Warren Berg: 0:00

Good morning and welcome to the March edition of Ask the Lawyer across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us this month, as usual, is Cynthia Carels of Weir Bowen LLP. Cynthia, I see you have brought another new voice to Ask the Lawyer.

Cynthia Carels: 0:15

You bet I have Good to see you again, Warren, and it is always nice for me to be able to introduce more of my Weir Bowen colleagues to Ask the Lawyer. So this month we have one of the partners at our firm, Allison Grimsey. She's going to be joining us behind the mic today. Allison has been with Weir Bowen for over 12 years and has a very busy practice. We were just talking about it this morning how busy she is composed of personal injury law, medical malpractice and sexual abuse claims as well, and so we're very pleased to have Allison bring her expertise along to this month's show.

Allison Grimsey: 0:47

I'm happy to be here and provide some insight into this topic, Warren.

Warren Berg: 0:50

And it's great to have you Now. For those of you who don't know, Weir Bowen is an Edmonton based law firm. However, their lawyers have represented clients across Alberta, BC, Saskatchewan and the Northwest Territories and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada.

Cynthia Carels: 1:10

Yeah, you know Weir Bowen really has built a long-standing legacy of providing compassionate and expert legal support to individuals during what is often one of the most challenging and complex, stressful periods of their lives, and our team does understand that navigating complex legal matters can feel really overwhelming, which is why we're committed to offering guidance that not only resolves issues but also provides some peace of mind as well. And we do take pride in creating an environment where clients feel like they're heard, feel like they're supported and they can be confident in their legal journey, ensuring that they're never going to be facing these difficulties alone. And you know, at Weir Bowen, we really do strive to make the process itself as smooth and comfortable as possible, always trying to keep in mind the best interests of our clients at the forefront of really everything that we do.

Allison Grimsey: 1:54

We understand that the legal system can be overwhelming and intimidating for many individuals, which is why we're dedicated to guiding our clients with clarity and compassion throughout every stage of the process. Why we're dedicated to guiding our clients with clarity and compassion throughout every stage of the process. Our goal is to ensure that our clients not only feel supported, but also fully informed and confident in the decisions they make. We take the time to explain each step in a way that is easy to understand, so they never feel lost or uncertain.

Warren Berg: 2:19

And that's very important. I mean the legal system can be incredibly overwhelming for you, me, us lay people, especially with respect to today's very sensitive topic.

Cynthia Carels: 2:29

You're right and you know advance warning here. Today's topic may be highly triggering to some of our listeners, so I'm just going to encourage people to take special care for themselves and those within earshot of the radio before we go any further with the topic.

Warren Berg: 2:42

And if we have any parents listening with children around, it's probably a good idea to forewarn everyone that this show is going to branch into some rather sensitive and difficult topics that might not be appropriate for all ages.

Cynthia Carels: 2:54

Yeah, you're right. So today we are actually going to be talking about sexual abuse claims and although it is often sometimes very difficult to speak about. We at Weir Bowen do think it is important to bring awareness to this type of a claim.

Allison Grimsey: 3:08

This is obviously a very tough subject. No one should ever have to experience sexual abuse in any setting. Unfortunately, there are terrible people out there that do terrible things, and the reality is that these things do happen. When we're talking about sexual abuse, we're talking about what is called an intentional tort. Now, tort is just a legal term that essentially means a wrongful act other than one under a contract that can lead to civil legal liability. Intentional means well intentional. One example of an intentional tort would be battery, meaning harmful or offensive physical contact against a victim by a defendant without the victim's consent. For instance, say, a teacher is disciplining a student and uses excessive force in doing so, injuring the student. That would be considered battery.

Cynthia Carels: 3:58

And other examples of torts related to sexual violence includes, you know, what is commonly known as sexual assault, and that's where someone threatens to physically contact you without your consent and you had reasonable belief that that harm was imminent. And there's also torts relating to false imprisonment, where someone is actually depriving you of your freedom, you know, to move freely as you wish, or detaining you without appropriate legal authority to do so. And another one that we're seeing more and more of is sharing intimate images without consent. That is not only a crime in Alberta, but in many cases a victim may actually be able to file a lawsuit to seek compensation for injuries caused by that disclosure of those intimate images. And in fact many torts can be related to this action, including what we call the tort of public disclosure of private facts.

Warren Berg: 4:54

Very interesting. Now, for the benefit of our listeners, are you able to maybe provide an overview of what sexual abuse claims look like in Alberta, to maybe help our listeners get situated?

Allison Grimsey: 5:05

That's a really good idea, because there are a lot of common misperceptions about how sexual abuse cases work, largely because we are inundated with American legal dramas and also because we tend to hear a lot more about sexual abuse cases in the context of criminal law. The world of criminal law is intended to punish abusers, but what we're talking about today is civil law, where we are bringing lawsuits to compensate victims. So that's an important distinction. In Alberta, sexual abuse cases in civil law are determined based on the balance of probabilities, meaning a victim must prove that it is more likely than not that the abuse occurred. Unlike criminal cases, where the prosecution must prove the defendant's guilt beyond a reasonable doubt, civil cases require the plaintiff to present convincing evidence to support their claims.

