Court File and Parties

COURT FILE NO.: 17-61356 DATE: 2019-03-26 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

L.R. AND D.Z. Plaintiffs

A. Wynperle, for the Plaintiffs

• and -

S.P. Defendant

No one appearing for the Defendant

HEARD: February 22, 2019

A. J. Goodman J. :

REASONS FOR JUDGMENT

[1] This action relates to historical sexual assaults perpetrated on the plaintiffs’ L.R. (“L.”) and D.Z., (“D.”) by their defendant father, S.P. (“P.”).

[2] The defendant was noted in default and this matter proceeded on an uncontested basis as a trial of an issue related to damages.

Background

[3] In their Statement of Claim each of the plaintiffs claim: General damages in the sum of $500,000.00; special damages of $750,000.00; emotional distress of $100,000.00; damages for economic loss; punitive, exemplary and aggravated damages in the sum of $500,000.00; pre-judgment interest and other relief.

[4] L. resides in Waterdown with her husband and family. Her sister D. lives in the City of Hamilton with her family. S.P. is serving a sentence in a federal penitentiary.

Position of the Plaintiffs

[5] As a result of numerous sexual assaults and abuses when they were children, L. and D. claim that they have each sustained serious psychological, emotional and physical injuries. The sexual assaults and other abuses perpetrated upon the plaintiffs occurred as a result of the negligent and intentional acts of their father.

[6] L. and D. state that the sexual assaults by their father were a breach of trust. The plaintiffs’ plead that the circumstances of the abuse caused them to develop certain psychological mechanisms in order to survive the trauma of assault. These mechanisms include, but are not limited to denial, self-blame, repression, disassociation and guilt.

Facts

[7] During the plaintiffs’ childhood, they resided in Waterdown, with their parents. At all material times during the ongoing abuse, L. and D. were in the care and custody of the defendant.

[8] At various times between the years 1972 and 1980, the defendant repeatedly sexually abused L. and D. in their family home.

[9] On June 30, 2016, S.P. was convicted of indecent/sexual assault and other related offences against both plaintiffs. For those crimes, he was sentenced to a global term of 10 years in jail less one and a half years credit for pre-sentence custody. A certificate of conviction from the Ontario Court of Justice was tendered as an exhibit. It is abundantly clear that the defendant committed repetitive egregious, and appalling assaults of a sexual nature against his daughters.

Analysis

[10] This matter was heard as an uncontested trial.

[11] I accept the plaintiffs’ evidence without reservation. While the defendant is in default, and did not make any representations, it is still incumbent on me to assess the scope and quantum of damages to be awarded.

General damages

[12] The plaintiffs are entitled to "fair and reasonable" compensation for the non-pecuniary damages that they sustained and will continue to suffer as a result of the defendant's abuse. Generally, these are set out in one amount encompassing all non-pecuniary damages: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at pp. 261-264.

[13] The assessment of such non-pecuniary losses is functional; to provide a degree of satisfaction or remediation, instead of making an attempt to put a money value on the loss: B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120, [2007] N.S.J. No. 506 (C.A.), at paras. 120-126.

[14] In the context of intangible claims for sexual assault and abuse, “this functional approach takes account of the capacity of the award to provide solace for the victim, to vindicate the victim's physical autonomy and dignity and, through an award of aggravated damages, to take account of the humiliating and degrading nature of the defendant's conduct". This is in addition to "pain, suffering and the loss of enjoyment of life" flowing from the sexual assault: B.M.G., at paras 127 and 135.

[15] “A sexual assault is very different from other assaults". It is more than a simple act of violence; "it is an assault upon human dignity": R. v. Osolin, [1993] 4 S.C.R. 595, at para. 165.

[16] The assessment of damages inherently is a fact-specific exercise, but a non-exhaustive list of factors may be considered, including the following: The relationship between the parties; the circumstances of the victim at the time of the events, age, status and vulnerability; the nature and scope of the assaults, including their number, frequency, duration and how violent, invasive and degrading they were; the circumstances of the defendant, including age and whether he or she was in a position of trust, and; the consequences for the particular victim of the wrongful acts, including ongoing physical, or psychological injuries.

[17] Indeed, it seems that the effect upon or consequences to the particular victim is by far the most important factor that a court must consider: C. (J.C.) v. Keats, [1995] 8 W.W.R. 570 (Sask.Q.B.), M.A. v. Canada, [2001] S.J. No. 686 (Q.B.), aff’d. [2003] S.J. No. 28 (C.A.).

[18] L. testified that the abuse commenced in early 1978, when she was 13 years old. From hugging and kissing, it progressed to inappropriate sexual touching and sexual intercourse. This continued for about 18 months to the summer of 1979, and there were roughly 20 to 50 incidents of abuse.

[19] D. testified that the abuse started when she was inappropriately touched by her father while she was in grade one or two. When the family moved to Waterdown in 1974-1975, D. was eight years old and the abuse continued with repeated acts of sexual intercourse. The abuse continued over 10 times a year with threats of violence directed at this victim. When D. was 13 years old, she became pregnant due to the incestuous acts of her father.

[20] Clearly, both plaintiffs were at a young age and vulnerable. The abuse occurred repeatedly in the sanctity of the home. Not only was D. impregnated by her father, she had to be flown to New York for an abortion at age 13. The invasive and repeated despicable nature of the sexual abuse was heightened by the fact that it was their father.

