COURT FILE NO.: 38357 DATE: 2017/04/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Iram Kareemi Zando Amandeep S. Dhillon Jaclyn McNamara for the plaintiff Plaintiff
- and -
Dr. Syed N. Ali a.k.a Dr. Sayed N. Ali Nina Perfetto Martine S. W. Garland, for the defendant Defendant
HEARD: October 5, 6, 7, 11, 12, 13, 14, 17, 18, 19, 21, and November 10, and written closing submissions by December 23, 2016
MORISSETTE J.:
REASONS FOR JUDGMENT
Introduction:
[1] This is a case about one physician (the plaintiff) and another (the defendant) of physical and sexual assault, for which she seeks damages.
[2] In the original claim, the plaintiff also claimed against the hospital administration for damages for inducing breach of contract, harassment, discrimination, defamation of character, breach of good faith obligations and intentional interference with economic relations. On August 12, 2016, the hospital administration and the plaintiff entered into a settlement, the terms of which are confidential. Accordingly, the trial dealt only with whether Dr. Ali, (the defendant) sexually assaulted Dr. Zando (the plaintiff) on June 22, 1999. If so, what quantum of damages should be awarded?
Background facts:
[3] The plaintiff, Dr. Zando, was 62 years of age at the time of the trial and was born in Lahore, Pakistan. She was raised in a traditional Muslim home with conservative and traditional Eastern values. She came to Canada in 1972 and married David Zando in 1977. She became a Canadian citizen the same year. Dr. Zando left for Pakistan to attend medical school and graduated in 1984. She returned to Canada in 1988 to train in both London and Toronto. Only five weeks into her residency, her husband David suffered a brain injury, which left him permanently physically and mentally disabled. They divorced in 1992. She went on to train in Louisiana, USA in internal medicine with a subspecialty in infectious diseases and married her husband Dr. Allam in 1996 in Louisiana, where he practises medicine.
[4] The defendant, Dr. Ali, was 59 years of age at the date of the trial. He was also born in Pakistan and graduated from medical school in Pakistan in 1981. He did his residency from 1982 to 1990 in the United Kingdom, where he met his wife Beth in 1985. They married in 1988 and came to Toronto in 1990, where he completed his residency at Mount Sinai for two years. He purchased a medical practice in Sarnia in 1993, where he and his wife have been living since.
Relationship between Dr. Zando and Dr. Ali:
[5] The parties met in July of 1991 after a residency examination at the University of Toronto. According to Dr. Zando, Dr. Ali approached her to talk about the exam. Dr. Zando’s husband, David picked her up. They offered Dr. Ali a ride to the subway station, which he accepted. Dr. Zando and Dr. Ali exchanged phone numbers. Both were married with young children and living in the Toronto area, he in North York and she in Maple, a suburb of Toronto.
[6] After their initial meeting, Dr. Zando testified that Dr. Ali phoned her often. Dr. Ali testified that they spoke several times per week on the telephone. They had much in common: both were of Pakistani descent, both spoke Urdu, both were married to individuals who were not of the same ethnicity and both were aspiring to practise internal medicine. In the fall of 1991, Dr. Ali and his wife Beth were invited to a dinner party at Dr. Zando and David’s home.
[7] Following this dinner party, the parties continued phone conversations about their careers and their life goals. Dr. Zando remembers clearly Dr. Ali asking her where she would go after completing her fellowship exams. She told him that she would end up in Sarnia because her brother, also a doctor, lived in Sarnia with his son (her nephew) and he worked at Sarnia General Hospital.
Allegation of a sexual affair:
[8] At trial, Dr. Ali testified that he and Dr. Zando had an extra-marital affair, which started in January or February 1992, which Dr. Zando denies.
[9] Neither Dr. Ali’s Statement of Defence in April of 2002, nor his Amended Statement of Defence in September 2016 (a few weeks before the trial), plead that there was a sexual relationship between them.
[10] Dr. Ali was examined for discovery for two days in April 2004. He was asked to describe the nature of his relationship with Dr. Zando from the time they met in 1991. He described it as “friendly”. He denied any physical attraction to her. Dr. Ali was specifically asked if he ever had a sexual relationship with Dr. Zando and his response through his counsel:
Mr. Williams [Dr. Zando’s lawyer]: “I don’t want to hear from this man later on that they had a sexual relationship prior to June 22, 1999. I can assure you you’re not going to hear it from Dr. Zando.”