Cynthia Carels: 5:55

So this evidence might include things like the testimony of the survivor, could also include witness accounts, medical psychological records and any physical or documentary evidence that actually corroborates those allegations, and the court will also consider expert testimony regarding the emotional and psychological impact of that abuse. Then, if the victim can successfully demonstrate to the court that the abuse actually occurred, the court may award compensatory damages for things like the pain and suffering, for medical costs, for lost wages and a whole cohort of other related costs. And in sexual battery civil cases, the plaintiff is going to have to prove that the defendant committed an intentional, non-consensual act of sexual contact. And in those situations the plaintiff must also establish that they suffered harm as a direct result of the assault and again, that can include that physical, emotional or psychological injuries.

Warren Berg: 6:55

You raise an interesting point. I mean, often when people think of things like sexual abuse, they only think of the criminal law system. What is the difference between bringing a sexual abuse claim through the civil system instead of the criminal?

Allison Grimsey: 7:09

In a lot of cases there have been criminal investigations and prosecutions before a victim even begins to consider a civil claim. Unlike criminal cases, where the government prosecutes the offender, civil law allows the survivor to seek compensation for the harm they've actually suffered. And while these are separate, distinct processes, there are some ways that the criminal proceedings can influence a subsequent civil claim. The main one, of course, the outcome of the criminal side. If someone is convicted of a criminal offense and is later sued civilly for the same conduct, that conviction is generally considered prima facie proof that it occurred, and prima facie is a Latin phrase which basically means that a conviction proves on its face that the offense was committed.

Warren Berg: 7:53

You lawyers do love your Latin phrases.

Allison Grimsey: 7:56

The reason a criminal conviction holds significant weight in a subsequent civil claim relates to the same act is that the civil proof required for a criminal conviction is incredibly high. The criminal act has to be proven beyond a reasonable doubt. Essentially, it means that the judge or a jury in some cases must be 95 to 99 percent certain that the accused committed the crime. This high standard exists because of the potential consequences.

Cynthia Carels: 8:20

This high standard exists because of the potential consequences, such as losing one's freedom, are so severe Now, when it comes to civil cases, that standard of proof is based on what we call a balance of probabilities, and that's significantly lower than the standard that's used in the criminal cases.

Cynthia Carels: 8:45

So essentially it means that the judge only needs to be 51% sure that the facts presented by the plaintiff are true in order to rule in their favor. So the question being asked in a civil claim is is it more likely than not that the events occurred as the victim claims? So this is obviously a much lower threshold compared to those criminal cases. In civil cases the goal is to determine which version of the events is more probable or more credible. And if the goal is to determine which version of the events is more probable or more credible and if the judge finds the victim's version of offense more likely, then they can be awarded damages and other remedies for their injuries. So if it's been already proven beyond a reasonable doubt that the accused is guilty in the criminal proceedings, it is essentially presumed for the purposes of the civil claim that they actually did do it.

Warren Berg: 9:27

And what happens if you don't get a criminal conviction.

Cynthia Carels: 9:29

Well, the good news is that, although it's helpful if there's a criminal conviction, it's not actually necessary. So if someone commits a sexual assault and they're later acquitted in the criminal proceedings or the charges might be withdrawn, or even if there are never any criminal charges at all, that's not taken as prima facie proof that they didn't commit the assault. So it doesn't cut both ways. As I'm sure many people know, convictions in criminal courts are still relatively rare in these cases, and our system is essentially designed to avoid those wrongful convictions, even if that means erring on the side of letting many more guilty people go free than perhaps we should.

Allison Grimsey: 10:11

While a criminal conviction can certainly simplify a civil claim and make the process emotionally easier for victims, it's important to remember that the absence of criminal charges or conviction does not mean a civil claim cannot succeed. It also doesn't diminish the absence of criminal charges or a conviction does not mean a civil claim cannot succeed. It also doesn't diminish the value of pursuing a civil case. A victim can still seek justice and compensation through the civil system even without a criminal conviction.

Warren Berg: 10:36

Now would probably be a good time to let our listeners know how they can get in touch with your law firm Weir Bowen If they're looking for legal advice about not just a sexual assault abuse claim, but any type of personal injury claim, be it motor vehicle accident, medical malpractice or something else. What is the best way to connect with your firm?

Cynthia Carels: 10:55

So our website is obviously a great place to start. It's weirbowen. com, that's W-E-I-R-B-O-W-E-N dot com, and there's a contact us page on the website there with a form that you can fill out to send us an inquiry, and our intake team will make sure that your inquiry gets to the right place. We also have a lot of posts on our website dealing with many different legal issues that our firm commonly handles, so the website itself is also a great source of information for people wondering whether or not they might have a claim. There's also some practical advice about things you can do in addition to or before contacting a lawyer.

