SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R.B., Plaintiff
AND:
E.S., by his litigation guardian M.S., Defendant
BEFORE: Madam Justice Kristjanson
COUNSEL: Elizabeth Roberts, for the Plaintiff
Mark Elkin, for the Defendant
HEARD: September 29, 2016
ENDORSEMENT
1This is a motion for summary judgment brought by R.B. in a civil claim for sexual assault, battery, breach of fiduciary duty, breach of trust and intentional infliction of mental distress. E.S. was R.B.’s criminal lawyer. They met to prepare for a criminal matter in which E.S. was representing R.B. During this meeting, E.S. engaged in a sexual non-consensual touching of R.B., which took the form of cupping R.B.’s breast, hugging her and touching her under her shirt in the back and attempting to kiss her in the context of a situation where E.S. suggested he had a “hard on.” R.B. filed a report with the police on the same day. E.S. was charged with sexual assault, pleaded guilty to the lesser charge of assault, and was given a conditional discharge on the condition that he no longer practice law. The sentencing judge found that at the time of the assault, E.S. was suffering from Alzheimer’s.
2The defendant filed no evidence on this summary judgment motion. The defendant conceded that he was not in a position to contest liability, given E.S.’s mental state. The defendant asserts that he requires a defence medical to contest issues regarding damages, but failed to take timely steps to arrange a defence medical in light of the court-ordered timetable, which issued on consent. The defendant did not cross-examine the plaintiff on her affidavit, or seek to cross-examine the plaintiff’s psychologist on his report. The defendant did not meet the filing dates set out in the CPC order, or seek to amend the consent timetable. As Justice Dunphy stated in Mazza v. Ornge Corporate Services Inc., 2015 ONSC 7785, 2015 CarswellOnt 19531 (Ont. S.C.) at para 50:
Strategic choices, including the choice to bring summary judgment motions and how to respond to them, have strategic consequences. Parties who fail to cross-examine on affidavits or adduce evidence available to them that they require for argument will be held to the consequences of their strategic choices: c.f. ThyssenKrupp Elevator (Canada) Ltd. v. Amos, 2014 ONSC 3910 (Ont. S.C.J.). Both parties must assume that the service of a notice of motion starts a train heading down the procedural tracks that will lead to a decision on the merits of each and every issue raised by the notice of motion subject only to those issues the court determines genuinely require a trial in the interests of justice.
3In a post-Hryniak world, a party cannot sit back, assert that it will file future evidence, or merely argue that a matter is clearly not suited for summary judgment: Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.). The court is entitled to assume that the parties have placed before it all of the evidence that will be available for trial; the responding party must present its best case or risk losing.
4On the evidence before me, I grant judgment in favour of the plaintiff.
Background to the Motion
5The chronology of steps taken, or more accurately, which were failed to be taken, are set out below, since the defendant’s failure to file evidence on the summary judgment motion and failure to take reasonable steps to respond to this summary judgment motion are critical to the disposition of this case. I set out a detailed chronology of the litigation process in Schedule “A”.
6The statement of claim was issued in March, 2014. E.S. filed a statement of defence approximately five months later, although he has not yet filed an affidavit of documents. R.B. was examined for discovery in March, 2016. Given E.S.’s mental state, it is likely that he cannot be examined for discovery.
7R.B. decided to bring a summary judgment motion. In December, 2015, the plaintiff served a psychological – legal report of Dr. Ronald Seatter together with a notice under section 52 of the Evidence Act specifically providing notice that R.B. intended to introduce the Seatter Report into evidence at her motion for summary judgment. On the same day, R.B. sought dates for attendance at motion scheduling court in January and February to obtain a return date for the summary judgment motion.
8In April, 2016 a motion scheduling court attendance was adjourned on consent to Civil Practice Court (“CPC”) in May, 2016. At that time Justice McEwen set the matter down to be heard for 1.5 days in September, 2016. The order noted that “liability not in issue.” The CPC Order set a timetable, signed by counsel for the parties, as follows:
- plaintiff’s motion record to be served and filed by June 17, 2016;
- responding record to be served and filed by July 15;
- cross examinations to be completed by August 5;
- plaintiff’s factum to be served by August 26;
- responding factum to be filed by September 16.
9R.B.’s motion record was filed June 17, 2016 in accordance with the timetable. A supplementary motion record containing transcripts of the criminal sentencing and guilty plea was filed on September 21, 2016. No objection was taken to the filing of that material.
