COURT FILE NO.: CV-19-0506-00 DATE: 2021-02-08

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

J.B. Ms. N. Gerry, for the Plaintiff Plaintiff

- and -

R.B. Not Appearing Defendant

HEARD: in writing at Thunder Bay, Ontario Mr. Justice F. Bruce Fitzpatrick

Decision on Motion for Judgment

[1] The Plaintiff, J.B. moves for judgment on motion without notice. She does so as the Defendant, R.B. has been noted in default. Further, in March 2020, J.B. obtained an order for partial summary judgment against R.B. from Nieckarz J. (J.B. v. R.B., 2020 ONSC 1430). Nieckarz J. found R.B. liable for damages arising from a sexual assault he perpetrated on J.B. in 1992. At paragraph 19 of her decision, Nieckarz J. directed that the quantum of damages could be tried by way of an uncontested trial.

[2] Given the circumstances of this matter, the pandemic, and the fact that the Thunder Bay courthouse is still closed due to the October 2020 fire, I was content to proceed to give a judgment quantifying and awarding damages on the basis of the affidavit evidence submitted on this motion for judgment. R.B. has not defended the action. He has been noted in default. He is deemed to admit the allegations against him. Liability for damages has been established by the partial summary judgment given by Nieckarz J. J.B.’s affidavit evidence sets out how she has been re-traumatized multiple times throughout the legal process. In my view, determining the matter on the basis of the affidavit evidence alone will secure the most just, expeditious and least expensive determination of this proceeding given how it has moved forward to date.

Background

[3] Nieckarz J. has found that J.B. sustained physical and mental injuries when R.B. sexually assaulted her on October 16, 1992. J.B. was 33 years of age at the time. She did not have any children at that date. R.B. was charged with sexual assault as the result of his actions that day and was ultimately tried and convicted by Pierce J. in 2018. Pierce J. gave oral reasons for judgment. The transcript of those reasons was exhibited in the material placed before me. Pierce J.’s reasons for decision on sentence were published at R. v. Beer, 2018 ONSC 4927. R.B. appealed. His conviction was upheld. His appeal as to sentence led the Court of Appeal to reduce it to three years from the four imposed by Pierce J.: see R. v. Beer, 2019 ONCA 763. The decision of the Court of Appeal constitutes proof R.B. committed the crime of sexual assault.

[4] J.B.’s evidence is recounted in Pierce J.’s oral criminal trial decision as follows:

J.B. stated that she was wakened by the accused having sex with her. She indicated that his penis was inside her. She described swearing at him, trying to push him off, kicking at him. Her pants and underwear were below her knees. The accused’s jeans were faded and they were below his buttocks. She saw him pull up his pants and zip his fly. She told him in expletive terms to call her a cab while she pulled her clothes up. She testified that Mr. R.B. responded, “calm down, I didn’t put it in you.”

[5] R.B.’s response was misleading. Evidence of that was a daughter born to J.B. on July 20, 1993, a little over nine months later. D.N.A. evidence led at trial confirmed R.B. was the father of the child. R.B. testified at trial he had consensual sex with J.B. Pierce J. found that J.B. did not have consensual sex with R.B..

[6] I accept J.B.’s evidence that the assault drastically altered the trajectory of J.B.’s life for the worse. For this result, R.B. is liable to J.B. in damages.

Assessment of damages

[7] J.B. seeks the following damages:

a. general and aggravated damages in the amount of $350,000; b. damages for past loss of income in the amount of $632,813; c. damages for future care costs, i.e. counselling, in the amount of $50,000; d. special damages for costs incurred in raising her daughter born of the sexual battery in the amount of $127,961; e. pre- and post-judgment interest; f. the Ministry of Health’s subrogated account in the amount of $13,213.75; and g. costs of the action on a substantial indemnity basis, in the amount of $44,173.06, inclusive of disbursements and HST.

