COURT FILE NO.: CV-11-434627

DATE: 20140115

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Susan Rosenthal

J. W. Irving, for the Plaintiff

Plaintiff

• and -

Joe Rosenthal

No one appearing, for the Defendant

E. Grace and A. Matas, amici curiae

Defendant

HEARD: November 4, 5 & 6, 2013

FRANK J.

REASONS FOR JUDGMENT

[1] Susan Rosenthal has had a productive and fulfilling life. This is in spite of the significant physical and emotional challenges she has faced. She claims that these challenges result from the sexual assaults, sexual battery and breach of fiduciary duty committed against her by her father when she was young.[^1]

PROCEDURAL CIRCUMSTANCES

[2] The evidence at trial, as a result of an earlier order of this court, consisted of the oral testimony of Dr. Rosenthal as well as her affidavit dated January 24, 2012 detailing her evidence and, the oral testimony of the experts relied on by Dr. Rosenthal, along with the reports produced by those experts. Dr. Rosenthal prepared what she refers to as a narrative summary for Dr. Kirsh, a psychiatrist retained to provide an expert opinion. Dr. Kirsh relied on that narrative summary in arriving at her opinion. That summary, though before the court, is not in evidence for the truth of its contents.

[3] The trial of this action proceeded without the involvement of the remaining defendant, Dr. Rosenthal’s father, Joe Rosenthal. As will be seen from the reasons that follow, the fact that no defence evidence was called at trial played a critical role in the analysis and resulting outcome.

[4] Mr. Rosenthal had defended the action through examinations for discovery in January 2012. However, some time after those examinations, his counsel obtained an order removing himself as solicitor of record and Mr. Rosenthal ceased participating in the proceedings. Neither party complied with undertakings given on their examinations for discovery.

[5] Mr. Rosenthal was aware of the trial date when the action was first called to trial. As a result of my concerns regarding his appreciation of the nature of the proceedings and the potential consequences of his failure to participate, I obtained the assistance of the Public Guardian and Trustee. Mr. Rosenthal’s confirmation to the PGT that he did not intend to participate in the trial and his refusal to engage in any further discussion with the PGT precluded any further involvement by the PGT.

[6] The circumstances compelled me to seek the assistance of amicus. On consent of Dr. Rosenthal, Elizabeth Grace and Anna Matas of Lerners LLP were appointed amici curiae to the court. I was greatly assisted by their participation in the trial and wish to thank them for their exceptional effort. They demonstrated the highest level of professionalism in giving of their time and expertise. I wish to thank, as well, Errol Soriano, of Campbell Valuation Partners who provided assistance to amici with respect to the expert loss of income opinion relied on by Dr. Rosenthal. His willingness to do so is greatly appreciated.

BACKGROUND

[7] Dr. Rosenthal was born on March 21, 1949. She is an articulate, intelligent and thoughtful woman. She began practicing as a generalist physician or family doctor, as it is now referred to, in 1976. In 1985, she changed her practice to psychotherapy, specializing in trauma psychotherapy. She retired from clinical practice in February of this year. She is a prolific writer, a researcher in the field of the relationship between trauma and illness, and is a teacher. She is rightly proud of what she has accomplished, particularly as it was done in spite of her having struggled throughout her life with persistent ill health and its consequences.

[8] She is married and shares her spouse’s children and grandchildren.

[9] She is the eldest of two children of Joyce and Joe Rosenthal. Setting her childhood apart were her brother’s illness and her father’s career as an artist.

[10] Dr. Rosenthal’s mother is now in her 90’s. She has for some years suffered from advanced Alzheimer’s disease, the symptoms of which became apparent beginning in 1997. In response to Dr. Rosenthal’s brother’s diagnosis as a newborn with hemophilia, Mrs. Rosenthal devoted much of her energy and time to responding to her son’s needs and to the broader issues surrounding hemophilia. This led to her helping found the Canadian Hemophilia Society to press for research into the disease and to her being awarded the Order of Canada in 1967.

[11] Dr. Rosenthal’s father is 93 years old and lives with Mrs. Rosenthal and her caregivers. He is an artist with an international reputation and his works, both paintings and sculptures, are in collections throughout the world. Dr. Rosenthal describes Mr. Rosenthal’s art as being the family business, with every member of the family contributing to it. Mr. Rosenthal has retained a large number of his works.

REVIEW OF EVIDENCE

(a) Dr. Rosenthal’s childhood

[12] Dr. Rosenthal eloquently described the emotional trauma of her early childhood. Her brother, Ron, was born when she was fifteen months old. She describes her family’s plunge into crisis as a result. Her earliest memories are of Ron’s continual, repeated hospitalizations with the associated uncertainty as to whether he would live or die. Her primary caregiver was her grandmother. But, she died approximately a year after Ron was born, adding to Dr. Rosenthal’s sense of loss.

[13] After her grandmother’s death, Dr. Rosenthal was placed in a day nursery where she remained for two years. She recalls feeing happy at the nursery and believes that it provided her with a safe haven and an opportunity for social interaction and development. Her introduction to the public school system was not as auspicious. She describes having her desire to socialize being met with her mouth being taped and her being forced to remain in her chair.

[14] At home, when Ron was not hospitalized, to use Dr. Rosenthal’s words, “his needs took priority, and it seemed as if I did not exist.” But, when Ron was in the hospital things were bad in a different way as, according to Dr. Rosenthal, her parents were distracted and irritable.

[15] Dr. Rosenthal sees herself as having been desperate as a child to please her caregivers – parents and teachers - and in response, was obedient and hardworking and learned to anticipate and respond to their wishes and expectations. This resulted in her doing well at school; but it did not have the same success at home. She describes her father as being a very strict disciplinarian demanding unquestioning submission to his authority and belonging to the ‘children should be seen and not heard’ school of parenting.

[16] Dr. Rosenthal described in detail the multitude of rules with which her father demanded that she and Ron comply, and the punishment he meted out for any breach of those rules. This included being made to write essays on why they were bad and why they should do as they were told. Dr. Rosenthal sees this as exercises in “groveling and self-shaming”. She described how she would try to hide injuries or problems such as cavities, being more concerned with being punished for them by Mr. Rosenthal than with the injury or pain itself. She described feeling terrorized by Mr. Rosenthal, living with being blamed for things over which she had no control, and living with the anxiety of constantly anticipating some “storm”.

[17] Dr. Rosenthal describes feeling the weight of her parents’ expectations of her as the healthier child, both in terms of her taking responsibility for her brother’s welfare and having to succeed at all that she did. She describes being put in the situation of having to parent Ron when that was not something that she could be expected to do. She would be blamed for failing to protect Ron whenever he hurt himself. She claims that because he could not strike Ron, Mr. Rosenthal spanked her in his place. Because she could not protect her brother from either injury or her father’s rage, she felt helpless. She describes being made to feel sick to her stomach by how Mr. Rosenthal treated Ron.

[18] At the same time, Dr. Rosenthal felt she was denied the right to express her own pain as a child, her parents dismissing her pain by contrasting it to Ron’s suffering. She felt that she had to meet her parents’ needs and that she could have none of her own.

[19] The picture of her childhood painted by Dr. Rosenthal includes feeling isolated from her peers at school. She attributes this to being indoctrinated with her parents’ political views and believing, as they claimed, that their family had different values from others. Dr. Rosenthal would act on these beliefs by, for example, refusing to stand for the Lord’s Prayer, causing what she describes as a scandal.

[20] Although Dr. Rosenthal excelled both academically and athletically, this did not give her solace. She believes that her achievements, while on the one hand demanded by Mr. Rosenthal, were on the other hand, a threat to him as he needed to be supreme in all things. According to Dr. Rosenthal, her father’s contradictory conduct towards her resulted in her “not knowing which way was up”, feeling like a complete failure, and having no confidence in her ability to function in the world.

[21] I accept Dr. Rosenthal’s testimony regarding the circumstances of her childhood. There can be no doubt on the evidence before me that Mr. Rosenthal’s conduct towards his children profoundly affected both of them. Dr. Rosenthal recounts Ron’s greatest pain in his life – greater than all of the physical pain he endured form his disease – was being rejected by Mr. Rosenthal. The symptoms from which Dr. Rosenthal suffered as a child[^2] before the acts that are the basis of this claim are alleged to have been committed, confirm the impact on Dr. Rosenthal of the conditions of her childhood.

(b) modeling in the nude

[22] Dr. Rosenthal claims that she was made to model in the nude for her father and that this constituted sexual assault, or alternatively a breach of his fiduciary duty.

[23] From as far back as she can remember, Dr. Rosenthal was expected to model for her father on the weekends. Mr. Rosenthal admitted in his statement of defence that Dr. Rosenthal posed for sketches, both clothed and nude. According to Dr. Rosenthal, by the time she was seven, she was posing for her father regularly. This took place at their home, in Mr. Rosenthal’s studio. Initially, she did this for half an hour, but as she got older it would be for an hour or more. She testified that this continued through to when she was 16 years old.

[24] Dr. Rosenthal describes her father’s demeanour during these modeling sessions as detached. He was very objective in telling her how to stand and in moving her arms or legs to where he wanted them to be. She complains that this left her feeling like an object, not like a daughter. She also testified that when her father sketched her, he was very detached and totally focused on his work. She has come to conclude that she did not exist for her father other than as an object that he could use to create art.

