S.L. v. Prince, 2015 ONSC 7450

COURT FILE NO.: 3807/07

DATE: 2015-11-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.L.

Plaintiff

– and –

FATHER BERNARD PRINCE

Defendant

M. Claire Wilkinson, for the Plaintiff

HEARD: February 2 & 6, 2015

REASONS FOR JUDGMENT

CORRECT DECISION

Corrected Decision: The text of the original judgment was corrected on February 2, 2016 and the description of the correction is as follows:

Paragraph 12, fifth sentence, the first instance of ‘S.L.’ is changed to read ‘Prince’

fitzpatrick j.

[1] This action arises as a result of a series of sexual assaults committed by the Defendant, Father Bernard Prince, on the Plaintiff, S.L.. The assaults occurred between 1976 and 1979, approximately. The Plaintiff was between 13 and 16 years old during this period. Since Prince was in a position of trust and authority over S.L. at the time of the assaults, and because S.L. was not psychologically capable of bringing this action earlier than he did, there is no issue regarding the limitation period for this claim: see Limitations Act, S.O. 2002, c. 24, Sched. B, ss. 10(1) and 16(1)(h).

[2] The Plaintiff claims general damages in the amount of $500,000, special damages in the amount of $1,400,000, and punitive damages in the amount of $500,000. However, in his factum the Plaintiff asks for $50,000 in punitive damages.

Issues

[3] In January 2008, Father Prince was criminally convicted of sexually assaulting the Plaintiff, along with 12 other boys during the same period. According to F.(K.) v. White (2001), 2001 24020 (ON CA), 53 O.R. (3d) 391 (C.A.), at paras. 29 and 55, a criminal conviction is prima facie proof of the facts underlying that conviction, subject to rebuttal.

[4] The facts underlying this tort action are identical to the facts underlying the Defendant’s criminal conviction. The Defendant has brought no evidence to rebut the prima facie proof of the facts underlying his criminal conviction. Therefore, the facts imposing liability on the Defendant have not been disputed and the Defendant’s criminal conviction can be relied on as proof of those facts. The only remaining issue in this litigation is the quantum of damages to which S.L. is entitled.

The assaults

[5] S.L. had a close relationship with Father Bernard Prince as a child, going right back to when he was born. S.L. was born into a religious family. He was given the middle name ‘Bernard’ in Prince’s honour. Prince baptized S.L.. Prince, by virtue of his status as a ‘rising star’ in the Catholic Church, was held in extremely high regard by the S.L. family.

[6] When S.L. was a child, the S.L.’ family frequently had Prince visit them in their home, and they would visit him while in his hometown of Wilno, Ontario. During these visits Prince would conduct private masses and perform other priestly functions. As a result of these interactions, S.L. developed a deep respect for Prince and grew to admire him.

[7] Prince first abused his position of trust and respect by behaving inappropriately with S.L. when S.L. was around 13, at the time of his grandfather’s funeral. S.L. and Prince were forced to share a bed due to cramped sleeping arrangements. S.L. awoke in the morning with Prince’s arm around him, and felt the priest had an erection which he was pressing up against S.L..

[8] The first significant assault occurred during the summer after S.L. finished Grade 7, when S.L. visited Prince at his cottage in Wilno for a couple of weeks. On this occasion, S.L. was alone with Prince. Prince offered alcohol to S.L.. S.L. accepted. Prince then asked S.L. to rub lotion on his sore back. He encouraged S.L. to ‘straddle’ him on the bed to apply the lotion, and eventually take his clothes off. Prince also removed his own underwear. Prince then caressed and fondled S.L.. He touched S.L.’ penis and he placed S.L.’s hand on his own erect penis. He encouraged and attempted to reassure S.L. throughout. S.L. told Prince he was uncomfortable and wanted to leave, and he eventually did so. Prince invited him to sleep in his bed that evening. S.L. declined.

[9] After this initial assault, Prince initiated sexual touching and mutual masturbation several times during S.L.’ visit. He got into the shower with S.L. on multiple occasions. S.L. estimates there were two instances of sexual contact with Prince a day throughout his two week visit to the Wilno cottage.

[10] The next summer, S.L.’s parents insisted that he visit Prince at his apartment in Ottawa. During this visit he was forced to share a bed with Prince. Prince slept naked and pressed up against S.L., sometimes with an erection, for the first few nights. Prince tried to touch S.L.. S.L. refused to participate. S.L. eventually began sleeping on the couch to avoid Prince’s advances.

[11] Each of these incidents left S.L. confused and feeling as though he had done something wrong. He was afraid to tell anyone about what happened. He grew to despise Prince for these assaults and the emotional effect they had on him. Despite these feelings, S.L. was forced to continue seeing Prince due to his family’s continued fondness and respect for him, and because of S.L.’s own inability to tell them what happened.

