COURT FILE NO.: CV-14-118416

DATE: 20190826

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EKATERINA SHAPOVALOV

Plaintiff/Moving Party

– and –

ALI BADREDDINE & KALTENBOCK OPTICIANS LTD.

Defendants

Mr. R. Boggs, for the Plaintiff/Moving Party

No one appearing, for the Defendants

HEARD: June 24, 2019

REASONS FOR DECISION

EDWARDS J.:

Overview

[1] The Plaintiff seeks default judgment arising out of allegations of sexual impropriety that occurred while she was employed by the Defendants.

The Facts

[2] The statement of claim in this matter was issued on April 11, 2014, and personally served on the Defendant Ali Badreddine (“Badreddine”) at the College Park Court located in Toronto. The statement of claim was served on the Defendant Kaltenbock Opticians Ltd. on November 14, 2014. Both Defendants had been noted in default, having failed to file any statement of defence. The Defendants are therefore deemed, pursuant to Rule 19.02 of the Rules of Civil Procedure (“the Rules”), to admit the allegations of fact set forth in the statement of claim.

[3] The essence of the allegations pleaded in the statement of claim relate to an incident which occurred on April 14, 2012, when Badreddine attempted to put the date rape drug into her coffee. It is also alleged in the statement of claim that during the course of the Plaintiff’s three months of employment with the Defendants, that she was the subject of sexual harassment.

[4] As a result of Badreddine’s attempt to contaminate the Plaintiff’s coffee with the date rape drug, the police became involved and three charges were laid against Badreddine as follows:

Count 1: that on or about the 14^th day of April in the year 2012 in the City of Toronto, in the Toronto Region did cause Ekaterina Shapovalov to take a noxious thing to wit: Methylenedioxymethamphetamine (MDMA/Ecstacy (sic)) with intent thereby to aggrieve Ekaterina Shapovalov contrary to the Criminal Code.

Count 2: and further that Ali Badreddine on or about the 14^th day of April in the year 2012 in the City of Toronto, in the Toronto Region with intent to enable or assist himself to commit the indictable offence of sexual assault cause Ekaterina Shapovalov to take a stupefying drug to wit: Methylenedioxymethamphetamine (MDMA/Ecstasy) contrary to the Criminal Code.

Count 3: and further that Ali Badreddine on or about the 14^th day of April in the year 2012 in the City of Toronto, in the Toronto Region, did cause Ekaterina Shapovalov to take a drug with intent to stupefy her and enable himself to have illicit sexual intercourse with her. Contrary to the Criminal Code.

[5] The information from the Ontario Court of Justice that is certified to be a true and correct copy, reflects that on September 3, 2014 Clements J. accepted a plea of guilty and imposed an 18 month conditional sentence on Count 1. Counts 2 and 3 set forth above were withdrawn on the consent of the Crown.

[6] Without in any way minimizing the sexual harassment or the fact that Badreddine attempted to put the date rape drug in the Plaintiff’s coffee, the evidence is clear that the Plaintiff did not consume any of the drug-laced coffee and that there was no actual physical assault. The conduct of Badreddine, of course, was completely inappropriate and undoubtedly caused the Plaintiff significant emotional distress, which I will allude to further in these Reasons.

[7] As a result of Badreddine’s conduct, the Plaintiff left his employ where she had been working for three months and was being paid $1,000 bi-weekly.

[8] The Plaintiff has filed a number of affidavits in support of her motion for default judgment. In an affidavit sworn April 27, 2015, she deposes that she has been deeply scared by the incident with the Defendant, and that since the incident her relationship with her common-law partner has been affected and she has had two miscarriages and two abortions “as a result of stress”. There is no medical evidence filed with the Plaintiff’s motion to confirm that the two miscarriages and two abortions were caused as a result of the issues pleaded in the statement of claim as they relate to the Defendants.