[25] Although Dr. Rosenthal did not want to do the nude modeling, she felt it was something she had to do for the family and therefore did not question it. She maintains that she was told by both parents that Mr. Rosenthal needed a model to help him develop his ability to draw figures and that the family could not afford to hire a model. The fact that she did not like it did not matter.

[26] To recognize her contribution, Dr. Rosenthal was given an allowance for her modeling. She testified that the modeling was the only way that she could earn money and be allowed to keep it.

[27] Dr. Rosenthal testified that she became uncomfortable posing nude for her father as she matured physically. When she expressed her discomfort to her father, he dismissed it as prudery and told her to be proud of her body. She pushed that feeling of discomfort away.

[28] There was another aspect to her discomfort as she reached puberty. Dr. Rosenthal testified that her father would tell prospective purchasers of his works, in her presence, that she was the model for the sometimes nude figurative drawings. Also, he would hang nude drawings and paintings of her around the house, one in the living room that would have been visible from the street and one in the dining room. She worried that a passing classmate might see the picture in the living room and connect it with her. She did not want her classmates to know that she was modeling for her father. He placed a reclining, life-size nude sculpture of her in the living room. She voiced objection to this to her parents when she was in her teens, but it was dismissed on the basis of the work being art to be admired. She believed that her concerns were of no account to Mr. Rosenthal.

[29] Dr. Rosenthal’s cousin on her mother’s side, Eleanor Dowson, visited the Rosenthal’s annually for Christmas dinner until she was thirteen or fourteen. She is now fifty-one. She confirmed Dr. Rosenthal’s testimony that the walls of the Rosenthal house were covered in paintings. She understood that the paintings were of Dr. Rosenthal, her mother, brother and aunt. She testified that it was understood that the nude paintings were of Dr. Rosenthal and thought there may have been nude paintings in the dining room.

[30] On the one hand, Dr. Rosenthal felt proud when her father introduced her to prospective purchasers of his works as his model and was flattered by their favourable attention. But, in spite of being told that she should not, she felt exposed and embarrassed by having people, including some quite famous people who purchased her father’s works, look at nude representations of her in her presence.

[31] Dr. Rosenthal maintains that having no control over where these paintings representing her nude body are now to be found is another source of distress for her. She described being told by a relative that she saw a nude painting of Dr. Rosenthal in the dining room of a friend’s home. Dr. Rosenthal found this deeply disturbing.

[32] The director of the Ingram Gallery, Tarah Aylward, testified that she understood Dr. Rosenthal to have been the model for many of Mr. Rosenthal’s works. The gallery represented Mr. Rosenthal between 2002 and 2005 and since then has continued to sell his work on the secondary market. Ms. Aylward testified that she recalls being told by Mr. Rosenthal that Dr. Rosenthal was his model and inspiration.

(c) the making of a plaster cast

[33] In addition to having her pose for him, Mr. Rosenthal made plaster casts of parts of Dr. Rosenthal’s body to use as anatomical references for his sculptures. She alleges that his making a plaster cast of her torso was an act of sexual assault or, alternatively, sexual battery.

[34] This claim is based on one occasion on which Mr. Rosenthal made a plaster cast of her torso. To prevent her pubic hair from getting caught in the plaster, he shaved it.

(d) Mr. Rosenthal’s response to Dr. Rosenthal’s physical maturing

[35] When she was around fourteen, according to Dr. Rosenthal, her father began making comments about her appearance and gestures that were inappropriate for a father to make in relation to a daughter. She testified that Mr. Rosenthal thought he was being flattering, but it made her very uncomfortable. He became possessive and did not want her to date or go to parties and appeared to her to respond with jealousy when she told him that she liked a classmate. As soon as any boy showed interest in her, her father would not allow her to see him. She was not allowed to date until she was sixteen.

[36] She perceived him to be showing her more affection than to her mother and to seem to prefer her to her mother, and believes this to have caused a rift between her and her mother. In her mind was the question of where all of this was going. She felt that if it had been anyone other than her father acting as he did, she would have believed that the person wanted a sexual relationship with her.

[37] For reasons set out below under the heading “Liability - nude modeling,” I am not convinced that Dr. Rosenthal’s perceptions of Mr. Rosenthal’s response to her are reliable and therefore do not accept them as evidence of the sexual nature of either the shaving incident or nude modeling.

(e) the Algonquin Park event and remaining high school years

[38] Dr. Rosenthal claims that her father sexually assaulted her at the family cottage in Algonquin Park in the summer of 1965, when she was sixteen.

[39] Dr. Rosenthal had gone with her father to the cottage in Algonquin Park where her mother and brother were to join them the next day. Their time alone together went by without anything unusual occurring until the second day when Mr. Rosenthal asked Dr. Rosenthal to join him on the bed for his customary afternoon nap. As she lay there, he unbuckled her belt and began to unzip her pants. When she asked what he was doing, he said he just wanted to give her pleasure. She believed he wanted to have sex with her. She said no and quickly got up and went to another room.

[40] In her affidavit, Dr. Rosenthal describes herself as being in shock, scared and feeling as though her world had crashed when she ran from her father. Her mother and brother arrived later that afternoon. She told no one. She maintains that she does not remember the period of time from then to when she arrived the next morning at the leadership training camp she had been selected to attend. She is consistent in maintaining that while at camp – 10 days or 14 days - she did not eat at all and lost ten pounds. She maintains that she continued to lose weight to the point that her body returned to a pre-pubescent state.

[41] Dr. Rosenthal testified that she was not required to do any nude modeling for her father after she returned from camp and that the sexually overt comments stopped, though her father continued to be interested in how she looked. Although she testified that her father did not touch her again in any sexual way, she also testified to the contrary in relating an incident that occurred at her home in the summer between high school and university, when she revealed to her parents that she had been prostituting herself that summer. In response to this disclosure, her father grabbing her, wrestled her to the ground and laid on top of her in a way that to her felt sexual.

[42] At some point after the summer of 1965, Dr. Rosenthal’s parents insisted that she see a psychiatrist, Dr. Kelly. She did not tell him about the Algonquin Park event, claiming she “locked that memory in a dark corner of [her] mind, disconnected from the rest of [her] life.” Dr. Rosenthal became increasingly anxious and depressed and by the spring of 1967, she stopped attending school. Dr. Kelly convinced her to enter the psychiatric ward of the Queensway General Hospital where she remained for two months. She was subjected to a series of seriously unpleasant treatments with no improvement in her symptoms. She was discharged to the Clarke Institute with a diagnosis of anxiety neurosis.

[43] While at the Clarke, Dr. Rosenthal obtained her brother’s barbiturates and swallowed them, losing consciousness as a result. She continued to lose weight until she was told that she could leave the hospital if she reached a weight of 105 pounds. She was five feet two inches tall at the time. She decided that she was not likely to have her problems solved by staying at the Clarke, so she gained the weight and two months after she arrived, was discharged into the care of a psychiatrist. She returned to school and graduated without any delay and with honours.

[44] Dr. Rosenthal complained of being subjected to the opprobrium of her extended family over her behaviour. Their concern was the distress it was causing her mother. She does not indicate of what the behaviour consisted, saying only that the behaviour was an effort to convey her despair and free herself from her father’s control and was perceived as vindictiveness towards her mother.

[45] When she was discharged from the Clarke, Dr. Rosenthal found living at home to be intolerable. In January 1968, while she was in grade 13, her father rented a room in a nearby house for her. Some time after moving in, motivated by what she describes as feelings of self-loathing and despair at no one understanding her pain or wanting to be around her, she cut her wrists with a razor blade and took an overdose of the landlady’s tranquilizers. She was taken to hospital and then returned to the care of her psychiatrist. After graduating, over the summer before beginning university, she worked as a waitress, began to drink heavily and, as she put it, fell into prostitution. In her affidavit evidence she states that the prostitution did not seem much different to her from being paid to disrobe for her father.

[46] At some point after her discharge from the Clarke, according to Dr. Rosenthal, her hunger became unbearable and she then began a cycle of what she describes as binge eating and self-induced vomiting that persisted into her university years. This added to her depression and feelings of isolation. The disorder lasted until she was twenty-two, a total of six years. She claims to have vomited as many as six to eight times a day to purge herself of the large quantities of food she was consuming and has calculated that she vomited a total of approximately 15,000 times.

(f) university and medical school

[47] Dr. Rosenthal describes herself as intensely lonely while at McMaster University, starved for affection but being ashamed to let anyone close to her and therefore being unable to maintain relationships. Through this period she cut her wrists regularly. On one occasion, this lead to her hospitalization. She had been referred to a campus counselor as a result of her screaming in the night because of terrifying nightmares. The counselor saw the cuts and had her admitted to the psychiatric ward of the Hamilton General Hospital, where she remained for two weeks.

[48] In 1970, Dr. Rosenthal moved in with a fellow student whom she describes as loving, loyal and supportive, and continued to live with him for seven years. She stopped binge eating and vomiting, stopped cutting herself, stopped prostituting herself, and stopped drinking to excess. In 1971, she was accepted into medical school, which was the fulfillment of her lifelong dream.

[49] In spite of what she described as recurring problems with male authorities who demanded unquestioning obedience from her, she graduated and moved to Montreal to intern. At this time, she had a tubal ligation, having decided that she did not want to have children as she felt incapable of being a parent. She describes herself as exhausted and continually ill during her internship and making it through by putting others’ needs ahead of her own.