10E.S. filed no evidence on this summary judgment motion, although on the return date in late September, counsel for the defendant did hand up a factum together with a responding motion record which appeared to contain an excerpt from defence counsel’s submissions in a criminal proceeding against the plaintiff, although there was no affidavit indicating what the transcript excerpt was or the date of the proceeding. The responding factum and motion record were served on plaintiff’s counsel on three days before the summary judgment motion. The material filed by defendant’s counsel was not in compliance with the timetable and order of Justice McEwen and, in addition, did not comply with the normal deadline for filing motion materials. As a result the court filing office refused to accept the respondent’s materials, and they were handed to the court on the return date of the motion, without objection.
Has the plaintiff established that there is no genuine issue requiring a trial?
11Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: "the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence." The Supreme Court in Hryniak held at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
12A responding party may not rest solely on the allegations or denials in the party’s pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”: Rule 20.0(2). Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (ONSC) at paras. 26-27; aff’d 2014 ONCA 878 (Ont. C.A.).
13The court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers set out in Rule 20.04(2.1) and (2.2). The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and summary judgment would be a timely, affordable and proportionate procedure.
14If there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the fact-finding powers under Rule 20.04. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
15Given that the only evidence filed on the proceeding is the evidence of R.B., and that evidence was uncontested, as discussed below I have determined that there is no genuine issue requiring trial based on the evidence in the motion record. For the reasons set out below I grant summary judgment as there is sufficient evidence to fairly and justly adjudicate the dispute, and a summary judgment is a timely, affordable and proportionate procedure.
Is Summary Judgment Appropriate in Light of the Jury Notice?
16In oral argument, the defendant submitted that summary judgment, particularly on the issue of damages, would be “close to unprecedented” in a case such as this where a jury notice has been served. I note that the mandatory wording of Rule 20 requires the court to grant summary judgment if there is no genuine issue requiring a trial.
17Summary judgment is a dispute resolution mechanism separate from a trial. A party’s right to have a jury find facts does not arise if a judge finds pursuant to Rule 20.04 that there is no serious issue requiring a trial. The courts have applied Rule 20 to jury cases on a number of occasions: see Cooke v. Toivonen, 2011 ONSC 1315 and Anjum v. John Doe, 2015 ONSC 5501, 2015 CarswellOnt 13454 (Ont. S.C.).
18In this case, the defendant has filed no evidence to show that there is a triable issue. It is open to me to find that summary judgment is most fair, just, efficient and proportional process to determine the litigation as a whole, despite the delivery of a jury notice, and I do so.
Facts Relating to Criminal Assault Conviction
19In 2011, R.B. retained E.S. as her criminal lawyer. At the time, E.S. was a criminal defence lawyer with approximately 40 years of experience. R.B. resided in City #1, but came to City #2 with her boyfriend to meet E.S. to prepare for her criminal case.
20In 2012 R.B. met E.S. at her hotel. R.B.’s affidavit sets out the following facts, which are uncontradicted in this litigation. R.B. told E.S. she would meet him in the hotel lobby, but instead he proceeded to her room. R.B. was alone in the room as her boyfriend was at the hotel gym. E.S. cupped one of the plaintiff’s breasts and tried to pull her shirt down. E.S. reached under R.B.’s shirt trying to undo her bra and tried to kiss the plaintiff about 3 times. E.S. eventually left. When R.B.’s boyfriend returned, R.B. called the police and filed a report that day.
21In his statement of defence, E.S. concedes that at the guilty plea, he “admitted the facts alleged by the Crown Attorney insofar as they support the allegation of a common assault”. I refer to the facts alleged by the Crown Attorney below, in the section on criminal proceedings, since those facts constitute battery of a sexual nature.
1. Criminal Proceedings
22E.S. was charged with a sexual assault on R.B. The defendant was represented by counsel. On the record, counsel acknowledged that he had gone through the plea inquiry with the defendant. The defendant pled not guilty to the charge of sexual assault, but guilty to the included offence of simple assault.
(a) Statement of Facts Read In by Crown Attorney
23The Crown read in a statement of facts which as noted above, the defendant conceded in the statement of defence insofar as they support the allegation of common assault.
24In 2011 the plaintiff retained the accused to represent her on criminal charges arising in City #2. The plaintiff was living City #1 at the time. R.B. and her boyfriend travelled to City #2, for the purpose of meeting with the defendant to review the disclosure in the criminal case and prepare her defence. This was their first meeting in person. The defendant attended at the hotel where was staying. She had requested that the defendant call her when he arrived at the hotel; instead he came directly to the room. She was alone in the room as her boyfriend had gone down to work out at the gym. E.S. sat on the chair and R.B. sat at the end of the bed to discuss the court matter. The statement of facts includes the following:
During their discussions the accused frequently rubbed R.B.’s arms and asked how she got skin so soft. The accused asked R.B. what size her breasts were and tried to pull her shirt down to expose her breasts. The accused asked R.B. to show him her breasts. She backed away and told the accused, “No”. The accused then cupped R.B.’s left breast with his hand over the top of the clothes. Again R.B. said “No.” As the meeting went on the accused asked R.B. for a hug and placed his arms around her.
