B.D. v. D.O.

[Indexed as: D. (B.) v. O. (D.)]

Ontario Reports Court of Appeal for Ontario Sharpe, Juriansz and Trotter JJ.A. January 20, 2020 149 O.R. (3d) 81 | 2020 ONCA 29

Case Summary

Torts — Sexual battery — Plaintiff claiming to have been injured by being anally penetrated by defendant — At trial, defendant denying anal penetration despite admitting it in statement of defence — Trial judge considering defendant's evidence to be only partly undermined whereas several deficiencies identified in plaintiff's evidence — Trial judge's credibility findings entitled to deference with no reason to disturb them.

The parties were co-workers engaged in a sexual relationship. The plaintiff testified that on a lunch break they went to a secluded area and had sexual intercourse. The defendant told the plaintiff to turn onto her stomach. The plaintiff felt excruciating pain, almost to the point of passing out. By the time they returned to work, the plaintiff noticed that she was bleeding quite badly. She was treated for a rectal fissure. Expert medical evidence suggested that it would have taken a traumatic event beyond regular anal penetration to cause the injury. The defendant admitted at trial that he penetrated the plaintiff from behind, but vaginally, not anally. In cross-examination he was confronted with his statement of defence, in which he admitted to digitally penetrating the plaintiff's anus. He denied it and could not explain why it was in the pleading. He had also disavowed the admission at his examination for discovery. The trial judge identified a number of deficiencies in the plaintiff's evidence, noting that she gave differing accounts of the incident to different people, which were contradicted by her testimony at trial, and that she saw her family doctor on two occasions over the course of two weeks before mentioning her injury. The trial judge contrasted the plaintiff's evidence with the defendant's account, which he characterized as straightforward, and only partially undermined by his cross-examination on the statement of defence. The trial judge was not satisfied on a balance of probabilities that the plaintiff had proven either sexual battery or negligence. The plaintiff appealed.

Held, the appeal should be dismissed.

The trial judge was alive to the legal issue regarding the admissions in the statement of defence, and clearly treated the defendant's trial evidence as an attempt to withdraw an earlier admission, which was within his discretion. It was not an error to focus on the battery evidence to the exclusion of the negligence evidence, as the judge observed that both causes of action were factually intertwined. The trial judge carefully evaluated all of the evidence and was simply not satisfied that the standard of proof had been met. His credibility findings were entitled to deference and there was no reason to disturb them.

Cases Referred To

F.H. v. McDougall, [2008] 3 S.C.R. 41, [2008] SCJ No 54, 2008 SCC 53 (S.C.C.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33 (S.C.C.); P.P. v. D.D. (2017), 137 O.R. (3d) 138, 2017 ONCA 180 [page82]

APPEAL by the plaintiff from the dismissal of action for sexual battery and negligence, [2018] O.J. No. 2079, 2018 ONSC 1464 (S.C.J.).

Pedram Najafi, for appellant.

No one appearing for respondent.

The judgment of the court was delivered by

[1] THE COURT: -- The appellant brought an action against the respondent for sexual battery and negligence. The trial judge held that the appellant failed to establish either claim on a balance of probabilities and dismissed the action in its entirety.

The Evidence

[2] The events giving rise to this case occurred in 2006. The appellant and the respondent were co-workers. They commenced a sexual relationship. The respondent was married at the time. He testified that he wanted to end the physical aspect of their relationship, and conveyed this to the appellant. They decided to have sex again for the last time.

[3] The appellant testified that the two went to a wooded area during a lunch break and had sexual intercourse. The respondent told her to turn onto her stomach. The appellant testified that she then felt excruciating pain; she almost passed out. The appellant thought that the respondent attempted to penetrate her anus with his penis, and with his fingers or hand.

[4] The appellant and the respondent returned to work. The appellant testified that she asked the respondent, "So, what made you think to do that?" According to the appellant, the respondent said that it was something he wanted to try. By the time the two returned to work, the appellant noticed that she was bleeding quite badly.

[5] The appellant saw her family physician twice before mentioning and seeking treatment for anal pain two weeks after the anal sex allegedly occurred. A rectal fissure was observed and the appellant was eventually referred for specialized treatment. She received Botox treatment to help heal her fissure. She subsequently suffered incontinence that resulted in a temporary colostomy. The colostomy was eventually reversed, but the appellant was left with permanent weakening of her sphincter.