[12] Prince pleaded guilty to assaulting 12 boys during this period. He pleaded not guilty to the allegations brought forward by S.L.. S.L. endured a criminal trial. Prince was convicted following the trial. In the face of the criminal conviction, Prince continues to deny that he sexually assaulted S.L..

[13] There is no doubt based on the evidence before me that, as a result of the assaults, S.L. has suffered and continues to suffer serious psychological damage which has affected and continues to affect all aspects of his life. He has incurred past and future income losses, he will incur future care costs, and he has suffered significant pecuniary losses.

Damages claimed

[14] S.L. claims damages under three headings: general, special and punitive. While each of these claims will be discussed in turn, some clarification regarding the different heads of damages is warranted.

[15] While general and special damages are both meant to compensate the plaintiff, they are distinguishable. “General damages flow in the ordinary course from the injury inflicted by the wrongful act, and special damages are losses or expenses up to the trial as a result of the injury to which a specific monetary figure can be assigned”: see Spittal v. Thomas, [2006] O.J. No. 1616, at para. 9. Special damages must be specifically pleaded and proven: see Spittal, at para. 9.

[16] In a case of sexual battery, general damages would include the non-pecuniary losses suffered by the plaintiff as a result of the battery, while special damages would include pecuniary losses such as the cost of therapy and lost income: see Whitfield, at paras. 68 and 73.

General damages

[17] An assessment of S.L. was conducted by a psychologist, Dr. Rosemary Barnes, in December 2008. The resulting report details the psychological damage suffered by S.L. as a result of Prince’s assaults. At pages 29-30 of her report, she makes three psychiatric diagnoses based on her findings:

(i) Chronic Posttraumatic Stress Disorder;

▪ Mr. S.L.’s reactions likely met criteria for Posttraumatic Stress Disorder (PTSD) just after the time of Father Prince's first series of sexual assaults when Mr. S.L. was age 13-14; these symptoms have fluctuated in intensity, but never fully resolved. His current symptoms are consistent with a diagnosis of PTSD and include extreme anxiety reactions, intrusive thoughts about experiences with Father Prince, nightmares, efforts to avoid thoughts, feelings or conversations associated with trauma, feelings of detachment or estrangement from others, sleep disturbance, anger and irritability, hyper vigilance and difficulties in concentration.

(ii) a Single Episode of Major Depressive Disorder; and

▪ Mr. S.L. appears to have suffered from a Major Depressive Disorder during his high school years when he reports depressed mood, sleep disturbance, impaired concentration, a sense of worthlessness and suicidal thoughts.

(iii) Dysthymic Disorder

▪ Since the time of his initial exposure to Father Prince's sexual abuse at age l3-14, Mr. S.L. has suffered from unhappiness, low energy, hopelessness, sleep disturbance, impaired concentration and poor self-confidence.

[18] Dr. Barnes makes the following comments starting at page 22 of her December 18, 2008, report:

2. The extent to which Mr. S.L.’ experiences with Father Prince adversely affected his psychological well-being. Father Prince’s initiating a sexually abusive relationship with Mr. S.L. significantly increased Mr. S.L.’ risk for psychological difficulties including post-traumatic and depressive symptoms, impaired psychological development, behavioural problems, relationship problems, poor educational achievement and employment difficulties.

Mr. S.L. grew up in a loving and stable family. He and a sister were diagnosed with juvenile diabetes at a young age; he appears to have received good care and to have suffered no significant psychological difficulties as a result of this health condition. Mr. S.L.’ family appears to have enjoyed adequate financial security, maintained appropriate discipline for the children, enjoyed activities with a large network of friends and extended family and has been very involved in church activities. Aside from experiences with Father Prince, Mr. S.L. does not appear to have been exposed to any form of serious adversity or trauma that might increase his risk for later psychological difficulties, e.g., parental mental health problems or substance abuse, severe parental conflict, domestic violence, parental death, neglect or physical or sexual abuse. In Grade 9, Mr. S.L. began studies at a large Catholic high school where he knew few other students and found the more structured classrooms and impersonal environment to be challenging. However, given his stable family and good earlier adjustment, it is unlikely that this school would have been associated with anything more than temporary distress and difficulty in the absence of Mr. S.L.’ exposure to sexual abuse prior to entering Grade 9.

[19] Dr. Barnes also notes at page 23 of her report that the abuse by Prince has caused S.L. to experience the following difficulties:

2a. Posttraumatic, depressive and anxiety symptoms. Father Prince’s sexual abuse caused or exacerbated Mr. S.L.’ longstanding posttraumatic, depressive and anxiety symptoms. Mr. S.L. was extremely distressed when he first recognized the sexual nature of Father Prince’s advance, immediately believed himself to be at fault and was terrified that the priest would tell his parents. While still at the cottage, he experienced intense fear and guilt to the point that his sleep was disrupted.

