REASONS FOR DECISION

COURT FILE NO.: CV-15-65514 DATE: 2023 /01/23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joanne Lapointe Plaintiff – and – Rodolphe Labelle and Dianne Labelle Defendants

Counsel: Elise Hallewick, for the Plaintiff No one appearing, for the Defendants

HEARD: November 21 and 22, 2022

Justice K. A. Jensen

[1] The Plaintiff, Ms. Joanne Lapointe ("Ms. Lapointe"), seeks Default Judgment arising out of allegations of sexual abuse by the Defendants, Mr. Rodolphe Edward Labelle, and Ms. Dianne Paulette Labelle ("the Labelle's"), from 1978 to 1983.

Procedural History

[2] The Statement of Claim in this matter was issued on August 26, 2015. In her Statement of Claim, Ms. Lapointe alleges that the Labelle's breached their fiduciary duty as her guardians when they sexually abused her over a period of five years. She claims general and aggravated damages, past and future income loss, future care costs, prejudgment interest and costs on a substantial indemnity basis.

[3] Initially, the Labelle's retained legal counsel and a Notice of Intent to Defend was issued on September 24, 2015. A Statement of Defence, dated October 13, 2015, was served on Ms. Lapointe's legal counsel on October 14, 2015.

[4] In November 2018, Ms. Lapointe's counsel received a Notice of Intention to Act in Person, dated November 6, 2018. Mrs. Labelle signed for both herself and her spouse, Mr. Labelle, as he lacked capacity. It is believed that Mr. Labelle has since passed away.

[5] Mrs. Labelle did not respond to Ms. Lapointe’s requests to exchange Affidavits of documents or to schedule examinations for discovery. A Mediation was scheduled for April 30, 2020, but Mrs. Labelle did not attend.

[6] A Trial Record was served and filed on Mrs. Labelle or about March 9, 2021. On February 23, 2022, a Trial Management Conference was held before Gomery J. Mrs. Labelle failed to attend the Conference. A Pre-trial Conference date was set for July 15, 2022.

[7] On July 15, 2022, Ms. Lapointe's counsel attended a Pre-trial Conference before Kaufman A.J. Mrs. Labelle failed to attend the Pre-trial Conference. As a result, Kaufman A.J. issued an Endorsement noting that the Mrs. Labelle did not attend, despite an indication that she would be call-in by telephone. Therefore, he ordered that the Ms. Lapointe be provided with dates for a three-day Uncontested Trial.

[8] On November 21 and 22, 2022, I heard evidence on the Labelle's liability for the alleged sexual abuse and Ms. Lapointe's claim for damages. Ms. Lapointe and Dr. Brenda Saxe, a clinical psychologist with expertise in childhood sexual abuse and its impact on adults, testified. I also admitted the Affidavit evidence of Ms. Lapointe and the clinical report of Dr. Saxe dated May 29, 2016.

Liability for Sexual Battery and Breach of Fiduciary Duty

[9] The court’s duty to the administration of justice includes not only dispensing expeditious and cost-effective justice to the plaintiff where the defendant has ignored the court process, but also ensuring that justice is done and that unsustainable claims are not mechanically processed: Salimijazi v. Pakjou (2009), 2009 ONSC 17354, 58 B.L.R. (4th) 113 (Ont. S.C.), at para. 34. Salimijazi was decided in the context of a default proceeding whereas the present case deals with an uncontested motion. Given that a default proceeding is a type of uncontested matter, I follow the reasoning in Salimijazi in this case.

[10] Ensuring that justice is done requires the court to scrutinize the evidence to ensure that it is credible, that a prima facie case exists and that the facts entitle the plaintiff to judgment: Plouffe v. Roy (2007), 50 C.C.L.T. (3d) 137 (Ont. S.C.), at paras. 51-53.

[11] In the present case, I was satisfied that Ms. Lapointe provided credible evidence that established the Labelle's liability for sexual battery and breach of fiduciary duty. Ms. Lapointe provided straightforward testimony that was consistent with her affidavit evidence. During her testimony, she acknowledged the positive aspects of her five years with the Labelle's, as well as the negative experiences of sexual abuse by them. She did not embellish or exaggerate her evidence and admitted when she was unsure of an answer. On the basis of both the affidavit and oral testimony of Ms. Lapointe, I make the following findings of fact.

Ms. Lapointe's Early Life

[12] Ms. Lapointe was born on September 8, 1964, in the Greater Sudbury area. Her father left the family home shortly after she was born and is now deceased. Ms. Lapointe has seven siblings.

[13] Ms. Lapointe's mother, Ms. Gabrielle Winter, struggled to care for Ms. Lapointe and her siblings. When Ms. Lapointe was still a baby, Ms. Winter surrendered her and four of her siblings to the Sudbury Children's Aid Society ("CAS"). Ms. Lapointe was placed in a foster home. When she was about five years of age, the CAS again became involved in the family situation, and Ms. Lapointe was placed in a foster home with her brother Edmund.

[14] During her time in foster care, Ms. Lapointe was abused by her foster parents. They screamed at her, punched, and pinched her, and poured scalding oatmeal onto her upper thighs. The husband sexually abused Ms. Lapointe on many occasions. The sexual abuse included fondling her genitals, digitally penetrating her vagina, forcing her to stimulate his genitals with her hands, forcing her to perform oral sex and anally penetrating her with his penis.

[15] Ms. Lapointe believes that the physical, emotional, and sexual abuse that she experienced when the CAS placed her with these foster parents permanently harmed her and made her a very vulnerable child and an easy victim throughout her childhood and adulthood.

[16] Ms. Lapointe was also sexually abused during her childhood by a number of her mother's boyfriends. Ms. Winter worked outside of the home and often left the children in the care of her boyfriends. Ms. Lapointe remembered being sexually and physically abused by six of her mother's boyfriends. She was also sexually abused by her former brother-in-law. The abuse included kissing, fondling, manual sexual stimulation, and digital and anal penetration.

[17] Ms. Lapointe suffered a particularly horrifying sexual assault at the hands of her former brother-in-law in or around 1976, when she was 12 years of age. Her brother-in-law pointed a shotgun at her brothers and nephew and then proceeded to fire the gun several times. Fortunately, no one was hurt but Ms. Lapointe was terrified. Later that day or the next day, the former brother-in-law sexually assaulted her. He held the shotgun to her head as he forced her to manually stimulate his genitals, fondled her genitals, forced her to perform fellatio and anally penetrated her. After he finished sexually assaulting Ms. Lapointe, her former brother-in-law pointed the shotgun to his head and committed suicide by shooting himself in the head.