[50] Dr. Rosenthal began practicing as a generalist practitioner in 1976. She alleges that but for the consequences of her father’s abuse, she would have become a surgeon, as she was encouraged to do by an attending physician while she was in her surgical rotation during her internship.

[51] She claims that from the outset, illness prevented her from her from practicing more than three days a week; but, eventually even that was unsustainable.

[52] In 1982, when she was thirty-two years old, her brother died unexpectedly. Dr. Rosenthal was the one who found him. She describes herself as going into shock. She blamed herself for his death. She was very distressed and shaken by it. Dr. Rosenthal’s brother’s death had the further negative consequence of tearing her and her parents apart, instead of bringing them closer as she had hoped. She describes her parents as turning against her. Dr. Rosenthal was traumatized and grief stricken, and her health deteriorated. She ended all communications with her parents. It was not until 1987 that she began to repair her relationship with her mother and, later, her father.

[53] In 1985, Dr. Rosenthal stopped practicing as a general practitioner and became a psychotherapist, with expertise in the field of traumatology. She worked primarily with young women. While she found this rewarding, it was difficult as it triggered her own memories of trauma, causing her to lose energy and making it harder for her to control her own trauma symptoms.

[54] By September 1991, Dr. Rosenthal felt too sick to work. She describes herself as being severely depressed and completely exhausted. She applied for and was approved for disability insurance payments, with a diagnosis of Post-traumatic Stress Disorder and Chronic Fatigue.

[55] Dr. Rosenthal remained on disability until 1997. She testified that while on disability she made herself an expert on the medical impact of childhood trauma and worked to heal her intestinal tract. During that time, or at least some portion of it, she lived in Chicago. When she returned to practice she began by seeing patients once a week. It was nine years before she was back to seeing patients three days a week.

[56] She maintains that her health remained compromised after she returned to work with resulting hospitalizations. She was admitted to hospital in August 2008 with severe chest pain that remained undiagnosed. In 2009 and 2011 she was hospitalized for pneumonia, each time requiring six months to recover.

[57] According to Dr. Rosenthal, it was not until 2010, when she was 61, that her income began to approach that of the average Ontario generalist practitioner. She maintains that after this, her health began to decline and, as a result she retired in February 2013. However, her earnings in 2011 and 2012, though lower than in 2010, continued to be higher than ever before.

[58] Dr. Rosenthal describes herself currently as being easily stressed and irritated and sensitive to noise and crowds, as struggling with anxiety and low-level depression, and as experiencing traumatizing flashbacks and occasional nightmares. This is in spite of the care she takes with her health and the restrictions she places on her life.

LIABILITY

(a) the plaster cast event

[59] The first mention of this incident is found in Dr. Rosenthal’s trial affidavit. She did not refer to it in her statement of claim in spite of all of the other allegations on which she relies being fully detailed in that pleading, did not mention it on her examination for discovery and did not refer to it in the twenty page, single spaced document entitled “My Story – Susan Rosenthal” dated October 2012, provided to Dr. Kirsh as the evidentiary basis to be used in arriving at her diagnosis and prognosis.

[60] This failure to mention this incident prior to trial raises a question as to the credibility of the allegation. However, there is no contrary evidence. I find that the incident did occur. The question as to why it was not referred to or relied on by Dr. Rosenthal prior to trial is properly addressed in the context of the assessment of damages.

[61] I do not accept that this incident was either a sexual assault or a sexual battery.

[62] Sexual assault is intentional conduct giving rise to an apprehension of imminent physical contact of a sexual nature: M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, at 1725-26; Elizabeth K.P. Grace and Susan Vella, Civil Liability for Sexual Abuse and Violence in Canada, (Markham: Butterworths, 2000), at p. 8.

[63] Dr. Rosenthal’s evidence with respect to this incident is found at paragraph 63 of her affidavit. I quote it in full:

My father also made plaster casts of my torso, my arm and hand, my foot and my face to use as anatomical references for his sculptures. For the torso cast, he had to shave off my pubic hair so it would not get caught in the plaster. As I was standing in the basement my arms overhead, waiting for the plaster around my torso to harden, the doorbell rang. Someone open the side door, called out “Hydro” and came downstairs. I thought, “Oh my God, he’s coming to read the meter”. A man walked in, saw me encased in plaster, and ran out. I was so embarrassed.

[64] When this affidavit was prepared it was Dr. Rosenthal’s understanding that it would constitute all of the evidence that would be before the court at trial. The focus of the paragraph is on the embarrassment she experienced as a result of her father putting her in the position of being seen standing with nothing but plaster over her torso by a stranger.

[65] These facts do not meet the criteria for sexual assault. Dr. Rosenthal did not say that at the time she was fearful that her father was going to touch her sexually. Her testimony is that to her mind the fact that she reacted by “not being present” indicates that the conduct was threatening to her. But, this is a characterization with hindsight, based on years of related study and practice as a trauma psychotherapist. It cannot be relied on, as reflecting the reality of the situation at the time.

[66] That leaves the question of whether the pubic hair shaving constituted sexual battery.

[67] Battery is the intentional causing of harmful or offensive contact with another person. (Fleming, The Law of Torts, 9th ed. (1998), pg. 29) When the contact is of a sexual nature the battery is classified as sexual battery.

[68] For the reasons that follow, I find that the pubic hair shaving did constitute a battery, but that it was not of a sexual nature.

[69] The underlying principle in the law of battery is that “each person is entitled not to be touched, and not to have her person violated”. (Non-Marine Underwriters v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 22).

[70] It follows that the shaving amounts to battery unless it falls within the types of everyday physical contact that one must accept as part of ordinary life even if not consented to. (Scalera, at para. 20). It does not.

[71] Dr. Rosenthal testified that she did not want her father to shave her and that it was to her an invasion of her body beyond anything that had been done to her before. While it is possible that this is not an accurate account of the circumstances, there is no evidence to the contrary. Her father’s shaving of her pubic hair, on this evidence, is battery.

[72] Dr. Rosenthal’s affidavit evidence does not contain any suggestion that she considered the shaving to have a sexual component to it. When asked on cross-examination whether it was not just recently on looking back at the event that she characterized the shaving incident as sexual abuse, her response was that she did not know.

[73] The shaving was done in the context of Mr. Rosenthal making a plaster cast for his sculpting. Based on Dr. Rosenthal’s testimony that when her father involved her in matters related to his art, she was no more than a tool for his art and that he saw her as an object, there would not have been a sexual aspect to the shaving.

[74] I find Dr. Rosenthal’s characterization of this incident as sexual to be a hindsight characterization influenced by her understanding of the legal elements of these offences and viewed through the lens of both her professional experience and the events that have since transpired.

[75] I find that the shaving of her pubic hair was a battery.

(b) the nude modeling

[76] Dr. Rosenthal alleges that by having her model for him in the nude, Mr. Rosenthal was sexual assaulting her.

[77] I do not accept that while modeling in the nude for her father, Dr. Rosenthal felt an imminent threat of her father engaging in contact of a sexual nature with her. It is inconsistent with her testimony with respect to his conduct during the modeling sessions, as I have outlined it. Dr. Rosenthal may have come to believe, over time, that there had been a threat of sexual contact while she modeled. But, it is what she felt at the time that is determinative and the evidence does not support a finding that she felt an imminent threat. As a result, I find that Dr. Rosenthal has not met the burden of establishing that in requiring her to model in the nude for him, Mr. Rosenthal sexually assaulted Dr. Rosenthal.

[78] Dr. Rosenthal relies on comments she perceived to be of a sexual nature that she claims Mr. Rosenthal made to or about her as she matured as the basis for her fearing imminent sexual contact by Mr. Rosenthal. Even if I were to accept that Dr. Rosenthal did, during the years in which her father was making the inappropriate comments, fear that he might make a sexual advance, her evidence does not support a finding that her fear was connected to the modeling in any way.

[79] I have concerns as to the reliability of the foundation of Dr. Rosenthal’s alleged fear that her father would sexually assault her. There is reason to question her recollections and perceptions of the offending comments made by her father and her interpretation of his behaviour towards her. There are comments made by her father that she interprets as offensive that are not obviously suggestive. She has taken his comment that she was developing a wild spirit and would be difficult to conquer as being sexual in nature, when it is not clearly so. She found her father’s telling her that he loved her and that she was a good model to be offensive, though the offensiveness of these comments is not clear from her recounting of them.

[80] She lists amongst those things that her father did that lead her to believe that he sought to have a sexual relationship with her the fact that he would not allow her to go to parties or to date until she was sixteen, though at the time not dating until that age was not extraordinary. Nor does the fact that a father does not want his daughter to have a boyfriend before that age mean, as Dr. Rosenthal maintains, that he has a sexual interest in her or sexual intentions towards her.

[81] Further putting into question the true nature of her father’s comments she believes to have been indicative of his sexual interest in her is her evidence that they were all made in the presence of family.

[82] I do not doubt that Dr. Rosenthal has come to believe over time that her father had and continues to have a sexual interest in her. (She testified that she believes that his intention in 2005 when he threatened her with writing her out of his will was to put himself in a position to finally have sex with her.) But, in my view, her current perceptions and understanding of what she experienced as a child and adolescent have been shaped, to a meaningful degree, by her needs and the knowledge she has obtained through her studies and practice as a psychotherapist. This makes it unsafe to rely on these perceptions and explanations alone as accurately reflecting the reality of what occurred.

