Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210805 DOCKET: C67175

Tulloch, Nordheimer and Jamal JJ.A.

BETWEEN

Ilinca Calin and Ana Calin Plaintiffs (Respondents/Appellants by way of cross-appeal)

and

Liviu Calin Defendant (Appellant/Respondent by way of cross-appeal)

Counsel: Andréa Baldy, for the appellant/respondent by way of cross-appeal Alexander C. Gibson and Charles M. Gibson, for the respondents/appellants by way of cross-appeal

Heard: April 8, 2021 by video conference

On appeal from the judgment of Justice Sally A. Gomery of the Superior Court of Justice, dated June 7, 2019 with reasons reported at 2019 ONSC 3564 and from the costs order dated July 16, 2019 with reasons reported at 2019 ONSC 4313.

Jamal J.A.:

[1] After a three-week trial, the appellant, Liviu Calin, was found liable for assault, battery, negligence, and breach of fiduciary duty for physically and emotionally abusing his twin daughters, the respondents, Ilinca and Ana Calin. The respondents’ claims for intentional infliction of mental distress and wrongful imprisonment were, however, dismissed. The appellant was ordered to pay the respondents a total of $85,000 as general damages and $20,000 as punitive damages.

[2] The appellant now appeals the findings of liability and the quantum of damages awarded at trial. The respondents cross-appeal the dismissal of their claim for intentional infliction of mental distress and the quantum of damages.

[3] In my view, the parties largely seek to relitigate the trial judge’s factual findings, credibility findings, and assessment of the evidence. I see no basis to do so. For the reasons that follow, I would dismiss the appeal and cross-appeal.

Background

[4] The respondents were born in Romania and moved to Ottawa in 1994 with their father (the appellant) and mother. In 1999, the respondents’ mother was diagnosed with cancer. She died about a year later, just as the respondents were entering high school. In 2002, the appellant began a romantic relationship and moved in with another woman, leaving the respondents in the family home alone. In 2004, the respondents graduated from high school and began university. They continued to live in the family home until March 2005.

[5] On March 26, 2005, the appellant went to the family home to have Easter dinner with the respondents. An argument and physical confrontation ensued. The respondents fled the home and sought refuge with the family of Ilinca’s boyfriend. The next day, the respondents filed a police report, alleging that the appellant had assaulted them, but they decided not to press charges.

[6] In 2012, the respondents sued the appellant for assault, battery, negligence, breach of fiduciary duty, intentional infliction of mental distress, and wrongful imprisonment. They alleged that, on March 26, 2005, the appellant beat them violently and threatened Ana with a knife. They said that the March 26, 2005 incident was the culmination of a lifetime of physical and emotional abuse by the appellant. They claimed he beat them often, called them degrading names, isolated them from their peers and maternal relatives, and controlled their activities. They said the abuse caused them to suffer post-traumatic stress disorder (“PTSD”), depression, and anxiety, resulting in their inability to continue their education or obtain employment at the level they otherwise would have achieved. The appellant denied ever having physically or emotionally abused the respondents.

The Trial Decision

[7] The trial judge found the appellant liable for assault, battery, negligence, and breach of fiduciary duty, but not liable for intentional infliction of mental distress and wrongful imprisonment. She awarded general damages of $50,000 to Ilinca and $35,000 to Ana and punitive damages of $10,000 to each of them.

[8] In thorough reasons, the trial judge acknowledged that determining what happened was challenging because most incidents were alleged to have occurred during the respondents’ childhood or adolescence, between 14 and 30 years ago, when they were alone with the appellant or their mother. No medical records documented the alleged physical injuries. The credibility of the central witnesses — the appellants, the respondents, and their grandmother — was thus a critical issue at trial.

[9] Based on the totality of the evidence, the trial judge accepted the respondents’ “accounts about certain incidents prior to March 26, 2005 as credible” and “largely accept[ed] their account of what happened that day, which reinforce[d] the plausibility of their allegations of earlier physical violence.” She found that the appellant was physically violent towards the respondents nine times between 1994 and 2005. She concluded that the appellant’s “acts exceeded the reasonable discipline that parents may impose on their children.” He had slapped them, punched them, pulled their hair, and beat them with a belt at least once. One time, he slapped Ana’s face, dragged her by the hair, punched her in the stomach, and threatened to hit her with a wooden beam. Another time, he hit Ilinca with a wooden broom. The trial judge also found that, on March 26, 2005, the appellant slapped and spanked the respondents and pulled their hair, punched Ana, held a steak knife to her throat, called her a “fucking bitch”, and threatened to kill her.

