M.B. v. 2014052 Ontario Ltd., carrying on business as Deluxe Windows of Canada, et al.

[Indexed as: B. (M.) v. 2014052 Ontario Ltd.]

109 O.R. (3d) 351

2012 ONCA 135

Court of Appeal for Ontario,

Juriansz, Rouleau and Watt JJ.A.

March 2, 2012

Damages -- Causation -- Plaintiff suing for damages for sexual assault -- Defendant admitting liability for sexual assaults but arguing that four unrelated incidents materially contributed to plaintiff's psychological disorders and mitigated his responsibility for damages -- Trial judge erring in applying "material contribution" test for causation in declining to instruct jury to assess whether portion of plaintiff's damages were attributable to other causes -- Error not requiring new trial as evidence that other incidents contributed to plaintiff's damages was very weak.

Damages -- Personal injury -- Sexual assault -- Plaintiff suing for damages for sexual assaults committed by defendant as her employer and supervisor -- Jury's award of $300,000 for general damages not plainly unreasonable -- Award affirmed on appeal -- Plaintiff granted leave to amend her statement of claim to increase claim for general damages from $250,000 to $300,000. [page352]

The plaintiff sued for damages for assault and battery based on four sexual assaults committed by the defendant, her employer and supervisor while the plaintiff was employed as a commissioned salesperson. The defendant conceded liability and accepted that the psychological conditions from which the plaintiff suffered were due, in part, to the sexual assaults, but claimed that four unrelated incidents materially contributed to the plaintiff's psychological disorders and, therefore, mitigated his responsibility for damages. The trial judge declined to instruct the jury to assess whether a portion of the plaintiff's damages was attributable to other causes. She was of the view that if the sexual assaults caused or materially contributed to the plaintiff's damages, the defendant would be liable for all of the damages. The jury found the defendant liable to the plaintiff and awarded a total of $468,969.18, including general damages of $300,000. The plaintiff was awarded her costs on a substantial indemnity basis. The defendant appealed. The plaintiff cross-appealed from the trial judge's refusal to put her claim for loss of income to the jury.

Held, the appeal and cross-appeal should be dismissed.

The trial judge erred in relying on the material contribution test to establish causation and in failing to turn her mind to the applicability of the principles of damages relied on by the defendant, the crumbling skull principle and the principle of successive tortious events. Her failure to consider those issues resulted in her refusal to leave the crumbling skull and successive tortious events questions with the jury. However, the errors were not of such significance as to warrant ordering a new trial on the issue of damages, as the evidence suggesting that the other incidents contributed to the plaintiff's damages was weak and there was no reasonable basis to justify leaving the questions of contribution with the jury.

The award of general damages was high and outside of the generally expected range, but was not so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. The plaintiff should be allowed to amend her statement of claim to increase the claim for general damages from $250,000 to $300,000.

The costs award was not inordinately high.

The trial judge did not err in refusing to put the plaintiff's claim for loss of income to the jury. No claim for loss of income was included in the prayer for relief nor was it particularlized in the body of the claim or in the reply to the demand for particulars. The claim lacked detail and substance and consisted of no more than bald allegations that the plaintiff would have made more sales but for the results of the harm sustained.

Cases referred to

Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, [1978] S.C.J. No. 6, 83 D.L.R. (3d) 452, 19 N.R. 50, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225; Arnold v. Teno, 1978 2 (SCC), [1978] 2 S.C.R. 287, [1978] S.C.J. No. 8, 83 D.L.R. (3d) 609, 19 N.R. 1, 3 C.C.L.T. 272, [1978] 1 A.C.W.S. 231; Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102, 140 D.L.R. (4th) 235, 203 N.R. 36, [1997] 1 W.W.R. 97, 81 B.C.A.C. 243, 31 C.C.L.T. (2d) 113; Beals v. Saldanha (2001), 2001 27942 (ON CA), 54 O.R. (3d) 641, [2001] O.J. No. 2586, 202 D.L.R. (4th) 630, 148 O.A.C. 1, 10 C.P.C. (5th) 191, 106 A.C.W.S. (3d) 431 (C.A.); Bella v. Young, [2006] 1 S.C.R. 108, [2006] S.C.J. No. 2, 2006 SCC 3, 261 D.L.R. (4th) 516, 343 N.R. 360, J.E. 2006-290, 254 Nfld. & P.E.I.R. 26, [2006] R.R.A. 1, 37 C.C.L.T. (3d) 161, 21 C.P.C. (6th) 1, 145 A.C.W.S. (3d) 343, EYB 2006-100404; [page323] Blackwater v. Plint, [2005] 3 S.C.R. 3, [2005] S.C.J. No. 59, 2005 SCC 58, 258 D.L.R. (4th) 275, 339 N.R. 355, [2006] 3 W.W.R. 401, J.E. 2005-1925, 216 B.C.A.C. 24, 48 B.C.L.R. (4th) 1, [2005] R.R.A. 1021, 46 C.C.E.L. (3d) 165, 35 C.C.L.T. (3d) 161, 142 A.C.W.S. (3d) 1080, EYB 2005-96641; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634, 188 O.A.C. 201, 48 C.P.C. (5th) 56, 132 A.C.W.S. (3d) 15 (C.A.); Evans v. Sproule, 2008 58428 (ON SC), [2008] O.J. No. 4518, 176 A.C.W.S. (3d) 895 (S.C.J.); Fiddler v. Chiavetti, [2010] O.J. No. 1159, 2010 ONCA 210, 317 D.L.R. (4th) 385, 260 O.A.C. 363, 186 A.C.W.S. (3d) 673; Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, 2007 SCC 7, 278 D.L.R. (4th) 643, 357 N.R. 175, [2007] 4 W.W.R. 1, J.E. 2007-333, 69 Alta. L.R. (4th) 1, 404 A.R. 333, [2007] R.R.A. 1, 45 C.C.L.T. (3d) 1, 153 A.C.W.S. (3d) 1012, EYB 2007-113553; Hicks v. Cooper (1973), 1973 1254 (ON CA), 1 O.R. (2d) 221 (C.A.); Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 126 D.L.R. (4th) 129, 184 N.R. 1, J.E. 95-1495, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189; McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] S.C.J. No. 23, [1937] 2 D.L.R. 639 at 649; Milligan v. Toronto Railway (1908), 17 O.L.R. 530, [1908] O.J. No. 78 (C.A.); Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J. No. 73, 72 D.L.R. (4th) 289, 110 N.R. 200, J.E. 90-1175, 107 N.B.R. (2d) 94, [1990] R.R.A. 660, 4 C.C.L.T. (2d) 229, 22 A.C.W.S. (3d) 493; Thornton v. Prince George School District No. 57, 1978 12 (SCC), [1978] 2 S.C.R. 267, [1978] S.C.J. No. 7, 83 D.L.R. (3d) 480, 19 N.R. 552, [1978] 1 W.W.R. 607, 3 C.C.L.T. 257, [1978] 1 A.C.W.S. 219

