Sexual Violence (Civil) Conference 2022

Course Chairs
Sandra L. Kovacs — Kazlaw Injury Lawyers, Vancouver
Janelle O'Connor — Murphy Battista LLP, Vancouver

About the Course Chairs
Sandy Kovacs is a leading personal injury lawyer in Vancouver with KazLaw, and alongside her colleague, Marc Kazimirski, she is also an adjunct professor teaching Law 435: Personal Injury Law at UBC. She is a past president of the Vancouver Bar Association and a past president of the Lawyers' Inn Society (Law Courts Inn).

Prior to joining the plaintiffs' bar in 2016, she worked for more than a decade as insurance defence counsel, mostly in aviation, occupier's liability, and medical malpractice. For the past five years, she has worked exclusively for plaintiffs with complex personal injury claims for losses arising from historical sexual assault, traumatic brain injuries, orthopedic injuries, and chronic pain. She recently achieved what may be the largest personal injury judgment in the history of the province for a severely brain injured plaintiff, in Uy v. Dhillon, 2020 BCSC 1302, and she achieved a record punitive damages award against a Roman Catholic Diocese in a historical abuse claim, the first involving an adult victim in Canada, in Anderson v. Molon, 2020 BCSC 1247.

Janelle O'Connor is a plaintiff lawyer at Murphy Battista LLP who practices exclusively in the areas of civil sexual assault and class actions on behalf of plaintiffs. She represents men, women and children in their civil sexual assault claims, both historical and recent. Many of her sexual abuse cases involve institutions, such as religious organizations, school boards, and government ministries. She also pursues class actions, with a particular interest in those involving institutional abuse. Notably, she was class counsel in the settlement of an estimated $100M class action for women who experienced gender and sexual harassment while working and volunteering with the RCMP in non-member roles. For over a decade, her personal and professional interests have been in the socio-legal field, with a particular interest in Indigenous issues and gender violence.

Faculty
Bruno De Vita, KC — Alexander Holburn Beaudin + Lang LLP, Vancouver
Megan R. Ellis, KC — Megan Ellis & Company, Vancouver
Elizabeth Grace — Lerners LLP, Toronto
Robin J. Harper — Dives, Harper & Stanger, Vancouver
Rochelle Leung — KazLaw Injury Lawyers, Vancouver
Rachel Liebman, PhD, CPsych — EBT3 Evidence-Based, Therapy, Training and Testing, Toronto
Janis D. McAfee — Dolden Wallace Folick LLP, Kelowna
Myrna L. McCallum — Miyo-Pimatisiwin Legal Services, North Vancouver
Daniel J. Reid — Harper Grey LLP, Vancouver

Course Materials Contributor
Hermanie T.H. Chiong — KazLaw Injury Lawyers, Vancouver
Robert Smith — Dolden Wallace Folick LLP, Toronto

Click here for full faculty bios

Welcome and Land Acknowledgement (9:00 – 9:05)

Sandra L. Kovacs — Kazlaw Injury Lawyers, Vancouver
Janelle O'Connor — Murphy Battista LLP, Vancouver

Opening Keynote: Removing Barriers to Justice for Survivors (9:05 – 9:35)

• identifying the barriers that exist to dissuade survivors from accessing justice
• practical suggestions about how to remove those barriers and improve access to justice for survivors

Megan R. Ellis, KC — Megan Ellis & Company, Vancouver

BREAK (9:35 – 9:45)

Anonymity Orders (9:45 – 10:00)

• a brief historical overview of the law as it stood before 2021
• a brief update review of the recent case law in 2021 with regard to the requisite evidentiary foundation for anonymity applications
• sample application materials

Rochelle Leung — KazLaw Injury Lawyers, Vancouver

BREAK (10:00 – 10:10)

Insurance and Coverage Issues (10:10 – 10:35)

• fortuitous occurrences versus intentional conduct
• negligence
• vicarious liability
• duty to defend
• duty to indemnify

Bruno De Vita, KC — Alexander Holburn Beaudin + Lang LLP, Vancouver

BREAK (10:35 – 10:45)

Vicarious Liability for Sexual Assault (10:45 – 11:10)