Ms. Perfetto [Dr. Ali’s lawyer]: “And you’re not going to hear that from Dr. Ali…As far as I know… I mean you’re not going to hear it. If that position changes you will know well in advance of the trial but as far as-unless Dr. Ali disagrees with me we’re not getting into that area at this point.”
[11] Dr. Ali confirmed at trial that he did not correct this answer. He said he did not tell a soul, including his wife, until June of 2016. Yet his September 2016 amended Statement of Defence is silent on this point. It was not until September 9, 2016 (25 days before the start of the trial) that he advised Dr. Zando, through her counsel, of his allegation there was a sexual relationship, without any details. Then, on September 21, 2016, he changed his answer to “yes” to the following: “To advise if Dr. Ali was physically attracted to Dr. Zando prior to June 22, 1999”.
[12] Dr. Ali’s explanation for the change in evidence was that he was hopeful that the matter would resolve itself without public disclosure and was concerned that he and Dr. Zando could be victims of honour killings by their families in Pakistan if their affair came out publicly.
[13] It is noteworthy that without a whisper of any such suggestion Dr. Ali never came forward with his allegation of a sexual affair with Dr. Zando, notwithstanding that this matter had been scheduled for trial on April 13, 2015 and November 9, 2015.
[14] Therefore, it was only after 15 years of litigation, and after Dr. Zando had settled with all other defendants that Dr. Ali advanced his claim that they had a sexual relationship in 1992 and 1993, ending in May 1993.
Dr. Ali’s evidence:
[15] Dr. Ali testified that as the relationship evolved, he became quite impressed with her, stating, “She was quite an artist, she could sing quite well, she could dance quite well, she was very articulate, and she was very knowledgeable about life”. He described their relationship as being much more personal and intimate. He described how Dr. Zando once asked him if he had ever slept with a Pakistani woman. When he said he had not, she responded that because he had not, he would not know the difference. He testified that at this point he had romantic feelings for her.
[16] Dr. Ali testified that sometime in early January or February in 1992, he and Dr. Zando had their first sexual encounter in his home, while his wife and son were away. Within a couple of months, there was a second encounter at his home. Another few encounters followed. He specifically remembered one incident when they had sex in his home during the day after lunch.
[17] He further testified that they also had sex in Dr. Zando’s home, at least three or four times. He described the room where it occurred on the main floor with a lot of closets, linens on the bed and carpeting on the floor. He stated that they acted like a couple of 17 year olds on the floor. He further described sex in his car and in a park called “lover’s lane”. He remembered that the leaves were changing colour and therefore it must have been the fall of 1992. Finally, he described sex in the North York Hospital where he was doing his locum in either April or early May of 1993.
[18] Dr. Ali testified that he was, and still is, ashamed of his conduct at the time.
[19] As Dr. Ali acknowledged in cross-examination, it is never appropriate to have an extramarital affair:
Counsel: As a Muslim is it appropriate to cheat on your wife?
Dr. Ali: It is not appropriate to cheat on your wife, as a Hindu, as a Christian or as a Jew.
Counsel: As a Muslim is it appropriate for you to have extramarital sex in a car or in park or in a hospital?
Dr. Ali: It is not appropriate to have any extramarital sex in our society.
Dr. Zando’s evidence:
[20] Dr. Zando denied asking him a question about whether he had ever had sex with a Pakistani women and testified that she did not share the same feelings for Dr. Ali. She saw him as nothing more than a friend and a professional colleague. She testified that she was aware of Dr. Ali’s feelings because he was flirtatious and made romantic gestures toward her. For example, he called her frequently, gave her a romantic poem in Urdu in his handwriting and asked her to recite it back to him. He also made comments – for example in 1996, saying, “He wants you now, I want you when you are 60”, referring to her new husband Dr. Allam [^1]. He also said, “If you want to catch a flying bird, you have to go where it will land”, when Dr. Zando asked Dr. Ali why he bought a cardiology practice in Sarnia.
[21] Dr. Zando categorically denied any sexual relationship with Dr. Ali.
