P.M. v. Evangelista, 2015 ONSC 1419

COURT FILE NO.: 23030/04

DATE: 2015-03-03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

P.M.

Plaintiff

– and –

Livia Evangelista Administrator of the Estate of Luigi Evangelista

Defendant

Self-represented

Self-represented

HEARD: February 23-27, 2015

REASONS FOR JUDGMENT

THE HONOURABLE Justice a.d. Kurke

Overview

[1] The Plaintiff, P.M. claims damages against the Defendant Livia Evangelista Administrator of the Estate of Luigi Evangelista, for sexual assaults, threatening, and harassment allegedly committed against her by Luigi Evangelista in 2002 and 2004.

Part 1: Preliminary Matters

[2] This matter came on before me for trial February 23, 2015. The Claim was instituted by P.M. (“the Plaintiff”) on October 5, 2004, and a Defence was filed in December of that year. The sole defendant Luigi Evangelista passed away in January 2011, and the matter was continued thereafter in the person of his son, Mario Evangelista, as Administrator of Luigi Evangelista’s Estate. Mario himself passed away in November 2014, and an Order to continue issued December 8, 2014, continuing the action now in the person of Livia Evangelista, Mario’s widow, as Administrator of the Estate of Luigi Evangelista. In what follows, I will refer to Luigi Evangelista as “the defendant”, and the legal representative of his Estate as “the Estate”.

[3] Although the Plaintiff and the defendant were initially represented by counsel, the Plaintiff filed a Notice of Change of Solicitors January 30, 2014, undertaking to represent herself, and counsel got off record for the Estate on November 27, 2014. At the commencement of trial, Mr. Lepore attended before me on behalf of Livia Evangelista, the current Administrator. He moved under Rule 37.14, without Notice or materials, to set aside the Order to Continue that had named Livia Evangelista as Administrator of Luigi Evangelista’s Estate; he took no issue with the 2011 Order that had named Mario Evangelista as Administrator of the Estate. For Reasons given orally February 24, 2015, I dismissed that application. Mr. Lepore indicated that his retainer was limited to that issue, and he was excused from further attendance at this trial.

[4] At this point, the Administrator was not present, and no one was present to represent her. Accordingly, pursuant to Rule 52.01, the Court conducted an inquiry, on the evidence of the Plaintiff, to ensure that the Estate had been made aware of the trial dates of the matter: February 23 to 27, 2015. At the end of that evidence, I was satisfied that the Administrator was fixed with knowledge of the trial dates well in advance of trial, and I ordered that the matter would proceed, and that the Plaintiff would be permitted to try to prove her claim.

Part 2: The Evidence

The Plaintiff’s evidence

[5] The Plaintiff was the central witness. For the main outline of events, I found her credible, in that I find that she did her best to tell the truth. Details in her account provide more than a simple overview of events. She well described her dealings with the defendant’s documentation, recounted events that were going on at the time of incidents, and persons who were nearby on the occasion of events. She offered details, such as a shot of brandy in a cup of espresso, and calls and messages received on various occasions, and from whom, sufficient for me to conclude that her evidence was the product of her actual memory of events. Although the Plaintiff supplemented her initial evidence later in her evidence on several points, often in response to questions from the Court, I find that in this respect she had simply and unintentionally omitted details, not that she was attempting to go back and fabricate better details. I caution myself to bear in mind that the Plaintiff was representing herself in a strange forum, and coordinating many facts relating to a variety of circumstances.

[6] There are reliability issues in the Plaintiff’s evidence. The Plaintiff views herself as the victim of a virtual conspiracy of neighbours, family of the defendant, police, and the defendant’s lawyers to a degree that causes the Court some concern. But this aspect of the Plaintiff’s presentation revolves around the periphery of the case: the poor quality, as the Plaintiff sees it, of the police investigation, conflict issues surrounding the lawyers involved, threats made and bribes offered to her by friends of the defendant to get her to stop her pursuit of redress in the courts. I find that these views of events grew up during the decade that this matter has been outstanding, and represent a jaded view of the justice system occasioned by the Plaintiff’s growing frustration in her efforts to have her claim adjudicated. While I take these matters into account in assessing the Plaintiff’s evidence, I am satisfied that her account of the defendant’s conduct towards her is both credible and reliable.