[18] Ms. Lapointe remembered being terrified and physically frozen with fear during this horrific incident. During her testimony about the incident Ms. Lapointe was visibly distraught and could not continue with her testimony until after a break.

The Labelle's

[19] Ms. Lapointe left home in 1978, when she was 13 years of age because she was fed up with the abuse, lack of food and filth in her home. She slept under the deck of a convenience store. The convenience store was owned by the Labelle's.

[20] Ms. Lapointe came to know Mrs. Labelle because the school bus dropped her off in front of the convenience store. Mrs. Labelle befriended Ms. Lapointe and gave her a part-time job at the store. Given her personal circumstances, Ms. Lapointe was extremely grateful to be given the job so that she could earn money for food. Mrs. Labelle seemed to take a special interest in Ms. Lapointe. Ms. Lapointe began to trust Mrs. Labelle and eventually confided in Mrs. Labelle about her home situation. Ms. Lapointe told Mrs. Labelle that she did not get enough to eat, had to wear dirty clothes to school, and was physically and sexually abused in her home.

[21] Mrs. Labelle told Ms. Lapointe to call her "mom", since all the children in the neighbourhood called her that. A few weeks after she met Mrs. Labelle, Mrs. Labelle asked Ms. Lapointe to move in with her, her husband and their two sons, who were younger than Ms. Lapointe. Ms. Lapointe did not initially accept the offer because she was still a bed-wetter. She needed to get that under control before she could move in with the Labelle's.

[22] When Ms. Lapointe did move into the Labelle's home, she was initially very happy. For the first time, she had clean clothes, enough food to eat and a clean home. She was able to go to school every day and when she was sick, the Labelle's took her to the doctor. The Labelle's also introduced her to sports and more specifically, hockey. Ms. Lapointe became very good at hockey.

[23] However, after some time, Mr. Labelle began to sexually abuse Ms. Lapointe. It began with a "goodnight kiss" and later progressed to the forced fondling of genitals, fellatio, and sexual intercourse.

[24] After about a year and a half of sexual abuse by Mr. Labelle, Mrs. Labelle discovered what was going on and kicked Ms. Lapointe out of the house. Ms. Lapointe returned to her mother's home.

[25] Later, Mrs. Labelle approached Ms. Lapointe on the street and invited Ms. Lapointe to go for a drive with her. During that car ride, Mrs. Labelle asked Ms. Lapointe if her husband was having sex with her. Ms. Lapointe denied it. Mrs. Labelle then invited her to move back in with them. Ms. Lapointe agreed to move back into the Labelle's because the option of staying with her mother was no better, and because Mrs. Labelle promised Ms. Lapointe that Mr. Labelle would not make any advances on her.

[26] When Ms. Lapointe returned to the Labelle's she began having night terrors. Mrs. Labelle invited her to sleep in the master bedroom so that she could comfort her. Mr. Labelle slept in another room. Mrs. Labelle told Ms. Lapointe that sex would help with the night terrors. Mrs. Labelle began to have sex with Ms. Lapointe.

[27] Initially, it started with Mrs. Labelle kissing Ms. Lapointe and forcing Ms. Lapointe to French kiss her. Things progressed to where she started to digitally penetrate Ms. Lapointe and made Ms. Lapointe digitally penetrate her. Before long, Mrs. Labelle was forcing Ms. Lapointe to receive and give her oral sex and to use sex toys, including vibrators.

[28] Mr. Labelle listened from the other side of the door when Mrs. Labelle was sexually assaulting Ms. Lapointe. When Ms. Lapointe left the master bedroom to go to her bedroom, Mr. Labelle would sometimes come into her room and have sex with her. The sexual abuse by both Mr. and Mrs. Labelle happened at least twice a week, for five years.

[29] Ms. Lapointe was very upset with the situation. She expected to be sexually assaulted by a man, but not by a woman. It really messed her up, she said. Ms. Lapointe wanted to leave the Labelle's, but every time she talked about it, Mrs. Labelle would become hysterical. She would begin drinking heavily and not eating. She even tried to drive her car off a cliff. So, Ms. Lapointe stayed until she found work at another store and was able to convince herself to leave regardless of what happened to Mrs. Labelle.

Analysis of Liability

[30] In P.P. v. D.D., 2017 ONCA 180, 137 OR (3d) 138, at paras. 71 and 72, the Ontario Court of Appeal set out the elements of the tort of sexual battery as follows:

[71] The constituent elements of the tort of "sexual battery" are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was "harmful" or "offensive", but this element is implied (assuming a lack of consent) in the context of a sexual battery: Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, at para. 22.

[72] An apparent consent to sexual touching will be invalid if it has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the defendant's conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited: Norberg v. Wynrib, [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, at pp. 246-47 S.C.R.

[31] In this case, I have no difficulty finding the Labelle's committed the tort of sexual battery against Ms. Lapointe. They were adults who sexually exploited a vulnerable youth fleeing from an abusive and turbulent home. They did so several times a week over a five-year period.

[32] I also find the Labelle's breached their fiduciary duty toward Ms. Lapointe. Although they were not officially the legal guardians of Ms. Lapointe, they assumed the role of guardians. As stated by Horkins J. in Seed v. Ontario, 2012 ONSC 2681, 31 C.P.C. (7th) 76, at para. 99, "parents, guardians, school boards and other persons with care of children owe a fiduciary duty to those children." The Labelle's owed a fiduciary duty to take care of Ms. Lapointe. They breached that duty by subjecting Ms. Lapointe to repeated and prolonged sexual abuse.

The Damage Incurred as a Result of the Sexual Abuse

[33] Ms. Lapointe alleged that the sexual abuse she experienced by the Labelle's caused severe, ongoing, and permanent damage for which the Labelle's are 100% responsible. I will first provide the evidence on the issue of damages and then analyse the issue of causation and the appropriate quantum under each head of damage claimed.

