ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO: CV-10-402901
DATE: 20120213
B E T W E E N:
Randy Misir Plaintiff - and - Jagdeo Baichulall, Seeta Baichulall, Shaun Samaroo, Parbati Sandra Misir and Shanta Jaimangal Defendants
J. Markin, for the Plaintiff
No one appearing, for the Defendants
HEARD: October 3, 2011
HAINEY J.
Overview
[ 1 ] This action proceeded as an undefended trial before me because all of the defendants have been noted in default. On April 26, 2011, Conway J. ordered that the plaintiff’s trial proceed pursuant to Rule 19 of the Rules of Civil Procedure .
[ 2 ] The plaintiff claims damages against the defendants who he alleges committed assault, identity theft, misappropriation of funds, interfered with his conjugal relations and willfully inflicted emotional harm upon him.
[ 3 ] The plaintiff was the sole witness at trial. He seeks general damages in the range of $25,000 to $50,000 and punitive damages of $10,000.
Facts
[ 4 ] The events that give rise to the plaintiff’s claim occurred between 1995 and 2001.
[ 5 ] The plaintiff was married to the defendant, Parbati Sandra Misir (“Sandra”). They lived in an apartment at 10 Tuxedo Court in Toronto with a number of the other defendants. According to the plaintiff, the defendants would get together for social gatherings at the apartment as often as twice a week at which time the defendant, Seeta Baichulall (“Seeta”) gave the plaintiff tea or water that contained valium and Phenobarbital which caused him to fall asleep.
[ 6 ] While the plaintiff was asleep the defendants engaged in sexual dalliances as a group at which times his wife, Sandra had sexual relations with the defendants, Jagdeo Baichulall (“Jagdeo”) and Shaun Samaroo (“Shaun”).
[ 7 ] The plaintiff alleges that the defendants’ conduct undermined his relationship with Sandra and contributed to their divorce in 1999.
[ 8 ] Further, the plaintiff alleges that as a result of Sandra’s sexual dalliances, he contracted a venereal infection from her on two separate occasions and required medical treatment each time.
[ 9 ] The plaintiff also alleges that Jagdeo taunted him about his sexual relations with Sandra, but, at the time, the plaintiff did not believe him.
[ 10 ] The plaintiff also alleges that he advanced $800 to Sandra for the purpose of providing care and necessities of life to their son, who is seriously handicapped, and that Sandra, Jagdeo and Seeta misappropriated the funds for their own use.
[ 11 ] The plaintiff also alleges that Jagdeo and the defendant, Shanta Jaimangal (“Shanta”) used his identify to facilitate a fraudulent marriage for an immigration spousal sponsorship of a third party from Guyana. As a result, the plaintiff experienced difficulty with Canadian immigration officials when he travelled to and from Canada and the United States.
[ 12 ] Finally, the plaintiff alleges that Jagdeo, Shaun and Sandra encouraged Geree Misir (“Geree”), who married the plaintiff following his divorce from Sandra, to make false allegations against him to the Toronto Police that resulted in criminal charges against him that he successfully defended.
[ 13 ] The plaintiff maintains that he was not aware of any of the circumstances or acts of the defendants of which he complains in this action until September 2009 when he received a telephone call from Shanta who informed him of all of the information referenced in his statement of claim and in his testimony before me. It is for this reason that he did not commence this action earlier.
[ 14 ] The plaintiff claims that although he was unaware he was being drugged he felt drowsy, edgy, nervous and tired and sought medical attention at the time. This was most prevalent between 1995 and 1998.
Scope of Inquiry
[ 15 ] The plaintiff submits that because this is an undefended trial and the defendants have been noted in default, it is not open to me to enter into an inquiry about the liability of the defendants. In support of this submission, the plaintiff relies on the Ontario Court of Appeal’s decision in Umlauf v. Umlauf (2001), 2001 24068 (ON CA) , 53 O.R. (3d) 355. In Umlauf the Court of Appeal held that in an undefended trial where the defendants have been noted in default the trial judge cannot enter into an inquiry into the facts or the underpinning of the causes of action that the defendants are deemed to have admitted by their default. D.M. Brown J. considered this issue in Viola v. Hornstein, [2009] O.J. No. 1486 and adopted the following approach to his consideration of the plaintiff’s claim:
16 The Plouffe and Fuda cases indicate that where a plaintiff places an undefended action on the trial list, the trial judge not only must consider the deemed admissions flowing from the default, but the judge should also perform the general tasks of considering credibility, weighing the evidence of the plaintiff, and then making findings of fact, in order to determine, as required by Rule 19.06, whether those facts entitle the plaintiff to judgment. If the trial judge concludes that the plaintiff has proved the liability of the defendants, the trial judge then can proceed to assess damages on the evidence adduced.
17 I agree with this approach. It makes sense in light of all the provisions of Rule 19, especially Rule 19.06. Although Umlauf is binding on me, so too is Rule 19.06. The approach set out in Plouffe and Fuda gives effect to Rule 19.06. I shall follow it in the present case.
