COURT FILE NO.: CV-11-426002 DATE: 20160603 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

WIESLAWA SOCZEK Plaintiff – and – JAN SOCZEK and ALLSTATE INSURANCE COMPANY OF CANADA Defendants

Counsel: Ari J. Singer, for the Plaintiff No one appearing for the Defendants

HEARD: March 7, 2016

M. D. FAIETA j.

REASONS FOR DECISION

INTRODUCTION

1The Defendant, Jan Soczek, attempted to murder his wife, the Plaintiff, Wieslawa Soczek, in the basement of their home. He pled guilty to attempted murder and was sentenced to imprisonment for 11 years.

2The Plaintiff brings this motion for default judgment against the Defendant Jan Soczek for damages arising from extensive injuries that she suffered as a result of the Defendant’s actions. The Plaintiff’s action against the Defendant Allstate Insurance Company of Canada for payment of the cost of repairing the fire damage to her home is pending.

3For the reasons described below I have awarded the Plaintiff damages in the amount of $1,127,730.83 against the Defendant Jan Soczek.

BACKGROUND

4The Plaintiff is 58 years old. She married the Defendant in 1979. They have two adult children.

5The circumstances surrounding this assault were described by the Plaintiff as follows:

On May 30, 2010, my husband … sprayed a flammable liquid over my body, and set my body on fire using a lighter and then stabbed me in the chest with a knife as I was trying to escape. I was unable to run up the stairs and escape from the house. My neighbour Gini found me outside and helped me.

The fire from my body spread throughout our home and caused over $265,000.00 in damage to the property (estimate conducted by Allstate Insurance). The estimate was done while I was in a coma.

Jan Soczek was charged with attempted murder for his violent actions against me. He pled guilty and was sent to jail for 11 years. …

In the months leading up to the fire, my husband had become paranoid that I was having an affair with [W]. He experienced significant mood swings in his feelings toward me; one day he would be angry with me, based on his belief I was having an affair, and the next day he would buy me flowers. …

I did not have an affair with [W] or anyone else. …

At night, Jan would place tape on the doors to make sure I was not sneaking out. His concerns were unfounded, as I had never attempted to sneak out of the house.

6The Plaintiff described her resulting injuries as follows:

As a result of the fire, I sustained significant injuries and have undergone numerous surgeries and procedures including the following:

a. Third degree burns to 37% of my body including face, chest, hands, fingers, lips, head, arms, ears, shoulders, upper back, neck and nose;

b. I was in a coma for 9 weeks;

c. Grade 3 inhalational injury requiring a left chest tube tracheotomy;

d. Burn to my scalp causing scarring and loss of hair;

e. Burns to my eyes causing vision damage;

f. Loss of part of my right ear and significant loss of hearing in the right ear;

g. Over 30 surgeries, debridement and skin graft surgeries and plastic surgeries, including a right lower ear lobe reconstruction, right and left neck reconstruction and left hand webspace reconstruction. I was informed by the doctor that I need more surgeries;

h. Depression, anxiety, nightmares, stress, constant fear, a deep sense of loss and social anxiety; and

i. Physiotherapy, massage therapy, occupational therapy, psychological therapy.

Despite the significant medical procedures, I remain disfigured and permanently scarred. I have been advised that my scars will not significantly improve in appearance over time.

7The Defendant has not defended this action. The Plaintiff brings this motion for default judgment. This motion was adjourned on March 7, 2016 in order to provide the Plaintiff with an opportunity to provide further evidence and submissions which she did by letter dated May 19, 2016.

ANALYSIS

8I agree with the following statement of principles that apply on a motion for default judgment under Rule 19.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

… [A] judge on a motion for judgment is not obliged to accept the truth of pleaded facts that are inconsistent with the plaintiff’s evidence tendered on the motion and the judge is entitled to consider whether those additional facts show that the plaintiff is not entitled to judgment.