[21] Various courts recognize the inherent difficulty of assessing non-pecuniary damages in cases of sexual abuse. For example, in S.Y. v. F.C.G., [1996] B.C.J. No. 1596 (C.A.), at para. 55, the court stated:

What is fair and reasonable compensation for general damages, including aggravated damages, in [such a] case is not easy to say. This is an evolving area of the law. We are just beginning to understand the horrendous impacts of sexual abuse. To assess damages for psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water. The possible consequences of such abuse presently are not capable of critical measurement.

[22] In Swales v. Glendinning, [2004] O.J. No. 285, at para. 263, Kerr J. reviewed the jurisprudence and determined that the range for non-pecuniary damages in these types of cases is between $125,000 and $250,000.

[23] This action clearly involves circumstances where the defendant's misconduct and his extraordinary breach of trust in particular, should be regarded as high-handed and oppressive, thereby increasing the plaintiff's humiliation, anxiety and grief.

[24] In my view, the acts of sexual abuse and incest perpetrated on D. with threats of violence were most severe and egregious. Given all of the evidence, damages for such repeated and appalling acts by a father against his young daughter in the circumstances of this case must give rise to the highest end of the range for the non-pecuniary general damages.

[25] With respect to L., the acts committed by her father against her cannot be condoned. However, (and without intending to be unsympathetic), if I were to qualify the degree of severity of the abuse in relation to her evidence; the claim - while fully substantiated – is factually distinguishable and does not rise to the same level and degree of that endured, perpetrated and suffered by her sister. [1]

Emotional distress

[26] Section 3(1) of the Victims’ Bill of Rights 1995, S.O. 1995, c. 6 provides that a person convicted of a prescribed crime is liable in damages for emotional distress arising from the commission of the crime. Subsection 2 provides for the presumption of having suffered emotional distress.

[27] In H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, the plaintiff brought an action for sexual battery against a government worker and the federal government for acts that occurred 20 years earlier when the plaintiff was 14 years old. The defendant, who worked on a reserve for the federal government, sexually abused the plaintiff on two occasions. The plaintiff and two expert witnesses provided evidence. The trial judge was satisfied that the plaintiff’s poor employment record was attributable to his alcoholism, emotional difficulties, and criminality, which were in turn attributable to the sexual abuse suffered. The trial judge awarded $60,000 in non-pecuniary damages for losses and injuries, including emotional distress.

[28] In the undefended action in Wilcox v. Mattie, [2001] O.J. No. 4618 (S.C.), while between the ages of 4 and 11 years old, the plaintiff’s step-grandfather sexually assaulted her on numerous occasions. The defendant was found guilty of two counts of sexual assault, one count each of bestiality, sexual interference, and uttering threats. Expert evidence noted that the plaintiff suffered from post-traumatic stress disorder with a co-morbid diagnosis of dysthymic disorder with recurrent episodes of major depression and general anxiety disorder. In assessing damages and accounting for the traumatic emotional effects of the assaults, Day J. awarded $200,000.00 in general damages for assault and breach of fiduciary relationship and $36,000.00 in special damages for treatment which included individual therapy, group work, and vocational counselling.

[29] L. and D. plead that the conduct of the defendant was disgraceful, repugnant and reprehensible. It exhibited a callous disregard and complete lack of care of the plaintiffs, and a serious breach of trust.

[30] Both L. and D. claim that as a result of the negligence and breach of fiduciary and non-delegable duty of the defendant, and the physical, sexual; psychological, and emotional abuses perpetrated upon her by the defendant, each of them has suffered serious personal injuries, including but not limited to: an inability to undergo a normal and proper peer development; an inability to undergo normal sexual development; damaged relationship with her family; psychological injuries; mental health issues; an inability to trust or believe in other people; impaired ability to develop or maintain intimate relationships or friendships; anxiety; guilt; shame; fear; stress; confusion; flashbacks; educational difficulties; depression; sleep difficulties; deprived of the opportunity to realize her full potential; poor sense of self; decreased self-esteem; sexual dysfunction; difficulty coping with parental responsibilities; feelings of social isolation; self-loathing; and loneliness.

[31] There is absolutely no doubt in my mind that both plaintiffs endured egregious and continual assaults by their father during their childhood. Their innocence and youth was destroyed. Nothing can take away from that fact. However, it is not a matter of just rubber stamping a claim for damages in a default judgment. Evidence must be provided.

[32] L. testified about her education and profession or employment. It appears that she was very successful in all aspects of her personal and family life. She did not engage in any therapy, counselling or other treatment programs as a result of the abuse she sustained as a child.

[33] D. testified that the abuse caused her to be scared, anxious and suffer from nightmares. She was “stripped of her childhood”. She has difficulty trusting men. As I understand her evidence, she participated in some limited counselling sessions in 2014 at McMaster as a result of or related to the criminal prosecution. Little or no details were provided during the course of her testimony.

[34] It is not my intention to address each of the claims, as overall, the evidence falls well short of the mark. In fact, for many of the claims listed in the Statement of Claim and advanced at trial, the evidence is all but non-existent.

[35] While not mandatory, I have no expert opinion or any other medical, therapeutic or any counselling evidence. L. did not seek or participate in any in any counselling or other therapeutic sessions; and neither did D., except as provided to her during the course of or as a result of the Victim Witness Program during the criminal prosecution -then again, it was of limited scope and duration.

[36] It appears that the consequences of the defendant's abuse have not resulted in demonstrable, profound psychological impacts on the plaintiffs’ personal, family and working life. It cannot be said that they have been deprived of any sense of normality that they otherwise might have enjoyed.

[37] The plaintiffs’ claim that as a result of the sexual, emotional and psychological abuses suffered, they have sustained, and will continue to suffer from pain and suffering, and loss of enjoyment of life or normal routine pleasures. Again, there is little or no evidence. To their credit, both plaintiffs have families and have raised children, engaged in various careers or occupations. Their testimony, on its own, does not enhance or sustain these claims.

