or perfectly reliable.

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IV. CONCLUSION In sexual assault cases, policy considerations must be a part of each step of the analysis of the law. The Supreme Court of Canada in Athey has clarified the rules for causation in tort cases. Yet there is still some confusion which remains with respect to the application of the test for causation to sexual abuse cases where there are multiple causes of the plaintiff’s injuries. Post-Athey, we have seen four major trends in causation in cases of sexual assault. However, the best approach is the material contribution test. This test will most often result in fair compensation for the plaintiff and will not reward the defendant for preying on a vulnerable person or causing psychological damage that increases the risk of further re-victimization. The material contribution test should be applied most often in cases of sexual assault for policy reasons, except in the clearest cases where the “crumbling skull” principle must be applied. Ideally, the test of material contribution will be such that plaintiffs are not disadvantaged for being vulnerable and can be fully compensated for their damages. Similarly, it is not always clear what standard of proof courts are apply when assessing liability, causation and damages. There does appear to be some flexibility with the “balance of probabilities” standard. The courts must be wary of not putting plaintiffs to a higher standard of proof under the guise of protecting the defendants from serious allegations. Lower standards of proof should be used in determining causation and damages, especially future damages. Furthermore, sometimes it may even be appropriate to shift the evidentiary burden to defendant when assessing causation in the most extreme cases, where the “crumbling skull” principle is applied. The burden should be on the defendant to prove a reduction in damages due to a pre- existing condition. Similar fact evidence may assist in corroborating a plaintiff’s evidence and aiding with the assessment of damages. The courts must be careful and not dismiss similar fact evidence simply because it is not identical. Rather, the courts should admit and appreciate the importance of corroborating evidence in cases of historical sexual abuse where there is often little or no direct evidence available other than the plaintiff’s own testimony. The traditional rules regarding causation, standard of proof and corroboration must be applied inside of the realities of historical sexual assault cases.

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iM.K. v. M.H.[1992] 3 S.C.R. 6. iiM.K. v. M.H.[1992] 3 S.C.R. 6. iiiM.K. v. M.H.[1992] 3 S.C.R. 6 at para. 48. ivM.K. v. M.H.[1992] 3 S.C.R. 6 at para. 43. vM.K. v. M.H.[1992] 3 S.C.R. 6 at para. 26. viM.K. v. M.H.[1992] 3 S.C.R. 6. viiAthey v. Leonati [1996] 3 S.C.R. 458. viiiAthey v. Leonati [1996] 3 S.C.R. 458 at para. 16. ixAthey v. Leonati [1996] 3 S.C.R. 458 at paras. 14 and 15. xAthey v. Leonati [1996] 3 S.C.R. 458 at para. 22. xiM.K. v. M.H.[1992] 3 S.C.R. 6 at para. 18. xii See for example D.C. v. K.C. [1993] N.J. No. 144 (Nfld S.C.) and M.M. v. R.F. [1996] B.C.J. No. 722(B.C.S.C.), varied[1997]B.C.J. No.2914 (C.A.)(Q.L,). xiii Athey v. Leonati [1996] 3 S.C.R. 458 at para 34. xiv Although we prefer the term survivor, much of the older case law refers to the plaintiff(s) as victim(s), and we have used the term in this context.

xv M. McInnes, ACausation in Tort Law: Back To Basics At The Supreme Court of Canada” (1997) vol. XXXV A.L.R. No. 4, at pp. 1030-1031. xvi M. McInnes, ACausation in Tort Law: Back To Basics At The Supreme Court of Canada” (1997) vol. XXXV A.L.R. No. 4, at 1029. xvii M. McInnes, ACausation in Tort Law: Back To Basics At The Supreme Court of Canada” (1997) vol. XXXV A.L.R. No. 4, at 1029. xviii M. McInnes, ACausation in Tort Law: Back To Basics At The Supreme Court of Canada” (1997) vol. XXXV A.L.R. No. 4, at 1031. xix T.J. Collier et. al, Causation Sensation...An Updated Guide to Athey (QUICKLAW, 2001)The Advocates Society online: QL(TOPA).

xx See e.g. T.P.S. v. J.G. [1995] B.C.J. No. 1650 (S.C.)(Q.L.), C.(P) v. C.(R) (1994) 114 D.L.R. (4th) 151 (Ont.Gen.Div.).

xxi See e.g. T.P.S. v. J.G. [1995] B.C.J. No. 1650 (S.C.)(Q.L.), C.(P) v. C.(R) (1994) 114 D.L.R. (4th) 151 (Ont.Gen.Div.).