When he did so he reached through the armholes of R.B.’s shirt and slid his hands under her bra and rubbed her back. R.B. responded by backing away. The accused told R.B. that he wanted to hold her for a long time because he had a “hard – on”.
The accused then tried to kiss R.B. at which point she told the accused to leave and he did so.
25The Crown agreed that reports filed by the defence indicated that E.S. had issues with respect to Alzheimer’s disease.
(b) Conviction - Assault
26Justice M. McLeod of the Ontario Court of Justice presided over the conviction and sentencing. He noted that the defence was in a position where they would not be contesting the facts. The court found, on factual assertions made by the Crown as well as evidence in two reports filed with respect to E.S. , that:
“…obviously there was non-consensual touching which is the essential elements of the offense of assault but, in this case, the non-consensual touching took the form of cupping R.B.’s breast, hugging her and touching her under her shirt in the back and attempting to kiss her in the context of a situation where it’s less important in terms of the charge but important in terms of context where there were words uttered involved… Where E.S. suggested he had a “hard on” and those are the findings that are going to be made.”
27The court found that “on the basis of those findings there will be a finding of guilt on the assault.”
(c) Sentencing
28The sentencing took place in 2014. E.S. was represented by counsel on the sentencing as well.
29On sentencing, the court found that E.S.’s behaviour was consistent with the issues of dementia identified in neurological and psychiatric assessments filed.
30E.S. was granted a conditional discharge with terms including executing an irrevocable undertaking not to engage in the practice of law.
Liability
31The defendant was convicted of assault. He concedes that he was R.B.’s criminal lawyer at the time of the conviction. In his pleading, the defendant admitted the facts read in by the Crown as they supported the assault conviction. In conceding the facts read in by the Crown as they support the conviction for assault, I find that the defendant has conceded the non-consensual touching which took the form of cupping R.B.’s breast, hugging her and touching her under her shirt in the back and attempting to kiss her, which are the non-consensual touching element alleged by the Crown and found by the trial judge to support the finding of guilt on the assault. In any event, the uncontradicted evidence of R.B. is to the same effect.
32In the hearing, the defendant’s counsel conceded that he was not in a position to contest liability. In the absence of any other evidence, I find that the facts are sufficient to ground liability for battery and breach of fiduciary duty as alleged in the statement of claim.
1. Tort of Battery
33The defendant asserts as a matter of law that battery and assault are intentional torts, and the plaintiff has not proved intention.
34The tort of battery for sexual assault claims requires the plaintiff to prove, on a balance of probabilities, that the defendant intentionally contacted the plaintiff in a sexual manner. The plaintiff must also demonstrate that the contact was harmful or offensive; this is implied in the context of a sexual battery. The burden then shifts to the defence, to establish either an absence of intention or consent.
35The tort of battery is based on a violation of personal autonomy, which protects the right to control who touches your body. It includes physical contact or touching of a sexual nature as happened here. The elements of the tort of battery in the sexual context were considered by the Supreme Court of Canada in Non-Marine Underwriters, Lloyd’s London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 (SCC). McLachlin, J. for the majority held at para. 2:
As Goff L.J. (as he then was) stated in Collins v. Wilcock, [1984] 3 All E.R. 374 (Eng. Q.B.), at p. 378, "The fundamental principle, plain and incontestable, is that every person's body is inviolate." The law of battery protects this inviolability, and it is for those who violate the physical integrity of others to justify their actions. Accordingly, in my respectful view, the plaintiff who alleges sexual battery makes her case by tendering evidence of force applied directly to her. "Force," in the context of an allegation of sexual battery, simply refers to physical contact of a sexual nature, and is neutral in the sense of not necessarily connoting a lack of consent. If the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented.
36On the facts in the record before me, I am satisfied that a battery took place when E.S. touched R.B. in a sexual manner. On the evidence of R.B., the touching was harmful and offensive. In the absence of any evidence being filed by the defendant, the tort is made out.
2. Breach of Fiduciary Duty
37R.B. claims that E.S. breached his fiduciary duty as a lawyer, and in her affidavit states that: “I trusted [E.S.] and feel betrayed by him. I am humiliated and degraded by his actions.” They were meeting to discuss preparing her criminal defence when the assault took place.
38The solicitor-client relationship is by definition a fiduciary relationship, and the defendant has conceded that relationship.