Through his high school years, Mr. S.L. continued to be very much mentally affected by what Father Prince had done; he experienced persistent posttraumatic, depressive and anxiety symptoms including repeated and disturbing thoughts about experiences with Father Prince, nightmares, intense distress at reminders of what had occurred with Father Prince, efforts to avoid reminders of what occurred with Father Prince, efforts to avoid discussing what he had experienced, feelings of estrangement from his family, anger and irritability, impaired concentration, depressed mood, sleep disturbance, impaired concentration, feelings of worthlessness, helplessness and hopelessness and suicidal thoughts; he considered a very available and realistic means of suicide, i.e. overdosing on insulin. His intense emotional distress interfered with attending classes, studying and relationships (see also 2b., 2d.-2e. below). At exam times, he experienced panic attacks characterized by heart palpitations, chest pain, shaking, sweating, feeling warm and fear that he would die.

Similar post-traumatic, depressive and anxiety symptoms have persisted with fluctuating intensity through Mr. S.L.’ adult life up to the present and interfered substantially with his adolescent maturation, relationships, educational achievement and work achievement (see 2c.-2f.). Mr. S.L. has continues to experience intermittent panic attacks, e.g. during the period when he worked as a salesman, when anticipating a plane trip and recently in association with nightmares about Father Prince. He appears to feel shame and guilt in relation to himself as well as anger and mistrust in relation to others. His post-traumatic symptoms have been particularly intense since disclosing the sexual abuse experiences to his family, reporting to the police and beginning legal action.

[20] Dr. Barnes also notes that S.L. was suffering from anger, irritability and behavioural problems at page 25 of her report:

Mr. S.L. attended a Catholic high school where he likely to encountered many reminders of Father Prince that were highly distressing; for example, he complained about a priest using a charismatic approach, refused to allow the priest to touch him and transferred out of the priest’s class. He hated the school, found it hard to force himself to get out of bed to go to school, received many detentions for being late, sometimes forged notes to get himself excused, often skipped classes, disliked being forced to go to mass and often skipped school masses. He was often in verbal fights with peers or teachers and sometimes received detentions for this reason. His account of his high school years indicates that he was troubled and angry about his sexual abuse experiences, but felt unable to confide in others, likely due to some combination of shame, guilt, mistrust and fear of hurting his parents.

Problematic anger and irritability has persisted through Mr. S.L.’ adult life and has interfered with adolescent psychological maturation, relationships, educational achievement and occupational achievement (see 2c.-2f. below).

[21] Dr. Barnes also notes at page 25 of her report that the abuse by Prince impaired S.L.’s psychological development:

2c. Impaired psychological development. Father Prince’s sexual abuse significantly increased Mr. S.L.’ risk for problems in psychological maturation in all areas of his life including sense of self and identity, self-control, relationships and work.

Adolescence is a period of substantial psychological reorganization as the individual matures from being a child to being a young adult. Typically, this maturation involves development of a more adult sense of self, stronger peer relationships, a more adult understanding of sexuality, reorganized relationships with adult caregivers and a sense of direction concerning adult commitments, e.g. education and work.

Father Prince’s sexual contacts with Mr. S.L. caused or contributed significantly to disruptions in Mr. S.L.’ adolescent psychological development. Emotional distress related to experiences with Father Prince (see 2a.-2b.) disrupted and complicated Mr. S.L.’ efforts to maintain a positive sense of self, a positive understanding of his own sexuality, more developed emotional coping skills and respectful, constructive relationships with peers and adults in positions of authority. For example, while in high school, Mr. S.L. thought a lot about what had happened with Father Prince, about whether these experiences had influenced him and about whether he was gay. He felt that his friends had more in the their sex lives than he did and worried that his experiences with Father Prince might interfere with his ability to lead a normal, heterosexual life.

The feelings of distress, shame and betrayal that followed his experiences with Father Prince substantially undermined both Mr. S.L.’ ability to establish trusting and open relationships and his efforts to do well at school. Because of his irritability, Mr. S.L. was unable to sustain high school friendships. He was interested in dating, but unable to date after his first relationship broke off; worries about sexual matters, mistrust, irritability and poor sense of self likely contributed to this problem. Difficulties with peers likely undermined his self-esteem. Hostility towards parents and teachers likely interfered with his ability to reorganize relationships with these significant adults in a constructive way and isolated him from the guidance and support that those in positions of authority likely could have offered him.

Mr. S.L.’ impaired adolescent development left him less prepared to meet the challenges of adult life, e.g., continuing his education, living independently, developing sustained work commitments, maintaining a loving, committed relationship and parenting. Significant problems have persisted throughout his adult life including posttraumatic, depressive and anxiety symptoms, relationship problems, poor educational achievement and poor occupational achievement (see 2d.-2f. below).