[7] The Plaintiff is now 53 years old, resides in Sault Ste. Marie, and is self-employed doing bookkeeping and income tax preparation. She has two grown children, a son J.J.T., and a daughter. She first met the defendant when she was a 7-year-old student at St. Marks elementary school in Sault Ste. Marie, where the defendant was employed as a janitor. After the Plaintiff’s parents divorced, the Plaintiff moved to Hamilton.

[8] The Plaintiff later returned to Sault Ste. Marie. She purchased a home on P[…]Street in 1983 or 1984 with her now ex-husband M.T.. The defendant lived two doors down. At this period in her life, the Plaintiff knew the defendant as a neighbour, and looked to him as a grandfatherly figure whom she would see at neighbours’ homes and neighbourhood gatherings. All the significant events that constitute the allegations of sexual assault, threat, or harassment of the Plaintiff occurred at the defendant’s or Plaintiff’s homes on P[…] Street, in the City of Sault Ste. Marie, Ontario.

[9] The defendant’s wife Tilda passed away in 2002 or 2003. Mike Coccimiglio, a neighbour whose house was beside and on the other side of the Plaintiff’s house from the defendant’s house, asked the Plaintiff to help the defendant with his taxes, as the defendant would generally just throw important documents in his recycling bin. The Plaintiff helped the defendant with his documents. At around this time, the defendant was 80 years old, but looked younger. He was shorter than the Plaintiff, but was very strong. He gardened, cleared his own snow, and could lift heavy items. His English was poor; he spoke a dialect of Italian which the Plaintiff could partially understand because she knew some Spanish.

The 2002 or 2003 incident

[10] The Plaintiff described an incident that she initially stated had occurred in the summer of 2003, in which the defendant grabbed and squeezed her left breast from behind in the kitchen of his home, when the Plaintiff was assisting her friend Maria Coccimiglio with coffee preparation, but after her friend had gone outside. The defendant told the Plaintiff that she had small breasts, and the Plaintiff told the defendant not ever to touch her again. She told Maria what had happened, and Maria assured her that the defendant had only done it as a joke. Mike Coccimiglio told the defendant not to touch the Plaintiff again. For clarification, the Court asked the Plaintiff whether this incident had occurred in 2002 or 2003, as the Statement of Claim alleged it had occurred in 2002. The Plaintiff indicated that she may have gotten the year mixed up.

[11] After this incident, the Plaintiff kept her distance from the defendant until October or November 2003, when Mike Coccimiglio asked the Plaintiff to once again help the defendant with his papers. She did so.

The January 2, 2004 incident

[12] The Plaintiff’s son J.J.T. visited her in her Sault Ste. Marie home at Christmas 2003. On January 2, 2004, the complainant brought her son to the bus terminal to catch his 7:00 or 7:30 p.m. bus back to Toronto. She came home to find messages on her answering machine from the defendant and Billy Barrow, an acquaintance of hers, inviting her to the defendant’s home. Mr. Barrow called again, inviting the Plaintiff over because of the holiday season, and telling her that the defendant had a paper that he wanted the complainant to look at. She went over.

[13] At the defendant’s home, the Plaintiff had espresso with a shot of brandy. She looked at the paper, and spoke about it with the defendant. She was going to the door to leave, while Mr. Barrow was not present, when the defendant grabbed both her breasts from behind. He then took her hands and put them on his penis. The defendant asked her if she wanted to go to the casino, but the Plaintiff, who had not wanted this touching to happen, said she wished to go home. She waited outside for Mr. Barrow, and told him what had happened. He walked her home.

The January 3, 2004 incident

[14] The next day, January 3, 2004, the defendant kept calling the Plaintiff, but she refused to answer the phone. She knew it was the defendant from the caller identification feature on her telephone. Maria Coccimiglio also called her to get her to look at a paper of the defendant’s. The Plaintiff did not want to go to the defendant’s home that evening, but eventually did so, as the defendant wanted the Plaintiff to explain the document to his son Mario. The Plaintiff spoke with Mario on the telephone from the defendant’s house. It was after 9:00 p.m., and the Plaintiff put her coffee cup near the kitchen sink, and got up to get her sweater and leave.

