COURT FILE NO.: CV-19-80119
DATE: 2020/09/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
STEVEN CHARLES CHARLEBOIS
Plaintiff
– and –
THE ESTATE OF KRIS GEOFFREY CHARLEBOIS by its Estate Trustee, DORRIS (MCGEE) CHARLEBOIS
Defendant
Counsel:
Stanford Cummings, for Plaintiff
No one appearing for the Defendant Estate, it having been noted in default
HEARD: August 13, 2020
REASONS FOR JUDGMENT
CORTHORN J.
Introduction
[1] The plaintiff, Steven Charles Charlebois is the younger brother of the late Kris Geoffrey Charlebois. For ease of reference they are referred to in these reasons as “Steven” and “Kris”, respectively. Steven brings this motion for default judgment in the context of an action arising from historical sexual abuse perpetrated on him by Kris when Steven was a young child. Kris died on May 20, 2017.
[2] As a result of that abuse, Steven suffered significant physical and psychological trauma. For many of his adolescent and adult years, Steven’s life was on a downward spiral. Steven did not complete high school, became involved in criminal activity, was incarcerated several times, turned excessively and/or became addicted to alcohol and drugs, had difficulty holding down a job, and experienced difficulties in maintaining relationships with family members and friends.
[3] To Steven’s credit and, no doubt, the credit of Steven’s spouse and the couple’s adult children, Steven and his wife are still married, he has relationships with both of his adult children, and he has relationships with his grandchildren. Steven has, for several years, been participating in psychological counselling in an effort to address the long-standing consequences of the childhood abuse he suffered. Most important to Steven in this action is securing the funding he requires to continue with that counselling so that he can maintain and improve the relationships that he has with his wife, children, and grandchildren.
[4] Steven and his counsel recognize that there are likely limits to the potential for Steven to recover from Kris’ estate (“the Estate”) the damages awarded in this action. Collectively, Steven and his counsel took a practical and cost-effective approach to the litigation. That approach includes restricting Steven’s claim for damages to (a) general damages based on tortious conduct, breach of fiduciary duty, intentional infliction of harm and other causes of action, (b) the expenses associated with psychological counselling, and (c) punitive damages. Steven is not, at this time, seeking damages for past loss of income, future loss of income, historical treatment expenses, and the cost of future care (other than the costs associated with a fixed term of psychological counselling).
[5] Before addressing the substantive issues, I will deal with several preliminary matters.
Preliminary Matters
[6] The statement of claim was issued on May 8, 2019. The Estate was noted in default in August 2019. Having been noted in default, the Estate is deemed to admit the truth of all allegations of fact made in the statement of claim: r. 19.02(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[7] Steven is entitled to proceed with a motion for default judgment under r. 19.05. His claim is for unliquidated damages. As a result, the motion must be supported by affidavit evidence: r. 19.05(2).
[8] In support of his claim, Steven relies on two affidavits – one sworn by Steven (“the Charlebois Affidavit”) and the second from a psychologist, Dr. Ken Reesor (“the Reesor Affidavit”). Dr. Reesor is not Steven’s treating psychologist. The evidence of Dr. Reesor is before the court in the form of expert opinion evidence. The record includes Dr. Reesor’s curriculum vitae and an acknowledgment of expert’s duty (Form 53).
[9] On a motion for default judgment, the judge has the discretion to grant judgment, dismiss the action, or order that the action proceed to trial with evidence to be presented: r. 19.05(3).
[10] The evidence before this court includes an affidavit from Dr. Reesor in which he addresses why it would be harmful to Steven to be required to testify in open court. If the matter were to proceed to trial, Steven would seek leave of the court to present his evidence by affidavit. Steven was not present for the motion for default judgment.
[11] I accept Dr. Reesor’s evidence with respect to the potential harm Steven would experience if he were required to (a) attend a court proceeding, and (b) give oral testimony. Dr. Reesor’s evidence includes that Steven would likely (a) suffer psychological harm if required to be present for the proceeding, and (b) be re-traumatized by having to give oral testimony in support of his claims. Dr. Reesor’s opinion is that Steven is poorly equipped to deal with such trauma; as a result, if Steven were required to give oral testimony, his chronic impairments would likely be worsened and/or become further entrenched.