[9] The Plaintiff has filed a number of supplemental motion records, the most recent of which contains an affidavit of the Plaintiff sworn on February 3, 2019. In this affidavit, she deposes that she has still not recovered from what occurred with the Defendants during the course of her employment, and that she has been attending the Polyclinic Rehabilitation Institute since July 13, 2016 where she has been seeing a psychologist, Dr. Erin Langis. When this matter initially came before me the consultation notes of Dr. Langis were appended to the Plaintiff’s affidavit, and the motion was adjourned to allow counsel to file an expert’s report from Dr. Langis properly conformed with Rule 53.03. That was done when Dr. Langis swore an affidavit dated June 19, 2019, to which was appended her Progress Reports of September 8, 2016, June 27, 2017 and September 14, 2018.

[10] Dr. Langis is a Clinical and Rehabilitation Psychologist, and I am satisfied on the basis of her curriculum vitae that she has the necessary expertise to assist the court by offering opinion evidence with respect to the psychological and emotional difficulties the Plaintiff has been experiencing as a result of the sexual harassment she suffered at the hands of the Defendant, as well as expert evidence in terms of any possible future psychological treatment that the Plaintiff may require.

[11] In the most recent Progress Report from Dr. Langis, she indicates that the Plaintiff continues to suffer from a variety of psychological and emotional difficulties, which include disturbances in sleep, social functioning, interpersonal relationships, cognition and mood. Dr. Langis goes on to note that the Plaintiff continues to present with features that are typically associated with post-traumatic stress disorder, and that she experiences interpersonal difficulties related to trust that have negatively impacted on the relationship between the Plaintiff and her spouse. Dr. Langis indicates that the Plaintiff is experiencing moderate impairment of her activities of daily living, and that as a result of such difficulties the Plaintiff would benefit from ongoing and regular treatment. While Dr. Langis cautions that she cannot predict the duration and nature of the treatment, she would expect that the Plaintiff would require treatment for “a substantial period of time and that her progress is guarded”.

[12] As for the cost of the therapy, unfortunately Dr. Langis herself does not provide details in her reports. The Plaintiff, in her affidavit of February 3, 2019, deposes that she has been advised by Dr. Langis’ office that Dr. Langis charges $224.00 per hour. The Plaintiff goes on in her affidavit to indicate that “the average cost of counselling/therapy is $235.00 per hour. At 100 hours per year this amounts to $23,500 and $235,000 over 10 years”.

[13] I note from Dr. Langis’ earlier reports in 2016 and 2017, that the Plaintiff had completed “20 of her 20 psychotherapy sessions in her treatment plan”. There is no indication whatsoever, of treatment plans lasting 100 hours per year.

[14] Based on the evidence of Dr. Langis, I have no difficulty in finding that the Plaintiff will require counselling as a result of the emotional distress suffered by the Plaintiff. I do not have sufficient evidence, however, to assist me in terms of how many hours per year and how many years that treatment can be reasonably anticipated to be. If the Plaintiff wishes to pursue this aspect of her claim, she should submit further evidence from Dr. Langis in terms of the annual costs for such counselling; the frequency of such counselling; and the duration (months or years).

[15] Plaintiff’s counsel has submitted a factum which details the damages sought on this motion for summary judgment. The Plaintiff seeks general damages fixed in the amount of $100,000. She seeks loss of income of $312,000. This is based on earnings that she was making from the Defendants, where she was paid $16.00 per hour which translates into $31,200 per annum. At the time that I heard this motion, the Plaintiff had not submitted her income tax returns either pre or post-incident. Those tax returns have since been submitted. I summarize her income as follows:

YEAR

T4 INCOME

EMPLOYMENT INSURANCE INCOME

SOCIAL ASSISTANCE PAYMENTS

2009

$1,599.00

$20,000.00

2010

100.00

1,100.00

$9,300.00

2011

1,844.00

2012

5,400.00

2013

5,800.00

2014

6,530.00

2015

4,402.00

7,000.00

2016

8,262.00

[16] In the Plaintiff’s affidavit that she swore on April 27, 2015, she deposed that “a year and a half after the incident, I began working at a spa with all female employees and have been working there ever since”. She also deposes at paragraph 23 that she was currently six months pregnant with her second child, and presumably was on maternity leave after the delivery of her daughter.