39Engaging in sexual touching and comments in the context of a lawyer/client meeting is a breach of fiduciary duty, and a breach of the trust essential to that relationship. It is a unilateral exercise of power or discretion affecting the plaintiff’s personal autonomy and personal sense of trust and security. It is a betrayal of the duty of loyalty and betrays the trust which must be reposed in a lawyer. Criminal lawyers must be able to receive a client’s darkest secrets. When charged with an offence, the criminal lawyer has a critical role as the only person on a client’s side, the one expected to protect the client’s interests at a time of great stress and vulnerability, as she faces criminal charges in the legal system. So when E.S. improperly engaged in the sexual touching, and created an atmosphere of sexuality in referring to his hard-on, he breached the trust which is essential to the lawyer-client relationship, injuring the person he was charged to protect.
40I find that E.S. breached his fiduciary duty as a lawyer to R.B..
41Again, in the absence of any evidence, including the absence of any evidence as to E.S.’s mental capacity at the time, I find that the cause of action is made out. There is no genuine issue for trial, and no need for additional fact-finding powers.
42The plaintiff did not pursue intentional infliction of mental distress or breach of trust, and I do not deal with them here.
Summary Judgment and Damages
43The next issue is whether the plaintiff has established that there is no genuine issue respecting trial on damages.
44R.B. seeks general non-pecuniary damages in the amount of $60-70,000. In the evidence and in her factum, the plaintiff claims costs for psychological treatment in the amount of $2,000 to $5,000, and in oral argument sought leave to amend the claim to include these future care costs. Her counsel stated that she has elected not to seek punitive damages given the health of E.S.
45The uncontradicted evidence relating to damages is the affidavit evidence of R.B., who was not cross-examined, and the September, 2015 psychological – legal report of psychologist Dr. Ronald Seatter. The Form 53 Acknowledgment of Expert’s Duty dated August 31, 2016 was handed to the Court on the return date of the motion.
- Evidence of R.B.
46In her affidavit sworn in 2016, R.B. swears that she has suffered acute mental distress and loss of enjoyment of life. She says that she “trusted [E.S.] and feel betrayed by him. I am humiliated and degraded by his actions.” She states that she has isolated herself socially since the incident, stop communicating with friends and family, has difficulty forming and maintaining relationships with other persons, feels angry, hurt and sad, has difficulty concentrating and suffers from memory loss. She feels as though her situation is hopeless and she will never be happy again. She also states she has recurring dreams about what happened with E.S., or will experience a memory or see an image relating to the incident.
47She also states: “I have been unable to work since the incident because of my anxiety and depression.” I note that at the time she swore the affidavit in 2016, R.B. was incarcerated, albeit for approximately four months, and the incident happened four years ago.
- Dr. Seatter Report
48Dr. Seatter is a registered psychologist and a member of the College of Psychologists of Ontario. He assessed R.B. on August 26 and September 8, 2015. The Seatter Report states that R.B.’s current condition includes trauma, mood disorders, and relationship stresses that relate directly to the incident involving E.S. He found that R.B. suffers from post-traumatic stress disorder, depression and anxiety: the DSM-5 diagnoses are 309.81, Posttraumatic Stress Disorder, With Dissociative Symptoms of Depersonalization, and 296.23, Major Depressive Disorder, Single Continuous Episode, Severe, with Anxious Distress.
49He found: “R.B.’s trauma symptomology, emotional dysregulation, depressed mood, restricted affect, persistent symptom focus, persistent anxiety about said symptoms, and excessive time and energy devoted to these symptoms all indicate a high level of impairment.” He found that the current condition is a concinnity of trauma, mood disorders and relationship stresses that relate directly to the incident with E.S. (which he identifies as the [2012] incident.) He found that “the incident itself with its traumtogenic, peri-traumatic, and betrayal factors alone name themselves as the cause of the current difficulties,” and stated that: “it is reasonable to conclude that the incident of [2012] is the significant cause of her current psychological difficulties.”
50He found that a regimen of psychotherapy would be warranted, and she would need “acute psychological intervention for several sessions”, likely a block of 10 – 12 sessions initially because of both the severity and the chronicity of her difficulties. He estimated the cost of initial therapy sessions and future assessments ranges from $2000 - $5000.
Issues Raised by Respondent re Damages Claim
51The respondent raises three main issues with respect to the damages claim. First, he asserts the Seatter report is not properly admissible. Second, he raises an issue with respect to a defence medical which has not yet been conducted allegedly due to the incarceration of the plaintiff. Third, he raises a causation issue based on an extract of a transcript from what he states to be R.B.’s defence counsel’s submissions in a criminal proceeding.
Issue #1: Is the Seatter Report Admissible in Evidence?
52The defendant takes the position that the Seatter Report is not admissible, since it is not in the form of an affidavit, and “the submitting party may not shield its expert from examination by appending the report to an affidavit of someone completely unqualified to testify to the issue.”
