CITATION: C.P. v. Abbey, 2014 ONSC 7451
COURT FILE NO.: DC-12-1200ML
DATE: 20141224
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
C.P.
Gabriella Deokaran, for the Appellant
Appellant
- and -
ROHAN ABBEY
Veronique Henry, for the Respondent
Respondent
HEARD: September 19, 2014, at Brampton
REASONS FOR JUDGMENT
André J.
[1] The appellant, Ms. C.P., seeks to set aside the decision of Small Claims Court judge, Bobesich J., in which he awarded damages against her for falsely and maliciously accusing Mr. Abbey of sexually assaulting her. She submits that the trial judge gave inadequate reasons for his rejection of her evidence, failed to adequately weigh the evidence in a “correct, reasonable and just manner”; improperly denied her an opportunity to either appoint counsel or to adjourn the trial and made a decision which was not supported by the evidence called at trial. Ms. C.P. further submits that the learned trial judge erred in law in awarding Mr. Abbey costs in the amount of $4,000 without giving her an opportunity to make submissions on the issue.
OVERVIEW
[2] Ms. C.P. and Mr. Abbey were employed at the time of the alleged incident as […] by the City of M[…].
[3] During the trial, Ms. C.P. testified that she invited Mr. Abbey to join her to walk their dogs together. After doing this, they proceeded to Ms. C.P.’s home. After the two had had a drink, Mr. Abbey started to make sexual advances to Ms. C.P. which she resisted. Mr. Abbey proceeded to make sexual advances to her over her objections. He then retrieved a condom from his pocket, inserted it on his penis and forced himself on her. Following the sexual act she joined Mr. Abbey on her porch where the two smoked a cigarette.
[4] A few weeks later, Ms. C.P. told Ms. Newman, a co-worker, that Mr. Abbey had raped her. During the conversation, Ms. Newman advised Ms. C.P. that she and Mr. Abbey had an intimate relationship for several years.
[5] Ms. C.P. subsequently reported the incident to the police who failed to lay charges against Mr. Abbey.
[6] Ms. C.P. then laid a private information against Mr. Abbey but the Crown withdrew the charge against Mr. Abbey.
[7] M[…], the employer of Ms. C.P. and Mr. Abbey, conducted their own investigation into Ms. C.P.’s allegations. A lawyer hired by the transit company concluded that she was unable to substantiate the story of either party.
[8] Ms. C.P. also filed a complaint to the Human Rights Tribunal of Ontario and with the Criminal Compensation Board both of which was still pending at the time of the trial.
COURT PROCEEDINGS
[9] Mr. Abbey filed an Amended Claim against Ms. C.P. on or about February 10, 2010, accusing her of libel, slander and malicious prosecution by falsely advising the police that he had sexually assaulted her in May 2009.
[10] Ms. C.P. filed an Amended Defence in which she maintained that Mr. Abbey had sexually assaulted her.
BOBESICH J.’S DECISION
[11] The trial commenced on May 4, 2011, and ended on November 23, 2011. Mr. Abbey called three witnesses while Ms. C.P. called two witnesses including herself.
[12] Bobesich J. rendered his judgment on December 5, 2012. He found that Ms. C.P. had falsely and maliciously persecuted Mr. Abbey. He awarded Mr. Abbey $10,000 and awarded costs against Ms. C.P. in the amount of $4,000.
ISSUES
[13] This appeal raises the following issues:
Did Bobesich J. err in law or fact by finding Ms. C.P.’s evidence that she was sexually assaulted by Mr. Abbey to be false?
Did Bobesich J. err in law or fact by relying on “old and irrelevant stereotypes” of what behaviour a victim of sexual assault is required to exhibit, in assessing Ms. C.P.’s credibility?
Did Bobesich J. err in law or in fact by finding that Ms. C.P.’s testimony was inconsistent?
Did Bobesich J. err in law or fact by finding Mr. Abbey’s witnesses to have been credible and trustworthy?
Did Bobesich J. err in law and fact by relying on extrinsic evidence not adduced at trial in holding that Ms. C.P. had acted with malice against Mr. Abbey?
ANALYSIS
Issue No. 1 – Did Bobesich J. err in law or fact by concluding that Ms. C.P.’s evidence that she was sexually assaulted by Mr. Abbey was false?
