COURT FILE NO.: 62859

DATE: 2013/06/19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

D.M.

Robert P.M. Talach and Aaron Lealess

Plaintiff

• and -

W.W.

Not participating

Defendant

HEARD: December 10, 2012

LEACH J.

[1] The plaintiff, D.M., seeks judgment against the defendant, his maternal uncle W.W., for damages based on sexual abuse, assault, battery and/or negligence. The conduct giving rise to the claim occurred in the summer of 1975, when the plaintiff was 12 years old.

PROCEDURAL HISTORY

[2] The plaintiff commenced this action by way of a statement of claim issued on July 20, 2009, and which was served shortly thereafter.

[3] The action did not go undefended.

[4] To the contrary, the defendant responded quickly with a statement of defence, delivered on or about August 24, 2009. The defendant formally admitted none of the allegations in the statement of claim, and denied all such allegations except for the indication of the plaintiff’s current residence, in respect of which the defendant pleaded no knowledge. The defendant also went on the attack by including, in his pleading, a counterclaim seeking substantial damages for alleged malicious prosecution, abuse of process and/or defamation, as well as his costs on a substantial indemnity basis.

[5] The form and content of the defendant’s pleading suggest that it was prepared with the assistance of legal counsel.

[6] The plaintiff delivered a reply to the statement of defence, and a defence to the counterclaim, on or about September 11, 2009.

[7] On October 15, 2009, the defendant delivered a notice of appointment of lawyer. For the remainder of the litigation, the defendant was represented by counsel.

[8] However, notwithstanding the defiant and aggressive formal response to the claim set forth in the defendant’s pleading, the defendant thereafter demonstrated a marked reluctance to address the plaintiff’s claim on its merits.

[9] In that regard, I note that the plaintiff never was examined for discovery by the defendant or his legal counsel.

[10] In contrast, the plaintiff and his counsel sought time and again to move the litigation forward, but their efforts repeatedly were frustrated by the conduct of the defendant. In particular, the defendant unilaterally cancelled and failed to appear at four successively scheduled examinations for discovery, during which he would be questioned under oath concerning the matters set forth in the pleadings.

[11] The plaintiff eventually was obliged to bring a formal motion for an order, (obtained on November 29, 2011), compelling the defendant’s attendance for an examination and awarding compensation for legal costs thrown away by the defendant’s conduct. In particular, the defendant was ordered to pay $2,500 in costs thrown away, and a further $1,000 for the costs of the plaintiff’s motion.

[12] Under compulsion of the aforesaid court order, the defendant finally presented himself for examination under oath on December 12, 2011. As noted below, he nevertheless would fail to make any payment whatsoever, towards satisfaction of the court order, for almost a year.

[13] Following completion of the defendant’s discovery examination under oath, the plaintiff indicated his desire to move the matter forward to trial by jury and, with the assistance of counsel, pursued appropriate steps in that regard.

[14] A trial record was filed on July 6, 2011, and a pre-trial conference then was scheduled for June 29, 2012. At that conference, the defendant formally withdrew his counterclaim.

[15] Although the parties engaged in settlement negotiations, no agreement was reached, and by October of 2012 the defendant still had not paid anything whatsoever towards satisfaction of the $3,500 cost award made on November 29, 2011.

[16] On October 12, 2012, the plaintiff therefore brought a motion seeking an order for contempt, and to strike the defendant’s statement of defence. The motion was scheduled for hearing on November 20, 2012.

[17] On November 19, 2012, (the day immediately before the scheduled hearing of the plaintiff’s contempt motion), the defendant paid $750 towards his outstanding cost obligation. On the same day, the defendant’s lawyer delivered a formal notice of withdrawal of the defendant’s statement of defence in its entirety, pursuant to Rule 23.06(1) of the Rules of Civil Procedure. Pursuant to Rule 23.06(2), the defendant automatically was deemed to be noted in default, and he has made no further effort to participate in the proceeding.

[18] The plaintiff elected to withdraw his contempt motion.

[19] Instead, pursuant to Rule 19.05, the plaintiff moved for judgment against the defendant on the statement of claim. At the return of the motion before me on December 10, 2012, the plaintiff requested an order pursuant to Rule 47.02 striking his jury notice, and I made the order accordingly.

EVIDENCE AND FACTS

[20] Pursuant to Rule 19.02, consequences of the defendant being noted in default include the defendant’s deemed admission of the truth of all allegations of fact made in the plaintiff’s statement of claim.

[21] In the particular circumstances of this case, deemed admission of the plaintiff’s factual allegations not only is the formal effect of the rules, but also a result which the represented defendant knew or ought to have known would flow immediately and automatically from the deliberate withdrawal of his statement of defence when trial was imminent. His conduct in that regard, (which in my view is tantamount to a very belated formal admission that the underlying allegations of the plaintiff are indeed true), will be the subject of further comment below in relation to the plaintiff’s request for punitive damages and enhanced costs.

[22] Notwithstanding deemed admission of the plaintiff’s pleaded allegations of the fact, the plaintiff supplemented those facts with further evidence by way of affidavit.

[23] At the return of the motion before me, the plaintiff also presented himself to give sworn evidence if and as necessary, and to address the court personally.

The plaintiff’s life before abuse

[24] The plaintiff was born in the fall of 1962. He was the fifth of seven children, (three boys and four girls), born into a relatively large but close, stable and loving family. Their socio-economic status is described by the plaintiff as being “middle class”.

[25] The plaintiff’s father was a small business owner, who was constantly employed throughout his life. His mother stayed at home with the children.

[26] The plaintiff’s parents remained married and together for many decades until the father’s death in 1998. Neither is known to have suffered from any physical or mental problems impacting on their relationship with each other or their children. Neither abused alcohol or drugs in any way. Corporal punishment in the form of spanking was applied in the household from time to time, but in a sparing way and never to the plaintiff.

[27] The family lived just outside of London, in a setting that offered the best of rural living with easy access to urban amenities. They participated regularly in church activities.

[28] There was and is no known family history of psychological difficulties similar to those experienced by the plaintiff and described below.

[29] Moreover, prior the age of 12, the plaintiff himself suffered no noteworthy illness or sickness that interfered with his upbringing. Prior the age of 12, the only potentially traumatic experiences in his life occurred when he injured two fingertips at the age of 4 or 5, (by touching a mechanical pump in the basement of the family home), and when an accidental fall resulted in a broken collarbone at the age of 10.

[30] Until the age of 12, the plaintiff also had suffered no physical or sexual assaults.

[31] The plaintiff was a good student who, up to and including completion of his grade 7 studies in the spring of 1975, apparently did not find it difficult to maintain at least a “B” average.

The defendant

[32] The defendant W.W. is one of the plaintiff’s maternal uncles. He is unmarried, and has never been married. He earned his living as a publisher in the music industry. His activities in that regard included publication of “The Organist Magazine”, the official monthly publication of The Young Organist Association. It was a publication primarily for those who were amateur electric organ musicians.

[33] The defendant lived in California for many years. He had friends who were “promoters” and celebrities. At least into the 1970s, the defendant was admired by D.M.’s parents and the plaintiff.

[34] In the plaintiff’s eyes, the defendant had “celebrity status” of his own.

[35] Many decades later, during his eventual examination for discovery in this litigation, the defendant acknowledged that he had been abused extensively by a relative as a child, that he was homosexual in orientation, and that he generally had sexual partners that were junior in age to him by many decades.

[36] The defendant also acknowledged that, at some point in time, he had been convicted in the state of California for sexual crimes against a teenager, and placed on California’s registry of sex offenders.

