COURT FILE NO.: CV-08-0283-00

DATE: 2018 June 29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.M.

Plaintiff

– and –

ROBERT TERRANCE MARSON and THE HASTINGS AND PRINCE EDWARD DISTRICT SCHOOL BOARD

Defendants

Robert J. Reynolds, for the Plaintiff

S. Wayne Morris and Teri Liu, for the Defendant, The Hastings and Prince Edward District School Board

Michael J. Pretsell, for the Defendant, Robert Terrance Marson (not appearing)

HEARD at BELLEVILLE: March 20, 21, 22, 23, 24, 27, 28, 29, 31, 2017; May 1, 2017; written submissions received by July 31, 2017; oral submissions September 5, 6, 7, 2017

Publication Ban:

By Court Orders dated February 10, 2017 and March 20, 2017, under the authority granted in sections 135 and 137 of the Courts of Justice Act, R.S.O. 1990, c. C.43, there is a publication ban in effect in this case as to the identity of the plaintiff, his parents, siblings or child, and any complainant identified in the criminal proceedings as set out in Section (E) of Exhibit #2, or any information that has the effect or could have the effect of identifying the plaintiff, his parents, siblings or child, and any complainant identified in the criminal proceedings as set out in Section (E) of Exhibit #2 filed in this proceeding. Initials only will be used to identify these individuals and other persons as is necessary in my Reasons for Judgment.

REASONS FOR JUDGMENT

MACLEOD-BELIVEAU j.

Index

Paragraph

1. Introduction ........................................................................................................................ [1]

2. Issue .................................................................................................................................... [7]

3. Result .................................................................................................................................. [9]

4. Litigation History ............................................................................................................. [10]

5. Admission of Liability ...................................................................................................... [18]

6. Position of the Parties

a. K.M.’s Position ...................................................................................................... [22]

b. The School Board’s Position ................................................................................... [24]

7. Relief Sought

a. K.M. ...................................................................................................................... [27]

b. The School Board ................................................................................................... [29]

8. The Evidence – Overview and Analysis........................................................................... [30]

9. The Sexual Abuse by Marson, 1978 to 1980 .................................................................. [32]

10. K.M.’s Life before the Sexual Abuse by Marson, 1965 to 1978

a. K.M.’s Family and Friends ...................................................................................... [51]

b. K.M.’s Education and School History ..................................................................... [67]

c. K.M.’s Problems with Learning ............................................................................... [84]

d. K.M.’s Drug Use .................................................................................................... [97]

e. K.M.’s Psychological and Mental State ................................................................. [103]

f. Summary .............................................................................................................. [108]

11. K.M.’s Life after the Sexual Abuse by Marson, 1978 to 2017

a. K.M.’s Family and Friends .................................................................................... [113]

b. K.M.’s Education and School History ................................................................... [128]

c. K.M.’s Problems with Learning ............................................................................. [142]

d. K.M.’s Relationships ............................................................................................. [143]

e. K.M.’s Employment, Work Experience, and Taxable Income Sources ................... [161]

i. K.M.’s Ontario Disability Support Plan Application (O.D.S.P.) ................. [184]

ii. K.M.’s Canada Pension Plan Disability Benefit Application (C.P.P.) .......... [197]

f. K.M.’s Drug Use .................................................................................................. [199]

g. K.M.’s Psychological and Mental State

i. Overview .................................................................................................. [214]

ii. Dr. C. C. Brant – 1989 to 1994 ................................................................ [222]

iii. Dr. E. B. Conn – 1994 to 1996 ................................................................. [246]

iv. Dr. M. Schwarz – 1996 to 1997 ............................................................... [248]

v. Dr. E. B. Conn – 1997 to 2006 ................................................................. [251]

vi. June 2006 to July 2007 ............................................................................. [280]

vii. Dr. A. Singh – July 2007 to June 2012 ...................................................... [285]

viii. June 2012 to present ................................................................................. [322]

h. K.M.’s Current Psychological and Mental State ..................................................... [328]

i. Summary .............................................................................................................. [337]

12. Credibility of Lay Witnesses ......................................................................................... [362]

13. Expert Psychiatric Medical Evidence ........................................................................... [373]

a. Dr. A. Singh .......................................................................................................... [374]

b. Dr. D. Silver ......................................................................................................... [460]

c. Summary .............................................................................................................. [510]

14. Causation ........................................................................................................................ [519]

15. General Non-Pecuniary and Aggravated Damages ..................................................... [584]

16. Damages for Past and Future Income Loss .................................................................. [611]

17. Damages for Future Loss of Interdependent Relationship ......................................... [677]

18. O.H.I.P. Past Loss Subrogated Claim ........................................................................... [720]

19. Management Fee ........................................................................................................... [733]

20. Conclusion – Judgment to Issue ................................................................................... [736]

21. Pre-judgment Interest .................................................................................................... [739]

22. Costs ............................................................................................................................... [740]

23. Cross-claim .................................................................................................................... [741]

24. Further Calculations, Errors, Omissions, and Ancillary Matters ................................ [743]

25. Schedule ‘A’ – K.M.’s Earnings and Taxable Income Sources, 1987-2014 ............... [752]

26. Schedule ‘B’ – O.H.I.P. Past Loss Subrogated Claim Amounts ……………………[753]

1. Introduction:

[1] This is an action in negligence by an adult plaintiff against his teacher and his school board for childhood sexual abuse committed by his teacher at his elementary school.

[2] The plaintiff’s Statement of Claim seeks damages for assault and/or battery and breach of fiduciary duty as against his teacher, and for vicarious liability and alternatively negligence as against his school board. Liability for the plaintiff’s damages in negligence was ultimately admitted by the school board and the matter proceeded to trial as a contested assessment of damages. The teacher did not actively participate in the trial, although he remains a party defendant.

[3] The plaintiff K.M. (hereinafter referred to as “K.M.”) was sexually assaulted from 1978 to 1980 by his science teacher, the defendant Robert Terrance Marson (hereinafter referred to as “Marson”), when he was a student at Harry J. Clarke School in Belleville, operated under the Education Act, R.S.O. 1990, c. E.2, by the defendant, The Hastings and Prince Edward District School Board (hereinafter referred to as the “School Board”). K.M., now 51 years old, was 13 and 14 years old and in grades 7 and 8 at the time of the sexual abuse. Current age references in these Reasons for Judgment are as at the time of trial.

[4] To sexually abuse K.M., Marson used a small remedial reading lab room in the school, a petting or mini-zoo that he created in a room across from his own classroom at the school, and a storage room at the back of his science classroom. Marson used the reading lab to groom and sexually assault K.M. over his clothing multiple times. He used the mini-zoo as a means of luring K.M., who loved animals, for the purpose of sexually abusing him. Marson performed oral sex on K.M. in the mini-zoo and in the storage room at the back of his classroom on a total of five occasions.

[5] K.M. has had learning difficulties since early childhood. Because of his learning difficulties, K.M. struggled to learn throughout his schooling, from Kindergarten and grade 1 onward, and in particular with his math and reading. He had poor grades. He learned differently than others. He is more effective at processing information that he hears, rather than information that he sees or confronts more directly. K.M. is considered to be a “verbal learner” according to Dr. A. Wolfgarth, a clinical psychologist who assessed K.M. on December 19, 2002 when he was applying for income support from the Ontario Disability Support Program (hereinafter “O.D.S.P.”). K.M.’s learning disability is associated with “dyslexic tendencies”. He has difficulty with spatial perception, in that he does not see what is actually there. He sees things differently. He has difficulty with numbers, road maps, cell phones and gadgets. He has difficulty, for example, backing up a vehicle with a mirror. Importantly, Dr. Wolfgarth assessed K.M. as falling into the average range of intellectual ability. To be clear, the evidence in this case, including the evidence of Dr. D. Silver for the School Board, is that K.M. is an intelligent man.

[6] K.M. suffers from serious mental health issues and injuries as an adult. It is his position that his mental health injuries are the result of the sexual abuse perpetrated on him by Marson. K.M. suffers from major depression with dysthymia, post-traumatic stress disorder, substance abuse, and personality disorder of the antisocial and borderline type. K.M. is unable to sustain an interdependent personal relationship, and he has difficulty in keeping employment. He was assessed as being a person with a substantial disability and has received O.D.S.P. benefit payments since April 2003. K.M. was later approved for a Canada Pension Plan (hereinafter “C.P.P.”) disability pension in October 2012, with payments retroactive to September 2009, the maximum time allowed.

2. Issue:

[7] The central issue between K.M. and the School Board is one of causation: whether or not Marson’s sexual abuse of K.M. is “a” cause of some or all of the injuries K.M. claims. It is not necessary that the sexual abuse by Marson be the sole cause of K.M.’s injuries. The issue is whether K.M. has proven, on a balance of probabilities, that his injuries would not have occurred “but for” the sexual abuse by Marson. If it is determined that Marson’s abuse is “a” cause of K.M.’s injuries, then a further determination is needed of what damages, if any, are appropriate. The assessment of damages begins by considering what the original position of K.M. would have been had the sexual abuse not occurred. Damages are then awarded to place K.M. in the position he would have been in if Marson’s sexual abuse had not occurred.

[8] The parties disagree on the law of causation, its application to the facts of this case and how it affects the damages assessed. The parties differ on the application of the “crumbling skull” principle, which, if applied, would reduce any damages assessed for K.M. The School Board appeared to advance a crumbling skull qualification argument as applying to this case, although it did not explicitly acknowledge it. As a result, the School Board did not deal with whether the qualification applied at all, or whether or not it had established the requisites for the application of the qualification.

3. Result:

[9] The action is allowed. The School Board is 100% liable for K.M.’s damages for the sexual abuse by Marson. The impact of the sexual abuse on K.M. was severe. I assess K.M.’s total damages at $250,000.00 for general non-pecuniary and aggravated damages; $1,192,550.00 for past loss of income and $762,450.00 for future loss of income, for a total of $1,955,000.00 in total loss of income; $135,587.00 for future loss of interdependent relationship; $27,953.11 for the past loss subrogated claim of the Ontario Health Insurance Plan (hereinafter “O.H.I.P”); and $44,902.00 for a management fee, for a total damage award of $2,413,442.11 plus pre-judgment interest. The issues of the quantum of pre-judgment interest and costs are reserved for further submissions or agreement between the parties. The assessments of damages for K.M.’s total income loss claim, loss of future interdependent relationship and management fee are reserved and subject to the terms as set out in Item #24 of this judgment (“Further Calculations, Errors, Omissions, and Ancillary Matters”), only as to further calculations as specified.

4. Litigation History:

[10] K.M. commenced his civil action by way of a Statement of Claim issued September 23, 2008 and claimed damages in the amount of $3,500,000 and punitive damages in the amount of $500,000, plus interest and costs. The parties agree that there are no limitation period issues under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, due to the sexual nature of the claim. The parties agree that the cause of action arose on October 1, 2006, approximately when the claim became discoverable. Counsel have agreed that the time period from October 1, 2006 to the commencement date of this trial, March 20, 2017, is 10.5 years.

[11] An Amended Statement of Claim was issued May 26, 2015. The trial was scheduled to commence May 9, 2016 but could not proceed due to a lack of judicial resources in the East Region beyond the two-week assigned trial time and defence witness unavailability during the two-week trial time assigned. The trial was re-scheduled and started March 20, 2017. Submissions were originally scheduled to begin April 3, 2017. Counsel requested more time to prepare their submissions, which was granted. Submissions were re-scheduled to start on May 8, 2017.

[12] On May 1, 2017, a motion was brought by plaintiff’s counsel concerning the use of audio recordings in making his final submissions in the trial, in order to make direct references to the evidence as required by me. As a result of my motion decision released on May 15, 2017, found at 2017 ONSC 2972, reported as M. (K.) v. Marson, 138 O.R. (3d) 709, additional time was required for transcripts of all of the evidence to be completed and to be provided to counsel for use in their submissions, and to be provided to the court. Costs of the motion were reserved to be included in the cost submissions of the trial.

[13] The evidence in this case was complex. Complete transcripts of each witness’s evidence were received and made available to counsel and to the court. Written submissions in the trial were filed by July 31, 2017. Oral submissions were heard from September 5 to 7, 2017, which were transcribed for the benefit of the court. The decision was reserved. On February 27, 2018 and May 1, 2018, extensions were granted for delivery of these Reasons for Judgment to June 30, 2018 pursuant to section 123 (5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Counsel were so advised.

[14] In addition to K.M.’s own evidence, the plaintiff’s case consisted of evidence from five other lay witnesses—his mother A.F.; his younger sister S.G.; his maternal aunt M.I.C.; his former common-law spouse Y.G.; his current neighbour and friend T.A.—and evidence from two experts—Dr. A. Singh, a psychiatrist; and Professor J. Carr, an economist. The defendant’s case consisted of evidence from two experts—Dr. D. Silver, a psychiatrist; and Professor M. Charette, an economist. All four expert witnesses signed an acknowledgement of expert’s duty form as required pursuant to Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[15] Other initialled individuals referred to in these Reasons for Judgment are: J.C., K.M.’s older sister; D.M., K.M.’s father; M.M., K.M.’s son; K.W., a former girlfriend of K.M.; C.P., a former girlfriend of K.M. and the mother of M.M. (the son of K.M. and C.P.); and B.H., a high school friend of both K.M. and Y.G.

[16] The trial proceeded before me as a contested assessment of damages. Exhibits #1, #2 and #3 are joint briefs containing 682 pages of relevant documents of medical notes, school reports, employment records, criminal proceedings and related materials, O.D.S.P. and C.P.P. disability pensions materials, the subrogated claim amounts of O.H.I.P., and K.M.’s income tax returns from 1987 to 2014.

[17] The contents of Exhibits #1 to #14 were agreed by both counsel to be admissible on consent as evidence of the truth of their contents. The weight and effect of these documents is a matter for determination by the court. The Experts’ Reports Brief, Exhibit A, was filed for the assistance of the court and the expert witnesses during their testimony.

5. Admission of Liability:

[18] Just prior to the original trial date of May 9, 2016, by faxed letter to K.M.’s counsel on May 4, 2016 (Exhibit #4), the School Board admitted its liability in negligence as alternatively pleaded in paragraphs 14 (2) and 14 (3) of K.M.’s Amended Statement of Claim. Specifically, the School Board admitted it was negligent in that it failed to establish a system of reasonable checks and precautions so as to minimize the risk of such behaviour on the part of Marson and failed to take reasonable steps to monitor the activities of Marson so as to ensure that such activity would be discovered and halted.

[19] The School Board admitted that it failed to take steps to deal with Marson in and around September 1976 and thereafter, so as to prevent his abuse, assault and battery against the plaintiff K.M. Specifically, the School Board admitted that the school’s principal was alerted to a parent’s suspicion about Marson in or around September 1976, and failed to take sufficient steps over the ensuing years to supervise Marson’s interaction with the students.

[20] The School Board advised, as confirmed by plaintiff counsel’s letter dated May 16, 2016 (Exhibit #5), that it would neither admit nor deny the alleged assaults, and would be calling no evidence to rebut K.M.’s evidence of those assaults. In particular, the School Board advised that it would not be calling Marson as a witness. It was agreed that records, of which notice had been given under section 35 of the Evidence Act, R.S.O. 1990, c. E.23, had been created in compliance with the requirements of section 35 of the Act.

[21] Marson and his counsel did not appear at this trial, but knew the trial was proceeding. Marson does not contest his liability to K.M. and made a $50,000.00 advance payment to K.M., depleting the equity in his home, before the commencement of this trial. The date this payment was made was not provided to the court.

6. Position of the Parties:

a. K.M.’s Position

[22] K.M.’s position is that the childhood sexual abuse perpetrated on him by Marson is a major cause of his mental health injuries in adulthood. K.M. has been diagnosed as suffering from major depression with dysthymia, post-traumatic stress disorder, substance abuse, and a personality disorder of the antisocial and borderline type. K.M. has been diagnosed as being unable to sustain an interdependent spousal relationship, and he has difficulty in keeping employment, such as a regular job. K.M’s position is that the School Board is liable for K.M.’s entire injuries if the sexual abuse is proven to be at least “a” cause but not the only cause of K.M.’s injuries. K.M.’s position is that even if other factors may have been contributing causes to K.M.’s disorders, it does not reduce the School Board’s 100% liability for K.M.’s damages. K.M.’s position is that his claim has been amply proven on a balance of probabilities and that he is entitled to an award of damages in the amounts as claimed by him.

[23] K.M.’s position is that prior to the sexual abuse by Marson, he was a happy, energetic child who functioned well in his family and in the classroom despite his learning difficulties that made learning a struggle for him since he began school. His position is that after the sexual abuse, he became a disruptive influence in the classroom, a runner from school and a heavy user of drugs. Within a few years K.M. was suffering from severe psychological problems, including chronic major depression, anxiety attacks, and diagnosed personality disorders. K.M. has been unable to hold a job despite being a hard and effective worker when he could work. K.M.’s psychological and mental health problems will prevent him from sustaining an interdependent spousal relationship.

b. The School Board’s Position

[24] The School Board’s position is that K.M.’s ongoing mental disorders have been caused not only by the sexual abuse but by K.M.’s genetic makeup, his life experiences, and conditions in K.M. that existed prior to the abuse by Marson.

[25] The School Board submits that it need not put K.M. in a better position than his “original position” and it should not have to compensate K.M. for any damages that he would have suffered anyway. K.M.’s “original position” is the position he would have been in absent the School Board’s negligence. It is therefore necessary not only to determine K.M.’s position after the tort, but also to assess what his “original position” would have been. It is the difference between his “original position” and his “injured position” that is the measure of K.M.’s loss. The School Board’s position is that K.M. has suffered injuries from traumas other than the sexual abuse by Marson and that the court must therefore untangle the multiple interlocking factors and confine any damages award to only those arising from the sexual abuse committed by Marson. The School Board’s position is that K.M. suffered from trauma and mental health injuries prior to the childhood sexual abuse by Marson and that there is a “measurable risk” that it would have led to the development of at least part of K.M.’s mental disorders, even if the sexual abuse had not occurred. The School Board submits that as a result, K.M.’s damages should be reduced by 50%.

[26] The School Board’s position is that prior to the sexual abuse by Marson, K.M. had a history of behavioural issues, drug use, and poor grades. His prior family life was dysfunctional. K.M. had a genetically determined characterological depression, which has caused or contributed to his disorders, and all these factors had a negative impact on K.M.’s psychological development. The School Board’s position is that K.M.’s multiple disorders, including his depression and personality disorder, are genetically and environmentally determined, quite apart from any of the abuse committed by Marson. K.M.’s grades were uniformly poor, both before and after any interaction with Marson, because of K.M.’s learning disability. He failed grade 6 and had to repeat it. There was never any expectation that K.M. would finish high school. K.M. is not motivated to work and works intermittently. He has some success with relationships although he is not in a spousal relationship currently. He maintains a positive relationship with his son, age 18 at the time of trial. K.M. maintains himself on disability on the basis of his depression, dyslexia and learning disability. He has not sought meaningful employment since 2003. The School Board does not dispute that K.M. is now unable to form an interdependent relationship, based on the evidence of its own psychiatrist, Dr. Silver, but the School Board disputes the quantum of the claim.