[14] The trial judge accepted Mr. Abbey’s contention that he had consensual sex with Ms. C.P. for the following reasons:
Following the sexual activity, the parties went out and had a smoke on the defendant’s front porch.
During the sexual intercourse, Ms. C.P. did not call out for help from her roommate who was upstairs or her two very large dogs.
Following the sexual act, Ms. C.P. commented that the plaintiff should stay overnight the next time he came over.
Ms. C.P. did not call the police that night or the next day.
Ms. C.P. was non-responsive and contradictory in her evidence. For example, she testified that what happened was dragged out of her by the plaintiff’s girlfriend which is hardly consistent with forcible rape. She gave no evidence of force, threats, trickery or resistance.
Ms. C.P. initially denied having sex with the plaintiff to Ms. Newman but later changed her mind and confirmed that she did have sex with Mr. Abbey but did not want to.
No evidence was given why she did not yell or scream.
Mr. Abbey’s testimony that Ms. C.P. was happy when she started talking with Ms. Newman but completely changed when she found out about the relationship between Ms. Newman and the plaintiff.
Ms. C.P. attempted to get the boarder and her friend to make false allegation claims against Mr. Abbey. The boarder also testified that Ms. C.P. had stolen Mr. Abbey’s pay stubs, which she then freely shared with her.
ANALYSIS
[15] The learned Small Claims Court judge correctly indicated that the civil standard of proof is proof on a balance of probabilities. He subsequently proceeded to provide reasons why he accepted Mr. Abbey’s version of events over that of Ms. C.P..
[16] In assessing Bobesich J.’s reasons for his decision to reject Mr. C.P.’s evidence, I am guided by the following principles that have repeatedly been stated in the appellate jurisprudence.
[17] First, an appellant court is only permitted to interfere with factual findings when the trial judge has “shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence”. H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 4.
[18] Second, the assessment of credibility is within the discretion of a trial judge given that he or she has the unique opportunity not only to hear the evidence of the witnesses but to observe them while they testified. As a result, heightened deference must be accorded to the trial judge on matters of credibility. C.R. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41, at para 72, R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para 20.
[19] Third, in civil cases where there are conflicting evidence, the trial judge decides whether or not a fact occurred on a balance of probabilities. In such cases, provided the judge has no evidence, finding the evidence of one party credible may well be conclusive of the result because that evidence is inconsistent with that of the other party. In those cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue of the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant. McDougall, supra, at para 86.
[20] Ms. C.P. submits that the trial judge erred in concluding that her allegations against Mr. Abbey were false because he did not apply the three part test to determine whether an allegation of sexual assault can be substantiated. These elements, Ms. C.P. submits, are touching, the sexual nature of the contact, and the absence of consent. She submits further that the absence of consent is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching at the time of the alleged incident. R. v. Jensen, [1996] O.J. No. 1514, 1996 1237 (C.A.); R. v. Ewanchuk, [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481.
[21] With great respect, the trial judge clearly dealt with all three elements of the test set out in Jensen, supra. He stated that he accepted Mr. Abbey’s testimony that he had consensual sex with Ms. C.P.. To that extent, he found that there was contact of a sexual nature between the two and that furthermore, such contact was consensual.
[22] The trial judge then proceeded to provide reasons to support his conclusion, on a balance of probabilities, why he preferred Mr. Abbey’s testimony over that of Ms. C.P.. These reasons were all supported by the evidence. It cannot be concluded that the trial judge’s findings of fact are clearly wrong, unreasonable or unsupported by the evidence. To that extent, this ground of appeal must fail.
Issue No. 2 – Did Bobesich J. err in law or in fact by relying on stereotypical views about what behaviour a victim of sexual assault is required to exhibit in assessing Ms. C.P.’s credibility?
[23] Ms. C.P.’s counsel is correct that the reliance on gender-linked stereotypes which hold that victims of rape should react in an emotional manner, in assessing the credibility of such witnesses, is wrong. R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, page 42. [1991] S.C.J. No. 62. Furthermore, that passivity of a victim of sexual assault does not necessarily constitute proof that the contact was consensual, R. v. Find, 2001 SCC 32, [2001] 1 S.C.R 863, at para. 101.
[24] There is some evidence that Bobesich J. relied on some of these stereotypes. For example, he questioned why Ms. C.P. did not yell or scream during the incident or contact the police at the earliest opportunity. Furthermore, his conclusion that “what happened was dragged out of her by the plaintiff’s girlfriend is hardly consistent with forcible rape” is questionable at best and plainly wrong at worst.