Warren Berg: 11:34

And what if the internet is not an option?

Allison Grimsey: 11:36

We also frequently get cold calls from people looking for legal advice, so you can just call our main line at 780-424-2030, and our receptionist will put you in touch with someone on our team.

Warren Berg: 11:49

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Cynthia Carels and Allison Grimsey of Weir Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. Their phone number once again is 780-424-2030. You can also contact them online at weirbowen. com. I think that societal views and attitudes towards sexual abuse and the individuals affected by it have undergone a lot of significant changes in recent years, and it seems like there's been a growing recognition of the importance of supporting the survivors while also holding the perpetrators accountable. Given these changes in public perception, I'm curious if you've observed any corresponding shifts or developments within our legal system.

Cynthia Carels: 12:39

You know, I'm really happy to say that we have Warren. In 2014,. So now 11 years ago, Alberta's Limitations Act was actually amended to remove limitation periods for claims relating to violence and sexual violence in certain situations. So, prior to this change, the deadline to file a statement of claim was typically two years from the incident happening, or two years after a child's 18th birthday if the sexual abuse happened during childhood.

Allison Grimsey: 13:10

This change came as a result of a bill entitled An Act to Remove Barriers for Survivor and Domestic Violence. This happened around the same time as similar legislative changes in a number of Canadian jurisdictions. In addition to eliminating the limitation period for claims relating to sexual assault or battery, the amendment also removed limitation periods for claims relating to any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor in an intimate relationship with a person who committed misconduct dependent on that person, whether financially, emotionally, physically or otherwise, or a person under disability. Limitation periods for claims relating to an assault or battery not of a sexual nature were also removed in those same four circumstances.

Cynthia Carels: 14:03

And another really interesting but also crucial aspect of this change is that it was actually made retroactive, meaning it allowed survivors of sexual abuse that occurred prior to this amendment to actually bring forward civil claims that previously would have been barred by that same statute of limitations. So that was huge. So now, regardless of when that sexual abuse occurred, individuals are now able to file a lawsuit and seek justice, even if that sexual abuse took place many, many years ago.

Warren Berg: 14:31

It's fantastic that the legal system is continuing to make advancements to help victims of sexual abuse speak out.

Cynthia Carels: 14:38

Yeah, there really have been some positive trends in the way our courts assess damages in these cases. I mean, there's still a long way to go, but we have made some really positive moves. So, for the most part, damages in cases involving sexual abuse or assault are assessed in the same way that they are in other personal injury claims, and they're going to follow the same principle that underpins this whole area of law. Another fancy Latin phrase that we've used before restitutio in integrum, which essentially means that the damages awarded in these cases are intended to, to the extent that money can, to, put victims in the place that they were in or that they would have been in, but for that wrongful conduct of the defendant.

Allison Grimsey: 15:19

The problem is that, historically, damages awarded in claims relating to sexual abuse or assault were relatively low compared to other types of personal injury cases. Recently, we have seen a shift in how the courts recognize the profound impact that sexual abuse has on victims. This shift has also influenced how the courts assess and award damages in monetary terms. As you've mentioned, these changes align closely with broader societal shifts in how we view and understand sexual abuse and its effects. The result is that the damages awarded in these cases now more accurately reflect not just the pain, suffering and trauma that the victims endure, but also the broader, often indirect, losses and consequences they experience in their lives.

Cynthia Carels: 16:11

These developments ensure that victims are better compensated for the full scope of the harm they've faced. That's right. You know physical, psychological and mental health injuries are such an important part of our practice, but the psychological and mental ones are so difficult to see, to prove and to quantify. Most of us probably associate the idea of personal injury law with physical injuries. You know things like broken bones or torn ligaments or scarring and bruising, and that can happen in sexual abuse cases as well. However, those sexual assault cases can often produce really high psychological damages as readily as they produce those physical damages as well. And thankfully in Alberta we can seek compensation for psychological injuries in the same way that we can seek compensation for physical injuries, and that is through a personal injury claim.

Allison Grimsey: 16:58

There are hundreds of cases that involve psychological injuries and for those cases we follow lots of reported precedent case law from not only Alberta but all over Canada and, most importantly, the Supreme Court of Canada.

Warren Berg: 17:11

Now earlier you mentioned indirect losses and damages. What exactly do you mean by that?

Allison Grimsey: 17:16

Well. In the past, it was relatively uncommon for damages related to loss of income or earning capacity to be awarded to plaintiffs in sexual abuse cases, particularly when their injuries were primarily psychological in nature. Unlike cases such as motor vehicle accidents, where the physical injuries are more directly linked to an inability to return to work, such as in the case of somebody who becomes paralyzed and can no longer work as a manual laborer, the psychological impact of sexual abuse can be harder to quantify in terms of lost earnings, especially if the abuse occurred during childhood. However, as our understanding of the long-term effects of trauma has evolved, courts are now more willing to recognize that the psychological harm caused by sexual abuse can significantly impact a victim's ability to complete their education, work function, form romantic relationships and lead a fulfilling life. This shift has allowed for a broader consideration of the various ways victims are affected, ensuring that the compensation awarded better reflects the full scope of their suffering.

