ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-CV-035404A
DATE: 2012/07/27

BETWEEN:

KELLY HUDSON
Plaintiff

– and –

YOUTH CONTINUUM INC., PHILIP BRINDLE and THE BRINDLE AGENCY INC.
Defendants

Raymond A. Murray, for the Plaintiff

No one appearing for the Defendants

HEARD: June 4, 2012

REASONS FOR DECISION

R. Smith J.

Overview

[1] The plaintiff, Kelly Hudson (“Kelly”) was physically and sexually assaulted by a troubled youth while she was working as a youth care worker for the defendants’ corporations. Philip Brindle was her supervisor on the day she was assaulted.

[2] The defendants’ statement of defence has been struck and they have been noted in default. The trial proceeded on the issue of damages.

Issue #1 Amendment of amount claimed for damages for loss of income

[3] This matter is proceeding as an uncontested trial on damages as the defendants’ statement of defence has been struck and they had been noted in default. I ordered that the defendants be served with of the amended statement of claim to increase the damages for pain and suffering from $150,000 to $180,000 and from $250,000 to $500,000 for past and future loss of income because the amended amount of damages sought was significantly greater than originally claimed.

[4] The plaintiff relies on the decision of the Ontario Court of Appeal in M.B. v. 2014052 Ontario Ltd. (c.o.b. Deluxe Windows of Canada) , 2012 ONCA 135 , 288 O.A.C. 370, at para. 72 where the Court permitted the plaintiff to amend the amount claimed after the jury had awarded damages of $300,000 when only $250,000 had been claimed in the statement of claim. The Court stated as follows:

As this court stated in Beals v. Saldanha 2001 27942 (ON CA) , (2001), 54 O.R. (3d) 641 (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 .

[5] In this case, notice of the increased amount claimed has been given to the defendants and as a result, I am satisfied that there is no prejudice to the defendants if the amendment is allowed. They had been noted in default in any event.

Disposition of Issue #1

[6] As the defendants have not responded to the amended statement of claim to increase general damages to $180,000 and damages for past and future income loss to $500,000, and in the absence of any prejudice to the defendants, the plaintiff’s motion to amend is granted.

Factual Findings

[7] Kelly Hudson is 35 years of age. She graduated from Memorial University with a Certificate Programme in Criminology in 1997 and in 2000, she obtained a Bachelor of Arts degree.

[8] After graduation, Kelly initially worked for approximately two years in St. John’s, Newfoundland in a group home called St. Francis dealing with youth that were in trouble with the law. On about July 5, 2004, she applied for and was hired as a youth care worker with The Brindle Agency located in Kanata, Ontario.

[9] Kelly testified that she had a very happy upbringing and before the assault occurred, she felt that bad things did not happen to her, that she was open and trusting and took life as it was.

[10] On July 15, 2005, the plaintiff was working at the group home operated by the corporate defendants at 62 Equestrian Drive in Kanata. During the afternoon, she was attacked and sexually assaulted by one of the residents. Prior to the assault, the plaintiff had instructed the resident to remain in a room on his own as a disciplinary measure in accordance with the policies and procedures of the group home. The resident escaped the room and stated his intention to leave. The plaintiff contacted her supervisor, Philip Brindle who advised Kelly not to give the resident his shoes or to acquiesce in his leaving the home. The resident became very angry and the plaintiff was assaulted by the resident who struck her with a vase, choked her with a cord, overpowered her, restrained her and sexually assaulted her at the group home. The resident threatened her as he raped her and told her not to leave the locked office or he would “get her in the future”.

[11] The plaintiff suffered cuts and bruises to her head requiring stitches and suffered physical injuries to various parts of her body, including to her neck where the telephone cord had choked her, and leg lacerations with scarring. She was sexually assaulted by the resident and was required to take anti‑HIV drugs and therapy as well as hepatitis shots. As a result of taking the HIV drugs and therapy, she had flu like symptoms which weakened her immune system and she developed shingles.

[12] Kelly testified and I accept her evidence that the sexual and physical assault has had a severe impact on her life. She now fears youth in general, she suffers nightmares, continues to suffer with anxiety, and she is now less carefree and trusting. She was unable to return to work with troubled youth as a result of the incident. She has been forced to return to school and pursue a different career path in public relations.

[13] Kelly has undertaken psychological therapy, and she does not enjoy being analyzed. Her psychiatrist in Halifax, Nova Scotia was of some assistance, as he helped her deal with her anxiety.

[14] Kelly has been forced to move from Ottawa as the troubled youth relocated in Ottawa and she feared meeting him due to the threat made during the assault. She spent one year seeing an employment counsellor at the YMCA, taking courses in public relations and event management. She graduated with honours and has been able to find another job in Halifax earning approximately the same income that she earned in 2004. She moved to Halifax in the summer of 2008. Seven years following the incident she is now feeling stronger.

[15] Kelly earned $38,173 in 2004 and $38,000 to $40,000 in 2005. She received Employment Insurance from January to July 15, 2006, she did some babysitting and earned $25,933 in 2006; she attended school for one full year and obtained part‑time employment at the College and earned $30,205 until 2007. She earned $20,908 in 2008 as she attended school from January to April, 2008 and worked at the College. She earned $11,522 in 2009 working in retail and performing some contract work from home. She earned $12,355 in 2010. She obtained employment at the Canadian Breast Cancer Association and earned $33,000 during 2011. Her anticipated income for 2012 will be $38,000.

Issue #2 What are Kelly’s general damages for pain and suffering ?

