SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 20-00651001-0000

DATE: 20210907

RE: V.T., C.T., personally and as Litigation Guardian for S.T., and P.T.

AND:

D.T.

BEFORE: VERMETTE J.

COUNSEL: Anna Matas, for the Plaintiffs

Phillip Crannell, for the Defendant

HEARD: June 3, 2021

ENDORSEMENT

[1] This is a historical civil sexual assault case involving a grandfather and two granddaughters. The Plaintiffs are the two granddaughters and their parents.

[2] In March 2021, the Plaintiffs brought a motion for summary judgment. A few days before the hearing of the motion, the parties reached agreement on liability, the quantum of general and special damages for all the Plaintiffs, and the issue of pre-judgment interest.[^1] Ultimately, the only issues that were argued at the hearing of the motion were punitive damages and costs. As a result of a discussion with counsel during the hearing, it was agreed that counsel would file additional written submission with respect to Rule 49 offers by June 14, 2021.

[3] Both parties agree that the issue of punitive damages is an appropriate issue to be decided by way of summary judgment, based on the paper record. With the exception of one issue identified in my reasons below, I agree as well. Except for that one issue, this Court is able to make a fair and just determination on the merits based on the record that is before it on this motion.

Factual background

[4] Given that the questions that remain in issue are limited, it is unnecessary to do an extensive review of the facts. However, in order to deal with the issue of punitive damages, it is important to go over D.T.’s criminal proceeding in some detail. This review will also provide some information about the underlying sexual abuse of V.T. and S.T.

a. The charges, the guilty plea and the Agreed Statement of Facts

[5] On November 22, 2014, D.T. was arrested and charged with the following 12 counts[^2] related to V.T. and S.T.:

Count 1: Between January 1, 2008 and December 31, 2013, in the City of Toronto, did commit a sexual assault against V.T., contrary to section 271 of the Criminal Code.

Count 2: Between January 1, 2008 and December 31, 2013, in the City of Toronto, did directly or indirectly touch the body of V.T. with his hands for a sexual purpose, contrary to section 151 of the Criminal Code.

Count 3: Between January 1, 2008 and December 31, 2009, in the City of Toronto, did for a sexual purpose counsel V.T. to directly or indirectly touch D.T.’s body with a part of her body, contrary to section 152 of the Criminal Code.

Count 4: Between January 1, 2008 and December 31, 2009, in the City of Toronto, being a person in a position of trust or authority towards V.T., did directly or indirectly touch the body of V.T. with his hands for a sexual purpose, contrary to section 153(1) of the Criminal Code.

Count 5: Between January 1, 2009 and December 31, 2013, in the Township of Havelock-Belmont-Methuen, knowing that V.T. was a grandchild, did have sexual intercourse with her, contrary to section 155(1) of the Criminal Code.

Count 6: Between January 1, 2009 and December 31, 2013, in the Township of Havelock-Belmont-Methuen, did unlawfully engage in anal intercourse with V.T., contrary to section 159(1) of the Criminal Code (as it then was).

Count 7: Between January 1, 2009 and December 31, 2013, in the Township of Havelock-Belmont-Methuen, did, without lawful excuse, make child pornography in the form of a photograph, contrary to section 163.1(2) of the Criminal Code.

Count 8: Between January 1, 2009 and December 31, 2013, in the Township of Havelock-Belmont-Methuen, did possess child pornography in the form of a photograph contrary to section 163.1(4) of the Criminal Code.

Count 9: Between January 1, 2009 and December 31, 2013, in the Township of Havelock-Belmont-Methuen, did make available sexually explicit material to V.T. for the purposes of facilitating the commission of an offence under section 151 with respect to that person, contrary to section 171.1(1)(b) of the Criminal Code.

Count 10: Between May 1, 2013 and August 31, 2013, in the Township of Havelock-Belmont-Methuen, did commit a sexual assault on S.T., contrary to Section 271 of the Criminal Code.

Count 11: Between May 1, 2013 and August 31, 2013, in the Township of Havelock-Belmont-Methuen, did directly or indirectly touch the body of S.T. with his hands for a sexual purpose, contrary to section 151 of the Criminal Code.

Count 12: Between May 1, 2013 and August 31, 2013, in the Township of Havelock-Belmont-Methuen, did for a sexual purpose counsel S.T. to directly or indirectly touch D.T.’s body with a part of her body, contrary to section 152 of the Criminal Code.

[6] D.T. was also charged with two additional counts related to J.T., the cousin of V.T. and S.T.

[7] For the purposes of the criminal charges and the discussion that follows, it is relevant to know that D.T. was born in October 1942, V.T. was born in November 1998, and S.T. was born in December 2003. The sexual abuse occurred mainly at D.T.’s house in Toronto and at the family cottage in the Township of Havelock-Belmont-Methuen.

[8] On September 28, 2015, after a number of judicial pre-trials, D.T. reached an agreement with the Crown and pled guilty to Counts 1, 2, 7, 8, 10 and 11,[^3] i.e. one count of sexual assault and one count of sexual interference with respect to V.T., one count of sexual assault and one count of sexual interference with respect to S.T., one count of making child pornography, and one count of unlawfully possessing child pornography. Counts 2 and 10 were judicially stayed based on the Kienapple principle.