[15] As the Plaintiff was going to the door, the defendant, who was behind her, grabbed her by the left arm. She turned slightly, and observed that the defendant had his penis exposed. She tried to push the defendant away, but he pushed her into a bedroom. The Plaintiff fell backwards onto the bed. The defendant got on top of her. The defendant was very heavy; she herself weighed 122 pounds. The Plaintiff started kicking the defendant to get him away. She did not want the defendant to touch her. She told the defendant to stop, she told him “no”, and she told him to leave her alone, and to let her go. The defendant told her “Jesus me Christ [sic]. I love you.” The Plaintiff told him, “No, Luigi. You do bad.” She attempted to get away from him and leave.

[16] The defendant had pushed the Plaintiff’s pants half down. As the Plaintiff struggled, the defendant penetrated the Plaintiff with his penis. The Plaintiff tried to stop him with her hands, and “could feel semen”. The incident felt to her like it went on forever. The Plaintiff vomited at some point. She finally got away, and went to the exterior door, but was at first unable to turn the handle. The defendant cornered her at the door, first pushing into her face a folded fifty dollar bill, and then threatening that if she told anyone, including Maria, he would kill her and himself. The Plaintiff was finally able to get the door open, and she left.

[17] The Plaintiff ran home, locked her door, and started to cry. She did not know what to do. She wanted to call the Coccimiglios, but there was a car in their driveway that she did not recognize, and she was concerned about who might be at their home. The defendant came to her house and started banging at her door, but she did not answer it. She was afraid that he was going to shoot her and himself. The Plaintiff recognizes that she should have called police immediately, but she decided to try to deal with it on her own.

[18] The next day, after speaking with the Coccimiglios, the Plaintiff went to the Sault Area hospital. The Coccimiglios spoke to the police, and an officer met with the Plaintiff at the hospital. None of the Coccimiglios were summoned to trial, but the Plaintiff testified that Maria had since passed away, and the Plaintiff was no longer in contact with Mike. Police laid charges against the defendant, which were later withdrawn at some later point.

[19] Nursing notes from the hospital described the Plaintiff as teary and very tired looking (Exhibits 1 and 2) on January 4 and 5, 2004. The Plaintiff returned to the hospital on January 5, as she had left the hospital before her examination was complete on January 4, because police insisted on taking a statement from her that day. The Plaintiff testified that her right shoulder and neck and upper chest felt stiff at the hospital, and she was experiencing cramping in her vaginal area, as a result of the January 3 incident. An appointment was made for the Plaintiff to see Dr. McMichael, from whom she received a shot against HIV infection.

Effects on the Plaintiff

[20] As a result of what had happened at the hands of the defendant, the Plaintiff testified that she had markings, scratches, or bruising on her wrist, knee, and between her breasts. She also explained that internal hernia stitches that had been put in place in 2003, appear to have come undone as a result of her violent handling by the defendant on January 3, 2004. Prior to that incident, she had had no problem with them. This injury manifested itself as severe pain in her upper abdomen that endured for many months after the event; as late as 2005, the Plaintiff was reporting this pain to medical professionals. Along with the pain, the Plaintiff began vomiting blood shortly after the incident; this issue got worse over time. The Plaintiff was unable to eat or sleep, and lost ten pounds by April 2004, when she was treated for anemia. It was not until she had surgery in 2008 that the abdominal pain was completely resolved, although the Plaintiff testified that the surgery also dealt with a tumor that doctors had found.

[21] Emotionally, the incident of January 3, 2004 was devastating to the Plaintiff. She had previously been friendly with the defendant, although the earlier incidents had put her on guard. Now his proximity to her home made her feel like a prisoner. She was afraid to leave her home. She would become nauseous when she saw the defendant in the neighbourhood. She used to be an active person, and had coached boys’ baseball, but had to stop doing that. She took counselling at the Sexual Assault Care Centre on Queen Street for a year and a half, and engaged in traditional native healing. She was having trouble coping with what had happened, experienced anxiety, suffered from nightmares, and had trouble sleeping, all of which she regularly reported to medical personnel over the months following the January 3 incident. Among other things, the Plaintiff was prescribed medication in March 2004 to help her sleep. The January 3 incident affected the Plaintiff’s ability to work, as she could not concentrate from lack of sleep. Her then-husband blamed her for what had happened to her.