[83] Having found that Dr. Rosenthal has not met the burden of proof that her father sexually assaulted her by requiring her to model nude, I must consider whether his conduct constituted a breach of his fiduciary duty to her. This is a claim that I had not understood was being advanced, based on trial management proceedings in advance of the trial. I have had no assistance from counsel for Dr. Rosenthal with respect to the question of whether the facts on which Dr. Rosenthal relies in support of her claim meet the test for establishing a breach of Mr. Rosenthal’s fiduciary duty to her. I am grateful for the assistance provided by amici. That assistance, helpful though it was, was limited because the claim was not anticipated.

[84] It is well established that a parent owes a fiduciary duty to his or her child. The duty is characterized by a requirement that the parent act loyally and not put his or her interests ahead of the child in a manner that would abuse the child’s trust. (K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 SCR 403, para. 49.)

[85] I am unaware of any finding against a parent for breach of fiduciary duty in cases other than those involving sexual assault of the child by the parent or economic gain by the parent contrary to the interests of the child. However, there is no basis for restricting the scope of a parent’s fiduciary duty to his or her child to such cases. To do so would be inconsistent with the broad characterization of that duty in K.L.B. and McLachlin C.J.C.’s statement at para. 47 that the list of parental duties is not closed.

[86] If Dr. Rosenthal can establish a prima facie inference that her father breached his fiduciary duty to her, the burden then falls to Mr. Rosenthal to disprove her allegations: Toronto Party for a Better City v. Toronto (City), 2013 ONCA 327, 115 O.R. (3d) 694, at para. 58, citing Rotman, Fiduciary Law (Thomson Carswell: Toronto, 2005), at p. 614. This is consistent with the vulnerability of a beneficiary and the ability of the fiduciary to conceal a breach by virtue of his control over the beneficiary. (see Rotman, at p. 164)

[87] For a parent to have breached his or her fiduciary duty to a child requires that the parent use the child as a means to the parent’s end and that in doing so, the parent put another person’s interest, be it the parent or someone else, ahead of the interests of the child.

[88] Applying the reasoning of McLachlin C.J.C. in K.L.B. at para. 48, the question in this case is whether Mr. Rosenthal was disloyal to Dr. Rosenthal by putting his interests ahead of hers in a way that abused her trust.

[89] On the uncontradicted evidence before me, Mr. Rosenthal used Dr. Rosenthal as a means to his end of developing his artistic skills and building his art career. The fact the career was considered a “family enterprise” and that Dr. Rosenthal benefitted materially from its success is insufficient to rebut a breach of Mr. Rosenthal’s fiduciary duty (Rotman, at p. 617). Nor does the fact that Mr. Rosenthal may not have been consciously motivated by a desire for profit or personal advantage avoid his conduct being a breach of his fiduciary duty to Dr. Rosenthal. (K.L.B, at para. 49).

[90] Dr. Rosenthal’s evidence is that as she went through puberty she became uncomfortable modeling in the nude for her father; but he dismissed her expressions of discomfort. She testified that she did not want to be naked in front of him but continued because she was told that the family could not afford to hire a professional model and she had believed that saying no to her father was not an option.

[91] Prima facie, this engages Dr. Rosenthal’s privacy interests. The importance and legitimacy of a personal privacy interest was affirmed by Blair J.A. in Jones v. Tsiege, 2012 ONCA 32, 108 O.R. (3d) 241, a case addressing the tort of intrusion upon seclusion. Relying on R. v. Tessling, 2004 SCC 67, Blair J. noted that personal privacy was grounded in the right to bodily integrity (see Jones, at paras. 19-23).

[92] Dr. Rosenthal’s evidence is sufficient to support a prima facie inference that by denying her the right to choose whether to reveal her mature body to his scrutiny and use, Mr. Rosenthal was disloyal to her in that he put his interests ahead of hers in a way that abused her trust.

[93] Had Mr. Rosenthal participated in the trial, his evidence may have discharged the onus of disproving Dr. Rosenthal’s allegations. However, there is no evidence in response to the allegations from Mr. Rosenthal. As a result, the burden of disproving the prima facie inference that he breached his fiduciary duty to her has not been met.

[94] I therefore find that Mr. Rosenthal breached his fiduciary duty to Dr. Rosenthal for the period of three or four years from when she reached puberty to when she stopped modeling in the nude for Mr. Rosenthal at age sixteen.

(c) the Algonquin Park event

[95] As I have said, sexual assault is intentional conduct giving rise to an apprehension of imminent physical contact of a sexual nature: M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 at 25-26; Grace, at p. 8.

[96] Dr. Rosenthal claims this to have been the pivotal event in her life. If I accept her evidence that Mr. Rosenthal unbuckled her belt and began to unzip her pants, telling her that he wanted to give her pleasure as she lay next to him, then what occurred was a sexual assault. In spite of that evidence being uncontradicted, it raises concerns as to whether it satisfies the burden of proof.

[97] I question the reliability of Dr. Rosenthal’s account based on such things as the timing of the incident, as it took place when her mother and brother were expected to arrive at the cottage; the fact that there were no negative consequences to Dr. Rosenthal saying no to her father in spite of her repeated assertions that saying no was not something she could do to her father without consequences; the fact that an assault was never again attempted; the fact that she told no one about it, including her psychiatrists through months of hospitalization, for six years; the apparent inconsistency between her affidavit and her testimony at trial as to the circumstances in which she did tell her mother, when she was twenty-two; and, her interpretation of her father’s conduct towards her as reflecting his ongoing sexual interest in her though that interpretation with respect to at least some of the conduct complained of was arrived at much later in life – in one case, during the course of her testimony at trial - and may be a product of the particular prism through which Dr. Rosenthal now views the events of her childhood.

[98] None of these things taken individually undermine Dr. Rosenthal’s allegations, but taken together they raise doubts. So, too, do her claims as to the events after the assault. For example, her mother’s apparent failure to notice anything untoward or exceptional in Dr. Rosenthal’s manner when her mother arrived at the cottage, given Dr. Rosenthal’s description of her state after the assault including her complete rejection of food; and, her claim that she ate nothing while at leadership camp, for possibly as long as two weeks, apparently without anyone at the camp noting let alone attempting to address it.

[99] Also contributing to my concern is how this action came to be prosecuted. It is a response to Mr. Rosenthal’s decision in 2005 to change his will, removing Dr. Rosenthal as executor and primary beneficiary should he predecease his wife, and naming Baycrest Foundation in her place. The estate consists of Mr. Rosenthal’s own works of art, estimated by Ms. Aylward to have a current value of around $9 million, which is expected to roughly double on his death.

[100] The fact that Dr. Rosenthal decided to prosecute this action as a means of addressing what she describes as her father’s last betrayal of her does not mean that the allegations in the claim are not true. But, it does mean that I must be cautious in my assessment of the evidence.

[101] I am left uncertain as to what to make of the fact that Dr. Rosenthal’s manner in testifying regarding her being written out of the will was in such marked contrast to the balance of her testimony. It was only when testifying with respect to her father’s threats to write her out of the will that Dr. Rosenthal was animated and showed evidence of agitation and emotion. She spoke forcefully of having been promised that she would inherit the art collection. She understood it to be her right to take control of it as it was the family business and she valued it and both could and wanted to take care of it.

[102] She testified that Mr. Rosenthal excluded her from his estate because of her refusal to comply with his demand that she admit that she was mistaken in thinking that she had not been loved as a child and admit that all of her medical problems were a result of this cognitive error. At the same time he criticized her for her conduct towards the family. This profoundly upset Dr. Rosenthal. She viewed what her father was doing as being the same as what he had done to her as an adolescent, trying to subordinate her to himself and have absolute control over her as he had when she was young, and using the inheritance as the threat that would enable him to do so. Dr. Rosenthal testified that she believed that Mr. Rosenthal was still seeking to have a sexual relationship with her. Having been thwarted in the past, he was renewing his efforts to that end, holding the inheritance over her head to enable him to have that sexual relationship with her. Dr. Rosenthal viewed this as demonstrating that her father did not care about her in any way and wanted to use her. Dr. Rosenthal walked away and Mr. Rosenthal struck her from the will. For a few years she thought about what she could do. She consulted with people and eventually determined to make this claim.

[103] This evidence is open to interpretation that casts doubt on the reliability of Dr. Rosenthal’s claim as to what happened at the cottage in Algonquin Park. It raises questions as to the reliability of Dr. Rosenthal’s interpretation of her father’s motives.

[104] In the end, however, these concerns and doubts do not rise to the level of warranting the rejection of Dr. Rosenthal’s internally consistent and uncontradicted evidence. I find on a balance of probabilities that Mr. Rosenthal sexually assaulted her at the cottage in Algonquin Park as she alleges.

DAMAGES

[105] I must assess the damages Dr. Rosenthal has sustained because of Mr. Rosenthal’s breach of fiduciary duty to her through his using her as a nude model in the years after she reached puberty, his committing battery in shaving her pubic hair in the course of making a plaster cast of her torso and his committing sexual assault by beginning to undo her pants while lying next to her.

[106] In assessing those damages, I question the extent to which the present has imposed itself on Dr. Rosenthal’s past to amplify in her mind the extent of the harm caused by her father’s abuses and disloyalty and to put greater significance than is justified on the role they played relative to other circumstances in her life.

[107] I am also compelled to question the extent to which Dr. Rosenthal’s current perspective on the events in issue is, perhaps unconsciously, a product not only of her subsequent studies and professional experience, but her outrage and hurt at being denied what she reasonably believes to have been the inheritance to which she is entitled.