Cynthia Carels: 18:23

And courts have been more willing to award these types of damages, and in more significant amounts than they did in the past. So, for example, you know you'll quite frequently hear us talking about general damages, and those are things that are intended to compensate someone for their pain and suffering, as opposed to actual financial or calculatable monetary losses, but those have also been awarded in much higher amounts than they were previously as well, assuming that there is good evidence to support the claim and the impact that it's had on a victim.

Allison Grimsey: 18:54

It has also become increasingly common for courts to award punitive damages in sexual abuse cases. Punitive damages are somewhat unique compared to other types of damages, as we discussed earlier.

Warren Berg: 19:05

And why is that?

Allison Grimsey: 19:06

Well, in Canada, the primary aim of damages awards is usually compensatory, intended to make the victim whole again, to the extent that money can do that. However, the purpose of punitive damages is different. These damages are designed to punish the defendant for their wrongful conduct and to deter similar behavior in the future, while punitive damages are typically awarded sparingly and only in exceptional circumstances, there is now legal authority in Canada suggesting that in the cases involving sexual abuse, punitive damages are often warranted. Given that the conduct in these cases is not only morally reprehensible but also inherently criminal, it's somewhat surprising that punitive damages were not always awarded. However, this shift represents an encouraging and significant development in the legal landscape, one that better reflects the seriousness of sexual abuse and holds perpetrators to account in a more meaningful way.

Warren Berg: 20:06

So, in the big picture, what do all of these changes mean for victims?

Cynthia Carels: 20:10

Well, in the past, many victims of sexual abuse may have been discouraged from pursuing civil claims at all, or they may have struggled to find a lawyer who was willing to represent them because it didn't seem economically worthwhile, or they were just simply out of time because of those limitation periods. Now, this is not to say these claims are ever easy, because they are not, and there are still obstacles to overcome. But thankfully the landscape is changing, so now more victims do have the opportunity to pursue civil claims in situations where it makes economic sense to do so. And the shift has been made because it's making it truly more justifiable for victims to take on the risks and discomfort that come with these claims, knowing there is now a better chance for meaningful compensation and justice than there ever was before.

Warren Berg: 20:57

So, with the doors swinging open for these claims, what kinds of cases are you seeing in the context of sexual abuse?

Allison Grimsey: 21:04

One disturbing trend we're seeing more frequently in recent years is sexual abuse committed by medical professionals or individuals who pose as medical professionals, exploiting their position of trust and authority to harm victims.

Cynthia Carels: 21:16

Yeah, this is a very alarming trend that we've been seeing recently.

Allison Grimsey: 21:19

The power dynamic between a doctor and a patient plays a significant role in cases of sexual abuse, as doctors hold a position of authority, trust and influence over their patients. Patients, often vulnerable due to their physical or emotional state, rely on their doctors for care, guidance and confidentiality. This trust can make it extremely difficult for patients to recognize when a boundary is being crossed, let alone speak out about it, especially if the abuse occurred during a medical examination or procedure.

Cynthia Carels: 21:48

So this dynamic is one of the reasons why sexual abuse by medical professionals, in my opinion, is especially heinous, as it takes advantage of an inherently vulnerable situation for the victim.

Cynthia Carels: 22:00

So, for example, I was actually recently interviewed by Global Television about some charges that had been laid against a sonographer in connection with alleged sexual assaults of female patients at a clinic in southeast Edmonton, and the police actually believed other patients may also have been victims in a similar fashion.

Cynthia Carels: 22:19

And this set of charges came on the heels of another string of charges being laid in connection with sexual assaults by massage therapists. So in that interview with Global we talked about how patients are especially vulnerable in these kinds of settings. You know they're in the dark, often behind a closed door, in various states of undress, typically with a complete stranger touching their body. Now, of course, most medical professionals in these settings are incredibly aware of how important good communication is, both before the procedure as well as on an ongoing basis throughout the procedure, because it's so important to make sure that a patient actually understands what's going on and that they're consenting that they're actually OK with this touch. And that they're consenting that they're actually okay with this touch Because, honestly, nobody wants to be surprised by their sonographer suddenly touching them somewhere that they weren't expecting, because it's uncomfortable enough in there already. So recognizing and addressing this power imbalance, knowing how vulnerable patients can be in these settings it is so crucial in preventing abuse and also ensuring justice for victims.

Warren Berg: 23:25

And thank you for bringing awareness to this issue because, you know, a lot of us have never thought of sexual abuse in the context of the medical profession.