Events following the January 3, 2004 incident

[22] Following the incident on January 3, 2004, the defendant constantly came to the Plaintiff’s home, four or five times a day. He banged on her door, but she would not answer. He would go up her neighbour’s driveway, and look in her windows. On one occasion, when the Plaintiff was shovelling her steps, the defendant approached her, even though he was not supposed to, according to the terms of a recognizance. The Plaintiff ran into her house. She heard his voice in the background during calls and messages made to her by the Coccimiglios, who sometimes spoke to her (but in the absence of the defendant) of taking money to end the criminal proceedings against the defendant. The Plaintiff testified that she rented another home in the east end of the city in 2006 far from the house she still owned on P[…] Street, because she could not take the harassment anymore. By this, I understand the complainant to mean harassment not only by the defendant, but also by his friends and family. The Plaintiff spoke of her car being bombed, and a target being affixed to her door, but was unable to say from her own knowledge who had done these things.

The evidence of J.J.T.

[23] The Plaintiff’s evidence was interrupted to permit her son J.J.T. to testify by video conference from Toronto, pursuant to Rule 1.08(1)4. Mr. J.J.T. had been involved in treatment for a blood disorder at St. Michael’s Hospital, and was unable to attend court personally. Video conferencing permitted Mr. J.J.T.’s evidence to be properly received.

[24] I found Mr. J.J.T. to be a well-spoken witness, who was obviously telling the truth about what he knew, but was just as obviously not completely unbiased in his assessments. His diagnosis of his mother as being afflicted with Post Traumatic Stress Disorder I view only as an indication of how affected he saw his mother to have been by what was going on in her life. Leaving aside Mr. J.J.T.’s personal opinions and assessments, I found that his observations and narrative of events were credible and reliable.

[25] Mr. J.J.T. is 35 years old, and lives in Toronto. He studied architecture at the University of Toronto, and just completed a work contract in December 2014. From the age of six, Mr. J.J.T. knew the defendant, who lived two doors down on P[…] Street. He described his mother the Plaintiff’s relationship with the defendant as friendly and neighbourly; she prepared the defendant’s taxes. In 2003 or 2004, Mr. J.J.T. believed the defendant to be in his early 60s. He was five foot three or four inches in height, and he seemed to be in charge of his faculties, and in an acceptable state of health. Mr. J.J.T. had observed the defendant to operate a snowblower to clear his and other peoples’ driveways.

[26] Mr. J.J.T. visited his mother around Labour Day 2003 from Toronto with his friend Dr. David Blais. They went to supper at the Coccimglios’ residence, where the defendant was also present. Mr. J.J.T. described an argument between Mike Coccimiglio and the defendant, in which the two raised their voices at one another in Italian. Mr. J.J.T. learned from the Plaintiff that the argument had been about her. The Plaintiff later explained in the continuation of her evidence that the argument had occurred because the defendant had been kicking her under the table, and Mike Coccimiglio argued with him that he had told the defendant not to touch her after the 2002 or 2003 incident. I do not make much of this Labour Day incident, and caution myself that the Plaintiff heard her son’s discussion of it in his evidence before offering her own testimony on the subject.

[27] Mr. J.J.T. returned to Toronto after another visit to his mother at the beginning of January 2004. It was his regular practice to call her every Sunday. Sunday January 5 he was unable to reach her, which was unusual, and he kept calling. The Plaintiff called him. She was quiet at first. When her son asked her what was wrong, she broke down sobbing, and was barely able to get any words out. She finally told him, in the course of sobs, that “Luigi raped me”.

[28] In the period following the January 3 incident, Mr. J.J.T. was either present on many occasions when the Coccimiglios called his mother, or heard recordings afterwards that his mother had saved; in some of them he could hear the defendant in the background. In one recording, he heard Maria repeat “not true” several times. Mr. J.J.T. observed the defendant circling his mother’s home more often than he had in the past, and even once observed the defendant to look into her mailbox. He could see by her appearance that his mother felt threatened; she would shake, pace, and be nervous.