[10] Even so, the trial judge found that the appellant did not socially isolate the respondents or control all their activities. She also concluded, based on the expert evidence, that the respondents had not proved the appellant’s conduct caused them to suffer from psychiatric disorders. Finally, she concluded that the respondents had not proved loss of income or competitive advantage because of the appellant’s actions.

Issues

[11] On the appeal, the appellant asserts that the trial judge made palpable and overriding errors in her factual findings and credibility assessments and erred by awarding inordinately high damages.

[12] On the cross-appeal, the respondents argue that the trial judge erred in finding that they did not prove that the appellant’s actions caused their psychiatric conditions, awarded inordinately low damages, and should have awarded damages for the loss of competitive advantage.

Issue #1: Did the trial judge err in her factual findings or credibility assessments?

[13] The appellant argues that the trial judge made palpable and overriding errors in her factual findings underlying the appellant’s tort liability.

[14] First, the appellant argues that the trial judge misapprehended the evidence by failing to consider and give sufficient weight to relevant evidence in assessing the respondents’ credibility. He highlights inconsistencies between the witnesses’ accounts of the incidents and between the respondents’ trial and discovery evidence, and the absence of contemporaneous evidence corroborating their alleged physical or psychological injuries. He asserts that the trial judge’s failure to address these inconsistencies was a reversible error.

[15] I disagree. Inconsistencies in a witness’s evidence, even absent corroborative evidence, do not open the door to appellate review of a trial judge’s credibility findings: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 70, 72, and 75-76. A trial judge may place less weight on certain evidence and accept other, conflicting evidence that they find more convincing. An appellate court cannot intervene just because it would weigh the evidence differently and arrive at alternative factual findings: Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.

[16] Moreover, a trial judge’s credibility findings attract heightened deference: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 81; McDougall, at para. 72. A trial judge need not find a witness not credible or unreliable because of inconsistences in the witness’s evidence. If the trial judge was alive to the inconsistencies, assessed the witness’s credibility in the context of the evidence as a whole, and concluded that the witness was credible, absent palpable and overriding error, there is no basis for an appellate court to interfere: McDougall, at paras. 70, 75-76.

[17] Here, in my view, the trial judge was alive to the inconsistencies in the respondents’ evidence. She highlighted those inconsistencies throughout her reasons, rejecting aspects of their evidence and accepting others, or finding the evidence insufficient to conclude one way or another. She did not have to expressly reconcile every inconsistency arising from the respondents’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 32, 64; R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 14.

[18] For example, because of the witnesses’ “significantly divergent accounts” of two incidents that occurred between 1994 and 2000, the trial judge could not determine precisely what had happened. Although she found that the appellant’s “exact words and actions” were “in doubt”, considering the “overall accounts” of the respondents and their grandmother and the appellant’s testimony and demeanour at trial, she concluded that the appellant had “lashed out physically and verbally” at the respondents on both occasions.

[19] Similarly, the trial judge expressed “doubts” about certain aspects of the evidence of the incident on March 26, 2005 that she found “concerning”, such as the absence of any mention of the knife in the police report and the “embellished” account given by the respondents to Ilinca’s boyfriend’s father right after the incident. Having considered these concerns in the context of all the evidence, the trial judge accepted that the appellant threatened Ana with a knife but found that the appellant’s violence was “much less extreme than what the [respondents] described.”

[20] As these examples illustrate, the trial judge carefully considered the inconsistencies in the context of the evidence as a whole, with the “benefit of the intangible impact” of “watching and listening to [the] witnesses and attempting to reconcile” their evidence, and ultimately accepted aspects of the respondents’ evidence while rejecting others: G.F., at para. 81; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. I see no palpable and overriding error in the trial judge’s approach or conclusions.