[22] At page 26 of her report, Dr. Barnes describes the difficulties that S.L. has with relationships:

2d. Relationship problems. Father Prince’s sexual abuse contributed significantly to chronic strain, conflict, disappointment and emotional distance in Mr. S.L.’ relationships with family, common-law partner and employers. As noted already, Mr. S.L. experienced, in high school, irritability, defiant behaviour and significant post-traumatic, depressive and anxiety symptoms that disrupted his relationships; he often fought verbally with his parents, teachers and friend and was sometimes disciplined for the misbehaviour; he was unable to date after his first relationship ended and unable to sustain friendships. These difficulties were caused or exacerbated by his experiences with Father Prince (see 2a.-2c.)

[23] Dr. Barnes summarizes her prognosis for S.L. at page 31 of her report:

5. Prognosis for Mr. S.L.. Mr. S.L. is a 44-year-old man whose history and psychological test results indicate significant psychological problems that have interfered with his completing an education, sustaining emotionally close and satisfying relationships with his family and common-law spouse and feeling able to have children. Mr. S.L. has significant strengths. He has worked steadily throughout his adult life and maintained a committed relationship with his common-law spouse. Despite the significant distress occasioned by his abuse experiences, he has no problems in the nature of substance abuse or criminal misbehaviour. His parents and partner have been supportive of his recent disclosures concerning Father Prince’s sexual abuse.

However, Mr. S.L. continues to experience unhappiness, irritability, mistrust, panic attacks, sexual difficulties, a sense of estrangement from others and some work difficulties. He has never received any form of mental health treatment and could likely benefit from medication to alleviated sleep disturbance and anxiety symptoms and from psychotherapy to assist with alleviating anxiety and irritability, discussing his teenage experiences of sexual abuse and improving his sense of self-esteem and hopefulness for the future. However, it is likely that his longstanding irritability, mistrust of authority and unwillingness to discuss personal distress will interfere with his ability to engage in a therapeutic relationship with a mental health professional. His difficulties are longstanding, integrated into his personality function and likely to change only gradually over time, even with adequate mental health treatment. It is likely that he will never be entirely free of significant psychological difficulties such as distant or strained personal relationships, problems in focusing, susceptibility to significant anxiety and depressive symptoms and related difficulties at work.

[24] Dr. Barnes recommended that S.L. engage in individual psychotherapy, which was commenced in 2011 and continues to this day. A progress report was prepared by Dr. Kevin Jones, dated August 26, 2013, which indicates the following at page 3:

As noted by Dr. Barnes, since his adolescence, Mr. S.L. has implemented avoidant coping strategies as a means of dealing with his abuse experiences. These strategies became very entrenched and connected to well-established cognitive and behavioural patterns. In addition, self-disclosure and trust have proved to be challenging areas for Mr. S.L., given his abuse history. It has taken considerable time to develop a therapeutic rapport, such that he feels comfortable to begin discussing his inner thoughts and feelings. At this point, issues relating to trust and self-disclosure continue to present a barrier to his fully engaging in this type of therapeutic intervention. It is hoped that gains will be made in this area over time, such that the relationship itself becomes a corrective emotional experience for Mr. S.L.. However given Mr. S.L.’ long history of difficulties in this area, coupled with his lack of therapeutic support for the bulk of his adult life, the prognosis is considered guarded.

The legal parameters for non-pecuniary damages:

[25] The Plaintiff requests general damages in the amount of $175,000.00.

[26] 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 assessing general damages for cases involving sexual assault. These factors included:

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

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

• the circumstances of the Defendant, including age and whether he or she was in a position of trust; and

• the consequences for the victim of the wrongful behaviour including ongoing psychological injuries.

[27] In J.R.S. v. Glendinning (2004), 2004 5011 (ON SC), 237 D.L.R. (4th) 304 (Ont. S.C.), at para. 263, Justice Kerr determined that the appropriate range for damages arising from incidents of sexual assault was between $125,000 and $250,000.00. It is noteworthy that this decision is 11 years old. The Plaintiff argues that the range of damages should account for the effects of inflation since this decision was rendered.

[28] M.B. v. 2014052 Ontario Ltd., 2012 ONCA 135, 109 O.R. (3d) 351, involved four sexual assaults perpetrated upon a woman by her supervisor at work. A power imbalance existed between the Plaintiff and the Defendant. The Plaintiff suffered psychological damages similar to those suffered by S.L.. The jury awarded $300,000.00 for general damages, and Justice Rouleau noted at paragraph 70:

“There is no doubt that the jury’s award for general damages was high and outside of the generally expected range. Nonetheless, I would not interfere. Although it is certainly generous and may not have been one this court would make, it is not so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole, and acting judicially could have reached it”.

