COURT FILE NO.: 07-FL-2834

DATE: 2012/01/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FRANK KEVIN SHAW

Applicant

– and –

SUZANNE SHAW (now known as Suzanne Brunelle)

Respondent

Ross Stewart, for the Applicant

Michele Labrosse and Richard Shanbaum, for the Respondent

HEARD: February 22, 23, 24, 25 and May 16, 17, 18, 19, 20, 24 and 25, 2011

blishen j.

Introduction

[1] This case involves a number of family law claims as well as Ms. Brunelle’s claim for damages resulting from an alleged assault by Mr. Shaw. It was agreed that the trial be divided into two parts, the first to deal with the parties’ family law claims and the second, Ms. Brunelle’s claim for damages.

[2] Prior to trial, the parties resolved the majority of the family law issues including spousal support and the disbursement of the balance of net proceeds of sale of the matrimonial home, by partial Minutes of Settlement dated February 23, 2011. It was agreed that the division of net family property be by way of an equalization payment from Suzanne Brunelle, to Kevin Shaw in the amount of $40,000.00, subject to a determination of the location, possession and value of certain items from: (1) the parties’ family property; (2) the estate of Jane Shaw, Kevin Shaw’s mother; and (3) the estate of Madelaine Shaw, Mr. Shaw’s former wife.

[3] It was agreed that pursuant to s. 4(2) of the Family Law Act, R.S.O. 1990, c. F.3, the value of any assets inherited by Mr. Shaw from his mother after the date of marriage would normally be excluded from a calculation of his net family property. Further, it was agreed that pursuant to s. 4(1) of the Family Law Act any assets inherited by Mr. Shaw from the estate of his late wife, Madeline Shaw, prior to the date of marriage, would be deducted in calculating Mr. Shaw’s net family property.

Background

[4] The parties were involved in a short term marriage between August 18, 2006 and August 22, 2007. Both had been previously married and both have two adult children from those marriages. Ms. Brunelle was a high school teacher in Toronto. She met Mr. Shaw in August 2005 while doing some part-time work with World Financial Group (WFG). The relationship developed quickly. At Mr. Shaw’s request, Ms. Brunelle took early retirement from the Toronto District School Board in May 2006 and moved to Ottawa to reside with him. They were married in Victoria, B.C. on August 18, 2006. Mr. Shaw was, and continues to be, a branch manager for World Financial Group in Ottawa.

[5] At the time of marriage, the parties resided in Mr. Shaw’s home at 6033 Meadowhill Crescent, Ottawa. In the fall of 2006 they moved to the matrimonial home at 1658 Autumn Ridge Drive, Ottawa. At the time of separation, the parties were residing in the matrimonial home with Mr. Shaw’s two children from his previous marriage, Jason and Byron Shaw who were then 20 and 16 years old respectively.

[6] The parties separated on August 22, 2007, when Mr. Shaw was criminally charged with assaulting Ms. Brunelle. As a result of an incident between the parties on August 22, 2007, Ms. Brunelle suffered a serious fracture to her right wrist, which required surgery and the insertion of screws and a metal plate. Mr. Shaw was ordered not to attend the matrimonial home nor to have any contact with Ms. Brunelle. When he left the home he took only a few personal items and for some time resided at his office on Youville Drive in Ottawa. Jason and Byron Shaw continued to reside in the matrimonial home with Ms. Brunelle until early October 2007. From October, 2007 to May 14, 2008 the only person residing in the matrimonial home on Autumn Ridge Drive was Ms. Brunelle.

[7] In October 2007, Mr. Shaw brought an Application, amended on consent on January 26, 2011, requesting, among other things, an unequal division of net family property and exclusive possession of the matrimonial home and its contents. In her Answer, Ms. Brunelle requested spousal support, exclusive possession of the matrimonial home and contents and damages for the intentional infliction of physical and emotional harm, the amount of which was to be further specified.

[8] On March 17, 2008, Hackland RSJ ordered the matrimonial home be sold to Mr. Shaw for $510,000 with the net proceeds of sale to be held in trust. The sale was to be finalized and vacant possession provided to Mr. Shaw on May 15, 2008.

[9] Ms. Brunelle found alternate accommodation and left the matrimonial home on May 14, 2008. Two to three weeks prior to her move, she began to move items from the matrimonial home to her new residence. On May 15, 2008, Mr. Shaw took possession of 1658 Autumn Ridge Drive and continues to reside there.

[10] On October 6, 2008, Ratushny J. ordered Mr. Shaw pay Ms. Brunelle $1,000.00 a month spousal support. She further ordered $90,000.00 from the net proceeds of sale of the home released to Ms. Brunelle. Pursuant to the partial Minutes of Settlement, spousal support terminated April 30, 2011.

[11] On December 18, 2008 after trial, Mr. Shaw was found not guilty of assault causing bodily harm to Ms. Brunelle.

[12] Ms. Brunelle, who is now 63 years old, resides alone and maintains herself on some self‑employment and pension income. According to her February 16, 2011 Financial Statement, without spousal support, her annual income is approximately $52,690.00. She continues to suffer pain and some disability due to the fracture of her right wrist which has required therapy, rehabilitation and medical care.

[13] Mr. Shaw continues to reside in the former matrimonial home and to work as a branch manager for WFG. His February 3, 2011 Financial Statement indicates an annual income of $60,926.16.

Property Issues

Positions of the Parties

[14] Mr. Shaw alleged three categories of missing items (Exhibit 1) were in the matrimonial home and in Ms. Brunelle’s possession from August 22, 2007 until his return on May 15, 2008. He argued an inference can be drawn that the items were either removed or disposed of by Ms. Brunelle, prior to or on May 14, 2008. The categories are:

1. items inherited by him prior to marriage from the estate of his late wife, Madeline Shaw;

2. items inherited from the estate of his late mother, Jane Shaw, during the marriage; and

3. household items and furniture to which he was at least partially entitled.

[15] Ms. Brunelle argued that, with a few exceptions, she did not see nor have in her possession the items from Madeline Shaw’s estate, nor the items from Jane Shaw’s estate, while residing in the matrimonial home from August 22, 2007 to May 14, 2008. She testified she does not know the location of those items and denied removing or disposing of them. She further argued that the items listed in category three of Exhibit 1 were largely joint purchases. When she left the matrimonial home, she took all items that belonged to her prior to marriage, along with what she considered a fair share of items jointly purchased.

[16] At the end of part one of the trial, Mr. Shaw proposed a resolution regarding the items in category three, by an order that Ms. Brunelle return the IBM laptop computer and the light fixture that had been over the dining room table, whereas Ms. Brunelle offered to return an oil painting Mr. Shaw alleged was a gift from his sister and which he valued at $10,000.00.

[17] Based on a review of the relevant evidence including photographs filed (Exhibits 4, 7) and the DVD (Exhibit 2) and based on the proposed resolution by both parties, I order Ms. Brunelle to return to Mr. Shaw the laptop computer and the former dining room light fixture. The only remaining items in dispute are those from Madelaine and Jane Shaw’s estates.

Issues

[18] Has Mr. Shaw met the burden of proving on a balance of probabilities the following:

1. The estate items listed in categories one and two of Exhibit 1 were located within the matrimonial home on Autumn Ridge when he left on August 22, 2007.

2. Ms. Brunelle was in possession of the matrimonial home and its contents including the items in question.

3. There is evidence or it can be inferred that Ms. Brunelle either removed or disposed of the items.

4. The appropriate values of the items to be imputed to Ms. Brunelle are those outlined by Mr. Shaw in Exhibit 1 with attachments.

[19] The credibility of the parties is important in determining these issues.

Items from Madelaine Shaw’s estate

[20] In Exhibit 1, Mr. Shaw lists 25 missing items from his former wife’s estate that he alleges were left in the matrimonial home on August 22, 2007. His evidence regarding these items was minimal.

[21] Mr. Shaw testified that before she died Madelaine made a list of items and to whom they should be bequeathed. Mr. Shaw did not produce the list. He did not provide any evidence as to: (1) what items he was to receive; (2) where they were located in the first home; (3) whether they were used by the family; (4) whether some or all were packed to be moved; (5) how they were packed; (6) whether they were ever unpacked or used in the new home; and (7) if unpacked, where they were located in the new home. Four people resided in both homes: Mr. Shaw, Ms. Brunelle, Jason Shaw and Byron Shaw. Unfortunately Jason Shaw did not testify and Byron Shaw provided no evidence regarding any of the items from his mother’s estate.

[22] Mr. Shaw testified that jewellery, which he valued at $17,500.00, was worn by Madelaine days before she died on February 23, 2005, was then placed in her jewellery box. It was never placed in the home safe on Autumn Ridge. Mr. Shaw provided no explanation as to why over two years later when he left the matrimonial home, this very expensive jewellery would still be left in a jewellery box.

[23] Ms. Brunelle testified she had seen this jewellery but it was replaced in the household safe. The only individuals with the combination to the safe were Mr. Shaw and his son Jason.