[16] In K.T. v. Vranich , 2011 ONSC 683 , A.C.R. Whitten J. awarded $125,000 in general damages to a young bartender who was sexually assaulted at the bar by her manager. K.T was a 22 year old university student who obtained summer employment as a bartender/waitperson in the City of Hamilton. The defendant Vranich was the de facto manager of the establishment. In the closing hours, when only friends of the defendant and bar staff were present, the defendant isolated K.T. and sexually molested her. The attack was callous and without warning and traumatized K.T. so much that the effects of the assault linger to this day. These facts are very similar to the case before me as Kelly continues to suffer trauma and the effects of the assault up to the present time.

[17] In the K.T. , supra decision, damages were awarded based on the negligence of the manager for which the corporate defendants as employers were vicariously liable. This is the same situation on the facts before me.

[18] At para. 95 of the K.T., supra, decision, the Court quoted Cromwell J.A. in B.M.G. v. Nova Scotia (Attorney General) , 2007 NSCA 120 () , [2007] N.S.J. No. 506 (NSCA) and stated as follows:

At para. 120 of B.M.G. Justice Cromwell spoke of taking a functional approach to the assessment of non-pecuniary damages in cases of sexual battery. The objectives of such an approach are to: provide solace for the victim, to vindicate the victim’s physical autonomy and dignity, and through an award of aggravated damages, account for the humiliating and degrading nature of the defendant’s conduct.

[19] At para. 99 in K.T. , supra , the Court referred to the factors to be considered which include:

• The circumstances of the victim at the time of the events, including factors such as age and vulnerability:

• the circumstances of the assault including their number, frequency 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,

• the consequences for the victim of the wrongful behaviour including ongoing psychological injuries ( B.M.G. , supra at para. 134 , Cromwell J.).

[20] Aggravated damages are assessed under the heading related to general damages. They are not awarded in addition to general damages but rather are part of the assessment of general damages. In K.T. , supra, at para. 109 , the Court stated aggravated damages describe “ ‘an 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’ ( Vorvis v. Insurance Corporation of British Columbia , 1989 93 (SCC) , [1989] 1 S.C.R. 1085, at para. 16 , McIntyre J.)”

[21] In K.T. , supra, the Court awarded general damages of $125,000 which included $50,000 for the aggravated damages arising out of her personal distress and humiliation.

[22] In the decision of Kauk v. Dickson , 2005 CarswellOnt 3987, (Ont. S.C.J.) , the plaintiff was viciously attacked, badly beaten, bitten, and sexually assaulted by the defendant after she had left a bar. The defendant pleaded guilty to assault and was sentenced to eight years in penitentiary. The plaintiff was awarded non pecuniary damages of $75,000.

[23] In Paton v. Phaure , 2002 CarswellOnt 2389 (Ont. S.C.J.) , Granger J. awarded general damages of $75,000 and aggravated damages in the amount of $20,000 to the plaintiff who was driven to a deserted area and sexually assaulted. The plaintiff feared for her life while she was being assaulted in the van.

[24] In this case, the plaintiff had to give up her livelihood and her career that she had dreamed of pursuing, had to engage in therapy and has had some setbacks. She has been forced to move away from where the offender lives, namely the City of Ottawa and has had to return to school. She continues to have intimacy problems, emotional issues, stress and nightmares.

[25] In this case, the plaintiff seeks damages of $100,000 for general damages, inclusive of aggravated damages. I find that the amount sought is somewhat above the amounts awarded in the case law, including the K.T., supra, decision which has very similar facts.

Disposition of Issue #2

[26] For the above reasons, I award the plaintiff general damages of $150,000, inclusive of $50,000 for aggravated damages.

Issue #3 What are Kelly’s damages for income loss to trial and for loss of future income ?

[27] The plaintiff filed an expert report by a chartered accountant and business evaluator. Mr. Nafekh, has signed the Form 53 acknowledging his duty to the Court as an expert witness. In Mr. Nafekh’s opinion, Kelly’s loss of income to June 4, 2012 was $188,200. I accept his opinion and calculations and award the plaintiff $188,200 for past income loss up to June 4, 2012.

[28] Mr. Nafekh has also provided his expert opinion that Kelly will suffer future loss of income in the amount of $343,400 less than what she would have earned if she had continued working as a community and social service worker. Alternatively in scenario two, in his opinion, her loss of future income will be $508,100 when he assumed she would have progressed to a probation or parole officer. I am not satisfied on a balance of probabilities that the plaintiff would have progressed to a probation or parole officer as there was no evidence that she intended to work in those areas.

Disposition of Issue #3

[29] I accept the expert opinion of Mr. Nafekh on Kelly’s loss of future income and I assess her loss of future income at $300,000 after discounting the amount by $43,000 to account for contingencies.

Final Disposition of Damages

[30] I order that the defendants, jointly and severally, pay to the plaintiff:

(a) $150,000 for general damages;

(b) $188,200 for past loss of income; and

(c) $300,000 for loss of future income.

Costs

[31] The plaintiff may make written submissions on costs and pre-judgment interest within ten (10) days.

R. Smith J.

Released: July 27, 2012

COURT FILE NO.: 06-CV-035404A
DATE: 2012/07/27

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KELLY HUDSON Plaintiff – and – YOUTH CONTINUUM INC., PHILIP BRINDLE and THE BRINDLE AGENCY INC. Defendants REASONS FOR DECISION R. Smith J.

Released: July 27, 2012