Impact of the Abuse on Ms. Lapointe's Sexuality and Relationships

[34] Ms. Lapointe provided evidence that because of the sexual abuse that she endured from the Labelle's, she was confused about her sexuality for many years. She was unsure if she was lesbian, or if it was due to the abuse that she experienced by Mrs. Labelle and having experienced some pleasure, which she felt extremely guilty about. She carried an immense amount of shame with respect to the abuse that she endured by the Labelle's.

[35] After she left the Labelle's, Ms. Lapointe had many sexual encounters with women. However, she would not let any of her sexual partners touch her in an intimate manner. Ms. Lapointe still cannot allow an intimate partner to touch her sexually.

[36] Ms. Lapointe stated that she has never had an emotionally deep and satisfying intimate relationship with anyone. On the one hand, she is afraid that her intimate partner will leave her, and on the other hand, she pushes them away when they get too close. She finds this extremely unsettling, upsetting and deeply sad.

[37] Ms. Lapointe believes that the sexual abuse perpetrated by the Labelle's has affected her relationships with her family. Since some of her family members, including her mother, live in Capreol, Ontario, and since Mrs. Labelle still lives at the same home where the sexual abuse occurred, Ms. Lapointe has had to pass by the Labelle's residence on many occasions; she cannot avoid the Labelle's' home on the way to and from seeing her family. This often triggers a deep emotional response, which has included flashbacks regarding the abuse.

[38] For instance, when she was in Capreol to see her family in or around April 2015, Ms. Lapointe passed by the Labelle's residence. Ms. Lapointe saw Mrs. Labelle sitting on the porch of her front home with her arm around a 14-year-old or 15-year-old girl. This incident triggered an immediate and lasting emotional response during which Ms. Lapointe felt physically ill, anxious, and depressed. For months following this, she frequently experienced nightmares which would wake her up and caused flashbacks to the abuse that she endured.

[39] Up until the last ten years or so, Ms. Lapointe's interpersonal relationships with most people were extremely turbulent and short. More recently, she has gained a core group of female friends whom she cares about deeply. This group of friends has helped her to realize her self-worth and she has greatly benefitted from their friendship.

Impact of the Abuse on Ms. Lapointe's Education and Employment

[40] Ms. Lapointe stated that when she lived with her mother, she was not allowed to go to school. In her words: "We were working delivering flyers, phonebooks, newspapers, toothpaste samples, toothbrushes everyday so we were just not allowed to go to school. We moved from province – several provinces, we moved from city, to city, to city to go to different schools."

[41] As a child, Ms. Lapointe attended 23 different primary schools. As a result, she was so far behind in her education that when she was about 13 or 14 years of age, Ms. Lapointe was placed in a special education class to bring her education level up from grade four to where it should have been for her age. This occurred prior to her arrival at the Labelle's.

[42] Once she arrived at the Labelle's, Ms. Lapointe's education improved. She testified that she was able to go to school every day and she never missed any school. In addition, the Labelle's introduced her to baseball and hockey. In fact, Ms. Lapointe became so good at hockey that she represented Canada in women's hockey in 1986. When she left the Labelle's in 1983, Ms. Lapointe had graduated from high school.

[43] Ms. Lapointe worked at a variety of corner and grocery stores from when she was about 18 years of age until 23 years of age. In or around 1988, she moved from the greater Sudbury area to Ottawa, Ontario. When she initially arrived in Ottawa, she found employment as a flyer delivery person. Afterwards, she was able to find work at the Dempster's Bakery plant where she worked making bread until she suffered a significant back injury at work in or around 1994. She was awarded compensation under the Ontario Workers Compensation regime. She was unable to return to manual labour because of the injury.

[44] In 1995, Ms. Lapointe went back to school and upgraded her high school education. She then completed a diploma in Information Technology Enterprise Management at Algonquin College in Ottawa. The evidence suggests that Workers Compensation paid for this retraining to permit Ms. Lapointe to obtain a job that accommodated the physical restrictions caused by the workplace accident in 1994.

[45] Ms. Lapointe stated that she struggled to complete the diploma because she had great difficulty with some of the courses like accounting and economics. She stated that she received poor grades for many of the courses and barely completed the requirements for the diploma. As a result, when she was applying for work in 2000, upon completion of the diploma, she was unsuccessful. Ms. Lapointe stated that she was also very anxious during the interviews and cried a lot. She attributed this to the psychological impact of the abuse she suffered from the Labelle's.

[46] Although Ms. Lapointe was unsuccessful in obtaining paid employment after she completed the diploma in Information Technology Enterprise Management, she was, however, able to start up her own Information Technology (“IT”) business in 2000, through what would appear to have been hard work and ingenuity. Despite her anxiety and insecurity, Ms. Lapointe convinced a number of law firms to employ her services in managing an information technology privacy issue, and from there, built a business that she ultimately sold in 2010. She continues to receive an income from the purchaser.

[47] Ms. Lapointe stated in her Affidavit that since she started her own company, she has had a number of periods when she either took time off work or had to reduce the number of hours that she worked, due to the psychological impacts of the abuse. As a result, she stated, there have been many years where she made very little money.

[48] In 2005, Ms. Lapointe became employed with Keshet Technologies. Keshet Technologies was owned by Andrew Moffatt, who overheard Ms. Lapointe speaking with one of her clients on the phone and was impressed. He offered her a job as manager of operations in the technology sector. Ms. Lapointe was initially reluctant to take the position because she did not think she had the skills Mr. Moffatt needed. However, Mr. Moffatt hired a network administrator to provide training to Ms. Lapointe so that she would have the necessary skills for the manager role. Ms. Lapointe remained in that position until 2012. During that seven-year period, Ms. Lapointe had an income of approximately $44,000 to $74,000 per year.

[49] In 2012, Ms. Lapointe parted ways with Keshet Technologies. She stated that the reason for leaving the company was that Mr. Moffatt was becoming verbally abusive. Also, she was bitten by Mr. Moffatt's dogs several times and had to go to the hospital. She was working from Mr. Moffatt's home at the time and found she was working long hours without break. Ms. Lapointe stated that her friendship with Mr. Moffatt was important, so she decided it was better to break with Keshet and preserve the friendship.