Cynthia Carels: 23:34

It's an issue that really wasn't talked about openly for many years, and we think one of the best ways to empower victims is actually to bring awareness to the issues, to ensure people do not feel like they're alone or that they're crazy, and so it's why we did that segment with Global News, and it's also why we thought it was so important to talk about on this program Ask the Lawyer as well.

Allison Grimsey: 23:55

This is also resonating with legislators, too. The Alberta government has been making strides to better protect patients when it comes to sexual abuse in medical settings. Bill 21, also known as the Protecting Patients Act, was introduced to better protect patients from sexual abuse or misconduct by health care professionals. The bill was designed to create stronger safeguards for patients and hold medical professionals accountable for any inappropriate or abusive behavior. When it came into force on April 1st 2019, patients were given more protections and rights, especially in cases where health care professionals are found guilty of sexual abuse or misconduct. The bill also makes it mandatory for health regulatory colleges to investigate all complaints of sexual abuse or misconduct and establishes a more transparent process for handling these complaints. The bill has a zero tolerance policy for sexual abuse. If a healthcare professional is found guilty of sexual abuse, they will face expulsion from their respective professional regulatory body.

Cynthia Carels: 24:58

Yeah, as they should. There is truly never a situation where sexual abuse should be tolerated. It should be a career ender.

Warren Berg: 25:05

Now, it sounds great in theory, but has the legislation actually been effective, or does it simply give the appearance that maybe the government is taking action without making a real impact?

Allison Grimsey: 25:16

That's a valid question, Warren. The Act has remained true to its purpose and there have been several instances where physicians have been found guilty of sexual abuse and have had their medical license revoked as a result.

Cynthia Carels: 25:29

And although it isn't directly related to the civil system, it is still important for us to talk about this, as it does bring awareness to the issue overall and empowers victims to speak out, because a finding against a physician or a medical professional can also help us with proving liability in a civil sexual abuse proceeding.

Warren Berg: 25:48

And now might be a good time to remind our listeners once again how they can get in touch with you.

Cynthia Carels: 25:53

So the easiest way is through our website at we'rebowencom, that's W-E-I-R-B-O-W-E-Ncom, or alternatively, you can call our main line at 780-424-2030, and our reception staff can put you in touch with one of our lawyers for a consultation.

Warren Berg: 26:10

This is Ask the Lawyer on Wind Speaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Cynthia Carrolls and Allison Grimsey of we're Bowen LLP in Edmondson, and today we're talking about a difficult but obviously a very important subject relating to personal injury claims arising from domestic violence and sexual abuse. Cynthia, you mentioned earlier that there is also a tort in relation to someone sharing intimate imaging without consent, and I would take it that this is probably becoming more and more common in the age of cell phones and social media. Can you elaborate a little bit more on that?

Cynthia Carels: 26:47

Yeah, absolutely. In Alberta, the courts have acknowledged this tort of what we are calling public disclosure of private facts, which allows individuals to seek legal recourse when their intimate image is wrongfully shared without their consent. So this practice is something commonly known as revenge porn, essentially Non-consensual pornography involving the distribution of private explicit images without the consent of that person being depicted, and in many jurisdictions, including Alberta, the unauthorized disclosure of intimate photos is recognized as a severe violation of an individual's privacy rights, and it obviously can cause profound emotional, psychological, social and even economic harm to a victim. The unauthorized sharing of intimate photos can be absolutely devastating to a person's mental health and their sense of security. So it is crucial that we protect privacy rights and also ensure that victims have the opportunity to seek justice in these situations, helping to hold those wrongdoers accountable and hopefully prevent further harm.

Allison Grimsey: 27:54

This tort requires that specific criteria be met, including one, the publicization of private aspects of an individual's life without consent. Two, the material consent. Two, the material being highly offensive to a reasonable person. And three, the lack of legitimate public concern in the disclosure. This tort cannot be established if the individual who had their intimate photos shared gave consent for the image to be disclosed, as this would likely negate their claim. However, consent must be clear and ongoing. If the consent was obtained under duress or if the scope of consent was exceeded, for example, if the photo was shared beyond what was originally agreed upon, this defense may not hold.

Cynthia Carels: 28:37

Victims of the public disclosure of intimate photos can seek various forms of compensation as well, including those general damages that we've talked about for emotional distress and anxiety, harm to their reputation caused by the disclosure, as well as those pecuniary damages. So those are those calculatable damages for things like loss of income, if it can be shown that such a thing was caused by this disclosure, and in some cases again, those punitive damages that Alison was talking about earlier may also be awarded, particularly if that disclosure was malicious, intentional or done with a goal of actually causing harm to the victim.

Allison Grimsey: 29:16

The tort of public disclosure of private facts, particularly when it involves intimate photos, serves as an important legal remedy for victims of privacy violations. Legal protections are evolving to reflect the realities of the digital world, and the courts are increasingly recognizing the severity of the harm caused by such disclosures.