Sexual assault and abuse

[37] The Young Organist Association organized conventions, usually lasting over the course of a week-end, which were known as “The Home Organist Adventure”. The conventions took place at various locations in the United States. They were attended not only by the defendant but also by the plaintiff’s parents, who participated at the defendant’s request in order to provide the defendant with assistance.

[38] In the summer of 1975, when the plaintiff was 12, he and other members of his family, (including his parents and at least two older siblings), travelled in the family motor home to attend such a convention. The venue was a hotel in Chicago, Illinois. It was the first time the plaintiff had attended such a convention.

[39] The intention was for all attending members of the plaintiff’s family to sleep in their motor home, in the hotel parking lot. However, this arrangement changed on the second or third night of the convention when the plaintiff and his parents visited the hotel suite of the defendant, (then 36 years old). The room was equipped with two “Murphy beds”, which pulled out of the wall. One already had been lowered and readied for sleeping.

[40] The plaintiff had never been in a hotel room before or seen such unique beds, and expressed his interest and amusement.

[41] In response, the defendant suggested having the plaintiff stay in the hotel room for the night, instead of the tight quarters offered by the family’s motor home, so that the plaintiff could “try out” the unique bed. The plaintiff’s parents agreed, and he was told to stay with his uncle for the evening.

[42] However, once the plaintiff had been left alone with his uncle in the hotel room, the defendant did not lower the second bed. The plaintiff tried to do this himself, (while the defendant was in the bathroom preparing for bed), but was unsure of the Murphy bed’s operation and was afraid that it would fall on him. He therefore waited for his uncle’s assistance.

[43] When the defendant returned from the bathroom, he indicated that the already lowered bed was large enough for both of them, and that the plaintiff would sleep with him instead. The second Murphy bed therefore remained in the wall.

[44] At the time, the plaintiff was accustomed to sleeping in his underwear, and undressed to that extent while in the bathroom preparing for bed.

[45] When the plaintiff returned to the bedroom, the defendant already was in the lowered Murphy bed and completely naked. On seeing the plaintiff in his underwear, the defendant persuaded the plaintiff to sleep in the nude as well, because it “felt more free and natural”. The plaintiff was uncomfortable with doing so, but went along with the defendant’s suggestions because he admired his uncle and did not want to appear immature.

[46] Shortly after the plaintiff joined his uncle in the bed, the defendant asked the plaintiff to sit on his back and give him a back massage. The plaintiff again was uncomfortable with his uncle’s suggestions, but complied with the request. The resulting back massage went on for approximately 10-15 minutes, during which time the defendant kept complimenting the plaintiff on his “strong hands” and “good technique”.

[47] The defendant then indicated that he wanted the plaintiff to “massage his front”. The plaintiff got off the defendant’s back, at which point the defendant turned over, (completely nude and uncovered), and told the plaintiff to sit on his chest.

[48] The plaintiff did as he was told, and commenced a chest massage that went on for another 10-15 minutes. However, the plaintiff was feeling increasingly uncomfortable with the nudity aspect of what was happening and made a comment to the effect that he was “tired”, so that he could stop the massage and get off the defendant.

[49] In his evidence, the plaintiff emphasized and explained that he was very discomfited at the time by what was happening, and bewildered by the dawning realization that his uncle essentially had lied to his parents about his sleeping in the second bed. However, his uncle was “an important person” to him, he was enjoying his uncle’s compliments to some degree, and the plaintiff was not yet fully aware that there was a sexual element to his activity.

[50] Generally, events seemed to be “moving too fast” for the plaintiff, and he felt unable to stop them.

[51] After concluding the “front massage”, the plaintiff laid down on his right side, (his usual manner of sleeping), which resulted in his facing the defendant. He tried to get comfortable, in order to sleep.

[52] A short time later, however, the defendant turned on his side to face the plaintiff, whom the defendant then began to embrace with both arms and “cuddle”. This lasted for approximately half an hour, before the defendant then moved a hand to the plaintiff’s penis. He then proceeded to rub the plaintiff between his legs, fondling his genitals and resting his hand on the plaintiff’s groin.

[53] The plaintiff says he was shocked by what was occurring, and that the events caused him anxiety and confusion as he knew that others should not be touching that area of his body in that way.

[54] However, he says he felt unable to react to the “surreal” experience. In one sense, he was keenly aware that the events were happening to him, in “almost slow motion”. In another, he felt somewhat detached, as if the events were happening to someone else; that he “was just watching the events but was not there”.

[55] Throughout this stage of his ordeal, the plaintiff says he “remained frozen” and pretended to be asleep. Eventually, through sheer exhaustion, (as it was, by then, many hours after his usual bedtime), the plaintiff did fall asleep.

Immediate aftermath

[56] When the plaintiff woke the next morning, he did not speak to the defendant, who acted like nothing had occurred. The plaintiff quickly got dressed and went outside to find his parents.

[57] However, because he felt shame and embarrassment, the plaintiff did not immediately tell his parents what had happened, (and in fact would not tell anyone of the incident for the next decade). The plaintiff does not recall the remainder of that convention, or the trip home.

[58] The plaintiff says that he generally has no specific recollection about events immediately following the incident, as it bothered him greatly and he tried to put the entire incident out of his mind.

Teen years and high school

[59] When the plaintiff returned to school after the incident, (in the fall of 1975), his previously solid academic performance declined significantly.

[60] Despite the academic promise demonstrated in his earlier elementary school studies, he struggled with Grade 8, and his academic problems continued in high school, (which be began in the fall of 1976).

[61] Generally, the plaintiff found it “difficult to focus” his attention, and suffered greatly from a lack of confidence and low self-esteem. Despite the presence of siblings at his high school, he was quiet, “withdrawn”, “not very social” and the target of bullies, although the bullying stopped short of physical assaults.

[62] Apart from a broken elbow sustained in a cycling accident at the age of 14, (which the plaintiff did not consider traumatic), the plaintiff experienced no further physical injuries during his teenage years, and was not the victim of any further physical or sexual assault.

[63] Sometime in 1977, (when the plaintiff was approximately 14 or 15), he was travelling with his father to another Young Organist Association convention, this time in Florida. During the drive there, the plaintiff’s father informed him that the defendant was homosexual, and went on to explain that homosexuality “is when two men have sex together”. The plaintiff’s father concluded this brief talk by instructing the plaintiff to be wary around the defendant.

[64] In his evidence, the plaintiff emphasized that this “belated warning” from his father had two profound effects on him. First, the plaintiff thought he might be homosexual because of what had happened, and from that point forward questioned his own sexuality. Second, from that moment onwards, the plaintiff was angry with his parents, (and his father in particular), as he believed they had known the risks of allowing him to stay overnight in the defendant’s hotel room and failed to protect him.

[65] The plaintiff says he “harboured some anger towards the world, but especially towards [his] parents”. He went through high school with a “chip on his shoulder”, and generally did not trust others. He did not date actively, and did not have a girlfriend. (He says that his first “bout of kissing with the opposite sex” occurred when he was 17 years old and in grade 12, and that it was initiated by a girl slightly younger than him whom he met through his church youth group.)

[66] The plaintiff left high school after grade 12.

College and return to high school

[67] Despite his poor academic performance in high school, the plaintiff felt an expectation that he should pursue further education, as his siblings did. The summer after Grade 12, he therefore took a number of summer school courses to improve his average, and applied to college.