[50] From 2012 to 2017, Ms. Lapointe relied on her IT business, rental income, and Workers Compensation benefits for income. She testified that she was barely surviving financially and was living off credit cards and lines of credit. She produced income tax returns for three of the five years, showing an income of $13,244.07 in 2012, an income loss in 2013, and $33,951.23 in 2014. She stated that the income shown for 2014 was likely inaccurate because her accountant forgot to include her business expenses in that year. Ms. Lapointe testified that a fire in her home destroyed the records of her income from 2008 and 2009, as well as from 2015 and 2016. She stated that she has not filed tax returns for 2017 onward because she has not been able to get organized to do so. Ms. Lapointe estimated that she probably earned no more than $20,000 between 2012 and 2017.

[51] In or around 2017, Ms. Lapointe's friend and mentor Andrew Moffatt, placed her in an IT position in a company for which he was a part owner called Human Resource Systems Group Ltd. ("HRSG"). Mr. Moffatt and HRSG provided Ms. Lapointe with the training that she needed to be successful in that company. She initially received an annual salary of $65,000.00, plus benefits.

[52] In December 2019, Ms. Lapointe sold her IT company to Cole Systems Inc, for $10,000. As part of the purchase price, it was agreed that she would continue to work on a part-time basis. From Cole Systems, Ms. Lapointe earns a gross amount of $36,000.00 per year regardless of how many hours she works.

[53] In 2022, Ms. Lapointe was promoted to a network administrator position with HRSG. and is now earning $75,000 plus benefits. She also continues to receive Workers Compensation benefits in the amount of $5,630.76 per year, for a total annual income of $116,630.00.

[54] In 2018, Ms. Lapointe was awarded a total of $26,450.00 in damages from the Criminal Injuries Compensation Board. In addition, costs were paid directly to her counsel in the amount of $2,800. The amount of $26,450.00 paid to Ms. Lapointe was comprised of: $22,000 as compensation for pain and suffering; $1,650 for past therapy expenses; and, $2,800 for expenses (therapy).

Dr. Saxe's Expert Evidence on the Impact of the Abuse

[55] Dr. Brenda Saxe conducted an independent medical evaluation of Ms. Lapointe on October 20, 2015, and November 11, 2015, and produced a report dated May 29, 2016.

[56] Dr. Saxe was retained to complete an updated, independent medical evaluation on or about August 20, 2022. Unfortunately, Dr. Saxe’s updated report was not available for the trial. However, Dr. Saxe provided oral evidence that other than an increase in Ms. Lapointe’s Borderline Personality Disorder symptoms and that she was potentially using more alcohol than indicated in the previous report, the diagnosis and conclusions from her May 29, 2016, report were the same.

[57] I qualified Dr. Saxe as an expert in the effects of childhood sexual abuse on adult survivors. Dr. Saxe has a PhD in Clinical Psychology from the University of Ottawa. Her thesis topic was "An Empirical Investigation of Group Treatment for a Clinical Population of Adult Female Incest Survivors". Dr. Saxe is a founding member of the Centre for Treatment of Sexual Abuse and Childhood Trauma. She has extensive experience in the treatment of adult survivors of childhood sexual abuse. She is a member of the Canadian Psychological Association, the American Psychological Association and the Ontario Psychological Association, among others. Dr. Saxe has given numerous presentations about childhood sexual abuse and its impacts on the psychological health of survivors. She supervises psychotherapists working with survivors and taught at the University of Ottawa, School of Psychology for years. Dr. Saxe is a member of the International Society for Studies in Trauma and Dissociation and is one of the only clinical psychologists who can supervise therapists who are working with abuse survivors who experience dissociation.

Post Traumatic Stress Disorder, Depression and Borderline Personality Disorder

[58] Dr. Saxe testified that she met twice with Ms. Lapointe. Overall, Dr. Saxe testified that Ms. Lapointe has been significantly harmed by the abuse she suffered at the hands of the Labelle's. Ms. Lapointe is functioning well below normal in terms of her psychological health.

[59] Dr. Saxe tested Ms. Lapointe's psychological functioning using the Personality Assessment Inventory (“PAI”). The PAI provides a comprehensive evaluation of various personality dimensions and can determine particular personality patterns and symptomatology consistent with DSM-IV and V diagnostic considerations. The results of the PAI clinical profile for Ms. Lapointe were marked by significant elevations indicating the presence of clinical features that are likely to be sources of difficulty for Ms. Lapointe. The configuration of the clinical scales suggests a person with significant tension, unhappiness, and pessimism. Although Ms. Lapointe is quite distressed and acutely aware of her need for help, her low energy level, tension and withdrawal may make it difficult for her to engage in treatment.

[60] Dr. Saxe also assessed Ms. Lapointe using the Detailed Assessment of Post Traumatic Stress (“DAPS”). The DAPS is a normed and standardized 140-item self-report assessment of trauma exposure and posttraumatic responses designed for use with individuals who have undergone a significant psychological stressor. Results of the DAPS for Ms. Lapointe indicated that they are valid and that she answered in an honest and forthright manner. On the basis of this assessment, Dr. Saxe opined that Ms. Lapointe met all criteria for a diagnosis of Post Traumatic Stress Disorder (“PTSD”) based on the index trauma. Her overall PTSD score was at the highest level (T=100).

[61] Furthermore, Dr. Saxe stated that the sexual abuse trauma is based on events that occurred over 39 years ago, when Ms. Lapointe was only 15 years of age. Dr. Saxe thought that although her PTSD symptomatology may have been at subclinical levels during many periods of her life, the PTSD symptomatology that Mrs. Lapointe now suffers from has most likely been profoundly re-stimulated by seeing her female abuser with her arm around a young girl sitting on the stairs of the female abuser's house which happened approximately two years ago in Capreol, Ontario.

[62] Dr. Saxe diagnosed Ms. Lapointe with Complex Post Traumatic Stress Disorder, Major Depressive Disorder, and Persistent Depressive Disorder (formerly Dysthymia). She stated that it is clear that Ms. Lapointe's PTSD symptomatology was re-stimulated when she saw Mrs. Labelle sitting on her porch with her arm around a young girl about the same age as she was when she met Mrs. Labelle. The PTSD symptomatology is now florid and unceasing, causing flashbacks and intrusive thoughts about the abuse, severe anxiety, interrupted sleep patterns, self-hate and depression, emotional dysregulation, and suicidal ideation.

[63] As well, Ms. Lapointe meets criteria for Borderline Personality Disorder, a personality pattern which emerges from both trauma and developmental derailment. This pattern of personality characteristics can severely affect her ability to form healthy interpersonal relationships with others and to regulate her affect in an adaptive rather than a destructive manner. Furthermore, the sexual abuse and betrayal of trust by the Labelle's totally derailed the normal developmental tasks that take place during the teenage and young adult years such as establishing a healthy sense of identity, appropriate boundaries, and self-value.

