Commentary on G.A. c. N.B. – Sexual abuse through the prism of civil liability and parental authority

This is the English version of an article published in La référence under number EYB2023REP3681.

Summary

This article comments a Court of Appeal decision regarding a Superior Court judgment ordering that over $800,000 be paid in compensation to a victim by her abuser and her parents.

I – Background

With several high-profile cases making headlines in recent years, courts have come under the spotlight for their handling of sex crimes. Driven in part by social movements, a shift in the collective mindset and a push for justice tailored to victims, Quebec legislators have made certain changes to help victims of sexual violence regain trust in the justice system.

The November 2021 assent of the Act to create a court specialized in sexual violence and domestic violence¹ is an unequivocal step in the right direction and makes the government’s objectives abundantly clear. Its purpose is to rebuild victims’ trust in the justice system and to provide them with integrated and adapted psychosocial and legal services as soon as they contact police. Pilot projects are underway in several judicial districts, and the specialized court will be deployed province-wide by November 30, 2026.²

In tandem with these measures aimed primarily at criminal law, civil courts must sometimes deal with sex crimes through the prism of civil liability.

II – Judgment under appeal

In N.B. c. G.A.,³ rendered on July 20, 2020, the Superior Court was called on to analyze the fault of the abuser, who committed acts of a sexual nature, and the potential liability of the parents, who failed in their duty of custody, supervision and education under article 599 of the Civil Code of Québec (“C.C.Q.”).

The plaintiff claimed that her uncle abused her while she was forced to sleep in the same room as him at her maternal grandparents’ home between 1980 and 1987. She was then between the ages of 9 and 16. According to the plaintiff, her mother refused to allow her to sleep in another part of the house.

The plaintiff claimed, solidarily, $1,426,825 in damages and $350,000 in punitive damages from her assailant and her parents. She sued her parents solidarily for failing in their duty of custody, supervision and education, and for allowing her uncle to abuse her.

The trial judge found the uncle and parents solidarily liable. He held that the plaintiff was entitled to $388,308.53 for loss of earnings between 2002 and 2020 and $261,397.65 for loss of future earnings. He also ordered reimbursement of Dr. Mailloux’s fees and awarded $100,000 in non-pecuniary damages. He ordered the uncle to pay $25,000 and each parent $15,000 in punitive damages. As between them, he attributed 60% of the liability to the uncle and 40% to the parents.⁴

For a complete overview of the trial judgment, readers can refer to Chantale Bouchard’s commentary.⁵

III – Decision

The defendants appealed the trial judgment on several grounds. They argued that the plaintiff exaggerated the consequences of the sexual assaults and that there wasn’t enough evidence to support the awarded amount. The parents claimed that the judge wrongly attributed 40% of the liability to them, thereby minimizing the seriousness of the aggressor’s actions. The uncle argued that the judge had erred in his assessment of the testimony and that article 1615 C.C.Q. should have been applied given the difficulty of assessing the respondent’s injury.

The Court of Appeal addressed these grounds in its decision on July 12, 2023.

A) Causation and quantum

As a first ground of appeal, the appellants questioned the relevance of certain elements accepted by the trial judge in establishing causation, including the respondent’s difficulty trusting others, her inability to be around men other than her husband, and the couple’s lack of sexual relations. They also noted that the respondent had suffered other sexual assaults as a child and an adult.⁶

In response, the Court of Appeal maintained that:

[TRANSLATION] “The causal link between the actions the appellants are accused of and the injury suffered by N… has been established. In his expert report, Dr. Van Gijseghem noted that establishing a causal link is difficult but nevertheless found that her symptoms were consistent with having experienced sexual assault. In his testimony, which followed that of N…, he maintained his conclusions. Moreover, there is no doubt that 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.”⁷

The appellants also argued that the respondent had failed to establish her loss of earning capacity. The trial judge himself described the evidence as somewhat scant.⁸ Here, the Court noted that it has a very narrow scope of intervention and can only act if 1) the damages were assessed based on a palpable and overriding error in the evaluation of evidence or an error of law, or 2) the amount awarded is patently disproportionate or unreasonable and offends the sense of justice.⁹

As for the certainty of future injury required by article 1611 para. 2 C.C.Q., the Court held that the burden of proof remains that of the balance of probabilities codified in article 2804 C.C.Q.¹⁰ It also noted that demonstrating future injury and assessing the psychological effects of the sexual assaults is inherently challenging.¹¹

Given the highly factual nature of the injury assessment, the Court held that the trial judge’s conclusions must be given deference and dismissed this ground of appeal.