[68] The plaintiff was accepted into the business program at Fanshawe College, and began his studies there in the fall of 1980 while continuing to live at home with his parents. He did not engage in the college social scene. In marked contrast to his six siblings, who were all socially outgoing, the plaintiff was “introverted and a loner”.

[69] Despite obtaining what the plaintiff felt were some “decent marks” in his first semester at college, the plaintiff continued to be plagued by a lack of confidence, low self-esteem, and a feeling that he was not “good enough” to succeed in his program. His academic performance weakened during his second semester, which reinforced his feelings that he was unworthy of a college diploma.

[70] The plaintiff started into a second year of college in the fall of 1981, but his academic performance continued to decline. He withdrew from half his courses during the fall semester, and then dropped out of college altogether, spending the remainder of that academic year engaged in a number of part time jobs followed by a summer working in construction with concrete.

[71] Although his summer job kept him quite physically fit, he says he still lacked the confidence to use this to his advantage in terms of any relationships with women.

[72] With no college diploma, the plaintiff felt it more important to complete Grade 13, and therefore returned to high school in the fall of 1982. He completed the year with academic difficulty, as well as ongoing social problems and embarrassment. (As an example highlighting such difficulties, and his lack of involvement with women as a teenager and young man, the plaintiff described how his date for the “senior prom” was one of his younger sisters.)

Employment and marriage

[73] Following his graduation from Grade 13 in June of 1983, at the age of 20, the plaintiff continued to work in a variety of part-time jobs.

[74] For approximately one year after leaving high school for the second time, the plaintiff also made sustained efforts to pursue a career in law enforcement, applying to and interviewing with a number of police departments. However, he was told that his lack of post-secondary education was a significant impediment, and he was not hired. He instead went to work with his father, as a minority partner in his father’s sub-search business.

[75] In 1985, (approximately one year after starting work with his father), the plaintiff married his wife M. The two had met through the church youth group years before, and their relationship had “grown very slowly”. The plaintiff candidly indicates that he was a virgin on his wedding night, and that his wife is the only woman with whom he has ever been intimate.

[76] In time, the plaintiff and his wife had three children, (born in 1987, 1990 and 1994), and they are still married.

[77] In 1990, the plaintiff purchased his father’s interest in their business, and he continued with that business until 1998. In essence, he was a title searcher at the Registry Office. He describes the job as being “relatively solitary”. The character of the work nevertheless suited his disposition.

[78] By the end of the decade, however, automation of the title registry system effectively brought such work to an end. Fortunately, the plaintiff was able to transition to employment with a bank as a “mortgage development officer”. He used his knowledge of the registry office to identify mortgages that were coming up for renewal, and thereby supplied his employer with “leads” that were useful in developing its mortgage business.

[79] The plaintiff held that position until 2001, at which time his ability to detect such leads was exhausted. He then transitioned into his current role as a “small business account manager”, working for the same financial institution. In essence, his job now involves assisting small business professionals seeking financing. However, this entails “networking” and socializing, which the plaintiff finds difficult because of his lowered self-confidence and social anxiety.

[80] To improve his prospects, the plaintiff has enrolled in a number of professional development courses, (dealing with such matters as mutual funds and commercial banking), that he nevertheless was unable to finish. He finds that he still cannot focus, and feels that he lacks the confidence necessary for such banking activities. He generally does “not want to draw attention” to himself.

[81] Other bank employees whom the plaintiff has trained are now more senior to him, or have left the bank for more senior positions elsewhere.

[82] The plaintiff provided detailed evidence of his employment, as well as his total income earnings, (as declared in his tax returns), from 2001 to 2011, inclusive. Between 2003 and 2011, his annual earnings ranged between $73,000 and $91,000. His highest indicated salary to date was $90,645, in 2011.

Disclosure and treatment

[83] As noted above, the plaintiff said nothing to anyone about his sexual abuse by the defendant for approximately 10 years after it happened.

[84] In 1984, however, the plaintiff decided to tell his wife about the abuse before their marriage. He then shared the information with his father “about 4 years later”.

[85] In the year or two following disclosure to his father, the plaintiff then told all his siblings of the abuse, in an effort to ensure that his young nieces and nephews would be protected from any similar abuse by the defendant.

[86] In November of 2003, the plaintiff was working at a promotional event for his employer when he unexpectedly saw the defendant and experienced what he now understands to have been a severe anxiety attack. (This was characterized by a racing heart and shortness of breath that required him to leave the event.)

[87] The plaintiff was surprised by the extent of his “poor reaction” to seeing the defendant, and still fears seeing the defendant again.

[88] However, the incident made him consider the extent to which the defendant’s abuse had left a lasting impact, and prompted the plaintiff to seek counselling.

[89] That professional counselling, aimed primarily at treating depression and anxiety, began on November 3, 2003, and continued for approximately 20 sessions through until June 20, 2006. Although it was funded by the Employment Assistance Plan of the plaintiff’s employer, (and therefore did not cost the plaintiff anything out of pocket), funding also was limited to a certain number of sessions each year. In the circumstances, the counselling therefore was less than intensive.

[90] On January 13, 2004, (approximately six weeks into his counselling), the plaintiff “finally felt psychologically strong enough” to deal in a more formal way with the abuse, and reported the defendant to the London Police Service. They found the plaintiff’s evidence to be “compelling, credible and reliable”, but no criminal proceedings were instituted here. Their stated reason for that decision, provided to the plaintiff, was that the abuse had happened in Illinois and the London Police therefore lacked jurisdiction to pursue the matter.

[91] Having regard to the provisions of the Criminal Code of Canada, and the possible application of sections 7(4.1) and 481.2 in particular, one wonders whether this necessarily was the proper conclusion regarding criminal jurisdiction.

[92] Perhaps the defendant was no longer a Canadian citizen nor a permanent resident of Canada at the material time or times.

[93] For present purposes, suffice it to say that the police apparently were and are unwilling to pursue the matter further by way of a criminal prosecution of the defendant here in Canada.

[94] The plaintiff then followed up with police in Chicago, only to learn that no criminal proceedings could be instituted there against the defendant, in relation to his sexual abuse of the plaintiff, because an applicable statute of limitations had run its course.

[95] During counselling, it was suggested that the plaintiff speak with his family doctor about medication for depression and anxiety, and his wife has pressured the plaintiff over the ensuing years to seek medication for his problems. However, the plaintiff has resisted, as he wants to avoid the use of medication.

Further evidence of long term damage

[96] I was presented with further detailed evidence outlining the various long term difficulties and challenges experienced by the plaintiff, and their suggested connection to the sexual abuse inflicted by the defendant.