53The purpose of adducing evidence by way of affidavit on motions is to ensure that the deponent is available for cross-examination. While evidence is to be given by way of affidavit on a motion, Rule 20.01(1) provides that a plaintiff may move “with supporting affidavit material or other evidence” for summary judgment. In this case, the plaintiff served a notice pursuant to section 52(2) of the Evidence Act that she intended to rely on the Seatter Report on the summary judgment motion, which I find to be “other evidence” functionally equivalent to an affidavit as Dr. Seatter was available for cross-examination.
54As stated in Kapulica v. Dumancic, 1968 419 (ON CA), [1968] 2 O.R. 438 (Ont. C.A.), when one party tenders a medical report under the provisions of the Evidence Act, that party tenders the author of the report as his witness as fully as if the author had testified, and therefore the author is subject to cross-examination by opposing counsel. In this case the section 52 notice served the same purpose as the affidavit: the defendant had nine months’ notice, and never sought to cross-examine Dr. Seatter.
55The Seatter Report was served on the defendant on December 10, 2015, together with a Notice to Rely on Medical Reports under section 52 of the Evidence Act. On December 10, 2015, R.B.’s counsel wrote to say that she intended to introduce the report in evidence at the summary judgment motion pursuant to the section 52 notice. In May, 2016, the parties attended in Civil Practice Court, where Justice McEwen endorsed the record stating that expert reports will be filed, and the parties waived cross-examination of experts.
56The parties thus waived cross-examination of experts at the time that the defendant was in possession of the Seatter Report, and had been given notice that the plaintiff would be relying on the Seatter Report on the summary judgment motion.
57Given the service of the section 52 Evidence Act notice for the purposes of the summary judgment motion, the Form 53 Acknowledgment, and the waiver of cross-examination, I find that the Seatter Report is admissible for the purposes of the summary judgment motion.
Issue #2: Should the Summary Judgment Motion be Adjourned to Obtain a Defence Medical?
58R.B. was taken into custody following conviction on a criminal charge in 2016, with a scheduled release date later in 2016. There is no evidence before me about the date and nature of the charge; it is only relevant with respect to timing of the defence medical.
59At the return date of the summary judgment motion, counsel for the defendant raised an issue regarding a defence medical by a psychiatrist or psychologist which he states that he was not able to arrange in time for this motion, as R.B. was incarcerated at the time he sought to schedule the defence medical, and the correctional facility could only schedule two and three hour blocks of time. In August, 2016 defendant’s counsel arranged a “triage” call with Justice Wilson on the defence medical issue. I take it this was a case management conference call pursuant to Rule 50.13. There is no endorsement in the file, and Mr. Elkin indicated that Justice Wilson had told him to raise the matter with the motions judge.
60I asked whether Mr. Elkin was requesting an adjournment of the argument as to whether or not summary judgment was appropriate in this case until after the defence medical was completed. Counsel for E.S. advised that he was prepared to proceed to argue that this was not an appropriate case for summary judgment without the defence medical. If that argument did not succeed, he submitted that summary judgment on the question of damages should be delayed for the purpose of completing a defence medical and the quantum of damages determination be deferred until that time.
61I was concerned with respect to steps taken to schedule the defence medical, and the effect of the plaintiff’s incarceration. After the hearing, I circulated two sets of questions to counsel, and received their submissions. On the basis of this information, I find that the defendant has failed to respond to the requirements of a summary judgment motion. He failed to comply with the CPC Order of Justice McEwen, and the consent timetable. Given this delay, there is no basis for adjourning the damages issue to obtain a defence medical. Had defence counsel responded appropriately, the defence medical could have and should have been arranged in time to have the material in his responding motion record.
62The litigation was commenced in March, 2014. In March 2015, R.B.’s counsel informed E.S.’s counsel that he would be bringing a summary judgment motion. The Seatter Psychological-Legal Report was served in December, 2015, with a section 52 Evidence Act notice, which indicated that the plaintiff would rely on the report on the summary judgment motion. The defendant’s first request to schedule discoveries was made on February 18; the discoveries were scheduled five weeks later, on March 24, 2016. In May, 2016, counsel agreed to a consent timetable scheduling the 1.5 day summary judgment motion for September, and requiring the defendant to file his responding record by July 15, 2016.
63Thus, the court order and consent timetable required all responding evidence to be completed by July 15, 2016. However, the first phone call from defendant’s counsel attempting to schedule a defence medical was July 14, 2016 – the day before the responding record was due.
