OSHAWA COURT FILE NO.: CV-17-00000837-0000 DATE: 20240613 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTINE UPTON Plaintiff – and – CHRISTOPHER CARSON Defendant

COUNSEL: Ivanna Iwasykiw, for the Plaintiff Defendant, Self Represented

HEARD: May 27, 2024

REASONS FOR DECISION

CASULLO J.:

Overview

[1] The plaintiff, Christine Upton, brings this motion for default judgment against the defendant, Christopher Carson, pursuant to Rule 19.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Ms. Upton seeks damages arising from the sexual assault perpetrated on her by the defendant in May 2014.

Background

[2] Ms. Upton made arrangements to spend the weekend with her good friend, who was living with Mr. Carson at the time. The three enjoyed a fun evening out, which included alcohol.

[3] Mr. Carson sexually assaulted Ms. Upton while she slept that evening. Because she was intoxicated, Ms. Upton did not wake up. Mr. Carson fully penetrated Ms. Upton and ejaculated inside of her.

[4] When Ms. Upton awoke the next morning she was startled to see that her bottoms were off, and there was blood and clear fluid on the bed linens. DNA testing conclusively confirmed the semen found on and in Ms. Upton was that of Mr. Carson.

[5] In November 2016 a jury found Mr. Carson guilty of sexual assault. In April 2017 he was sentenced to two years incarceration followed by three years of probation. Subsequently his conviction was upheld by the Court of Appeal; the Supreme Court of Canada denied leave to appeal in 2019.

[6] Ms. Upton initially commenced the within action on her own. Mr. Carson was represented by counsel until his lawyer was removed from the record in 2021, following which there was no further communication.

[7] Mr. Carson’s defence was struck on July 15, 2021.

[8] Mr. Carson was noted in default on February 11, 2022.

[9] Mr. Carson was served with the Notice of Motion for Default Judgment, along with confirmation that the matter had been added to the Central East Running Civil Long Motion List, by regular mail to his last known address, on November 3, 2023.

Ms. Upton

[10] Prior to the assault Ms. Upton’s life was on an upward trajectory. She was twenty-nine years old and raising her two daughters on her own. She purchased her own home in 2012. She was a teacher for the Durham District School Board.

[11] Ms. Upton also worked three extra jobs to advance her career and pay off her mortgage faster: she owned and managed a small landscaping business; she tutored, and she worked as a research assistant for Ontario Tech University.

[12] Ms. Upton had clear career objectives. She consistently pursued higher education to achieve her ultimate goal, that of obtaining her Ph.D. in Education. This was no ephemeral dream. She had just started her first semester in the Master of Education program at Ontario Tech University. Her ultimate goal was to become a professor, and she planned to work for the Ministry of Education.

[13] Following the assault Ms. Upton lost her zest for life. She felt ashamed and confused. Her mood was low, and she slipped into depression. She felt deeply violated. She was afraid to trust people. She became paralyzed with fear, anxiety and anger.

[14] Ms. Upton was considered HIV positive following the incident, and for six months was required to maintain physical distance from her children to prevent the spread of any infections.

[15] Medical professionals have diagnosed Ms. Upton with Complex Post-Traumatic Stress Disorder, Depression, and Generalized Anxiety, all as a direct result of the sexual assault.

[16] Ms. Upton’s efforts to ensure her children were unaffected by her downward spiral depleted her reserves and left her less able to engage with other aspects of her life.

[17] The criminal process served as a re-traumatization, subject as she was to medical examinations, police interviews, the preliminary hearing, and the trial, followed by the two appeals.

[18] Ms. Upton’s career aspirations were derailed. While she mustered the energy to complete her Masters, she no longer had the self-confidence or motivation to go any further with her education.

[19] She could not continue as a research assistant. She closed her landscaping business. Ms. Upton stopped taking on work as a tutor, and has required a number of leaves of absences from teaching.

[20] I have no difficulty in finding that Ms. Upton’s life has been dramatically altered by the sexual assault and its aftereffects.

Test for Default Judgment

[21] Rule 19.02 provides that a defendant who has been noted in default is deemed to admit the truth of the allegations contained in the statement of claim.

[22] Following a noting in default, a plaintiff may move for judgment against the defendant (r. 19.05(1)).

[23] Where the plaintiff seeks unliquidated damages, the plaintiff must adduce evidence to support her claim (r. 19.05(2)).

[24] The Supreme Court of Canada has held that a criminal conviction is conclusive proof of an underlying sexual assault: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 56.

Damages

General and Aggravated Damages

[25] Ms. Upton seeks general and aggravated damages for pain and suffering and loss of enjoyment of life, loss of competitive advantage, and future care costs.

[26] The affidavit in support of her claim describes in detail the challenges Ms. Upton has experienced since the assault.

[27] As Morissette J. held in Zando v. Ali, 2017 ONSC 1289, [2017] O.J. No. 1675, at para. 93, in determining an appropriate award of damages, the court must consider the following:

• The circumstances of the victim at the time of the events, including factors such as age and vulnerability.
  • Ms. Upton was extremely vulnerable at the time of the assault, as she was intoxicated;
• The circumstances of the assault(s) including the number, frequency, and how violent, invasive and degrading it was.
  • While this was an isolated incident, it falls at the higher end of invasiveness (full penetration to ejaculation);
• The circumstances of the defendant, including age and whether he or she was in a position of trust.
  • Mr. Carson was not in a position of trust per se, but Ms. Upton was a guest in his home; and
• The consequences for the victim of the wrongful behaviour, including ongoing psychological injuries.
  • It is clear the sexual assault has had a negative impact on Ms. Upton, and she will require further therapy to address the psychological harm she continues to suffer from.