[97] In that regard, the plaintiff emphasized and elaborated on various matters, which included the following:

a) He has been plagued by anxiety and an inability to relax dating back to the abuse. This extends to grinding of his teeth during sleep, necessitating use of a “night guard” provided by his dentist.

b) From the time of the abuse, the plaintiff has experienced many other persistent sleep disorders. He consistently has difficulty falling asleep and experiences fearful nightmares, (many of which feature the defendant), almost once each week. These include a recurring vision of having to face the defendant at the funeral of the plaintiff’s mother; a fear reflected in the plaintiff’s waking realization that the scenario is one he may well have to endure in the future.

c) Unlike either of his parents or any of his siblings, the plaintiff struggles with serious depression that includes frequent thoughts of suicide, (which have evolved to the point of planning, and the necessity of self-imposed measures and lifestyle alterations to prevent the plaintiff from acting on suicidal impulses).

d) The plaintiff candidly indicates that he has experienced difficulty having sexual relations with his wife, necessitating his use of stimulant medication from a relatively early age. He says he has done this “for [his] wife’s sake”, as he does not consider himself “a sexual person”.

e) The plaintiff notes that his education and employment history has taken a markedly different trajectory from that of his six siblings. In that regard:

i. Apart from one brother who secured lucrative and secure employment in the unionized automotive industry immediately after high school, (and who therefore required no further education), all of the plaintiff’s siblings pursued post-secondary education and training leading to college and university diplomas, (including masters degrees), and/or other professional qualifications. In stark contrast, the plaintiff has struggled with academics since the time of the abuse, (in the manner outlined above), failed in his college studies, and was able to complete Grade 13 only belatedly and with difficulty. He attributes this comparative difference to the abuse making him more withdrawn, unable to focus and concentrate, unable to enjoy school as much, and prone to thinking he did not deserve success.

ii. All of the plaintiffs’ six siblings also have done very well vocationally, at many professions which inherently speak to their outgoing and social nature. These include the following: a unionized line worker for 35 years; a United Church Minister; a small business owner specializing in interior design; a nursing home director; a real estate agent; and one sibling who has held very prominent positions in the public and private sectors, (e.g., as the vice-president of a number of prominent and nationwide businesses, as the province’s Chief Information Officer, and as the interim CEO of another prominent public organization). The plaintiff, in contrast, has gravitated to solitary employment, has not sought advancement, is prone to “self-sabotage” in terms of employment, and suffers from a pronounced lack of self-confidence and inability to “network”, (despite its vital importance to the profession in which he now finds himself). The plaintiff feels his different vocational reality also stems, in large measure, from the abuse inflicted by the defendant.

iii. The plaintiff obviously cannot say with certainty how is life would have unfolded but for the abuse. However, based on the educational and vocational achievements of his many siblings, he thinks it reasonably certain that he would have finished at least his college program, and enjoyed some degree of greater success at work.

[98] I also received expert opinion evidence from Dr Alan Leschied, a registered psychologist and professor in the Faculty of Education at Western University. His clinical practice has included a focus on the assessment of children and adults who may have suffered childhood sexual abuse or other childhood maltreatment.

[99] In my view, Dr Leschied’s curriculum vitae, and his extensive experience in dealing with those who have suffered from sexual abuse, makes him highly qualified to provide an opinion concerning the psychological harm and effects, if any, that the plaintiff suffers as a result of the sexual abuse he endured at the hands of his uncle.

[100] Dr Leschied carried out a psychological assessment of the plaintiff on March 27, 2012. The stated purpose of the assessment was to assess the plaintiff’s current psychological adjustment and functioning and, while taking into “careful consideration any other possible causes or contributors”, to offer an opinion “as to the likelihood and extent of damages due to physical, sexual and/or emotional child abuse”.

[101] Based on his assessment of the plaintiff, (which included a detailed review of information provided by the plaintiff, which the plaintiff in his evidence confirmed to be accurate), Dr Leschied identified the presence of numerous difficulties and challenges that are very consistent with the experience of sexual abuse victims, and particularly those who were victimized by someone previously known, trusted and respected. Such difficulties and challenges include, for example, the following:

a) loss of optimism;

b) loss of a “sense of self”;

c) significant feelings of lost childhood and adolescence;

d) an inability to develop open and trusting relationships, including meaningful adult relationships;

e) a particular sensitivity regarding matters of sexual identity;

f) depression and anxiety, and social anxiety in particular;

g) a lifelong lowered sense of self-worth and feelings of inadequacy, reinforced by perceptions of underemployment;

h) on-going fear;

i) hyper vigilance for one’s own safety and the safety of others;

j) significant impairment of ability to function in family relationships, including lack of reconciliation and inability to parent children without a preoccupation for their safety;

k) impaired educational and vocational attainment; and

l) on-going suicidal thoughts.

[102] In terms of causation, Dr Leschied offered numerous reasons for his firm belief that these various problems reflect “the substantial material contribution that the victimization by [W.W.] has had on [the plaintiff] in most all spheres of his life”.

[103] First, Dr Leschied points to the developmental period during which the abuse occurred. The plaintiff was 12 at the time, and therefore in a period when “most children are experiencing the major milestones that will translate into subsequent security and stability”. Research confirms that the effects of sexual abuse trauma at this critical developmental period usually manifest themselves in various indicators, all of which can be found in the plaintiff’s presentation.

[104] Second, although sexual abuse of the plaintiff was experienced on only one occasion and may not have been as invasive as other forms of abuse, Dr Leschied emphasized that such considerations usually are offset by the heightened impact of abuse perpetrated by someone in the defendant’s familiar, trusted and respected position. Dr Leschied explained the effect of such abuse in the following way:

While the literature related to the impact of the frequency of the abuse indicates that the extent of abuse survivor symptomology is often related to the length of time, frequency and nature of the victimization, there is also evidence that less frequent abuse can as well have profound effects when the abuser is well known to the victim - as in the case of an uncle. This betrayal of trust of someone who is highly regarded by others within the family, and in the case of [W.W.], the broader community, (the entertainment community for example), holds the potential to compound the effects of even a limited frequency of abuse.

[105] Third, on a related point, Dr Leschied explained how the nature of the relationship between the perpetrator and the victim usually prolongs the impact of such abuse, in a manner consistent with the plaintiff’s history and presentation. In the words of Dr Leschied:

If the perpetrator is known, there will be longer lasting negative outcomes connected to the breach of trust. This breach of trust over the longer term will influence the ability of individuals to develop open and trusting relationships with other adults in their lives such as intimate partners, friends, employers and educators. This impact of a known perpetrator in affecting the longer-term negative outcomes can be independent of the frequency of perpetration. In other words, when a child/adult is violated by a person in a position of trust, the experience of the trust violation is as much a part of the long term negative impact as is the impact of the sexualized violence – the nature and frequency – itself.

[106] Fourth, Dr Leschied says the plaintiff’s adjustment to the abuse he suffered at the hands of the defendant has followed a pattern familiar to many abuse victims, and that the pattern reflected in the plaintiff’s adjustment is “particularly consistent with abuse survivors who were: victimized during their late childhood and early adolescence; victimized by a person in a position of trust; and male survivors who have been victimized by an adult male”.

[107] For his part, the plaintiff says he agrees with Dr Leschied’s assessment and conclusions, which “make sense” to him.

The future

[108] For the reasons outlined by Dr Leschied, the negative impacts of abuse such as that endured by the plaintiff are likely to be long term. However, the plaintiff now is confronting his experience and challenges, (albeit not without difficulty). He hopes in due course to finalize his healing, obtain closure, or at least reduce the impact of the abuse on his life.

[109] To that end, the plaintiff contemplates further appropriate counselling, the estimated cost of which will be approximately $75.00 to $145.00 per hour, (depending on whether the counselling is provided by a social worker or a psychologist). As addressed in more detail below, he seeks funding for this as part of his claim.

ANALYSIS

[110] Rule 19.06 provides that a plaintiff is not entitled to judgment on a motion for judgment merely because the facts alleged in the statement of claim are deemed to be admitted. The facts must still entitle the plaintiff to judgment.

Liability

[111] In this case, there is clear, cogent and credible evidence to support a finding of sexual abuse, assault, battery and negligence by the defendant, as alleged in the plaintiff’s statement of claim.

[112] The misconduct of the defendant was deliberate, despicable and egregious. It also was an extremely serious breach of trust by a close relative who, at the relevant time, stood in the position of a fiduciary with correspondingly elevated duties of care. All of those duties were blatantly disregarded and breached by the defendant, in the pursuit of self-gratification at the expense of a vulnerable adolescent.