[17] The basis for the Plaintiff’s claim for loss of income calculated in the amount $312,000, is based on the Plaintiff’s assertion in her affidavit of February 3, 2019, at paragraph 17. She deposes that had she continued to work for the Defendants she would have earned $31,200, and that “when I took this job, I intended to work there for a long time and if this job continued for 10 years, I would have made $312,000.00”.

[18] The Plaintiff’s income tax returns both pre and post-incident, which are summarized above, are difficult to reconcile with the Plaintiff’s affidavit. As well, she has been employed since she worked for the Defendants and she has also been pregnant with her second child. The Plaintiff does not address in her affidavit what maternity leave she took as a result of the birth of her daughter, but her tax returns reflect that she received unemployment insurance in 2015 and again in 2016. Thereafter, in 2017 and 2018, she has not had any employment income. The Plaintiff’s employment with the Defendants terminated in April 2012. The total income of 2012 was $5,376. In the year after her employment terminated with the Defendants she declared $5,809 in 2013, with a substantial boost in income in 2014 of $26,530 as declared to CRA.

[19] In the affidavit sworn by the Plaintiff on April 27, 2015, as I have already indicated she deposes that she was then six months pregnant with her second child. Given the date of her affidavit and the fact that she was then six months pregnant, I am assuming that the birth of her second child likely occurred sometime in the early summer of 2015. In the Plaintiff’s affidavit of February 3, 2019, she deposes that she had begun working at a spa in the spring of 2014 and that “…I lasted there till (sic) July 31, 2015. This was my last job as I was overwhelmed by stress and fear of any new employer and I did not work after that”. The Plaintiff, in her affidavit of February 3, 2015, does not reflect the fact that at the time that she would appear to have left her employment at the spa, she much more likely left – at least in part, because of the birth of her second child.

[20] I also note in the Plaintiff’s affidavit of February 3, 2019, that she now has three young children that she deposes in paragraph 30:

I support 3 young children and it is extremely difficult because all the income goes towards supporting my family and paying rent.

I take from this most recent affidavit, that since the birth of her second child - which is referenced in her affidavit of April 27, 2015, that she has given birth to a third child given the reference in her affidavit of February 3, 2019 to the fact that she is now supporting three young children.

[21] It is very hard to reconcile the submission of Plaintiff’s counsel that the Plaintiff should be awarded a loss of income over 10 years totalling $312,000, with the evidence that I have reviewed above. I am satisfied, however, that as a result of the abhorrent conduct of the Defendants and the resultant PTSD that the Plaintiff continues to deal with, that the Plaintiff will suffer a competitive loss of advantage in terms of her ability to work both now and in the future. I am awarding the Plaintiff damages for loss of competitive advantage, which I am fixing in the amount of $50,000.

[22] As for the claim for general damages, Plaintiff’s counsel has provided me with a number of cases that have addressed the assessment of general damages in situations where individuals have been the victims of sexual assault. Each case must be looked at on the basis of the unique facts that were presented to the court that resulted in the assessment of damages awarded.

[23] In K.T. v. Vranich, 2011 ONSC 683, Whitten J. awarded the Plaintiff $125,000 general damages, which included $50,000 for aggravated damages arising out of the Plaintiff’s personal distress and humiliation. These damages were awarded in the context of a sexual assault that took place between the Plaintiff and her employer. The employer pulled her top down and started to touch her, including touching her breasts and vagina. The touching lasted somewhere between five and ten minutes. The employer was charged with sexual assault and pleaded guilty, receiving a conditional sentence and probation.

[24] In making the aforesaid award, Whitten J. referenced a decision of Cromwell J.A. (as he then was) in B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120, [2007] N.S.J. No. 506 at para. 120, in terms of how the court should adopt a functional approach to the assessment of non-pecuniary damages in cases of sexual battery. In that regard, Whitten J. noted at para. 95:

…The objectives of such an approach are to: provide solace for the victim, to vindicate the victim’s physical autonomy and dignity, and through an award of aggravated damages, account for the humiliating and degrading nature of the defendant’s conduct.

