Law Times

Page 12 August 20, 2018 • LAw times www.lawtimesnews.com "This approach is inconsis- tent with this Court's jurispru- dence and risks lengthening the forum non conveniens analy- sis. It is also untethered from the rationale underlying the ap- plicable law factor," she wrote. However, she agreed with Cote that this was not a significant is- sue in this case. Justice Rosalie Abella, in her concurring judgment, stated that the law should be modified to deciding where there is the most substantial harm to repu- tation, similar to what has been adopted in Australia. "This new approach would displace the law of the place of publication of the defamation with the law of the place with the most significant connection to the tort," Abella said. Chief Justice Richard Wag- ner agreed with Abella that the most substantial harm test should be adopted in Canada. "This new test for choice of law would have several positive effects," he wrote. "These positive effects in- clude ensuring that the reason- able expectations of the publish- er of the statement alleged to be defamatory are properly consid- ered, striking a better balance between freedom of expression and harm to reputation con- cerns, and ensuring that choice of law will ref lect the purpose of defamation laws," stated Wag- ner. The dissent by McLachlin and justices Michael Moldaver and Clement Gascon stated that the legal issue "boils down" to a single issue — whether a Cana- dian citizen allegedly defamed by a foreign publication that can be read online in his home province can bring an action in the courts in that province. The answer to this question is "yes," the dissent concluded. The judges also stated that the threshold of the "clearly more appropriate" test to rebut the presumption of jurisdiction should not be lowered. LT suffering on her own," as a result of her Muslim faith and Eastern values. According to Dhillon, cul- tural background can be a factor in assessing damages. "She was ashamed to come out publicly," he says. Lawyers who act for clients in sexual assault or sexual abuse cases say awards for "pain and suffering" have long been lower than in other types of personal injury litigation. Joanna Birenbaum, a Toron- to lawyer who practises in this area, says the Court of Appeal decision "will hopefully close the door" on future arguments that, unless there are serious physi- cal injuries, a "single rape" is not enough for general damages in the $200,000 range. "Being raped in your home by someone who was a trusted co-worker and colleague is a serious civil wrong worthy of a significant award. The evidence was that the plaintiff suffered a major depressive disorder and shame, guilt, humiliation and degradation," says Birenbaum. Simona Jellinek, who also practises in this area and heads Jellinek Law in Toronto, agrees that while courts are increas- ingly aware of the harms caused by any incident of sexual abuse, it is rarely ref lected in damage awards. "Judges still feel restrained because we are dealing with psychological injuries. With- out new direction from the Su- preme Court of Canada, we will continue to have this issue," she says. The award of $25,000 for pu- nitive damages is "fairly typical" in a sexual assault case despite the seriousness of the wrong- doing found by the trial judge, notes Jellinek. The Court of Appeal agreed in its decision that the misconduct was sufficiently "morally repre- hensible" that it met the punitive damages standard set out in the FOCUS Continued from page 10 Continued from page 11 Sexual assault pain and suffering awards lower: lawyers landmark Supreme Court judg- ment in 1995 in Hill v. Church of Scientology of Toronto. The court upheld a civil jury's award in that case for $1.6 mil- lion in damages, which includ- ed $300,000 in general dam- ages and punitive damages of $800,000. The argument that there should be a cap on general dam- ages for defamation similar to what was previously imposed by the Supreme Court for personal injury was rejected. Ali is listed as a doctor in good standing by the College of Physi- cians and Surgeons of Ontario and there are no restrictions on his practice. A spokeswoman for the regulator says the doctor is "currently under investigation," but she declined to provide any more details. LT Law should be modified, says Abella Joanna Birenbaum says a recent decision will hopefully end perceptions that, unless there are serious physical injuries, a sexual assault is not enough for general damages in the $200,000 range. • What is litigation funding and what types of cases are suitable? • How do companies typically use funding, and how does the process work? • Due diligence process • The "nuts and bolts" of a funding relationship and selecting an appropriate funder • Canadian case law, international trends and special issues for arbitration COURSE HIGHLIGHTS: COURSE CHAIR: JENNIFER BROWN, MANAGING EDITOR CANADIAN LAWYER INHOUSE/LAW TIMES *Discount applies to in-class only REGISTER BEFORE OCTOBER 26 AND SAVE 25%* LITIGATION FUNDING: A TOOL FOR RISK MITIGATION AND REVENUE GENERATION Toronto & Webinar | November 20 Register online at www.lexpert.ca/legal-programs For questions and group rates, please contact: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: www.lexpert.ca/legal-programs • Email: cpd.centre@thomsonreuters.com Litigation funding is increasingly used by companies of all sizes to relieve budget pressure and manage litigation risk. Learn from leaders in the fi eld how this innovative and fl exible tool works in practice through a worked case study. Contributors to this interactive discussion will include experienced litigators, in-house counsel, fi nancial executives, and a litigation funder. Untitled-10 1 2018-08-15 12:03 PM This new test for choice of law would have several positive effects. Chief Justice Richard Wagner

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