General and Aggravated Damages

[8] The material filed on this motion indicates the assault caused J.B. pain and suffering. Section 3(2) of the Victim’s Bill of Rights, 1995, S.O. 1995, c. 6, creates a legal presumption that a victim of sexual assault has suffered emotional distress. Proof of loss is required for an award for the tort of assault beyond a nominal award. In my view, J.B. has provided evidence proving her loss which supports a substantial award.

[9] I agree with the submissions of J.B. that the affidavit evidence provided supports a conclusion that J.B. led a productive and active life prior to the assault. I accept the affidavit evidence of Y. N., a long-time friend of J.B. who has known her since approximately 1973, when Y.N. was nine years old and J.B. was 15 years old.

[10] I accept Y.N.’s evidence that J.B. was a social, energetic and athletic person throughout the time she has known J.B. I find from Y.N.’s evidence that J.B. was a social drinker prior to the assault.

[11] I accept J.B.’s evidence that she was an athletic person who enjoyed playing sports prior to the assault. She excelled in softball. She continued to play softball into early adulthood. She had no health issues prior to the assault.

[12] From the affidavit evidence provided by J.B., I find she was consistently employed prior to the assault. I accept she had no problems with obtaining gainful employment or regularly attending work. J.B. had secured employment with MacLean-Hunter, a local cable company, and was in her first few weeks of work just prior to the assault occurring. In this capacity, J.B. was earning a steady income.

[13] I accept J.B.’s evidence that finding out she was pregnant after the assault “destroyed her”. She became an angry person. She put on weight and quit playing sports. She became an alcoholic. I accept these results were caused by the assault. I find J.B. has proven R.B. caused her physical and psychological damage by his act of assaulting her.

[14] What J.B. has suffered includes the pain of shame, embarrassment and fear caused by what R.B. did to her. I find she has suffered continuing and long-lasting negative impacts and pain from R.B.’s act. I accept J.B. withdrew from her friends, family, and sports, and was impeded in her ability to make a living.

[15] I am very cognizant about how J.B. has expressed “mixed feelings” about her daughter. The mere fact she is required to face and express these kinds of emotions in the context of a court proceeding is striking. When parents look deep inside themselves, usually they will conclude that children are a blessing. It is different for J.B. because of how the child came to be. Yet she determined to follow through with the pregnancy and raise her daughter. Successfully.

[16] I understand as best as I can express that her decision to follow through with her pregnancy continues to impact on her to date. I agree with the submission of counsel that despite all the blessings that J.B. has enjoyed from her daughter over the years, there have been many burdens for which she rightly seeks and will receive an award of damages from R.B..

[17] Counsel raised the issue of mitigation of damages. This was appropriate to do as the matter was brought without notice for the reasons set out above. J.B. need not prove her efforts to “mitigate”, as that burden rests with a defendant. There is much that could be said about this particular issue. However, it is a hypothetical issue on the evidence presented in this matter. Thus, while I have turned my mind to this issue, I have not applied any “discount” to my determination of quantum on the basis of this hypothetical issue.

[18] The Court received an affidavit and report from Dr. Scott Morgan Sellick. He is a practicing psychologist. Based on his curriculum vitae, I find Dr. Sellick is qualified to give expert opinion evidence on the issue of the psychological effects of the assault on J.B., to provide a diagnosis regarding J.B. to the court, and to outline the treatment that will be required for J.B..

[19] Dr. Sellick reviewed J.B.’s medical file and met with her to do an assessment. I accept Dr. Sellick’s diagnosis of J.B. as suffering Post Traumatic Stress Disorder and depression. I accept Dr. Sellick’s opinion that J.B.’s ability to cultivate or maintain relationships is stunted due to the assault by R.B.. Based on Dr. Sellick’s assessment, I find that J.B. felt, and continues to feel, degraded and dirty as the result of the assault. She lost self-confidence and her personal hygiene suffered. She withdrew from her friends and family, and over-indulged in alcohol. This substance abuse is a coping mechanism with adverse consequences.

[20] I accept Dr. Sellick’s conclusion that the psychological damage inflicted by R.B. on J.B. has negatively impacted her ability to maintain steady employment. She has therefore suffered an economic loss connected to her psychological issues arising from the assault.

