This post was authored by Kelsey Gordon.
In a recent Superior Court decision, the Honourable Justice Vermette made an award of costs on a partial summary judgment motion that recognizes sexual assault cases may take more time to prepare than others and, accordingly, may result in higher costs awards.
This case was argued by Anna Matas of Gillian Hnatiw & Co. It is an important step forward in recognizing the inherent difficulties associated with litigating sexual assault and abuse cases, and we expect it will serve as a precedent for future costs awards to help ensure that plaintiffs are appropriately compensated for their legal costs.
In V.T. et al v D.T., 2021 ONSC 5926, a civil action was brought against a grandfather convicted of sexually abusing two granddaughters over a prolonged period of time. The defendant, D.T. pled guilty to six criminal charges relating to the abuse of the two granddaughters. He was sentenced to nine years in prison for these crimes, and was released on his statutory release date after six years and eight months. In the civil case, the parties agreed to settle the issue of liability and the quantum of general and special damages and pre-judgment interest. The remaining issues of punitive damages and costs were to be determined on a partial summary judgment motion.
Although some of the sexual abuse at issue took place outside the jurisdiction of Ontario, and some conduct took place outside the time period of the Indictment, Justice Vermette declined to order punitive damages, citing McIntyre v Grigg for the proposition that punitive damages will generally not be required to serve the objectives of retribution, deterrence, and denunciation where a defendant has already been punished for a criminal offence for the same conduct. [1] It is noteworthy in this regard that the penitentiary sentence served by the defendant in this case exceeded the longest penitentiary sentence in which punitive damages have been awarded in Canada. [2]
On the issue of costs, the Court held that a substantial indemnity scale of costs was appropriate, in accordance with section 4(6) of the Victims’ Bill of Rights, SO 1995, c 6.
With respect to the quantum of costs, the plaintiffs sought partial indemnity costs that were approximately four times higher than the full indemnity costs proposed by the defendant.
Justice Vermette accepted that a higher quantum of costs was appropriate for the plaintiffs, noting that there were four plaintiffs and only one defendant. Further, Justice Vermette accepted the plaintiffs’ submission that higher costs may be incurred by victims of sexual assault / abuse because: (a) counsel for these victims need to take the time that is necessary for their clients to feel comfortable enough with them to share these deeply personal and traumatic facts; (b) given how difficult it can be for victims of assault / abuse to go over these traumatic events, it is reasonable to expect it will take more time for counsel to accomplish certain tasks in the case, such as preparing for cross-examination. [3] Justice Vermette ultimately ordered a costs award of $145,000.
The Court’s recognition of the extra time that may be involved in the lawyer-client relationship and in preparing the case is a significant development in the law of civil sexual assault. Taking a trauma-informed approach to litigation requires additional time. This is time that is well-spent in ensuring that the lawyer’s approach and/or the litigation process minimizes any further trauma to a survivor of sexual violence. Lawyers should be encouraged to take this additional time. A costs regime that recognizes that plaintiff’s counsel may legitimately spend more time and, therefore, incur more legal fees throughout a case furthers these goals.
This decision provides a helpful precedent for future counsel seeking to justify the quantum of costs they are seeking in a sexual assault case, especially where the costs of the plaintiff’s counsel may exceed that of defence counsel.
For more information litigating sexual assault cases, including a trauma-informed approach to litigation, contact Gillian Hnatiw & Co.
[1] McIntyre v Grigg, (2006) 83 OR (3d) 161, 2006 CanLII 37326 (Ont CA). However, there are circumstances where the criminal conviction may not be sufficient to serve the objectives of retribution, deterrence and denunciation, and punitive damages may still be awarded. In the case of McIntyre, itself, the Court of Appeal held that it was an appropriate case to award punitive damages notwithstanding the criminal penalty that had already been imposed.
[2] B.(P.) v B.(W.), (1992) 11 OR (3d) 161, [1992] OJ No 2538 (Ont Gen Div). In that case, the defendant had served a sentence of five and a half years. The Court awarded punitive damages of $50,000.
[3] V.T. et al v D.T., 2021 ONSC 5926 at paragraph 63.