[12] I am satisfied that this action does not require a trial and may be determined on a motion.
[13] Has Steven established that he is entitled to judgment? Under r. 19.06, Steven is not entitled to default judgment on the motion merely because the facts alleged in the statement of claim are deemed to be admitted. He is entitled to default judgment only if the facts, including those deemed to be admitted, entitle him to judgment.
[14] In that regard, I note, however, the decision of the Ontario Court of Appeal in Umlauf v. Umlauf (2001), 2001 CanLII 24068 (ON CA), 53 O.R. (3d) 355 (C.A.). In its decision, the court highlighted that a defendant who does not defend an action chooses not to contest liability before the court: at para. 7.
[15] At para. 13, the court said, “[t]here is nothing in either the Rules of Civil Procedure or the established jurisprudence to authorize a trial judge on an assessment of damages to enter into an inquiry into the facts or the underpinning of the torts that the defendants are deemed to have admitted by their default.” The court also noted that, because r. 19.02(1) does not speak directly to the issue of damages; evidence in support of a claim for unliquidated damages is required on a motion for default judgment: at paras. 7-8.
[16] The inappropriate sexual behaviour and non-consensual sexual acts which Kris is alleged to have perpetrated against Steven are set out in detail in paragraph 5 of the statement of claim. In paragraphs 6 through 14 of the statement of claim, Kris’ conduct is alleged to have been intentional, malicious, wilful, and assaultive (or battery) and to have been committed with a wanton disregard for Steven’s physical and psychological well-being.
[17] The Estate is deemed to admit those allegations. On the basis of the deemed admissions, I am satisfied that the facts in this matter entitle Steven to judgment against the Estate. Were the deemed admissions not sufficient for that purpose, Steven’s uncontradicted affidavit evidence with respect to the historical sexual abuse would, in any event, entitle Steven to judgment against the Estate.
[18] The substantive issue to be determined on this motion is the assessment of damages to which Steven is entitled.
Assessment of Damages
[19] The prayer for relief in the statement of claim sets out damages totalling in excess of $1,700,000. The relief claimed includes damages for loss of income, loss of competitive advantage, future medical expenses, and future rehabilitation expenses. On the motion for default judgment, Steven restricts the relief claimed to,
a) general non-pecuniary damages arising from the tortious conduct, intentional infliction of harm, etc. in the amount of $275,000 (the amount claimed under this heading in the statement of claim is $500,000);
b) damages for expenses associated with psychological counselling for a five-year period in the amount of $45,000 (in the statement of claim, the figure for damages under this heading remained to be particularized prior to trial); and
c) punitive damages in the amount of $25,000 (the amount claimed under this heading in the statement of claim is $1,000,000).
[20] As has already been noted, Steven is not well-served by having to review in detail the historical abuse that he suffered. At the conclusion of the motion, I inquired of Steven’s counsel as to the benefit, if any, to Steven of a detailed review of the evidence in support of Steven’s claims. Counsel responded that Steven prefers that the reasons on this motion be succinct, while recognizing that they must include some detail for the purpose of sufficiency of reasons. In the following paragraphs I have attempted to balance Steven’s request for succinctness, specifically as to the historical abuse, with the requirement for sufficiency of reasons.
a) Findings of Fact
[21] Based on the Charlebois Affidavit, I make the following findings of fact.
[22] Steven was born in March 1962 and is now 58 years old. He was the fifth of six children and had two older brothers, including Kris. The environment in which Steven was raised included that he and other members of his family were sexually assaulted. Commencing when he was six years old and continuing into his adolescent years, Steven was repeatedly sexually and physically abused by both Kris and the boys’ father (the latter of whom died several decades ago).
[23] Steven’s father was involved in criminal activity including breaking and entering. By the time Steven was a teenager, he too was involved in criminal activity – commenced by assisting his father.