[29] Mr. J.J.T. was also of the view that the Plaintiffs neighbours had aligned themselves with the defendant. He once picked up the Plaintiff’s car in which the brake lines had been cut, and one neighbour improperly cut down the Plaintiffs shrubs. He noticed people out in front of the house looking in. He helped his mother set up a surveillance camera. He described it as “not a pleasant environment”. Eventually his mother found a different place to live.

[30] Mr. J.J.T. described his mother as quite sociable before the January 2004 events. She had taken part in community organizations, and was a very happy, strong, and confident woman. Physically, he described his mother as a petite woman who had suffered from fibromyalgia prior to 2004, and he was aware of multiple operations that she had undergone to treat a hiatus hernia in her abdomen. After the 2004 incidents with the defendant, Mr. J.J.T. described that his mother lost her confidence and became socially isolated. She was afraid to go out in public. She was hospitalized in a psychiatric ward between July 25, 2005 and August 16, 2005.

Exhibits in the case

[31] I admitted into evidence as Business Records within the meaning of s. 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23, several documents produced by the Plaintiff during the presentation of her evidence (Exhibits 1-4, 6-7). Exhibit 5 at trial was the Plaintiff’s Affidavit of Documents, which includes, among many others, all of the materials admitted into evidence. The Plaintiff testified that this Affidavit and the materials to which the Affidavit referred were served on counsel for the Estate in October or November 2014, thus providing ample Notice. I am satisfied therefore that the materials came to the attention of the Estate, and that counsel and the Estate were thereby aware of the self-represented Plaintiff’s intention to introduce those records at trial.

[32] Exhibits 1-4 and 6-7 are either hospital records or records kept by the Sault Ste. Marie Police Service. Any issues as to the making of the records I find to be a matter concerning the weight to be accorded to the records, rather than admissibility. Certainly, the Plaintiff was present for the making of the hospital records. Exhibit 9 is a CD of various pieces of video footage taken by the Plaintiff of conduct attributed to the defendant. Other Exhibits filed were of such tenuous relevance that I was able to make little of them in the assessment of the evidence in the case. I have referred to Exhibits 1 and 2 above in these Reasons, and will make further reference to relevant portions of the Exhibits below.

Part 3: Analysis

Battery and assault

[33] The Plaintiff’s claims of sexual assault fall under the heading of the tort of battery. A battery is “the intentional infliction of unlawful force on another person”, or “an unprivileged and unconsented to invasion of one’s bodily security”. Consent to that application of force, whether express or implied, is a defence, but the consent must be genuine; it is not genuine if it is extorted by force or under duress: Norberg v. Weinrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at paras. 26 and 121. In an action for battery, the plaintiff bears the burden of proving the direct contact in issue, at which point the burden shifts to the defendant to prove consent: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 43.

[34] A threat to cause harm to another person can be considered a tortious assault, so long as the threat of harm is imminent, such as the shaking of a fist or the waving of a knife at a person to signify a forthcoming blow (see Linden and Feldthusen, Canadian Tort Law, 9th ed. (Markham: Lexis Nexis, 2011), at 47-49). In this case, I find that the defendant’s threat to the Plaintiff after the January 3, 2004 incident was not of imminent attack, but rather contingent on a future event: he would kill her and himself if she told anyone else about the sexual assault. Accordingly, it is not my intention to deal with this aspect of the evidence under the heading of battery or assault, but rather as part of the claim concerning harassment.

Harassment

[35] The Plaintiff also makes a claim for harassment. The elements of this still-developing tort include: outrageous conduct by the defendant; the defendant’s intention of causing or reckless disregard of causing emotional distress; the plaintiff’s suffering of severe or extreme emotional distress; and actual and proximate causation of the emotional distress by the defendant’s outrageous conduct: Savino v. Shelestowsky, 2013 ONSC 4394, [2013] O.J. No. 3302 (Sup. Ct.), at paras. 15-24; Lynch v. Westario Power Inc., [2009] O.J. No. 2927 (Sup. Ct.), at paras. 66-69.