• mere opportunity
• authority from organization
• expected intimacy
• power imbalances

Janis D. McAfee — Dolden Wallace Folick LLP, Kelowna

BREAK (11:10 – 11:20)

Institutional (Direct) Negligence (11:20 – 11:45)

• when the institution "knew or ought to have known"
• defending claims of direct negligence against institutions
• statutory protections against individuals

Robin J. Harper — Dives, Harper & Stanger, Vancouver

BREAK (11:45 – 11:55)

Defence Panel Q & A (11:55 – 12:10)

Bruno De Vita, KC — Alexander Holburn Beaudin + Lang LLP, Vancouver
Robin J. Harper — Dives, Harper & Stanger, Vancouver
Janis D. McAfee — Dolden Wallace Folick LLP, Kelowna

LUNCH BREAK (12:10 – 1:00)

Defamation Counterclaims and Anti-SLAPP Legislation (1:00 – 1:25)

• defending claims and counterclaims against plaintiff survivors alleging defamation
• dismissal applications under BC's Protection of Public Participation Act
• a discussion of the balance between freedom of expression on matters of public interest and the rights of parties to protect their reputations in cases where they may have been defamed

Daniel J. Reid — Harper Grey LLP, Vancouver

BREAK (1:25 – 1:35)

Impact of Trauma on Memory and Credibility Considerations (1:35 – 2:00)

• describe the impact of trauma on memory processes
• identify trauma-related factors that may influence memory recall
• differentiate trauma-related remembering from intentional misrepresentation or malingering

Rachel Liebman, PhD, CPsych — EBT3 Evidence-Based, Therapy, Training and Testing, Toronto

BREAK (2:00 – 2:10)

Thin Skull and Crumbling Skull Damage Rules (2:10 – 2:35)

• "but for" causation in the context of historical child abuse
• disentangling the cause(s) of multi-factorial psychological injuries (cumulative PTSD, substance use disorder, depression, anxiety)
• "original position": the "thin skull" versus the "crumbling skull" plaintiff
• public policy concerns: should predators who prey on the vulnerable be entitled to a "crumbling skull" discount?

Sandra L. Kovacs — Kazlaw Injury Lawyers, Vancouver

BREAK (2:35 – 2:45)

Pecuniary Damages (2:45 – 3:10)

• special considerations in sexual abuse cases
• issues with the loss of earnings approach
• unique burden of proof and causation considerations
• alternative approaches
• recent trends

Janelle O'Connor — Murphy Battista LLP, Vancouver

BREAK (3:10 – 3:20)

What's Happening Back East and NDA's? (3:20 – 3:45)

• vicarious liability extended to teacher-student abuse
• direct liability for post disclosure conduct
• non-pecuniary damages—increasing ranges for youth and adults
• pecuniary damages—is the ONCA's MacLeod v. Marshall making a difference?
• settlements and non-disclosure agreements—current practices and emerging legislative restrictions

Elizabeth Grace — Lerners LLP, Toronto

BREAK (3:45 – 3:55)

Plaintiffs' Panel Q & A (3:55 – 4:10)

Elizabeth Grace — Lerners LLP, Toronto
Sandra L. Kovacs — Kazlaw Injury Lawyers, Vancouver
Janelle O'Connor — Murphy Battista LLP, Vancouver

BREAK (4:10 – 4:20)

Trauma Informed Lawyering (4:20 – 4:50)

• Myrna McCallum is a Métis-Cree mother and grandmother from Treaty Six territory (Green Lake & Waterhen Lake First Nation)
• she is the host of "The Trauma-Informed Lawyer" Podcast. Myrna acknowledges that it is Indigenous people and survivors of sexual violence who transformed her into the trauma-informed lawyer she is today
• Myrna educates via her podcast on trauma-informed lawyering, cultural humility, vicarious trauma + resilience, and Indigenous intergenerational trauma. 

Myrna L. McCallum — Miyo-Pimatisiwin Legal Services, North Vancouver

Closing Remarks (4:50 – 5:00)

Sandra L. Kovacs — Kazlaw Injury Lawyers, Vancouver
Janelle O'Connor — Murphy Battista LLP, Vancouver