18 Consequently, I propose to employ the following approach to considering each claim of the plaintiffs:
(i) What deemed admissions of fact flow from the Amended Claim?
(ii) Do these deemed admissions entitle the plaintiffs to judgment on the claim?
(iii) If they do not, have the plaintiffs adduced at trial admissible evidence that, when combined with the deemed admissions, entitles them to judgment on the pleaded claim?
[ 16 ] I intend to employ the same approach as D.M. Brown J. in considering the plaintiff’s claims in this case. I will begin with the allegations in the statement of claim that the defendants are deemed to admit pursuant to Rule 19.02(1)(a):
Deemed Admissions
• Seeta gave the plaintiff tea or another beverage containing valium and Phenobarbital, causing him to fall asleep.
• While the plaintiff was unconscious, the defendants engaged in sexual dalliances as a group. These acts included sexual relations between his wife, Sandra, and Jagdeo and Shaun. This led to the breakdown of the plaintiff’s relationship with his wife and caused the plaintiff stress and anxiety.
• Jagdeo, Shaun and Sandra encouraged Geree, the plaintiff’s second wife, to make allegations against him to the police, even though the defendants knew the allegations were false.
• The plaintiff advanced funds to Sandra for the care of their handicapped son but she used them for her own benefit instead of for the benefit of the child.
• The plaintiff was taunted by Jagdeo with respect to Jagdeo’s sexual dalliances with Sandra.
• The plaintiff contracted a venereal infection on two occasions as a result of Sandra’s sexual dalliances. This caused him to become ill, experience pain and suffering, and to require treatment.
• As a result of losing consciousness when given valium and Phenobarbital, the plaintiff became alarmed, fearful and required medical assistance as he did not know the cause of his loss of consciousness.
• Jagdeo and Shanta stole his identity for immigration purposes resulting in increased attention from Canadian immigration officials when the plaintiff crossed the border. This interfered with his travel and resulted in a loss of reputation, standing and income.
• The valium and Phenobarbital given to the plaintiff made him feel sleepy, edgy, nervous and tired, especially between the years of 1995 and 1998, when he lived at the Tuxedo Court apartment.
• The plaintiff was not aware of the acts perpetrated upon him by the defendants until September 2009 when he received the information from Shanta who knew that these events had taken place.
• The defendants acted knowingly and willfully with malice against the plaintiff and with the intent of causing him harm and defrauding him.
Effect of Deemed Admissions
[ 17 ] Based on the deemed admissions arising as a result of Rule 19.02(1)(a) I find that:
• The defendant, Seeta, drugged the plaintiff by giving him beverages containing valium and Phenobarbital without his knowledge or consent. This caused him to fall asleep. It also caused him to become alarmed, fearful and to require medical assistance because he did not know the cause of his losses of consciousness. In my view, this constitutes the tort of battery that involves the “intentional infliction of unlawful force on another person”: Narberg v. Wynnib , 1992 65 (SCC) , [1992] S.C.J. No. 60 (S.C.C.) at para. 26 per LaForest J. It is the “invasion of one’s bodily security”. Reibl v. Hughes , 1980 23 (SCC) , [1980] 2 S.C.R. 880 (S.C.C.) at 890.
• The defendants engaged in sexual activity as a group while he was asleep including sexual relations between the plaintiff’s wife, Sandra, and Jagdeo and Shaun. In my view, this does not constitute a valid cause of action for which the plaintiff can recover any damages from the defendants.
• The defendant, Jagdeo, taunted the plaintiff regarding his sexual relations with Sandra. In my view, this does not constitute a valid cause of action for which the plaintiff can recover damages from Jagdeo.
• The defendant contracted a venereal infection on two occasions from Sandra who knew or ought to have known that she had placed him at risk of becoming ill, experiencing pain and suffering and requiring medical treatment. In my view, this also constitutes the tort of battery for the reasons outlined above as it constituted the “invasion” of his “bodily security”.
• The plaintiff advanced funds to his wife, Sandra, for the care of their son, but she used the money for other purposes. In my view, this bald allegation that is lacking in sufficient particulars and any proof of loss by the plaintiff does not constitute a valid cause of action for which the plaintiff can recover damages.
• The defendants, Jagdeo and Shanta, used the plaintiff’s identity to facilitate a fraudulent immigration spousal sponsorship of a third party from Guyana. In my view, this bald allegation that is lacking in sufficient particulars and any proof of loss by the plaintiff does not constitute a valid cause of action for which the plaintiff can recover damages from the defendants.