[21] Second, the appellant asserts that the trial judge erred by failing to address concerns about the respondents’ reliability, focusing only on their credibility.

[22] I do not accept this submission. A trial judge’s determination to accept a witness’s evidence includes an implicit assessment of its accuracy or reliability. The trial judge is presumed to have correctly applied the law in accepting a witness’s evidence, including the relationship between credibility and reliability: G.F., at para. 82. Assessing reliability is “within the province of the trial judge” who has “the opportunity to hear and observe all of the witnesses”: R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 118, per Pepall J.A. (dissenting), aff’d 2020 SCC 36. If the trial judge was alive to reliability concerns, considered those concerns, and assessed the witness's reliability and credibility, the trial judge's assessment attracts deference: R. v. Sanichar, 2012 ONCA 117, 280 C.C.C. (3d) 500, at para. 82, per Laskin J.A. (dissenting), aff’d, 2013 SCC 4, [2013] 1 S.C.R. 54.

[23] Here, the trial judge was sensitive to the reliability concerns arising from the respondents’ evidence. She raised concerns about their ability to recall incidents that took place “when they were children or teenagers”, their “coloured” view of the appellant, their tendency to describe “emotional memor[ies]” reflecting an “amalgamation of events” rather than a specific incident, and to repeat “family folklore” consisting of reconstructed accounts of events that they did not recall clearly but had told themselves and others over many years. The trial judge observed that the respondents “may have confused the details of some incidents” because the appellant had been violent with them “many times”. When these concerns warranted, the trial judge rejected their evidence as “an example of how [they] may have reconstructed events to impute the [appellant] with more extreme and consistently abusive conduct than the evidence otherwise indicates.” She cautioned herself that, to find the appellant liable, she “must be persuaded that [the respondents’] evidence is based on genuine recollection as opposed to the memory of a memory, tailored over time to suit a certain narrative.”

[24] That the respondents did not remember certain particulars of the incidents or remembered certain particulars incorrectly did not oblige the trial judge to disregard their evidence or conclude that they were lying. She found that the respondents were “sincere” and were “honestly attempting to recall what happened to them.” It was open to her to not accept the respondents’ evidence about certain details because of her reliability concerns and to accept their evidence about other aspects. I see no error in the trial judge’s treatment of the reliability concerns arising from the evidence.

[25] Third, the appellant argues that the trial judge ignored credibility concerns about certain aspects of the respondents’ evidence, which he says undermined their evidence as a whole.

[26] I do not agree with this submission. As with the reliability concerns discussed above, the trial judge’s credibility concerns did not oblige her to reject all the respondents’ evidence. Even after raising credibility concerns about some aspects of their evidence, it was open to her to find them credible and reliable on other aspects. She was entitled to accept some, all, or none of their evidence: see R.E.M., at para. 65; R. v. N.K., 2021 ONCA 13, at para. 11; and R. v. A.K., 2018 ONCA 567, at para. 7.

[27] The trial judge’s reasons show that she considered the credibility concerns arising from the respondents’ evidence and rejected evidence that she did not find credible. She was entitled to assess the respondents’ credibility in light of all the evidence, including the appellant’s admissions of having physically punished the respondents twice. I see no reviewable error in the trial judge’s credibility findings.

[28] Finally, the appellant asserts that the trial judge reversed the burden of proof and applied uneven scrutiny to the evidence.

[29] I do not agree. The trial judge’s reasons show that she understood and applied the correct law on the burden and standard of proof. She is presumed to have applied the correct burden and standard, unless the appellant establishes reviewable error: see McDougall, at para. 54. In my view, the appellant has failed to do so.

Issue #2: Did the trial judge err in finding that the respondents had not proved that the appellant’s acts caused their psychiatric conditions?

[30] The respondents argue on cross-appeal that the trial judge made a palpable and overriding error by failing to draw a “common sense inference” that their psychiatric conditions were caused by the appellant’s abuse and improperly relying on the evidence of the appellant’s expert rather than on their expert’s evidence.