[113] In the circumstances, the defendant should be found liable, and made to pay for any proven damages caused by his misconduct.

Causation

[114] The plaintiff is obliged to establish that his damages were caused by the defendant[^1], and in my view the applicable method for resolving that issue is the “but for” test highlighted by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32, [2012] S.C.J. No. 32, at sub-paragraph 46(1):

As a general rule, a plaintiff cannot succeed unless [he or] she shows as a matter of fact that [he or] she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused [his or] her loss. Scientific proof of causation is not required.[^2]

[115] Although the above passage from the Clements case refers to proof of causation in cases of negligence, other authority from the Supreme Court of Canada confirms that the “but for” test applies generally to resolve causation issues in relation to all torts, including sexual abuse. See, for example, the following comments of the Chief Justice, writing for the majority, in Blackwater v. Plint, [2005] 3 S.C.J. No. 59, at paragraph 78:

The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage.

[116] In this case, I am satisfied, on a balance of probabilities, that the plaintiff would not have experienced the various difficulties, issues, challenges and losses identified in his pleadings and the evidence before me, “but for” the misconduct of the defendant.

[117] In that regard, I am influenced not only by the evidence of the plaintiff’s own subjective perceptions, (which is compelling), but also by more objective evidence of the abrupt and dramatic downturn in the plaintiff’s academic performance and social outlook after the abuse took place, and the striking contrast thereafter between the lives of the plaintiff and the plaintiff’s many siblings. The seven children all grew up in the same environment, with the same opportunities, but for some reason the plaintiff alone exhibited stunted academic and vocational achievement after the summer of 1975.

[118] There are obvious dangers inherent in the logical fallacy of “post hoc ergo propter hoc” reasoning.

[119] However, applying a “robust and pragmatic” approach to the circumstances of this case, the subjective evidence of the plaintiff, the objective comparative evidence, and the expert opinion of Dr Leschied on causation, (available and supportive of the plaintiff’s position on causation although no scientific proof of causation is required), all reinforce the common sense conclusion that the plaintiff’s life was diverted onto a more difficult, painful, troubled, less remunerative and less enjoyable path by the sexual abuse perpetrated by the defendant.

[120] Liability and causation having been established, the remaining issues relate to quantification of the plaintiff’s damages, and his entitlement to costs.

General non-pecuniary and aggravated damages

[121] The plaintiff is entitled to “fair and reasonable” compensation for the non-pecuniary damages that he sustained and will continue to suffer as a result of the defendant’s wrongful conduct. These customarily are set out in one figure encompassing all non-pecuniary damages, “including such factors as pain and suffering, loss of amenities and loss of expectation of life”. See Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, at pp. 261-264.

[122] That “one figure” may be augmented in appropriate cases if the circumstances warrant “aggravated damages”; for example, where the defendant’s conduct has been “particularly high-handed or oppressive”, thereby increasing a plaintiff’s “humiliation, anxiety, grief, fear and the like”. Such aggravated damages are compensatory in nature, and “take into account the additional harm caused to the plaintiff’s feelings”. See Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paragraph 188.

[123] However, “aggravated damages” usually are not awarded separately or “in addition to” general damages. Rather, general damages normally are assessed “taking into account any aggravating features of the case and to that extent increasing the amount awarded”. See Norberg v. Wynrib, supra, at paragraph 53, and Doe v. Dell, 2003 CanLII 64220 (ON SC), [2003] O.J. No. 3546 (S.C.J.) at paragraph 279.

[124] Our courts generally have emphasized that the assessment of such non-pecuniary losses is functional; to provide alternative sources of satisfaction and solace, instead of making a futile attempt to put a money value on what has been lost. See Andrews v. Grand & Toy Alberta Ltd., supra, at pp. 261-264, and B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120, [2007] N.S.J. No. 506 (C.A.), at paragraph 120-126.

[125] In the context of claims for sexual assault and abuse, where courts recognize that there are “fundamental, although intangible, interests at stake”, this functional approach “takes account of the capacity of the award to provide solace for the victim, to vindicate the victim’s physical autonomy and dignity and, through an award of aggravated damages, to take account of the humiliating and degrading nature of the defendant’s conduct”. This is in addition to “pain, suffering and the loss of enjoyment of life” flowing from the sexual assault. See B.M.G. v. Nova Scotia (Attorney General), supra, at paragraphs 120, 127 and 135.

[126] Courts in this context bear in mind that “a sexual assault is very different from other assaults”. It is more than a simple act of violence; “it is an assault upon human dignity”. See R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at paragraph 165.

[127] Courts also recognize the inherent difficulty of assessing non-pecuniary damages in cases of sexual abuse. See, for example, the following comments of the British Columbia Court of Appeal, in S.Y. v. F.C.G., 1996 CanLII 6597 (BC CA), [1996] B.C.J. No. 1596 (C.A.), at paragraph 55:

What is fair and reasonable compensation for general damages, including aggravated damages, in [such a] case is not easy to say. This is an evolving area of the law. We are just beginning to understand the horrendous impacts of sexual abuse. To assess damages for psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water. The possible consequences of such abuse presently are not capable of critical measurement.

[128] The assessment of damages inherently is a fact-specific exercise, but a non-exhaustive list of factors which may be considered, in fashioning a non-pecuniary award of damages in cases of sexual assault, includes the following[^3]:

a) The circumstances of the victim at the time of the events, including factors such as age and vulnerability;

b) The circumstances of the assaults, including their number, frequency and how violent, invasive and degrading they were;

c) The circumstances of the defendant, including age and whether he or she was in a position of trust; and

d) The consequences for the victim of the wrongful behavior, including ongoing psychological injuries.

[129] Numerous decisions have emphasized that the last identified factor, (gravity of damage caused to the particular victim), is by far the most important factor that the court must consider. See, for example, C. (J.C.) v. Keats, 1995 CanLII 5681 (SK QB), [1995] 8 W.W.R. 570 (Sask.Q.B.), and M.A. v. Canada, [2001] S.J. No. 686 (Q.B.), affirmed at [2003] S.J. No. 28 (C.A.)

[130] Applying the above considerations to this case, I note in particular the following:

a) The plaintiff was 12 at the time of the incident and, as emphasized by Dr Leschied, at a critical stage of development. This made him extraordinarily vulnerable to negative impacts from a traumatic incident. He also was in a completely foreign environment, (in a hotel room for the first time, and in a foreign country). He was separated from his parents and effectively all other hope of assistance throughout his ordeal.

b) The abuse occurred only on one occasion, (although that was sufficient to produce the devastating impact confirmed by the evidence). No violence or threats of violence were involved. However, the invasive and degrading nature of the misconduct was heightened by the perpetrator and victim being fully naked, and its overnight duration. The plaintiff was obliged to participate actively in certain activities, and also was groped in an extremely personal and direct manner.

c) The defendant was more than two decades older than his victim. Prior to the incident, at least, he also stood in an extremely respected and admired position of trust vis-à-vis the plaintiff and his parents. In the eyes of the plaintiff, the defendant was not just a trusted uncle. Rather, he was viewed as having “celebrity” status.

d) The devastating lifelong consequences of the defendant’s abuse already have been detailed at length, and I will not repeat them again here. Almost four decades after the incident, the plaintiff continues to suffer from the profound psychological impact of the abuse on his personal, family and working life. He has been completely deprived of any sense of normality that he otherwise might have enjoyed.

e) According to the evidence before me, nothing whatsoever in the plaintiff’s life before or since the abuse suggests any other trauma or significant negative event that may have contributed to the constellation of problems he has experienced since the defendant’s egregious misconduct.

f) In my view, this case also clearly involves circumstances where the defendant’s misconduct, and his extraordinary breach of trust in particular, should be regarded as high-handed and oppressive, thereby increasing the plaintiff’s humiliation, anxiety, grief and fear. Aggravated damages are appropriate.