[64] Dr. Saxe opined that the fact that Ms. Lapointe came from a dysfunctional family could not hurt her as much as the Labelle's who profoundly betrayed her by promising her relief from the chaos within her family of origin and a safe home where she could grow and thrive.

Impact on Education and Employment

[65] In terms of the impact of the abuse on Ms. Lapointe's employment and employability, Dr. Saxe stated that Ms. Lapointe is still terrified of going into interviews. She is terrified unless she knows the person interviewing her. This has really prevented her from advancing in her career. Dr. Saxe opined that Ms. Lapointe was very intelligent, although she had not formally tested her intelligence with a psychometric tool. She attributed Ms. Lapointe's anxiety in interviews to the breach of trust that she experienced with the Labelle's.

[66] Dr. Saxe thought that Ms. Lapointe could have become a lawyer, or a judge, had it not been for the abuse. She also stated that Ms. Lapointe's Borderline Personality Disorder manifests itself as anger, which gets the better of her in many cases. Dr. Saxe stated that people whose anger gets the better of them often have a hard time working with other people. A person with Borderline Personality Disorder might leave a job rather than dealing with a boss who puts them down because it’s just too difficult.

Impact of Previous Abuse and Trauma

[67] Dr. Saxe testified that the trauma and abuse that Ms. Lapointe experienced prior to arriving at the Labelle's might have caused her to be depressed and have a negative self-evaluation when she arrived at their house. Dr. Saxe was unsure whether Ms. Lapointe would have recovered from the abuse that she suffered prior to the Labelle's. At one point she said she thought that was possible and then, she said she did not know. However, it was the dashing of Ms. Lapointe's hope that she was going to have a normal family experience with the Labelle's that Dr. Saxe thought was so detrimental to her mental health.

[68] Dr. Saxe did allow that Ms. Lapointe was making some progress because she is now able to form friendships with other women and not lash out in anger as much as she did in the past.

Treatment

[69] Dr. Saxe stated that Ms. Lapointe should receive attachment therapy on a weekly basis for 10 to 15 years. Attachment therapy is a kind of treatment for sexual abuse survivors where they "attach" to their therapist as a trusted friend who can be relied on to provide a stable environment for healing and growth. This therapy costs anywhere from $60 – $250/hour depending on the client's financial means. Dr. Saxe stated that there may be other kinds of treatment that would help with Ms. Lapointe's symptoms, but those treatments would be determined with her therapist. She did not recommend anything, other than the attachment therapy.

[70] Dr. Saxe testified that many of the physical symptoms of depression and anxiety that her clients experience lift when the client has spent enough time with an attachment therapist.

Analysis of Claim for Damages

Causation and the "Crumbling Skull" Rule

[71] To establish a claim for damages for breach of fiduciary duty and sexual battery, a causal relationship "must be found to exist between the tortious act of the wrongdoer and the injury to the victim": Snell v. Farrell, [1990] 2 S.C.R. 311, at p. 326.

[72] The prevailing test for causation is the "but for" test: see Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333. It requires the trier of fact to conclude that "but for" the defendant's misconduct, the plaintiff would not have suffered the injuries in question: see M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, 109 O.R. (3d) 351, at para. 26.

[73] A defendant's negligence need only be 'a' cause, not 'the' cause of the injury: M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), at para. 29.

[74] In the present case, I am satisfied that the Labelle's abuse is one of the causes of Ms. Lapointe's psychological injuries. I accept Dr. Saxe's evidence that Ms. Lapointe suffers from PTSD, major Depressive Disorder, and Borderline Personality Disorder, all of which were caused, in part, by the Labelle's sexual abuse of her. The abuse ruptured the trust between Ms. Lapointe and the Labelle's at a crucial stage in her development. As an adolescent, she needed a trusting relationship with a close adult to complete the developmental tasks of that stage – the building of self-identity, self-confidence, autonomy, and independence. As such, the Labelle's abuse was one of the causes of Ms. Lapointe's psychological injuries.

[75] The Ontario Court of Appeal has instructed that once causation, and therefore liability, has been established, a separate inquiry must be conducted to assess the extent of the harm: Deluxe Windows of Canada, at para. 31. Different principles govern the two analyses. Causation is concerned with connecting the defendant's fault to the plaintiff's harm. Damages are concerned with repairing that harm by putting the plaintiff in the same position he or she would have been in but for the defendant's fault.

[76] While a finding of causation equates to responsibility for the entire injury, a defendant is not required to put the plaintiff in a better position than his or her original one: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 32. Certain principles may limit the extent of a plaintiff's damages notwithstanding a finding that the defendant caused the injuries. One such principle is the "crumbling skull" principle: Athey, at paras. 34-36.

[77] The crumbling skull rule applies to situations where the defendant's act causes the premature or accelerated degeneration of the plaintiff's pre-existing condition: Deluxe Windows of Canada, at para. 36. If there is a "measurable risk" that the condition suffered by the plaintiff would have affected the plaintiff in the future regardless of the defendant's tortious act, the defendant will be liable for the effect of his act on the degenerative process. However, the defendant need not compensate the plaintiff for any debilitating effects of the pre-existing condition that would have occurred in any event: see Athey, at para. 35.

[78] The question then is whether there was a "measurable risk" that because of the previous sexual abuse and trauma Ms. Lapointe experienced prior to arriving at the Labelle's, she would have suffered the psychological injuries, even without the Labelle's tortious conduct. If so, then the Labelle's will be responsible only for the effect of their actions on exacerbating Ms. Lapointe's pre-existing condition.

[79] I accept Dr. Saxe's testimony that the Labelle's sexual abuse of Ms. Lapointe was a significant factor contributing to her injuries. Ms. Lapointe had high hopes that the Labelle's would treat her better than she was treated as a child. Those hopes were dashed when not only Mr. Labelle, but also Mrs. Labelle sexually abused her repeatedly over five years.

[80] However, I do not accept Dr. Saxe's statement that Ms. Lapointe could have fully recovered from the previous abuse and trauma she experienced in the foster home and in her mother's home, had it not been for the abuse perpetrated by the Labelle's.