[31] I see no reviewable error in the trial judge’s causation analysis. Whether an inference of causation is warranted is within the trial judge’s discretion, to be determined with reference to all of the evidence: Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 52. Such an inference must be reasonably available on the evidence and involves a consideration of the factual issues underlying causation and the relative position of each party to adduce evidence: Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 36; Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at paras. 44-46.

[32] Here, both parties led expert evidence on causation. The respondents’ expert was equivocal. He testified that it was “plausible” that the respondents’ psychiatric conditions were caused by the appellant’s abuse. He acknowledged that the circumstances of the respondents’ mother’s death, of which he had been unaware when he formed his opinion, could also have triggered PTSD in the respondents. The trial judge found that this expert had limited experience in diagnosing PTSD and that his assessment was based on a review of the respondents’ records and a two-hour video conference with them. She therefore gave this expert’s evidence less weight.

[33] The trial judge preferred the evidence of the appellant’s expert because of her experience and training as a forensic psychiatrist, which the respondent’s expert lacked. The appellant’s expert testified that it was impossible to determine whether the respondents’ conditions were triggered by the appellant’s abuse, by their mother’s death, or by a biological predisposition.

[34] The trial judge, with the benefit of watching and hearing the witnesses, also noted that she was “struck … by how much Ilinca was visibly affected by memories of her mother’s death.” In her view, “this loss [had] as profound an effect on [Ilinca] as [the appellant’s] abuse.” She also noted that the respondents had exaggerated the extent of the appellant’s physical and emotional abuse in their interviews with both expert witnesses.

[35] The trial judge weighed the evidence of both experts, in view of all the other evidence before her, and preferred the evidence of the appellant’s expert. She declined to infer causation and concluded that the respondents had not proved that their psychiatric disorders were caused by the appellant’s actions. The trial judge’s weighing of the expert evidence attracts appellate deference: see Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, at paras. 66-68. I see no basis for this court to intervene.

Issue #3: Did the trial judge err in her assessment of damages?

[36] The appellant argues that the damages awarded are “inordinately high” compared to the awards in other domestic assault and battery cases.

[37] By contrast, the respondents argue that the damages awarded are “inordinately low”. They assert that their difficulties in life are attributable to the abuse they suffered at the hands of the appellant and ask this court to increase the quantum of general damages awarded to Ana from $35,000 to $100,000 and to Ilinca from $50,000 to $125,000.

[38] The respondents also argue that the trial judge erred in not awarding damages for their loss of competitive advantage, despite evidence that the abuse hurt their ability to pursue their chosen vocations and work in competitive environments. The respondents seek $300,000 each for their loss of competitive advantage.

[39] An appellate court can interfere with a damages award only if the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or made a wholly erroneous assessment of damages: Armstrong v. Moore, 2020 ONCA 49, 15 R.P.R. (6th) 200, at para. 30.

[40] In my view, neither the appellant nor the respondents meet the exacting standard for appellate intervention. The case law and evidence now relied on by the parties were canvassed and considered by the trial judge in her reasons. The trial judge considered that the appellant’s violence did not result in permanent physical injury to the respondents, while also recognizing the seriousness of the “emotional and psychological scars” that the respondents “will bear their entire lives.” She acknowledged that the respondents had suffered “pain and fear that a child should never experience, much less at a father’s hands.” She also considered the evidence of the impact of the abuse on the respondents, including their social, educational, employment, and health history and current situation. The trial judge considered and weighed all the relevant evidence and came to her own determination of the appropriate damages. I see no basis for this court to intervene.

[41] I similarly see no basis to reverse the trial judge’s finding that the respondents are not entitled to damages for loss of competitive advantage. There is no dispute that the trial judge correctly articulated the criteria for such an award. She found, however, that the respondents failed to meet the applicable criteria. She found that “[t]here is no evidence that [the respondents] have been less able to get or keep a job, or have lost out on employment opportunities, as a result of the psychological and emotional impact of their experiences with [the appellant].” Those findings were available to the trial judge on the record before the court. I again see no basis for this court to intervene.

Disposition

[42] I would dismiss the appeal and the cross-appeal. Given the divided success, I would make no order as to costs.

Released: August 5, 2021 “M.T.” “M. Jamal J.A.” “I agree. M. Tulloch J.A.” “I agree. I.V.B. Nordheimer J.A.”