COURT OF APPEAL FOR ONTARIO
DATE: 20010510
DOCKET: C34786
FINLAYSON, CARTHY and WEILER JJ.A.
B E T W E E N:
LINDA FLEURY
Christine M. La Casse, for the respondent
Plaintiff
(Respondent)
- and -
JOSEPH RICHARD FLEURY
Christine A. Powell, for the appellant
Defendant
(Appellant)
Heard: April 19, 2001
On appeal from the judgment of Justice Ken C. Binks dated July 13, 2000.
BY THE COURT:
[1] The appellant sued the respondent for damages for historical sexually assaultive behaviour on June 25, 1998. The respondent was awarded general damages in the amount of $75,000 and punitive damages of $20,000.
[2] The appellant raises the following grounds of appeal:
Did the trial judge err in finding that the action was brought within the four year limitation period for battery?
Laches
Did the trial judge err in his assessment of damages?
Issue 1: Did the trial judge err in finding that the action was brought within the four year limitation period for battery?
[3] The legal test as to when time begins to run is not in dispute. Time begins to run when the causal connection between the harm suffered and the assault is made: M.(K.) v. M.(H.) (1992), 96 D.L.R. (4th ) (S.C.C.) 289 at 314-15.
[4] With respect to the issue of the limitation period, the trial judge stated:
… I find the plaintiff may have recognized that she had been harmed by her father’s acts when she first went to the police. However, it was not until she underwent sufficient professional counselling that she realized the causal connection between the injuries caused to her by her father and the devastating effects these injuries have had on her. The time did not begin to accrue until this latter realisation, which I find to be within the relevant limitation period to bring this action against the defendant. (Emphasis added.)
[5] Having regard to the reasons of LaForest J. in M.(K.) v. M.(H.), supra,it was open to the trial judge to reach the conclusion he did. The trial judge gave reasons that reveal he was alive to the problems in the relevant area on which he adjudicated. The court of appeal brings no special insight to the assessment of the evidence and it is not for us to second guess the trial judge. A trial judge is entitled to accept such evidence as he or she finds convincing: Tonneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital (1994), 110 D.L.R. (4th) (S.C.C.) 289 at 294.
Issue 2: Laches
[6] So long as the action was instituted within the limitation period, the question of laches does not arise and we see no error in the fact that the trial judge did not address this issue.
[7] The appeal on the issues of liability is dismissed.
Issue 3: Did the trial judge err in his assessment of damages?
a) General Damages
[8] The trial judge awarded the respondent general damages of $75,000. The appellant submits that the trial judge’s assessment of damages was inordinately high.
[9] The trial judge’s assessment of damages was well within the range of awards that have been made for this type of battery. Indeed, with one exception, none of the awards to which we were referred were for a lesser amount.
b) Punitive Damages and Aggravated Damages
[10] The trial judge simply stated in his reasons:
I also award her punitive and aggravated damages, although I take into consideration the fact that the father has been incarcerated for 3 ½ years. I would assess such damages at $20,000.
[11] Punitive damages are a censure by society for harsh, reprehensible and malicious conduct. Their purpose is punishment and deterrence: Ribeiro v. Canadian Imperial Bank of Commerce (1992), 13 O.R. (2d) 278 (Ont. C.A.), leave to appeal to S.C.C. refused [1993] 2 S.C.R. x. Where tortious acts have already been sanctioned by the imposition of a criminal sentence, it is inappropriate to award punitive damages in a civil lawsuit. To do so is to punish twice for the same offence: Rioux v. Smith (1983), 1983 544 (BC CA), 48 B.C.L.R. 126 (C.A.). 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: B.(A.) v. J.(I.),1991 5865 (AB KB), [1991] 5 W.W.R. 748 at 756; B.(P.) v. B. (W.) (1992), 1992 7666 (ON SC), 11 O.R. (3d) 161 at 169 (Gen. Div.).
[12] The reasons of the trial judge do not reflect any consideration of the above principles. The record before us would indicate that the general principle in Rioux, supra,should apply. The appellant submits that, as a result, the damages should be reduced by $20,000. The respondent submits that if punitive damages are inappropriate, aggravated damages are appropriate and the award should be sustained on this basis.
[13] To sustain an award of aggravated damages, it must be shown that the appellant’s conduct caused the respondent a loss of dignity or some humiliation: Rioux, supra, at 129. The respondent’s statement of claim alleges, at paragraph 7, that the appellant used his position of authority, as well as physical violence, to maintain an atmosphere of degradation so that she was unable to escape the sexual abuse she suffered. The trial judge recited the respondent’s evidence concerning the atmosphere of terror in which she lived in his reasons. Accordingly, there is a basis for awarding aggravated damages and we would sustain the award of $20,000 as an award of aggravated damages.
Conclusion
[14] In the result, the appeal is dismissed with costs.
Released: MAY 10 2001 Signed: “G.D. Finlayson J.A.”
GDF “J.J. Carthy J.A.”
“Karen M. Weiler J.A.”