Cynthia Carels: 29:36

And truly. Unfortunately, many victims and perpetrators of this tort are young people, but the shame of having an intimate photo shared without their consent can be particularly devastating at, you know, this more juvenile stage of someone's life. It can sidetrack a victim's education, and all too often we are hearing about episodes of self-harm and even suicide attempts in the wake of these experiences. So you know, it's really important for parents and caregivers to talk about safe boundaries when it comes to sharing photos of themselves online, you know, or even between friends and partners, because those relationships can still be really unpredictable. Someone that they love and trust with their whole heart one day can become the focus of a lot of hate or a desire to become the focus of pain, and sharing those private images can be a particularly powerful weapon of revenge in the wrong hands.

Warren Berg: 30:30

And it's definitely super important to have ongoing discussions with the kids about online safety, especially with this generation. They're growing up surrounded by cell phones and, you know, sending countless selfies every day.

Cynthia Carels: 30:42

I know. Just Purely anecdotally, I asked my 20-year-old son how many selfies he thinks he takes every day and it's just gobsmacking to me. He estimated it would be between 50 and 100 every day, and he's a 20-year-old man on Snapchat and he had no doubt that it would be multiples of this number for most girls. Now, as a dyed-in-the-wool Gen Xer myself, I couldn't even imagine taking 50 to 100 photos of myself in a year, and even when I agree to take a photo, I want it to be carefully curated. You know, I would be horribly horrified if a bad take caught out online with some hair out of place, let alone a deeply personal, intimate photo circulating around my school or professional community. Not that it's ever crossed my mind to take one.

Warren Berg: 31:31

And speaking of schools, while turning the topics, maybe a little bit. We also hear about sexual abuse happening in schools or other institutional settings. Is that different than a sexual assault, say, in a domestic setting or a back alley?

Allison Grimsey: 31:47

Sexual assault in an institutional setting refers to instances where the abuse or assault occurs within an environment such as a school, workplace, care facility, religious institution or other organizations where people in positions of trust or authority. This type of assault often involves one person, typically someone in a position of power or responsibility, for instance, a teacher, coach, caregiver or religious leader perpetrating abuse against someone under their care or influence. The main feature these things all share is that they typically have some responsibility for the care, supervision, instruction or custody of individuals they deal with.

Cynthia Carels: 32:28

And what makes these kinds of cases particularly interesting is a legal principle known as vicarious liability. So what's that Vicarious liability typically finds? Employers are usually liable for harm caused by their employees in the course of their employment, meaning harm their employees cause while they're doing things that they've been authorized or permitted by their employer to do. Now again, it's a bit more nuanced than that, but that's basically the idea of vicarious liability. But when we're talking about an intentional tort like a battery or a sexual assault, we're obviously talking about something that's not part of anyone's job. So you're actually talking about inherently wrongful acts committed by individuals that are not authorized or permitted as part of someone's job. So determining whether or not an employer or an institution can be held liable for harm arising from the unauthorized, illegal conduct of an employee, it's going to be a little bit more difficult.

Warren Berg: 33:27

I understand, but let's say, the individual who committed the crime, or the tort as we should refer to it, can still be held liable. Why is it important for the institution to be held accountable as well?

Cynthia Carels: 33:38

Honestly, warren. This short answer boils down to money. In most cases, civil claims are trying to secure monetary compensation for the losses that were caused by someone else, but quite frequently, individual defendants often lack financial resources needed to pay substantial settlements or judgments. And even if they do have assets, collecting a judgment from someone who is unwilling to pay doesn't want to cooperate with us. That can be a lengthy pay. Doesn't want to cooperate with us. That can be a lengthy, complicated and costly process. In certain cases, particularly those involving historical sexual assault, though, the defendant may even be deceased by the time a civil claim is filed. So for plaintiffs, pursuing a civil claim is often only worthwhile when there is a party, such as an institution or an insurance company, that can actually cover the settlement or judgment, and without a source of funds, we can do all the work to get a judgment, but it may end up being hollow or a little more than symbolic at the end of the day if there's nobody to pay it.

Allison Grimsey: 34:42

This is obviously a tough subject. No one should ever have to experience sexual abuse in any setting, but unfortunately there are bad people out there that do awful things, and the reality is that these things often do happen in institutional settings, involving particularly vulnerable people like students, young athletes, kids in group homes, prisoners and even elderly patients or people living with mental disabilities.

Warren Berg: 35:07

We've talked about some of the reasons. Victims might have better recourse when that's the case, but what kind of specific legal challenges do these cases present?

Cynthia Carels: 35:16

So, as we mentioned earlier, the challenge often lies in proving that the institutions should be held liable or vicariously liable for the conduct of their employees or their volunteers. So, like we said earlier, in most cases employers are vicariously liable for harm caused by their employees during the course of their work. However, it is also important to recognize that when someone intentionally commits a crime at work, it's likely not part of their job description and employers aren't automatically liable just because one of their employees committed a crime. So the key issue in these cases is whether the employee's unauthorized, intentional, wrongful act is sufficiently related to their authorized duties to the point that holding the employer or the institution vicariously liable might be justified.

