Mainville, Cotnam, Kalichman

Appeal from a judgment of the Superior Court allowing in part an action claiming damages, moral damages, and punitive damages. Dismissed.

The respondent sued her uncle, alleging that he sexually assaulted her several times between the ages of 9 and 16, and her parents, alleging that they did nothing to protect her. The trial judge found the appellants solidarily liable. He held that the respondent was entitled to $388,309 for loss of past earnings, $261,397 for loss of future earnings, $100,000 in non-pecuniary damages, and $55,000 in punitive damages. As between the appellants, he attributed 60% of liability to the uncle and 40% to the parents.

The causal connection between the acts alleged and the injury suffered was established. The joint expert found that the symptoms described were consistent with having experienced sexual assault. Moreover, the fact of having feared and being subjected to sexual assaults, in a context where the victim felt that her parents gave her no choice but to sleep in her aggressor’s bed, is of a nature to cause a definite injury. In addition, it is undeniable that the appellant is angry with her parents for doing nothing to protect her and that this resentment fuels her anxiety and insecurity.

With respect to the loss of past earnings, it was open to the judge to reduce the respondent’s earning capacity by half on the ground that the sexual assaults had deprived her of the ability to hold full-time employment. As for future injury, article 1611 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) establishes the principle that any damage must be compensated from the time it is certain and assessable. Although the word “certain” could suggest that the injury must be proved in a manner that leaves no doubt, the burden of proof remains that of the balance of probabilities, codified in article 2804 C.C.Q. In this case, the evidence reveals that the respondent continues to suffer from sequelae that require her to deal with significant professional limitations. While her psychological condition may improve over the next few years, she is still struggling with significant difficulties in regard to social interaction.

With respect to the apportionment of liability, the judge did not minimize the uncle’s liability. Instead, his decision reflects the reprehensible nature of the parent’s inaction, and even disengagement. Their insensitivity to their daughter’s needs for security and protection, their indifference following her suicide attempt and the disclosure of the assaults, and their silence when she asked for their help are elements that strongly contributed to the sequelae for which she claims compensation.

As for punitive damages, while recklessness and gross negligence are insufficient to grant them, the judge found that the parents acted with full knowledge of the immediate and natural, or at least extremely probable, consequences of their conduct.

Legislation interpreted: article 1611 of the Civil Code of Québec

Text of the decision: http://citoyens.soquij.qc.ca