ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 17535/11
DATE: 2012/10/10

B E T W E E N:

D.B., T.V.B., B.R., R.R., B.D., P.B. and V.R.R.

Ted Tichinoff, for the Plaintiffs

Plaintiffs

• and -

R.J.

No one appearing for the Defendant

Defendant

HEARD: August 14, 2012

The Honourable Mr. Justice Norman M. Karam

JUDGMENT

[ 1 ] This is a claim by the various plaintiffs, each an acquaintance or neighbour of the defendant R.J., for damages arising from assault, battery and the intentional infliction of mental suffering. The defendant did not defend this action, nor did he appear at trial. The plaintiff P.B. did not appear and his claim will be dismissed without costs.

[ 2 ] Each of the plaintiffs who did proceed testified to a series of demeaning, humiliating and outrageous instances of sexual touching and associated sexual harassment, which on the basis of the testimony of each of them, was usually done in the presence of others, and was clearly intended to cause them mental anguish and embarrassment. The behavior at issue arose during social interaction between the parties and occurred, for the most part, during the spring and summer of 2009. Verbal requests made to the defendant by the various plaintiffs to stop this behavior were ignored. The defendant has been described as a very large man who was usually under the influence of alcohol at the relevant times, but whose behaviour it appeared from the evidence was clearly intentional.

[ 3 ] The plaintiff V.R.R, who was the first to testify, is the daughter-in-law of the plaintiffs B.R. and R.R.. She gave evidence that during the spring of 2009 she was introduced to the defendant, who is the R.’ neighbour, while visiting their home in the small rural hamlet of Genier, near the Town of Cochrane. He began directing lewd sexual suggestions to her about the size of her breasts and suggesting that he be permitted to touch her buttocks and have sex with her. At first, his behavior was simply regarded as rude and obnoxious and the product of alcohol. In fact, up to that point in time, although socially reprehensible, his behavior was not actionable.

[ 4 ] Over the course of the summer, he continued to make similar comments and to whistle and make catcalls at her whenever he saw her. Then, on one occasion, he touched her breasts while she was visiting her in-laws. In so doing, he committed a battery. Thereafter she became fearful of him and felt that she was in imminent danger of being touched again whenever he was present. She attempted to avoid him; however, later that summer he grabbed her buttocks at another social gathering at her in-laws’ home. She testified that his behavior, which was usually in the presence of others, embarrassed and disturbed her, which appeared to be his intention. She also stated that his actions diminished her sense of self-esteem, frightened her, and has caused her to be wary and apprehensive of men. She has since moved to another municipality where she has undergone counseling, although there were no details of the specific purpose for counseling or any medical evidence to support the necessity for it.

[ 5 ] A second plaintiff, T.V.B., testified that she first met the defendant through his wife, while the two women were both employees at a gas station. This led to social contact between the J. and Mrs. T.V.B. and her husband, whereupon the defendant soon began to make sexual comments and suggestions to her, usually despite her husband’s presence. In June of 2009, he grabbed her buttocks with both hands while she was entering her residence and he was walking behind her. Shortly thereafter during the same visit, he asked her, in front of her husband and others, if she shaved her vaginal area. This type of harassment, without touching, continued for the remainder of that summer causing her to become fearful of further sexual touching by the defendant. It appears that his behaviour was less for a sexual purpose than to intimidate and embarrass her. The plaintiff testified that since these incidents, she has become fearful of men, and has had difficulties communicating with her husband.

[ 6 ] B.R. has been the defendant’s neighbor since he moved to Genier about six years ago. At first, he began visiting regularly, which she and her husband did not discourage. However, he became very persistent and a nuisance and they had difficulty persuading him to leave. During the spring of 2009, he started to make suggestive sexual comments to Mrs. V.R.R. regarding her breasts and vaginal area, as well as sexual propositions, usually in the presence of others. On one occasion, during this period, he rubbed her legs with his hands. On another occasion he physically pushed her into a bedroom closet and asked her to leave her husband to be with him. As this behaviour continued, she became increasingly upset and apprehensive and attempted to avoid him when he visited. However, he persisted in entering into their yard and whistling and yelling crude comments at her when he saw her.

[ 7 ] Although there was no expert medical evidence provided, Mrs. V.R.R. testified that she has suffered from various health problems in the past, including depression and heart problems necessitating surgery. She claimed that the actions of the defendant exacerbated her health problems and resulted in further stress and depression. She testified that she is still frightened of the defendant, who remains her neighbour, and is afraid to be alone. She now locks the doors to her home and pulls the blinds closed. She testified that her relationship with her husband has also been negatively affected.

[ 8 ] The fourth plaintiff to testify was B.D., who in the spring of 2009 lived about a mile away from the defendant. At the time the plaintiff was living in a common law relationship, and her partner was often absent. The defendant first came to visit her and her partner, along with his wife, to see some puppies. The defendant soon began to visit regularly, uninvited, and whenever he did, he would make inappropriate sexual comments about her. In the spring of 2009, while visiting her at her home, he groped her breasts and her vaginal area. Later during that summer, during a party at the R.’ residence, he made demeaning and embarrassing remarks to her in front of others, which caused her to leave the party. He followed her out and then began groping her breasts and her vaginal area once again.

