Ontario Superior Court of Justice

Court File No.: CV-21-00664240-0000 Date: 2023-06-21

Between:

W.C. Plaintiff

• and -

R.S. Defendant

Before: Dineen J.

Counsel: Michael Wilchesky and Nahid Atrchin, for the Plaintiff Rohan Haté, for the Defendant

Heard: April 27, 2023

Endorsement

[1] The plaintiff moves for summary judgment on her claim against the defendant for sexual assault and battery. The defendant is the cousin of the plaintiff’s father and is nearly 16 years older than her. The claim arises from an acknowledged sexual relationship between the parties that began when the plaintiff was around 14 years old.

[2] The plaintiff reported this relationship to the police in 2018 and on April 21, 2021, the defendant pleaded guilty to a charge of seduction of a female between the ages of 16 and 18 years of age, a historical offence that was in force at the time of the relationship. Other charges that had been laid were withdrawn. Pursuant to a joint submission, Durno J. imposed a conditional sentence of 7 months followed by 12 months of probation.

[3] The position of the plaintiff is that the criminal conviction and the admitted facts that supported it resolve the issue of liability in this action. The defendant argues that all sexual activity between the parties was genuinely consensual, which is not inconsistent with the elements of the offence he admitted. He argues that the issue of consent requires a trial to resolve.

1 The statement of claim also sought damages for intimidation and intentional infliction of emotional distress, but the plaintiff’s counsel advised on this motion that these causes of actions were no longer being pursued and so I will not address them in these reasons.

[4] The plaintiff submits that damages can be assessed based on the record on this motion. She relies on her own evidence and the expert opinion of a clinical psychologist that she has tendered. The defendant disputes the admissibility of the expert opinion and the plaintiff’s description of the harm she says she suffered from his actions. He argues that a trial of damages is needed.

Factual background

The parties

[5] The plaintiff was born on June 11, 1958. At the relevant time, she lived with her parents and three brothers (one older and two younger) on a family farm.

[6] The defendant is the cousin of the plaintiff’s father. He was born on August 24, 1942. In the early 1970s, he began to work on his uncle’s farm located close to the plaintiff’s family residence and would visit her family. Sexual activity between the plaintiff and defendant began in 1972 or 1973.

The admitted facts on the defendant’s guilty plea

[7] In the guilty plea proceedings before Durno J., the Crown read in the following facts about the sexual activity, and the defendant personally agreed on the record that they were “what happened”:

When W.C. was approximately 14 years of age the accused began pursuing her for sex during his frequent visits to her family home. It started off by him asking her to sit on his lap. W.C. recalled an incident where her parents were out of the house and R.S. was over at her house. He asked her to make him a drink and then she sat in his lap.

The first incident of sexual intercourse took place when W.C. was approximately 14 years old. R.S. had been visiting her home when he took her for a drive in his vehicle. They stepped out to pick up something at the store. W.C.’s parents trusted her with R.S. He parked in a nearby field, got into the back seat with her, put on a condom and penetrated her vagina with his penis. W.C. remembered it being painful and being uncomfortable and confused, not really knowing what was going on. She lost her virginity to him during this incident. She said it was over very quickly. She did not tell her father because she was the only daughter in a family of boys and thought he would be very upset.

Following that incident, she recalled R.S. making excuses to sleep on the couch at her house. There was an occasion when he snuck up to her bedroom at night. To avoid waking her parents to gain entry he put a ladder up to her window, to gain room to her, to gain access to her room to have sexual intercourse with her. However, they also had sexual intercourse in the basement of her residence on other occasions. In addition, during their relationship W.C. also performed oral sex on R.S. R.S. introduced her to oral sex, she had been previously unaware of it, and had not performed it.

W.C.’s brother, A., discovered his sister and the accused were having sexual intercourse in 1975, 1976, told them he did not approve of it and wanted his sister to move out of the residence.

W.C. was sexually inexperienced and had been a virgin prior to having intercourse with R.S. They continued to regularly engage in sexual activity throughout W.C.’s teenage years. This continued into the late '70s after W.C. obtained age of majority, even after she moved out of her parent's residence. R.S. had a key to her apartment. She only began to realize how inappropriate the relationship was with R.S. as she got older and became more independent at which point their relationship ceased.

Evidence on this motion about the course of the relationship

[8] There was conflicting evidence on this motion about how the relationship progressed and ended. The plaintiff contended that the relationship was entirely secret from her family. The defendant’s affidavit asserted that the parties were openly dating and that the family was aware of this. He stated that after the plaintiff turned 18, they took several international vacations together and visited her parents as a couple.