7. Relief Sought:

a. K.M.

[27] K.M. submits that $2,867,625.80 in damages for sexual abuse, assault, and battery—plus pre-judgment interest of $639,176 for a total of $3,506,801.80—is a reasonable assessment of his damages. His claims are for general damages, damages for loss of past and future income, damages for impairment of his ability to sustain an interdependent relationship (hereinafter referred to as “loss of interdependent relationship”), an O.H.I.P. subrogated claim, a management fee covering the cost of obtaining advice as to how to invest any award obtained, pre-judgment interest, and costs. K.M. makes no claim for damages for the effect that his learning disability has had on his life. K.M. did not pursue his claim for punitive damages.

[28] The damages claimed by K.M. are as follows:

a. General Damages

$ 250,000.00

b. Damages for loss of past and future income (Past loss $1,425,630; future loss $918,538)

2,344,168.00

c. Damages for loss of interdependent relationship

178,366.00

d. O.H.I.P. subrogated claim

40,246.80

e. Management fee

54,845.00

TOTAL DAMAGES

$2,867,625.80

f. Pre-judgment interest on general damages (5% for 10.5 years, 52.5%)

131,250.00

g. Pre-judgment interest on the past income loss ($1,425,630) and O.H.I.P. past loss (3.3% for 10.5 years, 34.65%)

507,926.00

TOTAL PRE-JUDGMENT INTEREST

$639, 176.00

K.M.’S TOTAL DAMAGES:

$3,506,801.80

b. The School Board

[29] The School Board submits that a reasonable assessment of K.M.’s damages is in the range of $896,187.50 to $934,312.50, broken down as follows:

a. General Damages

$ 100,000.00 to 125,000.00

b. Damages for loss of past income ($375,000) and loss of future income, future loss of earning capacity ($200,000)

575,000.00

c. Damages for loss of interdependent relationship

10,000.00

d. O.H.I.P. subrogated claim

0.00

e. Management fee

28,750.00

TOTAL DAMAGES

$713,750.00 to $738,750.00

f. Pre-judgment interest on general damages (5% for 10.5 years, 52.5%)

52,500.00 to 65,625.00

g. Pre-judgment interest on the past income loss (3.3% for 10.5 years, 34.65%)

129,937.50

TOTAL PRE-JUDGMENT INTEREST

$182,437.50 to $195,562.50

K.M.’S TOTAL DAMAGES:

$896,187.50 to $934,312.50

8. The Evidence – Overview and Analysis:

[30] I have separated the evidence and the exhibits in this case into various sections for review. Within the various headings are a number of sub-headings that may necessarily overlap as the lifetime of K.M. is reviewed together with the financial evidence and legal principles in this case. The headings and sub-headings are not mutually exclusive, and the judgment is to be read as a whole.

[31] The evidentiary review in these Reasons for Judgment about K.M. is very comprehensive in order to obtain an accurate picture and understanding of K.M.’s life, both before and after the sexual abuse by Marson, and the timing of important intervening events in K.M.’s life. The approach taken has been generally chronological. Exhibit numbers and page locations in the exhibits, where appropriate, have been added for ease of reference and review. I have used the terms sexual abuse, sexual assault, assault and battery to refer to the sexual acts that K.M. suffered by the actions of Marson. These terms reflect how the actions of Marson are referred to depending on the nature of the proceedings and the circumstances, and by the evidence and by the witnesses in their evidence.

9. The Sexual Abuse by Marson, 1978 to 1980:

[32] The background facts as to the nature of the sexual abuse by Marson on K.M. are not in dispute, but are important in placing the events occurring between the parties in context.

[33] Marson was a grade 7 and 8 elementary school teacher at Harry J. Clarke School from September 1, 1972 to June 30, 1985. He began teaching for the School Board on September 1, 1962. He taught at other schools before and after Harry J. Clarke School. Marson retired from the School Board on June 30, 1997. He continued to volunteer after his retirement at a school within the School Board until the fall of 2006, when the police contacted school officials about the investigation into Marson’s criminal conduct and he was removed as a volunteer. Marson was in a position of trust and authority as a teacher in relation to K.M. as a student. Marson, born May 9, 1940, was 38 years old in 1978 when he began to sexually abuse K.M. who was 13 years old.

[34] It is not disputed that Marson established a petting or mini-zoo while at Harry J. Clarke School. Marson kept animals—including chinchillas, rabbits, mice and rats—in stacked metal cages in a room across the hall from his classroom. Marson then selected students within the school to “volunteer” to help him care for the animals, usually grade 8 boys. This extra work involved working with Marson during recess and after school and allowed Marson to develop a relationship with his victims.

[35] K.M. needed extra help with his reading and was kept in at recess and other times to do extra work to improve his reading abilities. This work was done in a small remedial reading lab, which had a number of carrels or small cubicles with privacy screens and a projector flashing words across a screen in a darkened room. K.M. would often be left there alone and unsupervised during his sessions, which were set up by the remedial teacher responsible for the lab.

[36] K.M. testified that he was 13 years old and in grade 7 (1978 to 1979) when Marson first began to sexually assault him by coming up behind K.M.’s chair in the reading lab. The reading lab was some distance away from Marson’s classroom and had no windows. The door would sometimes be left open and sometimes closed. In K.M.’s words, Marson would “rub my privates, through my pants, squeeze my neck”. K.M. said “it was brief and fast, thankfully”. K.M. testified that it made him “super nauseous. Not the normal nauseous that I get at times – like extreme nausea”. Marson would squeeze K.M.’s neck to hold him in place. Then Marson would leave. K.M. said nothing to anybody. It happened “multiple, multiple times”. To this day, when K.M. watches television at home, sometimes the closed-captioning on the T.V. gives him “freak-outs … [e]ven after all these years”. He tried to deal with it by getting sent to the office or any type of task. He felt ashamed. He felt terrible and continues to today, even all these years later.

[37] Marson gave K.M. Polaroid photographs of some young kid and cut-outs of “porno pictures”. The porno pictures were from magazines, some depicting oral sex from a gay magazine. Sexually explicit details of the Polaroid photographs of a boy with “a penis in his mouth”, and of a boy with a penis “½ way …in his bum”, are referred to in K.M.’s statement to police (Exhibit #2, Tab #E2, pp. 322-26). In his statement, K.M. stated that he was sickened by those photographs and always will be for the rest of his life. K.M. stated he still feels sorry for that child in those pictures and that they truly affected his life, even before he became a parent.

[38] The sexual abuse escalated beyond rubbing K.M.’s genitals over his clothing. In grade 7 and into grade 8 (1979 to 1980) when K.M. was 14 years old, Marson “chose” K.M. to clean the cages in his mini-zoo. When K.M. was getting wood shavings or bales of pine bedding for the cages, in K.M.’s words, Marson “come up behind me, grabbed my neck, rubbed my arse a little bit, then reached around, rubbed my front, moved the shavings, got in there, dropped to his knees, and performed oral sex on me”. Nothing was said. K.M. would leave and go home. It made K.M. feel terrible, and he had extreme nausea. The work in the mini-zoo took place at recess and after school. Often, K.M. was the only student there with Marson. K.M. recalled three such incidents of oral sex in the mini-zoo.

[39] There were two more similar incidents of oral sex in the supply storage room at the back of Marson’s science classroom. The supply room was behind the desk in the classroom and was used for storing “science stuff”. Marson would put K.M. in there, pinching his shoulder. One or two of the five total incidents of oral sex, K.M. recalled, took place in grade 8.

[40] K.M. testified that he never fully took his pants off or removed his clothing. Marson never removed his clothing and there was no nudity. There was no touching of Marson by K.M. K.M. had no interaction with Marson outside of the school. The abuse then stopped. When asked “why”, K.M. testified that he thought it was because he was starting to mature, and maybe someone else came along, and he was getting bigger. K.M. dealt with these events by trying to “forget all that part” of his life. He got a paper route, and did yard work—anything to get home and anything not to be at school. K.M. took odd jobs after school to get away from Marson. In his statement to police, K.M. wrote that he did not wash his “privates” or genitalia, trying to discourage Marson from sexually assaulting him. K.M. described that he became jaded and angry, and noticed differences in his mood. He was angry. After grade 8, K.M. did not see Marson again as K.M. attended a different school.

[41] The police began their investigation of Marson on August 8, 2006 as a result of an incident report that they had received from another victim. On October 13, 2006, Marson was arrested for sex-related offences on another victim. Marson’s arrest was reported in The Intelligencer, the local Belleville newspaper, on October 25, 2006 (Exhibit #2, Tab #E8), advising of who the investigating officer was and asking for anyone who may have additional information about this case to contact the police. K.M.’s mother was reading the newspaper article and told K.M. that Marson had been “picked up for pawing at some kids”. That’s when K.M. told his mother, “He was pawing at me, too”.

[42] K.M. came forward and first spoke to police on October 30, 2006 (Exhibit #2, Tab #E2, p. 296). Over the next several days, K.M. prepared a detailed, 51-page hand-written/printed statement (Exhibit #2, Tab #E2) outlining for the police his recollection of the sexual abuse by Marson on him and the impact it had on his life. He began writing the statement on October 30, 2006. He wrote again on November 1 and 2, 2006. He went to the Belleville General Hospital (November 7, 2006) to get medication for his anxiety. He tried to start writing again on November 12, 2006 and could not as he was having such a hard time dealing with it. Portions of his statement were then re-written on November 13 at 2:30 pm when he was in a “better mood”. He wrote on November 13, 2006 for the last time. I note pages 10 and 36 of the hand-written statement, which would have been pages 305 and 330 of Exhibit #2, have been lost since 2006 when K.M. had the statement photocopied, although part of page 10 appears to be reproduced at page 295 of Exhibit #2.

[43] In his statement, K.M. referred to his learning disability, which he was led to believe had something to do with being “born blue”. He wrote that it’s believed that it had “a life-long affect [sic]” on him and his ability to learn and on some of his mental health issues to this day, as he was lacking oxygen at birth (p. 297). He wrote that at Harry J. Clarke School, the class he was in was referred to as the “ACCO squad”—ACCO being “dumb”. He wrote that he was struggling at school while his sisters were doing well. He was put in “special needs” classes because of his problems with learning. Marson had the trick of always knowing where he was (p. 301). K.M. felt that Marson’s private rubs went on far too long, writing “As I got my first hard ons, I had to wonder maybe this is O.K, maybe I was special??” (p. 301). His statement detailed how K.M. felt he was disclosing secrets to a complete stranger and that he never personally believed he would get to tell how the “actions of one man” could have affected his life and his ability to show his feelings in what may be considered “normal”. One of the reasons he never told anyone was because of the experience of his younger sister, who did tell about events with a male neighbour and nothing came of it, even after detectives came to their house, and how much it hurt his mother. K.M. thought no-one would believe him.

[44] His statement reflected that K.M. felt guilty, dirty, ashamed, and depressed and that he had his childhood stolen from him. He just felt like it was his fault, that he must have done something. K.M. expressed his anger at the school for allowing the animal cages that provided cover for Marson to prey on K.M. and other kids (p. 318). K.M expressed his anger that he “had enough problems trying to learn let alone having to worry about when that sick ‘f….r’ would come around and grab you or rub against you – mini-zoo, my ‘f…en’ ass, that was his personal play land” (p. 318).

[45] In his statement, K.M. states that Marson had touched him, “well over 100 times easy, rubbed against me probably more” (pp. 331-32). K.M. stated that he did not wash his “privates” during the years of the sexual abuse as he thought that would keep Marson away from him. It did not work. K.M. wrote that he compulsively cleans there now, 2-3 showers or baths a day, as he thinks he’s dirty there (pp. 332-33). K.M. wrote, “By no uncertain terms should my first boyhood erections be at the hands of a man” (p. 300). He wrote that it affected his relationship with his father and his ability to be at ease or trust him. He stated that it was his feelings for his Mom that have kept him alive for all these years. He hoped that it would not affect his relationship with his girlfriend, Y.G., who is “very, very special”. He wrote that he has not tried to kill himself since his son was an infant. He expressed at the end of his statement that he wished he had never come forward, but he would do what is asked of him in hopes that this “petifile” [sic] will never touch any more boys. He then stated, “God help anyone who ever touches my child” (pp. 343-44).

[46] On January 23, 2008, Marson was convicted by Justice S. Hunter in the Ontario Court of Justice of four counts of indecent assault and one count of common assault on a total of five victims (one count per victim), including K.M. Marson was sentenced to 2 years in penitentiary followed by 3 years of probation on terms. Marson pled not guilty to the charge involving K.M. (and one other victim), as Marson had medical conditions that had a substantial impact on his memory and his ability to recall past events. Marson did not deny the facts as alleged by K.M. in the criminal trial and offered no evidence to contradict K.M.’s allegations of the sexual abuse. Counsel agreed that a statement of evidence would be read in and be accepted as admissible evidence in the criminal case. Marson was found guilty of indecently assaulting K.M. contrary to section 156 of the Criminal Code. Marson did not appeal his criminal conviction or his sentence (Exhibit #2, Tabs #E4-7).

[47] I find as a fact in this civil trial that the evidence supports the finding that K.M. suffered sexual abuse, assault and battery by Marson as alleged in his Amended Statement of Claim and as testified to by K.M. The assaults included rubbing K.M.’s genital area over his clothing well over 100 times, and five acts of forced oral sex. The abuse lasted one to two years and did, I find, involve use of physical force by Marson in the grabbing and pinching of K.M.’s neck and/or shoulder area to maintain control of him during the abuse.

[48] The disclosure of these most personal events, then and now, was clearly difficult for K.M. I find delayed disclosure is not unusual in victims of sexual abuse, and I draw no negative inferences from the delay, which was triggered by the external event of Marson being arrested in relation to another victim. I find K.M. was more vulnerable because of his learning disability, which isolated him in a remedial reading lab to help him learn and made him an easier, more accessible target for a predator like Marson. It provided Marson the opportunity to sexually abuse K.M.

[49] While there was physical force used, there was no violence, sexual penetration, or nudity by Marson. I find that it did not lessen the effects of the sexual abuse on K.M. The sexual abuse violated K.M.’s personal integrity. The repeated fondling and the forced oral sex by his teacher while physically controlling him to keep him in position had devastating mental health consequences for K.M. and changed the course of his life forever.

[50] I find the impact of the sexual abuse by Marson on K.M.’s life was severe.

10. K.M.’s Life before the Sexual Abuse by Marson, 1965 to 1978:

a. K.M.’s Family and Friends

[51] K.M. was born August 10, 1965 in Belleville, Ontario. He was part of a family of five consisting of his parents and two siblings: an older sister J.C., born in 1962; and a younger sister S.G., born in 1969. His parents married in 1959. His father D.M. had a university degree and worked as a warehouse manager. His mother A.F., now aged 77, completed grade 11 in high school and worked primarily in the banking field when not rearing the children, retiring from the bank around the year 2000. His mother continues to work today as a drug store clerk and demonstrates a strong work ethic.

[52] K.M. in his evidence described his early years in positive terms. K.M. testified that he and his sisters were close when they were younger. His sisters learned differently than he did. They got to play outside while he had to stay in a lot to do flash cards with his mother to improve his learning. Even now, K.M. struggles to learn new things.

[53] K.M.’s mother A.F. testified that prior to Marson, K.M. had trouble in school compared to his sisters, but out of school, K.M. was “just a normal, happy boy”, “always a happy boy”. He had lots of friends, and loved animals. She never observed any signs of any mental problems or depression or anything like that in K.M. She was unaware of any drug use by K.M. before Marson.

[54] A.F. was cross-examined about K.M.’s childhood being a happy one. Dr. Singh’s comments on K.M.’s past history in his June 15, 2009 expert report—about K.M.’s childhood being unhappy—were put to her. Specifically, Dr. Singh had reported that K.M.’s childhood was unhappy, that his mother would tie him up to a tree so he could not take off, that his father was aloof, and that to K.M., his mother had a tendency to be overprotective and overbearing. A.F. testified that she had no idea why K.M. would have told that to Dr. Singh. She did not agree that K.M. was unhappy. She testified that maybe because he was not doing well in school like the girls (his sisters), it bothered him. She agreed she may be overprotective, but she denied being overbearing, even now.

[55] His mother testified that as a child, K.M. was very helpful, always doing painting and snow shovelling. She could see him as an adult doing things like painting or cement work—something in a trade. She thought K.M. would grow up and have a normal family. He loved kids and animals.

[56] K.M.’s younger sister S.G. testified that she also attended Bayview Public School and Harry J. Clarke School. She achieved grade 12 in high school with average grades. She attended Algonquin College but did not complete her course. She began instead training and then working as a phlebotomist at the local Belleville General Hospital. She married and moved to the Kitchener area. She has worked at various jobs: as a phlebotomist; as a pharmacy assistant; entering computer data; and as an embroiderer. She divorced and re-married and had two children. She worked part-time until her children were older.

[57] S.G. testified that she was hired by GE in 2008. She has some welding, braising, and soldering credentials and she put rotors together in a factory. She has her fork-lift, crane and jib-hoist tickets. When laid off, she works at her own embroidery business, which she started in 2010. She separated in 2011 and is now in a new relationship. During her last layoff, she cared for her ailing father, D.M.

[58] S.G. testified that her older sister J.C. completed high school like she did and did not do any formal post-secondary schooling. J.C. began instead working at a bank, which she did for many years. J.C. now works for social services as a welfare fraud investigator. She has been married four times, with one of her husbands passing away. She has been married to her present husband for almost eight years. S.G. testified that she and her sister have not been on their own very often, as they have been in relationships.

[59] S.G. testified that to her knowledge, neither she, her sister, nor her mother have ever been treated for depression. She testified that her father D.M. had a nervous breakdown from his job and he could not remember things. Her father once forgot her at church. She testified that her father’s problem was with his memory. He has been now diagnosed as having myasthenia gravis, which affects his memory and his mobility and causes difficulties in his eating and swallowing. She testified that D.M. does not have depression or a personality disorder. In cross-examination, she testified that she was unaware that her father was being treated by Dr. Conn, a psychiatrist. Dr. Conn’s letter of January 11, 2005 (Exhibit #1, Tab #A58, p. 138) was put to her, where Dr. Conn stated that K.M.’s home environment had its problems and that it seriously affected K.M.’s development emotionally. If there were such problems, S.G. testified, she was unaware of them.

[60] S.G. testified that her home environment when she was a little kid was “normal”. It was not dysfunctional. She does not recall seeing K.M. tied up to a tree, which came up in other evidence, but agreed that these sorts of harnesses with kids were commonplace at that time.

[61] S.G. described her relationship with K.M. before Marson as “awesome”. She always was his little sister and got to tag along. He was happy, and they were a happy family. K.M. being in a remedial class did not seem to bother him. There were no signs of mental health injuries, disorders, depression, or personality problems. K.M. was very laid back, friendly and out-going. He had lots of friends. Animals would flock to him. He played hockey. Their parents went to his games. She described him as being her protector, and he always made her feel welcome with his friends. He had a great sense of humour, and he liked to joke. His learning disability at the time was never a big deal and there was no drama about it. He flipped his letters and had trouble with numbers.