[25] In terms of the factors that the court should take into account in assessing general damages in cases of sexual assault, Whitten J. at para. 99 set out a non-exhaustive list of factors to be considered, which includes:

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

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

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

• the consequences for the victim of the wrongful behaviour including ongoing psychological injuries (B.M.G., supra at para. 134, Cromwell J.).

[26] Applying the aforesaid list of factors to the facts before me, I note from the Plaintiff’s medical records that she was born on August 28, 1987, which would make her at present 32 years of age, and at the time of the incident in 2012 she would have been 24 years of age.

[27] As for the nature of the assault, fortunately the evidence establishes that the Plaintiff did not consume any of the drug-laced coffee and there was no actual physical assault. I make this observation not to in any way minimize what the Plaintiff endured as a result of the sexual harassment by the Defendants, or the pernicious nature of his intended actions. The Defendant did not carry out what was his obvious plan to sexually assault the Plaintiff. I accept the harassing conduct and the attempt to lace the Plaintiff’s coffee with the date rape drug was terrifying, degrading and humiliating for the Plaintiff.

[28] As for Badreddine, he was the Plaintiff’s employer and was approximately 40 years of age. He clearly was in a position of trust to the Plaintiff.

[29] As for the consequences of the Defendant’s wrongful behaviour, those are reviewed in the Plaintiff’s affidavits as well as the reports of Dr. Langis. There can be no doubt that even though there was no actual physical assault on the Plaintiff, the actions of the Defendant - not only in the form of the date rape drug applied to her coffee but perhaps equally or more importantly the sexual harassment that she was the subject of, clearly reflects a significant ongoing emotional set of circumstances that the Plaintiff has been forced to deal with.

[30] In C.S. v. Nigro, 2010 ONSC 3204, Lederer J. dealt with a motion for default judgment where the Plaintiff at the time of the hearing of the motion was 35 years old. The Plaintiff had been the victim of sexual molestation by a friend of her father’s for a period of two years, starting when she was five years of age. The abuse escalated from touching to the insertion of the perpetrator’s fingers into the Plaintiff’s vagina, and progressed to intercourse and oral sex. Since the assaults the Plaintiff is described as having lived a life which included difficulties at school, problems interacting with her peers, a number of failed relationships and a variety of jobs. Dealing with these facts, Lederer J. awarded the Plaintiff general damages that he fixed in the amount of $100,000. In arriving at this decision, Lederer J. referred to S.C. v. R.L.L. 1993 CanLII 7935 (NB QB), 133 N.B.R. (2d) 332, where in another civil action for damages arising out of sexual abuse the trial judge stated:

This is a matter that is impossible to quantify and as much as anything this award is simply a reflection of society’s repugnance with the behaviour described making an acknowledgment to the plaintiff of the loss she has suffered.

[31] Having cited S.C., Lederer J. then went on to state:

I sympathize with the sentiments in the quotation. How does one value the loss of the simple joys of childhood, the loss of an education, the loss of any meaningful relationship with a father, the loss of education and difficulties associated with sustaining personal relations and consistent employment over a period of thirty years. Nonetheless, the award of damages must still, in some way, reflect on the harm caused by the abuse.

[32] Like Lederer J., I entirely agree not only with the sentiments reflected in S.C. but also the comments of Lederer J., as quote above at para. 42 of C.S.

[33] No one in this day and age should have to suffer any form of sexual abuse, whether that abuse actually involves a physical assault and touching, or whether it involves - as in this case, sexual harassment and the placing of a date rape drug into the drink of the Plaintiff. Regrettably, our courts are consistently confronted with cases involving sexual abuse, the gravity of which, unfortunately, varies from case to case. It is extremely difficult for anyone to suggest to any victim of sexual abuse that what they have suffered is, in any way, of a lesser consequence than the sexual abuse that might have been suffered by another individual, as referenced in the various law reports. That said, however, it is clear to me from a review of the case law, that the court must make an award of damages that does have some degree of consistency with previously decided cases. I want to make clear to the Plaintiff in this case that I in no way minimize the abuse that she suffered. Taking into account the various factors that the court is required to take as it relates to the assessment of general damages in a case like this, I am awarding the Plaintiff general damages that I am fixing in the amount of $50,000.