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6) [as am.] Negligence Act, R.S.O. 1990, c. N.1, s. 1

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 25.06(9), 26.01

Authorities referred to

Knutsen, Erik S., "Clarifying Causation in Tort" (2010), 33 Dal. L.J. 153

APPEAL AND CROSS-APPEAL from the judgment of D.A. Wilson J., sitting with a jury, [2010] O.J. No. 4676, 2010 ONSC 5835 in a personal injury action.

Judy Hamilton, for appellant/respondent by way of cross-appeal Mickey Weig. Paul D. Koven and Allan Fogul, for respondent/appellant by way of cross-appeal M.B.

The judgment of the court was delivered by

[1] ROULEAU J.A.: -- The defendant (appellant) Mickey Weig appeals from the judgment entered by Wilson J. in accordance with the jury's verdict holding him liable to the plaintiff (respondent), M.B., for assault and battery. A total of $468,969.18 was awarded for general and aggravated damages, future health care costs and prejudgment interest. The general damages award was $300,000. The appellant also seeks leave to appeal from the order granting the respondent her costs on a substantial indemnity basis. [page354]

[2] The central issues on appeal are the trial judge's ruling as to the appropriate questions for the jury on the issues of causation and damages and whether the jury award for general damages was so inordinately high as to warrant appellate intervention.

[3] The respondent, M.B., has cross-appealed, arguing that the trial judge erred in refusing to put her claim for loss of income to the jury.

[4] For the reasons that follow, I would dismiss both the appeal and the cross-appeal.

Facts

[5] The respondent moved to Canada in June 2002. From December 2003 until May 2005, she was employed as a commissioned salesperson at the defendant companies, Deluxe Windows of Canada and Deluxe Windows Industries (collectively referred to as "Deluxe"). At the time, the appellant was the respondent's direct supervisor as well as a principal and part owner of Deluxe.

[6] Between January and October 2004, the appellant committed four sexual assaults on the respondent. In relation to these assaults, he was convicted of criminal charges and sentenced to a term of imprisonment.

[7] The respondent testified that as a result of the sexual assaults, she feels shame and fears that she will be targeted again. She is afraid to leave home and afraid to go shopping without her cellphone; she sleeps with double locks on her bedroom door and purchased an alarm system for her home. She experiences nightmares where the appellant is chasing her and attacking her children. She suffers from insomnia and has difficulty getting out of bed in the morning. She suffers a loss of sexual desire and experiences intermittent suicidal ideations.

[8] According to Dr. Jackson, an expert who testified at trial for the respondent, the respondent experiences dissociative episodes, rumination, somatization, as well as intrusive memories of the trauma, including flashbacks. Dr. Jackson also testified that the respondent experiences "depression, anxiety, and symptoms such as headaches, stomach upset, pain, dizziness, weakness, fatigue and blank spells".

Issues at Trial

[9] The respondent's action for damages for assault and battery was brought against both the appellant and Deluxe.

[10] In addition to her claim for general and aggravated damages, the respondent sought compensation for loss of income. [page355] She claimed that as a result of the assaults, her income was substantially reduced. In support of this claim, she alleged that following the assaults she avoided her workplace and was given less lucrative sales leads as punishment for failing to accede to the appellant's continuing sexual demands.

[11] The experts for both parties agreed that the respondent suffers from post-traumatic stress disorder and major depressive disorder. The appellant conceded liability and accepted that the psychological conditions from which the respondent now suffers were due, at least in part, to the sexual assaults. In his view, however, four unrelated incidents materially contributed to the respondent's psychological disorders and, therefore, mitigated his responsibility for damages. The four incidents are as follows: (1) as a child, the respondent was approached by a stranger who took her behind a building and made her remove her underpants before she ran away; (2) the respondent had been through a 14-year abusive marriage to her first husband, in which he would occasionally push, grab and yell at her when he had been drinking; (3) the respondent had at least one therapeutic abortion or miscarriage; and (4) the respondent was involved in a car accident after the first sexual assault, but before the three other sexual assaults. As a result of the car accident, she claimed statutory accident benefits and damages for personal injury.