[62] It was news to S.G. that K.M. had stated in his application for O.D.S.P. (Exhibit #1, Tab #F1, p. 430) that he had been “mentally ill [his] entire life” and that he believed it was “passed to [him] genetically” from his father, and that K.M. had told Dr. Singh that his childhood was not a pleasant one. She agreed that from her perspective K.M.’s childhood was happy, but she could allow for the possibility that from K.M.’s point of view, it was not.

[63] Looking back before the sexual abuse, she testified that as a little kid, she never saw anything in K.M. that was a sign or indication of depression or some other personality disorder. In cross-examination she was asked to look at K.M.’s referral form from the mental health clinic when he was age 11 for his inability to learn (Exhibit #1, Tab #A5, p. 63). S.G. would have been age 7 at the time. She knew that K.M. was in the remedial class run by Mrs. Whiting at school. She was asked if she had ever heard any discussion within the family or was aware that K.M. had been diagnosed by a medical professional as having a “childhood behaviour disorder”, and she answered “no”. She was further cross-examined about the reference (Exhibit #1, Tab #A35, p. 110) that K.M. said “he has been depressed since age 10”. She did not see anything to indicate that.

[64] K.M.’s sister S.G. testified that if K.M. had not been assaulted, she thought “[K.M.] would have been married, with a whole bunch of kids, and lots of animals around”. She said K.M. was always a “tinker” when he was little and would help out. He always loved animals and kids.

[65] K.M.’s maternal aunt M.I.C., now aged 75, testified. She is the younger sister of K.M.’s mother and has a grade 12 education. She has lived in Stouffville, Ontario most of her life. She owned and operated a sanitation supply distribution business until she sold it in 2007, with a transition period ending her involvement in the business completely in 2011. She was married and had two sons. Her husband passed away in 2002. She would see her nephew K.M. on family occasions in Belleville about four times a year prior to her husband passing away.

[66] His aunt M.I.C. described K.M. as a little boy as being “funny, laughing, loved animals, loved kids. Just a nice little boy”. He was a “happy little boy”. In the early years, she did not see any indications or signs of depression or behavioural problems. She was aware K.M. had some difficulties and did not do particularly well in school. She would not have said he was a “star pupil”. Her first awareness that there were some sort of problems arising from K.M.’s behaviour was before he was sent to Saint John’s School when K.M. was in his teens, but she cannot say how much before. The evidence is that K.M. started at Saint John’s School in the summer of 1980 and enrolled in grade 8 in September 1980 when he was 15 years old.

b. K.M.’s Education and School History

[67] K.M.’s school records are before the court (Exhibit #2, Tabs #B1-24). Due to their age, some of school records have been photocopied from microfiche and are difficult to read, and some are incomplete. I have referred to the school records from Saint John’s School of Ontario as such, but they are also referred to as “St. John’s School”. They are one and the same school.

[68] Prior to K.M. starting school, the family moved from Belleville to Thornhill for his father’s work. From the school records, K.M. attended grades 1 to 3 at Baythorn Public School within the jurisdiction of the York County Board of Education. There was reference to Kindergarten by both K.M. and his mother A.F. in their evidence, but there were no school records about Kindergarten. K.M.’s medical records do indicate that he had a school medical on June 8, 1970, at 4 years of age, which may have been for Kindergarten, as he did not start grade 1 until he was 6 years of age.

[69] K.M. started grade school in September 1971 at 6 years of age. In grade 1 (1971-1972), his teacher described K.M.’s efforts at school as trying very hard, having a good attitude, being co-operative, helpful, considerate, getting along very well with his peers, being enthusiastic about each new situation, and eagerly participating. His teacher recorded that in reading, K.M. relied totally on memory and that he was steadily improving in math. The signs of his difficulty in learning at school were present at an early age. A.F. wrote a parent note on K.M.’s grade 1 report card that said, “We are disappointed in [K.M.’s] progress and upset that it was not brought to our attention sooner.”

[70] In grade 2 (1972-1973), his teacher described K.M.’s efforts at school as being usually a hard worker, usually putting a good effort into his work, listening carefully and quickly grasping meaning from stories, being an eager student, and willing to help. His teacher recorded that K.M. was still having difficulty with math. His reading was improving. His grades overall were C’s (average) with a D (fair) in math.

[71] In grade 3 (1973-1974 – first term), K.M.’s oral reading was improving and he still needed extra help with math. His first term grades overall were C’s (average) with a B (good) in oral reading and a D (fair) in math and social studies.

[72] After the first term of grade 3, K.M.’s family moved back to Belleville for his father’s work. K.M. then attended Bayview Public School in Belleville, within the jurisdiction of the defendant School Board, for the second term of grade 3 and for grades 4, 5 and 6.

[73] The grading system at Bayview Public School was different than at Baythorn Public School. Students in grade 3 at Bayview Public School were evaluated in reading, phonics and number work as either “introduced”, “understands” or “not mastered”. From grades 4 to 6 at Bayview, students were evaluated differently again, based firstly on “academic progress in relationship to their peers” (as either “above average”, “average”, or “below average”), and secondly on “effort” (as either “satisfactory” or “needs improvement”).

[74] In June 1974, K.M.’s grade 3 (1973-1974 – second term) teacher recorded that K.M. had made many friends since coming to Bayview. His assessment revealed that K.M.’s level of understanding of concepts was good, but that he had not mastered reading or math to his grade level. The teacher found that K.M. was going to have to put forth a more sincere effort and improve his work habits to be successful in grade 4.

[75] In grade 4 (1974-1975), his teacher indicated that she was pleased with the effort K.M. had put into his work. He understood what he had read and added a great deal to group discussions. K.M. had improved in math, but still had some difficulty understanding new concepts. She recorded that his reading was below average. She recorded that K.M. was “a cheerful, happy boy. He has a great sense of humor. He is a bit talkative at times however, which hampers the completion of his work on time. The neatness of his work has improved a great deal”. He had put “a great deal of effort into his work this year with very good results”. His overall academic grade was “average” or “below average” and his effort grade was “satisfactory” while being still weak in certain areas of reading and math.

[76] K.M.’s grade 5 (1975-1976) and grade 6 (1976-1977) reports from Bayview Public School appear to have been either intermingled in the photocopying process (Exhibit #2, Tabs #B6-7), or the grade 5 report is simply not available. There is very little material definitively from grade 5. Page 234 at Exhibit #2, Tab #B6 appears to be K.M.’s reading and math evaluations for grade 5 (1975-1976) as it refers to K.M. being in the “Low 5 Reading Program”. His teacher described K.M. as “working hard” and that he was “concerned about his progress”. The rest of Tabs #B6 and 7 appears to be related to grade 6 at Bayview. K.M. was in Mrs. Turrall’s remedial math class and scored “weak” in division and fractions. K.M. was reading below his grade level but scored “strong” in his comprehension level and “weak” in spelling.

[77] In his first attempt at grade 6 at Bayview (1976-1977), K.M. was 11 years old. K.M.’s teacher noted in March 1977 that K.M.’s “devil-may-care” attitude hampered his reading work. In June, she noted that he seemed to have the ability but not the maturity to use his ability consistently. K.M. scored 1/41 in the year end math class, having done one multiplication correctly. His teacher noted that K.M. was hampered by his reading level and did not seek out books suitable to his level. He had worked hard on his speech and improved his research skills. Overall, he was considered to have slightly improved in the second June term. His participation, working independently, completing assignments on time, relationship with his peers and completing his work neatly were all recorded as satisfactory or needs improvement. His teacher noted that K.M. needed to “strengthen the basics to ensure a strong foundation for future endeavours”.

[78] K.M.’s teacher reported that he should have worked much harder, that his efforts were inconsistent, and that he was indifferent. His teacher considered that K.M. may need to spend another year in grade 6 if only to “shock him out of his indifference and to ensure future success”. A.F. agreed in cross-examination that K.M. was not only not doing well at school academically, but that he had a poor attitude at school and was “indifferent”. This was clarified in re-examination to mean indifferent to the “work” at school but not to the kids and sports. His overall academic grade was “below average” and his effort grade was “needs improvement”. He was failing in math and reading. K.M.’s placement for September 1977 was to repeat grade 6, which he did but at a different school.

[79] K.M. described his experience at Bayview Public School as “normal”, but he acknowledged that he struggled with his learning. He played any sport he could. He was good at sports. He was a class clown and recalls getting sent to the principal’s office for that, but little or no mention is made of this in his school records. He was not truant and did not try to run away from school. In cross-examination, K.M. agreed that he had to go to the principal’s office regularly, meaning once a week, and he had to “write lines”. He said there were lots of kids who had to go to the principal’s office. He agreed that he went to the principal’s office just as often before and after encountering Marson.

[80] During this time, K.M. had lots of good friends. He played street hockey, pond hockey, and baseball, skateboarded, and enjoyed fishing. He testified that his home life was fine. He described himself as a “regular” kid with lots of friends coming around to his house all the time.

[81] K.M.’s parents decided to have K.M. change schools to repeat grade 6. Initially, A.F. thought that it was grade 4 that K.M. repeated, but when the school records were reviewed with her in cross-examination, she agreed that it was grade 6 that K.M. repeated. K.M. started at Harry J. Clarke School in September 1977. Marson was a teacher at this school, but K.M. had no contact with Marson while in his repeat year of grade 6.

[82] The grading system at Harry J. Clarke School was different again than at Bayview. Students were evaluated first by “academic achievement” related to other students at the same grade level by way of letter codes A (80-100) to E (below 50), and second by “social development and work habits”, or generally, their effort at school, by V (very good), S (satisfactory) and N (needs improvement).

[83] In K.M.’s repeated year of grade 6 (1977-1978), he was 12 years old. K.M. continued to be very active in sports. He played floor hockey and soccer, and went out for all the teams that were playing when he started at Harry J. Clarke School. K.M.’s teacher recorded that his effort had been good and his improvement was apparent in areas of oral expression and comprehension. His assignments were “satisfactory” and on time. In math, his teacher recorded that he had a good knowledge of basic concepts but became discouraged by his careless mistakes. His effort was consistently described as “satisfactory” and his responding well to suggestions and/or criticisms as “very good”. K.M.’s overall grade was C (60-69) with a B (70-79) in spelling. He was advanced to grade 7, where he came into contact with Marson as his science teacher. Whether he “achieved” grade 6 on his second attempt or was “pushed through” or “advanced” to grade 7 is unclear from the records. K.M. testified in cross-examination that he failed grade 6 twice.

c. K.M.’s Problems with Learning

[84] K.M. struggled to learn since the beginning of school. It was noted as early as grade 1 that K.M. had particular difficulties in reading and math. He was in remedial learning classes at school from at least grade 5, including in his repeat year of grade 6. At Harry J. Clarke School he was in “special ed”. K.M. testified that he was “a slow learner” and admitted that he had “struggled through school with math and reading” since “Kindergarten”.

[85] K.M. did not learn like his sisters. K.M.’s mother A.F. would do a lot of flash cards and review fractions with him. Dr. Manderville, his family doctor, saw K.M., aged 11, on June 24, 1977 and made a note that K.M. had “learning difficulties – failing grade 6”. He made a referral to the “mental health clinic” (Exhibit #1, Tab #A1, p. 2). K.M. had just failed grade 6 at Bayview Public School. Before any encounter with Marson, K.M. was referred by Dr. Manderville to the Edith Cavell Clinic, which is a mental health clinic in Belleville.

[86] On July 13, 1977, a consultation note was sent back to Dr. Manderville from a clinic (Exhibit #1, Tab #A5, p. 63). In the diagnosis section of the referral form, the diagnosis was written as “childhood behaviour disorder” and the treatment program was written as “psychological testing”. His condition on termination of the assessment was listed as “improved”.

[87] Of note, it has been specifically agreed and stipulated by both counsel that neither Dr. Manderville nor anyone in his office authored or created this referral form. This form came back to Dr. Manderville, after he made the referral, from some clinic as part of their intake process. Simply put, we do not know who authored the information on the form. I note it is a form used by the Ministry of Health.

[88] K.M. recalls that at the Edith Cavell Clinic, they were trying to make programs to help him learn. He had problems with repetition, number sequences, and fractions, and his letters would turn on him. He would use repetition and practice techniques to the point of frustration, but eventually he would grasp things. He recalls doing some puzzles. K.M. does not know if he had any psychological testing. K.M. was cross-examined in detail about the reference on the form to “childhood behaviour disorder”. He testified that no-one discussed with him that he had a “childhood behaviour disorder”. He had no knowledge of it at 11 years old. K.M. testified that no-one, from age 11 until now, has raised with him that he had some form of behavioural disorder.

[89] In cross-examination, K.M. disagreed with the suggestion put to him that his learning difficulties caused him problems in getting along with other kids, being teased, or being given a hard time at school. K.M. testified that he was a “good, strapping sized kid”. He was not picked on or called “dummy”. He just had a problem learning. K.M. testified that he “kept up” with the other kids at school in grades 1, 2, 3 and 4, and that he was not a complete “retard”. He appeared to take offence to the suggestion that he was not a good student. He had to repeat grades, but he testified he kept up with the other kids in the class. He testified that his learning disability was not a problem for him within the family.

[90] K.M. agreed in cross-examination that his learning disability had been called a disability in relation to spatial perception. K.M. described it in relation to backing up trucks. What he saw in the mirror was not what was actually there. He does not do well with road maps and gadgets. K.M. does not have a cell phone as to him, they are complicated. It’s worse if he’s under stress and trying to learn. No-one ever offered him any treatments or therapies to help him with his disability. At Moira Secondary School, he was in the occupational class in grade 9, which was designed as a two-year course for those students who would not finish high school.

[91] K.M. agreed in cross-examination that he never thought he would finish high school and that his lot in life would be that of a labourer, which is what he has done for most of his working life when he could work.

[92] A.F. testified that as parents, they were aware of K.M.’s spatial perception issues, which surfaced particularly when K.M. was playing hockey. She took K.M., age 11, to the Edith Cavell Clinic to help him with his reading as recommended by Dr. Manderville. No-one ever told her a diagnosis for K.M.’s learning problem. K.M. did not do well at school. He spelled things differently. He saw things differently and sometimes they were backwards. She testified that “dyslexia” is what they call it now.

[93] A.F. did not agree in cross-examination that K.M. had a general “inability to learn”, but that he had “school problems”. He could learn other things—he could skate, and ride a bike. A.F. agreed that inside the classroom, K.M. had an inability to learn. A.F. testified that she did not recall any behavioural issues at school with K.M. before Marson other than when K.M. was sent home once for throwing a snowball. She did not recall phone calls from the principal’s office. She did not agree in cross-examination with the referral form diagnosis in Dr. Manderville’s records of K.M. having a “childhood behaviour disorder”.

[94] She testified that K.M. never had a behavioural problem, except that he had difficulty learning at school. A.F. testified she recalled K.M. being tested by Mrs. Whiting, who ran the remedial class at Bayview Public School. She did not recall anyone doing any psychological testing on K.M. at that time. No-one told A.F. that K.M. had a “childhood behaviour disorder”.

[95] A.F. was cross-examined about K.M.’s attitude towards school. She did not agree that K.M. had a poor attitude towards school, but agreed he had found school very difficult because he was having trouble learning. She testified, “He loved school, he loved the kids, he loved all of that. He just had trouble learning”. A.F. testified that she never thought K.M. would finish high school because of all the troubles he was having.

[96] K.M.’s aunt M.I.C. testified that she was aware that K.M. had difficulties in school and did not do particularly well, and that K.M. was not a “star pupil”. She testified in cross-examination that she was unaware that K.M. had to repeat grade 6.

d. K.M.’s Drug Use

[97] K.M. testified that prior to the sexual abuse by Marson, he used drugs to some extent. K.M. testified in chief that his drug use was “just a little bit of messing around, but nothing…nothing serious”. After the sexual abuse, he regularly used “marijuana, LSD, uppers”. In cross-examination, K.M. testified that before any encounter with Marson, he used “marijuana, ‘bennies’ we used to call them – caffeine pills – amphetamines”. The drugs were around. K.M. did not supply marijuana to others. Counsel put to K.M. that this started in grade 6. K.M. answered, “yeah” but that his “marijuana use, and amphetamines, and that kind of stuff, was just very gradual – the last part of Harry J., and then on into Moira, and Saint John’s”. That’s when, K.M. testified, he “started to develop dependency issues”. K.M. testified in cross-examination that before any sexual abuse was committed by Marson, “I experimented with marijuana and caffeine pills”. The caffeine pills, or “trucker pills”, could be bought at the drug store.

[98] K.M. agreed with counsel in cross-examination that his drug use started in his second year of grade 6, when he was 13 years old, if “that’s how the math goes”. K.M. agreed that he was 13 years old in grade 6. The school records, however, indicate that K.M. began his second year in grade 6 in September 1977 when he was actually 12 years old and he would have been 12 for the entire school year. I take this evidence as an error as to K.M.’s age but that the pre-Marson drug use was in fact, as K.M. testified, in his second year of grade 6 at Harry J. Clarke School. This does not appear to be in dispute. K.M. was 12, not 13, years old in his second year of grade 6. The abuse by Marson started in grade 7 when K.M. was 13 years old. The evidence demonstrates that K.M. is not a particularly good historian as to his exact age at various points of time in the past.

[99] The reason given by K.M. for taking the drugs pre-Marson was “curiosity”. The extreme caffeine gave him a “[j]ust a mood lift”. He testified that he was just experimenting with what was accessible.

[100] K.M.’s mother A.F. testified in cross-examination that before Marson, when K.M. was in his repeat year of grade 6 at Harry J. Clarke School, she was not aware of any drug use by K.M. She was not aware that he was using marijuana and “bennies”, and that came as a complete shock to her. She testified, “I was only his mother”.

[101] K.M.’s sister S.G. testified that before the Marson period, she did not see any indication that K.M. was using drugs. In cross-examination, S.G. testified that she was unaware that before Marson, K.M. was taking street drugs occasionally, such as marijuana and “bennies”. It did not surprise her, but her clear understanding was that K.M.’s drug use started after Marson.

[102] K.M.’s aunt M.I.C. testified in cross-examination that she was not aware that K.M. was taking street drugs, such as marijuana and “bennies”, when he was in grade 6.

e. K.M.’s Psychological and Mental State

[103] K.M. self-described his mental state as a little kid before Marson as “regular”, “normal”. He said he did not want to get grounded, but he wanted to have fun. He testified, “I was just a normal child. I had a good neighbourhood. We had a beautiful home, with beautiful things. I wasn’t deprived, that way, in any way. I had a normal childhood”. K.M. testified that before Marson, he did not really recall anything bad happening to him, just that he did not learn like his sisters. His sisters were having fun, and he was doing flash cards to help him with his learning.

[104] K.M. was cross-examined about Dr. Singh’s reference to his mother tying him to a tree when he was a young child. K.M. testified that his mother was looking after three kids and that he liked to “take off”. Their house backed onto a pond. His mother would put him in a lederhosen-type harness while she did the laundry, and his little sister (S.G.) would be in the playpen. The harness was leather with felt inside and had hooks on the back. In re-examination K.M. testified that this type of harness was used back in the 60’s and he wasn’t left in it for long. He was never hooked up and just left there. K.M. didn’t think he was being abused—it was just part of how parenting was done then.

