A judge has ordered two Ancaster sisters to pay their uncle $125,000 in libel damages for alleging he sexually abused them as children.
The Toronto Star
27 August 2013
A Superior Court judge has ordered two Ancaster sisters to pay their uncle $125,000 in libel damages after they accused him of sexually assaulting them as children.
It’s a decision lawyers say has sent a “chilling effect” through legal circles and will discourage sexual abuse victims from coming forward in the future.
The sisters, Patricia and Sarah Vanderkooy, now in their 30s, say the abuse occurred during sleepovers at their uncle’s farm in Simcoe in the early ’80s, when they were 4 and 6 years old, according to the judge’s written decision.
In 2006, they confronted their uncle, Jack Vanderkooy, and asked him for an apology. After he refused, they wrote a series of emails detailing their allegations to family and friends.
Judge Andrew Goodman wrote that the sisters “did not like their uncle,” and sent the emails “in order to vindicate their actions or validate their historical claims of abuse.”
“Jack is a man who comes from an extended family and indeed, cherishes family, church and community. As a result of these allegations, I am satisfied that Jack has been shunned by a number of his family members,” Goodman wrote.
Philip Tunley, the sisters’ lawyer, confirmed that they did not file a police report and that criminal charges have not been laid.
It’s “very rare” to see victims of alleged sexual assault found liable for defamation, said Elizabeth Grace, a lawyer who specializes in sexual abuse, but was not involved in this case.
“Predominately, the courts have wanted to encourage people coming forward with their allegations of abuse,” Grace said. “This decision gives added weight to the concern that (our clients) may face a defamation suit . . . It’s going to have a chilling effect.”
Contacted at his home in St. Thomas, Vanderkooy said he was relieved by the decision but added that it was a bittersweet victory because the litigation “has done a lot of damage in our family.”
Vanderkooy acknowledged that the courts have to find a balance between encouraging victims of sexual abuse to come forward and protecting people from false accusation but said “it’s my perspective that this balance has tipped in the opposite direction.”
“People in my situation typically are not believed . . . When men are accused today in our society, it’s very difficult for us to defend ourselves,” he said. “This case shows that vindication is possible.”
After Vanderkooy sued for defamation, his nieces filed a counterclaim for sexual battery. Goodman dismissed their claim because their memories of the incident were “not of the clear and cogent nature required” to substantiate the allegations.
In testimony referenced in the judge’s decision, Patricia described remembering waking up with her uncle on top of her and feeling pain in her groin. In a second incident, her uncle pulled her up and put something soft in her mouth, which “may have been his penis.”
Sarah testified recalling a static image, “like a snapshot or an out-of-body experience” in which she saw “herself as a child on the floor with the dark shape of a grown man on top of her.”
Goodman dismissed the claims of sexual abuse, writing that Vanderkooy would have had no reasonable opportunity to commit the acts because the sisters would have been sleeping in a small room with two male cousins present.
“In order to commit the sexual assaults, Jack would have to stealthily and gingerly manoeuvre himself around the other children and not make a sound to avoid waking up the other children,” he wrote.
Patricia and Sarah’s father, Jim, who is also named in the suit, said he is disappointed in the judgment and called the entire process “a sad family affair.”
Confronting their uncle tore their closely knit family apart and the sisters recanted their allegations shortly afterward, court records show. Months later, however, they renewed their allegations.
An expert testifying at the trial said that this is normal behaviour commonly displayed by victims of childhood sexual abuse.
The sisters have not yet decided if they will appeal, said their lawyer, Tunley, who noted that the judge zeroed in on a single line in an email in awarding the defamation damages.
Goodman ruled that the words “we do not want anyone else to be sexually abused” written in an email to family members is a sentence “intended to evince the defamatory meanings that Jack is a sexual predator, likely to reoffend and is not to be trusted or left alone with children.”
Traditionally, victims of sexual abuse have been afforded a legal protection called “qualified privilege” which allows them to discuss the abuse without fear of being sued for libel, the sisters’ lawyer Tunley said. In this case, however, the judge ruled that privilege didn’t extend to the offending statement.
“Society creates some room for people who have memories of sexual abuse. Whether it’s to seek therapy or talk with family or close friends and get some support in connection with their memories, the law creates some room in which they can do that without getting sued,” he said.
In writing his decision, Goodman calculated the hypothetical damages he would have awarded had he found that sexual abuse did occur at $35,000 for each sister.
This has raised some red flags with lawyers looking at his decision, as the defamation award of $125,000 is more than three times that amount.
“That an invasion of the deepest kind of privacy and intrusion on one’s physical body with long-lasting effects would be worth $35,000 and the damage to a grown man’s reputation is worth so much more, it strikes one as concerning,” said Grace.
“Yes, loss of reputation is very serious but, gee, that’s quite the contrast.”