[108] I find that the evidence falls short of establishing that it is the acts for which I have found Mr. Rosenthal liable that are wholly or even primarily responsible for the mental and physical illnesses Dr. Rosenthal has suffered.

(a) the context for the analysis of damages

[109] This case is exceptional in a number of respects, one of which is that the plaintiff is an expert in the field of her claim. She has researched the connection between trauma and illness and the focus of her professional life has been on the treatment of people suffering from post-traumatic stress disorder. Both her affidavit and testimony contain extensive opinion evidence based on her interpretation of the underlying motivation and significance of her and her father’s actions and reactions, and as to the very issues of causal connection that I must decide. But, those opinions are not opinions arrived at based on an impartial assessment for the assistance of the court and I must be cautious in not giving them unwarranted weight.

[110] I do not hesitate to conclude that Dr. Rosenthal is genuine in the opinions she has expressed and the conclusions she has reached regarding her childhood and the impact of the events of which she complains on her life. But, in assessing the evidence as to the impact of the breach of fiduciary duty, the battery and the sexual assault committed by Mr. Rosenthal, I must be mindful of the unique position Dr. Rosenthal is in to cast events in a particular way and the motivation she has to do so.

[111] Assessing the impact on Dr. Rosenthal of the acts that I have found Mr. Rosenthal to have committed against her is challenging because of the limited collateral evidence and because of the nature of the evidence that is before the court. It is impossible to read Dr. Rosenthal’s affidavit evidence without being aware of its having been written by a skilled therapist who has given a great deal of thought from a psychological perspective to her life and why it has unfolded as it has. The result is compelling and elicits compassion. But, compassion cannot form the basis for a decision that is otherwise not warranted on the evidence. And, the opinions and perceptions of Dr. Rosenthal must be put to the same scrutiny as that of any party to a proceeding.

[112] There is remarkably limited medical evidence to support Dr. Rosenthal’s claims. She relies on the expert evidence of Dr. Kirsh and her own self-diagnosis to establish that she suffers from Post-traumatic Stress Disorder, various physical consequences of eating disorders and chronic fatigue as a result of the acts for which her father is liable in this action. But, for reasons I outline below, Dr. Kirsh’s opinions can be given little weight and Dr. Rosenthal’s own self-diagnosis is not admissible as expert evidence.

[113] The only records produced are from Dr. Rosenthal’s stay at the Queensway General Hospital in 1967, approximately two years after the Algonquin Park sexual assault. Dr. Rosenthal testified that no other records or doctors’ notes exist. Some of the records that would have been of assistance, the records form the Clarke Institute, for example, would now be more than 40 years old making it understandable that they might no longer be available. But, the records of the Queensway General Hospital from the same time period have been produced without any explanation for why they exist. The very limited evidence as to the extent of Dr. Rosenthal’s efforts to obtain records is that she sought them but was told in each case that they had been destroyed.

[114] Critical to Dr. Rosenthal’s claim is the evidence of Dr. Kirsh, which consists of her report and testimony at trial. Dr. Kirsh is a psychiatrist with expertise in the area of child trauma and the resulting symptomatology.

[115] I can place very little reliance on Dr. Kirsh’s evidence. I have reached this conclusion on the basis of the following.

[116] Dr. Kirsh took on the role of advocate for Dr. Rosenthal. In my view, this resulted primarily from Dr. Kirsh’s lack of experience as an expert combined with the instructions pursuant to which she undertook her analysis. It might have assisted her had she been provided with the Acknowledgement of Expert’s Duty form, the acceptance of the terms of which is a pre-requisite to an expert testifying at trial, when she was retained rather than just prior to trial.

[117] Dr. Kirsh’s opinions are specific to the questions to which she was asked to respond by counsel for Dr. Rosenthal. The questions assumed facts in issue to be proven and restricted the scope of Dr. Kirsh’s opinion. The nature of the questions may explain why while Dr. Kirsh was unequivocal in her report in stating the Algonquin Park event to be the pivotal event for Dr. Rosenthal, when testifying at trial she did not hold to that opinion.

[118] Dr. Kirsh arrived at her opinion relying almost exclusively on the document prepared for her by Dr. Rosenthal entitled “My Story”, the reliability of which has not been tested. Although counsel for Dr. Rosenthal provided Dr. Kirsh with the statement of claim, he did not provide her with the statement of defence or transcripts of the examinations for discovery. Dr. Kirsh did not request any additional information from counsel and did not know what position Mr. Rosenthal took with respect to the allegations.

[119] Dr. Kirsh arrived at her opinions with very limited collateral documents to assist her in confirming or refuting the impressions she formed. The weight attributable to a doctor’s opinion is directly related to the amount and quality of the admissible evidence on which the doctor relies. This alone limits the weight that can be placed on Dr. Kirsh’s opinions. That weight is further diminished, in my view, by Dr. Kirsh’s testimony that the very limited collateral information available to her did not give rise to any need to qualify her opinion.

[120] Dr. Kirsh testified that she did not consider it necessary in arriving at her opinion to either review medical records or fully canvas Dr. Rosenthal’s life or family history with her. She testified that such a canvas would have taken her about six hours. Instead, she spent about one hour interviewing Dr. Rosenthal and chose to rely on the version of Dr. Rosenthal’s life set out in “My Story”, which she assumed to be a complete and accurate account. Dr. Kirsh did not consider the psychological history of Dr. Rosenthal’s family members to be relevant to her diagnosis and therefore did not canvas this with Dr. Rosenthal. On cross-examination, Dr. Rosenthal resisted the suggestion that there was a family history of depression. However, she acknowledged that her maternal uncle committed suicide in his fifties and that her brother suffered from chronic depression. These things further undermine the reliability of Dr. Kirsh’s opinion.

[121] Dr. Kirsh’s opinion is that Dr. Rosenthal suffers from chronic Post-traumatic Stress Disorder (“PTSD”). She identified the Algonquin Park event as the traumatic event underlying that diagnosis. But, this opinion is undermined by Dr. Kirsh’s acknowledgement that a prerequisite for a diagnosis of PTSD is persistent re-experiencing of the underlying traumatic event. There is no evidence to support any such re-experiencing by Dr. Rosenthal of these events.

[122] In her affidavit evidence, Dr. Rosenthal referred to experiencing “disturbing flashbacks and distressing mental images of traumatic or shameful events from her past”. In her testimony at trial she enlarged on this, explaining that she experienced intrusive experiences that included flashbacks and were unwanted pieces of memory. She described these as triggering trauma states when the flashbacks come in rapid succession, as sometimes happens. When asked at trial whether she experienced this with respect to the nude modeling or the event at Algonquin Park, her answer was “no”.

[123] I find this significant in the assessment of the relative impact of these events on Dr. Rosenthal. They do not rank as the traumatic or shameful events of her life that have haunted her through flashbacks and distressing mental images. The evidence does not support a finding that Dr. Rosenthal developed PTSD as a result of the actionable conduct that I have found Mr. Rosenthal to have committed.

[124] Dr. Kirsh did not refer in her report to the fact that Dr. Rosenthal suffered from psychological problems for many years before the Algonquin Park event. Dr. Kirsh sought to explain this omission on the basis of her lack of experience in writing expert reports; however, while it is possible that this contributed to the way in which Dr. Kirsh wrote her report, in the context of her evidence, the omission appears better explained by Dr. Kirsh having misunderstood her role as an expert.

[125] The emotional impact on Dr. Rosenthal of the challenging circumstances of her early childhood was apparent from an early age. Dr. Rosenthal describes herself as manifesting symptoms of her anxiety by the age of five. She began picking at the skin around her fingernails in what became a life-long nervous habit. Mr. Rosenthal responded to this habit by intervening physically in attempts to stop her.

[126] Dr. Rosenthal described herself as experiencing a persistent sense of dread as a child. Her evidence is that by the time she was eight, this feeling had developed into full-blown panic attacks occurring on a regular basis. Dr. Rosenthal believes that her parents viewed her screams of terror during her panic attacks as misbehaviour. On occasion they were responded to with physical punishment and threats of being sent to a psychiatrist. Dr. Rosenthal maintains that the dread she experienced during these attacks has stayed with her all her life.

[127] The next significant manifestation of emotional problems of which there is evidence occurred when Dr. Rosenthal was around fourteen. This would be one or two years after the beginning of the period over which I have found Mr. Rosenthal to have breached his fiduciary duty to her – after she reached puberty - by requiring her to model nude in spite of her not wishing to do so.

[128] Dr. Rosenthal describes herself as falling into a deep depression. She took an overdose of 222’s, an analgesic with codeine available without prescription at the time. It resulted only in her being sick for a few days. She told no one what she had done. But, her parents were still sufficiently concerned about her mental health that they arranged for her to see a psychiatrist. She describes the depression that she was experiencing at the time as being part of her feeling trapped and as being there at the time of Algonquin Park incident and after.

(b) the nude modeling

[129] Dr. Rosenthal does not refer to experiencing symptomatology resulting specifically from the effect on her of having to model in the nude when she was an adolescent. Dr. Kirsh’s report refers to the nude modeling as setting the stage, along with unspecified “punitive physical and psychological behaviour that would terrify and humiliate”, for the Algonquin Park event to be the “final straw”. While Dr. Kirsh no longer characterizes the Algonquin Park event as being the pivotal event implicit in “final straw”, I accept her view of the nude modeling as being one of many events or circumstances contributing to Dr. Rosenthal’s emotional problems. However, the evidence is inconsistent with it standing out as having greater significance than the other traumas in her life that she experienced to that point or subsequently.