[29] In B.M.G. v. Nova Scotia, 2007 NSCA 120, 288 D.L.R. (4th) 88, the Plaintiff was sexually assaulted as a teenager by his probation officer. The abuse suffered by the Plaintiff escalated over the course of several mandatory meetings with the Defendant. There was an obvious power imbalance between the Plaintiff and the Defendant. The Plaintiff told his parents about the abuse but they did not believe him due to the stature of the Defendant. The Plaintiff’s parents continued to interact with the Defendant socially, forcing the Plaintiff to sit through family dinner with his abuser. The psychological damage caused by this abuse was similar to the harm S.L. has suffered. The Plaintiff suffered emotional strain for years before he was able to disclose what had happened. He felt contempt for authority figures, and confusion regarding his sexuality and his ability to trust the people meant to look after him. These feelings led him to abandon his education. His lack of formal education haunted him throughout his adult life. A psychologist concluded that the abuse suffered by the Plaintiff caused him to lose vocational and educational opportunities.

[30] Justice Cromwell (as he was then) in B.M.G. v. Nova Scotia, at para. 132, recognized that an award of non-pecuniary damages in a sexual assault case should fulfil the following three purposes:

1. To provide solace for the victim's pain and suffering and loss of enjoyment of life,

2. to vindicate the victim's dignity and personal autonomy and

3. to recognize the humiliating and degrading nature of the wrongful acts.

[31] With these purposes in mind, Justice Cromwell, at para. 140, confirmed that the acceptable range for damages in cases of this sort is $125,000 to $250,000. The Court concluded that the trial judge’s decision to fix non-pecuniary damages at $125,000 was reasonable.

[32] The factors approved in Plint suggest that an award closer to the higher end of the range is appropriate in this case. S.L. was only 13 years old when these assaults began. His vulnerability was exacerbated by Prince’s status within the community. Prince was in a position of trust thanks to this status and the S.L. family’s faith in him. The assaults occurred with some regularity over a number of years. As emphasized by Dr. Barnes, the assaults have had a devastating impact on S.L.’s personal relationships and his psychological development and well-being. Although such comparisons are unpleasant, it must be noted that the assaults were not as invasive or degrading as the assaults in some of the cases resulting in damages at the higher end of the range: see Glendinning, and John Doe v. O’Dell (2003), 2003 64220 (ON SC), 230 D.L.R. (4th) 383 (Ont. S.C.).

[33] S.L.’s advanced vulnerability and Prince’s trusted status as a pillar of the community and a man of faith and moral integrity demand a significant damages award. Prince betrayed the trust of the entire S.L. family. He leveraged this trust and his perceived moral authority to secure time alone with his vulnerable victim. S.L. will continue to be reminded of this intimate betrayal by his own middle name. After considering the appropriate range of damages and the relevant factors identified by the case law, I am satisfied that a non-pecuniary damages award of $175,000 is appropriate.

Special damages

[34] The Plaintiff seeks compensation for both past and future income losses resulting from Prince’s abuse. In order to be compensated for pecuniary losses, the Plaintiff must demonstrate that it is more likely than not that these losses were caused by the Defendant’s abuse, and that these damages would not have been suffered in the absence of this abuse: see Plint at paras. 78-80.

[35] S.L. tumbled from being a reasonably good Grade 8 student before he was abused to a Grade 9 student who failed four subjects. S.L.’s academic performance was poor throughout high school. He failed to enter University. S.L. also failed to succeed in an advertising and graphic design program at Humber College and found himself waiting on tables. S.L. attempted a career in sales and was reasonably successful for several years. However, the company he worked for went out of business and he failed to secure comparable employment. Returning to waiting tables allowed S.L. to avoid the stress and pressure of a 100% sales commission job. He continues to work as a waiter to this day.

[36] Dr. Barnes was asked to comment upon the impact of the sexual abuse on S.L.’s academic and vocational abilities. Dr. Barnes notes at page 27 of her report:

2e. Impaired educational achievement. Father Prince’s sexual abuse contributed significantly to Mr. S.L.’ risk for serious difficulties in pursuing his education. As noted already, sexual abuse by Father Prince caused or exacerbated Mr. S.L.’ post-traumatic, depressive and anxiety symptoms and defiant behaviour pattern during his high school years (see 2a. – 2b.). In high school, Mr. S.L. hoped to attend university, knew that his father had set aside money for this purpose and knew that good marks were necessary for him to qualify for university admission. During his high school years, he studied hard and at least once, sought help from friends in preparing for exams. However, because of problems in concentration and panic attacks experienced during exam times, he was not able to obtain marks at a level that would allow him to go to university. His intense dislike of the Catholic school, problems with punctuality and attendance, maturational difficulties and difficulties with peers and teachers (see2b-2d) likely also undermined his ability to do well in his studies; as he failed to improve, he gradually lost interest in studying.