[24] Steven’s teenage years included the use of drugs, ranging from cannabis to heroin, and periods of incarceration. Steven became dependent on drugs and alcohol; ultimately, he was addicted to opioids for a period of 28 years. Steven relied on opioids as a mechanism by which to quiet his brain and stop the invasive memories of the sexual abuse and assaults that he experienced as a child. For the last two years, Steven has not consumed opioids.
[25] The long-standing effects of the historical sexual abuse include the following:
- Steven’s relationships with his family members and friends are fragile and have, at times, been fractured;
- He is unable to carry out activities of daily living and, on occasion, to function at all, when he experiences intrusive memories and flashbacks of the historical abuse;
- He is constantly concerned about what people think of him. He feels tremendous shame and in public feels as though people are staring at him, aware somehow of the historical abuse he suffered;
- He is extremely concerned about the safety of his children and grandchildren. He is hyper-vigilant about the safety of his grandchildren in public settings;
- He has poor short-term memory and poor concentration, as a result of which it is difficult for him to remain on task or to focus during conversation;
- He has chronic sleep problems, including experiencing intrusive thoughts that prevent him from falling asleep and nightmares by which he is awakened; and
- He has made several attempts at suicide and continues to suffer periods of depression during which he experiences suicidal ideation.
[26] In support of his claims, Steven relies on the expert opinion evidence of psychologist, Dr. Ken Reesor. Based on Dr. Reesor’s curriculum vitae, I am satisfied that he is qualified to provide the court with opinion evidence as to harm suffered by Steven as a result of childhood victimization. Based on the acknowledgement of expert’s duty from Dr. Reesor, I am satisfied that he fulfilled his role as an expert witness in accordance with the requirements of the Rules of Civil Procedure.
[27] In a 16-page, single-spaced report attached as an exhibit to the Reesor Affidavit, Dr. Reesor sets out in detail Steven’s personal history (both childhood and adult); current symptoms, functioning and adjustment; behavioural presentation; and test results. The information in the latter two categories is based on Dr. Reesor’s March 2020 assessment of Steven. In his report, Dr. Reesor also summarizes the information he gathered from his March 2020 interview of Steven’s wife. Steven and his wife have known one another for 37 years.
[28] I accept Dr. Reesor’s evidence as to the diagnoses of the conditions from which Steven suffers as a result of the historical abuse and the impact of those conditions on Steven’s life historically, at present, and into the future. Based on Dr. Reesor’s evidence, I find that as a result of the historical sexual abuse perpetrated by Kris, Steven suffered and/or continues to suffer from post-traumatic stress disorder, substance use disorder (in sustained remission), major depressive disorder (recurrent episode, mild to moderate severity), and sexual disorder.
[29] Dr. Reesor confirms that the symptoms reported by Steven are related to the childhood victimization he experienced. I accept Dr. Reesor’s evidence that much of what Steven has experienced is consistent with the contents of clinical literature addressing the impact, in adult life, on men who as children were exposed to sexual abuse/assault. The experiences documented in the clinical literature and which Steven encountered or continues to encounter include the following:
- The development of a criminal persona as a defense mechanism (Dr. Reesor notes that in addition to being a childhood victim of sexual assault/abuse, Steven was “groomed” by his father towards criminal activity);
- Incarceration;
- Relationship difficulties including break-ups, conflict, and marital strain;
- Impairment of the ability to trust others with resultant interference in parental and family roles;
- A greater likelihood of lower levels of educational achievement; and
- Employment disadvantage.
[30] I accept Dr. Reesor’s opinion and find that Steven’s mental/behavioural impairments are long-standing, have become entrenched, and are therefore not amenable to brief or short-term therapy. Based on Dr. Reesor’s evidence, I find that Steven’s childhood victimization is a contributing factor to the general physical health problems which Steven has experienced and for which he remains at risk.
[31] Lastly, I accept Dr. Reesor’s summary of the effects of Steven’s psychological injuries and find that Steven will, for the rest of his life, remain chronically vulnerable and poorly equipped to appropriately deal with life’s stresses and challenges.