[9] The facts supporting the guilty pleas were read in court and acknowledged by D.T. (“Agreed Statement of Facts”). Some of the facts mentioned in the Agreed Statement of Facts fall outside of the date ranges contained in the counts. The facts related to V.T. include the following:

The facts as they relate to [V.T.] are as follows. [V.T.] remembers the sexual abuse at the hands of her grandfather starting when she was about seven years old. This non-consensual sexual activity included all manner of sexual touching of [V.T.] by the accused, the painting of [V.T.]’s genitals, breasts, and other body parts by the accused, incidents of bondage, cunnilingus, and masturbation, vaginal and anal intercourse. This sexual abuse occurred between 2005 and early 2014.

One of the first memories [V.T.] has is from approximately 2005 when she and the accused before the court, [D.T.], went on a trip to Florida in the United States. [V.T.] recalls that she was seven years old at the time. This was a business trip and the accused and [V.T.] were alone. They travelled by car.

During the trip, they stopped at an unknown hotel in an unknown state. It was at this hotel that the accused had [V.T.] remove her clothes and he used face paints to paint her entire naked body.

After this, [V.T.] recalls many instances of being undressed, sexually touched, and having cunnilingus performed on her by the accused. [V.T.] also describes many instances of being bound while naked.

Three to four years later in approximately 2008 or ‘09, when [V.T.] was about nine or 10 years old, she remembers being at the accused’s home […] and being in the basement alone with the accused. Here, [D.T.] would encourage [V.T.] to, quote, play games, end quote. He would tie her up with cloth bindings and role play. [V.T.] recalls a number of these quote games end quote, including mad scientists in air quotes, where the accused would examine and measure all parts of her body; kidnapper, where the accused would quote kidnap and immobilize [V.T.] by tying her up naked to a chair. He would then perform oral sex on her and then masturbate and ejaculate over her.

He also coached [V.T.] in the use of a vibrator on her body and how to use it on him.

These incidents happened on many occasions. [V.T.] could not provide specific dates or a number of occurrences to investigators.

Police have seized both video and still images from multiple computer hard drives of the accused that appear to have been made by the accused to document these occurrences

[V.T.] describes the sexual activity that occurred at the cottage as similar to that which occurred at [D.T.’s house in Toronto], but more significant in that there was less chance for interruption over a period of days.

In addition to the sexual activity described to have occurred at [the Toronto house], [V.T.] describes repeated occurrences of the accused, [D.T.], having vaginal intercourse with her. [V.T.] recounted that she believed she was about 13 or 14 years old, that the accused always were [sic] a condom because he was concerned about the questions that would be raised if she became pregnant, that she complained about the vaginal intercourse hurting, and after some time, the intercourse became anal.

During these visits to the cottage, the accused would also take photographs and video-record [V.T.] during the many instances of the sexual activity described.

[Emphasis added.]

[10] The facts related to S.T. include the following:

The allegations as they pertain to [S.T.] are as follows. The sexual conduct of the accused, [D.T.], towards [S.T.] occurred on numerous occasions between approximately the latter parts of 2012 until early 2014. [S.T.] was approximately nine to 10 years old at the time.

It included many occurrences, generally on a weekly basis, at the [Toronto] residence, of sexual touching. These incidents occurred generally on Thursdays when [S.T.] would go over for sleepovers, during times where the accused and [S.T.] watch movies together. He would start by touching her about the arms and tickling her, ultimately touching her breast area with his hands.

Specifically, [S.T.] also recalls that in the summer of 2013, she went to the family cottage with her family. While there, the accused took her out in their boat. While out on the lake alone with the accused, the accused had [S.T.] undress. He also got undressed and used paintbrushes and water to go over her naked body.

There were numerous incidents during all periods of the year. Specifically, [S.T.] recalls summer and winter at the cottage where the accused instructed [S.T.] to use a pink massager on him and then he turned the massager on to [S.T.] whom he had undressed.

[Emphasis added.]

[11] The Agreed Statement of Facts also includes references to: (a) the seizure of pinhole cameras with flash drive recording systems at D.T.’s house, and (b) the fact that the investigation revealed that these cameras were used in various locations around both D.T.’s house and cottage to “surreptitiously record the happenings in the bedrooms and bathrooms of both residences.”

b. The sentence and the reasons for sentence

[12] There was no joint recommendation of the Crown and the defence regarding the sentence. The Crown sought a global sentence of nine years of imprisonment, and the defence sought seven years.

[13] On June 3, 2016, D.T. was sentenced to a penitentiary sentence of nine years, less pre-sentence custody. Some ancillary orders were also imposed, including:

a. a “weapons ban” pursuant to section 109 of the Criminal Code for 20 years;

b. an Order to comply with the Sexual Offender Information Registration Act for life;

c. an Order for the taking and recording of DNA; and

d. an Order pursuant to section 161 of the Criminal Code prohibiting D.T. from certain activities that may have him in contact with persons under the age of 16 for life.