[38] In the claim, the plaintiffs’ also state that they had to seek ongoing psychological and medical treatments from health care providers, the details of which will be provided by counsel. Not one scintilla of information or such details were provided during this trial.

[39] The plaintiffs’ also claim that as a result of these sexual assaults, they have incurred and will continue to incur out-of-pocket expenses, the details of which were pleaded to be unavailable at the time of the claim, but will be provided prior to or at the time of the trial. Again, no such evidence was provided.

[40] Intuitively, it does not take much to imagine how the nature of the acts themselves may have affected both plaintiffs. Notwithstanding the lack of evidence, I am prepared, however, to award some damages for emotional distress premised on the presumption contained in the aforementioned sections of the Victims’ Bill of Rights, 1995. No doubt, I would have awarded a higher amount if further, cogent evidence had been adduced.

Economic loss

[41] In their Statement of Claim, the plaintiffs’ allege that as a result of these assaults and abuses, L. and D. have suffered from concentration and psychological difficulties, which have resulted in income losses, and a loss of earning capacity, the details of which will be provided by counsel prior to or at the time of the trial of this action.

[42] At trial, Mr. Wynperle abandoned any such claim in respect of L..

[43] Simply put, a plaintiff must first prove that there was a loss, and second, that the loss was caused by the tortfeasor’s conduct: John Doe (G.E.B. #25) v. The Roman Catholic Episcopal Corporation of St. John’s, 2018 NLSC 60, at para. 510.

[44] A plaintiff must prove past pecuniary loss on a balance of probabilities: Basndra v. Sforza, 2016 ONCA 251, at para. 24. Hypothetical or future events need not be proven on a balance of probabilities but are given weight according to their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 27.

[45] Future income loss can be proven on the basis of a real and substantial possibility or risk. Future compensation depends, in part, on the degree of risk of loss that is established and the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to her or him had not occurred: Graham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.), at para. 643; and Athey, at para. 27. A future possibility, therefore, will be taken into consideration if it is a real and substantial possibility and not mere speculation.

[46] Indeed, these types of cases pose significant difficulty for judges as the loss of earning capacity may invite some degree of speculation.

[47] Recognizing earning capacity and ability to compete as an asset, the courts have imposed a global assessment of loss where there is a demonstrated impairment of earning ability due to a defendant's misconduct. See, Evans v. Sproule, [2008] O.J. No. 4518 (S.C.), at paras. 131-133; Vranich, at para. 113.

[48] Income loss is a matter of assessing damages rather than a strict mathematical calculation. Assessing income loss is a difficult and somewhat speculative exercise, especially where the plaintiff has not yet begun his or her career at the time of the tortious event. In assessing pecuniary losses, such as income loss, a defendant’s liability is dependent on the plaintiff’s likely path had she not been abused. Pecuniary damages, however, should not place the plaintiff in a better position than she would have been: K.M. v. Marson, 2018 ONSC 3493, at paras. 611-12.

[49] In assessing whether or not there has been a loss of learning capacity some considerations include whether the plaintiff has been rendered less capable overall from earning income from all types of employment; whether the plaintiff is less marketable or attractive as an employee to potential employers; whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her had she not been wronged and whether the plaintiff is less capable of earning income in a competitive labour market.

[50] The abuse ended at age 13. D. testified that she left the family home at age 15 and became pregnant. She married at age 16. She had a second child the next year. Her employment was sporadic and she ended up becoming a dental assistant, which is her current occupation. She had “hoped” to be more successful and wanted to enjoy a career as a registered nurse.

[51] As mentioned, estimating economic loss is difficult, but the court must do its best on the evidence available: Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120, 260 N.S.R. (2d) 257, at para. 172. “[T]here is no range for awards of pecuniary damages; decided cases do not provide benchmarks as to an appropriate range of pecuniary damages for loss of past income or income earning capacity. The amount of the award is determined by the extent of the financial loss as disclosed in the evidence in each case”: B.M.G., at para. 176.

[52] In Waters v. Bains, 2008 BCSC 823, the defendant aunt and uncle were found liable for sexual assault of the plaintiff. The assaults commenced in 1966 when the plaintiff was 8 years of age, continuing until she was 18 years old. The aunt was held liable as she took no reasonable steps to prevent or stop the sexual abuse. At trial, the plaintiff did not lead direct evidence with regard to the loss of earning capacity. Consequently, in assessing damages, the court declined to award damages for loss of income and future earning capacity as there was insufficient evidence to establish such claims.

[53] In K.T. v. Vranich, 2011 ONSC 683, prior to the sexual assault, the plaintiff had a strong interest in a career of service to abused women. To this end, she was in the process of completing a university degree in women’s studies at the time of the assault. As a result of the sexual assault, the plaintiff no longer believed she could handle that type of work emotionally and was diagnosed with post-traumatic stress disorder.

[54] At trial, the court was not presented with evidence from an economist or actuary. However, based on the available evidence, which included a psychologist’s report, it was clear that a career re-orientation was a reality for the plaintiff. Consequently, Whitten J. awarded $75,000 for loss of earning capacity.

[55] I, unfortunately, unlike Vranich, have no evidence regarding the impact of the sexual abuse on the plaintiff’s vocational abilities. Here, no expert reports were filed. No loss of income statement was provided. In fact, there was little supporting evidence provided other than the testimony offered by the witness as to her possible life or career goals.