[36] On this heading, I note that much of the cause of the Plaintiff’s ongoing extreme emotional distress were the events of January 2 and 3, 2004. Further, I caution myself that the Plaintiff complained of many stressors that cannot be directly laid at the feet of the defendant: the callous conduct of the defendant’s family, the poor police investigation of this matter (as the Plaintiff saw it), her struggles in the courts, the withdrawal of the criminal charges contrary to her wishes, her betrayal by those whom she believed to be her friends, damage to her car, a target left on her door, despoliation of her hedges by a neighbour friendly to the defendant.

The Requirement for Corroboration

[37] In the circumstances of this case, the defendant Luigi Evangelista is deceased, and his place in the proceedings has been taken by “Livia Evangelista Administrator of the Estate of Luigi Evangelista”. The Plaintiff has raised three batteries as being at issue: one in the Summer of 2002 or 2003; one on January 2, 2004; and one January 3, 2004. In the Plaintiff’s description of each of these batteries, no one was immediately present except for the defendant and herself. As explained above in these Reasons, neither Livia Evangelista nor counsel on her behalf were present for the trial of this matter; no evidence was called on behalf of the defence.

[38] The logic of the case would appear to indicate that, if I am satisfied by the Plaintiff that the batteries are made out, then a finding of the defendant’s responsibility must follow, as no evidence of consent has been adduced on his behalf to satisfy the burden on the defence. There was certainly no evidence of consent in the Plaintiff’s evidence. But in fact, that does not end the analysis. For, as McLachlin J. pointed out in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 25, a perceived unfairness might lie in a situation such as this one, in which the defendant is no longer alive to testify and establish consent, were it not for the operation of the Ontario Evidence Act, s. 13:

…Even if a plaintiff were to bring an action in sexual battery against the estate of a deceased defendant, many provincial and territorial evidence acts would not allow the plaintiff to obtain a judgment against the estate unless her evidence were corroborated by other material evidence: see Evidence Act[] of … Ontario, R.S.O. 1990, c. E.23, s. 13, … .

[39] Section 13 of the Ontario Evidence Act provides:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

The rationale behind this rule is obvious: to ensure that a court “always have present in its mind the danger of relying too implicitly upon the evidence of the living in establishing a claim against the dead”: Bayley v. Trusts and Guarantee Co., 1930 CanLII 427 (ON CA), [1931] 1 D.L.R. 500 (Ont. C.A.), at 505.

[40] This corroborative evidence must come from an extraneous source, must be relevant to a material fact in issue, and must tend to show that the witness being corroborated is telling the truth: Pepe v. State Farm Automobile Insurance Co. (2011), 2011 ONCA 341, 105 O.R. (3d) 794 (C.A.), at para. 15. In the Pepe case, Doherty J.A. starkly likened the situation to that of the corroboration requirement for a “Vetrovec” witness in a criminal case, citing Dickson C.J.C. that “[t]he reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth.”

[41] But there is another side to the issue that a court must always have present in its mind in applying s. 13 of the Ontario Evidence Act. This provision also represents a hurdle that can operate unfairly in a legal climate in which in most other situations, even in the criminal law, the evidence of a single witness can be assessed on its own merit, and satisfy even a criminal burden of proof. Arguably, the rule in s. 13 of the Evidence Act serves to favour the dead over the living, and appears to distrust the ability of a court to assess the truth of a witness using its usual tools: see Brisco Estate v. Canadian Premiere Life Insurance Co. (2012), 2012 ONCA 854, 113 O.R. (3d) 161 (C.A.), at paras. 59-62 (per Rosenberg J.A.).

[42] This can be seen in the circumstances of this case. The Plaintiff has been loudly and repeatedly trumpeting her complaint since 2004, in a variety of contexts. The defendant passed away only in 2011, long after the claim was instituted. Was it only in 2011 that the Plaintiff had “good reason to lie”, because she knew that the defendant could no longer provide evidence in his own defence? What of the Plaintiff’s consistent push for the matter to be heard prior to 2011? In my view, section 13 of the Evidence Act should be wielded as a shield to protect the dead from the dishonest claims of the living, but should not be permitted to serve as a sword to cut short the search for the truth, when the circumstances of the case give no cause for concern about any implicit dishonesty on the part of a living party.