[105] He described his personality as a “kid” as “he’s going to be a handful, but he’s okay”. He was happy. He testified that he was never diagnosed or treated for any kind of mental health issue when he was a “kid” before his encounter with Marson, other than going to the Edith Cavell Clinic for his learning disability. He first realized he had some “mental health issues” going on when he was at Saint John’s School for boys in grade 8.

[106] K.M.’s pre-Marson childhood medical records, from January 13, 1966 to 1978 (Exhibit #1, Tab #A1, pp. 1-2), contain very few entries and are unremarkable. There are no references to or any history whatsoever of behavioural difficulties or mental health injuries other than the one note of Dr. Manderville on June 24, 1977, referenced earlier, about K.M. having “learning difficulties” and “failing grade 6” and being referred to the “mental health clinic”. The childhood medical records of K.M. contain notations of having a school medical on June 8, 1970 at age 4 and otherwise, the limited entries detail K.M.’s symptoms of common childhood ailments such as tonsillitis, skin rash, and ear infections.

[107] In cross-examination, it was put to K.M. that before his encounter with Marson: as a young child, his mother tied him to a tree; his father had anxiety and depression; and he had learning disabilities and did not learn as much as his sisters, to which K.M. answered, “I had problems before I encountered Mr. Marson”.

f. Summary

[108] I find that the preponderance of evidence is that prior to the sexual abuse by Marson, K.M. was a happy, energetic child who functioned well in his family and in the classroom despite his problems with learning. The evidence of K.M. and his family which I accept as credible is that K.M. was a normal, happy boy in spite of his learning difficulties, which limited K.M.’s academic success at school. He loved all the other activities at school—the other kids, the activities, and especially the sports. He was close to his sisters and had lots of friends who came over to his house all the time. K.M.’s childhood memories I find were generally positive. I do not draw a negative inference from A.F. using a harness attached to a tree to make sure K.M. was safe. It was a different era. I find that K.M.’s family life was not dysfunctional, and that he did not have a history of behavioural disorders.

[109] I find that K.M.’s problems before Marson were related to his difficulties with learning. In his early years at elementary school, I find that K.M. functioned in a positive way, as to his efforts made at school. He tried very hard, but he could not obtain good academic achievement results, particularly in math and reading. As he grew older, his learning difficulties caused him more frustration and problems with his learning at school. He was assessed as being indifferent and as having a poor attitude at school, and placed in special educational classes for slow learners. I find on the evidence that K.M. is not intellectually slow at all, as later confirmed by Dr. Wolfgarth and Dr. Silver. I find that K.M.’s poor performance at school does not mean that he suffered from intellectual “slowness”, which later was relied upon by Professor Charette, the School Board’s economist, as a reason for reducing K.M.’s income loss claim. His poor school performance, and his so-called indifference and poor attitude, were, I find, as a result of his misunderstood and undiagnosed learning disabilities. I find that K.M. is an intelligent man. Academically, I find that because of his learning difficulties, he achieved at least grade 5. Beyond that and based on the school records produced, K.M.’s “achieved grade” level as opposed to his “passed through” grade level at school is unclear. K.M.’s grades before Marson were poor and he was a failing student. He was made to repeat grade 6 and his parents sent him to a different school, one where Marson would later become his teacher.

[110] K.M. and his mother A.F.’s evidence, which I accept, is that K.M. would not have graduated from high school, even if the sexual abuse had not occurred. I accept the School Board’s position that K.M. would not have graduated from high school, even if the abuse had not occurred, as being supported by the evidence which I find to be credible.

[111] There is no cogent evidence, I find, of any traumas suffered by K.M. prior to the sexual abuse by Marson. While no family’s history is perfect, these kinds of broad assertions must be supported by cogent, credible evidence in order to be relied upon, which I find is lacking in this case.

[112] I accept K.M.’s position that prior to the sexual abuse by Marson, K.M. was a happy, energetic child who functioned well in his family and in the classroom despite his learning difficulties that made academics a struggle for him since he began school. This is supported by the evidence, which I accept as being credible.

11. K.M.’s Life after the Sexual Abuse by Marson, 1978 to 2017:

a. K.M.’s Family and Friends

[113] K.M.’s mother A.F. testified that there is “no comparison” between K.M. as a little boy before Marson and now. Before Marson, K.M. was always “loving, happy” and “had lots of friends”. Now, K.M. is very different. He has good friends, but he does not have a lot of friends. K.M. is not the happy person that she thinks he should be.

[114] K.M.’s parents were divorced in 1989. Both A.F. and K.M. described that there was no fighting or name-calling in the home. A.F. testified there was no big reason for the divorce; they had “nothing in common anymore”. D.M. had developed some form of Alzheimer’s or other amnestic memory disorder a few years before and could not work, and the family home was sold. A.F. testified in cross-examination that D.M. was diagnosed with Alzheimer’s in 1988, that he left work because of stress, and that otherwise he did not have mental health problems. A.F. was not aware of any family history of mental illness. Her former husband was adopted and she did not know his family history. A.F. described the family as being a “normal” family. She testified that the family was not abnormal or dysfunctional.

[115] In cross-examination, A.F. agreed that the divorce was very hard on the children. The divorce was after the children had left home, so she did not think the divorce made K.M. depressed. She saw as much of K.M. before as after the divorce. Dr. Manderville’s 1989 note (Exhibit #1, Tab #A1, p. 7) of K.M. being depressed and the referral to Dr. Brant, a psychiatrist, were put to her. A.F. agreed that she did not make any observations that would confirm K.M. was depressed because of the divorce. In re-examination, she testified that K.M. never has confided in her as to what was wrong or bothering him.

[116] A.F. testified that while K.M. was at Moira Secondary School in grade 9, she became aware for the first time that K.M. had some sort of mental or behavioural issue when the police came and told her and her husband that K.M. had not gone to school and was using marijuana. It was the first time she had heard about the drugs. They instituted “tough love” strategies and rules within the household. K.M. moved out.

[117] A.F. first became aware of an actual, diagnosed, psychiatric issue with K.M. when he was admitted to the Belleville General Hospital and she visited him. This was sometime after her divorce in 1989 and when K.M. was seeing Dr. Brant. The hospital records note that K.M. was admitted to the Belleville General Hospital from December 27, 1989 until January 19, 1990. She was not told the nature of K.M.’s psychiatric diagnosis.

[118] A.F. now lives in the same building as K.M., and they eat together nearly every night. A.F. described K.M.’s moods as “funks”. If K.M. is in a “funk”, he does not do anything and will not come down to her apartment. These “funks” happen a lot, weekly, and she has gone days without seeing him. A.F. testified that K.M. does not have a wide circle of friends. He is good with the people he knows. A.F. confirmed that K.M.’s employment has been sporadic. K.M. had problems with employers as he would go into a “funk” and he could not be counted on to show up for work. She confirmed that K.M. does odd jobs for people, like painting and cement work. They understand and wait if he is in a “funk”.

[119] K.M.’s sister S.G. testified that in the time period after Marson, K.M.’s personality and behaviour had changed. She was no longer welcome. She could not tag along. She could not go and see him. It was like she was not his sister anymore. K.M. did not talk. He would sleep for long periods of time. He did not interact with the family anymore. S.G. testified that K.M. was a “totally different person”. He was not funny anymore. He was sort of withdrawn. He did not have many relationships with other people. They did not have a family relationship anymore.

[120] S.G. has had very little contact with K.M. since their school years. She once found K.M. when he had tried to overdose at his kitchen table. Later, she would see K.M. at their mother’s place. K.M. would never stay; he would say “hi” and disappear and not engage in family functions. She would see him maybe three times a year. She was aware of his problem with depression. She testified that he does not get involved and that “[i]t’s like a detachment ... He doesn’t want to be with any of us”. She added: “He’s not the same happy person that I knew as a kid”.

[121] S.G. testified that she tries not to see her brother because she is afraid it will be the last time she will ever see him as he has issues with trying to commit suicide. It’s very hard on her to see him. She testified she does not know if K.M. will get any better. She found out from their mother about the sexual abuse by Marson when her mother asked her if she knew anything. She said “no”. K.M. never told her about the sexual abuse.

[122] S.G. was asked in chief about the difference in K.M. as a little boy before the assaults and today. She testified, “[K.M.] isn’t the happy-go-lucky kid he used to be. He’s turned into a loner. He doesn’t have the humour he used to have… It feels like he does not want to be part of our family”.

[123] K.M.’s aunt M.I.C. testified that since she resumed contact with K.M. in 2002, she observed that it was difficult for K.M. to deal with people. She thought he “feels, somewhat inferior” and that he had not done things in his life that “maybe his cousins have”. There were a number of times that he was unhappy and did not seem able to cope with “just life”. He would be working and he would just have to go home and leave. She was aware of his diagnosis of depression and K.M. has talked with her about it.

[124] His aunt M.I.C. sees K.M. “as being damaged” in how he feels and interprets things. He can take offence easily. She testified that neither she nor her sister A.F., nor any of her other siblings, had had any mental health issues such as depression.

[125] K.M.’s neighbour and good friend T.A., aged 58, testified. She has known K.M. since 2009 when she moved into the same apartment building in Belleville. She works as a waitress. Previously, she ran the café at the Belleville General Hospital for ten years. She visits and has coffee with K.M. a couple of times a week and they talk. K.M. never told her in detail about the sexual abuse and what happened to him. He told her about the abuse, in just a round-about way, a couple of years after she met him.

[126] T.A. described K.M.’s mood and behaviour as, “when he’s happy, he’s very happy. I can tell when he’s not feeling the best”. She can tell by his face. K.M. does not speak, or his speech is “very clipped”, and he does not want to talk. This could happen a couple of times a week, lasting anywhere from that day to a couple of days. She may not see him for a week. He will not answer the phone. What sets K.M. off is not being comfortable talking about anything. He is “a lot withdrawn”. He’ll talk about things after.

[127] She described K.M. as being friendly with everybody. He’s always joking. He spends more time by himself than around other people. He is not good at dealing with an interpersonal issue between himself and another individual. He will isolate himself. He does not put himself into too many situations where he does not know anybody. T.A. testified that she does not think K.M. has a good opinion about himself. She testified that as long as she has known him, K.M. has not had any kind of relationship with anyone.

b. K.M.’s Education and School History

[128] K.M. began grade 7 (1978-1979) at Harry J. Clarke School and encountered Marson in September 1978, at 13 years old. The first page of K.M.’s school records for the end of the third term of grade 7 recorded 15 out of 16 achievement entries for every term as “E” (for a mark below 50) and one entry as “D” (for a mark of 50-59). K.M.’s effort entries were recorded as 15 entries of “3” (meaning “unsatisfactory”), 6 entries of “2-3” (meaning somewhere between satisfactory and unsatisfactory), and 4 entries of “2” (meaning satisfactory)—one in music and the remaining three in physical education. He was reported to have “apparent lack of sincere, consistent effort” (comment 31), and more self-discipline was desired (comment 34).

[129] K.M. was a failing student before and after being abused by Marson. K.M. agreed in cross-examination that his school marks were about the same after encountering Marson as they were before. I find there is an indication of some decline in K.M.’s grade 7 school records, however, as to his “efforts at school”. K.M. was nonetheless a failing student and failed grade 7. K.M. was “passed through” to grade 8 without “achieving” grade 7.

[130] This fact is confirmed in a letter of June 28, 1979 (Exhibit #2, Tab #B11) from the principal of Harry J. Clarke School to K.M.’s parents, stating that while K.M. was transferred to grade 8, his academic performance for grade 7 had not been satisfactory and “promotion to Grade 8 [had] not been achieved”. The school stated that advancing K.M. to grade 8 was still preferable and that if K.M.’s achievement continued to be unsatisfactory he would be accepted only for the two-year occupational program at the secondary school level.

[131] In grade 8 (1979-1980) at Harry J. Clarke, K.M. was 14 years old. For the end of the third term, the school recorded 15 achievement entries of “E” (for a mark below 50), 9 entries of “D” (for a mark of 50-59), 6 entries of “C” (for a mark of 60-69), 1 “B” (for a mark of 70-79) in language arts, and 1 “A” (for a mark of 80-89) in technological and vocational studies, described as safe operation of power and hand tools by producing projects in sheet metal, wood, and plastic. K.M.’s efforts entries were recorded as 15 entries of “3” (for unsatisfactory), 9 entries of “2-3” (somewhere between satisfactory and unsatisfactory), 14 entries of “2” (for satisfactory), 1 entry of “1-2” (somewhere between exceptional and satisfactory), and 1 entry of “1” (for exceptional) in technological and vocational studies, as previously described. It was reported that K.M.’s assignments/projects were not complete (comment 23), he was “inattentive to instruction” (comment 26), he was a “disruptive influence in class” (comment 27), he had an “apparent lack of sincere, consistent effort” (comment 33) and “more self-discipline desired” (comment 36). K.M.’s efforts at school were poor in grade 8, and he remained academically a failing student as he had in the past.

[132] K.M. failed grade 8. K.M. was transferred to grade 9, which was “considered to be in the student’s best interest, even though overall achievement does not qualify for promotion”. K.M.’s achievement and effort were better in grade 8 than in grade 7, but not sufficient to “achieve” grade 8. His math and language skills still remained far below his grade level.

[133] To help him get a high school education, K.M.’s parents made the decision to send him to Saint John’s School of Ontario—a private, bare-bones, residential boys boarding school in Claremont, Ontario, where corporal punishment was regularly and freely used. The school had an excellent outdoor program, which appealed to K.M. Saint John’s School registered K.M. in the summer of 1980. This school was not the reform school with the same name. K.M. started school in the summertime with the usual two week school canoe trip, not long after several students and staff had drowned on a similar school canoe trip in the past.

[134] In September 1980, Saint John’s School placed K.M., age 15, in grade 8 (1980-1981)—K.M.’s second attempt at grade 8. His science teacher recorded that his mark was disappointing (35 out of 75) and that K.M. seemed unable to retain the material and put it to use. His other grades were poor, but he was noted to have a fine class attitude. By Easter, his average had improved to 52%. He was described as a cheerful, helpful boy with a very good heart. He worked well on the maintenance crew and it was recorded that he had a “successful year”. He did very poorly in math and literature. I am unable to ascertain from the records produced whether or not he “achieved” grade 8. I infer from his overall grades that while he completed grade 8, he did not in fact “achieve” grade 8 academically while at Saint John’s School.

[135] K.M. was cross-examined in detail about his treatment when at the school. He testified that you would be hit with a wooden “beat” stick for behavioural reasons. He was never hit because he was “stupid”. He was hit because he ran away, he smoked, he didn’t listen, he’d leaned on his chair, bit on his pen, or didn’t say “sir” or “ma’am”. His discovery transcript was put to him where he said that their learning method was “repetition, repetition, repetition” and that if you didn’t get it, they’d go back to the stick to get your attention. K.M. said it was taken out of context. He testified that if you were not paying attention and not trying as hard as you could, there was no doubt that you’d get a couple of touches of the stick. He was never beaten because he did not learn like other kids. K.M. agreed that disciplinary use of the stick was a regular event for him, even for trivial offences. K.M. agreed it would constitute abuse today. In re-examination, K.M. testified that the wooden stick did not really bother him. Some kids were terrified, but K.M. said it did not hurt that much.

[136] K.M. went back for a second year at Saint John’s in the fall of 1981 but ran away from the school and went home to Belleville. He described his experience at Saint John’s as being terrible and overall horrible and that he was homesick like crazy. He was by then 16 years old and old enough to decide if he wanted to be in school or not. He told his parents not to pay the school, as he was not going back. K.M. never did go back to Saint John’s School.

[137] K.M. testified that it was at Saint John’s that he realized something was wrong. He felt “crushed”. He testified that he started to “know what depression is – and I didn’t think it would be my friend for all these years, but … that’s when it started, and it’s stuck on, ever since”. He was 15 years old when he started at Saint John’s School. K.M. has suffered with depression for the past 36 years.

[138] A.F. testified that while K.M. was a student at Saint John’s School, K.M. hitchhiked home three times. After the last time, K.M. moved back home to Belleville in the fall of 1981, and enrolled in grade 9 at Moira Secondary School in the two-year occupational class, designed for those students that would not complete a high school education. A.F. testified that K.M. was skipping school while at Moira.

[139] K.M. did not stay at his parents’ home very long and he quit school. His parents kicked him out of the house; if he was not in school, he could not live with them. K.M. testified that his parents got involved with “tough love” and that they had “rule-itis” and that he could not stay with them. K.M. never attended secondary school again and moved into a friend’s (B.H.) basement.

[140] It is difficult, from looking at the old school records produced, to identify K.M.’s actual educational grade level “achieved” as opposed to the grade level to which K.M. was “passed though”. The evidence is inconsistent. Anecdotally, Dr. J. McMillan, a doctor working with Dr. Singh, recorded in his notes made July 30, 2007 that K.M. had a grade 6 education (Exhibit #1, Tab #A71, p. 164). Other references in the evidence refer to it being grade 8 or even grade 9, but are not substantiated by the school records. K.M.’s C.P.P. application stated that he had “completed” grade 8. Dr. Singh reported on June 15, 2009 that K.M. achieved between a “grade six or eight education”.

[141] K.M. testified in cross-examination that he agreed that he had failed grade 6 twice, failed grade 8 twice, and never finished grade 9. The school records indicate that K.M. definitively failed grade 6 at Bayview Public School, grade 7 and grade 8 at Harry J. Clarke, and grade 8 at Saint John’s school, and that he never completed grade 9 at Moira. Whether K.M. failed his second attempt at grade 6 at Harry J. Clarke or was “passed through” to grade 7 is difficult to ascertain from the school records. K.M. did slightly better in his second attempt at grade 6 at Harry J. Clarke, but overall he was a very poor student and his grades very low. He was below the level of his peers in math and reading. K.M. was not a particularly good historian on this issue either. K.M.’s evidence is that he failed grade 6 and 8 twice, but he did not mention that he also failed grade 7. Based on K.M.’s evidence, K.M.’s educational grade level “achieved” would be grade 5.

c. K.M.’s Problems with Learning

[142] K.M.’s problems with learning continued and have not significantly changed. The problems remain the same both before and after his encounter with Marson. After leaving Moira, K.M. did achieve some qualifications in the workplace, which I will review in K.M.’s employment history in these Reasons for Judgment. While K.M. may have grown out of some of his issues with learning disabilities in adulthood, Dr. Wolfgarth noted his learning difficulties were still present and reflective in his testing of K.M. in 2002.

d. K.M.’s Relationships

[143] K.M. testified that when he quit school in 1981, he moved into his friend B.H.’s basement. Shortly after that, he moved in with Y.G., a grade 10 female high school student he met at a dance at Moira Secondary School. K.M. and Y.G., both 16 years of age, rented and lived in a room at the Quinte Hotel in Belleville for a number of months. Y.G. continued to go to school. K.M. worked at an auction house and paid for their room. After Y.G. finished grade 12, she got a full time job at TAS, a telephone answering service.