[ 9 ] Having previously been the victim of sexual abuse, this plaintiff became extremely distraught. Although there was no independent medical evidence provided relating to this plaintiff, Ms. B.D. stated that she was bed-ridden at one stage, because of the stress resulting from the behavior of the defendant. She also stated that she continues under doctors’ care, including psychiatric consultation and medication, in part owing to the actions of the defendant.

[ 10 ] Each of the two male plaintiffs, R.R. and D.B., described several instances during which the defendant forcefully touched or grabbed their genitalia without warning. For example, in perhaps the most egregious incident, he entered the R. household, walked passed Mrs. V.R.R. and in her presence, got into bed with a nude Mr. R.R. and grabbed his genitals. On another occasion he groped Mr. D.B.’s genital area, over his clothes, at his garage in the presence of Mr. R.R.. Although amounting to batteries in each case, it is difficult to know whether from the defendant’s perspective this was just horseplay. Both men claimed to have suffered from ensuing depression and emotional distress, by virtue of the defendant’s behavior.

[ 11 ] In an attempt to put an end to the defendant’s behaviour, the plaintiffs approached the police as a group in the late summer of 2009, and as a result he was charged with several counts of sexual assault. In the end, he pleaded guilty to a single charge of common assault and was placed on probation, including a requirement that he keep his distance from the plaintiffs in the future. Although the plaintiffs were dissatisfied with this disposition, it appears that since then, there have been no further instances of battery and the objectionable behaviour has substantially subsided.

[ 12 ] I find that the actions of the defendant, in all instances in which he touched the plaintiffs without consent, constituted battery. It is equally clear that in the cases of each of the women, the touching, accompanied by the very derogatory and intimidating remarks, caused them to fear further imminent sexual battery, and in so doing amounted to an assault. Finally, I am satisfied that his primary intention was to intimidate, embarrass and demean the plaintiffs. In other words he intentionally inflicted mental suffering. I am satisfied that each of the plaintiffs suffered stress and embarrassment compensable in damages.

[ 13 ] In assessing damages, it is important to consider the effect upon the plaintiffs, and the invasive nature of the defendant’s actions. Certain of these instances went beyond tolerable social behaviour. The whistling, catcalls and insults by themselves, however objectionable, cannot support a claim for damages. On the other hand, the non-consensual touching aside, each of the female plaintiffs, satisfied me that they had suffered humiliation and intimidation and an apprehension of sexual assault.

[ 14 ] They took the defendant’s behavior very seriously, to the extent that they went to the police and proceeded with criminal charges in an attempt to put a halt to it. Clearly, his actions varied in their degree of seriousness and affected the various plaintiffs differently. However, the period over which the actionable incidents occurred, the spring and summer of 2009, was a relatively short period of time. It must also be kept in mind that while some of the witnesses testified to a resulting necessity for medical care and counseling and all of them described stress-related effects, there was no expert medical evidence provided to this Court.

[ 15 ] With respect to the two male plaintiffs, while the defendant’s actions toward them were invasive, unwanted and without consent, I have some difficulty in accepting their evidence that they suffered ongoing emotional effects. Furthermore there was no evidence that they made any serious effort to prevent the defendant’s behaviour toward them. In different circumstances, it is plausible to imagine that this type of behaviour among friends could be seen as horseplay. However, given the surrounding context and the failure of the defendant to testify and to offer an explanation, I am unable to find that his actions were anything but batteries. It is noteworthy that, considering that they were often present when the defendant touched, insulted, and frightened the female plaintiffs, they did little to prevent that behaviour as well.

[ 16 ] Counsel alerted me to the fact that this action was commenced in May of 2011 and that some of the incidents complained about may have occurred more than two years prior to that time. However, on the basis of the evidence led at trial, it is apparent that the behavior complained of, extended to within the two year limitation period. In any event, since the defendant has not raised the issue, I am satisfied that this action was commenced in a timely manner.

[ 17 ] Accordingly, I fix general damages as follows: B.D. $5,500.00

B.R. $4,500.00

V.R.R $3,000.00

T.V.B. $3,000.00

D.B. $350.00

R.R. $500.00

[ 18 ] There were no special damages proven and in view of the criminal proceedings this is not an appropriate case for punitive damages.

[ 19 ] The matter of costs may be dealt with either by conference call or in writing, whichever counsel prefers.

Released: October 10, 2012 The Honourable Mr. Justice Norman M. Karam

COURT FILE NO.: 17535/11
DATE: 2012/10/11

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: D.B., T.V.B., B.R., R.R., B.D., P.B. and V.R.R. Plaintiffs - and – R.J. Defendant REASONS FOR JUDGMENT The Honourable Mr. Justice Norman M. Karam

Released: October 10, 2012