[130] I find this to be the case in spite of accepting that the impact on Dr. Rosenthal of the nude modeling was exacerbated by the fact that the works of art based on her form were displayed throughout their home, which was used as a gallery for the sale of the works, and were taken away to be displayed by the purchasers of the works.

[131] The evidence supporting this aspect of the claim is limited. Dr. Rosenthal’s cousin’s confirmation that she understood the nude paintings in the house to be of Dr. Rosenthal would have carried more weight had it not been in response to that suggestion being put to her by counsel for Dr. Rosenthal. In any event, Ms. Dowson gave no indication of anyone having been made uncomfortable by this or it having been considered unwelcome or inappropriate.

[132] Although Dr. Rosenthal testified about the anxiety she experienced out of fear that one of her classmates might see the painting of her on the living room wall from the street, she could not say that anyone had actually seen it.

[133] There is also the question of how realistic Dr. Rosenthal’s concern was that she was readily identifiable in the works of art. While I accept that Dr. Rosenthal’s body was used as the foundational basis for Mr. Rosenthal’s figurative work, at least until Dr. Rosenthal was allowed to stop modeling in the nude for him, the resemblance between Mr. Rosenthal’s finished works and Dr. Rosenthal is not apparent to me in some of the examples relied on and is only somewhat apparent in others. The relative having identified a painting of Dr. Rosenthal in a home does not mean that it would be identifiable as her by the owner of the painting or that it was necessarily of her in her adolescence.

[134] I find Dr. Rosenthal’s connection between the nude modeling and her prostituting herself to be unsupported by the evidence. She stated that the only difference in her mind between receiving allowance from her father for modeling nude and prostituting herself was that she could pick the people she chose to prostitute herself to. Yet, neither her affidavit evidence nor her testimony at trial with respect to the nude modeling allows, on a reasonable interpretation of it, for the conclusion that the modeling was so disturbing to her as to warrant such a comparison in her mind at the time.

[135] What stands out from her account of her life, as she described it orally and in her affidavit, is the great pain suffered by Dr. Rosenthal as a result of feeling unknown, unloved, objectified, and used by her father. It is primarily these feelings, rather than the discomfort she felt as a result of being made to model nude for her father, that dominate her testimony and therefore appear to be of far more significance to her than the nude modeling.

(c) the plaster cast event

[136] There is no evidence as to when the plaster torso cast on which the finding of battery is based, was made. It is implicit, however, that it was after Dr. Rosenthal had reached puberty.

[137] Dr. Rosenthal’s evidence with respect to this event leads me to conclude that the probable explanation for her not having made mention of it prior to preparing her evidence for trial is that it was not significant to her. Its primary consequence was to cause her embarrassment as a result of the Hydro man appearing unexpectedly and seeing her standing in the basement encased in plaster. I reject the suggestion that Dr. Rosenthal did not include this incident in the narrative prepared for Dr. Kirsh because the associated emotional trauma blocked it from her memory. Absent further explanation, that does not fit with the balance of the evidence.

(d) the Algonquin Park event

[138] I now turn to the significance of the Algonquin Park event. I find that the evidence does not support Dr. Rosenthal’s claim that this was the critical event but for which she would not have suffered the physical and emotional problems that significantly limited her ability to work, diminished her quality of life and prevented her from fulfilling her potential.

[139] As I have said, although in her report, Dr. Kirsh, expressed the opinion that the event in Algonquin Park was the pivotal event in Dr. Rosenthal’s life and caused the life-long mental distress that she suffered and the chronic medical issues with which she has lived, Dr. Kirsh did not stand by that opinion. On cross-examination, Dr. Kirsh testified that she was not suggesting that absent the Algonquin Park event Dr. Rosenthal would not have gone on to develop what Dr. Kirsh diagnosed as PTSD and would not have been engaged in the cutting of herself and drinking excessively, for example, that Dr. Rosenthal chronicled. Dr. Kirsh described these forms of conduct as typical for victims who have been chronically humiliated, criticized and emotionally neglected by their childhood caregivers, as Dr. Rosenthal describes herself to have been.

[140] Dr. Rosenthal spoke and wrote eloquently of her feelings of emotional neglect as a child and of the domination and humiliation she experienced at the hands of her father. She felt completely invisible to her father, in spite of being totally exposed to him physically. She believed her father’s understanding of her to be “as superficial as the paint on the canvass”. Her memories of her father are that he was cold, angry and punitive. She has no recollection of ever having been comforted by him. She believes that her father never loved her.

[141] While Dr. Rosenthal thinks her mother did love her, she believes that her mother had no idea who Dr. Rosenthal was or what she needed. She described her mother as not being present for her because she was occupied with Dr. Rosenthal’s brother and with her work for the Hemophilia Society.

[142] Dr. Rosenthal returned repeatedly to the theme of her parents failing to have any sense of who she was and of the conflicts both internal and external to which she was subjected. I have referred to some of these: the conflict between her feelings of pride at being recognized as the model for her father’s works and the discomfort she felt as a result of being exposed publicly the way she was; the conflict between wanting to meet her parents’ expectations and please them and the knowledge that her father’s personality and his objectification of her made this impossible.

[143] Another consistent theme throughout Dr. Rosenthal’s testimony is that of being the object of Mr. Rosenthal’s indoctrination and control and the damage this caused.

[144] The evidence establishes that Dr. Rosenthal was profoundly affected by the conduct of her parents entirely apart from those acts that form the basis of my findings against Mr. Rosenthal, including the Algonquin Park sexual assault. Based on the evidence, the damages claimed by Dr. Rosenthal were not caused by the acts for which I have found Mr. Rosenthal liable in this action.

[145] I reach this conclusion based on, in addition to what I have already outlined, the following.

[146] Fundamental to Dr. Rosenthal’s claim is that as a result of the Algonquin Park event she developed eating disorders. She alleges that these disorders resulted in her developing persistent diarrhea that stayed with her until the age of fifty-seven. The diarrhea, she claims, led to associated problems including malnutrition, anemia and fatigue, all leading to a lowered resistance which made her vulnerable to infection and reduced her ability to recover from it. She attributes the various infections she developed while serving as a medical intern, including bronchitis, recurrent urinary tract infections and gingivitis to the consequences of the eating disorders. She alleges that the chronic fatigue from which she suffers and the erosion of her tooth enamel with the consequent current need for extensive reconstructive dental surgery are both indirectly a consequence of the eating disorders.

[147] Dr. Rosenthal claims to have suffered from eating disorders until she was twenty-two years old: first anorexia and then what she described as binge eating, involving an extraordinary number of occurrences of self-induced vomiting. But, I am not satisfied on the evidence that she did suffer from these disorders.

[148] Dr. Rosenthal was not diagnosed with any form of eating disorder while at Queensway General Hospital in 1967, though she is recorded in that hospital’s records as saying that she had a loss of appetite and is described as somewhat undernourished, or while at the Clarke Institute. This is in spite of her being in those institutions for a period of approximately five months. Nor is there any evidence of her having been subsequently diagnosed with an eating disorder by her treating psychiatrist or any physician at any time, even though she was hospitalized for two weeks in the psychiatric ward of the Hamilton General Hospital while at McMaster University at a time when she claims to have been binge eating to the extent of vomiting six to eight times a day.

[149] I accept Dr. Kirsh’s evidence that difficulty eating is a very common reaction to sexual assault. However, difficulty eating is not the same as an eating disorder. The evidence does not establish that Dr. Rosenthal developed eating disorders following the Algonquin event or that this event precipitated the illnesses she claims resulted directly or indirectly from them.

[150] Portions of Dr. Rosenthal’s evidence and the records of the Queensway General Hospital provide reason for questioning the reliability of Dr. Rosenthal’s perception that the problems she has experienced that have limited her functioning and her enjoyment of life were the result of the actionable conduct committed against her by her father.

[151] The records of what Dr. Rosenthal told Dr. Kelly while she was a patient at the Queensway General Hospital reflect complaints about her family life different from those in evidence at this trial and appear to provide a history inconsistent with the history she has provided at trial. Dr. Rosenthal has not disputed the accuracy of the record of the history she gave to Dr. Kelly; nor has she explained the differences. They add to my concern as to whether the great weight she now places on the events that form the basis of this claim is consistent with reality.

[152] Dr. Rosenthal is recorded as having told Dr. Kelly that her inability to cope at school that precipitated her admission to hospital was connected to an argument between her and her father over money matters. She told Dr. Kelley the argument resulted in hostility in the home and Dr. Rosenthal moving out for two weeks, at her father’s suggestion, with her mother and brother being prepared to go with her. Although the situation subsided, it resulted in Dr. Rosenthal becoming acutely aware of her inability to function without her father. This dependency is the focus of Dr. Kelly’s assessment and diagnosis. It, together with the fact that, according to Dr. Kelly’s note, Dr. Rosenthal’s parents disagreed on how to handle her, was what underlay the transfer to the Clarke Institute.

[153] Any connection between Dr. Rosenthal’s dependency on her father and the three claims that have been proven against Mr. Rosenthal is speculative.