[56] Even where economic and actuarial analysis and evidence is available, a court will not award damages for lost income where the court is unable to find a causal connection between the sexual abuse suffered and the plaintiff’s decisions concerning the pursuit of educational and career options. For example, in John Doe (G.E.B. #25), the court did not award damages for economic loss for two of the four plaintiffs. One of the plaintiffs, E.F., had a successful career as a high school teacher but testified that the fear of stigmatization impacted his decision and capacity to advance his career further as he did not take two career steps: pursuing a Ph.D. and entering politics. Regarding the decision not to pursue a Ph.D., the court found that there were several reasons to decline the opportunity to pursue a Ph.D. after having acquired two undergraduate degrees and a Masters’ degree. These reasons included his family attachments, his wife’s job, his job as a teacher, and his involvement in the community. As to the decision not to enter politics, the court held that it was not appropriate to speculate about the possible lost income form an uncertain opportunity to run for elected office. Additionally, any loss of opportunity to be of service was reflected in the non-pecuniary damage award as it is meant to compensate a victim for the negative impacts on his life related to the abuse he suffered.

[57] Counsel for the plaintiff submits that courts in Ontario have recognized a “life course” approach to estimating loss of income. The purpose is to estimate the long term cost derived from the regression effect of violent victimization on personal income. To this end, counsel proffers the reasoning in Swales.

[58] While the argument is attractive, in Swales and other cases proffered by the plaintiff, there was expert opinion, economic, actuarial analysis, or other evidence proffered in relation to psychological impacts, earning, participation, and unemployment rates, life expectancy, economic loss statements, accounting scenarios and the like to assist the court. See Swales, at paras. 290 to 299.

[59] Even if I were persuaded to adopt the research paper from Dr. Ross McMillan referred to in para. 295-96 in Swales, plaintiff’s counsel is inviting me to hypothesize in support of his argument for damages under this part of the claim.

[60] I am not persuaded that because L. became a nurse and a teacher or that her brothers were successful in their own right, that D.’s claim is substantiated. There were no school report cards, vocational testing or any evidence as to D.’s capacity to attend post-secondary training. D. testified that she had children at a very young age. She also married very young, while still in her teens. It is clear to me that there were other factors or considerations that were ongoing in her life at the time that forged the path that she continued upon.

[61] While it is appropriate to award damages for economic loss or loss of competitive advantage, and I would be inclined to do so, there must be a cogent and reasonable evidential foundation for the claim.

[62] There is insufficient evidence before me suggesting that D.’s education and vocational life has been stunted, or that she has been diverted into much less satisfying, progressive and remunerative employment than she otherwise may have enjoyed were it not for the abuse suffered at the hands of her father. The testimony furnished by the witness relies on much speculation. I am also unable to conclude that there is a causal connection between the sexual abuse and her decisions regarding life choices, education or career opportunities. Unfortunately, I am not satisfied that D. has a demonstrated loss of earning capacity and competitive advantage, deserving of compensation by way of an award of economic damages. Any negative impacts of the abuse in her life are reflected in the general damages awarded.

Punitive Damages

[63] The Victims’ Bill of Rights, 1995, provides limited judicial discretion not to award punitive damages to a plaintiff. Section 4 operates to allow judges to consider the defendant’s criminal conviction in determining the quantum of awards:

(3) Subject to subsection (4), a judge shall not consider the sentence, if any, imposed on a convicted person when ordering that person to pay damages in respect of harm suffered by a victim of the crime.

(4) A judge shall take the sentence, if any, imposed on a convicted person into consideration before ordering that person to pay punitive damages to a victim.

[64] In Whitten v. Pilot Insurance, 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 37, Binnie J. noted that criminal law is the primary vehicle for punishment while recognizing such a role in civil law to address a lacuna not addressed “either by the pure civil law or the pure criminal law.” He cautioned “that punitive damages should be resorted to only in exceptional cases and with restraint”: at para.69.

[65] In Whiten, the Supreme Court opined that in order to determine the appropriate quantum of any punitive damages award, there were certain considerations: They must be proportionate to the blameworthiness of the defendant's conduct, having regard to such factors as: whether the conduct was planned and deliberate; the intent and motive of the defendant; whether the defendant persisted in the outrageous conduct over a lengthy period of time; whether the defendant concealed or attempted to cover up the misconduct; the defendant's awareness that what he or she was doing was wrong; whether the defendant profited from the misconduct; and whether the interest violated by the misconduct was known to be deeply personal to the plaintiff.

[66] The Supreme Court went on to state that the damages must be proportionate to the degree of vulnerability of the plaintiff, and that emotional distress is relevant in this context only insofar as it helps to assess the oppressive character of the defendant's conduct. Damages must be proportionate to the harm or potential harm directed specifically at the plaintiff.

[67] At the same time, the damages must also be proportionate to the need for deterrence. This includes the taking into account other penalties, both civil and criminal, which have been or are likely to be inflicted on the defendant for the same misconduct. They must be proportionate to any advantage wrongfully gained by a defendant from the misconduct.

[68] As noted by La Forest J. in Norberg v. Wynrib, [1992] 2 S.C.R. 226 at pp. 263-64, the role of punitive damages is to punish and deter the wrongdoer, “making an example of him or her in order to deter others from committing the same tort”. As McLachlin J., (as she then was), emphasized in Norberg, punitive damages may be important in sexual assault cases to deter others. The role of deterrence, however, should not be emphasized at the expense of proper quantification of compensatory damages. [2]

[69] Consequently, courts are hesitant to award punitive damages where the defendant has already been punished, either criminally or through a professional disciplinary process, because this would amount to duplicate punishment: John Doe v. O’Dell, 2003 CarswellOnt 3456 (S.C.), at para 352, citing Norberg, at p. 267. See also Fleury v. Fleury (2001), 114 O.A.C. 372 (C.A.), at para. 11. It is not the civil court’s role to assess the adequacy of the punishment. “Where, however, the civil proceedings establish that the sexual abuse was of longer duration than the criminal conduct framed within the indictment, the sentence does not fully sanction the tortfeasor’s behaviour. In such instances, punitive damages may be awarded: Fleury, at para 11.