[32] The next steps in the assessment of the damages to which Steven is entitled are to consider the case law with respect to general damages, the evidence with respect to Steven’s treatment needs, and the case law with respect to the claim for punitive damages.
b) General Non-pecuniary Damages
[33] In R.(R.) v. Mealing, [2000] O.J. No. 5610 (Ont. S.C.), at para. 25, O’Neill J. identified four factors to be considered when assessing general non-pecuniary damages awarded based on historical sexual abuse:
a) the nature of the sexual abuse/assaults perpetrated by the defendant;
b) the nature of the relationship between the plaintiff and the defendant;
c) the duration and time period during which the sexual assaults were carried out; and
d) the short, medium, and long-term impact of the defendant’s abusive/assaultive behaviour.
[34] Dealing with the first of the four factors, the nature of the abuse that Steven suffered was routine, lasted for five to eight years, and involved a variety of sex acts. In the factum filed in support of the motion, Steven’s counsel understandably described the nature of the abuse as “horrific”.
[35] Turning to the second factor, the abuse and assaults were perpetrated by Steven’s older brother – someone to whom Steven might otherwise have turned for protection and as a role model. As an older brother, Kris was in a position of trust for Steven – a position that Kris egregiously abused.
[36] With respect to the third factor, the abuse lasted for approximately five to eight years.
[37] Finally, in terms of the short, medium, and long-term impacts of the childhood victimization, it has affected and will continue to affect every aspect of Steven’s life. As noted above, Steven remains chronically vulnerable and poorly equipped to appropriately deal with life’s stresses and challenges. In summary, at an early stage in life, Steven was robbed of the chance to develop coping mechanisms and was set adrift while facing a myriad of psychological challenges.
[38] In support of his claim for general non-pecuniary damages in the amount of $275,000, Steven relies on the decisions in Mealing and in Wilcox v. Mattie, [2001] O.J. No. 4618 (S.C.J.).
[39] Mealing is a 2000 decision in which a plaintiff who experienced victimization, similar to that experienced by Steven, over a period of five years and at a similar age to Steven’s age when victimized, was awarded $115,000 in general non-pecuniary damages. Steven’s counsel informed the court that, when adjusted for inflation, that amount is equivalent to approximately $165,000 in 2020.
[40] Steven submits that the long-term impacts of the abuse that he suffered are more extensive than those suffered by the plaintiff in Mealing. Steven therefore relies on the $165,000 award as a guideline only for the assessment of general non-pecuniary damages to which he is entitled.
[41] In Wilcox, the plaintiff was again similar in age to Steven when victimized, experienced victimization over a similar (if not lesser) number of years, and suffered long-term impacts similar to those from which Steven suffers. The award of general non-pecuniary damages was $200,000. Steven’s counsel informed the court that when adjusted for inflation, that amount equates to slightly more than $278,000 in 2020.
[42] I note that the plaintiff in Wilcox was 22 years old when her motion for default judgment was heard. Steven is 58 years old. For the purpose of his motion, there is an additional 36 years of adult life from which to garner evidence as to the impact of the childhood victimization. The court is not left with any doubt about the nature, extent, and duration of the harm caused by Steven’s childhood victimization.
[43] Steven submits that the diagnoses made by Dr. Reesor are similar to the diagnoses of the conditions from which the plaintiff in Wilcox suffered. For that reason, Steven submits that $275,000 is a reasonable assessment for the general, non-pecuniary damages to which he is entitled. I agree and assess the general non-pecuniary damages to which Steven is entitled at $275,000.
c) Expenses for Future Treatment
[44] At paragraph 4 of the Reesor Affidavit, Dr. Reesor expresses the opinion that Steven would benefit from 200 hours of psychotherapy for the next five years. By my calculation, that amount of therapy translates to an hour a week, 40 weeks a year, for five years. The recommendation with respect to psychotherapy is made by Dr. Reesor in follow up to the conclusion, set out in his report, that Steven would benefit from long-term individual psychotherapy.
[45] In support of his claim for $45,000 in damages to cover the cost of this therapy, Steven relies on Dr. Reesor’s evidence that a reasonable hourly rate for psychotherapy services is $225.