If the claim is for unliquidated damages, the motion for judgment must be supported by the evidence given by affidavit. It is our view that an affidavit with adequate information to provide the amount of the damages should be provided for all types of claim to persuade the court to grant judgment rather than, for instance, ordering that the action proceed to trial where the court’s questions could be answered by oral evidence. The motion material should also include a copy of the Statement of Claim to ensure that this key document is made part of the record for the motion.

9On this motion for default judgment, the Plaintiff seeks damages for pain and suffering and loss of enjoyment of life, aggravated damages, punitive damages, damages for past and future loss of income and damages for past and future care costs.

Pain and Suffering and Loss of Enjoyment of Life

10The Plaintiff was treated at Sunnybrook Health Science Centre from May 31, 2010 to July 26, 2010. The Discharge Summary, dated August 7, 2010, written by Dr. S. Al-Hashmi for Dr. M. Jeschke, states:

Final Diagnosis:

Flame burn to the face, head, bilateral arms and upper chest, 37% total body surface area.

Grade 3 inhalation injury.

Stab wound to the left chest.

This patent … came in intubated and ventilated.

On arrival to Sunnybrook Emergency Department she was assessed by the trauma team and she required placement of 2 chest tubes on the left side of the chest.

During her admission to the Ross Tilley Burn Unit she required multiple surgical interventions in the form of debridement of the burn wounds and skin grafting.

On arrival to the Ross Tilley Burn Unit she underwent escharotomies to bilateral arms, shoulders and digits on both hands. Her hospital stay was complicated by ventilator associated pneumonia (VAP) treated with appropriate antibiotic.

She required a percutaneous tracheostomy which was performed on June 18, 2010, which later was decannulated on July 7, 2010.

Throughout her hospital stay she was seen regularly by the physiotherapist and occupational therapist, as well as the social worker of the unit.

She was discharged today to the St. John’s Rehabilitation Center where she will …undergo further rehabilitation. …

11A Discharge Summary report from St. John’s Rehab Hospital, dated August 27, 2010, states:

She has progressed steadily, and is eating pureed foods and regular liquids, ambulates now independently. She has developed heterotropic ossification in the elbows, worse on the left than on the right. She has been fitted for pressure garments. She is wearing a neck orthosis, Isotoner gloves and Tubigrips for her arms.

She has healing burns over her head and face and neck. She has significant microstomia. There are open areas scattered over the top [of] her scalp and ears, and she has some hypertrophic scarring on her chin and the left oral commissure. She has extensive contractures over the anterior and posterior neck. She is able to almost flex fully to the chest, but has limited extension and about 25% lateral rotation of the neck. Shoulders abduct to about 60 degrees bilaterally. The scars over her anterior, posterior chest are well-healed, as are most of the scars over her entire arms and hands. She has a few scattered open areas over the arms. Elbow flexion on the left is about 130, and 130 on the right; extension -12 on the left and -20 on the right. Wrist flexion is about 50 bilaterally and 60 extension bilaterally. She has reasonable grip in the hands, and is able to oppose to D3 or D4 bilaterally. Donor sites over the trunk and legs are well healed. …

12Further surgery was undertaken on August 27, 2010. A Discharge Summary, dated September 2, 2010, written by Dr. M. McRae, describes a further operation:

It was noted [during her stay at St. John’s Rehabilitation Hospital] that she had a significant neck contracture and she was brought in for neck contracture release to Sunnybrook Health Sciences Centre on August 26, 2010. Her actual operation occurred on August 27, 2010 and involved a neck release as well as sheet split-thickness skin graft to her neck and a rotation flap on her scalp for improvement of her alopecia.

Postoperative course was uneventful and she was discharged back to St. John’s Rehabilitation Hospital on August 31, 2010. In terms of dressing orders for when she goes back to St. John’s, her scalp rotation flap only requires Polysporin dressing daily and her split-thickness skin graft to her neck requires Jelonet dressings changed daily. She is also required to wear a collar on her neck to prevent further contracture from occurring. She has Allevyn on her right thigh.

She is to return to clinic to see us on September 9, 2010 in the clinic of Dr. Jeschke for followup. Also, at that time, her stitches will be removed from her scalp. Otherwise, her medication regimen was unchanged for which she was sent from St. John’s Rehabilitation Hospital.