[154] In assessing the damages resulting from the acts for which I have found Mr. Rosenthal to be liable, I question the extent to which the present has imposed itself on Dr. Rosenthal’s past to amplify in her mind the extent of the harm caused by her father’s abuses and disloyalty and to put greater significance on the role they played relative to other circumstances in her life than is warranted.

[155] I am also compelled to question the extent to which Dr. Rosenthal’s current perspective on the events in issue is, perhaps unconsciously, a product not only of her subsequent studies and professional experience, but her outrage and hurt at being denied what she reasonably believes to have been the inheritance to which she is entitled.

[156] The effects of the stressors on Dr. Rosenthal’s life before the acts I have found her father to have committed against her had not resolved when those acts were committed and have had a life-long effect on Dr. Rosenthal. It is logical, however, that the acts committed by her father contributed to her vulnerability to emotional stress resulting from other disturbing circumstances and events in her life.

[157] A final consideration in assessing the damages is the impact of Dr. Rosenthal’s choice of field of practice. As I have referred to in my outline of the evidence and discuss further under the heading of “loss of income”, Dr. Rosenthal has since 1985 narrowed her practice to a field that exacerbates her symptoms. Although Dr. Rosenthal’s evidence is that she found working as a psychotherapist less demanding than her general practice, she had been able to work three days a week as a general practitioner whereas in five or six years after becoming a psychotherapist, she was completely disabled and did not return to practice for approximately five years.

[158] Based on the evidence, it is Dr. Rosenthal’s decision to practice psychotherapy, as well as the death of her brother, that most impacted her mental and physical state from 1982, onward.

(e) damages calculation

[159] Counsel for Dr. Rosenthal adopted a simplistic approach to the issue of damages.

[160] On the basis of his submissions, with respect to the approach to be adopted in assessing damages, there are no issues of causation that require consideration and there is no need to differentiate between the damages caused by the various acts that I have found Mr. Rosenthal to have committed.

[161] Counsel submits that I should assess non-pecuniary damages at between $125,000-$250,000, including $50,000 aggravated damages, plus $50,000 for punitive damages. I assume the $125,000 - $250,000 range derives from the decision in B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120, 288 D.L.R. (4th) 88, in which the court accepted that as being an appropriate range. But, this fails to recognize that the range is with respect to cases of severe and continuing abuse. In that case, the plaintiff was repeatedly subjected to sexual assaults by his probation officer, including anal and oral sex, over a period of weeks at the age of thirteen. It is not a range appropriate to this case.

[162] In order to arrive at a fair assessment of Dr. Rosenthal’s damages consistent with the underlying principles and with awards in similar claims, more is required than the approach advanced by counsel for Dr. Rosenthal.

[163] I approach the damages adopting the method summarized by the Supreme Court in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 46:

As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that 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 her loss. Scientific proof of causation is not required.

[164] Dr. Rosenthal must prove on a balance of probabilities that the wrongful conduct was a factual cause of the damage. (Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 13).

[165] I find, for reasons outlined above, that Dr. Rosenthal has not proven that the illnesses from which Dr. Kirsh stated Dr. Rosenthal has suffered or continues to suffer are the result of the wrongful acts I have found Mr. Rosenthal to have committed. But, applying a robust and pragmatic approach to the evidence, I find that the breach of fiduciary duty consisting of requiring Dr. Rosenthal to model in the nude after reaching puberty and the Algonquin Park sexual assault have contributed to Dr. Rosenthal’s pre-existing illness and made her more vulnerable to illness resulting from subsequent trauma.[^3]

[166] Damages are awarded to restore a plaintiff to the position he or she would have been in had the tort that is the basis of the claim not been committed, but no better a position. As the court stated in Athey, at para. 34: “The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway.” Further, unrelated intervening events must be taken into account: if such an event would have affected a plaintiff’s original position adversely in any event, the net loss attributable to the tort will be reduced proportionately. (T.W.N.A. v. Clarke, 2003 BCCA 670, 235 D.L.R. (4th) 13, at para. 36, relying on Athey, at paras. 31-32)

[167] It is important to underscore that damages are assessed based on the admissible evidence at trial that is accepted by the court. To the extent that such evidence is limited in this case, the damages awardable to Dr. Rosenthal are limited.

(i) the Algonquin Park sexual assault

[168] I begin with the assessment of the Algonquin Park sexual assault, as it is Dr. Rosenthal’s position that this event had the most significant consequences for her in terms of damages.

[169] The damages for sexual assault are to be assessed on the basis of a functional approach, taking into account both the nature of the injury and the purposes of non-pecuniary awards in such cases (B.M.G., at para. 124). The assessment requires recognition of the nature of the offence. As Cory J. stated in R. v. Osolin, [1993] 4 S.C.R. 595, at 669, a sexual assault is an assault on human dignity. The damages awarded for sexual assault are to vindicate that dignity and the victim’s personal autonomy and recognize the humiliating and degrading nature of the wrongful act. As well, the damages are to provide solace for the victim’s pain and suffering and loss of enjoyment of life. (B.M.G., at paras. 128-132)

[170] The Supreme Court in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 89, approved the factors considered by the trial judge in that case as relevant to the assessment of damages for sexual assault: W.R.B. v. Plint, 2001 BCSC 997, 93 B.C.L.R. (3d) 228, at para. 398ff; B.M.G., at para. 134. These include:

(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 behaviour including ongoing psychological injuries.

[171] Applying these criteria to the evidence before me, I find non-pecuniary damages as a result of the Algonquin Park sexual assault to be $100,000, including aggravated damages of $30,000.

[172] While the circumstances of the assault were not dreadful in absolute terms, being a single occurrence that Dr. Rosenthal stopped before it advanced to actual sexual contact, it was the ultimate breach of trust in that it was committed by her father. Dr. Rosenthal was particularly vulnerable given her age and the psychological problems with which she was burdened, to the knowledge of her father.

[173] The impact on Dr. Rosenthal of the assault is impossible to assess with anything approximating precision. The fact that Dr. Rosenthal immediately took herself out of the situation, that she continued both at the cottage and then at camp in the normal course without anyone noting any indication of her having been traumatized, the fact that it was six years before she mentioned the event to her mother, and the fact that she has not experienced any flashbacks of the assault are examples of those facts that give rise to questions as to the impact on her of the assault. Nonetheless, I find it contributed to the mental distress and chronic medical issues from which Dr. Rosenthal has suffered and made her more vulnerable to the further assaults on her psychological well-being to which she was subjected.

[174] Aggravated damages are warranted as the act represents a fundamental breach of parental trust. They are to compensate Dr. Rosenthal for her father, having through the sexual assault I have found him to have committed, taken away from her what remained of her faith that she could trust him not to subject her to the ultimate betrayal and for the anxiety, grief and fear that caused.

[175] I assess those damages at $30,000 and have included that amount in general damages to take into account the aggravating features to which I have referred. (see Norberg v. Wynrib, [1992] 2 SCR 226, at 263).

(ii) plaster cast battery

[176] In my view, an appropriate damages award for the battery committed by Mr. Rosenthal is $10,000 inclusive of aggravated damages.

[177] On the evidence before me, Dr. Rosenthal suffered no physical injury or psychological harm of a nature that is compensable as a result of Mr. Rosenthal shaving her pubic hair in order to make a plaster cast of her torso. But, the shaving was a violation of her right to personal autonomy and therefore entitles Dr. Rosenthal to damages. (B.M.B. v. Nova Scotia, para. 127)

[178] The damages include a component for aggravated damages. This is based on the battery having occurred in at least undignified if not humiliating circumstances. (see Norberg, at 263)

(iii) breach of fiduciary duty

[179] In assessing the damages resulting from Mr. Rosenthal’s breach of fiduciary duty towards Dr. Rosenthal by breaching her privacy interest by compelling her to expose her nude body to him, I must distinguish between the damages resulting from that breach and those resulting from Mr. Rosenthal’s denial of her being anything more than an object when she modeled for him. It is the latter, based on the evidence, which was the more damaging.

[180] The evidence amply attests to the challenges that Dr. Rosenthal faced and the mental and physical illness from which she suffered throughout her life. Mr. Rosenthal’s breach of fiduciary duty contributed to that suffering both by the direct emotional pain it caused Dr. Rosenthal and by increasing her vulnerability to the subsequent challenging events in her life.

[181] Putting a dollar figure on that suffering is difficult, but nonetheless required. Based on my analysis of the evidence as outlined, I assess the impact of Mr. Rosenthal’s breach of fiduciary duty at $40,000 including aggravated damages.

(iv) punitive damages

[182] I find that Dr. Rosenthal is entitled to punitive damages for breach of fiduciary duty based on both Mr. Rosenthal requiring her to model in the nude and on the sexual assault I have found him to have committed.

[183] As the McLachlin J. stated in Norberg at 299-300, punitive damages are awarded not for the purpose of compensating the victim for her loss, but with a view to punishing the wrongdoer and deterring both him and others from engaging in similar conduct future. As was the case in Norberg, given Mr. Rosenthal’s age, an award of punitive damages is unlikely to have much utility in terms of specific deterrent effect. However, based on my findings, Mr. Rosenthal’s conduct was intentional and deliberate and is sufficiently reprehensible and repugnant to community standards of decency to warrant an award of punitive damages. (see Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085 at 1107-1109).