[24] Ms. Brunelle went through each item listed by Mr. Shaw and provided evidence as to whether she had ever seen the item in the matrimonial home and, if so, where and what transpired with respect to it. She testified she never saw the jewellery in the new matrimonial home, nor the Christmas china, Dansk items, silver goblets, porcelain vase, painting, mirror or other jewellery in the jewellery box. It was Ms. Brunelle’s recollection that all the valuable jewellery was kept in the safe to which she did not have the combination. She did see the fine china in the kitchen cupboards but indicated that she never used this china as she had her own and the couple seldom entertained. With respect to Madelaine’s dresses, Ms. Brunelle testified she last saw them in the first home. Mr. Shaw gave them away when they moved. The silver goblets referred to by Mr. Shaw were last seen by Ms. Brunelle in the original home. Mr. Shaw referenced some patio furniture some of which Ms. Brunelle acknowledged removing. Ms. Brunelle testified that the paints and paint brushes Mr. Shaw valued at $3,500.00, were seen by her at both houses. She recalled seeing them in the corner in the back room of the basement. It was her evidence that the paints were dried up and Byron took some of the brushes.

[25] There are difficulties with Mr. Shaw’s valuation of these items as follows:

1. He provides replacement values not fair market values as of the date of separation.

2. There is no evidence as to when these items were purchased, the specific nature of a number of the items and their appraised value on the separation date;

3. Mr. Shaw provides computer printouts and E-Bay values for a number of the items. This is clearly not evidence that can be afforded much weight. Given the number of items and the value attributed to them by Mr. Shaw, the onus was on him to provide expert evidence.

4. Mr. Shaw provided no direct evidence as to: the manufacturer or pattern of the dinnerware or flatware, when it was purchased, what was the cost, how many pieces were in the set, the value of the pieces, etc. He simply attached computer printouts and asks the court to assume that these were the items. There was no direct evidence in this regard.

[26] Finally, it is to be emphasized that this is a family law proceeding. As was noted at the outset, any items that Mr. Shaw received from his first wife’s estate that were brought into the marriage would be considered pre-marital deductions from his net family property. As the net family property noted on his NFP statement equals zero, then such deductions would make no difference.

[27] In conclusion, given the weaknesses in the evidence with respect to location, possession, and valuation, I do not find Mr. Shaw has met the onus on him with respect to the items from Madelaine Shaw’s estate. There will be no order with respect to those items.

Items from the estate of Frank and Jane Shaw

[28] Mr. Shaw testified that he received certain items from his parents prior to their death which were in the matrimonial home on August 22, 2007. Included were: a rocking chair, Royal Dalton figurines, a Royal Dalton foot warmer, Toby jugs and mugs, Pinwheel crystal and a pine bookcase with doors. He provided no evidence as to when he received those items, although his sister, Brenda Marin‑Link, testified that some items were distributed in 1999. As with the items from Madelaine Shaw’s estate, Mr. Shaw provided no evidence as to the location in the first home; if they were moved; the location in the second home and whether the items were used by the family. Again, Jason Shaw did not testify and Byron Shaw who was a witness provided no evidence regarding these items.

[29] Ms. Brunelle testified as follows: the rocking chair was a rocking chair she inherited from her father. She was aware of the Royal Dalton figurines but last saw them in the original matrimonial home stored by Mr. Shaw in his socks. The pine bookcase she alleges was left in the garage at the Autumn Ridge home.

[30] I do not find Mr. Shaw to have met the onus upon him with respect to these items. In fact, at the end of part one of the trial, Mr. Shaw no longer requested an order with respect to those items.

[31] Mr. Shaw testified, corroborated by his sister, that he received a number of boxes containing what he understood to be items of silver purchased by his mother and bequeathed to him. They had been packed and sent by his sister Ms. Marin‑Link prior to Jane Shaw’s death on or about August 19, 2007. Mr. Shaw testified the boxes were delivered to the Autumn Ridge home but he never opened them prior to leaving on August 22, 2007. When he returned to the home on May 15, 2008, the boxes had been opened from the bottom and taped. When he looked in they were empty. Mr. Shaw testified that between May 15 and May 29 he put together a list of items he considered missing. It is unclear how he knew exactly which items were missing as he had no master list of what had been sent by his sister. Ms. Marin‑Link returned to the Autumn Ridge home later that summer and assisted Mr. Shaw in making a list.

[32] Ms. Marin‑Link testified that Mr. Shaw spread out the silver items and she noticed right away the silver tea service was gone. She then listed from memory other missing items she had shipped to her brother. Values for those items were later obtained by Ms. Marin‑Link by consulting with the Manager of Birks and the Birks’ website. Mr. Shaw argued there was sufficient evidence to prove on a balance of probabilities certain items were in Ms. Brunelle`s possession and were missing. He requested the value of those items, $18,100.00, be added to the equalization payment owing to him.

[33] Ms. Marin-Link testified that after her father’s death her mother came to live with Ms. Marin‑Link and her husband in Sidney, British Columbia. Prior to her mother’s death, the items which had previously been identified to go to Mr. Shaw, were packaged by Ms. Marin‑Link in what she recalls to be five (5) or six (6) boxes and were sent. Mr. Shaw testified that sometime prior to his mother’s death, in August 2007, he received a number of boxes from his sister which he did not open. When Ms. Marin‑Link arrived on August 22, 2007, Ms. Brunelle was in the hospital and Mr. Shaw had been charged with assault and required to leave the home. Ms. Marin‑Link recalled Jason showing her some of the boxes in the basement on that occasion and again when she returned to the matrimonial home on September 22, 2007.

[34] Ms. Brunelle testified she also saw the boxes in the basement but paid no attention to them. The basement was extremely disorganized, messy, and piled high with Mr. Shaw’s junk including a piano and the boxes. In addition, she testified Jason was doing some renovations in the basement. This was confirmed by Ms. Marin‑Link who testified Jason showed her the bar he was building in the basement and where the boxes were located.

[35] Ms. Brunelle indicated that after Mr. Shaw left the matrimonial home on August 22, 2007, both Jason and Byron remained in the matrimonial home with her until early October, 2007. Byron Shaw confirmed this evidence. Ms. Brunelle testified Jason had a number of friends over and a number of parties which were disruptive to her, particularly as she was in pain due to her broken wrist. In addition, Jason fixed the lock on the back door so his friends could go in and out at their leisure.

[36] When Jason moved out of the matrimonial home in early October, a few days before Byron, he had friends helping him. According to Ms. Brunelle they removed a number of items from the home, including a large television. She was unable to determine exactly what was taken. When Ms. Brunelle asked Jason to give her a list of the items he was removing, he stated it was only his stuff and she was not his mother. He ignored her request.

[37] Byron Shaw testified the boys did have parties and friends over to the home, but less so during the last month they were there. He denied that something had been done to the back door lock. Byron did not provide any evidence as to what happened on the day Jason left the home. Unfortunately, Jason Shaw did not testify.

[38] I found both Mr. Shaw and Ms. Brunelle consistent in testifying. Neither was shaken under cross-examination. Ms. Brunelle’s evidence was more extensive and detailed. Mr. Shaw’s evidence as to the items sent was to some extent corroborated by the testimony of his sister.

[39] As noted above, the onus is on Mr. Shaw to prove on a balance of probabilities the items were located in the matrimonial home when he left on August 22, 2007 and they remained in the possession of Ms. Brunelle. There are a number of weaknesses in the evidence of Mr. Shaw and Ms. Marin‑Link regarding the specific items as follows:

1. It is unclear how many boxes were sent by Ms. Marin-Link. She thought she sent five or six but was not sure. She saw only four boxes in the home. Mr. Shaw gave no evidence on this issue. Only four boxes were in the home when Mr. Shaw returned in May 2008.

2. Neither Mr. Shaw nor Ms. Marin-Link indicated exactly when the boxes were sent and when they arrived, although it was sometime before Ms. Jane Shaw’s death.

3. Ms. Marin‑Link could not recall how she sent the items whether through a moving company or by parcel delivery.

4. There was no evidence from either a moving or delivery company. No invoices or other documentary evidence was provided as to what items were sent and whether they all arrived safely.

5. Ms. Marin-Link did not provide the original list, if there was one, as to what exactly was sent and therefore had to rely on her memory. She also acknowledged she was packing up other items to send to her children at the same time.

6. Mr. Shaw says that he noticed a problem with the boxes when he returned to the home May 15, 2008 and began making a list at that time. It is unclear how he would know exactly what was missing during that time frame. It was not until later in the summer when Ms. Marin-Link returned to the matrimonial home that she was able to help in compiling a list.

7. Ms. Marin-Link made a list of replacement values from discussions with a Birks’ Manager and the Birks’ website. This is hearsay evidence. There is no evidence from any expert appraiser as to the fair market value of the items on the date of separation or whether their value would have appreciated or depreciated since the date of purchase. There is no evidence as to specifically when they were purchased.

[40] Nevertheless, having considered and weighed all the evidence, I find on a balance of probabilities the following:

1. Ms. Marin‑Link sent Mr. Shaw a number of boxes containing items of silver purchased by her mother from Birks sometime prior to her mother’s death.

2. Some of the boxes of silver arrived and were placed in the basement of the matrimonial home;

3. These boxes remained in the matrimonial home when Mr. Shaw left on August 22, 2007.

4. Jason Shaw left the home in early October 2007 with some unidentified items. There was no evidence that he took individual items of silver. Byron left a few days later with no items of silver.

