Liability Admissions In Sexual Abuse Claims

Punitive damage awards are commonplace in sexual abuse claims. However, the Ontario Court of Appeal has recently confirmed that a trier of fact cannot award punitive damages against a defendant based solely on that defendant's failure to admit liability in a timely fashion.

In McCabe v. The Roman Catholic Episcopal Corporation for the Diocese of Toronto (2019 ONCA 213), the majority of the Court of Appeal overturned a jury's award of $15,000.00 for punitive damages against the Diocese of Toronto. The award was based solely on the failure to admit vicarious liability for historical sexual abuse, committed by one of its priest, until the first day of trial.

The Diocese of Toronto had employed Father Alphonse Robert as a Parish Priest. In 1963, Father Robert invited Robert McCabe, who at the time was 11 years old, on a trip to Montreal to visit the Basilica of Notre Dame. During that trip the two spent the night together in a hotel room and Father Robert sexually assaulted Mr. McCabe by fondling him sexually and performing oral sex on him.

Mr. McCabe brought an action for damages against the Diocese of Toronto in December of 2014. By then, Father Robert was deceased.

The Diocese denied vicarious liability for the abuse throughout the litigation, but then admitted liability on the first day of the trial. The trial therefore proceeded as an assessment of damages only. Following the evidence and after hearing the charge from the trial Judge, the jury awarded general and aggravated damages of $250,000.00, loss of income of $280,000.00, treatment expenses of $5,000.00 and punitive damages of $15,000.00. The Diocese appealed on various grounds.

The Court of Appeal was unanimous in rejecting three of the four grounds of appeal. Of significance, the Court confirmed that the award of $250,000.00 in general damages was well within the reasonable range for serious sexual assault, noting the Court's recent statements from Zando v. Ali (2018 ONCA 680), where a range of up to $290,000.00 can be appropriate in sexual assault cases.

The Court was split however on the issue of punitive damages. Benotto, J.A. would have dismissed this ground of appeal as well finding that the Diocese's strategic decision not to admit responsibility to a vulnerable victim of abuse, given the circumstances, was uniquely egregious and was deserving of condemnation.

For this finding, Benotto, J.A relied on a number of decisions where punitive damages were awarded due to the conduct...