64In his response to my written questions about scheduling the defence medical, counsel responded as follows:
The defendant consciously and deliberately took no steps to arrange a defence medical until the completion of examinations for discovery. In civil personal injury actions it is the practice of counsel to obtain defence medicals once the plaintiff has testified under oath. This is particularly important in cases where the credibility of the witness is paramount and the injuries are in the psychiatric realm.
65Defendant’s counsel indicates that after the discoveries he spoke with the defendant and family to obtain instructions, and contacted two psychiatrists on an informal basis to see whether they would be prepared to provide an opinion. He states then called the plaintiff’s counsel and learned the plaintiff was incarcerated. It is important to note that the first time defence counsel called to obtain a defence medical was on July 14, 2016 – one day before the responding record was due, and approximately two months before the hearing date. As importantly, both in court and in response to my questions after the hearing, defendant’s counsel states that it takes months to obtain a defence medical.
66After receiving the July 14 phone call requesting a defence medical, R.B.’s counsel contacted the correctional facility, and informed the defendant’s counsel that arrangements could be made to conduct the defence medical at the correctional facility, although in three sessions of two hours over one day, rather than an uninterrupted five hour session. Defendant’s counsel took no steps to schedule the defence medical at the correctional facility, and filed no evidence as to why this accommodation would not be sufficient.
67The court is generally entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial. There are exceptions to this; where evidence is missing due to the other party’s misconduct, or for reasons beyond the party’s control, then this assumption may be rebutted. However, “[i]n these circumstances, a burden of persuasion rests on [the party] to establish that it has taken reasonable steps to obtain the evidence it needs for the motion for summary judgment, and that the missing evidence would be material to the disposition of this motion”: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, 2014 CarswellOnt 2149, at paras. 27-28.
68The steps taken by defendant’s counsel in respect of the defence medical were too little, too late. Counsel for the defendant stated in response to my written questions that: “it simply was not practical for him to have obtained instructions and made arrangements for a significant psychiatric examination in the short time period that followed the examinations for discovery up until the incarceration of the plaintiff.” I disagree.
69The defendant knew in December, 2015 that Dr. Seatter’s Report would be relied on in the summary judgment motion. Knowing that it takes months to obtain a defence medical report, he took no steps to arrange a defence medical until the day before his record was due. Accepting that the defence medical is best done after discoveries, in the fact of a pending motion, the defendant took almost four months after discoveries to even call the plaintiff to arrange the defence medical. In this case, the defendant should have taken reasonable steps to schedule the defence medical, even if the timing required it to be completed after discoveries.
70He has filed no evidence as to why the alternate accommodation – conducting the defence medical at the correctional facility – was insufficient. In May 2016, before even attempting to schedule a defence medical, his office consented to the timetable – in the face of assertions today that it takes months to get a defence medical. Thus, the defendant has not met the burden of establishing that he took reasonable steps to obtain the evidence he required for the summary judgment.
71The defendant has also not met the burden of establishing that the missing evidence would be material to the motion; he has filed no evidence with respect to the types of information that might be gleaned on a defence medical, for example. He chose not to cross-examine Dr. Seatter, he chose not to cross-examine the plaintiff on her affidavit, and he chose not to file any evidence. In the absence of any evidence, the defendant has not met this burden.
Issue #3: Causation and Defence Counsel’s Submissions in a Criminal Proceeding
72On the motion the defendant filed a partial transcript of what appears to be R.B.’s defence counsel’s submissions in what appears to be a sentencing proceeding. The partial transcript was filed without an affidavit, and without identifying the date of the submissions or the nature of the proceeding. In his factum, defendant’s counsel then sought to rely on this extract of defence counsel’s submissions in a criminal proceeding to raise an issue with respect to causation of damages.
73However, as set out in R. v. Pahl, 2016 BCCA 234 at para. 55:
Counsel’s podium is not the equivalent of the witness box. In speaking to sentence, counsel make submissions, they do not give “evidence.”
74The transcript excerpt was not filed with an affidavit, but was handed up in a record on the day of the hearing. It is not properly identified. The submissions have no evidentiary value with respect to raising any issues relating to causation or extent of damages claimed.
Assessment of Damages
75The function of non-pecuniary damages in a sexual battery case is to provide solace for the victim's pain and suffering and loss of enjoyment of life, to vindicate the victim's dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts: G. (B.M.) v. Nova Scotia (Attorney General) 2007 NSCA 120, 2007 CarswellNS 552 at para. 132. Crowell, J.A. held at para. 127:
In the context of sexual assault and battery, the cases have recognized that there are fundamental, although intangible, interests at stake: the victim's dignity and personal autonomy. Thus, the award of damages should take a functional approach in relation to these interests in addition to the more familiar ones of pain, suffering and loss of enjoyment of life.