[70] In assessing damages, “a trial judge should consider how the combination of compensatory damages, punitive damages, and any other punishment related to the same misconduct contributes to achieving the objectives of retribution, deterrence, and denunciation. For example, in John Doe v. O’Dell, the defendant priest was sentenced to 30 months’ imprisonment for sexual assault and gross indecency. Swinton J. determined this was not a case where punitive damages should be awarded as the defendant had been punished in the criminal system. Further, Swinton J. cited the large sum in damages as a deterrence for similar misconduct.

[71] As the Ontario Court of Appeal noted, only “where other penalties imposed have been considered and are found to be inadequate to achieve the objectives of retribution, deterrence and denunciation” should courts award punitive damages: McIntyre v. Grigg (2006), 83 O.R. (3d) 161 (C.A.), at paras. 76-78.

[72] Consequently, a court must consider how the conviction addresses the defendant’s morally reprehensible conduct in light of the principles for awarding punitive damages. For example, in Evans v. Sproule, 2008 CarswellOnt 8753 (S.C.) a police officer assaulted the plaintiff during a traffic stop. The officer received a $1000 fine for pleading guilty to indecent assault. The court was of the view “the punishment imposed was not sufficient to satisfy deterrence, or any of the other principles of sentencing”: at para. 137. Accordingly, the court awarded $25,000 in punitive damages.

[73] In D. (C.) v. D. (R.), 2003 CarswellOnt 245 (S.C.), the defendant father was sentenced to three years’ imprisonment for sexually assaulting his daughter when she was between the ages of 11-16. No punitive damages were awarded in light of his criminal conviction.

[74] In Vranich, the defendant received a twelve-month conditional sentence and probation for sexually assaulting his employee after pleading guilty. Whitten J. found the defendant’s behaviour high-handed and his actions methodical and without a hint of any consideration of the plaintiff as a person in her own right. It was inferred that the conviction did not fully address the conduct. Whitten J. awarded $25,000 in punitive damages.

[75] Here, the plaintiffs’ rely heavily on the case of Lucas v. Prince, 2015 ONSC 7450, for several propositions; the claim for punitive damages and calculating pre-judgment interest.

[76] With respect to punitive damages, at para. 54, the court states: “Given the heinous conduct of the Defendant, I find that a punitive damages award is necessary to achieve the societal objectives of retribution, deterrence and denunciation”. Fitzpatrick J. found that the blameworthy conduct that gave rise to punitive damages included the planned and deliberate abuse that occurred over several years and the abuse of a position of trust between parishioner and priest.

[77] With respect, I am not convinced that this particular and specific reference in the decision as pointed out by the plaintiffs is the appropriate expression or application of the law as it pertains to the award of punitive damages in a civil case. The Ontario Court of Appeal is clear: it is appropriate to award punitive damages, only where other penalties, such as a criminal conviction, are inadequate to achieve the objectives of retribution, deterrence, and denunciation: McIntyre, at para. 76-78.

[78] The Supreme Court has also given strong direction regarding punitive damages, stating that “[i]t is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence”: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 196.

[79] That being said, in Lucas, Fitzpatrick J. went on further and cited D.M. v. W.W. to refer to the defendant’s conduct during litigation to support a punitive damages award. Particularly, in the defendant’s failure to rebut the prima facie proof of the facts underlying his criminal conviction. In awarding punitive damages, Fitzpatrick J. held that the defendant continued to deny sexually assaulting the plaintiff. This finding clearly distinguishes the case at bar.

[80] I cannot leave this area of analysis without addressing D.M. v. W.W., 2013 ONSC 4176. It is a most instructive case. In D.M., Leach J. provides an extensive and thorough summary of the principles underlying damages arising in a sexual abuse case, including punitive damages. My learned colleague observes that awarding punitive damages is a case-specific exercise.

[81] In D.M., Leach J. determined that the defendant’s litigation conduct was “callous and cowardly” as he obliged the plaintiff to engage in prolonged and costly litigation: at para. 151. Leach J. awarded $30,000 in punitive damages as he found that the defendant’s abuse had gone unpunished and would remain unpunished. This was due to a lack of criminal jurisdiction to prosecute the abuse that had taken place outside Canada.

[82] Finally, Ngo v. Miller, 2018 ONSC 526, was a case concerning an action involving a motor vehicle accident, in which the defendant was convicted of impaired driving causing bodily harm and sentenced to two years’ imprisonment with a driving prohibition for two years. The defendant passed away, and it was unclear what part, if any, of the sentence was served. The plaintiff brought a summary judgment motion on whether they can maintain a claim for punitive, exemplary and aggravated damages in the face of the defendant’s criminal conviction and sentencing. Only the claim for aggravated damages was allowed to proceed. In dismissing the plaintiff’s claim for punitive and exemplary damages, at para. 23, Edwards J. held:

[T]hat it would be inappropriate for the civil court to go behind the determination of the criminal court and substitute its own finding as to whether that sentence appropriately met the objectives of retribution, deterrence and denunciation. The justice presiding over the criminal trial and ultimately imposing sentence is, in my view, in a far better position to make that determination than any civil court might be.