13After the above surgery the Plaintiff was admitted to St. John’s Rehab Hospital on August 31, 2010 for about two weeks. A Discharge Summary report dated September 10, 2010 states:

The patient was maintained with her neck orthoses, during her stay in the hospital. We followed strict guidelines recommended by the Burn Unit, in terms of scar management, and they reviewed the patient, after about a week’s time. They were pleased with her progress, and allowed her to wean her neck orthoses several times daily, and to use aggressive physiotherapy.

We were able to organize outpatient physiotherapy in the community close to home. …

14Dr. Conor Turley, of the Credit Valley Hospital, saw the Plaintiff on October 25, 2010. His Consultation Report, dated January 20, 2011, states:

This 53 year old lady has been treated over the last year at the Burns Unit at Sunnybrook Hospital for very extensive burns, many of them full thickness to deep dermal about her head and neck, anterior chest and both upper arms. She is currently fully healed. She does need to commence however a program of pressure garment management for both upper limbs, neck and chest areas. She has been referred to the occupational therapy here at Credit Valley Hospital for management of these issues. She will be followed by the physicians at the Sunnybrook Burns Unit in this respect.

15A Clinic Note dated November 25, 2010 by Dr. Marc Jeschke, Director, Ross Tilley Burn Centre, Sunnybrook Health Sciences Centre, states:

Findings: Her mouth is very much improved and her facial redness is decreasing. She cannot wear a clear mask due to claustrophobia. She has garments which are fine. She has a contraction under her right ear lobe reaching down her neck, as well as her left ear lobe reaching down the neck which is impairing her rotation of her head. She furthermore has an excellent cosmetic result of the alopecia of the rotational flap we conducted on the scalp. There is still a big area with alopecia and the downside is that the mobility of the tissue is not sufficient to conduct another rotational fla[p] at this time. Furthermore her scars are still aggressive and red.

Plan: Adjust pressure garments, massage the head 6-7 times per day as well as the neck and face with some lotion. Do vigorous OT and make sure that the patient is in an anabolic state with good massaging and mobility so they may plan for surgery. …

16A Clinic Note dated December 16, 2010 by Dr. Jeschke states:

Findings: She is following up due to various issues, however the remaining main issues are alopecia as well as a neck contracture on her right and a contracture under her left ear lobe. She also has webspace contractures 1, 2 and 3 on her left hand. Having these multiple contractures are impairing her quality of life and we find the indication for surgery.

Plan: We are planning for surgery on Monday December 20th depending on our volume. We will call the patient for admission on Sunday December 19th and she will report to the RTBC and complete surgery on Monday (if possible). A nicotine patch was prescribed to seize smoking. We will report after her surgery.

17A Clinic Note dated December 30, 2010, prepared by Dr. Jeschke, states:

Findings: Flaps are 100% viable. No infection, no contamination. The only finding is on the right donor area of the flap in the neck is minor opening of ½ centimeter. Otherwise, everything is intact with almost full mobility.

Plan: Shower daily (use shampoo and also clean the open areas) as well as use polysporin on the flaps. She may commence OT/PT and she will follow up January 6, 2010.

18A Clinic Note dated January 6, 2011 [incorrectly dated 2010], prepared by Dr. Jeschke, states:

Findings: All flaps are viable and excellent. There is only a minor open area on her right neck. However it is not infected and there is no contamination. The patient is doing well and eating.

Plan: Removal of all sutures, shower daily, apply ploy to open, full ROM OT therapy, a protein enriched diet and for her to wear her face mask, wear the garments and follow up in 4 weeks.

