COURT FILE NO.: CV-08-0283-00 DATE: 2018 September 10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

K.M. Plaintiff – and – ROBERT TERRANCE MARSON and THE HASTINGS AND PRINCE EDWARD DISTRICT SCHOOL BOARD Defendants

Counsel: 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. Reasons for Judgment released June 29, 2018 with further written submissions by August 17, 2018.

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.

MACLEOD-BELIVEAU j.

SUPPLEMENTARY REASONS FOR JUDGMENT

CORRECTED DECISION

Correction notice: This document has been corrected from the original decision released on September 10, 2018 only as to typographical error in paragraph 10. See correction notice at the end of this decision.

[1] These Supplementary Reasons for Judgment are to be read in conjunction with the trial decision of this matter released June 29, 2018 and reported at K.M. v. Marson, 2018 ONSC 3493. In that decision, certain claims were reserved pending further calculations and submissions from counsel. Those calculations and submissions have now been received and have ultimately been agreed upon by counsel. Counsel have also resolved the issue of costs.

[2] My final assessment of damages for the outstanding matters and the total costs to be awarded follow below.

1. Final Damage Assessments for Past Loss of Income, Future Loss of Income and Future Loss of Interdependent Relationship:

[3] I required counsel pursuant to paragraph [744] of my decision released June 29, 2018 to obtain a schedule of further calculations from Professor Carr, based on Scenario C, to accurately determine K.M.’s total income loss, including the allocation between K.M.’s past and future income loss, and to determine K.M.’s future loss of interdependent relationship for Scenario C. The schedule of calculations were to be based on my finding of a mean income of $58,000 in 2016 dollars and the otherwise same assumptions, including fringe benefits and productivity, as used in Professor Carr’s March 15, 2016 report. These calculations were then to be adjusted to the commencement date of this trial of March 20, 2017. After receipt of Professor Carr’s calculations, the 15% negative contingencies I determined were to be applied to K.M.’s total loss of income claim and his claim for future loss of interdependent relationship, with the management fee adjusted accordingly. These calculations affected the calculation of prejudgment interest as well.

[4] Counsel for K.M. has filed Professor Carr’s calculations as Table 4 titled Total Economic Loss Under Scenario C. Counsel are agreed that the calculations are accurate. Based on Professor Carr’s expert economic calculations on the assumptions as ordered by me for a valuation date of March 20, 2017, using discount rates for 2017 adjusted for productivity and assuming an income loss of $58,000 a year, expressed in 2016 dollars, K.M.’s past loss of income is $1,258,297; K.M.’s future loss of income is $824,582; and K.M.’s total loss of income is $2,082,879. K.M.’s future loss of interdependent relationship is $170,385.

[5] The sum of the past and future income loss of income of $2,082,879 is $217,121 less than the $2,300,000 in Exhibit #10. Professor Carr explains that part of this difference is due to the use of a higher discount rate for 2017 over 2016. Part of this difference is due to the fact that $58,000 is 4.7% less than the average income levels for Scenario A and B of $60,885 ($53,537 + $68,232 ÷ 2) and as such, the estimated loss will be 4.7% less than the average for Scenario A and B. I accept and find that these calculations by Professor Carr are accurate.

[6] After application of the 15% negative contingencies as ordered by me, I assess and allow K.M.’s damages for income loss as follows: loss of past income at $1,069,552; loss of future income at $700,895; for total damages for past and future income loss at $1,770,447.

[7] After application of the 15% negative contingencies as ordered by me, I assess and allow K.M.’s damages for future loss of interdependent relationship at $144,827.

[8] The claim for a management fee at 5% of the total future loss claim ($700,895 + $144,827) of $845,722 I assess and allow at $42,286.

[9] Added together with the other damages awarded that were not affected by Scenario C, including general and aggravated damages, and the O.H.I.P.’s past loss subrogated claim, this results is a total damage award to K.M. of $2,235,513.11.

2. Final Prejudgment Interest Calculation:

[10] Counsel are agreed on the calculation of prejudgment interest. I assess and allow prejudgment interest on the general damages of $250,000 at the rate of 5% per year from October 1, 2006 to the date of the Judgment of June 29, 2018 in the amount of $146,875.

[11] I assess and allow prejudgment interest on the damages for past loss of income and the O.H.I.P. past loss subrogated claim of ($1,069,552 + $27,953.11) of $1,097,505.11 at the rate of 3.3% per year from October 1, 2006 to the date of the Judgment of June 29, 2018 in the amount of $425,612.48.

3. Final Determination as to the $50,000 Advance Payment by the Defendant Marson:

[12] Counsel are agreed as to the credit to be given for the $50,000 advance payment by Marson for the purposes of this Judgment.

[13] The advance payment falls under section 120 of the Courts of Justice Act, R.S.O. 1990, c. C.43. That section provides that the payment constitutes, to the extent of the payment, a release by the plaintiff to the defendant making the payment, and directs that the plaintiff shall be entitled to judgment against the paying defendant for only the net amount after credit for the payment. Section 120 of the Act says nothing about whether or not any other defendant is entitled to a credit for the payment.

[14] Disclosure of the fact of the payment before judgment is not an issue in this case, as liability was admitted.

[15] K.M. acknowledges that the School Board can bring itself within the general legal principle that K.M. should not obtain double recovery to the extent of the payment and any accrued prejudgment interest on the payment from the date the payment was made.