[43] Nevertheless, I caution myself that there must be corroboration for each heading of claim if judgment is to be given in favour of the Plaintiff.

[44] In this case, there is corroboration of material aspects of the Plaintiff’s account from the following sources:

a. The evidence of the Plaintiff’s son that very shortly after the January 3 incident, he spoke to his mother, who was in extreme emotional distress as she described to him what had happened to her at the hands of the defendant. I find that this is extremely corroborative that the Plaintiff had been the victim of a serious non-consensual sexual battery by the defendant, a material fact in issue. I find that, even without any other pieces of corroboration, this corroboration would suffice in the circumstances of this case to establish the January 3, 2004 sexual battery: R. v. Murphy, 1976 CanLII 198 (SCC), [1977] 2 S.C.R. 603, at 617; R. v. Woollam, 2012 ONSC 2188, [2012] O.J. No. 3867 Sup. Ct.), at para. 48;

b. The observation of the hospital staff on January 4 and 5, 2004 (Exhs. 1 and 2) that the Plaintiff was “teary” on examination. Again, this is corroborative that the Plaintiff had been the victim of a non-consensual sexual battery, though obviously of significantly lesser weight than the detailed evidence of J.J.T.;

c. The observation of the hospital nurse on January 4, 2004 (Exh. 1) that the Plaintiff had a small superficial scratch on her inner right wrist, and a small bruise on her right knee. I find these injuries to be consistent with the Plaintiff’s struggle against the defendant on January 3, 2004, a material fact in issue, and corroborative of the account given by the Plaintiff of her physical injuries;

d. The observation of the physician or nurse examiner on January 5, 2004 at the Sault Area Hospital on the Sexual Assault Forensic Evidence Form that the Plaintiff had a 1 to 1.5 cm. mark between her breasts (Exh. 6). I find that this corroborates the Plaintiff’s account of the January 2, 2004 incident of breast grabbing by the defendant, and the account given by the Plaintiff of her physical injuries;

e. The evidence of J.J.T. that he had witnessed the defendant looking into his mother’s mailbox and circling his mother’s home more often after January 3, 2004 than previously, coupled with his evidence of hearing calls to his mother from the Coccimiglios with the defendant in the background, corroborate the Plaintiff’s evidence concerning her harassment by the defendant.

f. The CD put into evidence by the Plaintiff (Exh. 9) shows the defendant in one video clip with two women crossing the Plaintiff’s property and apparently going up to the Plaintiff’s house. I find that this corroborates the Plaintiff’s account of the harassment engaged in by the defendant against her.

Part 4: Conclusion

[45] On the balance of probabilities I find that:

(a) in the Summer of 2002 or 2003, the defendant Luigi Evangelista intentionally grabbed the Plaintiff’s breast and squeezed it. He told her that her breasts were small. The Plaintiff was upset by this, and told the defendant that what he did was wrong. The Plaintiff did not consent to this contact. This grabbing constitutes a sexual battery.

(b) On January 2, 2004, the defendant Luigi Evangelista grabbed both the Plaintiff’s breasts with his hands from behind the Plaintiff, and then took the Plaintiff’s hands and put them on his crotch. He did this without the Plaintiff’s consent. All these contacts constitute sexual battery.

(c) On January 3, 2004, the defendant Luigi Evangelista pushed the Plaintiff into a bedroom, and onto a bed. He got on top of the Plaintiff as she struggled against him, told him to stop, and kicked at him. He took down the Plaintiff’s pants and penetrated her vagina with his penis. It was obvious that the Plaintiff was not consenting to these contacts. The defendant told her that he loved her. I find that the contacts involved in this incident constitute sexual battery.

(d) On January 3, 2004, the defendant threatened to kill the Plaintiff if she told anyone about what he had done to her. He followed after the Plaintiff to her home and pounded on her door after she had run from his home. From January 3, 2004 forward, the defendant continued to act outrageously towards the Plaintiff by besetting her home, approaching her, pounding on her door repeatedly, looking in her windows and mailbox, and instigating calls to her from other persons. He knew, at least by the fact of the Plaintiff’s emotional upset and the charges laid against him, that the Plaintiff wanted nothing to do with him, but he did not care how she felt about his conduct. The Plaintiff suffered extreme anxiety as a result of the defendant’s conduct. The defendant’s conduct was the actual and proximate cause of much of the Plaintiff’s distress. I find the defendant committed harassment against the Plaintiff.