[131] The plaintiff is seeking general and aggravated damages in this case in the range of $75,000 to $95,000. Having regard to the considerations set out above and comparable cases, I think the upper end of that suggested range is appropriate, and therefore award general and aggravated damages in the amount of $95,000.

Economic damages

[132] As outlined above, there is substantial evidence before me suggesting that the plaintiff’s education and vocational life have been stunted, and that he has been diverted into much less satisfying, progressive and remunerative employment than he otherwise may have enjoyed were it not for the abuse suffered at the hands of the defendant.

[133] This is underscored by the expert evidence received from Dr Leschied, whose comments regarding the plaintiff and his vocational challenges included the following:

He has on numerous occasions taken part in professional development and training opportunities through his employer that could potentially translate into professional and career advancement. However, it would appear to be a pattern with [him] that he shies away from distinguishing himself in ways that would bring him any undue attention. This relates to his low self worth, insecurity, feelings of inadequacy, and a lack of confidence resulting in an inability to translate what he knows and what he could achieve. [He] identifies his underemployment as among the greatest casualties resulting from the impact of the abuse.

[134] The authorities confirm that, while past loss normally must be established on a balance of probabilities, the same standard is not applied to proof of hypothetical or future events; for example, as to what sort of education or career a claimant might have enjoyed but for a defendant’s wrongdoing. Such losses may be considered and taken into consideration, when assessing damages, as long as the plaintiff establishes that the suggested losses were “a real and substantial possibility and not mere speculation”. See, for example, Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at paragraph 27.

[135] However, the difficulty of assessing loss of income in cases of sexual abuse based on such considerations, (including a distinction between what must be established in relation to past as opposed to future loss), has been highlighted in a number of decisions. See, for example, the following comments found at paragraph 298 of Brooks v. British Columbia, 2000 BCSC 735, [2000] B.C.J. No. 909 (S.C.), which have been quoted repeatedly by subsequent courts dealing with such challenges:

In childhood sexual abuse cases there is rarely an educational or employment history unaffected by the injury to serve as a baseline measure of natural aptitude or intelligence or of pre-trial income, or as a predictor of future capacity to earn … Thus, when the court gazes into the proverbial crystal ball, the lost or impaired capacity that it discovers there is relevant to the quantification of both past and future loss. Not surprisingly, therefore, the legal principles developed for the assessment of future loss of capacity are sometimes referred to by judges to assist in the assessment of damages for past pecuniary loss as well.

[136] Where evidence of loss of income is not precise, courts therefore turn to that concept of “loss of earning capacity” as a means of assessing the value of the capital asset that has been lost.

[137] In particular, recognizing earning capacity and ability to compete as an asset, the courts have imposed a global assessment of loss where there is a demonstrated impairment of earning ability due to a defendant’s misconduct. See, for example: Evans v. Sproule, 2008 CanLII 58428 (ON SC), [2008] O.J. No. 4518 (S.C.J.), at paragraphs 131-133; K.T. v. Vranich, 2011 ONSC 683, [2011] O.J. No. 361 (S.C.J.), at paragraph 113; and C.M. v. E.B., supra, at paragraph 81.

[138] In assessing whether or not there has been a loss of learning capacity, to justify such an award, considerations often include the following[^4]:

a) Whether the plaintiff has been rendered less capable of overall from earning income from all types of employment;

b) Whether the plaintiff is less marketable or attractive as an employee to potential employers;

c) Whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been wronged; and

d) Whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[139] Based on the evidence before me, I am satisfied, not only in terms of a real and substantial possibility in relation to the future, but also on the balance of probabilities in relation to the past, that all of these things are true of the plaintiff. The plaintiff has a demonstrated loss of earning capacity and competitive advantage, deserving of compensation by way of an award of economic damages.

[140] In my view, the more difficult question is a proper assessment of how that loss should be quantified and reduced to a monetary figure.

[141] In this case, the evidence in that regard was rather minimal, and not very satisfactory. However, I believe this is sufficiently offset by the plaintiff requesting, in relation to all past and future income loss over the course of the plaintiff’s entire working life, economic damages of no more than $50,000 to $100,000; a range that, to me, seems not only reasonable but conservative.

[142] Having regard to all the circumstances, I assess economic damages, for loss of earning capacity and competitive advantage, in the amount of $85,000.

Special damages and future care costs

[143] In terms of special damages and an award of compensation to fund future care, the plaintiff’s claim essentially is limited to the latter.

[144] In particular, the plaintiff claims the cost of unfunded counseling he intends to take in the future, in an effort to address and alleviate the impact of the abuse on his life. Dr Leschied strongly recommends and encourages such counseling, and is willing to help with appropriate arrangements.

[145] In that regard, the plaintiff requests that the court award an additional sum of $11,017, representing the estimated total cost, inclusive of HST, of contemplated counseling beyond that provided by the Employee Assistance Plan offered by the plaintiff’s employer. Specifically, the suggestion is that the plaintiff be granted funding for three years of bi-weekly therapy, (26 sessions per year), at a cost of $125 per session.

[146] I think this is entirely reasonable and appropriate in the circumstances and, (with a modest and approximate reduction to take into account present value considerations), award the plaintiff $10,250.00 for special damages and future care costs.

Punitive damages

[147] The plaintiff also seeks an award of punitive damages.

[148] The limiting and guiding principles governing such awards are encapsulated in the Supreme Court of Canada’s outline, at paragraph 94 of Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, of the fundamental points that should be provided to juries required to deal with such issues:

i. Punitive damages are very much the exception rather than the rule.

ii. They are imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from the ordinary standards of decent behavior.

iii. Where punitive damages are awarded, they should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant.

iv. Regard also must be had to any other fines or penalties suffered by the defendant for the misconduct in question.

v. Punitive damages generally are given only where the misconduct otherwise would be unpunished, or where other penalties are, or are likely to be, inadequate to achieve the objectives of retribution, deterrence and denunciation.

vi. The purpose of punitive damages is not to compensate the plaintiff.

vii. Rather, the purpose of punitive damages is to give a defendant his or her “just desert” (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation of what has happened (denunciation).

viii. Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives.

ix. Punitive damages are given in an amount that is no greater than necessary to rationally accomplish their purpose.

x. While the state normally would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in addition to compensatory damages.

xi. Judges and juries in our system usually have found that moderate awards of punitive damages, (which inevitably carry a stigma in the broader community), generally are sufficient.

[149] If punitive damages are considered appropriate in any particular case, (having regard to the above criteria), the Supreme Court emphasized that they must be quantified in a manner that is rationally proportionate to their recognized underlying justification, (i.e., retribution, denunciation and deterrence).