[14] In her reasons for sentence, Justice Bloomenfeld referred to the sentencing principles set out in sections 718 through 718.2 of the Criminal Code. She noted that the Criminal Code provides that when a court imposes a sentence for an offence that involves the abuse of a person under the age of eighteen years, the court must give primary consideration to the objectives of denunciation and deterrence of such conduct: see section 718.01 of the Criminal Code. She also referred to case law on the issue of the appropriate range of sentence with respect to sexual abuse of children by persons in a position of trust, including the decisions of the Ontario Court of Appeal in R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.) and R. v. D.M., 2012 ONCA 520.

[15] Justice Bloomenfeld discussed the victim impact statements and identified many aggravating factors in this case, including the following:

a. The abuse of V.T. began when she was very young, only seven years old. [V.T. turned seven in November 2005.]

b. D.T. violated V.T. for seven years.

c. D.T. began with grooming and escalated the frequency, variety, and degree of violation of V.T.

d. D.T. took advantage of [his wife’s] physical limitations to use bathing V.T. as a premise for his campaign of grooming and sexual abuse.

e. D.T.’s abuse of V.T. took multiple forms and degrees including fellatio, cunnilingus, and vaginal and anal intercourse.

f. D.T. poisoned the innocence of V.T.’s childhood by using games and painting that would appeal to a child and perverting them from his own selfish and depraved pleasure.

g. D.T. introduced sex toys and other tools into his grotesque victimization of V.T.

h. S.T. was groomed and sexually violated for almost two years.

i. S.T. was almost nine years old when the abuse began. [S.T. turned nine in December 2012]

j. The sexual abuse of S.T. included mutual masturbation with a massager and other toys, as well as kissing and genital fondling.

k. The creation and possession of the child pornography in this case was aggravated by the size and content of the collection.

[16] Justice Bloomenfeld identified D.T.’s remorse and his acknowledgement of responsibility through his guilty plea as the primary mitigating factor, and noted that he made it clear from the beginning that he did not wish to expose any of the victims to cross-examination.[^4]

[17] Justice Bloomenfeld explained as follows how she came to the conclusion that the appropriate global sentence was nine years:

But for the principle of totality, I would have structured the sentence as follows: Counts one and two […] sexual assault or sexual interference against V.T., seven years; counts ten and 11, sexual assault or sexual interference against S.T., three years consecutive; count 14, sexual interference against J.T., one year consecutive; counts seven and eight, make child pornography and possess child pornography, three years consecutive to the other counts, but concurrent to one another. Calculated in this way, the total sentence would be 14 years imprisonment. Such a sentence would, however, violate the requirement in section 718.2 (c) of the Criminal Code that, quote, “Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. Accordingly, I have reduced the various sentences as follows to bring the total to nine years: Sexual assault or sexual interference against V.T., five years; sexual assault or sexual interference against S.T., two years consecutive; sexual interference against J.T , six months consecutive; making and possessing child pornography, 18 months concurrent to one another, but consecutive to the other charges.

[18] D.T. served six years and eight months before being statutorily released on November 16, 2020. He is subject to parole conditions until February 2023. Under his current parole conditions, D.T. must remain within 40 kilometers of his residence in Southwestern Ontario; he cannot own, use or possess a computer or any technological device that would allow him unsupervised access to the internet; and he cannot possess any device capable of storing data in a digital format, including computers, cell phones and digital cameras.

c. Impact on the Plaintiffs

[19] I accept the Plaintiffs’ submission that, over many years, D.T. acted with complete disregard for V.T.’s and S.T.’s bodily autonomy, physical integrity and dignity. Instead of treating them as children, he treated them as objects created for his personal sexual use. I also accept the Plaintiffs’ evidence that the abuse inflicted on V.T. and S.T. has had devastating and long-term impacts on every area of V.T.’s and S.T.’s life, including several mental health challenges. It has also impacted all the members of their family.

Punitive damages

a. Applicable legal principles

[20] In Whiten v. Pilot Insurance Co., 2002 SCC 18 at paras. 66-76 and 94, the Supreme Court of Canada outlined some principles applicable to the granting of punitive damages, including the following:

a. The purpose of punitive damages is not to compensate the plaintiff, but to give a defendant their just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened.

b. The primary vehicle of punishment is the criminal law (and regulatory offences). Therefore, punitive damages should be resorted to only in exceptional cases and with restraint. They are very much the exception rather than the rule.

c. Punitive damages are imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.

d. Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant, having regard to any other fines or penalties suffered by the defendant for the misconduct in question.

e. Where punishment has been imposed by a criminal court for an offence arising out of substantially the same facts, the court should treat this as a factor of potentially great importance. The court is entitled to consider the fact and adequacy of any prior penalty imposed in any criminal or other similar proceeding brought against the defendant.

f. Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation.

g. Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives.

h. They are given in an amount that is no greater than necessary to rationally accomplish their purpose.

i. While normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in addition to compensatory damages.

j. Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient.