[12] The appellant's expert, Dr. Teplin, testified that these four incidents may have contributed to her depression and post-traumatic stress disorder, although it was impossible for him to determine the extent, if any, of that contribution. His clinical opinion was

that it remains unclear to what extent Ms. [B.'s] chronic major depressive disorder and chronic post-traumatic stress disorder are directly related to the sexual assault itself and/ or are also directly related to a combination of the severe traumatic events in her life.

[13] The respondent's expert, Dr. Jackson, testified that she had no difficulty concluding that the sexual assaults caused the respondent's depression and post-traumatic stress. In cross-examination, counsel for the appellant suggested to Dr. Jackson that her opinion would have been different had the details of the four incidents been fully disclosed to her. Although Dr. Jackson conceded that she had not been made aware of the extent of [page356] these incidents, she did not resile from her opinion that the sexual assaults caused the depression and post-traumatic stress.

[14] The respondent argued that the magnitude of the "other causal incidents" was overblown. And that the impact, if any, of these other incidents was to make her more susceptible to depression; however, they did not cause or aggravate her psychological disorders.

[15] Following an eight-day trial, the jury awarded damages for assault and battery against the appellant and Deluxe on a joint and several basis as follows: (a) $300,000 in general damages; (b) $25,000 in aggravated damages; (c) $45,000 for future health care costs; and (d) $98,969.18 in prejudgment interest.

[16] The respondent's claim for loss of income was not left with the jury because the trial judge ruled that it was improperly pleaded and not sufficiently supported by the evidence.

[17] The trial judge also awarded the respondent her costs on a substantial indemnity basis -- fixed at $150,000, plus GST and $24,382.82 in disbursements.

Issues

[18] The issues raised on appeal are as follows: (1) Should the jury have been instructed to assess whether a portion of the respondent's damages were attributable to other causes? (2) Is the general damages award inordinately high and so excessively disproportionate to other awards for similar injuries as to warrant appellate intervention? (3) Should the respondent be allowed to amend her claim to increase the claim for general damages from $250,000 to $300,000? (4) Should the jury have been instructed on the cap on non-pecuniary damages? (5) Was the jury inflamed by a picture filed by the respondent and by comments made by her lawyer in his closing address? (6) Is the costs award inordinately high? [page357]

[19] By way of cross-appeal, the respondent raises the following question:

Did the trial judge err by precluding the respondent's claim for loss of income from being put to the jury?

Discussion

(1) Should the jury have been instructed to assess whether a portion of the respondent's damages were attributable to other causes?

[20] Before final submissions, the parties met with the trial judge to formulate the questions to be put to the jury. The appellant sought to include a question or questions asking the jury to assess the role, if any, that the four incidents raised by the appellant played in the respondent's damages.

[21] After hearing submissions from counsel on the jury questions, the trial judge summarized the position of counsel as follows:

Counsel agree that one of the questions to be put to the jury is the assessment of the plaintiff's non-pecuniary damages for her pain and suffering and loss of enjoyment of life. The focus of the defence of Weig was that while it was conceded that the plaintiff had suffered damages as a result of the sexual assaults, there were other traumatic events in her life that had contributed to her damages, and counsel for Mr. Weig wished the jury to make a finding on that issue.

Counsel for the plaintiff did not object to a question being put to the jury on the role of the sexual assaults in the plaintiff's overall diagnosis, but he disagreed with the manner in which counsel for the defendant Weig drafted the question.

[22] However, the trial judge appears to have disagreed with the positions of both parties. She was of the view that if the sexual assaults caused or materially contributed to the respondent's damages, the defendant would be liable for all of the damages. In support of that conclusion, she relied on the following quote from the Supreme Court's decision in Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102, at para. 17:

It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. . . . As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

On that basis, in her view, a question regarding the role, if any, the four incidents played in the overall diagnosis was unnecessary. [page358]

[23] Accordingly, the trial judge ruled that the following questions would go to the jury:

1. At what amount do you assess the damages sustained by the plaintiff arising from the actions of defendant Matvei Weig for her pain and suffering and loss of enjoyment of life from the date of the assault forward?
2. Did the actions of the defendant Matvei Weig cause or materially contribute to the injuries sustained by [M.B.]? Answer: Yes or no.
3. At what amount, if any, do you assess the damages for future treatment of [M.B.]?
4. At what amount, if any, do you assess aggravated damages?
5. Has the plaintiff satisfied you on a balance of probabilities that the defendant Deluxe Windows of Canada should be found vicariously liable for the actions of the defendant Matvei Weig?

[24] The appellant argues that the trial judge erred in her interpretation of Athey and its application to the facts of this case, and conflated the principles that apply to causation with the assessment of damages. As a result, she erred in failing to ask the jury to consider the role, if any, of the other incidents on the respondent's damages.

[25] I agree that the trial judge's analysis was flawed. However, she did not conflate causation and damages principles. The flaw in her analysis was her reliance on the material contribution test and the consequent failure to turn her mind to the applicability of the principles of damages relied on by the appellant.

(a) Treatment of causation and damage principles

(i) Principles of causation

[26] In Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J. No. 73, at p. 326 S.C.R., Sopinka J. described causation as "an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former". The prevailing test for causation is the "but for" test: see Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, 2007 SCC 7. 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.

[27] In rare cases, causation may also be proven on the basis of the material contribution test. However, the test is only available where two stringent preconditions are met: (1) it must be "impossible" to prove causation using the "but for" test due to factors beyond the plaintiff's control; and (2) the plaintiff's [page359] injury must be within the ambit of risk created by the defendant's breach: Hanke, at para. 25. If, and only if, these two conditions are met, causation may be established by demonstrating that the defendant's conduct was a material contributing cause of the plaintiff's injury, that is, causation may be established on the basis of the material contribution test.