[37] At page 28 of her report, Dr. Barnes concludes:

In summary, psychological difficulties caused or exacerbated by sexual abuse by Father Prince, contributed substantially to Mr. S.L.’ poor academic achievement in high school, his giving up on hopes for attending university, his inability to complete a community college program of study and his giving up on community college education. His education is at a high school level and has undoubtedly limited his employment opportunities and ability to advance occupationally.

[38] At page 28 of her report, Dr. Barnes also outlines the manner in which the sexual abuse by Prince has impaired S.L.’s occupational abilities and thereby reduced the income that he earned:

2f. Impaired occupational achievement and reduced income. Father Prince’s sexual abuse contributed significantly to Mr. S.L.’ limited employment opportunities, problems in getting along with supervisors at work, vulnerability to workplace stress and reduced lifetime income. Mr. S.L. began working when in high school and has, except when in community college, worked steadily through his adult life. During high school and for one year, he worked as a stock boy, then sales clerk at Birk’s Jewellers. After giving up on community college, he worked for ten years as a waiter at a franchise restaurant, two years full-time and eight years part-time during the period he also held a full-time sales position. His irritability and defiant behaviour (see 2b.) interfered at work; he frequently voiced objections, e.g. to customers who left without tipping, sometimes had a poor attitude and received, over the years, “a stack” of reprimands and numerous suspensions when he lost pay.

Mr. S.L. reduced his hours of work as a waiter to part-time in 1987 when he became employed full-time as a salesman at an offices supplies company. Though he was not good at getting up early or being his own boss, he worked long hours, held the position for eight years and was very successful. Working in the evening permitted him to avoid bosses, and he was able to avoid open problems with bosses. However, he was troubled by intense emotional distress in the form of constant worrying about his accounts, sleep disturbance and panic attacks. Psychological difficulties caused or exacerbated by Father Prince’s sexual abuse, likely increased his risk for substantial anxiety symptoms when faced with normal work stresses. When he interviewed for another sales job, the interviewers obtained information about his accounts, then did not offer him a job; he felt betrayed by people he had trusted. Psychological difficulties caused or exacerbated by Father Prince’s sexual abuse, e.g. poor self-esteem, mistrust of authority, susceptibility to anxiety symptoms, may well have interfered with his ability to resolve this problem and to pursue some form of comparable employment.

[39] At page 29 of her report, Dr. Barnes references studies of survivors of childhood sexual abuse:

Scientific study has shown that individuals first exposed to criminal victimization in adolescence have significantly lower life-course income as compared to those not exposed to such victimization until later in life, probably because their educational and occupational attainment is reduced (Macmillan, 2000, 2004). Macmillan (2004) describes empirical evidence indicating the following:

Victimization undermines academic performance, educational attainment, labor force participation, occupational attainment, and earnings in early adulthood….Adolescent victimization has further effects on later socioeconomic fortunes, operating both directly and through educational attainment. Such effects suggest significant income losses over the life span (Macmillan, 2000).

Mr. S.L.’ experiences are entirely consistent with such findings. Mr. S.L.’ psychological difficulties, all problems caused or exacerbated by his experiences with Father Prince (see 2a.-2e.), have contributed to his limited education and employment opportunities and susceptibility to intense stress reactions when employed in a more responsible and better paying sales position; these factors have, in turn, contributed to Mr. S.L. having a reduced lifetime income relative to his potential in the absence of such difficulties.

[40] S.L.’s treating psychologist, Dr. Jones, echoes Dr. Barnes’s comments regarding how the sexual abuse by Father Prince has negatively impacted S.L.’s educational and vocational trajectory. At page 3 of his report, Dr. Jones states as follows:

In terms of his occupational functioning, I am in agreement with the conclusions drawn by Dr. Barnes with respect to the impact of Mr. S.L.’ abuse experiences on his academic and vocational functioning. Dr. Barnes cites research which supports the finding that abuse experiences in adolescence have a deleterious impact on academic and occupational functioning. Mr. S.L.’ history is consistent with these findings, given his reduced level of self-confidence, difficulties with trust and interpersonal relationships, and difficulties managing his emotions and stress-inducing situations. Mr. S.L.’ self-report is consistent with these observations, in that he views himself as having failed to reach his full academic or vocational potential, as compared to his pre-abuse level of achievement or aspirations. In turn, the distress caused by this view serves to further limit his pursuit of other academic and vocational options in a reciprocal fashion. Based on his self-report, clinical observations of Mr. S.L., and the information contained in Dr. Barnes’ report, it is my opinion that Mr. S.L.’ abuse experiences serve as a point of demarcation in terms of his anticipated school and career path.

[41] S.L.’s counsel submits that S.L. has the intellectual capacity to succeed at the University level, and would have been able to obtain a University education which would have resulted in higher earnings throughout his adult life had he not suffered psychological difficulties flowing from the sexual abuse by Prince.