[83] In my view, this conclusion is consistent with the Court of Appeal’s reasoning in McIntyre in that duplicate “punishment” of the defendant, through punitive damages, should be avoided where a criminal sentence provides sufficient retribution, deterrence, and denunciation.

[84] Accordingly, a criminal trial is the proper venue to determine a person’s lack of remorse and its role in determining the quantum of punishment; not through a civil award of punitive damages.

[85] Specifically, s. 4(4) of the Victims’ Bill of Rights 1995 requires a judge in civil case to take into account the sentence imposed on a convicted person before considering whether punitive damages ought to be awarded.

[86] In this case, S.P. was sentenced to 10 years in a federal penitentiary for his egregious crimes. There is no evidence or argument advanced by the plaintiffs to suggest that the criminal sanction was insufficient to meet the objectives of sentencing as outlined in Part XXIII of the Criminal Code or that it was deficient in any other respect and ought to invoke punitive damages. Punitive damages are not sustainable where the conviction and resulting disposition are just and appropriate in the circumstances of the case.

[87] Moreover, in this uncontested and undefended action, the plaintiffs have not sustained prolonged, or costly litigation. Nothing in the defendant’s conduct, rather his non-participation in this litigation, gives rise to punitive damages on this basis.

Aggravated Damages

[88] Although not raised in submissions before me, aggravated damages were pleaded in the Statement of Claim.

[89] While aggravated and punitive damages are both rooted in the defendant’s behaviour, their goals are fundamentally different. As mentioned, aggravated damages compensate for injured feelings arising from the defendant’s behaviour. Punitive damages are meant to punish.

[90] Aggravated damages may be warranted where the defendant's conduct has been "particularly high-handed or oppressive", thereby increasing a plaintiff's "humiliation, anxiety, grief, fear and the like". Such damages are compensatory in nature, and "take into account the additional harm caused to the plaintiff's feelings". Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paragraph 188.

[91] In Norberg, the Supreme Court held that in sexual assault cases, a plaintiff may be entitled to aggravated damages where the abuse has been carried out in particularly humiliating and undignified circumstances. Binnie J. reiterated the principle in Whiten v. Pilot Insurance, stating that “aggravated damages are the proper vehicle to take into account the additional harm caused to the plaintiff’s feelings by reprehensible or outrageous conduct on the part of the defendant”: at para. 116. Aggravated damages are designed and “awarded to reflect the increased impact on victims of assaults that are carried out in a manner that is an affront to personal dignity”: John Doe (G.E.B. #25), at para 368.

[92] In S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209 (C.A.), the British Columbia Court of Appeal outlined the factors that can affect the assessment of aggravated damages in cases of sexual abuse. These factors include the relationship of the parties, the number of assaults, the duration of the abuse, the age of the plaintiff, the degree of violence and coercion, the nature of the abuse, the extent of the impact on the plaintiff, and the lack of remorse.

[93] It is certainly true that general damages normally are assessed taking into account any aggravating features of the case and to that extent increasing the amount awarded: Norberg, at para. 53. However, in this case, I am of the opinion that aggravated damages ought to be awarded as they are best designed to capture and account for the defendant’s conduct towards the plaintiffs.

[94] The rampant and repeated abuse and conduct by S.P. on both of his daughters during their childhood was not only egregious and morally disgusting, but a fundamental breach of trust towards his vulnerable children. Aggravated damages are best suited to recognize a plaintiff’s injuries as a result of the defendant’s attack on dignity and bodily integrity. Having regard to law related to an award of general damages, in my opinion, there remains a clear and demonstrable evidential basis to award aggravated damages to both plaintiffs as a result of S.P.’s breach of trust and conduct related to the abuse.

Calculating Pre-judgment Interest

[95] The plaintiffs claim pre-judgment interest from the dates of the abuse or assaults, approximately 40 to 45 years ago. While somewhat novel, counsel argues that a fair and liberal reading of s. 4(5) of the Victims Bill of Rights 1995 in conjunction with the relevant sections of the Courts of Justice Act, S.O. 1990, c. C.43. (“CJA”) justifies pre-judgment interest commencing from the dates of the abuse of both victims.

[96] No reported case refers to this approach to s. 4(5) of the Victims’ Bill of Rights 1995 and its interaction with ss. 128 or 130 of the CJA.

[97] It is conceded that, generally speaking, the date on which a claim becomes discoverable is the most employed method for determine pre-judgment interest.

[98] The jurisprudence regarding the calculation of pre-judgment interest in historical sexual assault cases tends to fall into one of five categories: discoverability of claim date; commencement of action date; midpoint date; date of abuse; and date of the defendant’s criminal conviction. Ultimately, the method employed is dependent on the evidence available.

Discoverability of claim date

[99] As mentioned, this appears, by far, to be the most common approach. For historical sexual assault cases, the claim is discovered on the day the plaintiff realizes and connects the harm suffered to the defendant’s action.

[100] Employing the date of discoverability as the date the cause of action arose is consistent with the reasons of La Forest J. in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6. The majority held that incest as a tortious assault, although subject to limitations legislation, does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and the plaintiff’s injuries. Presumptively, the plaintiff’s awareness will materialize upon receiving some form of therapeutic assistance, professionally or in the general community. The presumption will, however, be displaced when the evidence establishes that the victim discovered the harm and its likely cause at some other time: at para. 45.