[16] In this case, K.M. had pleaded a claim for punitive damages only as against Marson, but not as against the School Board. The claim for punitive damages was not pursued at trial. If the $50,000 advance payment could be attributed to punitive damages as against Marson alone, an argument could be made that there would be no double recovery by K.M. and the School Board would not be entitled to a credit for the advance payment made by Marson. While a civil court can make an award of punitive damages against a defendant already convicted of a criminal offence, it must do so cautiously and only when the civil court finds that the criminal sanction is disproportionate to the defendant’s conduct. To do otherwise would be a collateral attack on the decision of the criminal court. In this case, K.M. acknowledges that the criminal sanction imposed on Marson was not so disproportionate as to warrant the additional imposition of punitive damages as against Marson. I note that there was no evidence as to any specific head of damages under which the payment to K.M. was made by Marson.

[17] In these circumstances, counsel agree that the advance payment of $50,000 made by the defendant Marson on or about October 2, 2012 constitutes a release by the plaintiff of both of the defendants to the extent of that payment. The defendants are accordingly entitled to a credit against their liability under this Judgment in the amount of $50,000 plus an amount of prejudgment interest associated with that principal payment amount accruing from the date of payment at the agreed upon rate of 3.3% per year, or $9,487.50, for a total credit of $59,487.50.

4. The Amount Payable by the Defendants to the Plaintiff for Damages and Prejudgment Interest, Allowing for the Credit of the Advance Payment:

[18] The total amount payable by the defendants to the plaintiff under this Judgment for damages and prejudgment interest, and allowing for the credit for the advance payment, is ($2,235,513.11 + $146,875 + $425,612.48 - $59,487.50) $2,748,513.09.

5. Costs:

[19] Counsel are agreed on the total costs to be awarded to the plaintiff in this matter in the amount of $400,000 inclusive of disbursements and HST. I award and allow costs to the plaintiff in that amount payable forthwith.

6. Total Amount Payable by the Defendants to the Plaintiff, including Costs:

[20] Including the award of costs above, the amount payable by the defendants to the plaintiff K.M. under this judgment is $3,148,513.09.

7. Cross-Claim:

[21] The defendant School Board, pursuant to the terms of my decision of June 29, 2018, shall have Judgment on its cross-claim against the defendant Marson for contribution and indemnity in the amount awarded against it of $2,748,513.09 plus $400,000 in costs inclusive of disbursements and HST for a total of $3,148,513.09.

8. Post-Judgment Interest:

[22] The Judgment bears interest at the rate of 3% per year commencing on June 30, 2018.

9. Judgment to Issue:

[23] Counsel have approved the substantive form of the final Judgment in this matter as follows:

THIS COURT ORDERS AND ADJUDGES that the Defendants pay to the Plaintiff: (a) General and aggravated damages $250,000 (b) Damages for past loss of income $1,069,552 (c) Damages for future loss of income $700,895 Total damages for past and future income loss $1,770,447 (d) Damages for future loss of interdependent relationship $144,827 (e) O.H.I.P. past loss subrogated claim $27,953.11 (f) Management fee $42,286 Total damages awarded $2,235,513.11
THIS COURT ORDERS AND ADJUDGES that the Defendants pay to the Plaintiff prejudgment interest on the general and aggravated damages of $250,000 at the rate of 5% per year from October 1, 2006 to the date of Judgment, June 29, 2018, in the amount of $146,875.
THIS COURT ORDERS AND ADJUDGES that the Defendants pay to the Plaintiff prejudgment interest on the damages for past loss of income and the O.H.I.P. past loss subrogated claim of ($1,069,552 + $27,953.11) $1,097,505.11 at the rate of 3.3% per year from October 1, 2006 to the date of Judgment, June 29, 2018, in the amount of $425,612.48.
THIS COURT ORDERS AND ADJUDGES that the advance payment of $50,000 made by the Defendant Marson on or about October 2, 2012 constitutes a release by the Plaintiff of the Defendants to the extent of the payment. The Defendants are accordingly entitled to a credit against their liability under this Judgment in the amount of $50,000 plus the amount of prejudgment interest associated with that principal amount accruing from the date of payment at the rate of 3.3% per year, or $9,487.50, total $59,487.50.
THIS COURT ORDERS AND ADJUDGES that the total amount payable by the Defendants to the Plaintiff under this Judgment for damages and prejudgment interest, and allowing for the credit aforesaid, is ($2,235,513.11 + $146,875 + $425,612.48 - $59,487.50) $2,748,513.09.
THIS COURT ORDERS AND ADJUDGES that the Defendant School Board have Judgment on its cross-claim against the Defendant Marson for contribution and indemnity in the amount awarded against it, $2,748,513.09, plus $400,000 in costs inclusive of disbursements and H.S.T., for a total of $3,148,513.09.
THIS COURT ORDERS AND ADJUDGES that the Defendants pay forthwith to the Plaintiff his costs of the action, fixed in the amount of $400,000 inclusive of disbursements and HST.

THIS JUDGMENT BEARS INTEREST at the rate of 3% per year commencing on June 30, 2018.

[24] The final Judgment shall be signed by MacLeod-Beliveau J. and then issued accordingly.

Madam Justice H. MacLeod-Beliveau

Released: September 10, 2018

CORRECTION

Since the release of these Supplementary Reasons on September 10, 2018, one typographical error has been amended:

The amount of $148,875 in paragraph 10 has been corrected and replaced by $146,875.