[21] I will assess general and aggravated damages globally. There have been long lasting and continuing aspects to the assault at issue. It is difficult to parse out general from aggravated damages in this case. The relationship between J.B. and her daughter is both a source of pain and joy for her. This anomaly is difficult to reconcile. J.B. has lived it for many years. She has balanced significant negative emotions, psychological damage, alcoholism and trauma, while at the same time trying to be a good mother to an innocent daughter. General damages are not sufficient to compensate the humiliating and degrading nature of what J.B. has endured as the result of R.B.’s action. R.B. impregnated J.B., threatened her not to tell anyone and ignored the reality of his actions.

[22] For all these reasons, I assess J.B’s general and aggravated damages arising from the assault to be globally $275,000.

Damages for Past Loss of Income

[23] I accept J.B.’s evidence that she has been rendered unable to earn an income commensurate with her education and talents as a result of the assault. I accept Dr. Sellick’s connection of J.B.’s psychological injuries to her inability to maintain steady employment.

[24] J.B. has tendered an expert report of Donna Bain Smith to opine on the value of J.B.’s financial losses arising from the assault. Ms. Smith is a Chartered Professional Accountant, a designation she has held since 1996. Her curriculum vitae produced to the Court also outlines other professional designations in valuation and forensic accounting which leads me to accept her as an expert witness capable of providing the court with opinion evidence as to J.B.’s income loss and losses arising from raising her daughter.

[25] I accept J.B.’s submission that on a balance of probabilities, she would have continued to work with the cable company with which she was employed in 1992. While that particular company was acquired by Rogers Communications later in the 1990’s, the cable business is one that is alive and well in the Thunder Bay district. I accept J.B’s evidence that she would have continued working in a relatively well paid position but for the assault.

[26] I accept J.B.’s evidence that she was earning approximately $17 per hour when the assault occurred in 1992. I accept the economic calculations provided to the court by Ms. Smith. J.B. has not sought losses for the post 2017 period at which time she injured her back and was required to apply for ODSP. Ms. Smith opines that between 1992 to 2017, J.B. lost wages in the amount of $632,813. I accept this quantification as an appropriate value of the past loss of income experienced by J.B. arising from the assault by R.B..

Damages for Future Health Care Costs

[27] I accept the opinion evidence of Dr. Sellick that J.B. will require long term counselling to deal with the mental health injuries visited upon her by the assault by R.B.. She submits she is entitled to treatment costing $5,000 per year for 10 years.

[28] I was not persuaded that the evidence provided on this motion was as accurate as could be given. J.B. may be able to avail herself of other sources of treatment in the future that would be available to her without cost as a citizen of Ontario. I therefore assess damages under this category at $20,000.

Special Damages

[29] J.B. claims for the financial losses she suffered because R.B. did not pay child support for their daughter.

[30] J.B. relies on Ms. Smith’s opinion in respect of her claim under this head of damage. Ms. Smith was candid in her expert report that she did not have any reliable information about R.B.’s income from the period 1993 to 2011, the year J.B.’s daughter turned 18. I note Ms. Smith has relied upon the Federal Child Support Guidelines, SOR/97-175, as they read in 2014 in coming to her conclusions as to a quantum of damages. I also note that the Child Support Guidelines did not take effect in Ontario until December 1, 1997. Had things progressed differently, and R.B. had decided to honour his obligations in the pre December 1997 period, it could have resulted in him obtaining a child support agreement with J.B. on the basis where any child support payable by him could have been tax deductible to him. Of course, this is all conjecture but, in my view, it is a contingency that lands as far out on the “speculation scale” as Ms. Smith’s calculations and opinions as to the damages arising from this particular head of assessment.

[31] Given the speculative nature of the evidence before me on this particular issue, I assess special damages for loss of child support payments for the child for eighteen years of her life to be $72,000.