[21] The Supreme Court stated the following at paragraph 123 with respect to cases where the defendant has already been punished for the conduct in question:

Compensatory damages also punish. In many cases they will be all the “punishment” required. To the extent a defendant has suffered other retribution, denunciation or deterrence, either civil or criminal, for the misconduct in question, the need for additional punishment in the case before the court is lessened and may be eliminated. In Canada, unlike some other common law jurisdictions, such “other” punishment is relevant but it is not necessarily a bar to the award of punitive damages. The prescribed fine, for example, may be disproportionately small to the level of outrage the jury wishes to express. The misconduct in question may be broader than the misconduct proven in evidence in the criminal or regulatory proceeding. The legislative judgment fixing the amount of the potential fine may be based on policy considerations other than pure punishment. The key point is that punitive damages are awarded “if, but only if” all other penalties have been taken into account and found to be inadequate to accomplish the objectives of retribution, deterrence, and denunciation. [Emphasis in the original.]

[22] In McIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 O.R. (3d) 161 at paras. 79-80 (C.A.), the Ontario Court of Appeal stated the following with respect to this passage from Whiten v. Pilot Insurance Co.:

[…] Where a wrongdoer has already been punished for an offence and the same conduct is in question at a civil trial, punitive damages generally will not serve a rational purpose as the sentence imposed in the criminal or regulatory environment will have already met the necessary objectives of retribution, deterrence and denunciation. In our view, there are sound policy reasons for generally not attempting to re-try those proceedings in a civil action. As this court held in Fleury v. Fleury, supra, at para. 11:

Where tortious acts have already been sanctioned by the imposition of a criminal sentence, it is inappropriate to award punitive damages in a civil lawsuit. To do so is to punish twice for the same offence.... Where, however, the civil proceedings establish that ... the sentence does not fully sanction the tortfeasor’s behaviour... punitive damages may be awarded.

(Footnotes omitted)

In our view, a court in a civil proceeding should generally demonstrate deference to the decision of the other court. Otherwise, the review of the appropriateness of a penalty administered in a criminal court, for example, could be viewed as a collateral attack on that decision. In our opinion, the “disproportionality” test enunciated by Binnie J. in Whiten in relation to the wrongful conduct and the penalty imposed is one that should be approached with considerable caution.

[23] Punitive damages are not sustainable where the conviction and resulting disposition are just and appropriate in the circumstances of the case: L.R. v. S.P., 2019 ONSC 1737 at para. 86. Consistent with the concerns raised by the Court of Appeal in McIntyre v. Grigg, some courts have expressed the view that it would be inappropriate for the civil court to go behind the determination of the criminal court and substitute its own finding as to whether a sentence adequately met the objectives of retribution, deterrence and denunciation. This is because, among other things, the justice presiding over the criminal trial and ultimately imposing the sentence is usually in a far better position to make that determination than any civil court might be: Ngo v. Miller, 2018 ONSC 526 at para. 23. See also Badreddine v. Shapovalov, 2019 ONSC 4914 at paras. 34-38.

[24] Finally, I note that subsection 4(4) of the Victims’ Bill of Rights, 1995, S.O. 1995, c. 6 (“VBR”) provides that a judge shall take the sentence imposed on a convicted person into consideration before ordering that person to pay punitive damages to a victim.

b. Positions of the parties

[25] There is no question that D.T.’s misconduct was high-handed and highly reprehensible and that it departed to a marked degree from ordinary standards of decent behaviour. Had D.T. not been criminally convicted, punitive damages would be awarded. The issue in this case is whether, in light of the criminal sentence imposed on D.T., punitive damages remain necessary because some of D.T.’s misconduct would otherwise be unpunished or because the sentence was inadequate to achieve the objectives of retribution, deterrence and denunciation.

[26] The Plaintiffs claim $100,000.00 in punitive damages for each of V.T. and S.T. They argue that D.T. has not been punished for all his misconduct with respect to his granddaughters, and that there are three general categories of misconduct that were not covered by the criminal proceeding: (1) creation and possession of child pornography with respect to S.T.; (2) conduct that falls outside of the timeframe of the indictment with respect to V.T.; and (3) conduct that falls outside of the timeframe of the indictment with respect to S.T.

[27] In addition to arguing that D.T. has not been punished for some of his misconduct, the Plaintiffs raise questions about the sufficiency of his sentence. They submit that D.T. has not been deterred by his sentence and that he generally has not understood the impact of his offending and the nature of the harm he inflicted. They state that D.T. still has not come to terms with issues of grooming or consent and continues to struggle with accepting responsibility for sexually assaulting his granddaughters. They rely, in part, on comments made by the Parole Board of Canada in a January 2019 decision denying day parole to D.T. (see footnote 4 above). In the Plaintiffs’ view, D.T.’s inability to understand or acknowledge the impact of his actions warrants condemnation, and an award of punitive damages is required to deter and denounce this behaviour in the Defendant and other sexual offenders.

[28] D.T. denies that there were occurrences of sexual abuse that fell outside of his guilty plea. However, even if this were the case, he submits that such occurrences would not warrant an award of punitive damages as they constitute the same conduct and/or are minor/insufficient. He states that the Plaintiffs are parsing out every single occurrence. He points out that his sentence falls within the range indicated in the case law for offences of sexual abuse of children by persons in a position of trust. He also argues that the fact that certain charges were withdrawn does not mean that he was not punished for his conduct. In his submission, everything relates to the same occurrences arising out of the same series of events, and all of this was before Justice Bloomenfeld.

c. Application to this case

[29] In my view, punitive damages should not be awarded in this case. This is because D.T. has already been punished for his misconduct and his criminal sentence was adequate to achieve the objectives of retribution, deterrence and denunciation.

