Cap On Non-Pecuniary Damages Does Not Apply For Intentional Torts

In D.S. v. Quesnelle the Ontario Superior Court held that the cap on general damages of $100,000 set by the "trilogy" Supreme Court of Canada cases did not apply to intentional torts.

On August 14, 2019, the Ontario Superior Court of Justice released its reasons for decision in D.S. v. Quesnelle1, holding that the cap on general damages of $100,000 (since adjusted for inflation) set by the "trilogy" Supreme Court of Canada cases2 did not apply to intentional torts — in this case, assault, sexual assault and other misconduct of a sexual nature3.

The Decision

In this tragic case, the plaintiff sought damages for physical and sexual abuse suffered at the hands of his stepfather between the ages of five and ten. The conduct of the defendant towards the plaintiff was described by the court as "intentional, self-serving, violent, despicable, abusive and constituted a breach of trust of the very worst kind"4. As of the date of the motion, the defendant had already been convicted of assault, sexual assault and sexual interference, which the court relied on to establish liability for the intentional torts alleged by the plaintiff5. The defendant's actions were further found to have caused psychological injury, substance abuse problems and other interpersonal and personal challenges6.

After determining that the defendant was liable for the intentional torts alleged by the plaintiff, and that the defendant's actions had caused damage, the court turned to the quantum of damages and the applicability of the Supreme Court of Canada's cap on non-pecuniary damages. Beginning with the British Columbia Court of Appeal's 1996 decision in SY v. FGC7, the court noted that this decision suggested that in cases of sexual abuse, the policy reasons for a cap on non-pecuniary damages as established by the trilogy may not apply8. In SY, the BC Court of Appeal noted that, in contrast to non intentional torts arising out of circumstances such as accidents or medical malpractice, sexual abuse claims do not typically result in monetary awards that guarantee lifetime economic certainty. Noting that the tort of sexual abuse may cause an unpredictable impact on a plaintiff's life, the Court of Appeal further suggested that sexual abuse victims may require and deserve more in non-pecuniary damages than the "cap" allows. The BC Court of Appeal reasoned that judges, juries and appellate courts would be in a position to decide "what is fair and reasonable" to both parties9.


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