[46] I accept Dr. Reesor’s evidence with respect to the potential benefit to Steven of the psychotherapy, the amount and duration of psychotherapy recommended, and the applicable hourly rate for the professional services. There is no evidence as to whether the hourly rate charged would be subject to HST. A claim for HST is not advanced in any event.
[47] I find that Steven recognizes the potential benefits of and is likely to pursue the recommended psychotherapy. At paragraphs 54-58 of the Charlebois Affidavit, Steven explains that it was not until after his long-time family physician retired that he was able to discuss “some aspects” of the historical abuse – at that time with his new family physician. In addition, he has, since September 2015 been under the regular care of a psychologist. I accept Steven’s evidence that the sessions with his psychologist assist him in coping with chronic headaches, intrusive emotions, and physical sensations – all of which stem from the historical abuse.
[48] In summary, I assess the damages to which Steven is entitled for the cost of future psychotherapy at $45,000.
d) Punitive Damages
[49] In support of his submission that punitive damages be assessed at $25,000, Steven once again relies on the decision in Wilcox. In making an award of punitive damages in that amount, Day J. took into consideration “the atrociousness of the assaults”, the state in which the plaintiff was left, and that no award of damages would suffice as compensation for the plaintiff: at para. 15. Day J. also commented on the lack of consistency in awards under this heading.
[50] I am satisfied that the reasoning applied by Day J. in Wilcox supports an award to Steven of punitive damages in the amount of $25,000.
e) Summary of Assessment of Damages
[51] The damages to which Steven is entitled from the Estate are as follows:
a) General non-pecuniary damages in the amount of $275,000;
b) Damages for the expenses associated with future psychotherapy in the amount of $45,000; and
c) Punitive damages in the amount of $25,000.
[52] The relief claimed in the statement of claim includes pre-judgment interest. Steven’s counsel shall, within 10 days of the date of release of these reasons, either (a) deliver written submissions with respect to the calculation of pre-judgment interest, or (b) contact the office of the Trial Co-ordinator (Civil) and make arrangements for oral submissions (by Zoom videoconference).
Disposition
[53] In summary, the Estate shall pay damages totalling $345,000 plus pre-judgment interest in an amount to be determined following the receipt of written or oral submissions. The amounts awarded for damages are also subject to post-judgment interest at the prescribed rate.
[54] Steven is entitled to his costs of this action. Subsequent to the hearing of the motion, Steven’s counsel filed a bill of costs with supporting documents. Steven’s counsel may wish to revise the bill of costs, to include time with respect to the submissions on pre-judgment interest.
[55] If written submissions are made with respect to pre-judgment interest, counsel shall file a revised bill of costs (and any supporting documents) at the same time. In the event oral submissions are made with respect to pre-judgment interest, counsel shall provide the court with an update, verbally, to the bill of costs already filed.
Concluding Remarks
[56] It has never been comfortable for Steven to disclose to anyone, whether in a personal or a professional setting, the nature and extent of his childhood victimization. It could not have been easy for Steven to become involved in litigation of this kind. His reason for pursuing the action is admirable – his desire to improve his relationships with his wife, children, and grandchildren. That Steven had the resolve to commence this action, with that goal in mind, is a reflection of his internal fortitude.
[57] I wish to repeat the thanks expressed to counsel, at the conclusion of the hearing, for the thoughtful and considerate approach taken to this litigation and the presentation of the evidence. I also wish to thank counsel for the quality of the written materials filed on the motion.
Madam Justice Sylvia Corthorn
Released: September 11, 2020
COURT FILE NO.: CV-19-80119
DATE: 2020/09/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
STEVEN CHARLES CHARLEBOIS
Plaintiff
– and –
THE ESTATE OF KRIS GEOFFREY CHARLEBOIS by its Estate Trustee, DORRIS (MCGEE) CHARLEBOIS
Defendant
REASONS FOR JUDGMENT
Madam Justice Sylvia Corthorn
Released: September 11, 2020```