5. After Jason and Byron left the home, Ms. Brunelle resided alone in the matrimonial home until May 14, 2008.

6. Two or three weeks prior to leaving the home, Ms. Brunelle began moving furniture and other items to her new residence. There was no independent evidence from friends, a moving company, or otherwise as to the exact nature of the items removed.

7. Some of the boxes shipped by Ms. Marin-Link remained in the home and were there when Mr. Shaw returned. They appeared to have been opened and re-taped on the bottom. Ms. Brunelle had de facto exclusive possession of those boxes and their contents until she left the home.

8. Items of silver contained in three or four boxes were missing. Ms. Marin‑Link provided some evidence as to replacement values obtained from Birks. Mr. Shaw ultimately claimed $18,100.

[41] Although the evidence as to the exact number of items missing and their value is weak, based on the testimony and evidence provided by Mr. Shaw and Ms. Marin-Link, I find that the missing items were in Ms. Brunelle’s possession and were worth at least $10,000 on the date of separation. Therefore, $10,000 is to be added to the equalization payment owed by Ms. Brunelle to Mr. Shaw for a total payment of $50,000.

Claim for Damages

[42] The second part of the trial dealt with the claim by Ms. Brunelle for damages due to an alleged assault by Mr. Shaw on August 22, 2007. On February 25, 2011 Ms. Brunelle filed an amended Answer detailing her claim. An amended Reply was filed by Mr. Shaw.

Issues

[43] The amended pleadings raise the following issues:

1. Has Ms. Brunelle proven on a balance of probabilities the intentional tort of assault and/or battery committed by Mr. Shaw on August 22, 2007, resulting in an injury to her right wrist?

2. Is the evidence of two prior occasions of alleged aggression by Mr. Shaw towards Ms. Brunelle causing her physical harm admissible as similar fact evidence? Has Ms. Brunelle established on a balance of probabilities that the probative value of the evidence outweighs its potential prejudice?

3. Is Ms. Brunelle entitled to general damages in the amount of $100,000.00 for pain suffering and loss of enjoyment of life as a result of the assault?

4. Has Ms. Brunelle established damages in the amount of approximately $160,000.00 for the costs of: past and future treatment, aids for daily activities, home accessibility and home maintenance tasks?

5. Has Ms. Brunelle established damages in the amount of $25,000.00 for past and future income loss, loss of earning capacity and/or loss of competitive advantage?

6. Does Mr. Shaw’s conduct warrant aggravated damages or punitive damages in the amount of $25,000.00? Is his conduct of such a nature that punitive damages should be awarded in order to punish and deter him and others from committing a similar act?

Assault/Battery

[44] There is no dispute that Ms. Brunelle badly fractured her right wrist after an argument with Mr. Shaw on August 22, 2007. The question is whether that injury occurred as a result of Mr. Shaw’s actions or as a result of an accidental fall on the front walkway of the matrimonial home, as alleged in Mr. Shaw’s amended reply. Mr. Shaw does not plead any specific defences such as self-defence or provocation. He simply denies assaulting Ms. Brunelle.

[45] A person who “intentionally causes a harmful or offensive contact with another person is liable for battery”: see Linden and Feldthusen, Canada Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), p. 44, “A battery may occur even when no harm is intended. The only intention required is that of making contact.”

[46] In Canadian Tort Law, the authors provide the following definition of assault at pp. 46‑47:

Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault provides protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. The underlying policy of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law.

Assault should be distinguished from battery, although the two are often blurred together and called "assault". This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault.

Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault. [Emphasis added.]

[47] In this case both parties blurred the torts of assault and battery and used the term “assault” throughout. I do not find this a significant problem. The essence of Ms. Brunelle’s argument is that Mr. Shaw intentionally physically ejected her from the home, causing her to break her right wrist. Therefore, “battery” is the more accurate description of what is alleged.

Evidence re Battery

[48] The parties began their relationship in August, 2005, five months after Mr. Shaw’s first wife, Madelaine Shaw died on February 23, 2005. The relationship progressed quickly and in August, 2006 Ms. Brunelle and Mr. Shaw were married. They separated a year later on August 22, 2007.

[49] The description by Ms. Brunelle is of a relationship where she gave up a great deal to be with Mr. Shaw including: her home in Toronto, her community of friends and neighbours and in particular, by taking early retirement, her job as a high school teacher with the Toronto District School Board. Despite these sacrifices, by August, 2007, Ms. Brunelle felt ignored by her husband and left out, as if she was not part of the family. She describes Mr. Shaw as cold, unresponsive, and at times aggressive.

[50] Mr. Shaw describes the short term relationship and marriage as one where Ms. Brunelle was constantly jealous. She did not want him to meet or receive telephone calls from female clients or interact with other women. He describes one occasion, at a party on a visit with his sister in B.C. in July, 2007, when Ms. Brunelle became angry and upset when she thought Mr. Shaw was focussing his attention on other women at the party. Her reaction was corroborated by Mr. Shaw’s sister Brenda Marin‑Link.

[51] Based on the evidence of the parties and Ms. Marin-Link I find that as time went on, Ms. Brunelle felt more and more ignored by her husband and less and less a part of the Shaw family. She reacted jealously with respect to Mr. Shaw’s interaction with other women, which led to disagreements between the parties. Mr. Shaw did not handle the situation with a great deal of sensitivity or understanding, at times excluding and ignoring Ms. Brunelle who desperately wanted his love and attention.

[52] It was within this context that the incident occurred on August 22, 2007.

[53] Mr. Shaw’s mother died on or about August 19, 2007. Plans were made for Mr. Shaw’s sister Brenda Marin‑Link to come to Ottawa on August 22, 2007 to discuss financial arrangements and a service in Welland, where his mother had resided for many years. On August 21, 2007, despite the fact that she was ill with bronchitis and taking medication, Ms. Brunelle went with Mr. Shaw, Jason and Byron for a pizza dinner. Mr. Shaw was talking to the boys about the arrangements for his sister’s arrival the next day and for the funeral service in Welland. In addition, Byron asked his father for some money for an upcoming trip with some friends. Ms. Brunelle acknowledges that, as she was tired and ill, she did not eat much and said very little.

[54] Upon returning home, Mr. Shaw delegated work to everyone to get ready for his sister’s visit. Ms. Brunelle was working on the library/office on the main floor, Mr. Shaw was painting and the boys were helping with other chores. At midnight Mr. Shaw went to bed. Ms. Brunelle testified that he wanted her to come up with him and have sex but she refused as she still had work to do. She continued working until 3:00 a.m.

[55] Ms. Brunelle testified that the next morning she got up and went downstairs for breakfast. She met Mr. Shaw in the hall and asked if he needed her to assist him in the WFG office or with any errands on that day. It was at that point that he confronted her as to why she had not spoken to him the previous night at the restaurant. She indicated she had not been feeling well. Mr. Shaw testified this conversation took place the night before and that Ms. Brunelle was gone when he got up the next day. However, both agreed there was such a conversation and Mr. Shaw was not pleased with Ms. Brunelle’s behaviour. Ms. Brunelle spent the morning of August 22, 2007 at the WFG office where she had been working part time with Mr. Shaw. She returned home at approximately 1:30 p.m.

[56] Ms. Brunelle testified that upon entering the home she saw Mr. Shaw holding a small paint brush in his hand. She asked him how he was doing and his response was something to the effect of “why should I tell you where I go or what I do?” Mr. Shaw then went downstairs to the “mud room” or utility room off the sitting area. Byron was sitting on the couch downstairs playing video games or watching T.V. The parties had a discussion as to when Brenda Marin-Link’s flight was arriving, Ms. Brunelle was clear that she wished to accompany Mr. Shaw to the airport. He refused and indicated that, given how she acted the night before, she was not really part of the family.

[57] Mr. Shaw testified that upon returning home that afternoon, Ms. Brunelle began to question him as to where he had been and what he had been doing the day before. Ms. Brunelle wanted to accompany him to the airport. Mr. Shaw stated his sister indicated in advance she wanted to spend time alone with him to discuss their mother’s affairs. He made that clear to Ms. Brunelle. Mr. Shaw further testified he told Ms. Brunelle, given how she acted the previous night, the boys were wondering if she was really part of the family. He did not wish her to come to the airport with him. Mr. Shaw had his back to Ms. Brunelle and was washing out the paintbrush.

[58] Ms. Brunelle testified she put her hand on Mr. Shaw’s shoulder to get his attention and have him listen to her. She said she was part of the family and referred to the work she had done the night before. Mr. Shaw continued asking her not to speak to him and stating she was not part of the family. He was cold and unemotional. Ms. Brunelle acknowledged speaking rather loudly.

[59] Mr. Shaw turned around. Ms. Brunelle stepped away and said: “Kevin sometimes I just feel like ... and” at which point Mr. Shaw responded: “Do it, do it, do it” and pushed her causing her to fall into some debris. He then left the area and went upstairs with Ms. Brunelle following him.