[42] Ian Wollach, an accountant retained by the Plaintiff, prepared calculations to determine S.L.’s past and future income losses. In his calculations, Mr. Wollach includes the undeclared income that S.L. has earned in tips working at Michael’s Back Door in addition to the income S.L. has reported on tax returns to determine S.L.’s present earning capacity. Mr. Wollach then compares the income that S.L. has actually earned with the average statistical income of a College graduate and a University graduate. In summary, Mr. Wollach’s report makes the following determinations:

If it is found that S.L. would have successfully graduated from University but for the abuse by Prince:

Past income losses as of January 26, 2015: $592,075.00

Future income losses as of January 26, 2015: $617,212.00

TOTAL INCOME LOSS FOR LOST UNIVERSITY EDUCATIONAL OPPORTUNITY: $1,209,287.00

If it is found that S.L. would have successfully graduated from College but for the abuse by Prince:

Past income losses as of January 26, 2015: $581,637.00

Future income losses as of January 26, 2015: $536,657.00

TOTAL INCOME LOSS FOR LOST COLLEGE EDUCATIONAL OPPORTUNITY: $1,118,294.00

[43] According to the uncontested evidence before me, Prince’s abuse limited S.L.’s ability to succeed both academically and professionally. The fact that Prince caused S.L. to suffer economic losses is determinative of his liability for those losses: see G.M.B., at para. 159. However, a pecuniary damages award should not put the Plaintiff in a better position than he was originally: see Plint, at para. 78. A pecuniary damages award should not require the Defendant to pay for damages that the Plaintiff would have suffered in any event. Therefore, the amount Prince is liable for is dependent on S.L.’s likely path had he not been abused.

[44] While it is impossible to know for certain what would have happened had S.L. not been abused by Prince, the evidence suggests that Prince’s abuse derailed S.L.’s otherwise steady but not accelerated progress in school. S.L.'s Father had saved money to fund S.L.’s education. Had S.L. been able to maintain the necessary grades, it is more probable than not that he would have enjoyed further success at the postsecondary level. The Wollach report demonstrates the impact that postsecondary success would likely have had on S.L.’s earning potential. Although S.L. obtained higher paying employment in sales, he was not able to maintain that employment, at least in part due to the impact of Prince’s assaults.

[45] S.L. has suffered other hardships in his life. A car he was driving rolled over after he lost control. He was a passenger on a train which derailed. He was a passenger on an airplane which blew out three tires while landing. He had to be rescued at sea after a boat he was on lost its motor. Dr. Barnes was aware of all of these events in S.L.’s life. Dr. Barnes notes in her report that S.L. fears flying and boating. Dr. Barnes also notes that S.L. had nightmares related to the car accident. However, Dr. Barnes makes no suggestion that any of these hardships contributed to S.L.’s academic or professional failures. The evidence suggests that Prince is solely responsible for the economic losses detailed by the Wollach report. The extent of these losses depends on whether S.L. would have attended College or University had he not been abused by Prince.

[46] Determining whether S.L. would have attended College or University is inherently speculative. However, the evidence includes several indications of S.L.’s most likely direction. S.L. attended Humber College for advertising and graphic design. This is consistent with several references in the evidence to S.L.’s interest in artistic endeavours.

[47] While I do not doubt S.L.’s counsel’s submission that S.L. has the intellectual capacity to succeed at the University level, the preponderance of the evidence suggests that S.L.’s interests would not have directed him to pursue a University education. Rather, the evidence suggests that S.L. was interested in artistic endeavours, which is consistent with his attendance at Humber College. Although he was ultimately unsuccessful in his College program, it is more likely than not that this failure was due to the damage caused by Prince’s abuse rather than a lack of interest or ability. I find that S.L. would have successfully obtained a College education had he not been abused by Prince. Prince is therefore liable for the corresponding loss of income suffered by S.L. as a result of Prince’s abuse.

Out of pocket expenses:

[48] At page 32 of her report, Dr. Barnes suggests medication, individual psychotherapy, stress-management skill training, group counselling and psycho-vocational assessment and counselling for S.L.. Dr. Barnes anticipates that the total cost of these programs would be $61,000.00.

[49] In his January 26, 2015, report, Ian Wollach calculates the present day cost of Dr. Barnes’s 2008 assessment of $61,000.00. According to his calculations, the present day cost of these services is $97,330.00. These are further pecuniary losses for which Prince is liable. They have been quantified by two experts. I accept their estimations to be accurate.

Punitive Damages:

[50] In addition to damages for non-pecuniary and pecuniary losses, the Plaintiff is requesting a further award of punitive damages in the amount of $50,000. An award of punitive damages must be informed by the principles identified in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 94. These principles are as follows:

1. Punitive damages are very much the exception rather than the rule,

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

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

4. having regard to any other fines or penalties suffered by the defendant for the misconduct in question.