[25] On the other hand, the learned trial judge provided a number of other reasons, all of which were amply supported by the evidence, for his rejection of Ms. C.P.’s evidence. These include:
(1) The fact that following the incident the parties went out on Ms. C.P.’s porch and had a smoke.
(2) The fact that following the sexual act Ms. C.P. commented to Mr. Abbey that if he wanted to have sex with her again he would have to spend the night at her home.
(3) Ms. C.P.’s initial denial to Ms. Newman that she had had sex with Mr. Abbey and the change in her position.
(4) Ms. Newman’s testimony that Ms. C.P. was very happy when she commenced a conversation with Ms. Newman but her mood changed only after finding out that Ms. Newman and Mr. Abbey were in a relationship.
(5) The learned judge’s acceptance of the testimony of Ms. Mclean, one of Mr. Abbey’s witnesses that Ms. C.P. attempted to get her and a friend to call M[…] to make false allegations against Mr. Abbey.
(6) Evidence, which the trial judge accepted, that Ms. C.P. had stolen Mr. Abbey’s pay stubs and shared them with her boarder.
[26] The trial judge’s decision not to accept Ms. C.P.’s testimony was therefore supported by the evidence.
Issue No. 3 – Whether the trial judge erred in law by finding that Ms. C.P. was inconsistent in her testimony
[27] The appellant’s counsel is correct that contrary to the trial judge’s conclusion, Ms. C.P.’s initial reluctance to tell Ms. Newman about being raped, was not inconsistent with Ms. C.P.’s testimony that she was raped.
[28] On the other hand, the trial judge correctly found that Ms. C.P.’s initial denial to her girlfriend that she had had sex with Mr. Abbey and her later admission to her that she did, constituted an inconsistency.
[29] Second, the trial judge was correct that Ms. C.P.’s testimony that her roommate was sleeping when she was raped was at odds with her testimony that she had smoked a cigarette and drank some wine with her roommate following the incident.
Issue No. 4 – Did the trial judge err in law or fact by finding Mr. Abbey’s witnesses to be credible and trustworthy?
[30] Ms. C.P. submits that the trial judge erred in accepting the testimony of Ms. Newman because the latter admitted, during cross-examination, that she had lied to Ms. Piccollo about not having had a relationship with Mr. Abbey. Furthermore, that Mr. Abbey’s second witness, Ms. Genevieve McLean, had ended her relationship with Ms. C.P. on bad terms and therefore was biased against Ms. C.P..
[31] The assessment of credibility is within the discretion of a trial judge. He or she can accept all, part of or none of a witness’ testimony. McDougall, supra, at paras. 80-81; 86 and 96. An appellate judge should not substitute his or her assessment of a witness’ credibility for that of a trial judge. Absent palpable or overriding error, deference should be accorded to a trial judge on issues involving the assessment of the credibility of a witness.
[32] The fact that a witness may have made a prior inconsistent statement may not lead to an automatic rejection of the witness’ testimony. Ms. Newman gave an explanation why she was less than candid when she initially spoke to Ms. C.P. about her relationship with Mr. Abbey.
[33] Bobesich J. did not err in law or in fact by finding Ms. Newman to have been a credible witness. Similarly, he was entitled to rely on her testimony about Ms. C.P.’s demeanour when the two initially spoke about Ms. C.P.’s relationship with Mr. Abbey.
[34] Furthermore, the fact that Ms. McLean was upset with Ms. C.P. after the latter had terminated her tenancy should not have necessarily resulted in the rejection of her testimony. The trial judge was not obliged to give a reason for reconciling Ms. McLean’s “apparent bias” towards Ms. C.P. in order to find her to have been a credible witness. He gave a number of reasons why he preferred the evidence of Mr. Abbey over that of Ms. C.P.. He was not mandated to provide reasons for every factual finding he made.
[35] The Supreme Court of Canada in R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, provided the following justifications for a trial judge to give reasons for his or her decision:
i) To justify and explain the result;
ii) To tell the losing party why he or she lost;
iii) To provide for informed consideration of the grounds of appeal; and
iv) To satisfy the public that justice has been done.
[36] A trial judge however, is not required to provide reasons for every factual determination made in a trial.