[60] Mr. Shaw testified that after Ms. Brunelle grabbed his shoulder, he turned around and she hit him in the face which is denied by Ms. Brunelle. Mr. Shaw denied pushing Ms. Brunelle but stated he may have brushed against her. He testified that, after being hit in the face, he left Ms. Brunelle, closed the door to the utility room and went back upstairs, intending to go to the airport to pick up his sister. He opened the front door and went out to the front stoop before realising that he did not have his car keys. He returned to the vestibule inside the front door and stepped into the closet to look for his keys. As he was coming out of the closet with his keys in his hand, he saw Ms. Brunelle running down the hall towards him with her fists clenched and frowning. He stepped back into the closet and put his hands up at shoulder level with his palms out as he was worried he might get hit again. Mr. Shaw stated that he may have brushed against her as she ran by and out the front door. After Ms. Brunelle ran out the door, Mr. Shaw closed it and intended to go out to the car through the garage.

[61] Ms. Brunelle’s testimony completely contradicted that of Mr. Shaw. She testified she followed Mr. Shaw as he went up the stairs to the landing by the front door. He remained cold and emotionless and she asked him: “Why are you so cruel?” He looked at her, came forward grabbed her right biceps with his right hand and pulled her towards him yelling: “Get out of my house!” He then dragged her towards the front door, opened it with his left hand and tried to shove her out of the door. She grabbed the edge of the closet door frame saying: “No, Kevin, no!” At that point Mr. Shaw put both his hands under her armpits, lifted her up, dislodged her hands from the closet door, stepped outside and thrust her forward on the cement. She blacked out momentarily. When she came to, Ms. Brunelle noted she was on her right side on the walkway approximately 12 feet from the door. She was experiencing a great deal of pain in her right hand. Ms. Brunelle got up, staggered to the front door, opened it, and went inside with the intention of calling 9-1-1 to get medical attention.

[62] When Ms. Brunelle entered the home, Byron was near the kitchen. She told him “Your Dad threw me out of the house.” In his statement later that day to Cst. Jennings, Byron confirmed that Ms. Brunelle made this statement. Ms. Brunelle called 9-1-1. At that point, Mr. Shaw was standing beside her in the kitchen.

[63] Mr. Shaw acknowledges that Ms. Brunelle came back into the house, was in pain and called 9-1-1. He proposed to take her to an emergency clinic. She agreed and hung up. Both parties agree Mr. Shaw drove Ms. Brunelle to the Orléans walk-in clinic. Given the wait time, they proceeded to a clinic on St-Joseph Blvd. where Mr. Shaw testified Ms. Brunelle was to have an X-Ray. Mr. Shaw indicated he would leave her there and she could call Jason to pick her up. Ms. Brunelle did not wish to wait at the clinic and asked Mr. Shaw to take her home.

[64] When they arrived home, two police cruisers were there. Mr. Shaw left the car and went into the house, while Ms. Brunelle exited the car on her own and walked towards the house. She was stopped by Constable Trudeau who asked her what happened. She provided him with a verbal statement. Mr. Shaw came out of the house briefly but then went back in and spoke with Constable Elmi.

[65] Ms. Brunelle was taken by ambulance to the hospital with Constable Trudeau. She was admitted and diagnosed with a badly fractured right wrist. Orthopaedic surgeon Dr. Kim surgically inserted a plate and screws. She remained in the hospital for two days, returning home August 24, 2007.

[66] Mr. Shaw provided a statement to Constable Elmi, was arrested for assault and escorted to the Police Station. He was ultimately charged with assault causing bodily harm and was released on a recognizance not to have contact with Ms. Brunelle nor attend at the matrimonial home. On December 18, 2008, after trial, Mr. Shaw was found not guilty.

Credibility

[67] The determination as to whether or not an assault and/or battery occurred is to be made on the balance of probabilities not, as in a criminal trial, beyond a reasonable doubt. Therefore it is important to carefully consider and weigh the testimony and evidence of both parties, as well as any corroborative evidence.

[68] There are weaknesses in the testimony of Ms. Brunelle as follows:

(1) Ms. Brunelle portrayed herself as a victim, who was not jealous of her husband’s interaction with other women but who was ignored by a man she considered cold and unemotional. She downplayed her role in any disagreements with her husband and tended to dramatize events. For example, when testifying that Mr. Shaw threw her out of the house she indicated, “I was fighting for my life.” Her evidence that she was not jealous is somewhat contradicted by the evidence of Brenda Marin-Link who testified that she became angry and upset at a party in B.C., when she perceived Mr. Shaw to be ignoring her and paying attention to other women.

(2) Ms. Brunelle testified that on August 22, 2007, when she came into the home from the office she asked Mr. Shaw how his day was going and he responded, “Why should I tell you where I go and what I do?” This answer is not responsive to her question and I find it more likely Ms. Brunelle was asking where he was and what he was doing on August 21 and was indeed jealous, as Mr. Shaw testified.

(3) Ms. Brunelle denies there was any argument between the parties, and again downplays her role in the situation that escalated on August 22, 2007. When questioned as to why she would pursue Mr. Shaw to the basement, she indicated this was simply to soothe him and to get him in a good mood because his sister was coming. When pressed on cross-examination she reluctantly agreed that there was a “difference of opinion” which could have been interpreted as an argument.

(4) The testimony of Byron Shaw, whom I found to be a straightforward, reliable young man placed in a very difficult position, confirmed there was indeed an argument. Although Byron was in the basement at the outset of the disagreement, the door at the top of the stairs was open and he could hear Ms. Brunelle asking where Mr. Shaw had been and questioning him aggressively. Mr. Shaw indicated it was none of her business. They also discussed the night before. At that point Mr. Shaw indicated he had enough, went downstairs and closed the door to the utility room. Although Ms. Brunelle testified she followed him down simply to soothe him, it was Byron’s evidence there was a disagreement, she followed Mr. Shaw into the room. Byron then heard a skin‑on‑skin slapping noise which to some extent corroborates the evidence of Mr. Shaw that Ms. Brunelle hit him on the face.

(5) Ms. Brunelle testified that when Mr. Shaw told her that she did not appear to be part of the family, she was merely “disappointed”. She further stated that even after Mr. Shaw pushed her down in the basement, she was still just sad and disappointed and wanted to go to the bedroom to lie down. I do not find this to be the complete story. Although Ms. Brunelle may well have been sad and disappointed, she did pursue Mr. Shaw up the stairs, and according to her testimony then continued the argument or disagreement by asking him, “Why are you so cruel?”

(6) In her oral statement to Constable Trudeau, Ms. Brunelle indicated Mr. Shaw had pushed her in the basement against a wall whereas at trial she stated he pushed her into some debris. There is a minor inconsistency in this statement.

(7) Although Ms. Brunelle testified that Mr. Shaw, who was six foot four and weighed approximately 210-215 pounds, grabbed both her biceps, there was no bruising noted in the medical records. There was, however, no expert evidence as to whether there would necessarily be bruising at the time Ms. Brunelle was examined. In addition, no further injuries were noted in the medical records; however, Ms. Brunelle testified that when Mr. Shaw threw her out of the house she landed 12 feet down the cement walkway. She did testify that she was not entirely sure how she landed there and that she blacked out momentarily.

[69] As with Ms. Brunelle, there are a number of weaknesses in the evidence of Mr. Shaw as follows:

(1) He portrays himself as an attentive, understanding husband with a jealous wife. However, I note the following:

(a) He asked Ms. Brunelle to work on getting things ready for his sister, which she did until 3.00 a.m., despite the fact she was ill with bronchitis.

(b) Although Ms. Marin-Link testified it would not be unusual for Suzanne to come to the airport, Mr. Shaw did not agree to have his wife accompany him. It was his testimony that he needed to meet privately with his sister at that time. Ms. Marin‑Link testified she had requested they have a meeting alone, but not that it be at the airport or in the car on the way home.

(c) Mr. Shaw acknowledges telling Ms. Brunelle that the boys were wondering whether she was even part of the family.

(d) On August 22, when Ms. Brunelle was trying to discuss matters with him, he ignored her when she was trying to talk and turned his back to her.

(e) When driving Ms. Brunelle to the clinics after the injury occurred, Mr. Shaw stayed in the car and Ms. Brunelle went in unaccompanied. Further, Mr. Shaw suggested Ms. Brunelle stay at the clinic, he would leave and Jason would pick her up later.

(2) Mr. Shaw denied he was angry or upset during the argument. Similar to Ms. Brunelle, he downplayed the situation and his role in it. Although Byron Shaw testified Ms. Brunelle was speaking loudly and aggressively and questioning Mr. Shaw while pursuing him down the stairs, Mr. Shaw maintained his position that he was not angry. Even after Ms. Brunelle hit him in the face, he stated that he was surprised more than angry and denied reacting in any way.

(3) Mr. Shaw was inconsistent in describing how Ms. Brunelle hit him in the face. At trial he testified that she “struck me in the face” on his left cheek and mouth area. At the criminal trial on a number of occasions Mr. Shaw described this as a slap. However, at his questioning on July 30, 2010, Mr. Shaw stated, “When I turned around, I was punched in the mouth.” He was asked, “With her fist?” he answered, “Closed fist, yes.” I find that Mr. Shaw was therefore either embellishing or exaggerating. His evidence is unreliable in this respect.