[34] The Plaintiff also seeks punitive damages, that counsel has suggested should be fixed in the amount of $100,000. In determining whether the court should make an award of punitive damages, I note that in the Victims’ Bill of Rights, 1995, S.O. 1995, c. 6, s. 4(4) provides:

A judge shall take the sentence, if any, imposed on a convicted person into consideration before ordering that person to pay punitive damages to a victim.

[35] In D.M. v. W.W., 2013 ONSC 4176, Leach J. viewed some lengthy principles underlying damages arising in cases of sexual abuse, including punitive damages. In awarding punitive damages, Leach J. notes that it is a case-specific exercise. In D.M., Leach J. awarded the Plaintiff $30,000 in punitive damages as it was found that the Defendant’s abuse had gone unpunished, and would remain unpunished because there was a lack of criminal jurisdiction to prosecute the abuse which had taken place outside of Canada.

[36] In Ngo v. Miller, 2018 ONSC 526, I had occasion to deal with the question of if a Plaintiff’s claim for punitive and exemplary damages should be allowed to proceed to trial. In para. 23 of my Reasons, I stated:

…[I]t would be inappropriate for the civil court to go behind the determination of the criminal court and substitute its own finding as to whether that sentence appropriately met the objectives of retribution, deterrence and denunciation. The justice presiding over the criminal trial and ultimately imposing sentence is, in my view, in a far better position to make that determination than any civil court might be.

[37] In citing my decision in Ngo, Page A. Goodman J. in L.R. v. S.P., 2019 ONSC 1737, stated at paras. 83 and 84:

In my view, (referencing the aforesaid quotation from Ngo) this conclusion is consistent with the Court of Appeal’s reasoning in McIntyre in that duplicate “punishment” of the defendant, through punitive damages, should be avoided where a criminal sentence provides sufficient retribution, deterrence and denunciation.

Accordingly, a criminal trial is a proper venue to determine a person’s lack of remorse and its role in determining the quantum of punishment; not through a civil award of punitive damages.

[38] As the Victims’ Bill of Rights specifically requires a judge in a civil case to take into account the sentence imposed on a convicted person before considering whether punitive damages ought to be awarded, I remain of the view - as expressed in Ngo, that in a criminal case where an accused has been appropriately sentenced, that it is the sentencing judge who is in the best position to deal with issues of retribution, deterrence and denunciation. While the Plaintiff and many members of the public may disagree with the sentence imposed, the fact remains that Badreddine did receive an 18 month conditional sentence that was deemed the appropriate disposition for the charges before the court. I decline, therefore, to make any award to the Plaintiff in the form of punitive damages.

[39] In sum then, the Plaintiff shall recover damages against the Defendants which I am fixing in the following amounts: General Damages $50,000; Loss of Competitive Advantage Damages $50,000; Punitive Damages, nil.

[40] As it relates to the ongoing claim for counselling costs, if counsel wishes to put further evidence before the court that will assist with respect to the assessment of those damages, I am prepared to provide addendum reasons on that issue. As it relates to the question of costs, given the nature of the allegations that this court had to deal with in the form of the sexual abuse suffered by the Plaintiff, I am of the view that the Plaintiff should recover costs on a substantial indemnity basis. Plaintiff’s counsel has submitted a Bill of Costs seeking partial indemnity costs in the amount of approximately $27,000, and full indemnity costs in the amount of approximately $36,000. These costs are based on Mr. Bogg’s hourly rate of $300 per hour, which was discounted from his normal rate of $400 per hour. It would appear that he has put in approximately 89 hours in relation to this matter. I am ordering the Plaintiff her costs, that I am fixing on a substantial indemnity basis in the amount of $30,000 all-inclusive.

Justice M.L. Edwards

Released: August 26, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALI BADREDDINE & KALTENBOCK OPTICIANS LTD.

Defendants

– and –

EKATERINA SHAPOVALOV

Plaintiff/Moving Party

REASONS FOR DECISION

Justice M.L. Edwards

Released: August 26, 2019