[28] In this case, the defendant conceded that the sexual assaults caused or materially contributed to plaintiff's injuries. Liability was not a live issue at trial. Nor was it an issue on appeal. However, this was not an appropriate case in which to use the material contribution test to establish causation.

[29] The appellant's argument that other factors contributed to the respondent's injuries did not make it "impossible" to prove causation in this case using the "but for" test. As Erik S. Knutsen [See Note 1 below] points out in his paper "Clarifying Causation in Tort" (2010), 33 Dal. L.J. 153, at p. 169: "Successive and cumulative injury cases, including those involving pre-existing conditions, can also satisfactorily meet the 'but for' test." This is because a "defendant's negligence need only be 'a' cause, not 'the' cause [of the injury]". It was therefore an error for the trial judge to instruct the jury in accordance with the material contribution test.

[30] As far as liability goes, however, the error was harmless because (1) liability was not seriously challenged; and (2) the trial judge charged the jury that she, as well as both counsel, urged them to answer the question of liability in the affirmative. The difficulty arising from this error is that it coloured the trial judge's treatment of the appellant's arguments regarding the possibility that other causes contributed to the respondent's damages.

(ii) Principles of damages

[31] Once causation, and therefore liability, has been established, a separate inquiry must be conducted to assess the extent of the harm. 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.

[32] While a finding of causation equates to responsibility for the entire injury, a defendant is not required to put the plaintiff [page360] in a better position than his or her original one. Major J. explained this principle in Athey, at para. 32:

The essential purpose and most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been in absent the defendant's negligence (the "original position"). However, the plaintiff is not to be placed in a position better than his or her original one. It is therefore necessary not only to determine the plaintiff's position after the tort but also to assess what "original position" would have been. It is the difference between these positions, the "original position" and the "injured position", which is the plaintiff's loss.

[33] Certain principles may limit the extent of a plaintiff's damages notwithstanding a finding that the defendant caused the injuries. Two such principles formed the thrust of the appellant's case at trial -- the crumbling skull principle and the principle of successive tortious events. The appellant's position was that (1) even absent the sexual assaults, there was a measurable risk that because of the other incidents, the respondent would have suffered from depression or post-traumatic stress and, therefore, part of the damages she suffered would have occurred in any event (the crumbling skull principle); and (2) the tortfeasors responsible for the other tortious incidents caused or contributed to the depression and post-traumatic stress now suffered by the respondent (the successive tortious events).

[34] I will address each of these principles in turn.

Argument 1 -- The crumbling skull

[35] The first argument put forward by the appellant is based on the "crumbling skull principle". The crumbling skull principle is derived from the familiar thin skull principle. Both principles speak to the extent of damages -- not causation. The thin skull rule holds that a tortfeasor takes his victim as he finds him. In other words, if as a result of a pre-existing vulnerability -- a thin skull -- a plaintiff suffers greater injury than an average person would, the defendant is nonetheless responsible for the full extent of the plaintiff's loss: Athey, at para. 34.

[36] The crumbling skull rule, on the other hand, applies to situations where the defendant's act causes the premature or accelerated degeneration of the plaintiff's pre-existing condition. If there is a "measurable risk" that the condition suffered by the plaintiff would have affected the plaintiff in the future [page361] 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.

[37] The trial judge was alive to this principle. After giving an example of a crumbling skull situation in her discussion of the jury questions with counsel, she stated:

[B]ut I don't see that in the case here because there is no evidence of a pre-existing condition here. You don't have evidence of the plaintiff getting psychiatric or psychological treatment prior to the accident, based on the medical information that I have reviewed. So it is not the same factual basis, in my view. This isn't a case, Mr. Novak, in my view, of a pre-existing condition. Rather it is the defence position that the diagnosis is multi-factorial and is not just related to the sexual assault. That is a different situation than where an assessment is made based on the pre-existing condition. (Emphasis added)

[38] However, she was of the view that the crumbling skull doctrine was inapplicable to the facts of this case. She came to this conclusion not because she wrongly conflated causation and damages principles, but rather because of her understanding that using the material contribution test the appellant was liable for all of the damages. The trial judge, therefore, did not turn her mind to the question of whether there was a "material risk" that because of the other incidents the respondent would have suffered from some degree of depression and post-traumatic stress in the future, even without the sexual assaults. Assuming, for the moment, that there was an evidentiary basis to support that position, this is a question that should have been left with the jury.

[39] In such circumstances, the jury would be asked to determine if there was anything inherent in the respondent's original condition, that is, her pre-assault condition, that posed a "measurable risk" that she would develop her current problems notwithstanding the sexual assaults. In assessing her original condition, the jury could consider the four incidents relied on by the appellant. If the jury concluded that there was indeed a measurable risk that her current problems would have developed in any event, the measure of damages attributable to the appellant would reflect only the increased aggravation of her condition brought about by the sexual assaults.

Argument 2 -- Successive tortious events

[40] The appellant's second argument relates to the principle that where multiple tortious events contribute to a divisible [page362] injury, each tortfeasor will only be responsible for damages relating to the portion of the injury he caused. The classic example is where the plaintiff has suffered injuries in two separate car accidents -- but for the first accident the plaintiff would not have suffered some injury, and but for the second accident the plaintiff would not have suffered some additional injury. Each defendant is only responsible for the damages attributable to his or her accident: see Hicks v. Cooper (1973), 1973 1254 (ON CA), 1 O.R. (2d) 221 (C.A.).