(4) Mr. Shaw denied pushing Ms. Brunelle into debris or a wall in the basement during the disagreement; however, he did state that he may have “brushed against her.”

(5) Mr. Shaw testified when he saw Ms. Brunelle running towards him with her fists clenched, he stepped back into the front hall closet. As to whether or not there was any contact between him and Ms. Shaw, he stated in‑chief there was no contact. Under cross‑examination he indicated that she might have brushed against him, a similar description to what happened downstairs. He stated his palms were up and facing forward as he was afraid she might hit him again and that she might have brushed against him. During the questioning he did not indicate there was any contact. Again, Mr. Shaw’s statements are inconsistent.

(6) Mr. Shaw’s evidence was that on August 22 Ms. Brunelle would not leave him alone and was pursuing him and continuing the argument. Ms. Brunelle’s evidence was that she came upstairs to go to the master bedroom and lie down. Nevertheless, Mr. Shaw testified that she ran down the hall towards him and then just kept running out the front door. This does not make logical sense if she was pursuing him to continue the argument or if, she simply wanted to go to the master bedroom. Why would she run down the hall towards him and then keep running out the front door?

(7) Byron Shaw testified that when Mr. Shaw went upstairs, Ms. Brunelle followed approximately three feet behind him. This directly contradicts the evidence of Mr. Shaw that he went upstairs alone for the purpose of driving to the airport to pick up his sister. I note he would have been hours early for her flight. He testified that he went out the front door and then, when he realized he did not have his car keys, he re‑entered the home and went into the closet to look for them. Having found them he was on his way out again, and it was at that point that Ms. Brunelle came running down the hall at him. This is impossible if, as Byron Shaw testified, Ms. Brunelle was following about three feet behind him when he first came up the stairs.

[70] Byron Shaw to some extent corroborates Mr. Shaw’s evidence as to the fact that there was an argument and that Ms. Brunelle was aggressively questioning Mr. Shaw. In addition he confirms hearing the sound of skin-on-skin when the parties continued their disagreement in the basement and his father’s statement, “Don’t ever do that again.” However, in most other respects he corroborates the evidence of Ms. Brunelle as follows:

(1) Mr. Shaw went upstairs and Ms. Brunelle followed approximately three feet behind.

(2) Once upstairs, Byron heard Mr. Shaw’s footsteps going towards the front door with Ms. Brunelle’s footsteps following. He heard the door open and then close, and then heard Mr. Shaw’s footsteps going down the hall towards the kitchen.

(3) When Byron came upstairs, he observed Ms. Brunelle coming into the home indicating that her wrist hurt and that she wished to call 9-1-1.

(4) Most importantly, in his statement to Constable Jennings, Byron confirms Suzanne’s statement to him that Mr. Shaw had thrown her out of the house. Byron recalled telling Constable Jennings Ms. Brunelle stated Mr. Shaw had taken her and “like kind of pushed her out of the house.” This confirms Ms. Brunelle’s evidence of her statement to Byron that, “Your dad threw me out of the house.”

[71] Brenda Marin-Link corroborated Mr. Shaw’s evidence that Ms. Brunelle was jealous and overreacted as to any interaction Mr. Shaw had with other women. Despite the incident on August 22, Ms. Marin‑Link described later conversations with Ms. Brunelle who indicated Mr. Shaw was a wonderful husband, she was now on her own and wanted him back but was concerned as he was often looking at other women. Ms. Marin‑Link previously had similar discussions with Ms. Brunelle who went back and forth as to her feelings towards her husband.

[72] Ms. Marin‑Link testified that Ms. Brunelle told her the following in describing the incident of August 22:

(1) She was angry.

(2) She slapped Mr. Shaw on the arm to get his attention.

(3) She ran up the stairs after Mr. Shaw to stop him leaving without her.

(4) He did not stop and she did not stop and she ended up falling going out the front door.

(5) The last step from the porch to the outside was somewhat treacherous.

(6) Ms. Brunelle was wearing high heels.

[73] Although, according to Ms. Marin-Link, Ms. Brunelle stated she somehow fell out the front door, her statements to the police, ambulance attendants, and nurses at the hospital were different. She told Constable Trudeau that after she grabbed Mr. Shaw’s shoulder to get his attention, he turned around, shoved her into the wall, and they went upstairs together. She stated to Byron Shaw Mr. Shaw had thrown her out of the house and to the ambulance attendants that Mr. Shaw “pushed her down in the basement, then physically picked her up and threw her out.” The emergency report and the nursing note record the same statement that she had been “thrown out of the house.”

[74] Ms. Brunelle’s evidence is further corroborated by Constable Elmi. He and Constable Trudeau were dispatched to the residence at approximately 2 p.m. after the 9-1-1 call by Ms. Brunelle. Upon arrival, Constable Elmi spoke briefly to Byron and Jason who indicated their father and stepmother had an argument and their stepmother had gone to the hospital complaining of a sore wrist and arm. As Constable Elmi was about to leave, Mr. Shaw and Ms. Brunelle returned to the home. Mr. Shaw went inside and Constable Elmi went with him. In speaking to Mr. Shaw, Constable Elmi recalled Mr. Shaw stating that there had been an argument with his wife in the basement over a family issue and he had shoved her after the argument became heated. After receiving information from his partner that there were grounds to arrest Mr. Shaw for assault, Constable Elmi proceeded to arrest him and read his rights and caution. Mr. Shaw then stated to Constable Elmi he pushed his wife outside the house and thought she broke her hand. Although there are weaknesses in Constable Elmi’s evidence in that he did not record these statements in his notes but only in his investigative action report, he was clear despite vigorous cross‑examination that, as he put it, “That’s what your client said.”

[75] There is a significant disparity in size between Mr. Shaw and Ms. Brunelle. She is approximately five-feet three-inches tall and, at the time, weighed 125-130 pounds, whereas Mr. Shaw is six-feet four-inches tall and weighed at the time approximately 210-215 pounds. Although he is a large man, Mr. Shaw testified that at the time of the incident he was having back problems and would not have been able to lift Ms. Brunelle as she described. The only evidence to corroborate this statement is a report from 1999 indicating a problem with his back. At the Queensway Carleton Hospital it was determined that Mr. Shaw’s disc space was narrowing and he was treated. A letter provided by Dr. Day dated November 27, 2002 (five years prior to the incident) noted an acute reoccurrence of the back pain, which required treatment. I do not find this evidence persuasive. There is no evidence that Mr. Shaw was experiencing an acute reoccurrence of any back problems on August 22, 2007. Ms. Brunelle testified that Mr. Shaw helped her with her move from Toronto in August 2006. She also testified he picked her up during their wedding and she had not observed any problems with his back.

[76] As was noted above, this is not a criminal trial where the Court needs to make a determination beyond a reasonable doubt. The issue is whether or not, on a balance of probabilities, Ms. Brunelle has proven that Mr. Shaw intentionally caused harmful contact, thereby committing the tort of battery. Although there are weaknesses in the evidence of both parties, on balance I prefer the evidence of Ms. Brunelle which is corroborated by Byron Shaw and Constable Elmi. I find that Mr. Shaw either pushed or threw Ms. Brunelle out of the house on August 22, 2007, thereby causing a severe fracture to her right wrist. I do not find the injury to have been caused by an accidental fall on the front walkway, as alleged by Mr. Shaw.

Similar Fact Evidence

[77] Having determined on the evidence of the parties and other witnesses that Mr. Shaw committed the intentional tort of battery, thereby causing Ms. Brunelle’s injury, I do not need to determine the admissibility of the evidence of two prior occasions of alleged aggression by Mr. Shaw towards Ms. Brunelle as similar fact evidence.

[78] Ms. Brunelle wished the court to admit the evidence in order to draw the inference that Mr. Shaw had a disposition to act in an aggressive and violent manner towards her when he became angry, as circumstantial evidence of the battery on August 22, 2007. The similar fact evidence was not argued with respect to the issue of damages.

[79] Although it is not necessary to make any specific determination as to admissibility, I would note the following. Although similar fact evidence in the domestic context remains presumptively inadmissible, events of this kind can be admitted in domestic cases both criminal and civil, as there is a decreased risk of impermissible propensity reasoning. The evidence is not tendered to demonstrate that the impugned party has a general disposition to act violently or aggressively. Rather, the evidence demonstrates that the party has a disposition to act violently towards a specific complainant. Therefore, in the domestic context, the evidence can lend itself to permissible propensity reasoning which can be used to determine the ultimate issues presented at trial. The propensity reasoning in these circumstances may be permitted as the prior acts of aggression are directly linked to the impugned acts alleged in the pleadings. In addition, the direct link between the similar fact evidence and the acts alleged creates only a modest risk that a trier of fact will engage in prohibited propensity reasoning. This is particularly true in a case such as this where there is a civil claim for damages and the trial is by judge alone.