[46] However, I find, on the totality of evidence in this matter, that there is no sufficient corroborative evidence, in the sense of s. 13 of the Evidence Act, for the allegation of sexual battery from the Summer of 2002 or 2003. In any event, given the Plaintiff’s uncertainty about the year in which that incident occurred, I am not satisfied that that incident occurred within two years of the issuance of the Plaintiff’s Statement of Claim, as required by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 15(2). Accordingly, that aspect of the Plaintiff’s claim is dismissed.

[47] I find that the Plaintiff suffered very real and long-lasting physical and emotional trauma as a result of the defendant’s January 2004 sexual batteries against her and the harassing conduct that the defendant levelled at her following those sexual batteries. The Plaintiff’s physical and emotional symptoms are described above, both in her own evidence and the evidence of her son. I need not repeat them here, but I simply state that I accept that the bulk of what she suffered stemmed from the defendant’s misconduct towards her on January 2 and 3, 2004 and the harassment that followed. In so ruling, I take into account what I have noted above about only attributing to the defendant what can be linked by evidence to his own conduct or conduct instigated by him.

[48] I specifically find that the January 3, 2004 sexual battery caused internal damage of some kind to the Plaintiff. However, in the absence of medical evidence, I am not satisfied that that damage was related to the Plaintiff’s earlier hernia repair, as she believed and stated in her evidence.

Damages

[49] The Plaintiff claims $50,000 damages. On January 2, 2004, Luigi Evangelista demonstrated his churlish contempt for P.M. by grabbing her breasts and putting her hands on his crotch, when he should have treated her with kindness and respect for her generous assistance to him. The following evening, when Ms. P.M. re-attended Mr. Evangelista’s home, at the urging of friends, to help explain a document to his son, Mr. Evangelista forced sexual intercourse upon her, causing her long-term physical and emotional harm, and threatened to kill her if she told anyone. Mr. Evangelista followed this up with a lengthy period of harassment that left Ms. P.M. emotionally drained.

[50] I award to the Plaintiff damages against Luigi Evangelista and the Estate of Luigi Evangelista as follows:

General Damages for Sexual Battery: $45,000

General Damages for Harassment: $5,000

Pre-judgment interest from October 5, 2004 in accordance with the Courts of Justice Act

[51] I do not find it appropriate in the circumstances of this case to award punitive or exemplary damages against the defendant, as his death negates the main purpose to be served by such awards.

Costs

[52] The Plaintiff has been successful in her claim, and is entitled to substantial indemnity for her costs. Her Claim was issued by Albert Ferranti, who was succeeded as counsel by Eric McCooeye. Unfortunately, the Plaintiff was unable to produce any receipt that itemized costs related to this Action. A receipt from Mr. Ferranti, part of Exhibit 10, appears to relate to dealings with real property rather than a civil action.

[53] I permitted the Plaintiff to testify about her costs. She attributed $4,500 to Mr. McCooeye’s retainer, and an amount to Mr. Ferranti which is unsupportable, and likely takes into account many legal activities that have nothing to do with this civil action. In this case, Mr. Ferranti prepared a Statement of Claim, had an administrative dismissal set aside, and conducted a pre-trial. The Plaintiff also filed various receipts for such expenses as filing fees, copying costs, and witness transportation, for the period when she had personal carriage of the case. I assess the value of Mr. Ferranti’s work and the Plaintiff’s expenses to total a further $4,000.

[54] In the result, I fix Costs to the Plaintiff against Luigi Evangelista or the Estate of Luigi Evangelista at $8,500, inclusive of expenses and taxes.

The Honourable Justice A.D. Kurke

Released: March 3, 2015

CITATION: P.M. v. Evangelista, 2015 ONSC 1419

COURT FILE NO.: 23030/04

DATE: 2015-03-03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

P.M.

Plaintiff

– and –

Livia Evangelista Administrator of the Estate of Luigi Evangelista

Defendant

REASONS FOR JUDGMENT

Justice A.D. Kurke

Released: March 3, 2015