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xxii A.J. v. Cairnie Estate [1999] M.J. No. 176 (Q.B.)(Q.L.) at 75, rev”d [2001]M.J.No. 177 (C.A.)(Q.L.), leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 317 (Q.L.). xxiii N.C. v. Blank [1998] O.J. No. 2544 (Gen.Div.)(Q.L.) at para. 137. xxiv Athey v. Leonati [1996] 3 S.C.R. 458 at para. 2. xxv Athey v. Leonati [1996] 3 S.C.R. 458 at para. 2. xxvi Athey v. Leonati [1996] 3 S.C.R. 458 at para. 2. xxvii M. McInnes, ACausation in Tort Law: Back To Basics At The Supreme Court of Canada” (1997) vol. XXXV A.L.R. No at p. 1014. xxviii Athey v. Leonati [1996] 3 S.C.R. 458 at para 7. xxix Athey v. Leonati [1996] 3 S.C.R. 458 at paras. 36 and 47. xxx Athey v. Leonati [1996] 3 S.C.R. 458 see paras. 19-20. xxxi Athey v. Leonati [1996] 3 S.C.R. 458 see paras. 18- 20 and 34-38. xxxii Athey v. Leonati [1996] 3 S.C.R. 458 at para. 21. xxxiii Athey v. Leonati [1996] 3 S.C.R. 458 at para 34. xxxiv Athey v. Leonati [1996] 3 S.C.R. 458at para 35. xxxv Anderson v. Callaghan 40 O.R. (3d) 136 (Ont. C.A.). xxxvi Anderson v. Callaghan 40 O.R. (3d) 136 (Ont. C.A.). xxxvii Anderson v. Callaghan 40 O.R. (3d) 136 (Ont. C.A. xxxviii Anderson v. Callaghan 40 O.R. (3d) 136 (Ont. C.A.). xxxix Anderson v. Callaghan 40 O.R. (3d) 136 (Ont. C.A.). xl Athey v. Leonati [1996] 3 S.C.R. 458 see paras. 18-38. xli M. McInnes, ACausation in Tort Law: Back To Basics At The Supreme Court of Canada” (1997) vol. XXXV A.L.R. No. 4 at 1021. xlii M. McInnes, ACausation in Tort Law: Back To Basics At The Supreme Court of Canada” (1997) vol. XXXV A.L.R. No. 4 at 1021-1022. xliii M. McInnes, ACausation in Tort Law: Back To Basics At The Supreme Court of Canada” (1997) vol. XXXV A.L.R. No. 4 at 1023. xliv E.K.P. Grace & S. Vella, Civil Liability for Sexual Abuse and Violence in Canada, (Toronto:

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Butterworths Canada Ltd., 2000) at 187. xlv W.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at para. 365, leave to appeal to the B.C.C.A. granted. xlvi W.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at para. 375, leave to appeal to the B.C.C.A. granted.