[150] In particular, at paragraphs 111-127 of Whiten v. Pilot Insurance Co., supra, the Supreme Court said that, to determine the appropriate quantum of any punitive damages award, their proportionality must be looked at in several dimensions, including the following:

i. They must be proportionate to the blameworthiness of the defendant’s conduct, having regard to such factors as:

a) whether the conduct was planned and deliberate;

b) the intent and motive of the defendant;

c) whether the defendant persisted in the outrageous conduct over a lengthy period of time;

d) whether the defendant concealed or attempted to cover up the misconduct;

e) the defendant’s awareness that what he or she was doing was wrong;

f) whether the defendant profited from the misconduct; and

g) whether the interest violated by the misconduct was known to be deeply personal to the plaintiff.

ii. They must be proportionate to the degree of vulnerability of the plaintiff, (keeping in mind that punitive damages are not compensatory, and that emotional distress is relevant in this context only insofar as it helps to assess the oppressive character of the defendant’s conduct);

iii. They must be proportionate to the harm or potential harm directed specifically at the plaintiff.

iv. They must be proportionate to the need for deterrence.

v. They must be proportionate even after taking into account the other penalties, both civil and criminal, which have been or are likely to be inflicted on the defendant for the same misconduct.

vi. They must be proportionate to any advantage wrongfully gained by a defendant from the misconduct.

vii. Formulae or arbitrary rules, such as ratios between compensatory and punitive damages, are not helpful or appropriate in that they inherently and inevitably would do a disservice to the unavoidable complexity of the analysis that must be applied in quantifying any award of punitive damages.

[151] Applying the above considerations to the particular circumstances of this case, I think an award of punitive damages is appropriate and necessary. In that regard, my considerations include the following:

a) Sexual abuse, and sexual abuse of a child in particular, unquestionably is misconduct that must be regarded as “highly reprehensible”, which “departs to a marked degree from the ordinary standards of decent behavior”. As noted by the Supreme Court of Canada in Norberg v. Wynrib, supra, at paragraph 109, “punitive damages have been awarded in several sexual assault cases”. Numerous factors identified by the Supreme Court in that case as justifying an award of punitive damages, including “blameworthy conduct, prevalence of conduct necessitating deterrence, lack of empathy for the victim and lack of concern for the consequences to the victim”, are present in this case as well.[^5]

b) In my view, obliging the plaintiff to engage in prolonged and costly litigation, thereby delaying his recovery for many years, only to then abandon presentation of any defence whatsoever when trial was imminent, (with the defendant thereby “running away” from finally having to face his victim and the consequences of his misconduct in open court), was further callous and cowardly conduct on the part of the defendant, deserving of condemnation.

c) For reasons outlined above, there have been and apparently will be no criminal consequences whatsoever for the defendant’s sexual misconduct. Whether or not the view is well-founded as a matter of law[^6], the police here apparently have determined that they lack criminal jurisdiction to prosecute the defendant for sexual abuse that took place outside Canada, and it seems that no criminal proceedings can or will be taken in Illinois because of that jurisdiction’s criminal statute of limitations. The defendant’s abuse of the plaintiff, (which was not disclosed to anyone for almost 10 years, and which was not brought to the attention of the police for over 28 years), therefore has gone unpunished to date, and apparently will remain unpunished except to the extent that damages are awarded in this action. Limiting damages to those compensatory in nature would, in this case, be tantamount to the granting of a monetary licence to inflict such egregious harm, provided the plaintiff receives an adequate payment for his provable loss.

d) While compensatory damages are to some extent punitive, standing alone they are insufficient in this case, in my opinion, to accomplish the objectives of retribution, deterrence and denunciation. There would be little done to punish this defendant, deter similar defendants, or express the community’s condemnation of this defendant’s conduct, by limiting the defendant’s obligation to the provable compensatory damages he would have been obliged to pay in any event. Something further is required.

[152] As for the appropriate quantification of a punitive damages award in this case, I am mindful of the need for proportionality emphasized by the Supreme Court of Canada, and have regard to factors in this case which include the following:

a) The sexual abuse perpetrated by the defendant may not have been planned far in advance, (in that the defendant may not have known that the plaintiff would be brought to the defendant’s hotel room on the night in question, express an interest in the room or its beds, or be given permission by his parents to spend the night). However, once the opportunity presented itself, the defendant seized on it and clearly manipulated the plaintiff’s parents and the plaintiff by deliberate lies as to what the sleeping arrangements would be, and the abuse itself was clearly deliberate.

b) As noted above, the defendant’s intent and motive obviously was self-gratification, regardless of the consequences to the plaintiff.

c) There may only have been one incident, but the defendant’s outrageous conduct was prolonged and sustained. The inappropriate physical contact described by the plaintiff went on not just for the initial 30 minutes or so of “massage” described by the plaintiff, but continued with further abusive contact that went on for at least another 30 minutes. Indeed, it continued until the plaintiff fell asleep from exhaustion and perhaps thereafter. Moreover, on any view, the 12-year-old plaintiff effectively was obliged to spend the entire night, isolated and nude, in the same bed as his nude adult assailant. The incident obviously was far from being a momentary lapse in judgment or decency, or an isolated inappropriate touch.

d) To date, the defendant has expressed no acknowledgment or remorse whatsoever in relation to his misconduct, or the harm it has caused. To the contrary, his response has been an ongoing attempt to conceal or cover up the misconduct by resorting to formal denials and accusations that the plaintiff has been the one guilty of misconduct, (by lying and defaming the defendant). This underscores the need for deterrence and condemnation.

e) There can be little doubt that the defendant was aware that what he was doing was wrong. “Ordinary standards of decent behavior” obviously condemn sexual abuse of a child. Moreover, the defendant’s knowledge of his impropriety is demonstrated by his manipulative lies at the time, and by his subsequent refusals to acknowledge his misconduct.

f) The defendant knew, or certainly ought to have known, that the “interest violated by the misconduct” was “deeply personal” to the adolescent plaintiff. Indeed, it is difficult to imagine many interests more personal than freedom from sexual abuse.

g) At the time, the plaintiff was 12 and, as emphasized by Dr Leschied, at an extremely critical stage of his personal development. Moreover, Dr Leschied explains why that inherent vulnerability was heightened by the trust and respect previously extended by the plaintiff to the defendant.

h) For the reasons outlined above, and as also emphasized by Dr Leschied, the harm inflicted by the defendant has permeated “most all spheres of [the plaintiff’s] life”.

[153] I have considered the numerous other cases proffered by plaintiff counsel, in which punitive damages were awarded for sexual abuse and sexual assault, as well as other commercial matters where the conduct said to warrant more substantial awards of punitive damages, (e.g., for breaching a contract of sale for a luxury car), frankly seems far less egregious.

[154] While such other authorities offer some degree of guidance, the detailed principled analysis mandated by the Supreme Court inherently demonstrates why each case must be approached on the basis of its own unique facts and circumstances.

[155] Having regard to all the circumstances of this case, and the particular considerations highlighted above, I think an appropriate award of punitive damages in this matter would be $30,000.

Costs

[156] The plaintiff seeks costs and asks that they be awarded at an elevated scale; i.e., on a substantial indemnity basis.

[157] In that regard, reliance was placed on the provisions of Ontario’s Victims’ Bill of Rights, 1995, S.O. 1995, the preamble to which reads as follows:

The people of Ontario believe that victims of crime, who have suffered harm and whose rights and security have been violated by crime, should be treated with compassion and fairness. The people of Ontario further believe that the justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.

[158] The same legislation recognizes that legal fees certainly can operate to discourage such victims from resorting to the courts, and seeks to address this in s.4(6) with the following judicial direction:

4. (6) A judge who makes an order for costs in favour of a victim shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice.