[144] K.M. and Y.G. were together for about 8 years, from 1981 until the end of 1989. Shortly after referring K.M. to Dr. Brant, Dr. Manderville made a note in 1989 (Exhibit #1, Tab #A1, p. 7) that K.M. was separating from his common-law wife (Y.G.) and that he loves her but they cannot get along. K.M. attributed their breakup to his ongoing struggles and addiction issues. K.M. testified that Y.G. did not want to be a part of that and he could not blame her. His struggles were his mental health concerns and his depression. It was hard to be involved in a relationship with him as he did not care about himself. Dr. Brant reported to Dr. Manderville on February 20, 1990 that Y.G. had left because she was fed up with K.M. moping around and his lack of interest in sex, and she took up with someone else.

[145] K.M. then had a relationship with a new girlfriend, K.W., beginning around March 1990. K.M. lived with her and her two-year-old son. K.M. had symptoms of mood swings and reduced sex drive and he was home by himself, moping around the house. This relationship was over by the end of July 1993.

[146] His next relationship was with C.P., which began in 1997 and lasted about 2 ½ years. They had a son, M.M., born in July 1998. They did not stay together very long because of K.M.’s mental health issues, and they separated December 1, 1999. K.M. testified that he did not really love her and they had not planned on being parents. On December 22, 1999, K.M. ended up at the Crisis Intervention Centre at the Belleville General Hospital. K.M. attempted suicide on January 28, 2000.

[147] Their son lived with his mother C.P. as a child. K.M. exercised access, usually every other weekend, which was made difficult at times by C.P. He paid child support as required. There were some weekends when K.M. had to cancel access with his son as he was unwell, meaning, in K.M.’s words, that he was overwhelmed, depressed and anxious. M.M. is now 18 years old and lives away from Belleville, attends a Community College and hopes to become a police officer. He has a part-time job. K.M. gets along well with M.M.’s girlfriend. K.M. taught his son how to ride a bike and how to skate. His son is very important to him.

[148] K.M. next got back together briefly with Y.G. after the suicide of their friend B.H., who hanged himself. They met at his funeral in 2004 or 2005. K.M. and Y.G. did not live together this time, but saw one another and dated for about two or three years. In the intervening years between 1989 and 2004 or 2005, K.M. had not seen Y.G. at all. Y.G. had been in another relationship and had a daughter, about three years older than K.M.’s son M.M.

[149] Y.G. testified that she is now 51 years of age and she cleans houses for a living. She had an 8 to 9 year relationship with K.M. starting in late 1981 when they were both 16 years of age. They lived together for most of that time period. She had a second dating relationship with K.M. beginning in 2004 or 2005 when she reconnected with K.M. after meeting him at their friend B.H.’s funeral. This second relationship, she testified, lasted for two years. From the medical records during this time period—reviewed below in these Reasons for Judgment—this second relationship most likely began in 2005 and ended in 2007. Dr. Singh’s medical note of October 2, 2007 stated that K.M.’s girlfriend (Y.G.) of 9 years had left him. Dr. Singh failed to mention that it was for the second time.

[150] Y.G. testified that in their longer relationship in the 1980’s, K.M. used “pot” daily, three to five times a day. As to K.M.’s mood and personality, Y.G. testified that K.M. never talked about how he felt and that he kept his feelings and emotions to himself. Y.G. noticed problems with K.M. He slept quite frequently, which she found odd as they were teenagers or in their early twenties. K.M. did not talk about his emotions, which she also found odd. His moods would change within the day from being happy in the morning to being in a bad mood, down and depressed after lunch. He was up and down. He was more withdrawn. She testified that “he seemed down a lot. He didn’t seem a very happy person.” She was not able to figure out what triggered a particular mood change.

[151] In cross-examination, Y.G. testified that after living at the Quinte Hotel, she moved around a lot. She lived with her brother for a while, and then she and K.M. lived in apartments on Charles Street, Foster Avenue and Station Street in Belleville. K.M. would just sit in their apartment, not working or looking for a job. In cross-examination, Y.G. testified that the positive or good she saw in K.M. was that he was a nice guy, he was kind, and she knew he loved her.

[152] When K.M. was “down”, he was not very sociable. If he did go to a family event, he would not interact. He does not do well interacting with other people in public. With a friend one-on-one, K.M. was fine. Y.G. testified that K.M. tried to make the relationship work in the 1980’s but he reverted back to his old behaviour near the end.

[153] K.M. expressed thoughts of suicide to Y.G. at the end of both relationships. After the first and longer relationship ended, K.M. was in hospital because of depression and suicidal thoughts. He was pushing her away so she walked away. After the second relationship ended, K.M. mentioned suicide to Y.G. again. She told him “not to do that to his son” and she walked out. In cross-examination, Y.G. testified that K.M. was declining mentally before their first relationship ended. He was more withdrawn and was seeking help and that’s why K.M. went to the hospital on his own accord.

[154] Y.G. testified in cross-examination that when she resumed her relationship with K.M., she thought he was more verbal and could talk more about his feelings, but it turned out that K.M. did not talk about his feelings. They saw one another about three times a week and would stay over at each other’s places. They would do day trips together, go to a cottage, and do trail walking. K.M. mostly interacted well with her daughter.

[155] Y.G. testified that the factors that doomed the relationship with K.M. in the end were the “emotional ups and downs”. It was a difficult future with someone who does not work and uses pot daily. In the second relationship, she did not want her daughter in that situation. She testified that it was “difficult to keep a relationship going with him, and very emotionally strenuous”. She added: “It was just too strenuous on me. I just could not do it anymore.”

[156] The medical reports of Dr. Singh, when he was treating K.M. after 2007, make a reference on August 3, 2010 to K.M. having started to see a new partner, but by March 7, 2011 it was reported that K.M. had no romantic partner. No further references were made about any other relationships of K.M.

[157] K.M. testified that he does not expect to ever be in another relationship. He would not risk it as he knows how he reacts when it does not work out and he cannot put himself in that position again. When a relationship ends, K.M. feels a complete loss, like “why push ahead, longing, that things aren’t … that you’re never going to be fulfilled.” K.M. is not actively looking for a partner to “suffer in my misery”. He stated: “It’s extremely hard on people”.

[158] K.M.’s sister S.G. described K.M. as going into a deep depression and not talking to anybody when a relationship would break up. She said it was like he was not worth fighting for or worth having the love of another person, and he would not go back into another relationship. It was like he had come to the conclusion that he’s not worth being happy or having a partner. She testified that she thought K.M. would be alone for the rest of his life. She does not think that K.M. feels he deserves happiness, like everybody else.

[159] K.M.’s neighbour T.A. testified that over the eight years that she has known him since 2009, K.M. had not been in a relationship. She described one time when she and K.M. were at Tim Hortons and he saw a lady he likes who serves him coffee all the time. T.A. suggested to K.M. that he ask her out. K.M. said, “I can’t do that”. He just could not get up the nerve up to ask her. He told T.A., “What have I got to offer?”

[160] K.M. lives alone. He has not had a live-in, spousal-type relationship since he separated from C.P. on December 1, 1999.

e. K.M.’s Employment, Work Experience, and Taxable Income Sources

[161] At 13 years old and in grade 7, K.M. took a paper route and did yard work and odd jobs to get away from Marson. There is no evidence that K.M. had worked before that age.

[162] When K.M. first started working to try and support himself, he was 16 years old and living at the Quinte Hotel with Y.G. He worked various types of jobs over the years. He worked at Bunnett’s Auction for about 2-3 years, picking items up, getting things ready for sale, and helping at the auctions. This job was followed by a smaller job at C & B Woodworking, refinishing furniture. In the early 1980’s he supported himself more from social assistance than he did from employment income.

[163] In the later 1980’s he worked at Pre-Con (St. Mary’s Cement) for about three years doing concrete work, cleaning forms, pulling wire, helping in making the pour, and doing some cement finishing. The finishing involved putting a smooth or “broom finish” surface on concrete segments. He left that job as he had a mental breakdown and was on disability benefits for a year. He started to see a psychiatrist, Dr. C. Brant, in November 1989.

[164] In the 1990’s, he had a number of different jobs, including as a mover for MacCosham Van Lines for about three years, for Proctor & Gamble putting coupons in diaper boxes, and making deliveries for Gilly’s Express, a small courier company in Belleville.

[165] In early 1995, K.M. moved to the Guelph, Kitchener-Waterloo area. K.M. stated that he needed to get out of Belleville. He needed a change. He lived with his younger sister S.G. in Kitchener. He initially worked in the fall of 1995 at Traces Screen Printing Ltd. putting silk screening on jerseys. The president of Traces gave him a good reference letter, dated August 28, 1996 (Exhibit #2, Tab #C5), and said that K.M. was an excellent worker with impeccable work habits. He was attentive, orderly, and took instruction extremely well and was willing to learn. They ran out of work for him.

[166] In February 19, 1996, K.M. started working at Tunnel Systems Inc. as a labourer doing production line work including mould opening, hardware installation and concrete finishing. They made large precast concrete liners for the TTC Toronto subway expansion. K.M. was an active member of their Joint Health and Safety Committee. It was a fixed term contract for about one year to mid-April 1997, after which time everyone was let go as the project was over. K.M. excelled and really liked working there. Tunnel Systems Inc. provided a positive reference letter dated February 27, 1997 (Exhibit #2, Tab #C6), stating that K.M. was a dedicated and punctual hard worker and that his attendance record was excellent. The medical records report that K.M. was still having mental health problems while he was in Kitchener.

[167] Tunnel Systems in addition trained K.M. on the overhead cranes and fork-lifts. On March 22, 1996, K.M. received a Certificate of Achievement and Certificate from Fork Truck Training Limited (Exhibit #2, Tabs #C1-2) as an overhead crane/slinger operator, limited to operating such equipment only at Tunnel Systems Ltd. premises. The crane was used to lift the large cement segments out of the moulds, rotate them, and place them in sequence and in order to ship to Toronto. This certificate was one of the first diplomas of K.M.’s life.

[168] On May 13, 1996, K.M. received a Certificate of Achievement and Certificate from Fork Truck Training Limited (Exhibit #2, Tabs #C3-4) as a counter balance operator/fork truck operator, limited to operating such equipment only at Tunnel Systems Ltd. premises. This was a fork-lift used to move the moulds. K.M. worked hard for them. He testified he could have done better but he could not grasp the computers and was limited in his ability to read plans. At times, K.M. found the work extremely confusing, but with the help of his co-workers, he got through it.

[169] K.M. agreed in cross-examination that he never thought growing up that he would finish high school, and that he would work as a labourer and do physical work. He described his work at Tunnel Systems as a cement finisher as being a skilled labourer job and he gained the qualifications by experience. K.M. agreed that his crane and fork lift tickets obtained at Tunnel Systems were not apprentice-type programs. It took a day and a half of training and a couple of weeks of hands-on training to obtain both tickets.

[170] In 1997, K.M. moved back to Belleville and met C.P., the mother of his son. After that time, K.M. worked at a number of jobs. Manpower offered him retraining and he qualified as a long distance truck driver. K.M. completed a St. John Ambulance course on safety orientated first aid. He completed an on the job Air Brake Course and received a certificate on March 22, 1999 (Exhibit #2, Tab #C7). He successfully completed a six week, 240 hour professional transport driver training program and received his Diploma on April 16, 1999 (Exhibit #2, Tab #C8). He drove a truck with ITS for a very short period of time, about six months in 1999, and had difficulties with it. He worked at Concrete Plus Cement as a labourer and cement finisher. He worked at Quinte Castings as a machine operator, operating a small crane like he had been trained on at Tunnel Systems. He worked at Sears Warehouse as a warehouse person in the fall of 1999.

[171] K.M.’s aunt M.I.C. testified that in the 1980’s and 1990’s she did not see much of K.M. until after her husband died in 2002. She was aware, through family, that K.M. was having psychiatric issues in those intervening years. She needed help at home with her yard work, painting and general cleanup, and her sister A.F. told her that K.M. was unemployed. She hired K.M. to do this kind of work for her. He would come for three to five days and then leave. She paid him $10.00 an hour, which would not amount to much over a year.

[172] K.M. testified that he worked for his aunt, M.I.C., in Ajax in her sanitation supply distribution business in the GTA. He did pressure washing, deliveries, pick-ups, cleaning, truck loading, and painting. He helped her with yard work at her home. She was very generous and would pay him $120.00 a month, whether he worked or not, to help him out.

[173] His aunt testified that she hired K.M. to work as well in her warehouse business with painting, clean-up and to “attempt to do some deliveries for us” until 2007, when the business was sold. In cross-examination, she explained that her business had a lot of work downtown but they could not send K.M. to do those deliveries. She testified that K.M. was nervous about dealing with the city. She was aware that K.M. had difficulty reading maps.

[174] M.I.C. testified that K.M. would not have been able to function as a full-time employee in her business. She could not count on him five days a week. He would appear to be unable to handle something and he would have to leave. He had trouble reading invoices and was nervous about driving, and she could not send him to downtown Toronto. He would get upset with the traffic, the buildings, and stopping in the middle of the street. She could send him to the suburbs, which she did sporadically. There were jobs in the business that she gave him, which he could do and which were not affected by his learning problems.

[175] K.M. worked at other times for brief periods at Ken Lynn Wood as an unskilled machine operator, at Precision Pad Printing putting logos on golf balls, and at Plane Carpentry as a cement finisher, but no job lasted very long. He was generally an unreliable employee and inconsistent in his attendance.

[176] K.M. agreed in cross-examination that many of his jobs over the years had ended for reasons unrelated to his mental health, but simply because the job came to an end. This was true for his work at Concrete Plus and Plane Carpentry. His job at Quinte Castings ended when a number of workers were fired over a union dispute. He left his truck driving job because of his difficulties with spatial recognition and his problems reading maps. He agreed that after his son M.M. was born in 1998, he limited his job search to the Belleville area as he did not want to be too far away from his son.

[177] K.M. picks up small jobs on the side when he can, but he is struggling and cannot make commitments to people. He testified that people for whom he does odd jobs—like masonry repairs, brick repairs, pouring concrete sidewalks, paint work, and yard work—know that he may not be able to attend, not “because it’s sunny, because I’m just unable”. K.M. testified that he limits what he does in his daily life, in many forms. He testified that he stays home when he becomes overwhelmed and anxious. K.M. testified that if he had not been assaulted, he could have operated heavy specialized equipment. He could have run a bull dozer at a gravel pit or been a crane operator.

[178] K.M. agreed in cross-examination that after he received his O.D.S.P. pension, he never made an application for a job. The evidence is that he started receiving O.D.S.P. income support payments on April 1, 2003. K.M. is not actively job searching, but he has worked when it comes available to him. If he’s able to handle it, he will take the work.

[179] K.M. testified that after the abuse, he had big blocks of time when he worked and big blocks of time when he did not work. When he did not work it was because he was unwell or he was working for cash—odd jobbing. He was often glad to get out of a job and just lacked motivation. Even if he needed money, he could not push himself. He had depression for years and years. He could fit in pretty well in the workplace, could chat people up and could hide that he had a problem. If he grew to hate the job, he would be laid off or be fired. K.M. testified that the depression affected his motivation and his mood.

[180] The way he felt affected everything. He stated, “Whether I’m working, driving, around people, the ‘cloud’ hangs on me, and it affects everything”. K.M. has not done anything except casual odd jobs since 2002, because it is all he is able to do. K.M. stated that his anxiety and depression make it hard for him to get up and get pushing to do things when he is not feeling well. When he felt unwell, he would not get so far ahead in a job that it could not be left for three to five days, and hopefully he’d be back. These odd jobs would provide him with a couple of hundred dollars a month, which he would report as income to the O.D.S.P. personnel.

[181] K.M.’s sister S.G. described K.M.’s work history as having the odd job here and there. His neighbour and friend T.A. testified that K.M. does odd jobs around the apartment building. He’ll come in and fix something for you, and he’s always shovelling, but not for money. He is not the superintendent of the building, but she testified that K.M. “paves the way for the super”.

[182] His former girlfriend Y.G.’s testimony about K.M.’s work history is consistent with the other evidence. She testified K.M. did not really have jobs. He worked first, she recalled, at an auction house. He got a job with St. Mary’s Cement but it did not last very long. He cannot get along with people, socially. He did not tend to keep jobs and if he did not have a job, he would not look for one. She recalled that he collected welfare.

[183] K.M.’s income tax returns from 1987 to 2014 are before the court (Exhibit #3, Tabs #I1-36). A summary of his earnings and taxable income sources for those years is attached as Schedule ‘A’. The summary confirms the other evidence that K.M. has had an inconsistent work history and that his highest income earning year was in 1996 when he worked for Tunnel Systems Inc. K.M. has had no employment income since 2003, when he earned $1,800. Prior to 2003, his previous employment income was $4,427 in 2000.

(i) K.M.’s Ontario Disability Support Plan Application (O.D.S.P.)

[184] K.M. has supported himself with some amount of public assistance almost continuously since 1992. The materials related to O.D.S.P. are before the court (Exhibit #2, Tabs #F1-11). K.M. applied for O.D.S.P. benefits on August 24, 2001 at age 36. In his application (Exhibit #2, Tab #F1, p. 430), K.M. wrote, “I strongly believe that I’ve been mentally ill all my life which I believe has been passed to me genetically. As my father has mental issues of his own that Dr. Conn is aware as he is both our doctor. From my years in grade school struggling through I now know that I had my problems from my dyslexia, A.D.T., ‘ect’ [sic]. All these problems I’ve had since birth.”

[185] K.M. testified in cross-examination about this report to O.D.S.P. and how he felt he had been mentally ill his entire life and that it was perhaps connected to his father’s own mental illness. K.M. testified, “That’s what I thought then, yes”. K.M. said that at the time of the application in 2001, he did not know to what he was referring, whatever his father’s illness was. He was “grasping at straws why I was sick”. When pressed, K.M. said that his father had “[a]nxiety, depression”. In re-examination, K.M. testified that the reference to genetics was because his father was unwell. He did not know any more than that.

[186] K.M.’s mother A.F. was cross-examined on this issue as well. She testified that the mental illness K.M. was referring to was D.M.’s diagnosis of Alzheimer’s. She agreed that Dr. Conn treated D.M. in the year before she left him. A.F. testified that her marriage broke up in 1989, so this would place the time of D.M.’s Alzheimer’s diagnosis around 1988.

[187] On August 24, 2001, K.M.’s mother A.F. added a written note in support of K.M.’s O.D.S.P. application about K.M. being what she called a “blue baby”. A.F. was cross-examined in detail about what she meant when she wrote, “When K.M. was born the cord was wrapped around his neck & he was very blue in colour. I often wondered if this had any impact on his life’s problems”. She testified that she was Rh negative (her blood type) when she had K.M., and that often a second child could be a “blue baby”. She testified that they took blood out of K.M.’s heel to make sure he was not a blue baby, as those babies had to have their blood transfused. There was nothing in her evidence that any such blood transfusion ever occurred. When asked about the “cord” reference, she said it was a quick delivery.

[188] She was asked in cross-examination: was K.M. “blue due to lack of oxygen”? She said “No”. She said the doctor told her that “maybe he was a blue baby”. She was asked why it was relevant to his O.D.S.P. application. She said she did not know why she wrote that. She testified that K.M. did not have the normal colouring of his older sister when she was born. Ultimately she agreed that she was suggesting in the application that at birth, K.M. was blue and had the cord wrapped around his neck, and that it might be part of K.M.’s problems.