[101] In B. (J.) v. B. (R.), 1994 CarswellOnt 4201 (Gen. Div.) a father’s sexual abuse of his daughter spanned 15 years, from 1971 to 1986. The victim disclosed the abuse to the police in 1989. In determining pre-judgment interest, Wright J. opined that while awarding interest from a time midway through the abuse period is a simple solution previously employed, it should not be applied often, if at all. Instead, the court should consider the date upon which the plaintiff becomes aware of the injury or the plaintiff discovers the causal relationship between the harm and the plaintiff’s misconduct as the date the “cause of action arose” for pre-judgment interest under section 128(1) of the CJA. Otherwise, the legislation in place at the relevant time should be applied. Ultimately, Wright J. concluded that interest should run from the date of the service of the statement of claim upon the defendant as the CJA, at the relevant time, provided for interest from the date the plaintiff gave notice, in writing, to the liable person.

[102] Similarly, in R. (J.) v. W. (E.S.) (2001), 52 O.R. (3d) 353 (S.C.), (decided under section 128(1) of the CJA), pre-judgment interest ran from the date upon which the plaintiff became aware of the extent of the harm done to her and its connection to the defendant’s assault. The assault took place in 1973. The action was not instituted until November 1999. The plaintiff was not aware of the extent of the harm until the memories of the assault returned to her as a result of a police interview in February 1998. Accordingly, pre-judgment interest accrued on the day the cause of action arose.

[103] Both R. (J.) and B. (J.) reference La Forest J.’s reasoning. While the other cases do not make explicit references to M. (K.), the reasoning is consistent and logical.

[104] It is trite law that determining the appropriate date on which the cause of action arose is case-specific. Examples when some courts have determined that the claim is discoverable include when the plaintiff confronts or contacted the defendant who admitted the act in question; [3] the approximate date in which the plaintiff realized the harms either when attending therapy or treatment [4] or on their own accord; [5] or an agreed upon date. [6]

Commencement date of action

[105] In some cases, the commencement date of action is used to calculate pre-judgment interest. Typically, it is the day that the statement of claim is served upon the defendant. Most decisions do not provide reasons for using the commencement date. [7] Some decisions rely on a lack of evidence. [8]

Midpoint date of the abuse

[106] In the undefended action arising in B. (P.) v. B. (W.) (1992), 11 O.R. (3d) 161 (Gen. Div.), the start date for pre-judgment interest was the mid-point of the date of assaults that spanned several years. In reaching this result, the court followed two British Columbia decisions. However, as noted in subsequent cases, such as Langstaff v. Marson, 2013 ONSC 4256, (rev’d on other grounds: 2014 ONCA 510), British Columbia’s legislation is different from Ontario. It is unclear whether the court considered s. 128(1) of the CJA.

Date of abuse

[107] Some cases from other provinces use the date of the abuse to calculate pre-judgment interest. [9] The courts do not provide rationale for this determination.

[108] A few Ontario cases, albeit not in the sexual abuse context, support using the date of the incident as the starting point for calculating pre-judgment interest. For example, in Phillips v. Brockville (City) (1999), 5 M.P.L.R. (3d) 173 (Ont. S.C.) the operators of a garden center successfully sued in nuisance for damage to nursery stock caused by leaching of salt water into their well water from an adjacent municipal property. The damage began in May 1988, the first month in which the salt contamination caused injury to the business. The damage continued each year until February 1993, which is the date that it was determined that salt was contaminating the well. The defendant submitted that it would be unfair to be exposed to a long outstanding claim, of which it had no knowledge, and be denied a defence on the basis of the limitation period while at the same time have interest running against it. Despite these concerns, the court used its discretion under the CJA to allow pre-judgment interest from May 1988. It seems that no subsequent cases have followed this reasoning.

[109] Moreover, most of the jurisprudence reviewed were decided under earlier provisions of the CJA and do not provide much assistance today. [10]

Date of defendant’s criminal conviction

[110] In R. v. A. (W.) (2003), 2003 ABQB 50, 22 Alta. L.R. (4th) 178 (Q.B.), for ease of calculation, the judge awarded pre-judgment interest from the time of the defendant’s criminal conviction. The defendant step-father sexually abused the complainant for several years. Similarly, the determination of pre-judgment interest in Imrie v. Slater, 2006 CarswellOnt 9006 (S.C.) was awarded from the pronouncement of the findings of a special hearings committee regarding the allegations against an ordained church minister.

The Victims’ Bill of Rights 1995

[111] The preamble to the Victims’ Bill of Rights 1995 reads:

The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness. The people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.

[112] During the second reading of the bill, the Honorable Charles Harnick, the Attorney General of Ontario at the time, stated that the bill was introduced because the “government will not accept a system that allows victims of crime to suffer twice, first at the hands of the criminal and second under a justice system that does not respond to and respect victims’ needs”. [11]

[113] Plaintiffs’ counsel urges this Court to give expansive interpretation and application to s. 4(5) of the legislation in assessing and warding pre-judgment interest from the date of the abuse. The section reads:

A judge shall not exercise his or her discretion under clause 130 (1) (a) of the Courts of Justice Act to disallow an award of interest to a victim unless the judge, having considered the spirit and purpose of this Act, considers that it is necessary to do so in the interests of justice.

[114] There appears to be no jurisprudence in relation to this specific statute and the timing or commencement of when pre-judgment interest ought to accrue.

[115] Returning to the Lucas case, the trial judge used the date the statement of claim was delivered to the defendant for pre-judgment interest as it was not possible to determine the date when the abuse began. As referenced in the decision, the plaintiff was not psychologically capable of bringing the action earlier than he did. Presumably, this means the plaintiff did not fully realize the harm until that point in time. Ever mindful that victims of sexual assault may delay to report the abuse for a variety of legitimate reasons; in this case, I have no explanation as to why the civil claim was not brought earlier than April 24, 2017.