[22] In her closing submissions, Dr. Zando suggested that Dr. Ali failed to provide any concrete details or specific dates, times and particulars of the alleged interactions or where his wife and son were at the time.
[23] Further, Dr. Zando submitted that having sex in their respective homes, car, in the woods and at work would be inconsistent with two people hiding their affair from their spouses.
Analysis:
[24] The defence submits that if I accept Dr. Ali’s evidence that he and Dr. Zando were having an affair, it undermines her allegation of sexual assault.
[25] However, even if the parties had an extramarital affair in 1992/93, this does not provide a defence to Dr. Ali. Furthermore, the fact that Dr. Zando maintained her denial of an affair does not entirely diminish Dr. Zando’s credibility.
[26] For the reasons that are developed below, the fact that Dr. Ali failed to disclose until the eve of trial his allegation that they had a sexual relationship does undermine his evidence.
June 22, 1999:
[27] Not surprisingly, the parties’ evidence of that day’s events is diametrically opposed.
Dr. Zando’s version:
[28] Dr. Zando testified that Dr. Ali called her at home late in the afternoon at the end of her shift. He said he needed to see her on an urgent matter. Dr. Zando, assuming it was a hospital issue, agreed to see him and asked him to come to her home. Both testified that it was only the second time, and the last time, that Dr. Ali ever attended Dr. Zando’s home in Sarnia. Dr. Zando’s home was only a few minutes away from the hospital.
[29] Dr. Zando testified that when he arrived, Dr. Ali removed his shoes and shirt, telling her that he was hot. Dr. Zando told him to go into the den and turn on the air conditioner, hoping it would cool him down and he would put his shirt back on. While Dr. Zando went into the kitchen to get some fruit and drinks, she heard him say that the air conditioner did not work. When she returned Dr. Ali was sitting in the only chair in the den. They moved into the living room, which was across from the den, where they both sat on the couch.
[30] Dr. Ali handed to Dr. Zando a half completed Canada Life insurance form that he wanted Dr. Zando to complete for the renewal of his office lease. Dr. Zando testified that because she did not have any medical equipment in her home, she could not and did not conduct a physical examination of Dr. Ali.
[31] Dr. Zando testified that upon completing the insurance form, Dr. Ali got up from the couch and went to the bathroom. She proceeded to the den to check on the air conditioner that Dr. Ali had been unable to turn on. Dr. Zando saw that it was not plugged in. She bent down to plug it in, stood up and turned around to walk out of the den; however, Dr. Ali was standing naked in the doorway. Dr. Ali tripped Dr. Zando with his foot, caught her and lowered her to the ground onto a pink and beige Persian rug. [^2]
[32] Dr. Ali got on top of Dr. Zando who was pleading with him to stop. Dr. Ali asked her to “give him mouth”. Dr. Ali proceeded to thrust his erect penis into Dr. Zando’s face.
[33] Dr. Ali pulled down Dr. Zando’s pants and forced her knees apart and pushed them up towards her chest and face. Dr. Ali then penetrated her vagina. Dr. Zando screamed and he rolled off onto his back. She got up. As she was leaving him to go into the kitchen, she saw him masturbate and ejaculate onto the rug in the den.
[34] When he was finished, Dr. Ali put his clothes on, went into the kitchen to sit beside Dr. Zando and asked her for a ride back to the hospital. He told her that there was also a patient consult waiting for her at the hospital. She agreed to drive him back to the hospital.
Dr. Ali’s version:
[35] Dr. Ali testified that in June of 1999 he was in the process of moving to a larger office. As part of the new lease arrangement, he required an insurance form to be completed. Dr. Ali spoke to Dr. Zando on June 21, 1999 at the hospital and asked her if she would complete it for him. She agreed and suggested that he stop by her office the next day at around 16:30. Dr. Ali received a call from Dr. Zando on June 22, 1999 asking him to come over to her home instead.
[36] Dr. Ali testified that he drove to Dr. Zando’s home and parked at the back entrance. Dr. Zando invited him into the living room and have a seat. She went upstairs for a few minutes and then returned to the living room with a small blood pressure machine and stethoscope. She asked if he wanted anything to drink. He told her he did not and that he was in a rush to get back to the hospital because he had a meeting.