[81] Given the experiences that Ms. Lapointe described in her testimony, I think it is highly likely that Ms. Lapointe would have sustained significant psychological injuries that would have endured into adulthood, even if the Labelle's had been very kind to her.

[82] Prior to arriving at the Labelle's, Ms. Lapointe was sexually abused at the age of five by her foster father. She was also sexually abused by at least six of her mother's boyfriends before the age of thirteen. She was brutally raped at gunpoint by her former brother-in-law and then witnessed him commit suicide with the same gun. It defies belief that these experiences would not have caused lasting damage, regardless of the subsequent experiences. Indeed, Ms. Lapointe stated in her Affidavit that the abuse she experienced in the foster home before her arrival at the Labelle's caused her permanent damage. I find, therefore, that there is a measurable risk that the abuse and trauma Ms. Lapointe experienced prior to her arrival at the Labelle's would have caused lasting psychological injury, even if the Labelle's had not abused her.

[83] Dr. Saxe testified that before arriving at the Labelle's, Ms. Lapointe would have been depressed and would have had a negative self-evaluation. Therefore, I find that she had pre-existing conditions that were likely exacerbated by the Labelle's abuse. The Labelle's must be held responsible for the exacerbation of Ms. Lapointe’s pre-existing condition. Given Dr. Saxe's testimony about the impact of the breach of trust and the dashing of Ms. Lapointe's hopes at a crucial phase in her development, I am prepared to find that the Labelle's should be held responsible for the majority of the psychological damage done to Ms. Lapointe. Weighed against the severity of the prior abuse and its impact on Ms. Lapointe's pre-existing state of mental health, I find that it would be appropriate to reduce the damage award by 25 per cent to compensate Ms. Lapointe for her injuries, without putting her in a better position than she would have been without the pre-existing conditions.

Quantum of Damages

[84] In her closing statement at trial, Ms. Lapointe modified her claim for damages as follows: (1) $300,000.00 for general, non-pecuniary damages including aggravated damages; (2) $200,000.00 for loss of competitive advantage damages; (3) future care costs in the amount of $336,430.70; (4) $26,450 for the subrogated claim of the Criminal Injuries Compensation Board Claim; and, (5) pre-judgment interest thereon in the amount of $23,134.07 from the date of the issuance of the Statement of Claim.

General Damages

[85] The purpose of non-pecuniary, or general, damages in sexual assault and battery cases is “to provide solace for the victim's pain and suffering and loss of enjoyment of life, to vindicate the victim's dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts”: Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120, 260 N.S.R. (2d) 257, at para. 132.

[86] The assessment of damages is inherently 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: L.R. v. S.P., 2019 ONSC 1737, at para. 16; B.M.G, at para. 134; Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 89.

[87] Courts have also stated that in assessing non-pecuniary damages for sexual assault, judges must first consider the important characteristics of the case to define the types of cases that should be compared to establish an appropriate range, and then select an amount of damages within that range, based on the features of the particular case: B.M.G, at paras. 136-140.

[88] In the present case, I consider the following factors, which are based on the criteria set out above, relevant to the assessment of general and aggravated damages:

a. Ms. Lapointe was a vulnerable 13-year-old girl, with a history of abuse and neglect. The Labelle's knew this and preyed on her nonetheless; b. The Labelle's sexually assaulted Ms. Lapointe frequently over five years. They subjected her to many types of sexual contact including fondling, oral sex and vaginal and anal intercourse; c. Ms. Lapointe thought she could trust Mrs. Labelle because she was a woman and had asked Ms. Lapointe to call her "mom". Mrs. Labelle betrayed that trust by sexually abusing her; d. Mrs. Labelle manipulated Ms. Lapointe into staying at the Labelle’s residence by threatening to kill herself if Ms. Lapointe left; e. Ms. Lapointe has suffered serious emotional injury because of the abuse, and it has impacted very negatively on her relationships with family, friends, and intimate partners.

[89] A comparison of the above-noted factors in the present case to those in other cases with similar fact patterns leads to the conclusion that the requested amount of $300,000 for general and aggravated damages is high, but within the appropriate range. For example, in L.R. v. S.P., one of the plaintiffs testified that she was abused by her father for 18 months starting when she was 13 years old. From hugging and kissing, it progressed to inappropriate sexual touching and sexual intercourse. There were roughly 20 to 50 incidents of abuse. The court awarded the plaintiff $210,000 in general and aggravated damages.

[90] In D.S. v. Quesnelle, 2019 ONSC 3230, the sexual assaults continued on a weekly basis for over five years. On each of those occasions, the plaintiff was required to perform oral sex on the defendant, often involving the defendant ejaculating in the plaintiff's mouth or onto his body. The Court awarded the plaintiff $400,000 in general and aggravated damages.

[91] C.O. v. Williamson, 2020 ONSC 3874, was a case involving an adolescent girl who was sexually abused by her music teacher at school over a number of years. After reviewing the case law regarding the appropriate range for damages in sexual battery cases, the court concluded, at para. 173, as follows:

Accordingly, from my review of the cases and taking into account increasing awareness of the damage caused by childhood sexual abuse, I am satisfied that for cases involving repeated sexual assaults on a child by a person in a position of trust, the appropriate range for general and aggravated damages is from $150,000 to $450,000. As always, there are less serious and more serious cases that would fall outside of that range.

[92] Therefore, based on the above-noted analysis of the case law and considering the factors noted above, I find that $300,000 is an appropriate amount in general and aggravated damages in the present case. When the 25% reduction is applied, the amount comes to $225,000 in general and aggravated damages.

Past and Future Loss of Income

[93] To establish entitlement to past and future economic loss, the plaintiff needs to prove: (1) that she incurred economic loss; and (2) that there is a real and substantial possibility that the sexual abuse caused her economic loss: MacLeod v. Marshall, 2019 ONCA 842, 148 O.R. (3d) 727, at para. 22.

[94] The courts have acknowledged the difficulty of proving economic loss in assault cases. Recently, in Currie v. Kikkert, 2022 ONSC 7260, Nicholson J. cited Graham v. Rourke (1990), 75 O.R. (2d) 622, in which the court stated that a trial judge who is called upon to assess future pecuniary loss is of necessity engaged in a somewhat speculative exercise. Nevertheless, courts have insisted upon an evidentiary basis for finding past and future economic loss. Therefore, in Currie v. Kikkert, the court rejected counsel's suggestion to determine her future income loss on the basis of an annual figure per year, such as $10,000, multiplied by the number of years until her likely retirement. The court rejected that suggestion because there was no evidentiary basis for doing so; it involved pure conjecture.