[184] I make no reference to Dr. Rosenthal’s position with respect to punitive damages: no submissions were made on her behalf regarding such damages beyond their quantification at $50,000. I rely on the guiding principles governing awards for punitive damages set out in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595. Binnie J., at para. 111, stated that proportionality between the end sought to be achieved by an award of punitive damages, retribution, denunciation and deterrence, and the means of achieving that end, the damages award, is the key to the quantification of punitive damages. He continued, providing the following examples of dimensions of proportionality to be considered:

(a) proportionality to the blameworthiness of the defendant’s conduct,

(b) proportionality to the degree of vulnerability of the plaintiff,

(c) proportionality to the harm or potential harm directed specifically at the plaintiff,

(d) proportionality to the need for deterrence,

(e) proportionality with regard to other penalties, and,

(f) proportionality to the advantage wrongfully gained by a defendant from the misconduct.

[185] Of greatest significance in this case are the vulnerability of Dr. Rosenthal and the blameworthiness of Mr. Rosenthal. The blameworthiness is not limited to the conduct that forms the basis of my findings of liability against him but extends to the fact that he has, absent his providing any other explanation, deliberately chosen not to participate in the trial thereby showing no remorse for his conduct and showing disrespect for the judicial process. I have also taken into account that Mr. Rosenthal has not been subject to any penalty based on the acts I have found him to have committed as there have been no criminal proceedings against him.

[186] I award punitive damages of $25,000 for the sexual assault and $5,000 for the nude modeling.

(v) loss of income

[187] Dr. Rosenthal claims nearly $9 million for past and future loss of income. Her past loss of income claim is based on her being totally disabled from 1991 to 1996 and never being able to work more than three days a week; her future loss of income claim is based on her having to retire at age sixty-four instead of working full time to age seventy and then another five years teaching part-time.[^4]

[188] She relies on the expert opinion of Brad Borkwood, a chartered accountant and business valuator, for the calculation of her income loss.

[189] The primary difficulties with Mr. Borkwood’s analysis are that it is based on assumptions as to actual earnings for which there is a limited evidentiary basis, a flawed pre-judgment interest calculation, and assumes that that the loss calculated is entirely a result of the conduct for which I have found Mr. Rosenthal liable - an assumption that I have rejected.

[190] Dr. Rosenthal’s net past income is based largely on conjecture and extrapolation for all but a few years. Dr. Rosenthal does not have any records with respect to her earnings from 1977, the first year for which a loss is claimed, through 1987. While the amount attributed for her net income from 1988 to the present year is based on some documentation, for all but eight of those years, there are no detailed income statements, which Mr. Borkwood recognized as being important for the calculation of Dr. Rosenthal’s true income. The reliability of the figures used for Dr. Rosenthal’s net income is further reduced by the fact that from 2002 to 2007, the financial results of Dr. Rosenthal’s practice were reported as part of a corporation including her spouse’s practice, making it necessary for Mr. Borkwood to rely on discussions with Dr. Rosenthal and her spouse for information as to what expenses were attributable to Dr. Rosenthal.

[191] In order to estimate Dr. Rosenthal’s income for the years for which the necessary data is missing, Mr. Borkwood applied a regression analysis, using as the basis, the eight years for which he had detailed income statements. However, Mr. Borkwood did not suggest that this was a robust formula providing a consistently reliable analysis; rather, it was no more than the best prediction model based on the data available.

[192] There is no explanation for why there are no detailed income statements, though requested by Mr. Borkwood, for the years 2008 through 2010, amongst Dr. Rosenthal’s highest earning years. This period is within the seven years identified by Mr. Borkwood as being the length of time for which it is recommended that tax payers retain a copy of their returns. This casts further doubt on the reliability of the income figures.

[193] The loss calculations for the period from 1990 through 2010 are based on the gross fees of an average of psychiatrist revenues and all physician revenues found in the National Physician Databases for that period. The loss for the balance of the years is based on the calculation of the growth trends over that period. As the figures in the Databases include part time physicians, they may result in an underestimate of Dr. Rosenthal’s loss. On the other side of the ledger is the fact that no contingency has been applied to the past loss of income, in spite of one being appropriate, in my view, to reflect the possibility of Dr. Rosenthal’s income being reduced by such things as a decision to take time from practice to do less remunerative work such as research.

[194] The loss of income claimed includes pre-judgment interest totaling $4,721,000. This amount is based on a rate that is not in accord with s. 127 of the Courts of Justice Act and a method of calculation that is contrary to s. 128 of that Act. The action was commenced on September 9, 2011, making the applicable rate either 3% or 1.35%, depending on when the cause of action arose, not 9.25% which is the rate applied by Mr. Borkwood.

[195] The question of when the cause of action arose is addressed by Dr. Rosenthal in her affidavit evidence. She states that she did not fully realize the impact of what her father had done to her until 2011 when her granddaughter turned sixteen. It was only then that Dr. Rosenthal had the strength and courage to take action against her father. While there are other points in Dr. Rosenthal’s life that might be viewed as being when the cause of action arose, they are speculative. Based on Dr. Rosenthal’s evidence, I find that the cause of action arose in 2011, making 1.35% the applicable interest rate.

[196] The result is that the interest claimed is based on a rate almost seven times higher than the actual rate and is calculated over a period thirty-four years longer than allowable.

[197] The present value of Dr. Rosenthal’s future loss of income claim is $929,000 as of January 26, 2013, the date from which the calculation was done. It is based on information from Dr. Rosenthal that she would have continued to practice psychotherapy to age 70, rather than retiring at age 64, as she did, and following which she would have worked part-time teaching until age 75. This is unsupported by any evidence and is inconsistent with Statistics Canada figures for 2012, which shows the average retirement rate for self-employed women in Canada to be 65.9.

[198] Dr. Rosenthal acknowledges that her work as a psychotherapist exacerbated her own symptoms. As Dr. Kirsh put it, practicing psychotherapy put Dr. Rosenthal in a much more vulnerable state. Her work as a psychotherapist increased her irritability, reduced her patience and exhausted her, all making it necessary for her to take time away from her practice. Yet, she has continued to practice as a psychotherapist since 1985. I find that in doing so, Dr. Rosenthal contributed to her damages.

[199] Dr. Rosenthal testified that it would have been open to her to return to family practice, an area of practice that is more remunerative than a psychotherapy practice. Her evidence on cross-examination that she had found the pace of a psychotherapy practice less demanding than a family practice falls far short of justifying her choice of career from the perspective of her loss of income claim, given the evidence I have outlined.

[200] Dr. Rosenthal’s professional activities outside of practice give rise to further concern regarding the loss she claims. She acknowledged having published “a couple” of books, and of writing articles based on her research into the relationship between chronic fatigue and PTSD, work that she has found rewarding. But, it appears that she earned no income from either the books or the articles, both of which would have involved her time and energy, things she claims were in too short a supply to allow her to do remunerative work. Dr. Rosenthal is entitled to use her time as she chooses; however, she is not entitled to recover lost income unless the loss is a result of the conduct for which I have held Mr. Rosenthal to be liable.

[201] Based on the above, Mr. Borkwood’s opinion is of limited assistance. His calculations must be adjusted to account for the pre-judgment interest miscalculation and his conclusions must be discounted to reflect the extent to which they are based on either unsupported assumptions or assumptions that I have rejected and have failed to take into account Dr. Rosenthal’s contribution to her loss.

[202] I accept that Dr. Rosenthal has earned less over her working life as a result of her emotional and physical problems. I also accept that the acts I have found Mr. Rosenthal to have committed against her contributed to her loss of earnings. It is not possible to determine the amount of loss of income resulting from these acts on the basis of mathematical calculation.

[203] Applying a pragmatic approach to the consideration of the evidence, I find that the loss of income to which Dr. Rosenthal is entitled in this action is $450,000 for past loss of income and $45,000 for future loss of income. These amounts are, of necessity, an imprecise assessment of what is fair and reasonable.

[204] The past loss of income is arrived at using as its starting point Mr. Borkwood’s past loss calculation of $2,227,000. This amount is discounted to reflect both the unreliable nature of that calculation and Dr. Rosenthal’s contribution to her loss through her chosen career path. The resulting figure is further discounted by roughly two-thirds to reflect the extent to which the acts I have found Mr. Rosenthal to have committed contributed to the loss.

[205] The future loss of income recognizes that Dr. Rosenthal would likely have retired several years later than she did, but for the conditions from which she suffered. Applying the same criteria to the future loss of income as to the past loss of income for a period of about four years produces an amount of roughly $45,000.

CONCLUSION

[206] Dr. Rosenthal is entitled to non-pecuniary damages totalling $180,000 and pecuniary damages totalling $495,000.

[207] Dr. Rosenthal is entitled to pre-judgment interest on past loss of income of $450,000, at a rate of 1.35%

[208] Counsel may contact me through my assistant to arrange for cost submissions to be made, if desired.

Frank J.

Released: January 15, 2014

Rosenthal v. Rosenthal, 2014 ONSC 317

COURT FILE NO.: CV-11-434627

DATE: 20140115

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Susan Rosenthal

Plaintiff

-and-

Joe Rosenthal

Defendant

REASONS FOR JUDGMENT

Frank J.

Released: January 15, 2014

[^1]: The statement of claim alleges only sexual assault. However, prior to trial, the plaintiff confirmed that she was claiming damages based on sexual assault and sexual battery. The claim at paragraph 1 (i) is amended to include after the words “sexual assault”, “and battery”.

[^2]: These are outlined under the heading ‘damages’.

[^3]: Damages for battery are considered separately below.

[^4]: The claim for damages based on “unjust enrichment” was withdrawn.