B) Apportionment of defendants’ liability

The parents claimed that because they did not commit the acts in question, they should not be liable for 40% of the injury suffered. In their view, this apportionment minimizes the seriousness of the aggressor’s actions. The Court of Appeal disagreed.

The trial judge based his analysis on several important facts: the parents made their daughter sleep in the same bed as the aggressor even though she asked to sleep elsewhere, they failed to act after learning that he had participated in the rape of a 14-year-old girl, and they remained indifferent when the respondent told them about her suicide attempt and the assaults.

The Court of Appeal held that the trial judge’s decision did not minimize the uncle’s liability since he remained solidarily liable for the entire claim¹² and dismissed this ground of appeal.

C) Trial judge’s assessment of the testimony and application of article 1615 C.C.Q.

Given the contradictory testimony of the respondent and the aggressor, the issue of credibility was of central importance at trial. The judge found the respondent’s testimony credible and determined, based on various objective facts, that the absence of abuse was unlikely. The appellant contested the trial judgment, claiming that it disregarded certain decisive elements, such as inaccuracies in the respondent’s testimony. The Court found no palpable and overriding error in the trial judge’s assessment of the respondent’s testimony. The plaintiff’s contradictions were put into perspective and contextualized at trial, and were deemed of secondary importance.¹³ In addition, the appellant was not able to demonstrate that the judge had committed an overriding error in disbelieving his testimony, wherein he insisted that he had no recollection of the assaults and remained vague regarding the entirety of the details.¹⁴

Finally, the appellant suggested that since it was hard to assess the injury in this case, the judge should have reserved the respondent’s rights under article 1615 C.C.Q. This ground of appeal was dismissed since this provision is enacted in favour of the creditor—in this case the victim—who made no such request.

D) Court of Appeal’s conclusion

The Court dismissed every ground of appeal raised by the appellants, the whole with legal costs against them, and upheld the trial judge’s decision.

IV – Author’s remarks

The courts’ handling of sexual abuse cases continues to be a hot topic in the public sphere. This decision reminds us that, in addition to instituting criminal proceedings, victims can seek civil compensation.

It highlights the importance of parental duties and the role parental failure can play in such a situation. Although case law on the duty to protect already made it possible to sue an authority figure in similar cases,¹⁵ this decision sets a unique precedent in Quebec on the apportionment of liability between a victim’s parents and aggressor. Other decisions have set similar precedents on the apportionment of liability between an abuser and their parents.¹⁶

By confirming the trial court’s decision, the Court of Appeal supports Quebec legislators in their aim to restore victims’ trust in the justice system.

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¹ CQLR c T-15.2.
² Gouvernement du Québec, À propos du tribunal spécialisé, https://www.quebec.ca/justice-et-etat-civil/systeme-judiciaire/processus-judiciaire/tribunal-specialise-violence-sexuelle-violence-conjugale/a-propos, consulted August 27, 2023.
³ 2021 QCCS 3179, EYB 2021-398375.
⁴ G.A. c. N.B., 2023 QCCA 932, para. 35 (commented decision).
⁵ Repères, October 2021, EYB2021REP3350.
⁶ Para. 40 of the commented decision.
⁷ Paras. 42 and 43 of the commented decision.
⁸ N.B . c. G.A., supra note 3, para. 194.
⁹ Girard c. 9220-8883 Québec inc, 2022 QCCA 695, para. 44.
¹⁰ Para. 55 of the commented decision.
¹¹ Para. 59 of the commented decision.
¹² Para. 67 of the commented decision.
¹³ Paras. 76 and 77 of the commented decision.
¹⁴ Para. 81 of the commented decision.
¹⁵ A c. Watch Tower Bible and Tract Society of Canada, 2019 QCCS 729, para. 54.
¹⁶ See in particular B. (M.) c. B. (R.L.), 2001 CanLII 40172 (QC CS).