[37] Dr. Ali testified that he gave Dr. Zando the insurance form, which he had partially filled out and asked her to complete the remainder. Dr. Ali testified that Dr. Zando filled out the second page of the form and performed a brief examination, including checking his blood pressure and examining his chest.
[38] Dr. Ali testified that when Dr. Zando was examining his abdomen, she moved her hand onto Dr. Ali’s genital area and said ‘I want you now’. Dr. Ali testified that he was shocked and got up and left the house leaving the insurance form with her.
[39] Dr. Ali remembers leaving Dr. Zando’s home at approximately 17:05 and drove to the hospital to attend a meeting, for which he arrived late. The minutes of that meeting confirm that Dr. Ali was in attendance.
The rug and the mug:
[40] Dr. Zando testified that the sexual assault took place on her rug, on which Dr. Ali masturbated and ejaculated.
[41] Dr. Ali’s evidence both at discovery [^3] and at trial, was that he had no contact with the rug.
[42] In April of 2001, at the suggestion of her then lawyer, Catherine Patterson, Dr. Zando had the rug tested for DNA. The initial testing confirmed the presence of male semen and spermatozoa on the rug.
[43] In order to determine if it was Dr. Ali’s DNA, Dr. Zando enlisted her colleague and friend, Dr. Shalia Kaloni to assist her. Dr. Kaloni took a white ceramic mug from which Dr. Ali had been drinking on May 4, 2001 at an internal medicine department meeting. The mug was taken for testing to Maxxam on May 7, 2001 by Dr. Zando.
[44] Stephen Dennison from Maxxam testified that the male semen DNA on the rug matched the male DNA on the mug [^4]. He explained that the testing could not confirm how or when the DNA was deposited on the rug.
[45] Dr. Ali denied ejaculating on the rug but refused to provide his DNA for testing. [^5] Dr. Ali explained that it was unnecessary to subject himself to testing when he himself “knows what the truth is” – that it was not his DNA on the rug. Dr. Zando asked that an adverse inference be drawn against Dr. Ali because he failed to provide a DNA sample.
[46] In his closing submissions, Dr. Ali suggested that Dr. Zando could have sought an order obliging Dr. Ali to provide his DNA sample. She did not. He further submitted that providing a sample of his DNA would be highly prejudicial and not probative of a sexual assault.
[47] Finally, Dr. Ali submitted in his closing submission that the DNA evidence from Maxxam could have been his DNA from consensual sexual intercourse between them in 1992 in her home in Toronto.
[48] This latter explanation does not, in my view, withstand scrutiny for two reasons: Dr. Zando was not challenged on her evidence that the rug in question was purchased in Islamabad in 1994. She brought the rug to Louisiana where she had it until she brought it to Sarnia in 1999. Further, at no time did Dr. Ali testify that his DNA could possibly be on the rug because of the alleged affair in 1992 to 1993.
[49] The fact that Dr. Ali refused to provide his DNA to exclude him, in my view, allows the court to draw an adverse inference.
Dr. Zando’s corroboration witnesses:
Kathy Tjoelker:
[50] Within one to two days after June 22, 1999, Kathy, a friend of Dr. Zando, visited her to assist her with moving furniture around. Noticing that something was wrong with her friend, Kathy got Dr. Zando to talk about what was bothering her. Dr. Zando told Kathy that Dr. Ali had come over and taken his clothes off, attacked her and wanted to have sex. Dr. Zando did not give Kathy any further details.
[51] Kathy was interviewed by Sarnia Police. Catherine Patterson, a lawyer, who represented the Canadian Medical Protection Association (CMPA) and Dr. Zando at the time in question, interviewed Kathy on March 12, 2001. Ms. Patterson’s notes from that interview reflect a consistent version of what Dr. Zando told her at the time and what Kathy testified to at trial.
Dr. Shalia Kaloni:
[52] Dr. Kaloni was a colleague of both parties in the Internal Medicine Department between 1999 and 2001. Dr. Kaloni testified that Dr. Zando told her about the sexual assault sometime in 2000. She recalls that Dr. Zando had told her about Dr. Ali’s inappropriate behavior, but provided no detail except that it ended with his semen being left on her rug.
[53] Dr. Kaloni assisted Dr. Zando in getting Dr. Ali’s DNA so that the rug could be tested.