[159] Plaintiff counsel also provided examples of Ontario courts citing this legislation in awarding enhanced costs to the victims of sexual assault. See, for example, Evans v. Sproule, supra, at paragraphs 138-141, and C.M. v. E.B., supra, at paragraph 112.

[160] However, reliance on the legislation in this particular case is problematic.

[161] This is not because there has been no related criminal conviction, (as other provisions of the legislation suggest this is unnecessary for the Act’s application)[^7], but because the legislation specifically defines the “crime” to which it applies as meaning “an offence under the Criminal Code (Canada)”.

[162] As noted above, there appears to be some doubt about that in this particular case, stemming from the fact that the underlying misconduct occurred outside of Canada, (although, as also noted above, there are various provisions of our Criminal Code that may or may not permit the exercise of criminal jurisdiction here, depending on the circumstances).

[163] For present purposes, I think it unnecessary and inadvisable to embark on a determination of that important but collateral issue in this particular case, as an enhanced cost award is justified by other considerations.

[164] The court has a broad discretion in relation to costs, confirmed by s.131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as expanded by Rule 57.01 of the Rules of Civil Procedure.

[165] While our appellate courts repeatedly have emphasized that awards of costs on a partial indemnity basis generally strike the proper balance as to the burden of costs that should be borne by the “winner”, they also have confirmed that elevated cost awards may be awarded in cases where a party’s conduct warrants such a disposition. See, for example, Foulis v. Robinson (1987), 21 O.R. (2d) 179 (C.A.), and Isaacs v. MHG International Ltd., (1984), 1984 CanLII 1862 (ON CA), 45 O.R. (2d) 693 (C.A.)

[166] The sort of conduct meriting elevated cost awards has been described in various ways.

[167] In Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p.134, McLachlin J., (as she then was), indicated that elevated cost awards are warranted “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”.

[168] In Mortimer v. Cameron (1994), 1994 CanLII 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), and McBride Metal Fabricating Corp. v. H&W Sales Co. (2002), 2002 CanLII 41899 (ON CA), 59 O.R. (3d) 97, whose principles were echoed and emphasized again by the Court of Appeal in Davies v. Clarington, 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.), conduct warranting elevated cost awards was described as “reprehensible”, “egregious”, or “acts that clearly indicated an abuse of process”, justifying enhanced costs as a form of chastisement.

[169] On any view, I think, the underlying misconduct of the defendant in this case, and the manner in which the defendant has approached this litigation, warrant such pejorative descriptions and the awarding of costs on an elevated scale.

[170] Victims of sexual abuse, such as the plaintiff, should not have to pay legal costs in order to have their wrongs addressed. See N.C. v. Blank, [1998] O.J. No. 2544 (Gen.Div.), at paragraph 184.

[171] Nor should they have to pay for the abusive manner in which a perpetrator uses our court process not to present a defence on the merits, but simply to delay a victim’s recovery for many years. The particular circumstances of this case, (with the defendant entering a formal defence, but then repeatedly refusing to attend for discovery examination, failing to pay costs ordered by the court, and then abandoning his defence completely only when it became clear that trial was imminent, and the plaintiff was intent on seeing the matter through by confronting the perpetrator of his abuse in open court), satisfy me that such an abuse of process happened here.

[172] The plaintiff seeks substantial indemnity costs of $36,092.20 in fees, plus HST of $4,152.20, together with disbursements in the amount of $3,847.43, (inclusive of HST). I think this appropriate, and award costs of the action on that basis.

[173] Although the plaintiff also sought a further award of $2,750.00 in costs, representing the amount of costs still owed in relation to the order made by Justice Hockin on November 29, 2011, I think this would be unnecessary and duplicative. Justice Hockin’s order remains in place, and can be enforced in the usual manner to the extent it remains unpaid.

Conclusion

[174] For the above reasons, judgment shall issue in favour of the plaintiff in accordance with the damage and cost determinations set forth above.

“Original signed by Mr. Justice I.F. Leach”

Justice I. F. Leach

Released: June 19, 2013

[^1]: Although plaintiff counsel also relied on s.3(2) of the Victims’ Bill of Rights, 1995, S.O. 1995, c.6, and its presumption that victims of sexual assault have suffered emotional distress, in my view application of that legislation in the circumstances of this particular case is problematic. Primarily, this is because there appears to be some doubt, (mentioned above), as to whether, in these particular circumstances, the defendant’s conduct might formally constitute a “crime” as defined by the provisions of the Criminal Code of Canada, which in turn is a fundamental underlying prerequisite for application of the Victims’ Bill of Rights, 1995, supra. This is addressed again in greater detail below, during my discussion of whether the provisions of that Act dealing with costs have application in the circumstances. As I think that the plaintiff is able to establish causation in any event by application of the more general test established by the Supreme Court of Canada, (for the reasons that follow), I refrain from any further discussion of the Victims’ Bill of Rights, 1995, supra, insofar as causation is concerned.

[^2]: Plaintiff counsel cited earlier authorities which have struggled with possible application of the “material contribution” test to cases involving sexual abuse. See, for example, Greenall v. McDougall, [2007] B.C.J. No. 486 (B.C.S.C.), and B.P.B. v. M.M.B., 2009 BCCA 365, [2009] B.C.J. No. 1650 (C.A.), leave to appeal to the Supreme Court of Canada dismissed without reasons. In my view, however, the Supreme Court of Canada now has made it clear that the “material contribution” test applies to resolve causation issues, on an exceptional basis, only in very limited and specific circumstances; i.e., where a plaintiff has established that his or her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss, and where the plaintiff, through no fault of his or her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each tortfeasor can point to one another as the possible “but for” cause of the injury, thereby defeating a finding of causation on a balance of probabilities against anyone. See Clements v. Clements, supra, at sub-paragraph 46(2). The case before me is not one involving the sort of limited and specific circumstances where the “material contribution” test requires application on an exceptional basis. Only one tortfeasor has been suggested or identified as having caused the plaintiff’s damages.

[^3]: See Blackwater v. Plint, supra, at paragraph 89, approving the factors considered by the trial judge in that case, as reported in W.R.B. v. Plint, 2001 BCSC 997, [2001] B.C.J. No. 1446 (B.C.S.C.), starting at paragraph 398. See also B.M.G. v. Nova Scotia (Attorney General), supra, at paragraphs 133-134, and C.M. v. E.B., [2012] O.J. No. 4828 (S.C.J.), at paragraph 91.

[^4]: See Kwei v. Boisclair, 1991 CanLII 645 (BC CA), [1991] B.C.J. No. 3344 (C.A.), at p.5.

[^5]: See Norberg v. Wynrib, supra, at paragraphs 113-114.

[^6]: In that regard, see my earlier comments about this, made while reviewing the evidence and facts, and my later comments about this, made while addressing the matter of costs.

[^7]: For example, s.2(2)2 of the legislation requires the provision of various types of information to a “victim” of crime, (such as information about the progress of investigations and the victim’s role in prosecution), that inherently relate to matters prior to any conviction, and s.2(1)2.(v) in particular makes reference to circumstances where the “victim” of a crime must be provided with certain information in circumstances where “no charges are laid”, (which self-evidently will result in absence of a formal conviction). Similarly, s.2(1)4 makes it clear that the Act’s application extends to circumstances where there will be no formal conviction owing to an accused being found unfit to stand trial or not criminally responsible on account of mental disorder. I also note that, while there was a guilty plea and resulting formal conviction in Evans v. Sproule, supra, the court expressly found that absence of a criminal trial or conviction was no impediment to application of the Victims’ Bill of Rights, 1995, in C.M. v. E.G., supra.