[41] This concept was not necessarily lost on the trial judge; but, because of her approach to liability she failed to turn her mind to it. The material contribution test assumes the existence of other potentially contributing causes, but due to the impossibility of isolating each cause, the tortfeasor is held liable for the whole of the injury. The use of the material contribution test in this case accounted for the potential causal effects of the other tortious causes and acknowledged the impossibility of parsing out the damages attributable to each. Its application therefore foreclosed the appellant's argument that the jury ought to have been instructed to assess the contribution of the other tortious causes.

[42] However, as I have already discussed, this was not an appropriate case in which to use the material contribution test to establish causation and it was an error to do so. On a proper "but for" analysis, the contribution of the other tortious causes to the respondent's injuries may have been a live issue for the jury to consider in assessing damages.

[43] Thus, once again assuming a sufficient evidentiary basis to support the appellant's position, the jury should have been asked to assess the extent, if any, to which the other tortious incidents, i.e., the motor vehicle accident and the assaults by the respondent's former husband, contributed to the respondent's current condition. This would require the jury to first determine whether the respondent's injuries were divisible, i.e., whether the contributions of the other tortious causes could be identified. From there, the jury would be asked to assess the respondent's original position to determine whether she was suffering from depression or post-traumatic stress caused by one or both of the tortious incidents prior to the sexual assaults. That position would then be compared to her position after the sexual assaults, with the difference in severity between the two being the portion of damages attributable to the defendant: see Hicks.

[44] Importantly, for the purpose of answering this question, the jury would be instructed not to consider the childhood incident or the abortions and miscarriages. In my view, the [page363] childhood incident is non-justiciable as it involved a relatively vague incident of inappropriate conduct alleged to have occurred 30 years ago by an unknown individual in the former Soviet Union. The abortions and miscarriages are simply not tortious.

[45] Therefore, while the trial judge did not conflate causation and damages principles, her analysis of what questions should go to the jury was not without error. She failed to consider whether there was a material risk that the respondent would suffer some degree of depression or post-traumatic stress in the absence of the sexual assaults. And, her reliance on the material contribution test led to her failure to consider whether other tortious causes might have contributed to the respondent's damages. Her failure to consider these issues resulted in her refusal to leave the crumbling skull and successive tortious events questions with the jury.

[46] However, that is not the end of the inquiry. The question remains as to whether the error is serious enough to merit a new trial.

(b) Are the errors of such significance as to warrant ordering a new trial on the issue of damages?

[47] In a civil case, a new trial will only be ordered where the interests of justice plainly require it: see Fiddler v. Chiavetti, [2010] O.J. No. 1159, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 9. A reviewing court will not direct a new trial unless there has been a "substantial wrong or miscarriage of justice": see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). Although I have concluded that the trial judge erred in her analysis of the applicability of principles limiting damages, an issue remains as to the gravity of the error.

[48] In this respect, the respondent argues that (i) the questions as phrased were nonetheless adequate; (ii) the evidence in support of the suggestion that the other incidents contributed to the damages is weak; and (iii) the appellant never pleaded that the other incidents contributed to the damages suffered by the respondent.

[49] I would not give effect to the third submission -- that contribution was not pleaded. Though the statement of defence simply contained a bald denial, it was clear from the conduct of the trial and the submissions of counsel that the potential impact of the other incidents on the measure of damages was a live issue. [page364]

[50] However, as I will explain, even taken at its highest, the evidence suggesting that the other incidents somehow contributed to the damages suffered by the respondent was weak. In my view, there was no reasonable basis to justify leaving the questions of contribution with the jury. In my view, therefore, the trial judge's error did not cause a substantial wrong. In the light of this conclusion, it is unnecessary to address the submission that the question as phrased was adequate.

(i) Was there sufficient evidence of contribution to warrant the questions being put to the jury?

[51] Whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence. There must be "reasonable evidence" to allow a question to go to the jury. As Meredith J.A. stated in Milligan v. Toronto Railway (1908), 17 O.L.R. 530, [1908] O.J. No. 78 (C.A.) [at para. 50]:

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative[.]

[52] Had the trial judge applied the proper analysis in the present case, she would have gone on to consider whether there was "reasonable evidence" to leave the following questions with the jury: (a) was there a material risk that the respondent would have suffered some degree of depression or post-traumatic stress notwithstanding the sexual assaults; and (b) did other tortious incidents cause part of the respondent's damages?

[53] In the appellant's submission, there was expert evidence that, if accepted by the jury, provided a basis for both of these positions and therefore the questions should have been left with the jury. The respondent, however, contends there was no evidentiary basis for either question. For the reasons that follow, I agree with the respondent that there was no reasonable evidence to support either question being put to the jury.

The crumbling skull question

[54] With respect to the first question -- the "crumbling skull" issue -- the appellant argues that Dr. Teplin's evidence [page365] suggested that there was a substantial likelihood that because of the other incidents, the respondent's pre-assault condition was such that her psychological problems would have developed in the future, albeit to a lesser degree, even in the absence of the sexual assaults.

[55] The respondent asserts that Dr. Teplin's evidence does not go that far. At best, his testimony suggests that other events created a pre-existing vulnerability to the harm caused by the sexual assaults. As the respondent explains, the presence of contributing causes is to be distinguished from the situation where the plaintiff is "thin skulled" in the sense that the damages flowing from the sexual assaults are more significant as a result of the victim's vulnerability. In accordance with the principles set out in Athey, a vulnerable plaintiff is entitled to be compensated for the entire harm caused by the sexual assaults.

