Institutional Abuse Claims in BC: Civil Lawsuits versus Criminal Charges

Institutional abuse involves a combination of sexual or physical abuse that may occur to a vulnerable person within an institution. Certain institutions are more likely to foster environments where abuse may occur. For example, schools, churches, clubs, and correctional institutions often create power imbalances that may be exploited by perpetrators who are members or employees of the institution.

At the heart of an institutional abuse case is an abuser or perpetrator. This is the primary wrongdoer in an institutional abuse claim. The perpetrator is the person who knowingly uses his or her position of authority to commit abuse against vulnerable members of the institution.

The perpetrator’s actions when they physically or sexually abuse vulnerable people are criminal and can lend themselves to prosecution by the Crown. However, the perpetrator’s actions are also wrong in the “civil justice system” – also known as torts – which can be the subject of a lawsuit.

Criminal Charges For Institutional Abuse: How the State Controls Prosecution

The Canadian criminal justice system involves the police investigating possible crimes, and then submitting the results of their investigation to Crown Counsel (the government’s lawyers) to determine if charges should be laid. It is the decision of the Crown whether to lay charges or not. The Crown may lay charges even if the survivor of the abuse does not want charges to be brought. The Crown may also decline to lay charges even if the survivor wishes charges to be pursued.

The Crown lawyers must refer to policy guidelines to determine whether to bring a charge, which include considering the likelihood of a conviction and the public interest. In considering the likelihood of conviction, the Crown must consider the perpetrator’s presumption of innocence as well as the burden of proof required to prove guilt. This refers to proof beyond a reasonable doubt. 

In the event of a conviction, the primary outcome is the punishment of the perpetrator, in the form of a criminal sentence.

If a perpetrator is found guilty of abusing a survivor in a criminal court, that finding is admissible and binding in a civil court because the civil burden of proof is lower. If a perpetrator is found not guilty of abusing a survivor, that finding is not conclusive in a civil claim. This means that, even if a perpetrator is found ‘not guilty’ in criminal court, a survivor may still be eligible to file a civil lawsuit against them.

Civil Lawsuits For Institutional Abuse: The Survivor Controls the Claim

In a civil lawsuit, the survivor of the abuse is the plaintiff, and it is his or her decision whether or not to bring a lawsuit.

In a civil lawsuit, the only remedy available is damages, which is just a legal word for money. However, a judgment is also a judicial acknowledgement of the merits of the survivor’s claim. This can be valuable to survivors, as it means you are believed.

A significant distinction in institutional abuse civil lawsuits is the involvement of the institution in the proceedings. In criminal proceedings, the perpetrator is the sole defendant. In an institutional case, the institution is the defendant along with the perpetrator, or sometimes even in the absence of the perpetrator.

In fact, the institution is typically the primary target of civil litigation, because an institution is more likely to have insurance or assets that allow for settlement or the payment of a judgment.

Holding Negligent Institutions Accountable Through Civil Lawsuits

In order for an institution to be civilly liable to a survivor of abuse, it is not enough that the perpetrator abused the survivor. There must be a connection to the institution to allow for either a finding of negligence on the part of the institution, or vicarious liability.

An example of direct negligence on the part of an institution can be found in K.L.B. v. British Columbia, 2003 SCC 51, where the government of British Columbia was found to have failed to place proper placement and supervision procedures when placing a foster child in a foster home.

An example of vicarious liability on the part of an institution can be found in Bazley v. Currey, 1999 CanLII 692 (SCC), where a non-profit foundation operating two residential care facilities for troubled children was found liable for abuse perpetrated by an employee, regardless of whether the institution did anything wrong. The fact that the institution introduced the risk that led to the abuse was enough to make it liable for the wrongdoing of its employees.

Balance of Probabilities in Civil Cases

One significant difference in a civil case is the plaintiff’s burden of proof. In a civil lawsuit for institutional abuse, the plaintiff must prove his or her case on a balance of probabilities. This means that the judge or jury must only find that a claim is “more likely than not” to be true (a greater than 50% likelihood).

In most cases, it is easier to prove your case on a balance of probabilities in civil court than it is to prove guilt beyond a reasonable doubt in criminal court. This is because for a balance of probabilities to be satisfied, the evidence supporting a claim must only outweigh the evidence against it (e.g., 51% likely:49% unlikely). To satisfy the “beyond a reasonable doubt” standard, there must be 100% certainty.

Understanding Your Legal Options After Institutional Abuse Has Occurred

There is an overlap between a criminal case against a perpetrator and a civil case. A criminal case, if a conviction is made, can certainly help the plaintiff in a civil case. However, it is important to remember that a criminal charge and a civil lawsuit are two distinct legal proceedings with different processes, motives, and outcomes.

The main differences are

1. Who makes the decisions: the Crown in criminal cases and the plaintiff in civil cases
2. The burden of proof: Beyond a reasonable doubt in criminal cases and on a balance of probabilities in civil cases
3. The role of the institution: Institutions are not defendants in criminal cases, but they can be defendants in civil cases
4. The outcome: a criminal sentence in criminal cases and a monetary award in civil cases.

If you or a loved one has experienced institutional abuse in British Columbia, our Vancouver institutional abuse lawyers may be able to help you explore your options for financial compensation. Contact us today to discuss your situation in a private, confidential, and free consultation.

We’re here to help.