Citing this historical groundbreaking case gives hope for past, present and future cases around the world.
FIRST PRECEDENT
Ms. Vella was able to examine and scrutinize the raw data and was able to extract admissions concerning the shifting of the blame. It’s one of the key factors that must be satisfied before the limitation period will kick in. Dr. Bloom in the end, really agreed with our theory that the limitation period, that I had not shifted the blame until I entered into a treatment with Dr. Cruz. This allowed us to postpone the limitation period. Justice Chapnik reviews the doctrine of reasonable Discovery and rejected the defence arguments that the KM test for reasonable discovery – the defence said didn’t apply to adult victims, only the childhood victim. There’s different dynamics, they say. And Justice Chapnik accepted my argument that no the KM applies and this was, if you will, an extension of the law. There are no other reported cases, which counsel could find in which the KM case applied to adult victims of sexual assault abuse.
Assessments Transcripts: Precedent 1 volume 2 of 3 – pg 48-49
SECOND PRECEDENT
Her honour accepted our arguments that the case in Bazley and Curry, Supreme Court of Canada, applies and that the scope of employment test or the Salmon test was the correct test. Because there was no precedent in existence making a police force vicariously liable of the sexual misconduct of a police officer prior to this case, we had to the policy analysis branch of the Bazley test.
The court found, accepted our argument that this was a power dependency relationship between officer Sproule and Ms. Evans. That he exercised the police authority throughout. He had a gun and his badge in his police cruiser. He detained Ms. Evans under the auspices of threatening arrest. This was our argument and was accepted as sufficient to attract vicarious liability.
American case law for one case that gave us a similar precedent, Marie M.V. City of Los Angeles, that being the only case we could find in North America. The court found that she had no difficulty in finding the Board both under the statutes, the Police Act and the Common Law, vicariously liable for the wrong and resulting harm occasioned to the plaintiff by Sproule on January 7th, 1979.
This was the first case in Canada in which a court has held a police force vicariously liable for a sexual assault committed by its police officer.
Assessments Transcripts: Precedent 2 volume 2 of 3 – pg 52-54
THIRD PRECEDENT
The court raised the bar. Up to this point there had been no case approaching $100,000 for a single act of non-genital sexual assault. The court accepted that the jurisprudence had moved on, since those early decisions involving single acts, and also accepted that where there is not a significant pecuniary loss that can be proven as is loss of income; which we could not prove here, the court needs to look at – can use the vehicle of aggravated damages to enhance a non-pecuniary damages award to represent the amount of harm actually suffered, because, you’ll know that in the personal injury trilogy where a cap was set for personal injury. The theory was that the plaintiff was made whole by a substantial aware of pecuniary loss and as a non-pecuniary award is a top off if you will but that doesn’t apply in civil sexual assaults because it is difficult to prove the causation between loss of income and sexual assaults, that has been borne out in the case law. It’s something that we struggle with and it’s a difficult claim.
Assessments Transcripts: Precedent 3 volume 2 of 3 – pg 54-55