[116] It is clear that the Victims’ Bill of Rights 1995 stipulates that an interest award ought to be considered in favour of the plaintiff in a civil action.

[117] While counsel’s submissions are somewhat novel, in my view, the plain language reading of the legislation and its context do not tend to support such an assertion. My review of the relevant section of the Victims’ Bill of Rights 1995 neither addresses the timing of pre-judgment interest nor opens the door to facilitate pre-judgment interest to accrue from the date of the abuse. I note that there are no relevant authorities in Ontario engaging in such a broad or liberal interpretation of the statute.

[118] Harkening back to the Supreme Court’s decision in M. (K.) v. M. (H.), I have some evidence to determine the date when the plaintiffs were reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and their injuries. I also accept the principles found in B. (J.) v. B. (R.), that it is when the plaintiff discovers the causal relationship between the harm and the misconduct as the date the “cause of action arose” for pre-judgment interest under s. 128(1) of the CJA. I am not persuaded that the Victims’ Bill of Rights 1995 displaces those principles.

[119] In this case, pre-judgment interest ought to accrue from the earliest date of discoverability of the claims.

Disposition

[120] For all of the aforementioned reasons, default judgment shall issue in favour of the plaintiff in accordance with the following award of damages and cost determinations.

[121] With respect to L.R., $175,000.00 for general non-pecuniary damages, $10,000.00 for emotional distress and $25,000.00 for aggravated damages.

[122] With regards to D.Z., $250,000.00 for general non-pecuniary damages, $25,000.00 for emotional distress and $25,000.00 for aggravated damages.

[123] Pre-judgment interest is to be assessed from the date of the discoverability of the claim; the reporting of the abuse, circa January, 2012.

Costs

[124] The court must, first and foremost, be fair and proportionate when exercising its discretion to award costs. The objective is to fix an amount that is tailored to the circumstances of the case and reasonable for the unsuccessful party to pay in the particular proceeding.

[125] Section 4(6) of the Victims' Bill of Rights 1995, mandates that a judge who makes an order for costs in favour of a victim of crime "shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice”. I am satisfied that Mr. Wynperle’s Bill of Costs is entirely reasonable for the nature and scope of this action.

[126] In the exercise of my discretion under Rule 57.01, the defendant shall pay costs in favour of the plaintiff fixed in the amount of $15,500.00 for legal fees, $2,124.86 for disbursements, plus applicable HST.

A.J. Goodman J.

Released: March 26, 2019

Footnotes

[1] Counsel conceded that the range of damages for LR. is less than those suggested for D.Z. as there is a distinction to be made based on the scope of the abuse sustained by each plaintiff.

[2] Ken Cooper-Stephenson & Elizabeth Adjin-Tettey, Personal Injury Damages in Canada, 3rd ed. (Toronto: Thomson Reuters, 2018), at p. 138.

[3] Jane Doe v. John Doe, 2004 CarswellOnt 1190 (S.C.) (the pre-judgment interest ran from March 1997 for a one-time act. The decision does not provide the date of the act).

[4] Hockley v. Riley, 2005 Carswell Ont 6958 (S.C.) rev’d in part on other grounds 2007 ONCA 804, (pre-judgment interest ran from July 2001 for sexual assaults occurring in 1985); Milne v. Betts, 2012 ONSC 5565 (the sexual assaults occurred when the children were 6 and 11-13 years old. At the time of the trial, the plaintiffs were 57 and 53 years old respectively. Pre-judgment interest ran from November 2011, (which appears to be the date when one of the plaintiffs began to attend counselling).

[5] Whitfield v. Whitfield, reported at 2015 ONSC 3422, McIssac J. awarded pre-judgment interest from the day the plaintiff began to experience a recovered memory of the abuse, following La Forest J’s reasoning in M. (K.) and citing R. (J.) v. W. (E.S.) (2001), 52 O.R. (3d) 353 (S.C.).

[6] K. M. v. Marson, 2018 ONSC 3493, (the defendant teacher sexually assaulted the plaintiff from 1978 to 1980. Both counsel agreed that pre-judgment interest would run from October 2006).

[7] Macleod v. Marshall, 2018 ONSC 5100 (counsel agreed that the date on which the statement of claim was delivered was the operative date for calculating pre-judgment interest); Evans v. Sproule, 2008 CarswellOnt 8753 (S.C.) (sexual assault by an on-duty police officer in 1979 to which he plead guilty. The civil proceedings were initiated in 2002).

[8] This analysis was also employed in the case of Lucas, wherein Fitzpatrick J. determined that it was not possible to determine the date on which the cause of action arose.

[9] T. (D.) v. A. (F), 1991 CarswellBC 1024 (S.C.) (a father abused his daughter over a period of eight years from 1979 to 1987. The decision briefly mentions that interest was calculated from January 30, 1979); B. (A.) v. J. (I.) (1991), 81 Alta. L.R. (2d) 84 (Q.B.) (a step-father sexually abused his two step-children for nearly a year.) The court awarded pre-judgment from the date of the last assault.

[10] McGregor v. Crossland, 1997 CarswellOnt 2303 (Gen. Div.) add’t reasons 1996 CarswellOnt 3870 (Gen. Div.). (The defendant was liable for surgical and post-operative malpractice. Despite the previous provisions Court of Justice Act, 1984 mandated pre-judgment interest running from the date of the notice of claim, the court used the day the surgery was performed).

[11] “Bill 23, An Act Respecting Victims of Crime”, 2nd reading, Legislative Assembly of Ontario Official Report of Debates (Hansard), 36-1, No B (13 December 1995) at 1746.