[28] In Hudson v. Youth Continuum Inc., 2012 ONSC 4421, [2012] O.J. No. 3589, at para. 20, citing Vorvis v. Insurance Corp of British Columbia, [1989] 1 S.C.R. 1085, the court described that aggravated damages, while assessed under the rubric of general damages, are “(a)n award that aims at compensation but takes full account of the intangible injuries such as distress and humiliation that may have been caused by the defendant’s insulting behaviour.”

[29] In Zando, at para. 95, the court described the range of damages for sexual assault to be between $150,000 to $450,000 ($177,350 to $356,163 after adjusting for inflation). Dr. Zando, who was sexually assaulted on one occasion, was awarded $175,000 for non-pecuniary damages and loss of competitive advantage.

[30] In J.B. v. R.B, 2021 ONSC 1023, [2021] O.J. No. 612, the plaintiff was sexually assaulted while asleep on one occasion, which resulted in a child. The court awarded general and aggravated damages in the amount of $275,000.

[31] In Paton v. Phaure, [2002] O.J. No. 2814 (Ont. S.C.), the plaintiff was sexually assaulted on one occasion after being driven to a deserted area. The court awarded damages of $95,000. Adjusted for inflation, this equates to $154,614 in 2024 dollars.

[32] I have considered the factors as set out in Zando in respect of sexual assault. Having applied them to the present case, I assess Ms. Upton’s general and aggravated damages at $175,000.

Loss of Competitive Advantage

[33] Ms. Upton did not provide actuarial evidence in respect of this head of damage. However, this is not fatal if there is sufficient evidence before me to determine whether there has been a loss of economic opportunity: see for example C.O. v. Williamson, 2020 ONSC 3874, [2020] O.J. No. 3204, at para. 180; Wilcox v. Mattie, [2001] O.J. No. 4618, at para. 20.

[34] By all accounts Ms. Upton was an ambitious, confident, and motivated young woman prior to May 2014, with a clear vision of what her future would hold. The sexual assault altered her aspirations.

[35] She stopped working at her three extra jobs. While Ms. Upton had the wherewithal to complete her Masters, the drive to obtain her Ph.D. has evaporated. She was hired by the school board on a full-time basis in 2016. Based on her education and qualifications, she is paid per Category A4 of the Ontario Secondary School Teacher’s Federation Pay Grid, the highest group on the grid. In 2016 she earned $58,174, and her income is increased every year pursuant to the OSSTF’s pay scale. In 2021 she earned almost $90,000.

[36] However, had Ms. Upton progressed in her career as anticipated, completed her Ph.D. and become a professor, she would have been earning $147,852 annually by 2023. Counsel helpfully provided Statistics Canada data.

[37] I am satisfied that the sexual assault has resulted in economic loss to Ms. Upton, and will continue to do so. After considering the evidence, an award of $200,000 will fairly compensate Ms. Upton for her loss of opportunity.

Future Care Expenses

[38] Ms. Upton seeks $333,000 in future care costs broken down as follows:

a) $48,000 for individual psychotherapy (bi-weekly with Ms. Liza Ritchie at $150, for three years), less the $2,000 annual insurance coverage from her employer; b) $280,000 to attend an intensive in-patient PTSD program at Homewood Health; and c) $5,000 for future therapeutic needs.

[39] Ms. Upton continues to suffer emotionally from the sexual assault. She has been seeing Ms. Ritchie since May 2023, and while the sessions are helpful, her progress has been slow.

[40] Ms. Upton advises that Ms. Ritchie recommended she attend the Homewood Health in-patient program for four weeks. I am advised the cost is $70,000 per week.

[41] However, there is no affidavit from either Ms. Ritchie or Homewood to support this expense. I understand there is a possibility that Ms. Upton may qualify for program coverage through OHIP, but this has not yet been explored.

[42] Thus, while I am satisfied that Ms. Upton is entitled to a future care claim, I have not been provided with the tools to support the quantum sought. Accordingly, I assess future care costs at $100,000, which takes into account the fact that Ms. Upton may require additional years of psychotherapy.

OHIP

[43] The Ministry of Heath’s subrogated account is $1,137.90, which amount shall be paid by the defendant.

Conclusion

[44] In summary, Mr. Carson is liable to Ms. Upton for the following damages:

a) General and Aggravated Damages: $185,000 b) Loss of Earning Capacity: $200,000 c) Future Therapy Costs: $100,000 d) OHIP Subrogated Claim: $1,137.90

[45] Ms. Upton seeks pre-judgment interest at 5% from the date of the claim pursuant to r. 53.10. Pursuant to s. 4(5) of the Victims’ Bill of Rights, 1995, S.O. 1995, c. 6 (the “Act”), I see no reason to exercise my discretion to reduce the amount of interest payable by the defendant.

Costs

[46] Pursuant to s.4(6) of the Act, costs are payable on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice.

[47] Ms. Upton seeks substantial indemnity costs in the amount of $14,080.84, inclusive of disbursements. I see no reason to derivate from what I find to be a fair and reasonable quantum.

[48] Ms. Upton is granted her costs in the all-inclusive amount of $14,080.84.

CASULLO J. Released: June 13, 2024