[9] The defendant also filed an affidavit from the plaintiff’s younger brother C., who would have been approximately 9 years old when the sexual relationship between the parties began. He similarly testified that the family was aware of the relationship and that it was “obvious” that the parties were a couple when they visited his parents after the plaintiff was 18. The plaintiff and C. have been estranged since she told her family in 2018 that she was troubled about her sexual relationship with the defendant and had gone to the police. C. opined that the plaintiff’s current husband had coerced her into starting this action. The plaintiff does not dispute that her husband encouraged her to come forward, but it was clear from C.’s cross-examination that he had no real basis for asserting any coercion and that he had drawn this inference from a combination of the timing of the complaint after the plaintiff’s second marriage and his own apparent dislike of his sister’s second husband.

[10] The cross-examinations of these witnesses substantially clarified the degree of secrecy or openness of the relationship. When discussing the origins of the sexual relationship, the defendant agreed that the plaintiff’s family was not aware of their initial sexual interactions and that he was trying to keep them a secret. Even once it was an ongoing relationship, he testified that he “certainly wasn’t going to tell her mother and father that we were having sex.” However, he inferred that her mother was aware of what was happening because of the way she would refer to him as the plaintiff’s “pal” and other similar “subtle things and nuances” that communicated this awareness. He did not testify to any conversations on the subject with her family nor could he comment on her evidence that her brother A. kicked her out of his residence when he discovered it.

[11] C.’s evidence is of little value. He was very young at the time of the relevant events some 50 years ago and had a poor memory for details. He agreed that nobody in the family talked about a romantic relationship between the parties and that they engaged in no public displays of affection, though he recalled his father making a comment to the effect that it was better for the plaintiff to be with the defendant than with some other random person. He agreed that he had no actual knowledge of whether any members of the family knew there was a sexual relationship in 1974 or 1975. He asserted that at some point all of the cousins knew there was a relationship but was vague about the timing of this.

[12] The plaintiff and defendant have differing recollections about exactly how and when they broke up during the plaintiff’s young adult years, but in my view little turns on these differences. The plaintiff also alleges that the defendant forced her to engage in oral sex at a time when she had never heard of this act, but she does not seek a finding that this took place for the purpose of this motion.

Issues and analysis

The legal principles

The test on a motion for summary judgment

[13] The test to be applied on this motion comes from Hryniak v. Mauldin, 2014 SCC 7, the well-known leading case interpreting 2010 amendments to the Rules of Civil Procedure. In the recent case of Moffitt v. TD Canada Trust, 2023 ONCA 349 at paragraphs 37-41, Brown J.A. summarized the proper approach as follows:

The critical examination of the evidentiary record conducted by a court on a r. 20 motion offers the prospect, but not the certainty, of a final adjudication of a claim or defence on the merits without going to trial. Where a genuine issue requiring a trial exists, the motion will be dismissed and a trial will ensue. Conversely, however, r. 20.04(2)(a) requires that a court “ shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” (Emphasis added).

One of the most significant amendments implemented to r. 20 in 2010 was the expansion of the motion judge’s evidence-weighing and fact-finding powers as part of the assessment of whether a genuine issue requiring a trial exists. Rules 20.04(2.1) and (2.2) describe what are styled as the “enhanced powers” a judge may exercise in determining whether a genuine issue requiring a trial exists:

(2.1) In determining under [r. 20.04(2)(a)] whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

Hryniak described how a judge should apply the amended r. 20. First, Hryniak identified the test, or criteria, a motion judge should apply to ascertain whether, on the evidentiary record, a genuine issue requiring a trial exists. Second, the decision set out the methodology a judge should follow to make such an assessment.

As to the test to be applied, Hryniak stated, at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

As to the methodology a judge must follow when determining whether a genuine issue requiring a trial exists, Hryniak laid out a two-step approach. First, judges should decide if there is a genuine issue requiring trial based only on the evidence before them, without using the enhanced fact-finding powers enumerated in rr. 20.04(2.1) and (2.2). If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under rr. 20.04(2.1) and (2.2). A judge may exercise those powers provided their use is not against the interest of justice. While analytically distinct, as a practical matter these two steps often blend together or follow closely upon each other during the hearing and adjudication of a summary judgment motion.

The elements of the tort of sexual battery

[14] In P.P. v. D.D., 2017 ONCA 180, Rouleau J.A. concisely summarized the tort of sexual battery at paragraphs 71 and 72:

The constituent elements of the tort of "sexual battery" are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was "harmful" or "offensive", but this element is implied (assuming a lack of consent) in the context of a sexual battery: Scalera, at para. 22.

An apparent consent to sexual touching will be invalid if it has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the defendant's conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited: Norberg v. Wynrib, [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, at pp. 246-47 S.C.R.

Is there a genuine issue requiring a trial?

[15] I have concluded that summary judgment is appropriate in this case and that there is no genuine issue requiring a trial.

