Chart gets to ‘meat’ of the settlement in abuse cases

What is the price of an abusive kiss by a predatory priest? How much should an unwanted fondle fetch to serve justice to the victim? Ask the class-action lawyers.

They and the legal system have developed a grid, or “meat chart” as one Ontario lawyer refers to it, that spells out the dollar value of abuse much as insurance companies codify the value of a lost thumb or the ability to walk. The chart has two distinct components. One section enumerates four levels of the sexual assault. The second section addresses the “harms and effects,” or the knock-on psychological harm or financial losses experienced by those assaulted.

The valuations will come into play now that the large class actions against Roman Catholic dioceses and religious orders in Canada have reached a settlement and damages will soon be disbursed to the claimants.

In April, the Diocese of Chicoutimi in Quebec settled with victims of laicized priest, Paul-André Harvey, for $13.7 million. Plaintiffs in the class action against the Archdiocese of Montreal will learn on June 9 whether the $14.8 million settlement is approved by the courts. In Nova Scotia, victims of historical sexual abuse in the Archdiocese of Halifax-Yarmouth are being encouraged to come forward to register their claim in a $10 million suit, and the St. John’s archdiocese (see story above) will soon announce settlements for Mount Cashel victims.

The gritty endgame for a class-action lawsuit arrives after a settlement has been approved and an adjudicator, typically a retired judge, is tasked with divvying up the damages between individual claimants. In sexual abuse cases the grid that links categories of assault to damages is used to assess who gets what.

Each level is assigned a dollar amount. According to the notice of the class-action settlement in Halifax, the first category of assault, “non-consensual fondling, kissing, sexual touching,” is compensated by $30,000. The fourth category, tantamount to rape, is recompensed by $140,000.

Only those who were subject to the highest two categories of sexual assault can apply for pecuniary, or financial, damages.

A “harm and effect” includes, “significant and lasting physical or psychological harm, including but not limited to a medically documented severe mental disorder requiring hospitalization” or “a history of unemployability cumulatively in excess of three years.” Someone who falls into that last category can receive $210,000. Between the two kinds of damages, pecuniary and non-pecuniary, the largest possible pay-out to an individual claimant in Halifax is $350,000.

Assigning a dollar figure as compensation for such harrowing events, in many cases inflicted when the claimants were but children, may seem a hollow kind of justice, but the figures are arrived upon through a careful assessment of both previous settlements and the interests of the claimants.

Adam Tanel, partner at Koskie Minsky, one of the two firms representing plaintiffs in the Halifax suit, notes that “mediations are covered by rather sacrosanct confidentiality provisions” which means that “the back and forth of how we arrived on these numbers” is restricted.

“But I can tell you what one looks to is what other settlements have provided and what other judgments have provided when there’s been trials in sexual assault cases.”

One of the reasons some lawyers are critical of the use of class actions in sexual abuse cases is that the damages awarded are considerably lower that what is seen in individual civil cases.

To compare with the Halifax numbers, $2.6 million in damages were awarded in 2018 to Rod MacLeod, a man molested as a child by a Basilian priest.

But there are factors other than money. Tanel explains that a class action provides what he terms “a trauma-informed process.”

“A balanced and an honest answer is a class action doesn’t provide as much specificity of damages for an individual. But what they get in return is a much more trauma-informed process. They don’t have to come forward, they don’t have to be cross examined. They don’t have to put their name forward publicly. They don’t have to go through open court.”