[30] As stated above, the Plaintiffs argue that there are three categories of misconduct that were not covered by the criminal proceeding. The first category is the creation and possession of child pornography with respect to S.T. In this regard, the Plaintiffs refer, among other things, to the use of pinhole cameras in the bedrooms and the bathrooms of D.T.’s house and cottage. The Plaintiffs rely on the fact that in her reasons for sentence, Justice Bloomenfeld “grouped” the charges regarding child pornography with the charges related to V.T., not S.T.

[31] The charges against D.T. for creation and possession of child pornography do not mention any names and are not in relation to a particular child. While it is true that Justice Bloomenfeld, in one part of her reasons, listed these charges with the charges related to V.T., I do not think that it can be inferred from this that D.T. was only punished for the child pornography involving V.T. Justice Bloomenfeld may have used this organization because the Agreed Statement of Facts refers to numerous photographs and videos having been recovered in relation to V.T., and she was provided at the time of the guilty plea with an external hard drive containing some of these images as a “representative sample”. However, Justice Bloomenfeld was also provided with a document summarizing the videos and other images that were located during the investigation, but that were not part of the representative sample that she viewed. This document was made an exhibit to the guilty plea. The transcript of the submissions explaining this document, which occurred just after D.T.’s guilty plea, reads as follows:

MR. SOKOLSKI: So next, I’d like to file as an exhibit the summary with respect to the videos and other images that were located on the drives that are going to be part of the representative sample that Your Honour will ultimately view as part of these proceedings. Your Honour should know that in respect of this exhibit, the bolded titles that start with the double asterisks are part of the representative sample. The other videos, it just should be noted that they, they’re on the drives. They’re not part of what is going to be viewed as part of that representative sample. And the reason the videos are listed specifically as items on the hard drive is so Your Honour has an appreciation of the type and amount of material.

THE COURT: All right.

MR. SOKOLSKI: And I should note that they, they all relate to the images that were basically created by [D.T.] with respect to the people that are listed in those line items.

THE COURT: All right. [Emphasis added.]

[32] The last statement in the excerpt above shows that more than one child was involved. Further, the Agreed Statement of Facts refers to the following: (1) D.T. photoshopped still images of V.T.’s friend’s face onto images of adults in sexualized positions; and (2) these images and other videos of child pornography were shown to V.T. as part of the pattern of conduct leading up to having sexual intercourse. Thus, it is clear that the child pornography in issue in this case involved other children, not just V.T. The Agreed Statement of Facts also refers to pinhole cameras having been used at D.T.’s house and cottage to “surreptitiously record the happenings in the bedrooms and bathrooms of both residences”. The references to the pinhole cameras are not restricted to V.T.

[33] In light of the foregoing, I come to the conclusion that D.T. was punished for the child pornography that he created and had in his possession as of the time of his arrest, including images of S.T. While the great majority of the child pornography may have related to V.T., the charges and the facts are not limited to V.T.

[34] The second category of unpunished misconduct referred to by the Plaintiffs is conduct that falls outside of the timeframe of the indictment with respect to V.T. They point out that the charges against D.T. with respect to V.T. are for conduct between January 1, 2008 and December 31, 2013. However, according to V.T., the abuse started in 2005, when she was about seven years old, with the first occurrence happening during a trip to Florida. Her evidence is that the sexual abuse continued after they returned from Florida.

[35] I also have to reject the Plaintiffs’ submission that D.T. was not punished for this conduct. The Agreed Statement of Facts specifically refers to the Florida incident and expressly states that the sexual abuse of V.T. occurred between 2005 and early 2014. In addition, Justice Bloomenfeld notes as an aggravating factor that the abuse of V.T. began when she was only seven years old. Clearly, these facts were taken into consideration when determining the sentence.

[36] The third category is conduct that falls outside of the timeframe of the indictment with respect to S.T. The Plaintiffs point out that the charges against D.T. with respect to S.T. only refer to the period May-August 2013. They allege that the sexual abuse of S.T. began when she started having weekly sleepovers at D.T.’s house when she was about five years old. Since S.T. was born in December 2003, her evidence suggests that the abuse would have started at some point in 2009. According to S.T., the early misconduct took place when S.T. was watching movies with D.T. and consisted in inappropriate sexual touching. S.T. also refers in her evidence to sexual abuse taking place on D.T.’s boat at the cottage when she was 7 or 8 years old. D.T. denies any sexual misconduct before the period identified in the Agreed Statement of Facts.

