As noted in a past blog post, many of those who have experienced sexual violence often do not realize that they are entitled to compensation for their injuries. There are three types of compensation or “damages” that are most often awarded in cases involving sexual misconduct: general damages, economic damages, and special damages. This article will focus on economic damages. A previous article on general damages can be accessed here.
Economic Damages
The plaintiff is entitled to compensation for lost earnings caused by injuries from the abuse. Unlike general damages, there is no range for awards for economic damages. The amount of the award is determined by the extent of the financial loss, as supported by the evidence in each case.1 Generally, there are two ways to prove an income loss claim in such cases: the mathematical approach and the global approach.2
The Mathematical Approach
In order to establish damages using the mathematical approach, the plaintiff generally has to retain a forensic accountant to calculate the plaintiff’s income loss based on various scenarios of what their education and employment may have been, but for the abuse. For example, one scenario may be that, but for the abuse, the plaintiff would have graduated high school and earned the average income of a high school graduate working full-time in Ontario to the age of 65. Another example may be that the plaintiff would have completed the necessary qualifications to be certified as a teacher. Thereafter, the plaintiff would have worked as an elementary school teacher working full-time to the age of 60.
In cases of childhood sexual abuse, the standard of proof required to establish the various hypothetical scenarios proposed is lowered below a balance of probabilities, to a “real and substantial possibility”.3 The trier of fact must then consider the specific scenarios proposed and determine the percentage chance of that scenario occurring. The award is the same percentage of the loss. For example, if the trier of fact finds that there is a 75% chance of a particular scenario occurring, the plaintiff is entitled to 75% of the calculated loss for that scenario. Evidence of the plaintiff’s interests and future plans prior to the abuse, as well as the education and employment history of their immediate family members, can be very helpful in establishing the likelihood of the various scenarios occurring.
The Global Approach
Where a precise income loss calculation is not possible, a global approach is taken. The award given is to compensate the plaintiff for impairment of their earning capacity.4 In assessing this impairment, the courts have looked to any of the following situations as supportive of such an award:
- The plaintiff has been rendered less capable overall from earning income from all types of employment;
- The plaintiff is less marketable or attractive as an employee to potential employers;
- The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to them, had they not been injured; and,
- The plaintiff is less valuable to themself as a person capable of earning income in a competitive labour market.5
Evidence to Support Economic Damages
In addition to a forensic accounting report, having a psychological assessment done can also be helpful. The report from the assessment can help establish the effects of the abuse that have caused impairment to the plaintiff’s ability to continue their education and maintain stable employment.
A victim’s education and employment can often be affected by various trauma symptoms, including depression, anxiety, sleep disturbance, compromised ability to focus and concentrate, addiction to drugs and/or alcohol, low self-esteem, avoidance of close relationships, and conflict with those in positions of authority.
Economic damages can be the most difficult category of damages to prove, especially in cases of childhood sexual abuse. It is important to retain a lawyer who is experienced in representing victims of sexual abuse, like those at Beckett. They have the knowledge and expertise you can rely on to help prove your claim.
1 Nova Scotia (Attorney General) v . B.M.G., 2007 NSCA 120 (CanLII), at para 176, https://canlii.ca/t/22c7l#par176.
2 A.B. v. Main, 2023 NSSC 47 (CanLII), at paras 78 and 79, https://canlii.ca/t/jvjs4#par78.
3 MacLeod v. Marshall, 2019 ONCA 842 (CanLII), https://canlii.ca/t/j31bt.
4 Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120 (CanLII), at para 175, https://canlii.ca/t/22c7l#par175.
5 Kwei v. Boisclair, 1991 CanLII 645 (BC CA) at 11-12.