xlvii W.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at para. 365, leave to appeal to the B.C.C.A. granted. xlviii M.A. v. Canada (Attorney General) [2001] S.J. No. 686 (Sask. Q.B.) at 3 para. 68, varied for different reasons [2003] S.J. No. 28(C.A.)(Q.L.). xlix M.A. v. Canada (Attorney General) [2001] S.J. No. 686 (Sask. Q.B.) at para. 365, varied for different reasons [2003] S.J. No. 28(C.A.)(Q.L.). l M.A. v. Canada (Attorney General) [2001] S.J. No. 686 (Sask. Q.B.) at para. 363, varied for different reasons [2003] S.J. No. 28(C.A.)(Q.L.). li Athey v. Leonati [1996] 3 S.C.R. 458 at para. 24. lii E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia [2001]B.C.J. No. 2700 (S.C.)(Q.L.)at para. 222. liii E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia [2001]B.C.J. No. 2700 (S.C.)(Q.L.) at paras. 1-2. liv E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia [2001]B.C.J. No. 2700 (S.C.)(Q.L.)at para. 230. lv Athey v. Leonati [1996] 3 S.C.R. 458 at para. 36. lvi R.A.R.B. v. British Columbia [2001] B.C.J. No. 963(S.C.)(Q.L.) at para. 143. lvii R.A.R.B. v. British Columbia [2001] B.C.J. No. 963(S.C.)(Q.L.) see paras. 143-146. lviii R.A.R.B. v. British Columbia [2001] B.C.J. No. 963(S.C.)(Q.L.) at para. 150. lix R.A.R.B. v. British Columbia [2001] B.C.J. No. 963(S.C.)(Q.L.) at para. 151. lx T.M.B. v. R.R. [2000] B.C.J. No. 1435 (S.C.)(Q.L.) see paras. 39-45. lxi J.L.M. v. P.H.[1997] B.C.J. No. 477(S.C.)(Q.L.), varied [1998] B.C.J. No.1546 (C.A.)(Q.L.) for different reasons. lxii J.L.M. v. P.H.[1997] B.C.J. No. 477(S.C.)(Q.L.) at para. 136, varied [1998] B.C.J. No.1546 (C.A.)(Q.L.) for different reasons. lxiii J.L.M. v. P.H.[1997] B.C.J. No. 477(S.C.)(Q.L.) at para. 136, varied [1998] B.C.J. No.1546 (C.A.)(Q.L.) for different reasons.

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lxiv J.L.M. v. P.H.[1997] B.C.J. No. 477(S.C.)(Q.L.), varied [1998] B.C.J. No.1546 (C.A.)(Q.L.) for different reasons. lxv H.L. v. Canada (Attorney General)[2002] S.J. No. 702 (C.A.)(Q.L.) at para. 236. lxvi H.L. v. Canada (Attorney General)[2002] S.J. No. 702 (C.A.)(Q.L.) at para. 236. lxvii N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. p.151 at 268. lxviii T.E.G.H. v. P.K. [2001] A.J. No. 59 (Q.B.)(Q.L.)at para. 46. lxix T.E.G.H. v. P.K. [2001] A.J. No. 59 (Q.B.)(Q.L.)at para. 48. lxx T.E.G.H. v. P.K. [2001] A.J. No. 59 (Q.B.)(Q.L.)at para. 48. lxxi W.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at para. 365, leave to appeal to the B.C.C.A. granted. lxxii W.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at paras. 1-2, leave to appeal to the B.C.C.A. granted. lxxiiiW.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at para. 236, leave to appeal to the B.C.C.A. granted. lxxivW.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at para. 326, leave to appeal to the B.C.C.A. granted. This type of apportionment will not only be apparent in the employer- employee relationship, it may also be utilized when family members are a party to the abuse due to their own negligence. For example in T.M.B. v. R.R. [2000] B.C.J. No.1435 the Court held that while the parents of plaintiff were not added as defendants, they could have been because they ought to have known of the uncle’s abuse and damages would have been apportioned accordingly. lxxvO”Neil v. Van Horne 59 O.R. (3d) 384 (C.A )at para. 2. lxxviO”Neil v. Van Horne 59 O.R. (3d) 384 (C.A )at para. 2. lxxviiO”Neil v. Van Horne 59 O.R. (3d) 384 (C.A )at para. 2. lxxviiiO”Neil v. Van Horne 59 O.R. (3d) 384 (C.A )at para. 10. lxxixO”Neil v. Van Horne 59 O.R. (3d) 384 (C.A )at para. 11. lxxx O”Neil v. Van Horne 59 O.R. (3d) 384 (C.A )at para.14. lxxxi M.M. v. R.F. [1997] B.C.J. No. 2914 (C.A.)(Q.L.) at para. 67. lxxxii M.M. v. R.F. [1997] B.C.J. No. 2914 (C.A.)(Q.L.) at para. 67. lxxxiii M.M. v. R.F. [1997] B.C.J. No. 2914 (C.A.)(Q.L.) at para. 67. lxxxiv T.L. v. T.R.W.(1997), 36 B.C.L.R. (3d) 165(S.C.).