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

6. Their purpose is not to compensate the plaintiff, but

7. to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community's collective condemnation (denunciation) of what has happened.

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

9. they are given in an amount that is no greater than necessary to rationally accomplish their purpose.

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

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

[51] These principles have been applied in sexual battery cases by this Court: see Whitfield v. Whitfield, 2014 ONSC 2745, [2014] O.J. No. 2209, and D.M. v. W.W., 2013 ONSC 4176, 229 A.C.W.S. (3d) 600. Sexual abuse of a child, by its very nature, involves highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour: see D.M., at para. 151.

[52] In addition, the Court in D.M., at para. 151, stated that “obliging the plaintiff to engage in prolonged and costly litigation, thereby delaying his recovery…only to then abandon presentation of any defence whatsoever when trial was imminent, (with the defendant thereby "running away" from finally having to face his victim and the consequences of his misconduct in open court), was further callous and cowardly conduct on the part of the defendant, deserving of condemnation.” I wholeheartedly agree. The Defendant failed to provide any evidence to rebut the prima facie proof offered by his criminal conviction. This suggests that the Defendant delayed the S.L.’s access to relief without good reason.

[53] While punitive damages are generally only awarded when the Defendant’s conduct would otherwise go unpunished, they can also be awarded if other penalties imposed have been considered and are found to be inadequate to achieve the objectives of retribution, deterrence and denunciation: see McIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 O.R. (3d) 161, at paras. 76-78.

[54] Given the heinous conduct of the Defendant, I find that a punitive damages award is necessary to achieve the societal objectives of retribution, deterrence and denunciation.

[55] Having determined that a punitive damages award is appropriate in this case, the next question to consider is the quantum of that award. In this regard I am again guided by the principles enunciated in Whiten, as articulated in D.M., at para. 150:

i. They [punitive damages] must be proportionate to the blameworthiness of the defendant's conduct, having regard to such factors as:

a) whether the conduct was planned and deliberate;

b) the intent and motive of the defendant;

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

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

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

f) whether the defendant profited from the misconduct; and

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

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

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

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

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

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

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

[56] The above factors suggest that the Prince’s conduct was significantly blameworthy. The abuse, which occurred during time periods Prince planned to be alone with S.L., was almost certainly planned and deliberate. The abuse occurred over a number of years. The interest violated by Prince must have been known by him to be deeply personal to S.L.. S.L. was under the supervision of Prince when the abuse took place, making S.L. exceedingly vulnerable. This conduct must be deterred. However, in order to maintain proportionality, it must take into account the criminal penalties already imposed on Prince. In my view, punitive damages in the amount of $50,000 are appropriate. An award of this magnitude recognizes the principles of retribution, denunciation and deterrence, as well as the criminal penalties already imposed on Prince.

Prejudgment interest:

[57] In his Statement of Claim, S.L. asks for prejudgment interest pursuant to the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). Section 128 of the CJA states that a party entitled to an order for the payment money is also entitled to interest on that amount, calculated from the date the cause of action arose to the date of that order.

[58] In this case it is not clear when the cause of action arose. The abuse suffered by S.L. occurred over time. S.L. cannot recall with confidence the exact year the abuse began. On the evidence before me, Prince’s wrongful conduct cannot be readily traced to a point in time. The special damages claimed in this case pose similar difficulties. S.L.’s loss of income was suffered over a long period of time. The Wollach report does not clarify when each dollar of income was lost, making it impossible to trace S.L.’s lost income to a particular date.

[59] As a result, I must calculate prejudgment interest from the date the Statement of Claim was issued. The Statement of Claim was issued on June 26, 2007. S.L.’s future care costs and future loss of income are inherently forward looking and it is therefore inappropriate to award prejudgment interest on those amounts. Prejudgment interest cannot be awarded on an award of punitive damages according to section 128(4) of the CJA. S.L. is therefore entitled to prejudgment interest of $108,973.94.

Total damages awarded

[60] In accordance with the foregoing, I award the following damages:

General damages: $ 175,000.00

Special damages:

Past income loss: $ 581,637.00

Future income loss: $ 536,657.00

Future treatment costs: $ 97,330.00

Punitive damages: $ 50,000.00

Prejudgment interest: $ 108,973.94

Total: $ 1,549,597.94

[61] Judgment to go further to the above.

Fitzpatrick J.

Released: November 30, 2015

CITATION: S.L. v. Prince, 2015 ONSC 7450

COURT FILE NO.: 3807/07

DATE: 2015-11-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.L.

Plaintiff

– and –

FATHER BERNARD PRINCE

Defendant

REASONS FOR JUDGMENT

Fitzpatrick J.

Released: November 30, 2015