19A report prepared by a psychiatrist, Dr. Tahany Banoub, dated August 19, 2011, states:

…She demonstrated depressed affect and she described her mood to be up and down. She was tearful often in the interview however, it was appropriate to the content. There was no evidence of psychotic symptoms or formal thought abnormalities. She could not tell if there were flashbacks however, the medication helped her not to think a lot about what happened. She still has nightmares. She still has problems with her sleep. …

…She is slowly able to reintegrate in the community yet the financial stressor seems to be the most important thing for her at this time and could put her at risk for relapse of her depressive episode. She definitely has Major Depressive Episode however, not sure as the symptoms are not clear for post-traumatic stress disorder possibly she has improved by the medication. There is significant chance of worthlessness and helplessness and hopelessness that still exists in her presentation and her thought content that could perpetuate a lot of the symptoms of depression and recurrence. …

…she is taking Symbalta 60 mg two tabs daily and Seroquel XR 50 daily. I believe this is quite an appropriate combination of medication that seemed to have helped significantly with her symptoms and therefore, I would continue with the Symbalta. …

20An eDischarge Summary from the Sunnybrook Health Sciences Centre, written on or about November 12, 2014, states:

Course in Hospital: On November 12, Mrs. Soczek had surgery for release of right neck contracture as well as exision of alopecia on scalp with advancement flap. She tolerated the procedure well and had no complications. She required very little for pain medications postoperatively.

Overnight her oxygen sats remained around 90% on RA. She was put on nasal prongs. She has a history of having a flu/URTI in the previous week, and subsequently has a bad cough. …

Interventions: November 12/2014 (Dr. Jeschke): 1) excision of alopecia with local advancement flap; 2) release of neck contracture with Z plasty x 2 …

21Two handwritten notes, dated March 15, 2016, by Dr. Sophia Leung state:

Subsequent to her extensive burn, the [Plaintiff] has contractures and scarring requiring numerous operations. Further operation is also planned for her scalp. She has persistent pain and limitation of movements. She is not able to return [to] work.

Contractures and scarring from extensive burn and subsequent operations. Please give appointment for massage and physiotherapy.

22A letter dated May 26, 2016 from Dr. Sophia Leung states:

Subsequent to the extensive burn she sustained to her face and body, the above has contractures and scarring requiring numerous reconstructive surgeries.

She has facial disfiguration and extensive hair loss of the scalp and further operations are being planned. Because of the future operations, patient has to endure repeated sufferings and do rehab treatments, she will need physiotherapy and massage therapy for the rest of her life.

She has persistent pain and limitation of movements. The severe trauma has affected her both physically and emotionally. She will never be able to work again in any capacity.

23The Plaintiff submits that the inflated adjusted upper limit for non-pecuniary damages is $362,000.00. The Plaintiff submits that the plaintiff should be awarded general damages “at the highest end of the spectrum” given that her extensive suffering resulted from the physical and emotional injuries that she suffered as well as the financial impact on her life. Further, as noted below, the Plaintiff is unable to return to work.

24I award the Plaintiff the sum of $225,000.00 for pain and suffering and loss of enjoyment of life.

Past and Future Care Costs

25As noted above, both the Plaintiff’s family doctor as well as her treating physicians recommended physiotherapy and massage treatment.

26A report dated March 28, 2016 from Sreekanth Akula, a Registered Physiotherapist, describes the Plaintiff’s symptoms and physiotherapy treatment provided as follows:

Ms. Soczek arrived at our clinic on September 13, 2010 for a physiotherapy assessment for post-surgical rehabilitation. … She reported suffering from neck pain, mid-back pain, bilateral shoulder and elbow pain. Notes from this initial physiotherapy assessment … mentioned that the right elbow extension was restricted to -30% and wrist movement was restricted to ¾ of normal active range of motion. She also stated that her skin grafts were still in the process of healing. She reported being in good health before the accident and reported having no prior neck or upper/mid back problems.

Physiotherapy treatment has mainly consisted of exercises, manual therapy/stretching, upper cervical mobilizations and pain-relieving electrotherapy if needed. She has participated in an active stretching and strengthening program including core strengthening with a theraball. We continued to mobilize the upper extremities and treat her neck pain. Irritation in these areas has continued to recede and flare up at different times, but has never fully gone away. In addition to physiotherapy, she had also sought treatment from a massage therapist.