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lxxxv T.L. v. T.R.W.(1997), 36 B.C.L.R. (3d) 165(S.C.) at para. 170. lxxxvi N.C. v. Blank [1998] O.J. No. 2544 (Gen.Div.)(Q.L.) at para 138. lxxxvii N.C. v. Blank [1998] O.J. No. 2544 (Gen.Div.)(Q.L.) at paras. 4-12. lxxxviii K.I.M. v. R.J.P. Estate[2001] O.J.No. 1691 (Sup.Ct.)at para. 96. lxxxix T.W.N.A. v. Clarke [2001] B.C.J. No. 1621(S.C.)(Q.L.) at para. 298. xc T.W.N.A. v. Clarke [2001] B.C.J. No. 1621(S.C.)(Q.L.) at para. 302. xci K.L.B. v. British Columbi”[1998] B.C.J. No. 470 (S.C.)(Q.L.) at para 103, varied [2001] B.C.J. No. 584 (C.A.)(Q.L.), appeal to the S.C.C. heard and reserved Dec. 5 and 6 2002 [2001] S.C.C.A. No.334 (Q.L.). xcii K.L.B. v. British Columbi”[1998] B.C.J. No. 470 (S.C.)(Q.L.) at para 103, varied [2001] B.C.J. No. 584 (C.A.)(Q.L.), appeal to the S.C.C. heard and reserved Dec. 5 and 6 2002 [2001] S.C.C.A. No.334 (Q.L.). xciii K.L.B. v. British Columbi”[1998] B.C.J. No. 470 (S.C.)(Q.L.) at para 103, varied [2001] B.C.J. No. 584 (C.A.)(Q.L.), appeal to the S.C.C. heard and reserved Dec. 5 and 6 2002 [2001] S.C.C.A. No.334 (Q.L.). xciv K.L.B. v. British Columbia [2001] B.C.J. No. 584 (C.A.)(Q.L.), appeal to the S.C.C. heard and reserved Dec. 5 and 6 2002 [2001] S.C.C.A. No.334 (Q.L.). xcvE.D.G. v. Hammer[1998] B.C.J. No. 992 (S.C.)(Q.L) at paras. 3-20, aff’d [2001] B.C.J. No. 585(C.A.)(Q.L.), appealed to the S.C.C. decision heard and reserved December 5 and 6 2002 [2001]S.C.C.A. No.323(Q.L.). xcviE.D.G. v. Hammer[1998] B.C.J. No. 992 (S.C.)(Q.L) at para. 57, aff’s[2001] B.C.J. No. 585(C.A.)(Q.L.), appealed to the S.C.C. decision heard and reserved December 5 and 6 2002 [2001]S.C.C.A. No.323(Q.L.). xcviiE.D.G. v. Hammer [2001] B.C.J. No. 585(C.A.)(Q.L.), appealed to the S.C.C. decision heard and reserved December 5 and 6 2002 [2001]S.C.C.A. No.323(Q.L.). xcviii M.B. v. British Columbia [2000] B.C.J. No. 909 (S.C.)(Q.L.), varied [2002] B.C.J.No. 390, appealed to the S.C.C. decision heard and reserved December 5 and 6 2002 [2001]S.C.C.A No.333(Q.L.). xcix M.B. v. British Columbia [2000] B.C.J. No. 909 (S.C.)(Q.L.), varied [2002] B.C.J.No. 390, appealed to the S.C.C. decision heard and reserved December 5 and 6 2002 [2001]S.C.C.A. No.333(Q.L.). c M.B. v. British Columbia [2000] B.C.J. No. 909 (S.C.)(Q.L.), varied [2002] B.C.J.No. 390, appealed to the S.C.C. decision heard and reserved December 5 and 6 2002 [2001]S.C.C.A. No.333(Q.L.). ci M.B. v. British Columbia [2002] B.C.J.No. 390, appealed to the S.C.C. decision heard and reserved December 5 and 6 2002 [2001]S.C.C.A. No.333(Q.L.). ciiN. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. at pp. 148-154. ciii W.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at paras. 10-12, leave to appeal to the B.C.C.A.