[95] In this case, counsel for Ms. Lapointe initially suggested that I adopt the approach of some courts in assigning a value for loss of competitive advantage. She stated that this approach has been used by courts when the evidentiary foundation for the proof of economic loss is weak. Counsel stated that she reviewed the case law and determined that an amount of $200,000 for loss of competitive advantage was a conservative number that seemed appropriate in the present case. However, I was not presented with any case law where the court awarded $200,000 in factual circumstances similar to the present circumstances. Moreover, counsel could not provide me with any rationale, based on the evidence presented in this case, as to why $200,000 was an appropriate number.

[96] The essential elements of a claim for loss of competitive advantage are summarized in (Re) Conforti, 2012 ONSC 199, 84 C.B.R. (5th) 239. At para. 34, Wilton-Siegel J. summarized the essential elements as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;
2. The plaintiff is less marketable or attractive as an employee to potential employers;
3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[97] However, the court in (Re) Conforti, stated that there must nevertheless be some evidence upon which to assess the loss of competitive advantage.

[98] In this case, the evidence of economic loss is extremely weak. Ms. Lapointe left the Labelle's in June of 1983, when she graduated from high school. There was no evidence that, but for the abuse, Ms. Lapointe would have done further education after she finished high school. Without education beyond a basic high school level, Ms. Lapointe's employment options when she left the Labelle's were limited. The court did hear, however, that Ms. Lapointe was able to play hockey for Canada in 1986, although we do not know whether Ms. Lapointe earned any money representing Canada in women's hockey.

[99] From 1990 to 1995, Ms. Lapointe worked at Dempster's Bakery in Ottawa. She did not provide evidence as to what she was earning at that time. From 1995 to 2000, Ms. Lapointe was given retraining as a result of a back injury. Again, we have no evidence of her income during that time period.

[100] From 2000 to 2004, Ms. Lapointe had a difficult time getting a job. She attributed her inability to gain employment during this time to her poor marks in the college program. In addition, she had a hard time dealing with authority and would stutter and cry in interviews, until she was able to get those behaviours under better control. Dr. Saxe attributed Ms. Lapointe's interview anxiety to the abuse she suffered. Instead of trying to find employment Ms. Lapointe started her own business, but her income during the period from 2000 to 2004 was very low. However, there is no evidence as to what income Ms. Lapointe could have earned during that period, had it not been for the abuse she suffered.

[101] Dr. Saxe testified that Ms. Lapointe was very intelligent, and had she not been abused by the Labelle's she might have become a lawyer or a judge. This is pure speculation. There was no evidence whatsoever that Ms. Lapointe had ever wanted or intended to enter the legal profession.

[102] In 2005, Ms. Lapointe became employed with Keshet Technologies. From 2005 to 2011, Ms. Lapointe earned between $41,000 to $68,000 per year. She was then unemployed again from 2012 to 2017, until she obtained work with HRSG. Ms. Lapointe stated that during this period, she was barely making $20,000 per year. Again, although there is a possibility that Ms. Lapointe's poor income was related to the harm caused by the abuse, there is no evidence as to what the quantum of loss was.

[103] Counsel for Ms. Lapointe invited me to assume that during the periods when her income was low, Ms. Lapointe would have earned a steady $40,000 to $50,000 per year. However, there is no basis upon which I can draw this conclusion. Ms. Lapointe stated that she voluntarily parted ways with Keshet Enterprises in 2012 because she was finding Mr. Moffatt difficult, and his dogs bit her several times sending her to the hospital. She also testified that she had battled cancer at some point. The evidentiary basis for a finding that Ms. Lapointe would have consistently earned at least $40,000, even as she was just starting up her business in 2000, is simply not there.

[104] Finally, I find no basis in the evidence for a loss of future competitive advantage. At 58 years of age, Ms. Lapointe currently has an income of over $110,000/year. This is a testament to her strength of character and strong work ethic. Despite her difficult childhood, Ms. Lapointe has managed to make a good life for herself. She is to be commended for her success in that regard. There is, however, no evidence that the abuse has rendered her unable to sustain that success into the future.

[105] Therefore, I make no award with respect to loss of competitive advantage for past and/or future income.

Future Care Costs

[106] Ms. Lapointe requested $336,430.70 for future care costs, which are broken down as follows:

a. Attachment Therapy – one session per week for fifteen years, at a cost of $225 per session at a total cost of $169,060.71; b. Cannabidiol ("CBD") oil for lifetime use at a cost of $115,567.51; c. Lifetime membership to a gym for a cost of $32,802.48; d. Massage therapy for a cost of $19,000.

[107] In Boone v. O’Kelly, 2021 ONSC 2308, Beaudoin J. cited Gray v. Macklin, [2000] O.J. No. 4603 (S.C.), which stated that the test for determining the appropriate award for future care costs is an objective one, based on medical evidence. In order to prove a claim for future care costs, the following conditions apply:

1. There must be medical justification for the claims.
2. The award must be fair and moderate,
3. The claims must be “reasonably necessary” having in mind personal circumstances. (Boone v. O'Kelly, at para. 320; Gray v. Macklin, at para. 213)

[108] The only treatment that Dr. Saxe recommended for Ms. Lapointe was attachment therapy. She stated that often clients with physical complaints related to their abuse will find their physical pain goes away along with the psychological anguish after a period of attachment therapy. Dr. Saxe stated that most of her clients do not want massage therapy because they have difficulty with strangers touching their bodies. Dr. Saxe further stated that the research does not support the use of CBD oil at this time for psychological problems related to past sexual abuse.

[109] Although Ms. Lapointe stated that she benefitted from CBD oil and massage therapy, Dr. Saxe's evidence does not support the therapeutic need for these items. Furthermore, Dr. Saxe did not mention the need for a lifetime membership to a women's only gym. Ms. Lapointe has alternatives to the gym if she finds physical exercise to be helpful; she herself stated that she derives benefit from going for ten-kilometre walks.

[110] I find, however, that the claim for attachment therapy once per week for fifteen years has a sound basis in the evidence. Applying the 25% reduction based on Ms. Lapointe's pre-existing conditions, I order that the Labelle's pay $126,795.53 for the future costs associated with attachment therapy.