76Factors to be considered include:
(a) The circumstances of the victim at the time of the events, including factors such as age and vulnerability;
(b) The circumstances of the assault, including number, frequency, violence, and how invasive and degrading they were;
(c) The circumstances of the defendant, including age and whether he was in a position of trust, and
(d) The consequences for the victim of the wrongful behaviour, including ongoing psychological injuries: (G. (B.M.), para. 134)
77The plaintiff relied on three cases to establish the range of damages.
(1) In Evans v. Sproule, 2008 58428 (ON SC), 2008 CarswellOnt 8753(S.C.J.) the defendant police officer sexually assaulted the plaintiff in his police cruiser while on duty. Justice Chapnik awarded $150,000 for general and aggravated damages, $40,000 for loss of earning capacity, $12,342.00 for future therapy costs, and $25,000.00 in punitive damages. The plaintiff suffered from post-traumatic stress disorder, anxiety and depression requiring medical treatment.
(2) In Morgan v. Kent, 2008 CarswellOnt 1357 (S.C.J.) the plaintiff did not seek counselling, and the defendant was not in a position of trust or a fiduciary relationship; although dismissed on the basis of a limitation period, Justice Matheson would have awarded general damages in the amount of $25,000.
(3) In Pearson v. Mian, the court awarded general damages in the amount of $25,000 (2002 CarswellOnt 7286 (S.C.J.))
78I have also considered cases set out by Justice Glustein in Silvera v. Olympia Jewellery Corp., 2015 CarswellOnt 9277 2015 ONSC 3760 (S.C.J.), a case in which an employee was inappropriately touched on several occasions by her boss (see paras. 128-139).
79I fix general non-pecuniary damages in the amount of $70,000, on the basis of the uncontested evidence of the plaintiff and Dr. Seatter, and the comparable cases on damages, with pre-judgment and post-judgment interest at the Courts of Justice Act rate. Factors I consider include that E.S. was in a position of trust. He was R.B.’s lawyer. The battery took place in the first meeting with the new client, when they were meeting for the purposes of preparing her defence to a criminal charge. The touching was sexual, unwanted, and an invasion of R.B.’s personal dignity and autonomy. As a client, she was vulnerable. There was no violence involved, and took place on one occasion only. On the evidence before me, the consequences for R.B.’s psychological integrity were significant.
80I note that although there is much discussion of E.S.’s dementia, no evidence was filed to support the dementia, including the nature and extent, and its effects on E.S. The plaintiff states she is foregoing punitive damages in light of his health.
81The plaintiff claims costs of future therapy care in the amount of $2,000 to $5,000, based on the evidence of Dr. Seatter, for initial psychological treatment for approximately 10-12 sessions plus future treatment. I award $5,000 for future therapy costs and psychological counselling, with post-judgment interest at the Courts of Justice Act rate.
82Paragraph 25 of the Statement of Claim had claimed future care costs, including for therapy and counselling, the details of which would be provided prior to trial. In this matter, she moved for summary judgment on her claim. The basis of and amount for future care costs was included in Dr. Seatter’s report, provided in December, 2015. I find that the claim for the therapy and counselling as future care costs is validly made; at the oral hearing plaintiff’s counsel requested leave to amend if required, to claim the therapy costs. I find leave to amend is not required, but would have granted if it were. I note that notice of motion sought summary judgment in the amount of $250,000, which was substantially reduced in the factum and oral argument.
COSTS
83If the parties are not able to reach an agreement on costs, they may make costs submissions to me. The plaintiff may make their costs submissions to me in writing by January 18th, and the defendant by January 25th. Each party is restricted to three pages (not including the bills of costs).
84I would remind E.S.’s counsel to consider including a bill of costs with the responding submissions. The reasonable expectations of the unsuccessful party are an important factor in determining an amount of costs that is fair and reasonable. However, in order for this factor to be assessed, the court requires the bills of costs of all counsel: United States v. Yemec (2007), 2007 65619 (ON SCDC), 85 O.R. (3d) 751 (Ont. Div. Ct.) at para. 54. I note that all too often, unsuccessful parties fail to include their bill of costs with submissions, thereby depriving the court of information potentially relevant to the issue.
Kristjanson J.
Date: January 11, 2017
NOTE: This endorsement has been edited subsequent to the release to the parties to anonymize the following information: names, dates, and places.