[80] There are a number of cases where evidence of the nature of relationship between the parties is found to provide background and context essential to an accurate interpretation of the relevant event. Such evidence has been held to provide valuable context within which to analyse the evidence and to constitute circumstantial evidence that assault or battery occurred. See R. v. MacDonald, 2002 CanLII 14251 (ON CA), [2002] O.J. No. 4657 (C.A.); R. v. D.A.R.C., [2002] P.E.I.J. No. 91 (C.A.); R. v. M.Q. 2010 ONSC 61, [2010] O.J. No. 378 (S.C.); R. v. Cudjoe, 2009 ONCA 543, [2009] O.J. No. 2761 (C.A.); and R. v. Middleton, 2007 ONCA 538, [2007] O.J. No. 2900 (C.A.).

Damages

Injury and Its Effect

[81] Suzanne Brunelle was 59 years old and had been married to Mr. Shaw for a year when she suffered a badly broken right wrist due to the actions of her husband. Ms. Brunelle, who is right‑hand dominant, sustained a spiral fracture of her right distal radius on August 22, 2007. On August 23 she underwent an open reduction and internal fixation performed by Dr. Paul Kim, orthopaedic and joint reconstruction surgeon. After a general anaesthetic, a longitudinal incision was made of the radial aspect of the wrist. A long plate was inserted at the fracture site and held in place with multiple screws distally and proximally. Ms. Brunelle then underwent an autogenous bone graft in the area of the fracture. The wound was closed with numerous staples and a plaster cast was applied covering her right arm, wrist and hand. She was discharged from the hospital two days later with a prescription for the painkiller Endocet (oxycodone HCl/acetaminophen). Ms. Brunelle remained in a cast for six weeks and after its removal began physiotherapy sessions at the Montfort Hospital. She attended 17 sessions from November 2007 to January 2008, after which she continued doing the prescribed exercises at home.

[82] Ms. Brunelle had and has a diminished range of motion in her right wrist. She also suffered and continues to suffer significant pain and discomfort in her hand and wrist. She initially complained of weakness and numbness in the fingers of her right hand.

[83] Ms. Brunelle continued to see Dr. Kim who referred her for nerve conduction studies to determine whether she might be suffering from carpal tunnel syndrome. The studies, done in February, 2008 noted carpal tunnel neuropathies in both median nerves, slightly worse on the left than the right. Ms. Brunelle testified that she was using her left hand a great deal more given the difficulties with her right. It was suggested that she use a brace or splint on her right wrist, generally at night time. By May 2009, Ms. Brunelle noted an improvement regarding the numbness with the use of the night splint; however, she continued to suffer from sharp pain when using her right hand.

[84] Dr. Kim continued to follow Ms. Brunelle until June 24, 2009. At her last visit with him she continued to complain of persistent pain and discomfort in the right hand and wrist area, causing her difficulty performing activities of daily living. Dr. Kim did not feel her pain and discomfort was directly related to carpal tunnel syndrome. He was unable to find a precise mechanical source for her pain and therefore referred her to a colleague, Dr. Pollack, another orthopaedic surgeon who first saw Ms. Brunelle on August 11, 2009. At that time Ms. Brunelle continued to indicate writing and working with her right wrist was difficult and that she was suffering from pain which radiated from the wrist up to the shoulder. She told Dr. Pollack she had reduced strength, and limited gross and fine motor movement due to the injury.

[85] Dr. Pollack’s examination revealed: (1) Swelling of both the dorsal and ulnar aspect of her wrist; (2) Restricted rotation and loss of extension and flexion; (3) Pain with all wrist movements; and (4) Hypersensitivity of her wrist and wrist tenderness. He noted that, although the plate was initially well positioned, it had collapsed somewhat during the healing process. He testified that the tendons can roll over the plate and cause irritation. It is possible to remove the plate and possibly alleviate some of the pain. However, it was Dr. Pollack’s opinion that Ms. Brunelle’s pain was due to more than a mechanical problem. In his report dated August 11, 2009 he stated it was very difficult to associate Ms. Brunelle’s pain with a particular area of pathology. It was his view that there was an element of chronic regional pain syndrome. Therefore, he recommended consultation with the Chronic Pain Service at the Ottawa Hospital and made a referral.

[86] On September 23, 2009 Ms. Brunelle was seen by Dr. Howard Nathan at the Chronic Pain Service who at that time felt it unlikely she was suffering from complex regional pain syndrome. It was his opinion that the pain was more characteristic of a chronic inflammation of the tendons. He therefore prescribed Celebrex as an anti‑inflammatory. At that time Ms. Brunelle was taking Tylenol for her pain and no other medication. As the anti‑inflammatory medication did not make much of a difference, Ms. Brunelle was subsequently treated with chronic pain medication and began to attend the pain clinic. She continued to attend pain clinic sessions of three-and-a-half hours once a week for 10 weeks. She then went once per month until the end of 2010 and in 2011, prior to trial, had been back to the clinic two or three times.

[87] Dr. Pollack saw her once again on March 8, 2011. At that time Ms. Brunelle continued to notice significant pain, some weakness with gripping and fatigue when writing. Dr. Pollack’s examination continued to be consistent with chronic pain syndrome. He noted tenderness and swelling in the front and the back of Ms. Brunelle’s wrist and a weak grip strength. Her range of motion had improved and was fairly good at that point in time.

[88] Dr. Pollack noted that an element of Ms. Brunelle’s pain was mechanical due to the plate and the shortening of the radius. It was his opinion that there was not one particular specific cause for the pain. He recommended Ms. Brunelle continue to be treated for pain and agreed to see her again in six months. If she continues to demonstrate no improvement, Dr. Pollack testified he would consider the possibility of plate removal, although he was clear that procedure would not guarantee improvement and could actually worsen the hypersensitivity in her hand. Dr. Pollack was not qualified as an expert in chronic pain syndrome but given the symptoms, as an experienced orthopaedic surgeon, it as his opinion Ms. Brunelle was genuinely suffering from a great deal of pain which had been long‑lasting and was therefore chronic.

[89] In addition to the pain, Ms. Brunelle suffered sleep deprivation. She attended a Sleep Deprivation Clinic in the late fall of 2010.

[90] Ms. Brunelle has also been plagued by depression since the incident on August 22, 2007. On October 11, 2007 she went to the Emergency Department of the Montfort Hospital, overwhelmed by suicidal ideation. She was initially assessed in the Emergency Room by a psychiatrist, Dr. Serge Lessard, who diagnosed a major depressive episode of severe intensity. Dr. Lessard referred her to psychologist Dr. Deramchi for psychotherapy and prescribed medication for her depression. Dr. Lessard decided to monitor Ms. Brunelle and evaluate her for possible post‑traumatic stress syndrome. Both Dr. Lessard and Dr. Deramchi saw Ms. Brunelle weekly for psychotherapy and pharmacotherapy. Ultimately, Dr. Lessard diagnosed Ms. Brunelle as suffering from a major depressive disorder as well as post‑traumatic stress syndrome/anxiety disorder.

[91] Dr. Deramchi’s report dated November 12, 2007 states that Ms. Brunelle was suffering from the following symptoms: “Powerlessness, sense of failure, sadness, despair, hypervigilance, fearful behaviour, loss of interest, apprehensiveness, indecisiveness, nausea, and vomiting.” She noted that these are indicative of severe anxiety and it was her opinion that they were related to Ms. Brunelle’s recent losses, uncertainties in her current life, and financial strain. It was Dr. Deramchi’s view, supported by Dr. Lessard that Ms. Brunelle was unable to resume gainful employment at that time. This opinion was repeated in March and July of 2008. Ms. Brunelle continued to be compliant with proposed treatment and presented herself on time at all appointments. Dr. Lessard prescribed medication for depression which Ms. Brunelle continues to take, with Tylenol for the pain. She also continues to wear a brace on her right wrist and arm mostly at night to stabilize her arm, wrist and hand, to help with the pain.

[92] Ms. Brunelle testified she is able to perform tasks and do activities but always suffers pain and has difficulty with: her range of motion, gripping, strength and stamina while gripping, numbness in her fingers, and dexterity which causes her difficulty picking things up and with grasping cylindrical objects. She finds it difficult to vacuum, make a bed, wash the dishes, and do other household tasks.

[93] On May 19, 2012, Sheri Mosher Taillefer observed Ms. Brunelle and performed an occupational therapy assessment of her general functioning at her three‑bedroom townhouse. She provided a written report dated April 15, 2010. Ms. Taillefer was qualified as an expert in occupational therapy with 18 years of extensive experience in the field. Over the last nine years Ms. Taillefer has been an independent consultant. She testified she does approximately five to six home assessments per week, always using the same methodology. She has done approximately 800 such assessments for the insurance industry. In addition to being an occupational therapist, Ms. Taillefer is a Canadian certified life care planner and uses that expertise in making her recommendations.

[94] At the time of the assessment Ms. Brunelle reported continuing pain in her right wrist, and shooting pain when using the thumb or index fingers. She indicated an inability to pick up items requiring a cylindrical grip without pain. In terms of pain management Ms. Brunelle was utilizing heat, a hand splint at night, and Tylenol as needed.