[56] I agree that Dr. Teplin's evidence does not go as far as the appellant contends. Most of his evidence, and that of the other experts, suggested that the other incidents made the plaintiff more vulnerable to depression and post-traumatic stress. Indeed, Dr. Teplin's clinical opinion was "that it remains unclear to what extent Ms. [B.'s] chronic major depressive disorder and chronic post-traumatic stress disorder are directly related to the sexual assault itself and/or are also directly related to a combination of other severe traumatic events in her life".

[57] Dr. Teplin did not opine that the occurrence of any of the four other incidents caused or contributed to the respondent's condition -- he could only say that they may have. Indeed, none of the experts could offer anything tangible with respect to the risk that the other incidents would have eventually caused the respondent to develop her current psychological conditions.

[58] At various points, the experts independently opined that while certain things may be traumatic to certain people, there are no absolutes. For example, when Dr. Jackson, the respondent's expert, was asked in cross-examination if she agreed that abortions were "stressful incidents", she replied that in many cases women who had abortions felt relief and not stress. The evidence of Dr. Brown, the respondent's psychologist, was similar. She said women are not necessarily traumatized by abortions if they've made a decision that suits them. Significantly, the respondent's own evidence was that she was not traumatized by any of the incidents relied on by the appellant.

[59] In my view, the evidence on the record establishes no more than a vague possibility that the respondent's depression and post-traumatic stress would have developed to some degree in the absence of the sexual assaults. However, evidence [page366] of a vague possibility is not reasonable evidence of a material risk. In the absence of reasonable evidence that there was a material risk that the respondent's conditions would have developed absent the sexual assaults, there was no need to leave the "crumbling skull" question with the jury. I therefore conclude that there was no substantial wrong or miscarriage of justice occasioned by the failure of the trial judge to consider whether to do so.

The successive tortious events question

[60] The respondent argues that the evidence at trial demonstrated that her injuries -- post-traumatic stress disorder and major depressive disorder -- were indivisible, making it neither possible nor appropriate to attribute portions of the damages to other tortious causes. Relying on Athey, at paras. 22-25, she contends that because the sexual assaults caused these indivisible injuries, the appellant should be responsible for the full extent of the damages suffered (although he could bring third party claims against the alleged contributing tortfeasors who would be jointly and severally liable for the full extent of the injury pursuant to s. 1 of the Negligence Act, R.S.O. 1990, c. N.1).

[61] The respondent points to the evidence of the appellant's own expert, Dr. Teplin, who testified that it was "impossible" to discern the impact of any one possible cause. Although that evidence appears to support the view of the injuries as "indivisible", in my view it speaks more to the lack of evidence of other contributing causes than to the divisibility of the injuries. The simple fact that it may be difficult to attribute damages to their particular source is not a sufficient excuse to refrain from doing so. As the Supreme Court explained in Blackwater v. Plint, [2005] 3 S.C.R. 3, [2005] S.C.J. No. 59, 2005 SCC 58, at para. 74:

The calculation of damages for sexual assault to Mr. Barney [the plaintiff] is complicated by two other sources of trauma: (1) trauma suffered in his home before he came to AIRS [the residential school]; and (2) trauma for non-sexual abuse and deprivation at AIRS that was statute barred. In reality, all these sources of trauma fused with subsequent experiences to create the problems that have beset Mr. Barney all his life. Untangling the different sources of damage and loss may be nigh impossible. Yet the law requires that it be done, since at law a plaintiff is entitled only to be compensated for loss caused by the actionable wrong. It is the "essential purpose and most basic principle of tort law" that the plaintiff be placed in the position he or she would have been in had the tort not been committed. (Emphasis in original; citations omitted)

[62] More problematic for the appellant is the dearth of reasonable evidence that might suggest the two tortious incidents, [page367] i.e., the motor vehicle accident and the "abuse" by the respondent's ex-husband, caused any portion of the depression or post-traumatic stress suffered by the respondent. The evidence surrounding the motor vehicle accident was that, "but for" that accident, the respondent would not have suffered a number of physical injuries and ailments. By contrast, the evidence on the record that the accident caused any psychological problems was more in the nature of speculation.

[63] The appellant argued that because the pain caused by the physical injuries from the motor vehicle accident was strong enough to necessitate pain medication, that pain could have lead to increased anxiety. However, there was no evidence that the respondent's pain had in fact caused her any anxiety. There was also evidence that in December of 2004, the respondent was on a drug that can be used to treat depression, amitriptyline. This, however, was after all of the sexual assaults and it is unclear from the record when she began taking that drug or why it was prescribed.

[64] As for the "abuse" by the respondent's ex-husband, the respondent's testimony was that this "abuse" was occasional and consisted of yelling, pushing and grabbing when her ex-husband was drinking. The respondent denied any adverse effects of the relationship. When it was suggested in cross-examination that she downplayed its significance to Dr. Brown, the respondent questioned why she would discuss it in any more detail than she did given that, in her words, "I didn't have any problems with my ex-husband. I divorced him and I'm happy and I move on; right." There was no specific evidence that this relationship caused the respondent any psychological harm. The most any of the experts could say was that it could have.

[65] To attribute fault to other tortious causes, those causes must be shown on a balance of probabilities to have caused some harm -- speculation that they might have is not sufficient. In my view, the evidence did no more than suggest a vague possibility that the tortious incidents might have done so. Speculative evidence is not reasonable evidence. In the absence of reasonable evidence that the other tortious incidents contributed to the respondent's condition, there was no need for the trial judge to leave the question of contribution from the other tortious incidents with the jury. I must therefore once again conclude that no substantial wrong or miscarriage of justice was brought about by the failure of the trial judge to consider whether to do so. [page368]

(2) Is the general damages award inordinately high and so excessively disproportionate to other awards for similar injuries as to warrant appellate intervention?

