Case Summary: MacLeod V Marshall

Defence + Indemnity

April 2020 The burden of proof for economic loss (past and future loss of income) for a minor plaintiff with no established career path at the time of the accident is only that of a real and substantial possibility, as opposed to the balance of probabilities.

MacLeod v. Marshall, 2019 ONCA 842, per Thorburn, J.A.

Facts + Issues

The Plaintiff MacLeod was born in 1969. He was sexually abused by Father Marshall while he was a student at St. Charles College, a school run by The Basilian Fathers of Toronto ("the Basilians"). At the time he was a minor and had no established career path.

MacLeod commenced proceedings against Marshall in 2012 and the case went to trial in 2018. The parties agreed that MacLeod had established on a balance of probabilities that Marshall owed a duty of care to MacLeod, that Marshall breached his duty of care to MacLeod, and that MacLeod suffered injury as a result of the abuse for which the Basilians were vicariously liable. The parties also agreed that the abuse caused or materially contributed to MacLeod's general damages, aggravated damages, and future care costs, but the Basilians did not admit that the sexual abuse resulted in any loss of income or that it should attract punitive damages.

The trial judge instructed the jury as follows:

That for MacLeod's claim for past loss of income need only be proven on the standard of a real and substantial possibility. On appeal, the Basilians argued that this lower burden of proof only applied to future income loss. That the jury must assess how the Plaintiff's life would have gone had he not suffered sexual abuse and that this hypothetical need only be proven on the standard of a real and substantial probability that such losses were caused by the sexual abuse. On appeal, the Basilians argued that the standard was proof on a balance of probabilities. In terms of the quantification of damages for the economic loss, the jury was provided with several possible income earning scenarios MacLeod could have pursued, and the jury was instructed to consider the chance that MacLeod would have pursued them, bearing in mind positive and negative contingencies, and to quantify the loss by awarding him the damages that commensurate with the chance that MacLeod would have earned that additional income.

Regarding the claim for punitive damages, the judge suggested $225,000 to the jury.

The jury awarded MacLeod $350,000 in general damages, $75,000 in aggravated damages, $56,400 for future treatment costs, $1,588,781 lump sum for past and future income loss, and $500,000 in punitive damages (far in excess of the judge's suggestion). The trial judge awarded pre-judgment interest at the rate of 5%.

The Basilians appealed the jury verdict and the judge's order for pre-judgment interest on the following three grounds:

The trial judge erred by failing to properly instruct the jury on the burden of proof for claims for past loss of income for sexual abuse; The award of punitive damages was excessive; and The trial judge erred in setting the rate of pre-judgment interest at 5% for non-pecuniary damages. HELD: For the plaintiff, in the main; appeal dismissed regarding the damages but allowed regarding the rate of pre-judgment interest assessed.

The Court of Appeal held that the trial judge's legal instruction given to the jurors...