[6] The appellant relied on the evidence of two medical experts who opined that it would take a traumatic event to cause the appellant's injury. Dr. Zane Cohen, a colorectal surgeon, testified that "regular anal penetration" would not be the cause. Possible [page83] causes would include (a) rough sex involving larger objects being used during anal sex; (b) child birth; (c) car accident; or (d) impalement.

[7] The respondent, who was self-represented at trial, agreed that he had sexual intercourse with the appellant. He also admitted that he penetrated the appellant from behind, but vaginally, not anally. The respondent testified that, when they were finished, he and the appellant returned to work. The appellant made no complaint of pain. Shortly after this event, the respondent was away on holiday. When he returned, the appellant seemed withdrawn. The respondent believed that the appellant was upset with him for ending the relationship. On one occasion, she alleged that he had penetrated her anally, which he denied.

[8] In cross-examination, the respondent was confronted with his statement of defence, which the lawyer he had retained at the early stages of the proceeding had filed on his behalf. In the statement of defence, it was admitted that the respondent digitally penetrated the appellant's anus. The respondent denied that this was true. He had no explanation why it was included in his statement of defence. This was not the first time that the respondent disavowed these admissions in his pleading; he also testified that he did so during his examination for discovery, which took place roughly nine years before the trial. Asked why he did not amend his statement of defence, the respondent said he was not aware that he could.

The Trial Judge's Reasons

[9] The trial judge prepared detailed written reasons for judgment. He properly articulated the legal elements of sexual battery, relying on P.P. v. D.D. (2017), 137 O.R. (3d) 138, 2017 ONCA 180. The trial judge was very focused on the standard of proof, which turned out to be determinative in this case. The trial judge quoted from F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53 including para. 46, in which Rothstein J. said: "If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test."

[10] The trial judge acknowledged, at para. 44, "There is no doubt that if I accept the Plaintiff's evidence regarding the events, she would have established the tort of sexual battery." The trial judge also said, at para. 46, that even if it was not proved that the respondent caused the appellant's sphincter injury, he would still be liable for sexual battery if he touched her without her consent. [page84]

[11] The trial judge engaged in a careful assessment of the credibility of the appellant and the respondent. He identified a number of deficiencies in the appellant's evidence, noting that she gave differing accounts of the incident to different people, which were contradicted by her testimony at trial, and that she saw her family doctor on two occasions over the course of two weeks before mentioning her injury. The trial judge contrasted the appellant's evidence with the respondent's account, which he characterized as straightforward, and only partially undermined by his cross-examination on the statement of defence. In the end, the trial judge found, at para. 52: "I am not satisfied on a balance of probabilities that [the respondent] penetrated [the appellant] anally or touched her in any way without her consent."

Analysis

[12] The appellant submits that the trial judge made a number of errors in his analysis. We are not persuaded by these submissions.

[13] The appellant submits that the trial judge erred in not giving effect to the respondent's admissions in his statement of defence. We disagree. The trial judge was alive to this legal issue. It is clear that he treated the respondent's trial evidence as an attempt to withdraw his earlier admission. It was within the discretion of the trial judge to grant leave to withdraw the admission as the appellant was not prejudiced by this turn of events, having had plenty of advance notice of this shift, at least as far back as the respondent's discovery almost nine years before the trial.

[14] The appellant argues that the trial judge erred by failing to deal separately with the evidence as it related to negligence, focusing all of his attention on battery. We disagree. The trial judge observed that both alleged causes of action were intertwined factually. At para. 40, he said, "In either case, the Plaintiff argues that the legal result would be the same." Critical to both torts was whether the respondent touched the appellant's anal area (with his hands and/or penis) without her consent. The failure to prove this fact was fatal to the entire action.

[15] Lastly, the appellant challenges the manner in which the trial judge evaluated the evidence, arguing that he confounded the issues of liability and causation of the appellant's injuries. Again, we disagree.

[16] As discussed above, the trial judge carefully evaluated all of the evidence. He was simply not satisfied that the standard of proof had been met. He identified problems with the appellant's evidence and noted that it was roundly contradicted by the respondent's account. While the trial judge's finding, at para. 48, [page85] that the appellant "did not know what happened" during the alleged sexual battery may be at odds with a brief portion of her testimony in which she described the incident, this finding was one of many factors he considered in his credibility assessment of the appellant. His credibility findings are entitled to deference on appeal: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 24. We are not satisfied that there is any reason to disturb them.

Disposition

[17] The appeal is dismissed. We make no order as to costs.

Appeal dismissed.