• The defendants acted knowingly and willfully with malice with the intention of inflicting harm upon the plaintiff and defrauding him. In my view, these deemed admissions do not establish the cause of action of intentional infliction of mental suffering, as submitted by the plaintiff. In order to establish this cause of action, there must be evidence of “a visible and provable medical illness.” Prinzo v. Baycrest Centre for Pediatric Care (2002), Correira v. Canac Kitchens (2008), ONCA 506. There was no medical evidence presented by the plaintiff to establish that he suffered any visible or provable medical condition arising from the acts of the defendants. Therefore, I find that a valid cause of action of infliction of mental suffering has not been established by the plaintiff. Pinesferreira v. Ryotte , [2010] ONCA 384.
• The defendants, Jagdeo, Shaun and Sandra encouraged the plaintiff’s second wife, Geree, to make false allegations against him to the Toronto Police that resulted in criminal charges that the plaintiff successfully defended. In my view, this bald allegation lacking in particulars and any proof of loss by the plaintiff does not constitute a valid cause of action for which the plaintiff can recover damages from the defendants.
The Plaintiff’s Testimony
[ 18 ] The plaintiff testified before me at trial. I must consider whether his evidence combined with the deemed admissions referenced above establishes any of his claims against the defendants.
[ 19 ] The plaintiff was an unimpressive witness whose evidence was based almost entirely on what he claims he learned in September 2009 in a telephone call with Shanta. I find that there is an air of unreality about most of his evidence. In particular, his assertion that he was unaware he was being drugged as often as twice a week over a four to six year period is difficult to accept. His evidence that he only learned of the defendants’ conduct during a telephone call with Shanta in September 2009 also strains credibility. Accordingly, I attach little weight to his evidence as I did not find him to be a credible witness.
[ 20 ] The plaintiff testified that all of the defendants were involved in a conspiracy to drug him and actively participated in drugging him so that he would fall asleep and they could engage in sexual dalliances as a group in the apartment.
[ 21 ] When the deemed admissions are considered with the plaintiff’s testimony at trial I find that the only alleged cause of action the plaintiff has established is assault arising from the administration of drugs against all of the defendants and assault against Sandra arising from his exposure to a venereal infection. However, with respect to the claim of assault against Sandra, the plaintiff was well aware he contracted a venereal infection from her in 1999 and accordingly his claim against her is statute barred having been commenced eleven years after his cause of action arose.
Assessment of Damages
[ 22 ] The plaintiff did not provide any medical evidence in support of his claim for damages other than a screen test for syphilis from 1999. His entire claim in respect of the assaults by drugging is based upon what he learned from Shanta in September 2009. There is no independent evidence to support his claim that he “felt sleepy, edgy, nervous and tired” as a result of being drugged. Further, according to his own evidence he did not know he had been drugged until he was told about it by Shanta over ten years later.
[ 23 ] In my view, he is only entitled to nominal damages as there is very little evidence of any pain or suffering experienced by him as a result of the assaults by drugging. In Plouffe v. Roy 2007 CarswellOnt 5739 , J.W. Quinn J. awarded the plaintiff nominal damages in the amount of $5,000. He cited the text Civil Liability for Sexual Abuse and Violence in Canada, in which the authors state: “Although intentional torts such as assault and battery are actionable without proof of causation or damage, any award which is beyond a nominal figure requires proof of loss occasioned by the defendant.”
[ 24 ] In my view, the plaintiff has not proved that he suffered sufficient pain and suffering as a result of being drugged to justify an award for non-pecuniary general damages in the range of $25,000 to $50,000 as he submitted at trial. Further, the plaintiff provided me with no judicial authority to justify an assessment of his damages in this range. I find that an award in the same amount as J.W. Quinn J. awarded to the plaintiff in the Plouffe case would adequately compensate the plaintiff for any pain or suffering he has experienced as a result of the assaults by drugging. Accordingly, I assess the plaintiff’s non-pecuniary general damages arising from these assaults by the defendants at $5,000. In my view, this is not an appropriate case to award punitive damages since, as indicated above, only nominal damages are appropriate and I find that there is an air of unreality about most of the plaintiff’s testimony. Further, the plaintiff did not provide me with any judicial authority to support his claim for punitive damages.
[ 25 ] Although the plaintiff did not provide me with a Costs Outline or provide me with any information concerning his claim for costs, I am of the view that he should be awarded a nominal amount on account of his costs of this proceeding. I note that the plaintiff was self-represented throughout the proceedings although legal counsel did appear on his behalf at trial. In my view, a fair and reasonable amount that should be awarded for costs is $1500 inclusive of disbursements and tax. This is an amount that I find should have been within the reasonable contemplation of the parties.
[ 26 ] For the reasons outlined above the plaintiff is awarded damages in the amount of $5,000 and costs in the amount of $1500 against all of the defendants.
HAINEY J.
Released: February 13, 2012
COURT FILE NO: CV-10-402901
DATE: 20120213
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Randy Misir Plaintiff - and - Jagdeo Baichulall, Seeta Baichulall, Shaun Samaroo, Parbati Sandra Misir and Shanta Jaimangal Defendants
REASONS FOR DECISION
HAINEY J.
Released: February 13, 2012