Warren Berg: 36:05

That sounds like it could be really complicated.

Allison Grimsey: 36:07

Good guess. It is highly dependent on the facts of the particular case. So simple in theory, but, yes, complicated in practice. Generally, vicarious liability is considered appropriate when there is a significant connection between the employer's actions, such as creating or enhancing a particular risk, and the wrongful act that occurs, even if the act itself is entirely unrelated to the employer's intentions or desires.

Cynthia Carels: 36:32

So a key consideration is whether the employer played a role in creating or contributing to a situation that allowed this abuse to occur or made it more likely to happen in some way, and, unfortunately, especially in these institutional settings, these situations often involve vulnerable individuals. So the degree of vulnerability of the victims as well, as well as the level of power that the abuser had over the potential victims and how easily that power could be abused, those are all critical factors in determining whether vicarious liability applies and would stand.

Warren Berg: 37:07

From what we discussed earlier, victims are able to bring forward sexual abuse cases even if it happened historically. Due to changes in the legislation, how are you able to bring forward evidence if the assault, let's say, happened 10 plus years ago?

Cynthia Carels: 37:21

That's a great question and every legal claim comes with its own evidentiary challenges. But sexual abuse cases present some unique and often really difficult obstacles. One of the most common hurdles is, you know, just simply known as the he said, she said situation, where the case often boils down to conflicting testimonies, with one person's word being held against another's. And this is particularly prevalent in sexual abuse cases, even when the assault happened you know happened very recently as opposed to 10 plus years ago. But obviously there are big differences. On the civil side, as we discussed earlier, if there's already been a criminal conviction, you might not really need to prove that aspect of the civil claim again. The survivor might only need to show that the defendant was responsible for the harm that they suffered and prove their damages, which can make the process less complicated. And if there is no criminal conviction, that standard of proof in the civil claim again is much lower. It's that balance of probabilities.

Allison Grimsey: 38:19

But I do want to note that a conviction against the criminal who committed the abuse does not necessarily mean that the institution they were working for or associated with is also presumed liable in civil claim. You still need to prove vicarious liability, which often requires a lot of evidence about the broader circumstances around the time of the assault. With the passage of time, memories fade, witnesses die and evidence disappears. Finding concrete evidence of key facts in the case can become a real challenge. Documents get lost, destroyed or accidentally shredded.

Cynthia Carels: 38:53

Accidentally in scare quotes as well.

Warren Berg: 38:56

So what do you do in these situations where the evidence is just not there anymore?

Allison Grimsey: 39:01

Well, that's a tough one, Warren. I mean, at the end of the day, sometimes there's just nothing you can do. Unfortunately, we can only work with the evidence we have. We cast a wide net, get a bit creative and see what you come up with. Remember, you don't have to prove the case beyond a reasonable doubt, it just has to be more likely than not.

Cynthia Carels: 39:18

And sometimes things that seem completely insignificant on their own can end up being the key that unlocks the whole case.

Warren Berg: 39:25

And this might be a good time once again to remind our listeners how they can get in touch with you.

Cynthia Carels: 39:29

So again, the easiest way is through our website at weirbowencom, that's W-E-I-R-B-O-W-E-Ncom. Alternatively, you can call our main line at 780-424-2030. So that's 780-424-2030. And our reception staff can put you in touch with one of our lawyers for a consultation.

Warren Berg: 39:51

This is Ask the Lawyer on Wind. Speaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us once again today are Cynthia Carrolls and Allison Grimsey of we're Bowen LLP in Edmondson. It might be helpful if we can maybe share with our listeners an example of an institution that has been held liable for sexual abuse in the past, so maybe we can have a better understanding of what you mean.

Allison Grimsey: 40:15

I'm sure many of our listeners are familiar with the stories of the devastating effects of this residential school system that are still evident today. Residential schools in Canada have been a significant focus in civil courts regarding sexual abuse claims. These schools, which were primarily operated by religious institutions under government policy, were responsible for the systemic abuse of thousands of Indigenous children for decades. Many survivors of residential school abuse have pursued civil claims against the institutions involved, seeking justice and compensation for the physical, emotional and sexual abuse they endured. In the civil court system, residential schools can be held liable for the actions of their staff under the principle of vicarious liability. In these court cases, the court assesses whether the institution contributed to or enabled an environment where abuse could take place, often due to negligence, lack of oversight or a culture of silence and protection for abusers.

Cynthia Carels: 41:16

So the civil system provides a path for survivors to hold institutions accountable not only for the direct harm that was caused by the specific abusers, but also for the role that these institutions played in enabling or failing to stop such abuse. And there can be many, many layers of accountability when we start peeling the onion of the systems that caused so much harm to so many people over such a long period of time, and it went all the way up to the government levels as well. But these kinds of legal actions can also serve as a form of recognition, a validation of the deep and lasting trauma that was caused by residential schools, and, of course, every case that is successful helps to raise awareness and push for greater accountability within these institutions.