[95] In performing her assessment, Ms. Taillefer observed that any flexion of Ms. Brunelle’s right wrist caused pain and she had minimal wrist extension. Further she had “full opposition with pain, and ulnar/deviation is full with pain.” Ms. Taillefer also observed her left thumb to be swollen and apparently arthritic, probably due to overuse of her left hand. In assessing Ms. Brunelle’s strength, Ms. Taillefer observed that gripping or grasping caused Ms. Brunelle extreme pain, which at times resulted in her dropping items. She measured Ms. Brunelle’s left and right hand strength using a Dynamometer three times for each hand. Ms. Brunelle’s left hand strength was 35 lbs, 35 lbs, and 37 lbs, whereas her right hand (dominant) measured 15 lbs, 10 lbs, and 15 lbs. Ms. Taillefer observed that when Ms. Brunelle attempted to pick up or use cylindrical objects she would do this in an odd manner, in an attempt to avoid pain. For example, she would palm items and attempt to hold them in that way. Even using that method, she suffered pain. Ms. Brunelle was further limited in her ability to reach. She did not use her right hand to reach or pick up items and was observed to continually use her left hand for these tasks.

[96] Although Ms. Brunelle described herself as previously independent and energetic, she noted that the chronic pain due to her wrist energy is now interfering with her energy level. Although she continues to drive, she has difficulty opening the gas tank, holding the steering wheel, and operating the remote control to open the vehicle as it is very painful to use either of her thumbs. Finally, as noted by her treating physicians, Ms. Brunelle had difficulty sleeping, which continued at the time of Ms. Taillefer’s assessment.

[97] It was Ms. Taillefer’s opinion that Ms. Brunelle could minimally perform most of the tasks of daily living but only with a great deal of pain, due to her right wrist injury. This accorded with Ms. Brunelle’s evidence that she does drive but not as much as previously; she does light housekeeping but sparingly and carefully; she cooks for herself and does a little bit of shopping at a time; and will do some minimal snow‑shovelling, yard work, and planting. It was her evidence that she had no choice, as she lived alone and did not have any other support.

[98] Ms. Taillefer recommended assistance for housekeeping and home maintenance. In addition to the goods and services recommended, Ms. Taillefer recommended Ms. Brunelle have further occupational therapy assessments and possible interventions due to potential changes in functioning as she ages. The costs for the recommended goods and services on a one‑time and annual basis, totalled $9,751.00 as a one-time cost and $10,411.81, annually. Ms. Taillefer’s report was reviewed by both Dr. Kim and Dr. Pollack who indicated that the recommendations appeared reasonable.

[99] After the assessment, Ms. Brunelle moved in August 2010 to another 3‑bedroom townhouse. Ms. Taillefer visited her there and noted the new townhouse was basically the same as the previous one. Ms. Taillefer had the opportunity to review a video surveillance tape taken by a private investigator hired by Mr. Shaw which showed Ms. Brunelle engaging in certain activities. Ms. Taillefer reviewed those activities and the video surveillance with Ms. Brunelle and asked her to comment. After reassessing Ms. Brunelle and viewing the videotape, Ms. Taillefer continued to recommend the aids and assistance. Her opinion as to Ms. Brunelle’s abilities did not change.

General and Aggravated Damages

[100] The Supreme Court of Canada in discussing the issue of general damages and the cap on those damages makes the following comments in Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, as follows:

… The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution. …

[101] On August 22, 2007, Suzanne Brunelle was a 59‑year-old retired teacher working part‑time for her husband at World Financial Group, when he committed the intentional tort of battery, causing a spiral fracture to her right wrist. The spiral fracture of the distal radius of Ms. Brunelle’s dominant right wrist required surgery under general anaesthetic and the insertion of a plate and screws. Ms. Brunelle was in a full plaster cast for six weeks and thereafter underwent physical therapy for approximately three months. She has a long scar up her right arm as a result of the surgery.

[102] Ms. Brunelle suffered and continues to suffer a great deal of pain when using her right hand and wrist, as confirmed by both Dr. Kim and Dr. Pollack, as well as the occupational therapist, Ms. Taillefer. This pain which is termed ‘chronic pain’ by Dr. Kim, resulted in her attendance at a pain clinic once a week for 10 weeks and thereafter from time to time up to the date of trial. She also took prescribed pain killers. Although neither Dr. Kim nor Dr. Pollack were qualified as experts in chronic regional pain syndrome, they both noted that the most likely diagnosis is chronic regional pain syndrome, following her injury which may be complicated by ongoing psychological and social issues. Ms. Brunelle also suffers from mild carpal tunnel syndrome. Dr. Pollack felt there was some potential mechanical contribution to her pain, based on the most recent X-rays. Nevertheless, he indicated the mechanical contribution is small relative to the chronic regional pain syndrome.

[103] Ms. Brunelle’s right wrist is often tender and swollen and she experiences some numbness in her fingers. In addition, her left thumb is now tender and swollen due to overuse. She is no longer able to write or type for any length of time with her dominant right hand. Therefore her opportunities for part‑time teaching are limited. In addition, although she can perform the activities of daily living, she does so in a limited fashion and experiences significant pain. These symptoms are likely to persist. Dr. Pollack noted the most important thing is for Ms. Brunelle to comply with pain treatment. Only if that treatment fails, would he consider further surgery to remove the plate and screws. He does not advise the procedure.

[104] Ms. Brunelle, who was 63 years old at the time of trial, now lives alone in a three‑bedroom townhouse. She has suffered from significant depression, to some extent as a result of the violence inflicted on her by her husband of only one year. This violence resulted in: a badly broken dominant wrist, police involvement, criminal charges, a criminal trial, and a family/civil trial for damages. In March 2008, the clinical opinion of treating psychiatrist Dr. Lessard was that Ms. Brunelle was not able to be gainfully employed. He diagnosed her with a major depressive disorder, post‑traumatic stress syndrome and anxiety disorder. These conditions did not precede the injury suffered on August 22, 2007. Ms. Brunelle continues to be treated by Dr. Lessard.

[105] The most recent summary of Ms. Brunelle’s medical status is that of her general practitioner, Dr. Catherine Marks. In her report of March 8, 2011, she states Ms. Brunelle continues to experience ongoing chronic pain and ongoing partial disability of her right wrist, resulting in continuing sleep deprivation, depression, and diminished quality of life. In addition she states:

... the patient has developed advanced osteoarthritis and chronic tendonitis of the left thumb as compensation for the disability of her right hand. My observation is that the condition of her left thumb has worsened in the last few months with ongoing changes and deformity of the joint between the thumb and the rest of the hand.

[106] Dr. Marks recommended Ms. Brunelle continue the use of pain medication and antidepressants and pursue pain and sleep management therapies, as recommended by Dr. Nathan, to address chronic regional pain syndrome.

[107] Based on the evidence of Ms. Brunelle, the doctors and the occupational therapist, I find the impact of the injury on Ms. Brunelle has been significant and life‑altering.

[108] Ms. Brunelle claims $25,000.00 in aggravated and punitive damages.

[109] In Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, the Supreme Court of Canada indicated aggravated damages are not awarded in addition to general damages but general damages are assessed “taking into account any aggravating features of the case and to that extent increasing the amount awarded.” Further, in a more recent decision of the Ontario Court of Appeal in T.W. v. Seo, (2005), 2005 CanLII 21356 (ON CA), 199 O.A.C. 172, 256 D.L.R. (4th), the Court noted the following at paras. 69-70:

69. General non-pecuniary damage should be assessed after taking into account any aggravating features of the defendant's conduct. The court may separately identify the aggravated damages, however, in principle they are not to be assessed separately. The purpose of aggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive, and malicious aspects of the defendant's conduct which aggravate the plaintiff's suffering. In cases of negligence, aggravating factors can also be taken into account where the defendant's conduct recklessly disregards the plaintiff's rights.

70. The following are aggravating factors which should be taken into account to determine whether the non-pecuniary damages should be increased: humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim, and post-incident conduct which aggravates the harm to the victim.

[110] In this case Ms. Brunelle, who had been married to Mr. Shaw for only one year, was violently ejected from her home by her husband. This violence was perpetrated by an individual she should have been able to trust and rely upon. Her ejection from the home took place in the middle of the day and with Mr. Shaw’s son, Byron Shaw, also in the home. Not only was Ms. Brunelle physically injured but she has suffered psychological damage due to Mr. Shaw’s conduct as outlined by Dr. Lessard. Although Ms. Brunelle’s depression and anxiety cannot be solely attributed to the actions of her husband, I find on a balance of probabilities that his conduct has contributed to her ongoing mental health problems.

[111] Therefore, considering all these circumstances, including the aggravating factors in this case, the expert evidence, and the case law, I assess Ms. Brunelle’s general damages in the amount of $65,000.00. Without the aggravating factors I would have assessed general damages in the amount of $50,000.00.

Punitive Damages

[112] As noted, Ms. Brunelle also claimed punitive damages.

[113] Aggravated and punitive damages are fundamentally different. As explained by the Supreme Court of Canada in Norberg v. Wynrib, supra, general damages are assessed taking into account any aggravating features of the case and must be distinguished from punitive or exemplary damages. The Court states at para. 54: “The latter are awarded to punish the defendant and to make an example of him or her in order to deter others from committing the same tort.” The Court goes on to indicate: “Although aggravated damages will frequently cover conduct which could be also the subject of punitive damages, as I noted, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate.”