Catherine Patterson:
[54] Catherine Patterson, a lawyer who represented the Canadian Medical Protection Association (CMPA) at the time in question, was called to testify by Dr. Ali. Ms. Patterson testified that when she met with Dr. Zando in early March 2001, she made contemporaneous notes of their meeting.
[55] Ms. Patterson testified that according to her notes, Dr. Zando told her about the sexual assault committed against her by Dr. Ali, including the following details:
a) Dr. Ali came to her home on June 22, 1999 asking her to fill out a medical evaluation; b) Dr. Ali removed his shirt at her home saying he was hot; c) Dr. Zando had no medical equipment at her home and did not use a stethoscope; d) Once the medical form was completed Dr. Ali went to the bathroom. He emerged from the bathroom completely naked; e) A naked Dr. Ali wrestled Dr. Zando to the ground and asked her to “use her mouth on him”; f) Dr. Ali lay down on the carpet and masturbated to orgasm; and g) Dr. Zando went to the hospital at 8:00 pm but there was no request for a consult for her from Dr. Ali.
[56] Ms. Patterson testified that when she met with Dr. Zando in her home sometime in March of 2001, she got down on her knees on the rug in question to feel the rug. Ms. Patterson told Dr. Zando to get the rug tested for DNA.
Report to Sarnia Police:
[57] Dr. Zando did not report her allegation of sexual assault to the police until 2005. What triggered her to go to the police was Dr. Ali’s examination for discovery in 2004, in which Dr. Ali denied the sexual assault and claimed that it was she who had made the sexual advance on him on June 22, 1999.
[58] The Sarnia Police never laid any charges against Dr. Ali.
The timing of the allegation:
Dr. Ali’s position:
[59] Dr. Ali submitted that the timing and circumstances of Dr. Zando’s disclosure and decision to come forward with her allegation are consistent with her vindictive behavior towards Dr. Ali, in an attempt to silence and prevent his involvement in the hospital proceedings when Dr. Zando’s future at the Sarnia General Hospital (SGH) was at stake, which are outlined below.
[60] Dr. Ali submitted that Dr. Zando threatened him with the allegation of sexual assault in order to force him to remove himself from the privilege dispute with the hospital.
[61] Finally, Dr. Ali submitted that because he failed to support her in the privilege dispute, she has waged a campaign of vengeance against him to this day.
Dr. Zando’s position:
[62] Dr. Zando testified that she wanted Dr. Ali removed from the privilege dispute because she felt that the man who had sexually assaulted her continued to harass her in her place of work, and she wanted “it” to stop.
Analysis:
[63] There is no question that Dr. Zando had issues with her privileges with SGH. However as will become clearer, the evidence does not support a finding that those issues were as a result of Dr. Ali’s involvement.
[64] Dr. Zando was away from Sarnia often. She travelled to Louisiana where her husband resided, where she worked and taught at the Louisiana State University medical school. These absences created some consternation for the administration of the SGH. Dr. Ali prepared the “on call” schedule toward the end of 1999 for the year 2000. Although there is a divergence in their respective evidence about why she was not placed on the 2000 call schedule, I am not persuaded that it had anything to do with workplace harassment. Rather, she was not yet sure how to deal with practising both in Louisiana and Sarnia.
[65] In fact, it was not until April of 2000 that she raised an issue about not being on the call schedule. The reasonable inference to be drawn from the evidence is that Dr. Zando was content with not being on the 2000 On-call schedule because she was maintaining a practice in Louisiana and was therefore uncertain about her future in Sarnia.
[66] Further, I find that Dr. Zando had not expressed any interest in being promoted to active staff at SGH until September 2000.
[67] As Dr. Khan [^6] testified, it was imperative for the Department to know which of its members would be absent, what the coverage would be for their patients and who would be available during any given month. Accordingly, a reasonable inference can be made that there was nothing unusual about Dr. Ali requesting Dr. Zando’s schedule and availability, especially given her commitment in Louisiana.
[68] Dr. Khan testified that he requested a survey be completed not only because Dr. Zando’s prolonged absences were causing more problems, but also because there were complaints of lack of collegiality on the part of Dr. Zando. At no time did Dr. Ali instigate the complaints about Dr. Zando.
[69] The fact that Dr. Zando had privilege issues with SGH does not, in and of itself, support a finding that she fabricated the sexual assault allegations in order to gain some leverage over Dr. Ali.