27A physical examination by Mr. Akula found that active mobility of the Plaintiff’s cervical spine, thoracic spine, right shoulder, left shoulder, both wrists and elbows was moderately limited as she generally experienced moderate pain in a 51-70% range of motion. The following recommendation was provided:

The scarring on her scalp, neck, thorax and upper extremities may heal completely one day, however this client will most definitely be left with permanent physical restrictions. Most notably, her right thumb may never recover full mobility. Functionally, I believe that she will continue to have ongoing tightness of fascia and contractures in her upper quadrant that may require ongoing treatment to alleviate tightness. This ongoing therapy could be physiotherapy, massage therapy or osteopathic treatment, depending on what [the Plaintiff] finds most helpful. In addition, it would be wise of this client to continue with an ongoing exercise routine to decrease tightness in her upper quadrant.

Given the above findings, it is recommended that Ms. Soczek continues with a comprehensive physiotherapy program at a frequency of 2 times a week for a period of 20-25 weeks. Her program will consist of manual therapy/soft tissue techniques, stretching exercises and strengthening exercises. Six years after her accident this client remains with a restriction of mobility around her neck, mid-back, bilateral shoulders, elbows, wrists and hands due to accumulated scar tissue. These limitations negatively affect her ability to function. …

28The estimated cost of this future physiotherapy treatment is $5,427.50.

29A report dated April 6, 2016 from Tom Myszkowski, Registered Massage Therapist, states:

I have been treating [the Plaintiff] as a massage therapist since January 2011. During this time, I have worked extensively on releasing scar tissue that has been formed as a result of her injuries.

I have read the report that Sree Akula, PT has written with regards to her treatment and ongoing therapy. My own observations are consistent with the findings that he has outlined in his report. She continues to have restrictions due to scar tissue and adhesions after her burns and skin graft surgery.

There are two reasons why massage therapy can continue to be beneficial for this patient. She will undoubtedly have permanent restrictions because of her injuries, but massage therapy can help her maintain her current level of mobility around her face, neck and arms. In addition to this, if she requires any further surgical release of scar tissue, she may need massage therapy to assist in her recovery from the procedure.

I recommend … 30 [massage] sessions @ one session /week … [at a] total cost of … $2,250.00.

30I award the Plaintiff the sum of $61,362.83 for physiotherapy and massage costs that she has incurred as a result of her injuries. I also award the sums of $5,427.50 and $2,250 for future physiotherapy and massage costs, respectively.

Past and Future Loss of Income

31The Plaintiff states:

Prior to the Fire, I worked for Gates Canada from 1987 to 2010 (I worked up until 2 days prior to the incident). Unfortunately due to a company re-organization, I was moved to a contract position, which limited my benefits up to December 2010 that would assist me. I was not able to go back to work because of my health condition after the incident. After December 2010, when my contract was expiring, due to my condition I was still not able to go back to work which resulted in the loss of my job and benefits. I have received some assistance through Jan’s employee benefits insurer, Manulife, for a limited time, and I have been relying on the help of my brother Mark Chrzanowski, family and some friends. …

Due to my physical and psychological trauma, I have been unable to work or earn an income. I’ve been living on Canada Pension Plan payments and the help of others. Prior to the Fire, I was working a full time job, earning $19.87 per hour. I will never be able to work again. [Emphasis added.]

32The hearing of this motion on March 7, 2016 was adjourned so that the Plaintiff could provide additional medical evidence to support her future loss and future care claims.

33As noted earlier, a letter dated May 26, 2016 from Dr. Sophia Leung states that the Plaintiff “… will never be able to work again in any capacity.”

34At the time that she was injured, the Plaintiff was employed full-time and earned $19.87 per hour. The Plaintiff claims $38,746.50 per year on the basis of a 37.5 hour work week. I accept this evidence and award $232,479.00 for loss of income over the last six years from the time of this assault. As noted above, Dr. Leung stated on March 15, 2016 that the Plaintiff will never be able to work again in any capacity. Accordingly, I award damages for future loss of income until the Plaintiff is 70 years old in the amount of $426,211.50.