Issue No. 5 – Did Bobesich J. err in law and fact by relying on extrinsic evidence not addressed at trial in holding that Ms. C.P. had acted with malice against Mr. Abbey?
[37] Ms. C.P. submits that in his reasons for judgment, the trial judge indicated that she was not successful at the criminal courts or with the Criminal Compensation Board or the Human Rights Tribunal and that the court viewed this as an aggravating factor.
[38] It appears that Ms. C.P. has misconstrued the trial judge’s comments regarding her claims against Mr. Abbey with the Human Rights Commission and the Criminal Injuries Compensation Board. He noted that Ms. C.P. was unsuccessful in the criminal courts. There is a factual basis for this conclusion given that the Crown withdrew a private information sworn by Ms. C.P. against Mr. Abbey. The trial judge then stated that Ms. C.P. pursued these claims, which he construed as false, in the Criminal Injuries Compensation Board and the Human Rights Commission. He did not conclude that Ms. C.P. was unsuccessful in these two tribunals. Rather, he concluded that Ms. C.P.’s pursuit of these false claims against Mr. Abbey exacerbated their deleterious effects on his private life and personal peace of mind. He found Ms. C.P.’s conduct in that regard to be aggravating; a finding which clearly factored in the quantum of damages imposed.
[39] In my view, the trial judge did not err in fact or in law in assessing Ms. C.P.’s conduct in the manner that he did. It was proper for him to fully consider Ms. C.P.’s conduct and its impact on Mr. Abbey in assessing what he considered to be an appropriate amount of damages in this case.
COSTS
[40] Ms. C.P. submits that the trial judge erred by awarding costs in the amount of $4,000 given that the outer limit for costs in the Small Claims Court is $750. She further submits that the trial judge did not afford her an opportunity to make submissions regarding costs.
[41] Regarding the latter point, it appears that the trial judge invited the parties to make written submissions on the issue of costs. Ms. C.P. apparently did not do as the trial judge requested.
[42] In Cosentino v. Roiatti, 219 O.A.C. 66 (Ont. Div. Ct.), at para. 13 the Ontario Divisional Court indicated that in determining costs in a Small Claims Court action, such costs must be fair and reasonable and within the expectations of the litigants. It further noted at paragraph 14 that costs payable by the losing party must be reasonable and proportionate to the amount claimed or that which is in dispute.
[43] Rule 19.04 of the Small Claims Court Rules indicates that counsel who represent a litigant at a trial are entitled to a “reasonable representation fee at trial”.
[44] However, the award of costs in the Small Claims Court trial is subject to a general limitation that costs should not exceed 15% of the amount claimed rather than the amount awarded. This rule is subject to Rule 19.02 which provides that the court will be bound by the 15% rule “unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding”.
[45] There is judicial authority for the proposition that the 15% limitation on costs in a Small Claims Court trial cannot be exceeded. See Bird v. Ireland, [2005] O.J. No. 5125, 144 A.C.W.S. (3d) 6, (Div. Ct.) and Transport Training Centres of Canada v. Wilson, 2010 ONSC 2714, 263 O.A.C. 226 (Div. Ct.).
APPLICATION OF THE LAW TO THE FACTS
[46] Mr. Abbey sought damages in the amount of $25,000 against Ms. C.P. for libel, slander and malicious prosecution. Mr. Abbey was represented by counsel at the trial which lasted six days. Mr. Abbey was fully successful at trial.
[47] Applying the 15% rule of costs, Mr. Abbey would have been entitled to costs in the amount of $3,750 plus reasonable compensation for disbursements.
[48] I am mindful that an award of costs should not merely reflect the application of a mathematical formula. As indicated, the trial lasted six days and over a period exceeding a year and a half. As a result, it clearly required a great deal of preparation and review of prior court proceedings.
[49] In my view, the quantum of costs imposed by the trial judge for costs and disbursements, is fair and reasonable in the circumstances of the case. I see no error in his decision.
CONCLUSION
[50] The appeal is dismissed.
André J.
Released: December 24, 2014
CITATION: C.P. v. Abbey, 2014 ONSC 7451
COURT FILE NO.: DC-12-1200ML
DATE: 20141224
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
C.P.
Appellant
- and –
ROHAN ABBEY
Respondent
REASONS FOR JUDGMENT
André J.
Released: December 24, 2014