[189] In K.M.’s cross-examination, it was suggested to K.M. that he was a “blue baby” because there may have been a lack of oxygen at birth, and K.M. agreed. There is no medical evidence, however, about him being a “blue baby” and no medical records of a lack of oxygen at birth. There are no entries or notations in the family doctor medical records about K.M.’s birth, nor about any problems that he may have had at birth, nor about any problems immediately following his birth. There are no other medical records produced from anywhere else indicating that there were any problems with K.M.’s birth or its aftermath.

[190] K.M.’s application for O.D.S.P. was initially denied on November 8, 2001, as stated in his Initial Application Adjudication Summary. He was found not to have a substantial physical or mental impairment that was continuous or recurrent. Further, the direct and cumulative effect of his impairment on his ability to attend to his personal care, function in the community, and function in the workplace was stated to not result in a substantial restriction in one or more of these activities of daily living. This decision was confirmed by a letter dated December 5, 2001. K.M. later obtained the assistance of Ms. Stapely from the office of Hastings County Ontario Works.

[191] K.M. was then tested and assessed on December 19, 2002 by Dr. Wolfgarth, a clinical psychologist, who filed his assessment report (Exhibit #1, Tab #A54) with a Health Status Report to O.D.S.P. on December 20, 2002 (Exhibit #2, Tab #F5). K.M.’s scores were considered reliable and valid measures of his demonstrated skills. It was noted that K.M. had a history of inability to hold continuing employment due to psychiatric problems. His problems involving reading deficiency had impaired his ready assimilation of instruction. Other symptoms were noted by the Dr. Wolfgarth in a checklist at the back of the Health Status Report form, without any knowledge that K.M. had been sexually abused.

[192] In the assessment report, K.M. was assessed by Dr. Wolfgarth on “Intellectual Measures” as falling into the average range of intellectual ability at the twenty-seventh percentile rank. There was an eighteen-point difference between his verbal I.Q. score and his performance I.Q. score, indicating that K.M. was considered a verbal learner. On tests involving visual and spatial perceptual abilities, K.M. scored in the low-average range. He had a lack of appreciation for linear and spatial relationships.

[193] On “Personality Characteristics”, Dr. Wolfgarth determined K.M. to have experienced a chronic condition of clinical depression with hospitalizations. His learning difficulties were still apparent and reflected in his performance in the testing done, and were associated with dyslexic tendencies. He was assessed as having a history of inability to hold continuing employment due to interference in work steadiness caused by his psychiatric problems. He had not demonstrated a significant degree of progress over the years and his prognosis was guarded for the future.

[194] On April 16, 2003, K.M., then 37, was found by O.D.S.P. to be a person with a disability due to his condition of clinical depression, dyslexia and his learning disability, with a two-year review recommended. This was confirmed by letter from Paula Lam on April 16, 2003, with a review scheduled for April 16, 2005. By letter dated May 26, 2003, K.M.’s benefits were confirmed to begin on April 1, 2003. Subsequent reviews have maintained K.M.’s disability finding.

[195] As a result of this litigation, by formal request of the Ministry of the Attorney General dated June 15, 2011, K.M. was required to sign an agreement to reimburse O.D.S.P. for funds received as a condition of eligibility for continued income support. By letter dated February 29, 2016, it was confirmed that as of February 16, 2016, K.M. has received $105,645.29 in O.D.S.P. income support payments from April 2003 to February 2016, plus an overpayment of $21,325.54.

[196] The O.D.S.P. notes made on September 13, 2010 (Exhibit #2, Tab #F11, p. 487) record that on June 24, 2010, K.M. received an award of $12,500.00 from “Compensation for Victims of Crime”. This is exempt as income for O.D.S.P. purposes and is not deducted from K.M.’s income support payments. O.D.S.P. records confirm that K.M. reported his casual employment earnings to O.D.S.P. and that his income support payments were adjusted accordingly. K.M.’s prescription medications are paid for by his drug card from O.D.S.P.

(ii) K.M.’s Canada Pension Plan Disability Benefit Application (C.P.P.)

[197] On June 22, 2010, K.M. completed a questionnaire for disability benefits from the C.P.P. The materials related to his C.P.P. disability application are before the court (Exhibit #3, Tabs #G1-8). K.M.’s relevant medical history was described by Dr. Singh, in his medical report to C.P.P. of June 29, 2010, as “patient has suffered from childhood sexual abuse with post-traumatic stress disorder which turned in chronic major depression with dysthymia in 1987.” He also noted K.M.’s substance abuse. On September 23, 2011, K.M. was denied a C.P.P. disability pension. He was considered to be a “late applicant” and had to meet stricter criteria, in that his disability had to be severe and prolonged, and had to be continuous when making contributions to qualify. K.M. appealed the decision with the assistance of counsel. On October 26, 2012, following a review of the file, C.P.P. personnel agreed that K.M. had met the requirements for a disability pension and he was eligible as of May 2009. Legislatively, the earliest he could receive the pension was September 2009.

[198] On November 8, 2012, K.M. received notice of a credit for retroactive payments totalling $22,805.44. His total taxable monthly pension amount was $617.00. K.M. made arrangements with his bank to pay him $1,000 per month from this lump sum until the funds were exhausted, as he was no longer eligible for O.D.S.P. income support payments while these lump sum funds from C.P.P. were available to him.

f. K.M.’s Drug Use

[199] I have gathered references to K.M.’s drug use after his encounter with Marson from the evidence, including the medical reports in the exhibits. A more complete review of K.M.’s overall medical status is found below in these Reasons for Judgment.

[200] After Marson, K.M. was using marijuana daily. Y.G. testified that when she first got together with K.M. in the fall of 1981, K.M. used “pot … it could have been three to five times a day”. She had no knowledge of K.M.’s drug use before she met him. Y.G. testified in cross-examination that K.M.’s drug use was increasing over the years of their first relationship. In the second relationship, K.M.’s drug use was about the same as it was when they broke up before. K.M. paid for his drugs with welfare monies and with money from Y.G.’s wages.

[201] K.M. testified that he was developing a serious drug habit when he came back from Saint John’s to help him “feel something”, to alleviate his mood and to “feel normal, feel like everybody else”, but he did more drugs than everybody else. On July 14, 1982, when K.M. was age 16, Dr. Manderville, his family doctor, made a note (Exhibit #1, Tab #A1, p. 5) that he had discussed K.M.’s drug use with him. Dr. Manderville noted, “discussion re use of illicit drugs – marihuana – uses it almost daily. Does not use other drugs or alcohol. Thinks it’s alright because he likes it. Refuses to see a ‘shrink’. Says he’ll try to stop. Wants to get a job. Will not go back to school. Parents threatening to throw him out.”

[202] On October 21, 1982, K.M., now age 17, was noted by Dr. Manderville (Exhibit #1, Tab #A1, p. 6) as, “Trying to stay off marijuana – very tense”. He was prescribed 20 tablets of Ativan. On October 25, 1982, K.M. was admitted into a residential drug treatment program at Serenity House of Quinte in Belleville, with the knowledge of Dr. Manderville, to try and get him off drugs. K.M. left the facility without staff approval on November 1, 1982, telling the staff that he needed to “get high”.

[203] K.M.’s mother A.F. testified that the first time she had heard about K.M. using drugs was when he was at Moira Secondary School, when the police told her K.M. was using marijuana.

[204] K.M.’s sister S.G. testified about their father D.M. being upset with K.M. when he was in grade 7 or 8, but she did not know why. When K.M. went to Moira, he stopped going to school. She was not aware of any problem K.M. had with drugs until her parents started “tough love” when K.M. was acting up at Moira. Their father had kicked K.M. out of the house. S.G. knew he was doing drugs then as she could “smell it”.

[205] Dr. Manderville next noted K.M., age 24, using marijuana in 1989, around the time of his parents’ divorce and when he was referred to Dr. Brant, a local psychiatrist. Dr. Brant on November 24, 1989 (Exhibit #1, Tab #A9) described K.M.’s depression as being compounded by his parents’ divorce after 27 years of marriage, his breakup with Y.G., and his heavy marijuana use. He reported that K.M. “started smoking up when he was about thirteen years old and has done so on a daily basis since then … up to four large joints of strong marijuana” per day.

[206] K.M. was admitted to the Belleville General Hospital on December 27, 1989 (not 1990 as recorded in some forms, discussed below). In the Admission History and Physical (Exhibit #1, Tab #A10), dictated December 28, 1989 and transcribed January 1, 1990, Dr. Manderville reported that K.M. had a major addiction to marijuana. He stated K.M. “has used this drug since about grade 7 and at that time his mother found out, after he had been using it for a couple of years, and went to various social agencies in an attempt to try and get him some help but he states that he has taken it nearly every day.” In addition he noted that K.M. had used cocaine. The only evidence of any social agency being involved in helping with K.M.’s drug use was Serenity House in 1982, when K.M. was age 17.

[207] On December 27, 1989 (Exhibit #1, Tab #A11), dictated December 27, 1989 and transcribed January 1, 1990 (not 1989, as indicated on the form), Dr. Conn reported that K.M. was “utilizing hashish and marijuana since age 13 years. On a daily basis and to a considerable amount”, which K.M. was trying to reduce. Dr. Conn could not have seen Dr. Manderville’s report from K.M.’s hospital admission, as it had not yet been transcribed.

[208] In February 1990 (Exhibit #1, Tab #A15), Dr. Brant reported that K.M. had “given up marijuana to which he had been habituated for about eleven years”. This reference would place K.M.’s starting point of marijuana use “about” February 1979 when K.M. was age 13 and in grade 7.

[209] K.M. was admitted to the Kingston Psychiatric Hospital from July 19, 1990 until August 15, 1990. In Dr. H. Pytlak’s Discharge Summary dictated August 17, 1990 (Exhibit #1, Tab #A24), he reported that on August 14, 1990, K.M. had told Dr. G. Linn, a third year psychiatric resident, that “since he was 12 years old he began to use cannabis (marijuana, hashish), acid (form of ‘speed’), various ‘uppers’ and ‘downers’ and ‘everything I could get my hands on’”. K.M. reported that over the last year, he had become involved with cocaine when he provided his apartment as a safe house, and was given 5 gm per week as payment. Others involved with the cocaine were arrested and the supply dried up. It was reported that this is what had precipitated K.M.’s admission to the Belleville General Hospital.

[210] When K.M. was in the Kitchener-Waterloo area, Dr. Schwarz reported on February 27, 1997 that K.M. was using hash once a week to improve his mood.

[211] After the sexual abuse by Marson, K.M. became a regular street drug user. The reason given by K.M. for using drugs was that he just wanted to feel something, to make himself feel better, and it helped. There is no evidence of any criminal convictions of K.M. Over the years, K.M. reduced his dependency on drugs except for marijuana, which he uses today and for which he has a prescription. K.M. testified that Dr. A. Matveyev suggested it and Dr. R. Holmes sent him to Medi-Green in Smiths Falls. His current marijuana use, as medically prescribed, is legal and permitted by license from Health Canada.

[212] In cross-examination, K.M. testified that after Marson, as he got older, he started using different sorts of drugs and using more of them. K.M.’s use of illegal or other street drugs stopped when his son M.M. was born. The evidence is that K.M.’s son was born in July 1998, or 18 years ago, when K.M. was 32 years old. K.M. testified that he stopped with the drugs and with alcohol, but continued to use marijuana. He’s been “clean” for eighteen years, subject to his use of medical marijuana. He does not drink alcohol, except for a couple of beers he had on his 50th birthday. He does not do hard drugs.

[213] Dr. McMillan, dictating for and in consultation with Dr. Singh, noted in his July 30, 2007 initial assessment of K.M. that K.M. smoked two marijuana joints per day and that he was trying to cut down. It was noted that K.M. had “used cocaine in the remote past for approximately one year” and that he had “tried LSD in the 80s” (Exhibit #1, Tab #A71).

g. K.M.’s Psychological and Mental State

(i) Overview

[214] K.M. testified that after Marson, “everything’s a mess for me.”

[215] K.M. has seen different doctors since 1978 as they came and went from being working physicians to retiring or passing away over all these many years. Records from his childhood family doctors, initially Dr. E. A. Manderville and Dr. A. Goddard-Hill in Belleville, begin in 1966. From July 26, 1996 to 1997, his family doctor was Dr. D. Choong when K.M. was in Guelph. After returning to Belleville in 1997, K.M.’s family doctor was again Dr. Goddard-Hill. Since September 8, 2015, his family doctor has been Dr. R. Holmes in Belleville.

[216] The medical records of these family doctors and of Dr. Conn, a psychiatrist, in relation to K.M.’s office visits are before the court at Exhibit #1, Tabs #A1-4. The records from the offices of Drs. Manderville and Goddard-Hill at Tab #A1 span from January 13, 1966 to the latest date of January 2, 2015. Dr. Choong’s office records are mislabelled in the Joint Document Brief Index and are in fact at Exhibit #1, Tab #A2, pages 46-49, from July 26, 1996 to the latest date of May 20, 1997 (not 1970 to 1997 as indicated in the Index). I note that Tab #A2, page 49 indicates an appointment with Dr. Choong on March 10, 1995, however I find that this would have been on March 10, 1997 because it was a follow-up of K.M.’s meeting with Dr. Schwarz, whom K.M. met on February 25, 1997 (discussed later in these Reasons for Judgment), and because the following entry in Dr. Choong’s records is May 20, 1997. Tab #A2, pages 38-43 appear to be mistakenly and partially duplicated from medical records in Tab #A1, while Tab #A2, pages 44-45 contain records from 1995 that did not appear in Tab #A1. Dr. Conn’s records are at Tab #A3 from August 18, 2003 to May 17, 2006. Dr. Holmes’ records are at Tab #A4 from September 8, 2015 to January 20, 2016.

[217] I have considered the family doctors’ records and integrated relevant references in them, chronologically, with the records and reports of K.M.’s treating psychiatrists since he began psychiatric treatment in 1989, to reflect a more complete picture of K.M.’s overall medical history. Counsel as well have highlighted important notes and comments in the family doctors’ records in the evidence.

[218] From 1978 to 1989, after his encounter with Marson, K.M.’s medical records from Dr. Manderville are relatively unremarkable except for the two important entries made on July 14, 1982 and October 21, 1982, which I have referred to earlier in relation to K.M.’s serious use of drugs. A second school medical was done on June 22, 1981. The other recorded entries contain references to medical issues such as a leg injury from football, an ankle sprain, acne, dermatitis, a cough and similar symptoms reflecting common physical ailments as K.M. grew up from a teenager into an adult.

[219] In 1989, K.M. began being treated by a psychiatrist. In November 1989, Dr. Manderville referred K.M. to Dr. Clare Brant, an Assistant Professor of Psychiatry, University of Western Ontario, who was then practicing on the Tyendinaga Mohawk Territory near Belleville. Dr. Brant died of cancer in 1994. After 1994, K.M. was treated by Dr. E.B. Conn in Belleville until 1996. There were consultation and assessment requests made between Drs. Manderville, Brant and Conn from 1989 to 1996. K.M. briefly saw Dr. M. Schwarz in Guelph from in 1996-1997. After returning to Belleville, K.M. was again treated by Dr. Conn from 1997 until he retired in 2006. K.M. was treated and assessed by other psychiatrists and psychiatric residents during his two hospital admissions to the Belleville General Hospital and his one admission to the Kingston Psychiatric Hospital.

[220] K.M. then started to see Dr. A. Singh in Belleville in 2007 until Dr. Singh semi-retired in 2012. K.M. has seen Dr. Singh a few times in Kingston since then for the purpose of preparing expert reports for this case. Since Dr. Singh semi-retired in 2012, K.M. has not had a regular, treating psychiatrist.

[221] After 2012, K.M. continued to struggle with his mental health. He was referred to Dr. A. Matveyev, a psychiatrist working at the Belleville General Hospital, who saw him on June 14, 2013 (not June 12, 2013, as incorrectly stated in the O.H.I.P. summary) and October 8, 2015. This was K.M.’s last appointment with a psychiatrist. K.M.’s medical care thereafter has been managed by his family doctor. K.M. testified that between October 8, 2015 and the civil trial date in March 2017, he needed a prescription for Ativan in May 2016. He used two tablets and still has the rest. He continues to use marijuana, which is now medically prescribed.

(ii) Dr. C. C. Brant – 1989 to 1994

[222] In 1989, Dr. Manderville referred K.M. and made a clinical note that K.M. was “depressed over parents’ divorce – may need something – uses marijuana – refer to Dr. Brant” (Exhibit #1, Tab #A1, p. 7). K.M. saw Dr. Brant as his treating psychiatrist beginning November 23, 1989. K.M. was feeling suicidal. His relationship with Y.G. had broken up and his parents were getting a divorce. A follow-up letter to Dr. Manderville was sent by Dr. Brant on November 24, 1989 (Exhibit #1, Tab #A9) describing K.M.’s depression as being compounded by his parents’ divorce after 27 years of marriage, his breakup with Y.G., and his heavy marijuana use. He reported that K.M. “started smoking up when he was about thirteen years old and has done so on a daily basis since then”. K.M. was described as suffering from a major depression compounded by the family breakups. He was prescribed Prozac.

[223] K.M. testified that 1989 is the first time that he can recall suicidal thoughts or that he had an “out”. It’s when he first considered suicide, and he still does. He never told Dr. Brant about the sexual abuse by Marson.

[224] With the assistance of Dr. Brant and Dr. Manderville and under the care of Dr. Conn, K.M., at 24 years old, was admitted to Belleville General Hospital on the psychiatric ward for his depression from December 27, 1989 until January 19, 1990. Dr. Brant had wanted K.M. to be admitted on December 22, 1989 but K.M. refused. Dr. Manderville, in his Admission History and Physical dictated December 28, 1989 (Exhibit #1, Tab #A10), reported that K.M. had seen him in his office approximately three weeks before and was very depressed, with suicidal ruminations. Dr. Manderville’s notes of this office visit are at the bottom of his records at Exhibit #1, Tab #A1, at page 7, but they are barely readable. It appears to say, “Depressed. On Ludiomil, Xanax, and marijuana. Seeing Dr. Brant - not happy with him. Suicidal ruminations. Refuses to come into hospital”. In the Admission History and Physical, Dr. Manderville reported that K.M. had a major addiction to marijuana and had used cocaine.

[225] Dr. Conn dictated his Belleville Hospital Consultation Report on December 27, 1989 (Exhibit #1, Tab #A11). K.M. had group therapy. Various medications were tried, including Prozac, Ludiomil, Xanax, and Restoril, with no improvement in his symptoms. K.M. had fatigue, loss of interest, some shortening of concentration span, decreased appetite, and disturbed sleep with fitful insomnia. His symptoms had been present since October 1989. It was noted that K.M. had no criminal history or temper control problems. Dr. Conn reported that K.M.’s home environment was described as “average” and that K.M. had “obtained grade 9 in his school”. Dr. Conn reported that K.M. was utilizing hashish and marijuana since age 13 on a daily basis and in a considerable amount, which K.M. was trying to reduce. K.M. testified that there was never any benefit from his hospital admissions on his mental health.