Warren Berg: 42:05

And I think another very highly publicized issue is in the context of a hockey candidate too, hasn't it?

Allison Grimsey: 42:12

Yeah, sexual abuse issues in minor hockey sadly have a very long history. We can think back to the story of Graham James, when two NHL players blew the lid off of his years of sexual abuse of players on his teams when they were in junior hockey.

Cynthia Carels: 42:26

And I think we're referring to Sheldon Kennedy and Theo Fleury- yeah, and when those allegations came out, it sent shockwaves across Canada. Even though many within the hockey community acknowledged the culture of the sport itself had been a breeding ground for precisely this kind of abuse, and even though it was a very high-profile scandal, not a lot changed in hockey until more recently. Now I was doing a bit of research preparing for this show and discovered that junior hockey players have been the subject of sexual assault investigations by police 15 times since 1989. And in May 2022, it was reported that Hockey Canada had paid a settlement to a woman who alleged she was sexually assaulted in 2018 by multiple members of Canada's men's national junior team.

Allison Grimsey: 43:16

This became a serious problem for Hockey Canada, as many of their corporate sponsors suspended their sponsorships and the federal government froze funding to the organization entirely organization entirely. The Standing Committee on Canadian Heritage did a deep investigation into the issue and found that the organization had spent $7.6 million to pay out settlements in 21 sexual misconduct cases since 1989.

Cynthia Carels: 43:41

So, since this scandal broke open, hockey Canada has been quite publicly now taking steps to address sexual misconduct in the sport, with an intent to make the game safer for everyone.

Warren Berg: 43:52

And this should be a powerful reminder of just how important these kinds of discussions are to have in the public discourse. I mean, it sounds like the more that we talk about it, the more people become willing to share their own stories and perhaps, maybe find a pathway to justice through the civil court system.

Cynthia Carels: 44:08

Absolutely, and that's also Warren White. Allison and I are actually founding members of a much larger coalition of lawyers across Canada who are really committed to doing this kind of work, advocating for victims. So this organization is called the Sexual Abuse Lawyers Alliance and it is a group of trauma-informed lawyers across the country, from Vancouver all the way to Halifax, and part of our mission is truly to simply let people know if they have experienced sexual violence, whether in a domestic situation, in a church, a school, a sports team, a youth group, Boy Scouts or even truly in a bar, somewhere that there are lawyers who may be able to help without judgment.

Warren Berg: 44:50

And if you've joined us late, we have Cynthia Carrolls and Allison Grimsey of we're Bowen LLP joining us today on Ask the Lawyer to discuss the difficult but very important topic of sexual assaults and what can be done for the victims in civil court system. Any big takeaways you want to remind our listeners of today?

Allison Grimsey: 45:09

We understand that pursuing a civil sexual abuse claim can be intimidating for many victims. However, it's important to note that society has undergone a significant shift in how sexual abuse claims are handled, with a stronger focus on supporting survivors and holding perpetrators accountable. In civil litigation, the standard of proof is lower, as it only requires proving the case on the balance of probabilities, compared to the higher standard in criminal trials. While a guilty verdict in a criminal court can certainly strengthen a civil claim, even if the defendant is acquitted in criminal court, there may still be a path for justice through the civil system.

Cynthia Carels: 45:48

And I also think it's worth repeating that in Alberta there is now no time limit to sue civilly for claims relating to sexual abuse or, in many cases, any kind of abuse or sexual misconduct that occurs in a relationship involving a particularly vulnerable party.

Allison Grimsey: 46:05

Sexual abuse can take many forms, including individual acts of abuse, institutional abuse, abuse by those in positions of power and even abuse through the non-consensual distribution of private images, among other methods. Each form can have a profound emotional, psychological and physical impacts on the victims.

Cynthia Carels: 46:26

So truly to anyone who's out there who has been through the trauma of sexual abuse you are not alone and your voice really does matter.

Cynthia Carels: 46:35

I know the idea of you know, picking up the phone, talking to a lawyer, going through the legal process especially if you've already gone through a criminal investigation or even a trial that may or may not have been successful and digging up those painful memories that that can really be overwhelming. But when you're ready, there are trauma-informed lawyers who you can talk to about seeking the justice and compensation that you deserve.

Warren Berg: 47:00

Powerful words, cynthia, thank you and, of course, thanks to you and Alison for joining us here today. We've covered a lot of ground today in the March edition of Ask the Lawyer for 2025 with Cynthia Carrolls and Allison Grimsey of we're Bowen LLP in Edmonton. If you want to find out more, you can visit their website, we'rebowencom that's W-E-I-R-B-O-W-E-Ncom. Their phone number is 780-424-2030. You can also find a link to Ask the Lawyer on the radio station homepage, where these shows are available to stream on demand. We look forward to learning much more through this series, which you can hear on the last Saturday of every month on Windspeaker Radio, cfwe and CJWE.