Aggravated Damages

35Aggravated damages may be awarded where a battery has occurred in humiliating or undignified circumstances. These damages serve to take into account any aggravating features of the case and to that extent increase the amount awarded for general damages. Norberg v. Wynrib, [1992] 2 S.C.R. 226, para. 53.

36The attempted murder of the Plaintiff was particularly humiliating and undignified given its circumstances, including the fact that this horrible act of violence was committed by her spouse.

37I award aggravated damages in the amount of $100,000.00.

Punitive Damages

38In Fleury v. Fleury, [2001] O.J. No. 1720, the Ontario Court of Appeal held, at para. 11, that “[w]here tortious acts have already been sanctioned by the imposition of a criminal sentence, it is inappropriate to award punitive damages in a civil lawsuit”.

39A more flexible approach was subsequently taken by the Supreme Court of Canada in de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] S.C.J. No. 51. In de Montigny, the Supreme Court of Canada stated that the objectives of punitive damages go beyond punishment and deterrence. They also include denunciation being the means by which the trier of fact expresses its outrage at the egregious conduct of the defendant. Each objective, in itself, can justify an award of punitive damages.

40At para. 54 the Court stated:

… care must be taken not to give exemplary damages a subsidiary criminal justice role. The fact that Martin Brossard cannot be punished for his actions by the criminal justice system is not a determining factor in the analysis. The existence of a prior criminal conviction is, at most, one of the factors to be considered in determining the quantum of exemplary damages, as explained by the Ontario Law Reform Commission in a report on such damages:

... it would be incorrect to view punitive damages as a systematic response to the shortcomings of criminal law. The law of punitive damages is applicable to a limited range of criminal conduct only, and it is applicable only in a limited way. The limits are not always consistent with a general theory of tort as a supplement to criminal law. The law of punitive damages intrudes not on to the general criminal law, but only on to its exceptionally objectionable breaches. It is a requirement for punitive damages not only that the defendant commit a tort advertedly, but that the conduct be exceptional. Moreover, punitive damages are not an inducement to the general citizenry to enforce the criminal law for profit. The claim may be brought only by the victim of a tort, and damages may be awarded only in reference to the conduct that affected the victim.

(Ontario Law Reform Commission, Report on Exemplary Damages, 1991, p. 32-33)

In short, while "punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment)" (Whiten, at para. 36), it must be borne in mind that each of these systems has its own role to play. One should not be substituted for the other where one of them is unable to perform its specific role, as in this case.

[Emphasis added.]

41In light of the objectives of an award of punitive damages, and in particular the objective of denunciation, I award the Plaintiff the sum of $75,000.00 in punitive damages. The Defendant attempted to murder his spouse in horrific circumstances with equally horrific consequences for the Plaintiff as summarized in paragraphs 5, 6 and 22 above. In making this award I have also taken into consideration that the Defendant was sentenced to imprisonment for 11 years for the attempted murder of the Plaintiff.

CONCLUSIONS

42For the reasons given above, I have granted judgment in the amount of $1,127,730.83 plus costs against the Defendant Jan Soczek.

The Plaintiff claims costs in the amount of $71,190.00, including HST of $8,190.00, on a full indemnity basis plus disbursements of “approximately $11,500.00”. An outline of costs was not provided. However, counsel did state that Mr. Kwinter spent 60 hours at $750 per hour, Mr. Singer spent 40 hours at $350.00 per hour, and their law clerk spent 20 hours at $200 per hour. This represents an extraordinary amount of time for what appears to have been, based on a review of the motion record and other materials filed, relatively little work. Further, an award of costs on a full indemnity basis is not justified having regard to the considerations for an award of costs under the Courts of Justice Act, R.S.O. 1990, c C.43 and the Rules of Civil Procedure. Counsel for the Plaintiff provided no authority or analysis of the relevant considerations to support his bald assertion that full indemnity costs were justified. This action was undefended. In my view it is fair and reasonable to award the Plaintiff the sum of $30,000.00 for her costs of this action inclusive of disbursements and taxes.