[226] On January 19, 1990 (Exhibit #1, Tab #A13), Dr. Conn dictated his Discharge Summary. I note the date of admission of “27-12-90” on the form is clearly a typographical error and should be “27-12-89”. Unfortunately, this error is continued forward in some of the later medical records. K.M. was discharged on Sinequan, Chloral Hydrate and Xanax. He was stated to be improved and was warned about future use of street drugs.

[227] In February 1990 (Exhibit #1, Tab #A15), Dr. Brant reported in a progress note that he had seen K.M. on eight occasions in February. K.M. was constantly depressed and feeling hopeless, exacerbated by the fact that Y.G. had ended their relationship. K.M. had discontinued his medications. He had stopped using marijuana. He had frequent impulses to hurt himself but came to realize that he was going to recover. He denied any suicidal plan. Dr. Brant prescribed Parnate.

[228] On February 20, 1990 (Exhibit #1, Tab #A16), Dr. Brant reported that K.M.’s girlfriend (Y.G.) had left him because she was fed up with his moping around and his infrequent sexual advances, and she took up with someone else. K.M. was severely depressed and Dr. Brant arranged daily contact with him. K.M. was living alone and spent most of his time alone, which he preferred. He was receiving disability benefits from Proctor and Gamble, where he was working at the time. K.M. was seen at the emergency department on February 23, 1990 at the crisis centre, with follow-up by Dr. Brant.

[229] In March 1990 (Exhibit #1, Tab #A18), Dr. Brant continued to see K.M. for psychotherapy and medication monitoring. K.M. had an exacerbation of his depressive symptoms. Re-hospitalization was offered and declined by K.M. Dr. Brant reported in his progress note that K.M. advised that “he is getting so fed up with the way that he has felt for so many years that he intends to commit suicide unless relief is given to him by the middle of April 1990”. K.M. testified that he still feels this way. Dr. Brant consulted with Dr. N. Delva from the Kingston Psychiatric Hospital. Dr. Delva recommended adding Lithium Carbonate to K.M.’s medications together with Parnate, which was then prescribed. Dr. Brant wanted K.M. to be hospitalized for electroconvulsive therapy. These medications only worked for a while.

[230] In April 1990 (Exhibit #1, Tab #A19), Dr. Brant reported in his progress note that K.M. had made a substantial improvement on his medications although he suffered stomach upset and diarrhea. His mood levelled out, but by the end of April, K.M. was emotionally upset, with crying and restlessness. His new girlfriend (K.W.) was distressed at K.M. being upset and did not know how to comfort him. Dr. Brant felt that K.M.’s depression was starting to resolve, with the exception of some restlessness and agitation in the evening. K.M. was optimistic about his future.

[231] In May 1990 (Exhibit #1, Tab #A20), Dr. Brant reported in his progress note that K.M. was doing well on his medications but that he had stopped taking Parnate as he did not have the money to pay for it. K.M. had not received disability payments since December 1989 and he felt embarrassed about borrowing more money from his parents. K.M.’s depression had regressed because of his inability to afford the medication. Dr. Brant provided him samples of Parnate and he re-started the medication along with Lithium Carbonate that K.M. still had.

[232] In June 1990 (Exhibit #1, Tabs #A21-22), Dr. Brant reported that K.M. had been assessed by Dr. Delva and arrangements had been made for K.M. to be admitted to Dr. Waldron’s clinic at the Kingston Psychiatric Hospital for “definitive treatment of his long standing and chemically resistant depression”. Dr. Delva asked Dr. Waldron to evaluate K.M. Dr. Waldron reported that K.M. was “an extremely disturbed young man who though giving a life history of dysphoria was never the less reasonably well adjusted, working and living in an eight year stable relationship with a common-law wife until the end of 1989. At that time, things seem to have become quite unstuck and he has become increasingly depressed. Trials of several tricyclics and Lithium have not helped”. He recommended inpatient evaluation and treatment of K.M.’s depression.

[233] K.M., nearly age 25, was admitted by Dr. Waldron to the Kingston Psychiatric Hospital on July 19, 1990 and left August 15, 1990. Dr. Waldron’s resident, Dr. H. Pytlak, reported in a Discharge Summary dictated August 17, 1990 (Exhibit #1, Tab #A24) that K.M. on admission had complaints of “sadness, loneliness, hopelessness, excessive sleep and average appetite”. He had “occasional severe headaches, lack of energy, lack of motivation and some mild suicidal ideation with no plan”. He continued to have poor sex drive. There was no evidence of a thought disorder. He was assessed as having mild to moderately depressed mood with appropriate affect. He had been living with his new girlfriend (K.W.) and her two-year-old son for the past four months and the relationship was so far very good.

[234] Dr. Pytlak’s diagnosis was made in accordance with the Diagnostic and Statistical Manual of Mental Disorders (“DSM”). There is a five axis system of diagnosis that is used. For contextual purposes I note these are: Axis I (Clinical Disorders, other conditions that may be a focus of clinical attention); Axis II (Personality Disorders, Mental Retardation); Axis III (General Medical Conditions); Axis IV (Psychosocial and Environmental Problems); and Axis V (Global Assessment of Functioning (GAF) scale: with 1-10 as severe symptoms, 51-60 as moderate symptoms, and 91-100 as no symptoms). It is generally accepted that the GAF scale is used to rate how serious a mental illness may be, or how much a person’s symptoms affect their everyday life—including their psychological, social and occupational functioning—on a continuum of mental illness.

[235] Dr. Pytlak’s diagnosis of K.M. was: Axis I – psychoactive substance dependence and dysthymia associated with a bath; Axis II – specific learning disorder – unspecified, and mixed personality disorder – anti-social, dependent traits; Axis III – chronic cough – smoker two packages per day, hashish; Axis IV – mild; and Axis V – GAF in past year, 75. During K.M.’s course at the hospital, his girlfriend at the time (K.W.) visited him. He was tapered off his medications as K.M. felt that they did not make any difference and were giving him stomach problems. K.M. took a leave of absence from August 1 to 9, 1990 to spend some time with his girlfriend (K.W.) and her son and then to attend his grandmother’s funeral. It was noted that K.M. had problems at work when he transferred from a concrete finisher to a carpenter, “as he had many problems with measuring as he did not know numbers due to his specific learning disorder that was recognized early in his school years.” K.M. told to Dr. Linn, a third year psychiatric resident, on August 14, 1990 that he had used drugs since he was 12, as earlier discussed. While a patient at the hospital, K.M. was smoking hashish and snorting cocaine to make himself feel better. When Dr. Pytlak confronted him on August 15, 1990 about his use of drugs at the hospital, K.M. became very angry, rude and hostile.

[236] That very same day, August 15, 1990, K.M.—likely under the influence of drugs—discharged himself from the hospital against medical advice, despite being asked to stay. K.M. testified that the hospital was starting to suggest to him that he have electro-shock therapy, to try and “charge him out of his depression”. K.M. just wanted out of there and felt his treatment was not helping him. He had phoned his mother and asked her for more money, which she suspected was to buy some cocaine.

[237] Dr. Brant reported to Dr. Manderville on September 7, 1990—not, as indicated in the report, 1989 (Exhibit #1, Tab #A8). I note that when the contents of the report are read, the date this report was written would have to be September 7, 1990, not 1989. Dr. Brant noted that K.M. had not been completely honest with him about his drug use and was snorting large amounts of cocaine. Dr. Brant stated he believed K.M. had discontinued street drugs in December 1989 (which I find is confirmation of the date error, as the report is dated September 7, 1989). Dr. Brant reported that K.M. was looking for an antidepressant drug that would allow him to abuse street drugs and make him feel well. That drug did not exist. K.M. made oblique referrals to suicidal ideation but not enough to force his hospitalization. Dr. Brant recommended residential treatment at the Donwood Institute, but it never came to be.

[238] Dr. Manderville (Exhibit #1, Tab #A1, p. 8) referred K.M. to Dr. Conn for a psychiatric consultation, which was done on February 7, 1992. K.M. was working at Gilly’s Express and had been living with his girlfriend (K.W.) and her son for the past two years.

[239] Dr. Conn’s report dated February 7, 1992 (Exhibit #1, Tab #A25) refers to K.M. being a patient of his on “Quinte 3 from December 27, 1990 to January 19, 1991”. This is the same error in the Belleville Hospital records referred to earlier regarding the admission date. I am satisfied that Dr. Conn was referring to K.M.’s hospitalization from December 27, 1989 to January 19, 1990 at the Belleville General Hospital. Dr. Conn also refers to K.M. being at the Kingston Psychiatric Hospital “this past summer”, which would be summer of 1991, whereas the Kingston Psychiatric Hospital records indicate it was the summer of 1990.

[240] Dr. Conn reported that K.M. continued to have problems with chaotic mood swings that varied from day to day. He had trouble with onset sleeping, varying levels of energy and interest, and varying levels of concentration ability. He did not experience a wealth of ambition. He was using marijuana in a very limited fashion and he maintained a close relationship with his mother. Dr. Conn stated that K.M. is a “personality problem” and had a number of “asocial personality features and certainly may well fit into the category of borderline personality”. K.M. was developing anger towards his girlfriend (K.W.) and her child. Dr. Conn prescribed Neuleptil. Dr. Conn disagreed with “Clare” (Dr. Brant) that K.M. had a bipolar mood disorder. Dr. Conn did agree that K.M. “does display some of the chaotic moods of the borderline personality”.

[241] At the request of Dr. Manderville, K.M. was re-assessed by Dr. Brant on December 23, 1992 (Exhibit #1, Tab #A26), over two years after he had last seen him. K.M. testified that Dr. Brant’s assessment was accurate of his situation at the time. In his report to Dr. Manderville, Dr. Brant stated that K.M. had reported signs and symptoms of major depressive episode. K.M. was feeling almost continuously dysphoric, with crying spells, severe middle insomnia, absence of sex-drive, and a poor appetite. K.M. had stopped using marijuana 60 days prior and now felt worse. K.M. had been only intermittently employed over the last three years.

[242] Dr. Brant described K.M. as feeling super depressed, staying at home by himself, watching television all day and moping around the house. His relationship with K.W. was seriously deteriorated and they had not been intimate since August due to his reduced sex drive and K.W.’s rejection of K.M. He looked, sounded and acted depressed. His thinking was normal in content and process. K.M. denied any suicidal ideation or plan. Dr. Brant reported that K.M.’s “recent and remote memory was intact. There was no sign of intoxication or brain damage”. His diagnosis was major depressive episode. He noted that numerous attempts at pharmacotherapy in the past had failed. He thought one of the newer antidepressants might be helpful and he prescribed Zoloft together with Buspar.

[243] Dr. Brant reported to Dr. Manderville on July 28, 1993 (Exhibit #1, Tab #A27) that he had seen K.M. in January, February and March of 1993. K.M.’s relationship with K.W. had ended and she had taken up and moved in with another man. K.M. was in a subclinical rage about the way he had been treated by the women in his life. K.M. had stopped his most recently prescribed drug, Luvox, which was restarted. After the breakup, K.M. was more depressed.

[244] On September 23, 1993 (Exhibit #1, Tab #A28), Dr. Brant reported that during his assessment on September 1, K.M. was feeling well. He had stopped taking Luvox and had cut off all contact with K.W. and her son. No plans were made to see Dr. Brant again. K.M. testified that he would sometimes feel optimistic, positive and somewhat normal, but it would only last about a month.

[245] On May 4, 1994 (Exhibit #1, Tab #A29), Dr. Brant reported that he had started K.M. on Prozac in February 1994 and that K.M. had made a remarkable improvement. He recorded that K.M.’s vegetative signs of depression were in remission and that his sex-drive had returned. Dr. Brant returned K.M. to Dr. Manderville’s care and recommended he remain on Prozac for another eight months. Shortly thereafter, Dr. Brant passed away.

iii. Dr. E. B. Conn – 1994 to 1996

[246] Thereafter, K.M. was in the care of Dr. Goddard-Hill as his family doctor and Dr. Conn as his treating psychiatrist, except for 1996 to 1997 when K.M. was briefly in the Guelph, Kitchener-Waterloo area. Dr. Conn reported on March 23, 1995 (Exhibit #1, Tab #A30) that K.M., then age 29, was experiencing problems with depression and that Prozac appeared to have lost its effect. Amitriptyline was not helping. He had broken off with his girlfriend (K.W.) and his other friends. He was utilizing alcohol and marijuana. Dr. Conn did not think any medication would completely address K.M.’s problems and recommended he stop using both alcohol and marijuana. Dr. Conn found that K.M. had a decided personality disorder and difficulty with interpersonal relationships over his lifetime. He was tried on Paxil. Dr. Conn’s diagnosis of K.M. was (1) personality disorder with dysthymia and (2) substance abuse with its associated sequelae.

[247] Dr. Conn, in this same report, reported that K.M. came from a “rather dysfunctional family”, noting: “Parents separated some years ago and father lives on his own on a disability pension on the basis of having marked memory problems”. Dr. Conn had “never been completely convinced that this is an organic problem”.

iv. Dr. M. Schwarz – 1996 to 1997

[248] K.M. was now living in the Guelph, Kitchener-Waterloo area and still having mental health problems. He testified that he was struggling when he got there and needed to try and find some help. In 1996 and 1997, Dr. Choong (Exhibit #1, Tab #A31) had prescribed Effexor, Paxil, and Prozac for K.M.’s chronic depression. On July 26, 1996, he referred K.M. for a psychiatric assessment, which was conducted by Dr. M. Schwarz.

[249] On February 25, 1997, Dr. Schwarz, a psychiatrist at the Guelph Community Mental Health Clinic, assessed K.M. Dr. Schwarz did not have access to any of K.M.’s old psychiatric records. K.M. was not in any intimate relationship. According to the assessment report (Exhibit #1, Tab #A33), K.M. had excessive anxiety and worry that he found difficult to control, and he was scared for no reason. He had difficulty concentrating and felt overwhelmed. He had lost 30 lbs in the last 4-5 months. He had panic attacks. He was described as “inappropriately familiar”. He was “chaotic and easily distracted” and it was “not easy to get a good history from him”. His thought content displayed low self-esteem, some hopelessness and worthlessness. He denied suicidal ideations. He denied use of alcohol, but utilized hash once a week to improve his mood. K.M. had “good childhood memories”. He denied a childhood history of any kind of abuse. His academic performance was poor and he was labelled as a “slow learner”. He had to repeat many grades. He completed grade 8. There were no behavioural problems. He left home at 16 and started working at the same time. He held numerous small jobs. He had relationship problems with his supervisors and colleagues. He started dating at 16 and had had three serious relationships. He had a pattern of becoming jealous and possessive very quickly towards the person he dates. He had a past history of being physically abusive towards his girlfriends. Because of his temper, he had decided to remain single for the rest of his life.

[250] Mentally, K.M.’s capacity to focus his attention was impaired by his anxiety. His judgment was fair. He had some insight into his mental illness and limited functioning, but his motivation for treatment seemed to be compromised. K.M.’s diagnosis was similar to assessments in the past: Axis 1 – generalized anxiety disorder, panic disorder, dysthymia, and cannabis abuse; Axis IV (mild) – loneliness, upcoming job loss, chronic mental illness; Axis V (GAF) – 70. He was put on Paxil but Dr. Schwarz recommended that Lithuim, Benzodiazepines, or Buspar be considered in the future. It was recommended K.M. stop using cannabis.

v. Dr. E. B. Conn – 1997 to 2006

[251] K.M. was back in Belleville in 1997, having left the Kitchener-Waterloo area. He was 32 years of age and once again saw Dr. Conn as his treating psychiatrist.

[252] Dr. Conn reported on March 2, 1998 (Exhibit #1, Tab #A34) to Dr. Goddard-Hill, K.M.’s family doctor, that K.M. was chronically depressed, feeling sad, despairing and hopeless. He had a girlfriend of one year (C.P.) but his moods created some problem in the relationship. He lacked energy, had a decrease of interests, a marked decrease of capacity to enjoy life, felt anxious, had hypersomnia, had limited concentration span, had tendency for social withdrawal, and had increased irritability. Dr. Conn reported that K.M. had obtained grade 8 and because of his learning disabilities was in “special ed”. He was out of work, which consisted mainly of concrete work. A family history of mental illness, apart from the father, was denied. Dr. Conn had previously questioned the father’s amnestic problem. Dr. Conn reported that K.M.’s father D.M. suggested to K.M. that he be on a disability pension. K.M. maintained contact with both parents. Dr. Conn reported that K.M. had been off alcohol and street drugs for a period of time, but had in the past used them heavily for at least five years. He had had panic attacks.

[253] Dr. Conn reported that K.M. had no criminal history. He reported that K.M. had no close friends and has “never had the skill to make close friends”. There was no evidence of significant cognitive impairment. K.M.’s depression was compatible with dysthymia, which is why Dr. Conn thought K.M. had not been responsive to antidepressant medications in the past. He noted that K.M. did seem to benefit from Xanax. He prescribed Trazadone and recommended hospital day care but K.M. refused, stating there was no benefit from his previous hospital involvement on Quinte III (Belleville General Hospital) or KPH (Kingston Psychiatric Hospital). K.M. had had personality problems in the past. Dr. Conn’s diagnosis that day was: Axis 1 – chronic dysthymia, and Axis II – personality disorder, with a guarded prognosis.

[254] Dr. Conn stated in this same report (Exhibit #1, Tab #A34, p. 109) that, “I could not on the basis of his history to date indicate that he has a disability of such type that he could not be employable. I fear that he will suffer if he does not proceed and successfully obtains a disability pension since I feel this would commit him to a life of inactivity and lack of purpose”.

[255] K.M. was cross-examined about Dr. Conn’s statement. K.M. testified that Dr. Conn never told him that it was a bad idea or it would not be advisable for him to try and get a disability pension, nor did his family doctor, Dr. Goddard-Hill. Dr. Conn did not say to him that his life would be ruined if he got a pension.

[256] K.M. testified about his mental health issues, over these years and in the 1990’s, as getting worse and knowing that he was not going to get any better.

[257] K.M. met his girlfriend C.P. in 1997 and their son M.M. was born in July 1998. K.M. testified that it was a very stressful situation for him. They were separated by December 1999. On December 20, 1999, K.M.’s family doctor saw K.M. and reported in an almost illegible note that he was having frequent attacks of crying and that his girlfriend (C.P.) had left him as of December 1, 1999 (Exhibit #1, Tab #A1, p. 29, typed note at p. 33). The abbreviated typed note said “reactive depression. separation, son with wife. 2 wks.” The handwritten doctor’s note goes on to say that she was pregnant and “gave birth in July. Sees her still friendly and amicable. She wanted to get married, he did not”. K.M. agreed that when he had relationship issues, he would tend towards more depression and more anxiety and that he would require medical attention. K.M. testified in cross-examination that breakup of relationships has been particularly traumatic for him. K.M. agreed that when his parents divorced it caused a certain amount of anxiety and depression, which required some treatment for him.