[37] With respect to S.T., the Agreed Statement of Facts refers to sexual abuse “between approximately the latter parts of 2012 until early 2014”, while S.T. was approximately nine or ten years old. It states that “[t]here were numerous incidents during all periods of the year.” The Agreed Statement of Facts mentions many occurrences of sexual touching happening while S.T. and D.T. were watching movies together during S.T.’s weekly sleepovers. It also refers to an incident on D.T.’s boat, but it states that S.T. recalls that this incident took place in the summer of 2013 (i.e. when she was nine years old). Justice Bloomenfeld’s reasons for sentence are consistent with the Agreed Statement of Facts. She states that S.T. was groomed and sexually violated for almost two years, and that she was almost nine years old when the abuse began, which puts the beginning of the abuse at some point in 2012.

[38] I am satisfied that the nature of the sexual misconduct vis-à-vis S.T. is covered by the Agreed Statement of Facts and was considered by Justice Bloomenfeld when determining the sentence. The more difficult issue concerns the length of the abuse. I am satisfied that the misconduct that was taken into consideration for the sentence includes misconduct spanning the time period identified in the Agreed Statement of Facts (i.e. latter parts of 2012 to early 2014). However, S.T. alleges that the abuse started earlier, at some point in 2009. This would add a significant period of time to the alleged abuse – an additional 3 years. Again, this is denied by D.T. There is also disagreement as to when S.T.’s weekly sleepovers at D.T.’s house started.

[39] In my view, the issue of whether there was sexual abuse before “the latter parts of 2012” with respect to S.T. cannot be resolved in a fair and just manner on a summary judgment motion and is a genuine issue requiring a trial. I find that I cannot make the necessary findings of fact in this regard based on the paper record, and that there are credibility issues.

[40] Since I am not in a position on this motion for summary judgment to find that there was any sexual abuse with respect to S.T. that falls outside of the time period considered by Justice Bloomenfeld, I decline to grant punitive damages to S.T. with respect to any such misconduct on that basis.

[41] While the three categories identified above summarize the Plaintiffs’ main arguments with respect to misconduct that was allegedly unpunished or not covered by D.T.’s criminal proceeding, they also filed a detailed chart that analyzes the misconduct in this case and includes additional allegations of matters not covered by the criminal proceeding. Some of these allegations relate to the charges against D.T. that were withdrawn or “dropped” as a result of his agreement with the Crown. For instance, the Plaintiffs argue that D.T. has not been punished for coaching V.T. on how to use a vibrator on his body because the charge of counselling V.T. to directly or indirectly touch D.T.’s body for a sexual purpose, contrary to section 152 of the Criminal Code, was withdrawn. I do not accept this submission. These facts are included in the Agreed Statement of Facts and Justice Bloomenfeld referred to the use of sex toys as an aggravating factor in her sentence.

[42] In my view, the Plaintiffs’ focus on the withdrawn charges is misplaced in this case. The question is whether “punishment has been imposed by a criminal court for an offence arising out of substantially the same facts” or the same conduct: see Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 69. Further, the Plaintiffs do not address the issue of whether the withdrawn charges would have resulted in additional sanctions and whether some of these charges would have been judicially stayed (e.g., the count regarding anal intercourse).

[43] I find that this civil proceeding arises out of substantially the same facts and misconduct as the facts and misconduct that: (a) were in issue in the criminal proceeding, (b) were included in the Agreed Statement of Facts, and (c) were considered when Justice Bloomenfeld determined D.T.’s sentence. In my view, the amount of dissecting of the criminal proceeding that the Plaintiffs are asking this Court to do in this case is inappropriate and raises the concerns identified by the Ontario Court of Appeal in McIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 O.R. (3d) 161 at paras. 79-80 (C.A.).

[44] The Plaintiffs also argue that D.T.’s sentence was insufficient and inadequate, and that an award of punitive damages is required to deter and denounce his behaviour and the behaviour of other sexual offenders.

[45] I decline to find that the sentence was insufficient and inadequate in this case. Justice Bloomenfeld referred to the relevant applicable legal principles and case law with respect to sexual abuse of children by persons in a position of trust, and her sentence is within the range identified in appellate court decisions on this issue. In the circumstances of this case and in light of Justice Bloomenfeld’s reasons, I find that it would be inappropriate for this Court to go behind the determination of the criminal court and substitute its own finding as to whether D.T.’s sentence adequately met the objectives of retribution, deterrence and denunciation. Justice Bloomenfeld was in a far better position to make that determination than this Court is, especially since she participated in a number of judicial pre-trials with D.T. before his guilty plea: see McIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 O.R. (3d) 161 at paras. 79-80 (C.A.); Ngo v. Miller, 2018 ONSC 526 at para. 23; and Badreddine v. Shapovalov, 2019 ONSC 4914 at paras. 36-38. The decision of the Parole Board of Canada does not change this conclusion.

[46] The cases relied upon by the Plaintiffs are all distinguishable. I will discuss briefly some of them. In B.(P.) v. B.(W.) (1992), 1992 7666 (ON SC), 11 O.R. (3d) 161 (Gen. Div.), the defendant had pleaded guilty to incest on his daughter between the years 1976 and 1987. In 1987, the plaintiff moved out of her father’s house, just before her 18^th birthday. Approximately one year and a half later, in 1989, the defendant visited the plaintiff in her apartment and raped her. Cunningham J. stated the following in his reasons:

From my reading of the proceedings in the criminal court, although there was some brief mention of the 1989 occurrence, the full details of that sexual assault were not documented. The plaintiff has testified that on that occasion she was raped by her father at a time when she was in a particularly vulnerable state. The recitation of the facts in the criminal court indicated that the defendant fondled the plaintiff’s breasts and rubbed his penis against her vagina suggesting to her that, despite the fact she was having her menstrual period, it would be a good time to have sex. What the recitation of the facts did not disclose, however, was the fact of the rape. I am satisfied that this conduct in 1989, was not sanctioned. Accordingly, the plaintiff will have punitive damages against the defendant in the amount of $50,000.