[66] The appellant argues that the jury's award of $300,000 in general damages is grossly disproportionate to the damages the respondent suffered. He contends that it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it. In his submission, awards for general damages should be in line with those reached in other cases involving similar wrongs. He suggests that a review of the case law reveals that the appropriate range for damages as a result of the sexual assault of an adult victim is between $75,000 and $125,000. These amounts are well below the amount awarded in this case.

[67] The respondent submits that an appellate court may not substitute its own assessment of damages merely because it would have arrived at a different figure or because the award is larger than those in similar cases. To justify intervention by an appellate court, there must be a palpable and overriding error. The difference between what was awarded and what could properly have been awarded must "be even wider than when the figure has been assessed by a judge sitting alone": Bella v. Young, [2006] 1 S.C.R. 108, [2006] S.C.J. No. 2, 2006 SCC 3, at para. 64.

[68] The respondent maintains that although the award is high and does in fact exceed the range suggested by her counsel at trial ($125,000 to $225,000), it is not so high as to shock the conscience of the court: see Hill v. Church of Scientology of Toronto (1995), 1995 59 (SCC), 24 O.R. (3d) 865, [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64.

[69] The respondent takes the position that the appropriate range, adjusted for inflation, is in the order of $96,000 to $277,000: see Evans v. Sproule, 2008 58428 (ON SC), [2008] O.J. No. 4518, 176 A.C.W.S. (3d) 895 (S.C.J.). The respondent further asserts that an award outside of this range is justified in the present case because (a) two of the assaults involved significant violence; (b) she was particularly vulnerable, being a recent immigrant with limited language skills; (c) she was required to work to support her family; [page369] (d) the appellant was her immediate supervisor and misused his position of authority and awareness of her plight for his own sexual purpose; and (e) the appellant threatened her with violence and death.

[70] There is no doubt that the jury's award for general damages was high and outside of the generally expected range. Nonetheless, I would not interfere. Although it is certainly generous and may not have been one this court would make, it is not so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole, and acting judicially, could have reached it: see McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] S.C.J. No. 23, at p. 343 S.C.R. Jury awards attract significant deference. This award, though outside the general range, is not, in my view, so exceptional as to warrant appellant intervention.

(3) Should the respondent be allowed to amend her claim to increase the claim for general damages from $250,000 to $300,000?

[71] The appellant argues that the general damages award of $300,000 should be reduced as it exceeds the $250,000 claimed in the statement of claim. No amendment to the claim was sought or obtained at trial. The respondent concedes this point. However, she asks this court to allow the amendment to the statement of claim to increase the claim for general damages from $250,000 to $300,000.

[72] I see no reason not to grant the respondent's request to amend her statement of claim. As this court stated in Beals v. Saldanha (2001), 2001 27942 (ON CA), 54 O.R. (3d) 641, [2001] O.J. No. 2586 (C.A.), at para. 99, rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 "requires the court to make those amendments unless the defendant can show prejudice that cannot be cured by costs or an adjournment". Further, the power is available at any stage of the proceeding, including on appeal: Beals, at para. 98.

[73] In this case, the appellant will suffer no prejudice if the amendment is allowed. The respondent specifically asked for general damages in her pleadings. There were sufficient pleadings to alert the appellant of the case he had to meet. While the award of $300,000 may have come as a surprise given that the amount at issue in the pleadings was $250,000, the amount awarded is not so significantly higher than the amount pleaded as to be obviously unfair. [page370]

[74] The amendment to the amount claimed does not depend on additional facts or legal arguments and the appellant has not presented any arguments addressing the issue of prejudice. In my view, an increase in the amount claimed would not have affected the way the appellant responded to the claim. I would, therefore, grant leave to the respondent to amend her pleadings to conform with the jury's general damages award.

(4) Should the jury have been instructed as to the cap on non-pecuniary damages?

[75] The appellant submits that, because the jury's award of $300,000 is very close to the limit on non-pecuniary loss -- the cap -- set by the Supreme Court of Canada in a trilogy of cases, the jury should have been instructed on the cap and the policy behind it. In the Supreme Court trilogy, the court held that a plaintiff should not recover more than $100,000 for non-pecuniary damages for personal injury: see Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, [1978] S.C.J. No. 6; Arnold v. Teno, 1978 2 (SCC), [1978] 2 S.C.R. 287, [1978] S.C.J. No. 8; and Thornton v. Prince George School District No. 57, 1978 12 (SCC), [1978] 2 S.C.R. 267, [1978] S.C.J. No. 7. The appellant submits that, adjusted for inflation, the cap was $328,000 in 2010.

[76] The respondent argues that the cap does not apply in cases of personal injury resulting from sexual assaults. In any event, the damage award did not exceed the cap and no one asked the trial judge to instruct the jury about it.

[77] I would not give effect to this ground of appeal. Even assuming that the cap applies to general damages for sexual assault, the trial judge cannot be faulted for her failure to instruct on the cap in the circumstances of this case. The ranges being proposed to the jury were well below the amount of the cap, counsel did not request such an instruction and the amount awarded did not exceed it.

(5) Was the jury inflamed by a picture filed by the respondent and by comments made by her counsel in his closing address?