Schedule “A” – Chronology of Litigation
March, 2014
R.B. issues Statement of Claim
August, 2014
E.S. files Statement of Defence
March 23, 2015
R.B.’s counsel informs E.S.’s counsel that he has instructions to bring summary judgment motion, and requesting dates for motion scheduling court
March 30, 2015
R.B. ’s counsel writes to confirm a new lawyer will be taking carriage of the matter
April 7, 2015
E.S.’s counsel acknowledges summary judgment motion request, and requests Affidavit of Documents, R.B. ’s psychiatric medical history and moving to examinations for discovery
May 6, 2015
R.B. provides draft Affidavit of Documents with Schedule A productions (sworn copy provided at discovery). Letter again raises R.B.’s intention to proceed with summary judgment motion and stated that the motion requisition form for CPC dates was submitted
May 20, 2015
E.S.’s counsel inquires whether R.B. will be available for examinations for discovery, and requests materials dealing with R.B.’s sentencing, pre-sentencing psychiatric materials, and status of criminal matter.
May 22, 2015
R.B. ’s counsel:
- confirms R.B. will be produced for discoveries
- suggests combining with cross-examinations on summary judgment motion
- provides motion scheduling court dates in June and July to schedule summary judgment motion
- confirms that she does not possess materials submitted at time of R.B. ’s sentencing
- questions relevance of status of criminal charges, requests to be advised of the relevance, and indicates she will reflect on the request.
After May 22, 2015
Counsel discuss availability to attend CPC
December 10, 2015
R.B. serves Psychological-Legal report of Dr. Seatter together with Notice to Rely on Medical Reports under s. 52, Evidence Act, and notifying that R.B. intends to introduce in evidence at summary judgment motion
December 10, 2015
R.B.’s counsel writes with dates for motion scheduling court in January and February, to set summary judgment motion date
February 18, 2016
E.S.’s counsel leaves voicemail re scheduling discoveries
February 29, 2016
Counsel discuss examinations for discovery, agree to discover R.B. March 24, and E.S.’s counsel informs R.B ’s counsel that E.S. would likely not be available to be examined for discovery
March 24, 2016
R.B. is examined for discovery
March 28, 2016
E.S.’s counsel states he has written to determine the medical condition and whereabouts of client, and that he suspects he is not going to be producible for discoveries but he will confirm
April 15, 2016
On consent, motion scheduling court adjourned to Civil Practice Court in May, 2016
May, 2016
Parties attend in CPC. Matter set for September 29-30. Timetable set and signed by counsel for both parties; Justice McEwen issues order setting September 29-30, 2016 dates and approving of timetable.
June 6, 2016
R.B. incarcerated
June 17, 2016
Deadline for R.B.’s motion record as per CPC timetable; R.B. ’s counsel files motion record in compliance with timetable
Sometime between March 24, 2016 and July 14, 2016
E.S.’s counsel speaks with defendant and family discussing costs and funding of psychiatric examination and potential experts. Counsel contacts two psychiatrists on informal basis to conduct examinations. Once counsel received instructions and obtained consent, he telephoned plaintiff’s counsel (July 14, 2016) to arrange.
July 14, 2016
E.S.’s counsel telephones R.B.’s counsel for the first time to arrange defence medical, and is informed that R.B. is incarcerated. R.B.’s counsel contacts the correctional facility and informs E.S. ’s counsel by e-mail that the correctional facility can accommodate two sessions, rather than a single five hour session, for a defence medical, and providing details as to how to arrange. No further steps taken by E.S.’s counsel.
July 15, 2016
Deadline for E.S.’s motion record as per CPC timetable; no materials filed.
July 25, 2016
E.S.’s counsel writes to R.B.’s counsel indicating that he does not believe the case is appropriate for summary judgment and suggesting a triage court attendance to obtain directions.
August 4, 2016
R.B.’s counsel returns from holidays and replies to July 25 letter with her availability in August (August 11, 12, 16-19, 22-26).
August 5, 2016
Deadline for completion of cross-examinations as per CPC timetable; no cross-examinations conducted.
August 23, 2016
Case Conference with Justice Wilson. E.S.’s counsel indicates that he arranged the “triage” call to raise issue that defence medical could not be completed due to incarceration; no order issued and no endorsement in the file, and E.S.’s counsel indicates Justice Wilson told him to raise the issue with the motions judge
August 26, 2016
Deadline for R.B.’s factum as per CPC timetable.
September 16, 2016
Deadline for E.S.’s factum as per CPC timetable.
September 21, 2016
R.B. ’s counsel files Supplementary Motion Record containing transcripts of E.S.’s criminal sentencing and plea; no objection was taken to the filing of that material
September 29-30, 2016
Summary judgment motion is heard as per CPC timetable E.S.’s counsel hands up factum and responding motion record containing only excerpts from defence counsel’s submission in a criminal proceeding involving R.B. No objection taken to handing up material (served on R.B. September 26, but not accepted for filing by civil motions counter as not complaint with Rules of Civil Procedure) E.S. has not provided an Affidavit of Documents or draft Affidavit of Documents by the return date.
October, 2016
R.B. scheduled to be released from incarceration