Court File and Parties
Court File No.: CV-21-00669769-0000 Date: 2023-01-13 Superior Court of Justice - Ontario
Re: J.P., Applicant And: D.T.L., Self-Represented Respondent
Before: Justice Papageorgiou
Counsel: Michael Wilchesky, for the Applicant D.T.L., Self-represented Respondent
Read: January 9, 2023
Endorsement
Introduction
1This is a motion for judgment for damages arising from the torts of physical and sexual assault and battery, intimidation and the intentional infliction of mental suffering.
2This proceeding was brought pursuant to the Simplified Procedure provided in Rule 76. The defendant did not file a defence and was noted in default. This matter proceeded as a written motion for default judgment.
3The defendant has been served in accordance with the endorsement of Justice Centa dated November 22, 2022 but did not file any materials.
Background
4The plaintiff and the defendant are first cousins. The defendant sexually abused her while she was intoxicated and incapable of consenting to the sexual acts perpetrated against her.
5The defendant was found guilty in the criminal court. Criminal conviction is conclusive proof of an underlying sexual assault: Toronto (City) v C.U.P.E., Local 79 [2003] 2 S.C.R. 77 at para 56.
6The plaintiff has a history of being sexually abused by her grandfather. Notwithstanding this abuse, she was able to put herself through school and university and achieved an Honours Bachelor’s degree in criminology and Masters of Arts in Social Justice and Community Engagement. She was coping with the trauma and grief in a manageable way until the abuse by the defendant pushed her over the edge.
7In that regard, on or about March 30, 2013, she was sexually assaulted by the defendant when she visited her uncle where the defendant was living. After they consumed some alcoholic beverages, she went up to sleep in her uncle’s bedroom. She woke up startled to find the defendant lying on top of her engaging in sexual intercourse with her. She told him to get off of her, but because of his size and strength, she could not push him off. She eventually pushed him off of her, got dressed and left.
8She did not report the incident initially as she was ashamed and embarrassed.
9In or around January 2019, after suffering in silence with severe anxiety, panic attacks, shame and embarrassment as a result of the sexual assault, she reported the incident to the police. The defendant entered a plea of not guilty which necessitated a trial.
10The trial took place on February 11, 2020 and the defendant was found guilty in respect of the sexual assault which is the subject of this proceeding.
11On October 7, 2020 and May 4, 2020 he was sentenced to 3 years imprisonment.
Impact of the Assault
12As a result of the sexual assault, the plaintiff has suffered from and continues to suffer from significant psychological harms described herein. The sexual assault also aggravated and exacerbated her pre-existing psychological and emotional trauma and has adversely impacted all facets of her life.
13As a result of the sexual assault:
14She suffers from PTSD, suicidal ideation (including several suicide attempts), depression, claustrophobia, social anxiety, severe anxiety, frequent panic attacks, hyperventilation and hypervigilance, difficulty leaving home, extreme irrational fears, difficulties being around males and difficulty trusting men, including but not limited to family members and men in positions of authority and employers; she is unable to form and maintain intimate social and familial relationships with men; she is not able to engage in sexual intimacy; she has feelings of shame, self-blame and embarrassment; she has frequent recurring nightmares related to the assault, which wakes her up in the middle of the night in a cold sweat; the memories and feelings of being abused plague her mind and she is unable to escape no matter how much she tries, notwithstanding the various counselling she has received.
15She has also suffered economic losses as a result of the subject sexual assaults. Since the assault in 2013, she has been unable to maintain steady employment due to her anxiety, low self-esteem and PTSD symptoms related to the assault.
16Notwithstanding the Honours Bachelor’s degree she was able to achieve in criminology and the Master of Arts degree in Social Justice and Community Engagement, she continues to struggle to find and maintain steady, long term employment as a result of the psychological harms caused by the sexual assault. Therefore she seeks damages for the loss of competitive advantage (the narrowing/loss of economic opportunities) caused by the sexual assault.
17Her addictions Counsellor, Melissa Jonathan, provided evidence that the sexual assault materially contributed to the plaintiff’s PTSD including stress disorder symptoms, avoidance behaviors affecting her work, home and social life, disrupted sleep, prolonged periods of throwing up and estrangement from much of her family, causing lack of support, low self-esteem and suicidal ideation.
18Her psychiatrist, Dr. Kathryn Jean MacDonald provided evidence that the plaintiff suffers from the following psychological harm as a result of the sexual assault: a) post-traumatic stress disorder with flashbacks; b) dreams, frequent memories and intense emotional reactions to reminders of the assault; c) avoidance in the form of avoiding places and people that are reminders of the assault; d) avoiding thoughts and discussions that relate to the assault; e) substance abuse; f) hypervigilance; and g) the inability to go into rooms which closed doors.
19The plaintiff will require further therapy to address the severe psychological harms she continues to suffer on a daily basis.
20I am satisfied that the defendant has caused or contributed to the psychological harms set out above.
Damages
21The purpose awarding damages is to provide solace for the pain, suffering and loss of enjoyment flowing from the assault.
22In this case the assault is be aggravated by the fact that it was by a family member; this is a breach of trust and attracts a higher level of damages.
23The plaintiff provided caselaw which indicates that the range of damages for general and aggravated sexual assault is between $150,000 to $450,000: Zando v. Ali, 2017 ONSC 1289, C.O. v. Williamson, 2020 ONSC 3874, Evans v Sproule, [2008] O.J. No. 4518, K.T. v. Vranich, 2011 ONSC 683.
24In Zando v. Ali, 2017, the Court awarded $175,000 in respect of a single occurrence of sexual assault which the Court noted falls towards the lower end of the spectrum.
25Taking into consideration the plaintiff’s background and vulnerability, the impact of the assault on her and recognizing the serious physical and psychological harm and damage that flow from sexual assault as well as society’s abhorrence for and denunciation of such act, I award the sum of $175,000 in non-pecuniary damages including her loss of competitive advantage.
26I am awarding $25,000 in punitive damages on the basis that the defendant’s conduct was highly reprehensible which is a marked departure from the standards of decent behavior. As well, he forced the plaintiff to go to trial when he was criminally charged which would have exacerbated the impact of the assault on her, rather than taking responsibility.
27Pre and post judgment interest from the date of the Claim is also awarded.
Costs and Disposition
28The plaintiff’s counsel submitted a bill of costs in the amount of $28,263.80 inclusive of disbursements. I have reviewed the time docketed and the rates charged which I find fair and reasonable and award these amounts.
29The plaintiff may submit an Order to my attention for signature. As the defendant did not appear, approval as to form and content is dispensed with.
Papageorgiou J.
Date: January 13, 2023