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civ Continental Insurance Co. v. Dalton Cartage Co. [1982] 1 S.C.R. 164 (S.C.C.) at p. 171.

cv See for example L.D. v. G.P. [2001] B.C.J. No. 2852 (B.C.S.C.), W.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.), leave to appeal to the B.C.C.A., E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia [2001]B.C.J. No. 2700. cvi R.A.R.B. v. British Columbia [2001] B.C.J. No. 963(S.C.)(Q.L.) at para. 40. cvii Re Bernstein and the College of Physicians and Surgeons of Ontario 15 O.R. 2d 447(H.C.J.). cviii Re Bernstein and the College of Physicians and Surgeons of Ontario 15 O.R. 2d 447(H.C.J.).

cix W.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at paras. 14-17, leave to appeal to the B.C.C.A.

cx A.J. v. Cairnie Estate [1999] M.J. No. 176 (Q.B.)(Q.L.) at 74, rev”d [2001]M.J.No. 177 (C.A.)(Q.L.) for different reasons, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 317 (Q.L.). cxi A.J. v. Cairnie Estate [1999] M.J. No. 176 (Q.B.)(Q.L.) at 74, revised [2001]M.J.No. 177 (C.A.)(Q.L.) for different reasons, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 317 (Q.L.). cxii Feldthusen, AThe Civil Action for Sexual : Therapeutic Jurisprudence?” (1993) 25 Ottawa L. Rev. 203. cxiii A.J. v. Cairnie Estate [1999] M.J. No. 176 (Q.B.)(Q.L.), revised [2001]M.J.No. 177 (C.A.)(Q.L.) for different reasons, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 317 (Q.L.)

cxiv A.J. v. Cairnie Estate [1999] M.J. No. 176 (Q.B.)(Q.L.) at 74, revised [2001]M.J.No. 177 (C.A.)(Q.L.) for different reasons, leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 317 (Q.L.) cxvSnell v. Farell [1990]2 S.C.R. 311 (S.C.C.) at para. 22. cxvi Wickberg v. Patterson 145 D.L.R. (4th) 263 (Alta.C.A.)(1997). cxviiCanson Enterprises Ltd.v. BoughtonCo. [1991] 3 S.C.R. 534 (S.C.C.)at para 556. cxviiiK.L.B. v. British Columbi”[1998] B.C.J. No. 470 (S.C.)(Q.L.) at para 103, varied [2001] B.C.J. No. 584 (C.A.)(Q.L.), appeal to the S.C.C. heard and reserved Dec. 5 and 6 2002 [2001] S.C.C.A. No.334 (Q.L.). cxixW.R.B. v. Plint [2001]B.C.J. No. 1446 (S.C.)(Q.L.) at para.345, leave to appeal to the B.C.C.A. cxxK.L.B. v. British Columbi”[1998] B.C.J. No. 470 (S.C.)(Q.L.) at para 104, varied [2001] B.C.J. No. 584 (C.A.)(Q.L.), appeal to the S.C.C. heard and reserved Dec. 5 and 6 2002 [2001] S.C.C.A. No.334 (Q.L.). cxxiSnell v Farell [1990]2 S.C.R. 311 (S.C.C.). cxxiiSnell v. Farell [1990]2 S.C.R. 311 (S.C.C.) at para. 2. cxxiiiSnell v Farell [1990]2 S.C.R. 311 (S.C.C.).at p.4