[47] Thus, it was clear in B.(P.) v. B.(W.) that the 1989 sexual assault had not been taken into consideration in the criminal proceeding. I also note that the 1989 sexual assault was separate from the continuous wrongdoing that was punished for the 1976-1987 period. For the reasons set out above, this is not the case here.

[48] In Flachs v. Flachs, Court File CV-13932/96, March 12, 2002, the defendant was charged with a number of counts in respect of his actions against his wife and his daughter. With respect to his wife, he was charged with one count of assault causing bodily harm, one count of assault with a weapon (a cane), one count of threatening death and one count of sexual assault. With respect to his daughter, he was charged with one count of indecent assault and two counts of assault causing bodily harm. As a result of a plea bargain, the defendant pleaded guilty to all counts regarding his wife except sexual assault. He was sentenced to a period of six months incarceration concurrent on each of the three counts to which he pleaded guilty and to a period of three years’ probation. As for the counts regarding his daughter, the defendant pleaded guilty to one count of assault causing bodily harm and was sentenced to a period of incarceration for a period of 60 days consecutive to the period of incarceration with respect to the counts concerning his wife.

[49] Lofchik J. concluded that an award of punitive damages in the amount of $25,000.00 with respect to each plaintiff was appropriate in the circumstances. He stated the following in his reasons (paras. 34-35):

[34] As a general rule, […] punitive or exemplary damages are not awarded when the defendant has already been prosecuted in the criminal courts and has been punished for the same conduct. In the present case, although the defendant has been convicted of various assaults and uttering a death threat to his wife, and of assault causing bodily harm upon his daughter, he has not been convicted of indecently assaulting his daughter or of raping his wife.

[35] I recognize that six months incarceration for the assaults and threats directed towards Catherine Flachs [the wife] and 60 days consecutive incarceration as a result of the defendant’s treatment of Lorraine Van De Slyke [the daughter] is a light sentence, the result of a plea bargain. I say that not as a criticism of the sentencing judge who, undoubtedly, did not have before him the information put before me in the course of this hearing, but as one of the factors taken into account when considering whether an award of punitive damages is appropriate.

[50] Again, it was clear in Flachs v. Flachs that the defendant had not been punished for the sexual assault and the indecent assault, and the nature of these offences was different from the nature of the offences to which the accused had pled guilty and for which he was punished.

[51] In K.T. v. Vranich, 2011 ONSC 683, the plaintiff, a 22-year-old university student, was sexually assaulted by the sole proprietor and manager of the bar where she was working during the summer. The defendant pled guilty to sexual assault and received a conditional sentence to be followed by a period of probation. Whitten J. found that the sentence imposed on the defendant was “at odds” with the extent and the impact of his actions on the plaintiff. He also considered the employer-employee situation and the need to deter any other “like minded employer”. Ultimately, he awarded punitive damages in the amount of $25,000.00 against the individual defendant and the numbered corporation operating the bar.

[52] While there may have been a basis in K.T. v. Vranich to find that the criminal sentence imposed in that case was too low, here, D.T. was sentenced to nine years of imprisonment. As noted above, this sentence was within the range identified in the case law.

[53] As stated by Justice Bloomenfeld, D.T. stole something irreplaceable from V.T. and S.T., and I have already referred to the devastating and long-term impacts of D.T.’s abuse and misconduct on every area of V.T.’s and S.T.’s life. However, as mentioned above, the purpose of punitive damages is not to compensate plaintiffs and the primary vehicle of punishment is the criminal law. Punitive damages in a civil action are the exception rather than the rule. In this case, Justice Bloomenfeld imposed a criminal sentence on D.T. after considering the specific objectives of retribution, deterrence and denunciation that apply in a case of sexual abuse against children. The sentence relates to substantially the same facts and conduct as in this civil case. Pursuant to the applicable legal principles, there is no room left for punitive damages.

[54] Accordingly, I decline to order punitive damages.

Costs

a. Scale of costs

[55] Subsection 4(6) of the VBR provides that a judge who makes an order for costs in favour of a victim 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.

[56] The Plaintiffs seek costs on a full indemnity basis. The only cases they cite in support of their position are cases where the defendant did not appear, and where there is no or very little discussion with respect to the scale of costs.[^5]

[57] I find that the Plaintiffs have not established that they should get a higher scale of costs than the presumptive scale set out in the VBR. The legislator has expressly provided for costs on a full indemnity basis in certain circumstances (see, e.g, subsection 137.1(7) of the Courts of Justice Act, R.S.O. 1990, c. C.43), but it did not do so in the VBR or with respect to cases dealing with sexual abuse. In my view, there was no wrongdoing on the part of D.T. in the conduct of the litigation: see Davies v. Clarington (Municipality), 2009 ONCA 722 at paras. 42-46. Ultimately, I am not satisfied that this case, when compared to other cases involving victims, has exceptional characteristics justifying costs on a full indemnity basis.