[114] I have already considered the aggravating factors in this case in assessing general damages. Although reprehensible, I do not find Mr. Shaw’s conduct, though extreme, to warrant an award of punitive damages in order to punish him and deter him and others from committing a similar act. Therefore, I will not order punitive damages.

Future Loss of Income and/or Loss of Competitive Advantage

[115] Ms. Brunelle’s financial statement filed before trial indicates she is now earning more net income than she did before the injury occurred on August 22, 2007. At this time her income sources are Canada Pension, her teacher’s pension and minimal self‑employment income. Ms. Brunelle testified she has not taken on any new life insurance clients since February 2010.

[116] While working with Mr. Shaw and World Financial Group, Ms. Brunelle’s income was minimal. She had retired from teaching and prior to the injury had no intention of teaching again. She was 59 years old at the time of the injury and 63 at the time of trial. I prefer to deal with Ms. Brunelle’s future loss of income claim on the basis of her loss of competitive advantage. Based on all the evidence I am satisfied that due to the severe injury to her right (dominant) wrist she has and will suffer economic loss due to the impairment of her ability to compete for employment. As noted by McKinnon J. in Cerilli v. Ottawa (City), 30 M.P.L.R. (4th) 110, damages for loss of competitive damage have been awarded where the injury could have some impact on the Plaintiff’s future employability: see O’Day v. Facoetti Estate, [2002] O.J. No. 2374 at para. 67 (S.C.J.).

[117] The evidence in this case indicates that Ms. Brunelle’s marketability as an employee or as a self‑employed life insurance agent has been substantially affected by her injury: see Honey v. Gamache, [1997] O.J. No. 5820 (S.C.J.) at para. 28. Although she has the desire, she is now unable to work even part‑time as a supply teacher which was her chosen field of work. Although she could do some minimal life insurance work, given that she has a licence, this too has become difficult and her ability to attract and retain clients is negatively impacted by her injury.

[118] Due to her injury, Ms. Brunelle will only be able to work minimal hours. No evidence was provided as to the method by which to quantify Ms. Brunelle’s specific loss of competitive advantage. As a newly separated single woman no longer receiving spousal support, I find her evidence that she hoped and intended to do some form of part‑time supply teaching or to expand her roster of life insurance clients to be credible. The fact is that Ms. Brunelle is now unable to do either in a meaningful way. Although she has tried to maintain some life insurance clients, she has not taken on any new clients since February 2010.

[119] I must consider that Ms. Brunelle was 59 when she was injured and separated from her husband. I find it unlikely she would work as a part‑time supply teacher or do the research and marketing necessary to expand her roster of her life insurance clients beyond the age of 65, whether or not she had suffered the wrist injury. I find that without suffering a wrist injury, Ms. Brunelle would have been able to earn at least $10,000 to $15,000 annually by supply teaching part-time. Her financial statements indicate that she has only been able, and I find will only continue to be able, to earn approximately $2,700 to $4,200 annually for five years. Therefore, I order damages for loss of competitive advantage, as requested, in the amount of $25,000.00.

Future Care Costs

[120] It was the opinion of expert occupational therapist, Sherry Taillefer, that Ms. Brunelle would require future professional services in the amount of $5,400.00; activities of daily living aids – a one‑time cost of $3,317.00 and an annual cost of $356.20; home accessibility aids – a one‑time cost of $254.00 and an annual cost of $58.00; assistance with indoor and outdoor home maintenance tasks – a one‑time cost of $780.00 and an annual cost of $9,997.59; as well as contingency costs for surgery in the amount of $7,543.16. These figures were used by expert actuary Mr. Guy Martel in determining the present value of the care and expenses recommended by Ms. Taillefer. His report, dated February 24, 2011, notes a present value on April 27, 2010, before contingency costs for surgery, of $160,555.00 and with contingency costs for surgery on the date of valuation $168,098.00 or, if the surgery took place at age 74, $166,167.00. No issue was taken with Mr. Martel’s qualifications nor his methodology.

[121] Ms. Sherry Taillefer was qualified as an expert in occupational therapy. She held up well and strongly maintained her opinion as to Ms. Brunelle’s future needs and future care costs under vigorous cross-examination. I find she is a professional with a great deal of expertise. She was clear that her role was not to diagnose or investigate but to observe and assess Ms. Brunelle’s functioning. She found no evidence that Ms. Brunelle was feigning or exaggerating her disability. Ms. Taillefer testified that her goal was to determine what Ms. Brunelle did before her injury and to make recommendations which would enable her to regain that level of functioning and independence.

[122] There are some weaknesses in the evidence of Ms. Taillefer as follows:

(1) She is registered and qualified as an occupational therapist by the College of Occupational Therapists of Ontario and is also certified by the College as a life care planner. Under cross-examination she was clear there was no separate qualification or certification specialty for hands or wrists. In reviewing Ms. Taillefer’s curriculum vitae and considering the courses she has taken, it appears her major interest lies in cognition, brain and spinal cord injuries. She took approximately ten courses in these areas whereas she took only one course in upper extremities in 1995.

(2) Other than her own assessment of Ms. Brunelle, Ms. Taillefer relied on source documents which were limited and approximately two years old. She did not have any discussions with the doctors to update herself as to Ms. Brunelle’s medical progress.

(3) Ms. Taillefer was clear that, apart from her own observations, she relied largely on self‑reporting by Ms. Brunelle as to tasks such as driving, shovelling show, et cetera. She did observe Ms. Brunelle in her home doing tasks which would require similar actions and similar utilization of the hand, thumb and wrist.

(4) The surveillance video taken in January 2010 by the investigator hired by Mr. Shaw, does, to some extent, contradict what Ms. Brunelle told Ms. Taillefer. Ms. Brunelle stated that she could not grasp a cylindrical object, however the video shows her holding and using a snow brush. The video also shows Ms. Brunelle opening her car door and holding up the hood of her car with her right hand. When questioned about the surveillance video, Ms. Taillefer stated that, although Ms. Brunelle may be able to do some of these tasks, she would have suffered pain in doing so.

(5) Ms. Brunelle told Ms. Taillefer that she could not open a gas tank and yet she drove for approximately two-and-a-half years after the injury prior to trial and would of necessity had to open the gas tank from time to time.

[123] Ms. Brunelle was able to cope to some extent with the activities of daily living although with significant pain, for the two-and-a-half years prior to trial without aids, housekeeping, and home maintenance assistance. Although I find Ms. Brunelle has significant difficulty due to her right wrist injury which caused weakness, swelling and pain, I find her claim of $160,555.00 for therapies, activities of daily living aids, home accessibility and home maintenance unreasonable.

[124] The aids prescribed by Ms. Taillefer for homemaking, activities of daily living and home accessibility will reduce Ms. Brunelle’s pain, enabling her to perform daily household tasks more effectively and frequently and to do the weekly light housekeeping required for her townhouse. In addition, given her age, it is likely Ms. Brunelle will move to a smaller residence, by age 70, particularly given her limitations, and thereby reduce her costs.

[125] I am not prepared to make any award for future surgery costs. Future surgery is speculative at best, according to the evidence of Dr. Pollack and Dr. Kim. In addition, I will not award damages for future occupational therapy assessments and treatment. Although those costs are less speculative, it is unclear whether they will be necessary and, if so, when.

[126] I find that Ms. Brunelle will need the following:

(1) Aids for homemaking, activities of daily living and home accessibility at a one-time cost of $3,571.00 and an annual cost of $414.23.

(2) Housekeeping assistance for fall and spring cleaning (two times per year) for four hours each at $39.00 per hour for a total annual cost of $312.00.

(3) The services of a handyperson to do inside home maintenance at what I consider to be a reasonable cost of $500.00 per year.

(4) Lawn maintenance and snow removal at an annual cost of $1,000.00 to age 70, when I find it likely that Ms. Brunelle will move to a smaller residence, likely a condo or apartment where such maintenance will not be required.

[127] The first three items of reasonable future costs are to be calculated by Mr. Martel using the same methodology and assumptions used in his report of February 24, 2011. He is also to recalculate the amount for lawn maintenance and snow removal to age 70. After Mr. Martel has done these recalculations based on my findings, both lawyers are to submit to me a final figure for each identified item and a total prior to my signing Judgment.

Summary of Damages

[128] The damages are as follows:

General and Aggravagted Damages $65,000.00

Loss of Competitive Advantage $25,000.00

Future Care Costs (Final figures to be provided by actuary, Mr. Guy Martel.)

[129] Interest on the general damages and loss of competitive advantage is to be calculated as per s. 128 of the Courts of Justice Act from the date of the injury to the date of the release of my Judgment after I receive the final figures from Mr. Martel.

Costs

[130] In the event that the parties are unable to agree on costs, Mr. Shaw is to provide me with written submissions as to costs with regard to both the family law and damages claims within 60 days. Ms. Brunelle is to provide her submissions in response within 30 days of receipt of Mr. Shaw’s submissions.

[131] Mr. Shaw is then permitted a further 14 days to reply regarding Ms. Brunelle’s submissions on the family claim, and Ms. Brunelle is permitted a further 14 days to reply regarding her claim for damages.

Blishen J.

Released: January 26, 2012