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cxxivSnell v Farell [1990]2 S.C.R. 311 (S.C.C.).at p. 5. cxxvSnell v Farell [1990]2 S.C.R. 311 (S.C.C.). at p. 5. cxxviSnell v Farell [1990]2 S.C.R. 311 (S.C.C.).at p.4. cxxvii See pp.20-21 of this essay. cxxviii N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. p.151 at 268. cxxix N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc.p.151 at 268. cxxx See for example, V.J.L. v. H.P.(1997) 31 B.C.L.R. (3d) 155 (S.C.)at para. 155, varied at the B.C.C.A. [1998]B.C.J.No.1546(Q.L.), L.S. v. L.R. [1996] B.C.J. No.898 (Q.L.), and A.D.Y. v. M.Y.Y. [1994] B.C.J. No.375. cxxxi Giannone et. al. v. Weinberg 68 O.R. (2d) 767(C.A.) (1989). cxxxii Athey v. Leonati [1996] 3 S.C.R. 458 at para 27. cxxxiii Schrump et al. v. Koot et al. 18 O.R. (2d)337 (C.A.) (1997). cxxxiv Feldthusen, AThe Civil Action for Sexual Battery: Therapeutic Jurisprudence?” (1993) 25 Ottawa L. Rev. 203. cxxxv Feldthusen, AThe Civil Action for Sexual Battery: Therapeutic Jurisprudence?” (1993) 25 Ottawa L. Rev. 203. cxxxvi N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc p. 295 at 501. cxxxvii N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. pp. 295-297.

cxxxviii P. D. Lauwers, AThe Perspective of Non-Governmental Defendants in Cases Against Institutions for Sexual Assault and Abuse” (The Canadian Institute, Sutton Place Hotel, February 15, 2001)[unpublished] at 5. Also, we do not believe that false claims occur readily since it is often traumatizing and difficult for survivors to be subject to the difficult experience of coming forward. cxxxix N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. p. 296 at 504. cxl N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. at p.297. cxli N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. at p.296.

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cxlii H.F. v. Canada [2002] B.C.J.No. 436 (S.C.) (Q.L.)at 152. cxliii Longeran et. al v. Morrisette et. al 109 DLR 4th 758(Ont.Gen.Div.) (1993). cxliv Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 356. cxlv E.K.P. Grace & S. Vella, Civil Liability for Sexual Abuse and Violence in Canada, (Toronto: Butterworths Canada Ltd., 2000) at 137. cxlvi See for example L.H. v. W.U.[1998] B.C.J. No. 1132 (S.C.)(Q.L.)at para 94 and C.A.M.J.R. v. P.R.S.[2001] B.C.J. No. 280 (S.C.)(Q.L.)at para 36. cxlvii L.H. v. W.U.[1998] B.C.J. No. 1132 (S.C.)(Q.L.) at para 95. cxlviii L.H. v. W.U.[1998] B.C.J. No. 1132 (S.C.)(Q.L.). cxlix L.H. v. W.U.[1998] B.C.J. No. 1132 (S.C.)(Q.L.). clN. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc.at p.305. cliT.K.S. v. E.B.S. [1992] B.C.J. No. 2452(S.C.)(Q.L.). cliiT.K.S. v. E.B.S. [1992] B.C.J. No. 2452(S.C.)(Q.L.). cliiiRestoring Dignity: Responding to Child Abuse in Canadian Institution, by the Law Commission of Canada (2002), Minister of Public Works and Government Services at p.54. clivStrong v. M.P.P 31C.C.E.L. (2d) 47, varied [2000] O.J.No.2792 (C.A.)(Q.L.), leave to S.C.C. denied[2000]S.C.C.A.No.532 (Q.L.). clvK.G. v. B.W. [2000]O.J. No.2155 (Sup.Crt) at para 106. clviK.G. v. B.W. [2000]O.J. No.2155 (Sup.Crt) at para. 106. clvii K.G. v. B.W. [2000]O.J. No.2155 (Sup.Crt) at para. 110. clviiiK.G. v. B.W. [2000]O.J. No.2155 (Sup.Crt). clixA.D. v. M.D. [2000]O.J. No. 248 (Sup.Crt). clxN. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc p.306 at 51. clxi S.N.Lederman & A.W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at 525. clxii K.N. v. Albert”[1999] A.J. No. 394 (Alb. Crt. Q.B.) at para. 11. clxiii K.N. v. Albert”[1999] A.J. No. 394 (Alb. Crt. Q.B.) at para. 12.