Subrogation Claim

[111] Ms. Lapointe asks for an additional $26,450 in general and pecuniary damages to cover the amount she is required to repay to the Criminal Injuries Compensation Board. Other than the $1,650 that was provided for past therapy costs, I decline to award the amount requested in the subrogation claim, because that would constitute double recovery. In this award, I have granted general damages and future care costs from which Ms. Lapointe must deduct the amounts owed to the Criminal Injuries Compensation Board for payments already received from them under those heads of damages.

[112] With respect to the past care costs, I accept the April 3, 2018 finding of the Criminal Injuries Compensation Board, which was based on receipts provided for Ms. Lapointe's past therapy costs, that an amount of $1,650 is appropriate to compensate for those past care costs incurred by Ms. Lapointe. Ms. Lapointe has indicated that she will repay the amounts owing to the Criminal Injuries Compensation Board on the subrogation claim.

Costs

[113] Ms. Lapointe seeks costs on a substantial indemnity basis in the amount of $43,052.13, inclusive of HST and disbursements. Given the nature of the sexual abuse suffered by Ms. Lapointe and the failure of the Labelle's to follow through on their defence of this matter, I agree that Ms. Lapointe should recover costs on a substantial indemnity basis.

[114] I have reviewed the costs outline and find Ms. Elise Hallewick's substantial indemnity rate of $337.50/hour to be reasonable. In addition, the time spent on the file and the cost of the expert reports are reasonable. Therefore, I award costs in the amount claimed of $43,052.13, all inclusive.

Prejudgment Interest

[115] Ms. Lapointe claims prejudgment interest calculated from the date of the issuance of the Statement of Claim.

[116] Section 128(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, ("CJA") provides that “a person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.”

[117] Section 128(2) of the CJA provides that “[d]espite subsection (1), the rate of interest on damages for non-pecuniary loss in an action for personal injury shall be the rate determined by the rules of court.” Rule 53.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the “prejudgment interest rate on damages for non-pecuniary loss in an action for personal injury is 5 per cent per year.”

[118] However, s. 130(1) of the CJA states that “[t]he court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable under section 128 or 129” of the CJA, disallow interest, allow interest at a lower or higher rate than that provided by those sections, or allow interest for a period other than that provided by those sections. In the exercise of its discretion, when considering an interest computation different from that provided by ss. 128 of the CJA, the court shall take into account the factors set out in s. 130(2) of the CJA. These factors include: changes in market interest rates (s. 130(2)(a)); the circumstances of the case (s. 130(2)(b)); and “any other relevant consideration” (s. 130(2)(g)).

[119] In MacLeod v. Marshall, 2019 ONCA 842, 148 O.R. (3d) 727, the Court of Appeal held that the trial judge erred in awarding prejudgment interest at the rate of 5% without considering s. 130(2) of the CJA. In that case, the jury awarded pecuniary and non-pecuniary damages on the finding that the defendant was liable for sexual abuse. In consideration of the rate of prejudgment interest for the non-pecuniary damages, the trial judge found that s. 258.3(8.1) of the Insurance Act, R.S.O. 1990, c. I.8, which renders s. 128(2) of the CJA inapplicable to an action for personal injury arising from the use or operation of an automobile, does not apply to a claim in sexual abuse. On this basis, the trial judge concluded that the prejudgment interest rate of 5% was applicable.

[120] The Court of Appeal held that the trial judge was correct to conclude that s. 258.3(8.1) of the Insurance Act did not apply. However, the trial court’s conclusion that it thereby followed that the prejudgment interest rate of 5% for non-pecuniary damages was applicable was not correct in law. Rather, the Court of Appeal stated, at para. 54, that the trial judge ought to have considered the factors listed in s. 130(2) of the CJA:

[The trial judge] should have taken into account the factors listed in s. 130(2) of the CJA, including the changes in market interest rates. He did not. In so doing, he placed no weight or insufficient weight on the consideration of market interest rates.

[121] The Court of Appeal noted, at para. 55, that interest rates during the period from when the action was initiated (2012) to the date of judgment (2018) were low. Accordingly, the Court of Appeal set aside the award of prejudgment interest at 5% and ordered that the prejudgment interest on non-pecuniary damages be calculated at 1.3%.

[122] In keeping with the Court of Appeal's direction in MacLeod v. Marshall, I have considered the factors in section 130(2) of the CJA. I have also considered the decisions in C.O. v. Williamson and Estate of Mary Fleury et al v. Olayiwola A. Kassim, 2022 ONSC 2464. In the latter case, the court stated the following, at paras. 328-329:

During the time period between June 2015 and December 2021, the average rate of inflation fluctuated between 1.0% and 4.8%. The court takes judicial notice that in March 2020 much of the world shut down due to an unprecedented global pandemic. The impact of the global pandemic on the world economy continues to today’s date and the rate of interest continues to increase. This adds a level of uncertainty to any analysis with respect to pre-judgement interest.

Having considered the changes in market interest rates, the impact of a global pandemic, and the circumstances of this case the court declines to exercise its discretion to depart from the pre-judgement interest rate for non-pecuniary damages as set out in Rule 53.10. Prejudgment interest on non-pecuniary damages will therefore accrue at a rate of 5% per annum, commencing on June 1, 2015.

[123] I find that the reasoning applied by the court in Estate of Mary Fleury et al also applies in the present case. The dates of the prejudgment interest period in both actions are similar. Therefore, I award prejudgment interest at the 5% rate.

[124] There is no prejudgment interest applied to the cost of future care: Courts of Justice Act, s. 128(4)(d).

[125] I would appreciate if counsel could provide brief calculations of the interest when she provides a draft order for my signature.

Conclusion

[126] For the above reasons, judgment shall go as follows:

a. Ms. Lapointe is awarded $225,000 in general and aggravated damages; b. Ms. Lapointe is awarded $126,795.53 for future care costs; c. Ms. Lapointe is awarded $1,650 for past care costs.

[127] The Labelle's shall pay costs to Ms. Lapointe on a substantial indemnity basis of $43,052.13, all inclusive.

[128] The Labelle's shall pay prejudgment interest on the general and aggravated damage award at the rate of 5% per annum calculated from August 26, 2015.

Justice Karen A. Jensen Released: January 23, 2023