[258] On December 22, 1999, K.M. ended up at the Belleville General Hospital emergency department and was seen at the Crisis Intervention Centre. His relationship with C.P. had ended. He was sad about the separation but felt that his son M.M. filled the void. The social worker P. Schroth recorded (Exhibit #1, Tab #A35, p. 110) K.M. as stating he had “been depressed since age 10”. He was having suicidal ideations, but denied any plans or current intentions. The social worker recorded that K.M. stated that “he may kill himself in the fall of 2000 because he likes fall”. The Emergency Room doctor recorded (Exhibit #1, Tab #A36) that K.M. had suicidal thoughts for a long time but would not act on it. He recorded that K.M. was adamant not to be admitted as he wanted to go to work. K.M. was working at Sears Warehouse at the time. He testified that he had tried to overdose, maybe on Parnate.

[259] K.M. was cross-examined in detail about his reference to being “depressed since age 10”. K.M. did not agree that this was the case. He agreed that the statement was probably made when he was “in a hell of a mess, and could probably not even think straight”. K.M. testified that, “I didn’t have any real depression problems when I was 10 years old”. He said that he did not check his journal before he went to the crisis centre, and testified, “I was a couple of years off”.

[260] On January 28, 2000, K.M., age 34, attempted suicide and had depressive symptoms with on-going suicidal threat. He was admitted to the Belleville General Hospital (Exhibit #1, Tabs #A37-40) on a Form 1 (Involuntary Admission) and discharged on February 14, 2000. The Initial Assessment and Emergency Room records state that K.M. overdosed. The medical records indicate he took 10 to 11 Oxazepam pills in a suicidal gesture and stated he felt hopeless and would attempt again. Dr. L. Ash recorded that K.M. had advised that he had been depressed and suicidal all his life and that he wanted to die by the fall of that year. Dr. Ash reported that K.M. tended “to be very negative about his life in general and does not seem to be able to make a commitment about anything”. He diagnosed him as having a long standing personality disorder and prescribed Paxil. He described K.M. as seeming to be “unable to make a commitment to anything which requires long-term effort on his part”, and that this was a problem, “not only in terms of his personal relationship but also in terms of his vocational career as well”. K.M. had lost his job at Sears Warehouse a few weeks before. K.M. had chronic suicidal ideation but denied any recent suicidal attempts. K.M. seemed quite willing to stay in hospital and did not have a thought disorder. On that basis, Dr. Ash cancelled his Form 1 on January 29, 2000.

[261] K.M. signed himself out of hospital and was discharged in the morning of February 3, 2000 (Exhibit #1, Tab #A41); he was considered as not being extremely stable. K.M. was quite disturbed that his common-law wife (C.P.) was attempting to get full custody of his son and he became agitated. He had second thoughts and decided to return. K.M. came back and was re-admitted a few hours later the same day (Exhibit #1, Tabs #A42-43). His diagnosis was Axis I – acute chronic dysthymia; Axis II – personality disorder; and Axis IV – impaired psychosocial ability, with an Axis V GAF score of 65-70.

[262] While in hospital on Quinte III, K.M. was referred by Dr. Conn for MMPI-2 psychometric testing. He was tested on February 4, 2000. In the report dated February 7, 2000 (Exhibit #1, Tab #A44), the MMPI-2 yielded a valid protocol consistent with patients who are admitting personal and emotional problems and who are requesting help with these problems. His Axis I diagnosis was adjustment disorder, with secondary considerations of dysthymia, major depression, and psychoactive substance abuse. His Axis II diagnosis was antisocial personality disorder. It was noted that his prognosis was generally poor with respect to traditional interventions of psychotherapy.

[263] K.M. was discharged from hospital on February 14, 2000 (Exhibit #1, Tabs #A45-46) on Nozinan, Effexor, Epival, and Temazepam and with a diagnosis of acute depression and personality disorder. He was improved and had no evidence of suicidal ideation on discharge. According to K.M., his substance abuse had been brought under control. He was referred to the day hospital program and had follow-up appointments with Rick Bough, a counsellor at the hospital.

[264] On July 21, 2000 (Exhibit #1, Tab #A48), Dr. Conn saw K.M. for a follow-up appointment as he was experiencing progressive depression. K.M. was becoming more emotionally labile with unpredictable tearfulness. Dr. Conn decreased K.M.’s dose of Effexor, added Wellbutrin and maintained his Epival and Nozinan. Dr. Conn noted that “[h]opefully, this may break through this depression which is developing strains of being resistant depression”. K.M. denied alcohol and street drug abuse.

[265] On May 4, 2001 (Exhibit #1, Tabs #A49-50), K.M., age 35, went back to the crisis centre. He was diagnosed as having a personality disorder and a medication problem, as he had run out of Effexor. He was put on Ativan for 5 days until he could get in to see Dr. Conn. On December 20, 2001, K.M. was at the emergency room asking for Ativan, which he was prescribed.

[266] On January 7, 2002, K.M. attended at the Mental Health Clinic and was prescribed Effexor and Zyprexa. Dr. Conn reported on March 7, 2002 that K.M. in the last week or two had been feeling more depressed. Dr. Conn reported that it appeared to be “an ongoing situation with [K.M.] with some improvement followed by relapses”. His diagnosis was dysthymia, personality disorder and past substance abuse, with the latter under control. He reported that K.M.’s motivations for gainful employment were not particularly strong and that he was receiving welfare and hoped to be able to receive a disability pension. He was taken off Effexor and placed on Celexa and Risperdal. On July 25, 2002, Dr. Conn discontinued Celexa, as it was not working, and prescribed Remeron (Exhibit #1, Tab #A53).

[267] K.M. applied for financial assistance from O.D.S.P. and Dr. A. Wolfgarth, a clinical psychologist, did his assessment of K.M. on December 19, 2002 (Exhibit #1, Tab #A54).

[268] On March 10, 2003 (Exhibit #1, Tab #A55), Dr. Conn recorded that K.M. was experiencing considerable problem with memory and concentration span. K.M. also noted a decrease in his mood and an increase in his panic responses. He had been taken to task verbally by an employer in the Toronto area while doing deliveries. His depression was increasing. His prescription for Remeron was continued and Celexa was added.

[269] On May 7, 2003 (Exhibit #1, Tab #A56), Dr. Conn described K.M. as being particularly tense and anxious. His Celexa was discontinued, his Remeron was continued and additional Risperdal was prescribed. K.M. had just been approved for his O.D.S.P. benefits, which Dr. Conn felt would “allocate him to the ongoing disabled group”. In an addendum, Dr. Conn reported that K.M. was “displaying a progressive propensity to hypochondriasis as part of a somatoform disorder”. He felt K.M.’s depression was being contained by his antidepressant.

[270] Dr. Conn further stated in the addendum that K.M. “is the product of a family in which his father has continued to follow the path of a disabled person and often I have questioned the validity of his claim for marked memory impairment”. It was suggested to K.M. in cross-examination that Dr. Conn thought that part of K.M.’s problem was that he was following his father’s path of a disabled person. K.M. testified that Dr. Conn never suggested to him that it was a bad idea for him to get caught up in whole idea of disability like his father had.

[271] On June 20, 2003 (Exhibit #1, Tab #A57), Dr. Conn saw K.M. for a follow-up appointment and noted that K.M. was doing better in the past while, which Dr. Conn attributed to K.M. receiving the “Ontario pension” that relieved many of his financial worries. He was doing well on Risperdal and Remeron. K.M.’s hypochondriasis had remitted. Apart from his father’s history of memory impairment, there was no family history of mental illness per se. He noted that K.M. had not been very successful in maintaining any long term employment.

[272] On January 11, 2005 (Exhibit #1, Tab #A58), Dr. Conn reported that he had been seeing K.M. once every two months and that K.M. was generally improved. K.M. was prescribed Amitriptyline for back pain and was continued on Risperdal, and Mogadon. Dr. Conn recorded that K.M. “certainly was reared in a home environment which had it’s [sic] problems and this, of course, has obviously affected his development emotionally.” K.M. was cross-examined about Dr. Conn’s notation. K.M. testified that he did not know if his father had mental health issues, but that his father has had his struggles and they had the same psychiatrist. K.M. would not agree that growing up, his father had anxiety issues that affected his relationship with him. K.M. said his father was “stand-offish” and that his mental health issues were after his parents got divorced. Dr. Conn never suggested to K.M. that part of his problem was the challenges that he had at home as a young child. K.M. testified, “There’s no genetic link … if that’s what you’re [School Board’s counsel] trying to imply”.

[273] In re-examination, K.M. testified that the first indication he had that his father might have some sort of mental or psychological issue was at the time his parents were separating and divorcing, which he guessed was in the “early 80’s, the 82, 83 block”. His mother A.F.’s evidence and K.M.’s doctor’s records indicate that the separation was actually in 1989. K.M. testified that his father’s issues were with his memory, more than anxiety.

[274] As to the “problems” in the home, K.M. testified in cross-examination that if there were problems, he did not know what they were. He would not speculate or guess.

[275] K.M.’s mother A.F. was cross-examined about Dr. Conn’s note regarding K.M.’s home environment. She testified she had no idea about the problems to which Dr. Conn was referring.

[276] In a follow-up appointment with Dr. Conn on May 17, 2005, K.M. was still doing well and his medications were maintained (Exhibit #1, Tab #A59).

[277] It is around this time in 2005 that K.M. began his second dating type relationship with Y.G., which, according to the definitive evidence of Y.G., lasted two years. I find their second relationship began in 2005. In order to ascertain the commencement of their relationship, I refer to medical records from 2007. An August 21, 2007 addendum by Dr. J. McMillan states that K.M.’s relationship with Y.G. was generally going well (Exhibit #1, Tab #A67), and an addendum by Dr. Singh from October 15, 2007 states that Y.G. had left K.M. (Exhibit #1, Tab #A72).

[278] On January 19, 2006 (Exhibit #1, Tab #A60), Dr. Conn reported that he was now seeing K.M. every three months and that he was doing quite well. He was continued on Amitryptyline and Risperdal. His dysthymia and personality problems generally appeared to have markedly improved. K.M.’s problem with substance abuse appeared to have been resolved. Dr. Conn, who was nearing retirement, determined that K.M. did not need to be followed by a psychiatrist and that Dr. Goddard-Hill could follow up with K.M.’s medication.

[279] On May 17, 2006 (Exhibit #1, Tab #A61), Dr. Conn advised K.M. that he was retiring at the end of June 2006. K.M. was described as being most anxious to see another psychiatrist. His dose of Amitryptyline was increased to help him cope with his chronic depression and he was continued on Risperdal. K.M. never told Dr. Conn anything about having been sexually abused by Marson.

vi. June 2006 to July 2007

[280] After Dr. Conn retired, K.M. was temporarily without a treating psychiatrist. Marson was arrested on October 13, 2006. The Belleville Intelligencer’s newspaper article about Marson’s arrest was published on October 25, 2006.

[281] K.M. first spoke to the police on October 30, 2006. He provided a lengthy handwritten/printed statement to them that took until November 13, 2006 for him to complete, disclosing the details of the sexual abuse by Marson.

[282] On November 7, 2006 (Exhibit #1, Tab #A62), K.M. went to the emergency department at the Belleville General Hospital complaining of mental health issues. He denied suicidal thoughts and did not want to speak to the Crisis Intervention Centre. He was not taking any medications. Exhibit #1, Tab #A62 seems to be the intake form only and does not appear to have been completed as to his treatment or medications. This was during the time K.M. was writing his statement to the police.

[283] On November 24, 2006 (Exhibit #1, Tab #A63), Dr. Goddard-Hill referred K.M. to Dr. Singh at the Quinte Health Care Mental Health Centre with issues of mood disorders, including acute episodes of major depression, bi-polar disorder or dysthymia, and general psychiatric disorders. Dr. Goddard-Hill determined that K.M. needed ongoing follow-up and review. He was being prescribed Nozinan at the time. K.M. continued under Dr. Goddard-Hill’s care for his mental health issues until he was first able to see Dr. Singh, which was scheduled for August 2007.

[284] On July 13, 2007 (Exhibit #1, Tab #A64), K.M., now age 41, went to the emergency department at the hospital. He was seen by the Crisis Intervention Centre, complaining of increased symptoms of depression and anxiety. Dr. Goddard-Hill had prescribed Ativan and Citalopram. K.M. had discontinued taking the Citalopram. K.M. advised that he was using “a lot” of THC but denied any other drug or alcohol use. He smoked a carton of cigarettes a week. K.M. advised that his sleep and eating patterns were poor and that since last October he had lost 45 pounds. It was recorded that K.M. was feeling “overwhelmed with increased emotionality” and that his current stressors involved a pending trial where K.M. may be required to testify. K.M. had constant suicidal ideation but denied any plans, noting that his 9-year-old son was his reason for living. K.M. was assessed as having increased depression and anxiety “pending sexual abuse (victim)”. It was noted that Dr. Goddard-Hill had already referred K.M. to see Dr. Singh. K.M.’s appointment with Dr. Singh was August 9, 2007 but it appears it was moved up to July 30, 2007.

vii. Dr. A. Singh – July 2007 to June 2012

[285] Dr. Singh was K.M.’s treating psychiatrist from July 30, 2007 until June 25, 2012 when he semi-retired, and he testified about his treatment of K.M. Dr. Singh was K.M.’s first treating psychiatrist with a complete history that included that K.M. was a victim of sexual abuse. Dr. Singh treated K.M. with cognitive psychotherapy supplemented by medications. As English is not Dr. Singh’s first language, I have made some minor grammatical corrections in my summary of Dr. Singh’s evidence.

[286] Dr. Singh and his residents prepared clinical consultation notes of K.M.’s care at his clinic in the Quinte Health Care Belleville General Hospital, and these notes are before the court (Exhibit #1, Tabs #A67, #A71-96). The notes begin July 30, 2007 and end September 6, 2011, recording 27 visits with K.M. O.H.I.P. has recorded four visits in 2011 and 2012 for which we have no consultation note. Dr. Singh’s last O.H.I.P.-recorded visit with K.M. as a treating psychiatrist was on June 25, 2012, just before Dr. Singh left to work overseas.

[287] On referral from Dr. Goddard-Hill, Dr. Singh first saw K.M. on July 30, 2007 at the Quinte Health Care Belleville General Hospital in conjunction with Dr. McMillan, a psychiatric resident working with Dr. Singh. Together, they did a complete assessment of K.M. Dr. Singh testified that as with any new patient, his first meeting with K.M. was about 45 minutes to 1 hour. Dr. Singh would review presenting symptoms first, then a full history starting from childhood, educational life, family life, work and relationship or “marriage history”, past illnesses, and past treatments. Then he would do a personality evaluation, a mood evaluation and present mental condition. Lastly, he would do investigation, tests and treatment with recommendations made, usually for a combined regime of pharmacotherapy and psychotherapy. Supportive psychotherapy of managing the side effects of medications was important to ensure compliance. Follow-up meetings were about 30 minutes long and would begin with K.M.’s present mental condition, whether he had improved or deteriorated, and then an evaluation to determine if the treatment plan had to be changed. Every visit evaluated K.M.’s present mental condition and suicidal ideations.

[288] Dr. McMillan wrote the report in consultation with Dr. Singh on July 30, 2007 (Exhibit #1, Tab #A67, p. 154). K.M. had been seen due to his worsening and deteriorating depression since October 2006. The criminal proceedings against Marson were beginning to take a toll on K.M. The proceedings had stalled due to Marson’s health concerns. K.M. had lost 35 pounds since October. His anxiety level was increasing. K.M. wanted to get better so he could take better care of his son. It was recorded that he found that his mother had a tendency to be overprotective and overbearing. K.M. was using two marijuana joints a day and taking Ativan as prescribed. He had discontinued Celexa due to gastrointestinal symptoms. He was advised to reduce his use of marijuana. He was prescribed Olanzapine rather than Ativan, which Dr. Singh testified was a benzodiazepine and an addictive drug. Blood work was ordered. It was noted that K.M. had used cocaine in the remote past for approximately one year and that he had tried LSD in the 1980s. His relationship with his girlfriend (Y.G.) was noted as generally going well.

[289] Dr. Singh testified about the addendum (written August 21, 2007) to the July 30, 2007 report, where it was noted that K.M. “[r]equired resuscitation” and had a grade 6 education. In testimony, Dr. Singh mentioned that he took K.M.’s history which included, I infer, K.M. telling him that he had been born with a cord around his neck and that resuscitation was needed.

[290] July 30, 2007 was the first time K.M. had told a psychiatrist about the sexual abuse. Dr. Singh testified that his impression was that K.M. was a chronically depressed person: “My impression was that we were dealing with a chronic case, which has more than one psychopathology”. They were trying to first find the depression, which was the predominant concern because they did not want him to become suicidal.

[291] K.M. continued to attend as an out-patient at the hospital in Belleville, which is where Dr. Singh and his psychiatric residents worked. K.M. became a regular patient of Dr. Singh. K.M. had someone working with him from the Sexual Assault Centre. Dr. Singh’s role was in treating K.M.’s depression.

[292] On October 2, 2007, Dr. Singh reported that K.M. was taking Olanzapine and was still using marijuana, which Dr. Singh wanted him to reduce. An addendum on October 15, 2007 noted that K.M.’s girlfriend of 9 years, whom I find was Y.G., had left him. As I have found earlier, Dr. Singh failed to note that it was for the second time.

[293] On November 20, 2007, Dr. Singh reported that the marijuana was becoming less effective. K.M.’s Olanzapine was increased due to his anxiety, some of which was related to the criminal court case involving Marson. K.M. did not want to take the anti-depressants because of the side effects. Dr. Singh wanted him to stop using marijuana. There was another reference to his girlfriend (Y.G.) having left him. Dr. Singh testified that K.M. was deteriorating.

[294] Dr. Singh testified that on February 25, 2008, K.M.’s mood was slightly better but he wanted to be prescribed Ativan, which Dr. Singh refused to prescribe. Dr. Singh wrote that he did not give any drug in large amounts “for which there are problem of addiction and also dependence” (Exhibit #2, Tab #A74). K.M. told him he wanted a different psychiatrist and that his sexual assault worker from the sexual assault clinic was going to find him another psychiatrist. It was an amicable discussion. K.M. was in a happy state of mind, particularly as Marson had been just recently convicted of the sexual offences (on January 23, 2008). K.M. was not concerned that his girlfriend relationship (with Y.G.) had broken down, and he wanted a new fresh start with time and with a slow pace. He was continued on Olanzapine. Dr. Singh noted that K.M.’s problem of substance abuse remained, but he did not focus on it as K.M. was going to see another psychiatrist.

[295] K.M. ultimately continued in the care of Dr. Singh at the clinic in the Belleville Hospital. On July 11, 2008, K.M. saw Dr. Singh’s resident, Dr. N. Charriere, in consultation with Dr. Singh. K.M.’s mood was good. K.M. advised that things had been going fairly well for him. His visits with his son had been going very well and he reported that his son brought him great joy. He stated that he lived in fear of having another significant depression, he was not optimistic about his future, and he lived day to day. He did not involve himself in things that might upset him. He was continued on Olanzapine.

[296] On August 26, 2008, Dr. Singh noted that K.M. was maintaining his mood improvement and being compliant with medication. Dr. Singh was treating him as well with cognitive psychotherapy directed at bringing K.M. more self-confidence. There was no change to his medication. Dr. Singh testified that K.M.’s worry was a “little less” because the teacher (Marson) had “accepted the fault or guilt” in the criminal proceedings. Dr. Singh testified that clinically, K.M. was slightly better. The depression was still present and was diagnosed as dysthymia.

[297