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clxiv K.N. v. Albert”[1999] A.J. No. 394 (Alb. Crt. Q.B.)at paras. 12-14. clxv R. v. Arp [1998] 3 S.C.R. 339(S.C.C.) para 39. clxvi E.K.P. Grace & S. Vella, Civil Liability for Sexual Abuse and Violence in Canada, (Toronto: Butterworths Canada Ltd., 2000) at p.286. clxvii E.K.P. Grace & S. Vella, Civil Liability for Sexual Abuse and Violence in Canada, (Toronto: Butterworths Canada Ltd., 2000) at p. 286. clxviii E.K.P. Grace & S. Vella, Civil Liability for Sexual Abuse and Violence in Canada, (Toronto: Butterworths Canada Ltd., 2000) at p. 286`1. clxixC.R. v. R.R. [2002]B.C.J. No.1984(S.C.)(Q.L.) at para 40. clxxC.R. v. R.R. [2002]B.C.J. No.1984(S.C.)(Q.L.)at para 38. clxxiC.R. v. R.R. [2002]B.C.J. No.1984(S.C.)(Q.L.)at para 39. clxxii M.A. v. Canada [2001] S.J. No.686 (Q.B.)(Q.L.) paras. 63-65. clxxiii M.A. v. Canada [2001] S.J. No.686 (Q.B.)(Q.L.) at paras.63-67. clxxiv A.(C.) v. C. (J.W.) 35 B.C.L.R. (3d)234 (S.C.) rev”d in part (1998) 16 6 D.L.R. 4th 475 B.C.C.A. clxxvD.M.M. v. Pilo [1996] OJ No.938 at 76. clxxvi R. v. H.(T.R.)59 O.R. (3d) 161 (Ont. C.A.), appeal to S.C.C. dismissed. clxxviiC.R. v. R.R. [2002]B.C.J. No.1984(S.C.)(Q.L.) clxxviiiW.P. v. H.B.D. [1995] O.J. No. 605(Gen. Div) at para 41. clxxix W.P. v. H.B.D. [1995] O.J. No. 605(Gen. Div) . clxxx C.R. v. R.R. [2002]B.C.J. No.1984(S.C.)(Q.L.) clxxx W.P. v. H.B.D. [1995] O.J. No. 605(Gen. Div) at paras. 30-36. clxxxi W.P. v. H.B.D. [1995] O.J. No. 605(Gen. Div) at paras. 30-36. clxxxii W.P. v. H.B.D. [1995] O.J. No. 605(Gen. Div). clxxxii W.P. v. H.B.D. [1995] O.J. No. 605(Gen. Div) . clxxxiii W.P. v. H.B.D. [1995] O.J. No. 605(Gen. Div) at para. 39. clxxxivT.P.S. v. J.G. [1995] B.C.J. No. 1650 (S.C.)(Q.L.). clxxxv T.P.S. v. J.G. [1995] B.C.J. No. 1650 (S.C.)(Q.L.) at paras.26-29

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clxxxvi M.R.v. British Columbia [2002] B.C.J. No. 2614 (S.C.)(Q.L.). clxxxvii M.R.v. British Columbia [2002] B.C.J. No. 2614 (S.C.)(Q.L.) at paras. 81-83. clxxxviii M.R.v. British Columbia [2002] B.C.J. No. 2614 (S.C.)(Q.L.) at paras. 81-83. clxxxix N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. at p.306. cxcS.P. v. F.K.[1996]S.J. No.839 (Q.B.) (Q.L.). cxciD. P.A. v. H. A..E. [1998] B.C.J. No. 936(S.C.). cxciiD.W. v. Canada (Attorney General) [1999] S.J. No. 742. cxciii N. Des Rosiers and L. Langevin Representing Victims of Sexual and Spousal Abuse (2002) Irwin Law Inc. at p. 306. cxciv D.S. v. D.A.M. [1993] B.C.J.No. 315 (S.C.). cxcvM.T. v. Poirier [1994] O.J. No. 1046 (Gen. Div.) (Q.L.). cxcviR.G.B. v. Hollett (1996)139 D.L.R. 4th 260 at paras. 313-318, appeal to S.C.C. dismissed [1996] S.C.C.A. No.541.

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