OHIP Account

[32] J.B. is also seeking to recover the subrogated OHIP account on behalf of the Ministry of Health and Long-Term Care in the amount of $13,213.75, related to the birth of her daughter and her hospitalization for mental health issues. I agree with the submission of counsel that the Ministry is entitled to recoup from the Defendant the costs associated with J.B.’s medical issues resulting from the assault. J.B. is awarded a further amount of $13,213.75 which would satisfy OHIP’s subrogated claim in this matter.

Interest

[33] At the request of the Court, counsel for J.B. filed a supplementary factum on the issue of prejudgment interest. In my view, counsel took an appropriately restrained position on the issue. J.B. has sought interest to be awarded only on the past loss of income damages and the damages for lost child support. Further, J.B. requests that prejudgment interest be calculated commencing on the date of the service of the statement of claim, November 6, 2019. I accept that submission as both of the particular claims for which prejudgment interest is sought fully crystallized prior to the issuing of the statement claim.

[34] Section 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43, fixes the prejudgment interest rate for the fourth quarter of 2019 at 2%. In my view, this is an appropriate rate of interest to apply to the awards for past loss of income damages and the claim for lost child support. Accordingly, J.B. is entitled to prejudgment interest of $17,620.32. This was calculated as follows: 2% on $632,813 for the period November 6, 2019 to February 6, 2021 (1 year and 3 months), totaling $15,820.32, and 2% on $72,000 for the same time frame, totaling $1,800.00.

Costs

[35] J.B. seeks costs on a substantial indemnity basis fixed in the amount of $44,173.06. Counsel has submitted a bill of costs in support of this amount. J.B. relies on the provisions of s. 4(6) of the Victim’s Bill of Rights, which provides that a judge who makes an order for costs in favour of a victim of crime "shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice.”

[36] J.B. seeks costs for multiple counsel who worked on this file. For this matter, I see it appropriate to only order costs for one counsel. While there is no doubt that counsel put a great deal of effort into preparing the materials in this matter, I do not see this as a case where R.B. should be required to pay for more than one counsel fee. Also, costs have been awarded by Nieckarz J. in respect of the motion for partial summary judgment. I cannot discern from the materials if these costs have been removed from the bill of costs.

[37] The substantial indemnity rate of $250 per hour charged by the main counsel in the matter is reasonable for a solicitor of the experience of Ms. Gerry. The major portion of the $14,730.91 in disbursements claimed is composed of one expert who charged approximately $9,000 for their report. This is a market rate given what I have seen for other expert reports in other personal injury matters. Nevertheless, it is a cost that will be borne by R.B.. In my view, it would be in the interest of justice to make an order for costs on a partial indemnity basis with respect to the solicitor’s fee portion of the Bill of Costs as submitted. I fix the total amount of costs payable by R.B. to J.B. on this motion to be $25,000 inclusive of disbursements and HST.

Conclusion

[38] The defendant R.B. is liable to pay civil damages to J.B. arising from his criminal and tortious act of intentionally sexually assaulting her. This was so found by Nieckarz J. I also find and adjudge this intentional act of sexual assault has caused damages to J.B for which R.B. shall be liable to pay her in the following amounts:

a. general and aggravated damages in the amount of $275,000; b. damages for past loss of income in the amount of $632,813; c. damages for future care costs, in the amount of $20,000; d. special damages for costs incurred in raising her daughter born of the sexual assault in the amount of $72,000; e. prejudgment interest to the date of this judgment in the amount of $17,620.32; f. the Ministry of Health’s subrogated account in the amount of $13,213.75; and g. post-judgment interest at the rate prescribed by section 127 of the Courts of Justice Act for the first quarter of 2021, namely 2% per annum; h. costs of the action in the amount of $25,000, inclusive of disbursements and HST.

[39] Counsel for J.B. shall prepare a draft judgment for my signature reflecting the above at her earliest convenience. Counsel for J.B. shall arrange for a copy of this judgment to be served by ordinary mail on R.B. at the Federal facility where he is currently incarcerated together with a copy of the judgment. Counsel shall file an affidavit of service verifying such service once it is completed.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: February 8, 2021