[70] In my view, had Dr. Zando campaigned Dr. Ali in order to obtain his support on her privilege issues, then the timing of the allegations, as suggested by Dr. Ali might be important. However, the evidence demonstrates that Dr. Zando wanted Dr. Ali removed from any decision making powers.
[71] The fact that Dr. Zando sought Dr. Ali’s removal from any authoritative position regarding her privileges demonstrates her wish to have her aggressor removed from any position of power over her.
[72] Although the issue of whether Dr. Ali maintained a campaign of harassment against Dr. Zando is no longer before the court, given the amendment to the statement of claim following the settlement with the SGH, it remains important in assessing damages.
[73] For all of these reasons, I am not persuaded that Dr. Ali was attempting to exercise control or power over Dr. Zando through his position as Medical Director.
[74] For these reasons, I find that the timing of the allegations is irrelevant to the question of whether a sexual assault in fact occurred or not.
Analysis of whether sexual assault occurred:
[75] The documentary evidence from the hospital records [^7] regarding times from the patients’ charts and staff meetings support both parties’ versions of the June 22, 1999 event equally.
[76] Dr. Zando’s evidence of the sexual assault was consistent, throughout the 15 year proceedings. Dr. Zando’s evidence was also corroborated by several witnesses – Kathy Tjoelker, Dr. Kaloni and Catherine Patterson.
[77] Kathy Tjoelker, testified that Dr. Zando told her about the sexual assault only a couple of days after it allegedly occurred. The fact that Dr. Zando did not provide much detail of the event itself does not, alter the fact that Ms. Tjoelker was told within a short time that some kind of sexual assault had occurred.
[78] In particular, Tjoelker’s evidence does not fit with the defence’s theory that the sexual assault was fabricated after Dr. Zando began having problems with her privileges with SGH.
[79] Further, Dr. Ali claimed that he went to Dr. Zando’s home to complete the insurance form that he needed urgently to submit to Canada Life for the purpose of his lease negotiations, but Dr. Ali admitted that he never submitted the completed form.
[80] Dr. Ali’s late surfacing contention that they had an affair in 1992/93, (denied by Dr. Zando), and his explanation for this late disclosure does not in any way diminish Dr. Zando’s credibility about the sexual assault. Rather, as already noted, it only serves to undermine Dr. Ali’s own credibility.
[81] In assessing all of the witnesses’ evidence about Dr. Zando’s reports of the sexual assault, Dr. Ali’s evidence, the DNA results from the rug and the adverse inference drawn by Dr. Ali’s failure to exclude himself from a match, this Court finds that Dr. Zando’s evidence which has been quite consistent on the details of the sexual assault rings more true.
[82] For all of these reasons, I am satisfied that Dr. Zando has proved on a balance of probabilities a sexual assault occurred.
Damages:
[83] Dr. Zando is seeking non-pecuniary damages for the physical and sexual assault committed against her as well as aggravated and punitive damages. This Court must assess the damages with respect to the sexual assault of June 22, 1999.
[84] Dr. Zando testified that in the spring of 2004, she sought out the assistance of Dr. Patricia Murphy, a psychiatrist, because the sexual assault and her experience at SGH had become too overwhelming. She was having difficulty making decisions, was second-guessing herself in her work and would often break down crying. Dr. Murphy did not testify, but her notes from the consultation were filed as an exhibit. [^8]
[85] Dr. Robinson, on behalf of Dr. Zando, testified that in 2006, she diagnosed her with Major Depressive Disorder with features of Post-Traumatic Stress Disorder. Dr. Robinson’s diagnosis and opinion is predicated on the assumption that Dr. Ali undertook a campaign of harassment against Dr. Zando.
[86] Dr. Ali argued that there is no evidence that a sexual assault caused the Major Depressive Disorder. He further argued that the alleged harassment by the hospital was the cause of Dr. Zando’s psychological issues. Given that she has already been compensated by the Hospital through her settlement with the other defendants, including SGH, Dr. Ali submitted that Dr. Zando has failed to prove any material contribution to her condition by the sexual assault.