[78] The appellant submits that jury was inflamed by the admission of a photograph of him under which the following caption appeared: "If you see this person, do not let him in. He is wanted." In addition, the appellant submits that counsel for the respondent's remark in his closing submissions that the appellant was "behind bars" further inflamed the jury. The result was an excessive general damages award. [page371]

[79] The respondent argues that the photograph was properly admitted as an exhibit at trial. The evidence established that the picture, which hung on the appellant's office door, caused the respondent a great deal of distress in the light of the sexual assaults perpetrated against her by the appellant. The picture was therefore relevant and there was no unfairness in its admission at trial. Further, the trial judge specifically instructed the jury as to the limited use they could make of that photograph.

[80] With respect to counsel's statement that the appellant was in jail, the respondent concedes that the statement ought not to have been made. The respondent's counsel invited the trial judge to provide a correcting instruction in the charge and a clear and blunt correcting instruction was given, including a reminder that the absence of the appellant at trial was due to medical reasons. The instruction clearly stated that the jury was "not to draw any inference, therefore, from the failure of the appellant to be present throughout his trial".

[81] In my view, the trial judge did not err in admitting the photograph into evidence and her correcting instruction on the respondent's counsel's reference to the appellant being in jail was adequate. No unfairness resulted.

(6) Was the costs award inordinately high?

[82] At the conclusion of the trial, the respondent sought costs of $258,382.82 plus disbursements on a full indemnity scale. The appellant took the position that an appropriate amount for costs was $100,000.

[83] Following submissions, the trial judge reviewed the jurisprudence and concluded that in the circumstances, it was appropriate to exercise her discretion to fix costs on a substantial indemnity basis, which she fixed in the amount of $150,000. In coming to this decision, the trial judge specifically adverted to this court's decision in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.). Considering the significant amount being claimed, the trial judge concluded that a substantial reduction was necessary in order to ensure that the award was fair and reasonable in the circumstances and was in line with the parties' expectations.

[84] In my view, the trial judge carefully reviewed the evidence and applied the correct legal test. She heavily discounted the amount of hours proposed by counsel for the respondent and, in my view, the final award of costs is fair and reasonable. [page372]

The Cross-Appeal

Did the trial judge err by precluding the respondent's claim for loss of income from being put to the jury?

[85] The trial judge ruled that she would not ask the jury to decide whether the respondent had proven a claim for loss of income. In her view, the income loss claim was not sufficiently pleaded by the respondent in her statement of claim and there was insufficient evidence tendered at trial to support it on a balance of probabilities standard. As a result, the trial judge was of the view that the jury would be unable to make a reasonable calculation of the income loss. In effect, the jury would be asked to speculate as to the amount.

[86] In her cross-appeal, the respondent argues that, although the statement of claim does not contain a separate head of damages for loss of income, it does state that, "sick with stress, M.B. avoided attending at Deluxe and suffered a resulting loss of business income". The respondent further states that her reply to the demand for particulars made clear that she had avoided the office. Additionally, the respondent points out that a notice of special damages was given to the appellant in compliance with rule 25.06(9). As a result, the respondent contends that the appellant could not have been misled or prejudiced by the absence of an explicit claim for loss of income in her statement of claim.

[87] Further, the respondent takes the position that there was at least some evidence which, if accepted by the jury, was capable of supporting a finding that the respondent suffered a loss of income as a result of the appellant's tortious conduct. The trial judge therefore erred in weighing the evidence herself as this was properly the province of the jury. The trial judge had an obligation to allow the question of liability and the question of quantum of the loss to be determined by the jury. The appellant should not be relieved of his obligation to account for the respondent's loss of income simply because it would be difficult for the jury to assess the damages.

[88] The appellant submits that the trial judge's decision is to be given deference. The determination of whether or not there was the foundation for a claim for loss of income is one of mixed fact and law.

[89] With respect to the pleading issue, the appellant argues that the trial judge correctly observed that a litigant is entitled to be aware of the case he has to meet. No claim for loss of income was advanced because it was not included in the prayer [page373] for relief nor was it particularized in the body of the claim or in the reply to the demand for particulars.

[90] The appellant further maintains that he would have been prejudiced had the issue gone to the jury. Following the service of her notice of special damages alleging a $24,000 loss, the appellant requested the respondent's income tax returns, further discoveries and production of any expert report she intended to rely on. Further discoveries were denied, the income tax returns were not provided and no expert report was provided or tendered at trial.

[91] In my view, the cross-appeal should be dismissed. The trial judge's ruling demonstrates that she had a full appreciation of the evidence and the pleadings and clearly articulated the shortcomings of both the pleadings and the evidence. She found that the claim lacked detail and substance, and consisted of no more than bald allegations that the respondent would have made more sales but for the assaults.

[92] The trial judge properly took into account the inadequacy of the pleading as well as the respondent's failure to produce her income tax statements and allow further discovery. Considering these factors and the nature of the evidence led at trial, she determined that there was simply no basis to leave the question with the jury. This ruling is entitled to deference as the trial judge was in the best position to evaluate the issue, and she did so in a reasonable manner.

Conclusion

[93] For these reasons, I would allow the respondent's amendment to the statement of claim to increase the claim for general damages to $300,000 and would dismiss the appeal and cross-appeal.

[94] With respect to costs, the parties have agreed on the quantum of costs. As I understand the submissions, the respondent is entitled to her costs for the appeal and for the appeal of the costs award in the amounts of $19,000 and $2,500, respectively. The appellant is entitled to his costs of the cross-appeal, fixed in the amount of $7,500. All of these figures are inclusive of disbursements but exclusive of HST.

Appeal and cross-appeal dismissed.

Notes

Note 1: Erik S. Knutsen is an assistant professor at the Faculty of Law at Queen's University.