[58] Similarly, I conclude that D.T. has not rebutted the presumption in subsection 4(6) of the VBR. I reject his submission that the parties should bear their own costs because the motion for summary judgment was unnecessary and the matter was always going to be resolved. This is contradicted by the fact that the parties only reached an agreement on damages (except for punitive damages) a couple of days before the hearing of the motion. I also see no reason to grant partial indemnity costs instead of substantial indemnity costs in this case.

[59] In my view, Rule 49 has no application in this case. This Court did not determine the quantum of damages – this was agreed upon by the parties. Therefore, the Plaintiffs did not obtain a judgment more favourable, as favourable or less favourable than any of the offers made by the parties with respect to damages: Rule 49.10 of the Rules of Civil Procedure. Further, there was no Rule 49 offer specific to punitive damages. As a result, the costs consequences set out in Rule 49.10 have not been triggered in this case.

[60] Accordingly, the Plaintiffs are entitled to costs on a substantial indemnity basis.

b. Quantum

[61] The Plaintiffs seek costs on a substantial indemnity basis in the amount of $183,846.48 (inclusive of HST), plus disbursements in the amount of $4,401.57 (inclusive of HST), for a total of $188,248.05.

[62] The Defendant argues that the amount sought is excessive. He contrasts the amount sought by the Plaintiffs with the total of his costs outline, which is $45,780.24 on a full indemnity basis.

[63] I agree with the Plaintiffs that it is not appropriate in this case, for the purpose of assessing the reasonableness of the Plaintiffs’ costs and determining the expectations of the parties, to compare the Plaintiffs’ costs to the costs incurred by the Defendant. The defence only includes one client, D.T. In contrast, there are four Plaintiffs. Among other things, the impact of D.T.’s criminal conduct had to be addressed with respect to each of the Plaintiffs, with the need to obtain, review and marshal the evidence in support of each of their claims. Further, affidavits had to be prepared for each of the Plaintiffs. I also accept the Plaintiffs’ submissions that: (a) when dealing with victims of sexual abuse, counsel need to take the time that is necessary for the clients to feel comfortable to share the facts; and (b) the preparation of sexual assault victims for cross-examination is a delicate and time-consuming process. Given that going over past events of abuse can be a very difficult experience for victims, it is reasonable to expect that more time will be required for counsel to accomplish certain tasks in a case like the present one compared to other cases.

[64] Nevertheless, I am of the view that some reductions have to be made to the Plaintiffs’ bill of costs to: (a) remove the time regarding the preparation of motion materials for approval of settlement (which did not proceed for the reasons I gave at the hearing of the motion for summary judgment), (b) take into account the fact that the Plaintiffs were unsuccessful on the issue of punitive damages, and (c) ensure that the time claimed is reasonable in light of the amount ultimately recovered, a number of valid points raised by D.T. regarding the overall management of the litigation file, and the reasonable expectations of the parties.

[65] Taking the foregoing into account as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I find that the fair and reasonable award of costs in favour of the Plaintiffs is in the all-inclusive amount of $145,000.00. In my view, this is an amount that D.T. should reasonably have expected to pay in the event that it was unsuccessful given, among other things, the importance of the issues for the parties, the number of Plaintiffs and the particular difficulties associated with this kind of cases.

Conclusion

[66] The motion for summary judgment is dismissed with respect to the issue of punitive damages.

[67] The Plaintiffs are granted their costs of the action and the motion in the all-inclusive amount of $145,000.00, to be paid by D.T. within 30 days.

[68] I am seized of this matter with respect to any motion pursuant to Rule 7.08 of the Rules of Civil Procedure regarding the approval of the settlement as it relates to S.T.

Vermette J.

Date: September 7, 2021

[^1]: The settlement is subject to the approval of the Court pursuant to Rule 7.08 of the Rules of Civil Procedure with respect to the minor Plaintiff, S.T.

[^2]: The counts below reflect amendments that were subsequently made to some of the date ranges.

[^3]: D.T. also pled guilty with respect to one count related to J.T.

[^4]: I note, however, that in a decision dated January 9, 2019 denying D.T.’s request for day parole, the Parole Board of Canada stated the following:

Despite your guilty plea, lengthy period of incarceration and programming, you struggle with issues of accountability and transparency and the concepts of consent and grooming. Your lack of insight and understanding as to the nature, motivations and consequences of your offending remains a significant concern.

[^5]: The Plaintiffs rely on C.S. v. Nigro, 2010 ONSC 3204 at paras. 50-52, among others. While the judge in that case mentions that there was a breach of a position of trust and a breach of a fiduciary relationship, this type of misconduct does not automatically attract costs on a full indemnity basis. Further, the fact that the defendant did not appear seems to have played an important role in the judge’s decision. I also note that there is no reference to subsection 4(6) of the VBR.