[87] The law is clear: “Causation is established where the plaintiff proves to the civil standard that the defendant caused or contributed to the injury”. [^9]
[88] Dr. Zando does not have to prove that the sexual assault was the only cause of her damages, but rather that on a balance of probabilities, the assault materially caused or contributed to her damages. [^10]
[89] After Dr. Zando was sexually assaulted, she had feelings of shame, guilt, humiliation and degradation.
[90] As a result of her cultural upbringing, she felt she had to bear this suffering on her own. Her Muslim faith and Eastern values and beliefs deterred her from speaking out immediately and making it public.
[91] As Dr. Robinson testified, Dr. Zando’s feelings of betrayal and mistrust regarding a colleague who she perceived was attempting to control or sabotage her career, are reasonable and legitimate feelings as a victim of sexual assault.
[92] For these reasons, this Court finds that the sexual assault was a materially contributing factor to her injury.
[93] In determining the appropriate range of damages to be awarded, the court must consider [^11]:
- The circumstance of the victim at the time of the events, including factors such as age and vulnerability;
- The circumstance of the assault(s) including the number, frequency and how violent, invasive and degrading it was;
- 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 behavior, including ongoing psychological injuries.
[94] In essence the purpose of awarding damages is to attempt to provide solace for the pain, suffering and loss of enjoyment of life flowing from the assault.
[95] The case law suggests a range between 125,000 to $250,000 for battery and sexual assault cases [^12], which adjusted for inflation, amounts to $144,000 to $290,000.
[96] Dr. Zando testified that she was in shock, horrified and humiliated by the assaultive conduct of a person she considered to be a friend and work colleague. She testified that she felt violated. Her pride and dignity and sense of self-worth was attacked. She felt like he treated her like a prostitute in her own home.
[97] Cases where there has been a prolonged period of sexual assault, violence, and a significant breach of trust attract a higher level of damages. Without in any way diminishing Dr. Zando’s experience, a single occurrence of sexual assault between adults, falls toward the lower end of the spectrum.
[98] Taking into consideration this plaintiff and the circumstances of this case; the recognition and understanding of the serious physical and psychological harm and damage that follows sexual assault; and society’s abhorrence for and denunciation of the violent and degrading act, I award the sum of $175,000 in non-pecuniary damages.
Punitive and aggravated damages:
[99] Aggravated damages are typically awarded in cases involving reckless conduct or intentional wrongdoing on the part of the defendant. It is not a separate head of damages, but rather a reflection of any aggravating features of the case that serve to increase an award accordingly. These factors have been taken into consideration in making the award described above.
[100] Punitive damages are an exception rather than the rule. They are typically imposed if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behavior. [^13]
[101] Dr. Ali was not criminally charged with the offence of sexual assault. It may be that the decision not to lay any charges was because of the high criminal onus of proof, unlike the lower onus in civil sexual battery cases.
[102] The fact is that Dr. Ali has not had to atone for his actions since 1999. He has continued to practise medicine and live in Sarnia without consequence for the sexual assault he committed on Dr. Zando.
[103] His sexual assault of Dr. Zando was morally reprehensible. Such conduct should be punished and denounced. For these reasons, I award $25,000 in punitive damages.
Costs:
[104] Should the parties be unable to agree on the issue of costs, I will receive brief written submissions within 30 days hereof.
”Justice J.N. Morissette”
Justice J. N. Morissette
Released: April 5, 2017
[^1]: Who she married in Louisiana, USA in 1996 and to whom she remained married at the time of trial. [^2]: Exhibit 144 [^3]: Plaintiff’s read-ins [^4]: Exhibits 9 and 10 [^5]: Exhibits 119,120,121 (correspondence between counsel) [^6]: Chief of Medicine at SGH [^7]: Exhibits 106 and 85. [^8]: Exhibit 92 [^9]: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 13, citing Snell v. Farrell, [1990] 2 S.C.R. 311 [^10]: Plouffe v. Roy (2007), 160 A.C.W.S. (3d) 570 (Ont. S.C.J.). [^11]: Blackwater v. Plint, [2005] 3 S.C.R. 3, at para. 89. [^12]: Evans v. Sproule, 2008 ONSC 58428, 2008 CarswellOnt 8753; 2008 fiscal standards. [^13]: K.T. v Vranich, 2011 ONSC 683, 197 A.C.W.S. (3d) 554, at paras 114-115.