[16] I agree with the plaintiff that the facts admitted by the defendant in the criminal proceedings, even as supplemented by his affidavit and cross-examination on this application, establish liability for the tort of sexual battery. As discussed further below, I conclude that the essential parts of the defendant’s evidence on this motion as clarified during his cross-examination are not inconsistent with the admissions made before Durno J. and these permit me to make a finding of liability without requiring in-person testimony or having to make complex credibility findings unsuited to a paper record.

[17] I also conclude that the issue of damages can be fairly resolved on the record before me. All the necessary evidence has been led on this motion and requiring a trial of damages would not be the fairest, most proportionate, and most expeditious way to do justice between the parties.

Liability for the tort of sexual assault and battery

[18] I find that, while the relationship between the plaintiff and defendant may have evolved into a truly consensual one as the plaintiff reached adulthood, it was not genuinely consensual at the outset and involved the exploitation of a position of trust. The defendant admitted in his criminal plea that he initiated the sexual activity with the plaintiff. When he did so, she was at most 14 years of age with no sexual experience and the defendant was an adult member of her family more than twice her age. In my view, he stood in a position of trust towards the plaintiff.

[19] A position of trust can exist without any formal relationship of authority where an adult forms a relationship with a child as a family friend: see R. v. Budd, 2007 ONCA 722; R. v. T.R., [1996] O.J. No. 4945 (Gen. Div.); A.B. v. Main, 2023 NSSC 47 at paragraphs 62-69. In the case at bar, the defendant was a much older relative trusted by the entire family to act as a responsible adult to drive the plaintiff, alone or with her siblings, on outings or to school.

[20] Accordingly, I find that any putative consent was not legally effective given their respective ages and the defendant’s position of trust.

[21] In any case, I find that for the most memorable sexual interaction between the parties that was the subject of the most detailed evidence – the first time they had intercourse – there was no apparent consent at all. The defendant admitted in the course of the criminal guilty plea proceedings that, as the plaintiff recalls, she was uncomfortable and confused and did not really know what was going on during this event.

[22] I find that the defendant’s evidence on this motion is not inconsistent with that admission. In cross-examination, the defendant acknowledged that there was no verbal consent from the plaintiff to intercourse or any discussion about it in advance, nor to any of the other sexual activity they had engaged in earlier. While he was “a little light on the verbal communications,” he testified that he believed that all of the sexual activity was consensual because “at no time did she resist” and:

I guess if she was not onside with – on with it, she failed to express -- failed to express her resistance or intolerance of me or didn't like me, at no time did she ever tell me to stop.

[23] The defendant’s apparent view that a lack of resistance or complaint demonstrates consent is plainly wrong. There is no doubt that consent to sexual activity can validly be communicated non-verbally by active participation in the sexual act in question. However, I do not accept that any such consent was communicated in this case. The plaintiff could not meaningfully consent to any act without understanding the nature of what she was consenting to. Her description of her state of mind as “confused” and not understanding what was going on is fundamentally inconsistent with a valid subjective consent. The defendant did not contest the truth of this portion of her evidence in his plea and said nothing in his evidence on this motion that would cause me to doubt its truth.

[24] The defendant’s evidence that he could perceive that his young and sexually inexperienced teenaged cousin was consenting to sexual intercourse because she did not resist or protest provides no defence whatsoever to this action. I accept the plaintiff’s evidence that she felt coerced to take part in this activity. I reject the argument advanced by the defendant that the plaintiff’s acknowledgement that he did not employ physical force to compel sexual activity means that the activity in question was genuinely consensual.

[25] I also place no weight on the evidence of the defendant and the plaintiff’s brother C. that the plaintiff was “mature for her age.” When pressed on this assertion from their affidavits in cross-examination, the defendant primarily relied on the plaintiff’s physical maturity, with the defendant saying that she was “chubby” and could pass for 18. This is not a case where the defendant claims to have been unaware of the plaintiff’s true age; to the contrary, he testified that he was well aware of her age at the time and that he specifically contemplated that she was over 14 and thus in his view legally capable of consenting to sexual intercourse. Accordingly, I fail to see any relevance to evidence of plaintiff’s physical size or development at the time.

[26] When asked about this point in cross-examination, C. testified only that the plaintiff’s first husband and first employer had always said that she was mature for her age. Both persons met her as an adult, albeit a young adult.

[27] The defendant also claimed that the plaintiff seemed “grounded” with “no tee-heeing” but this evidence does not in my view affect the degree to which he was in a position of trust or the validity of her consent to sexual behaviours she had not previously even been familiar with.

[28] The defendant emphasized that the age of consent at the relevant time under the criminal law was 14 years. However, the defendant’s criminal guilty plea constitutes an acknowledgement that his sexual activity with the plaintiff was unlawful at the time. The defendant is bound by the admissions he made to the essential facts of the offence: Lambert et al. v. Lambert, 2022 ONSC 6432. While the guilty plea covered only the sexual relationship when the plaintiff was over 16, the facts read in and admitted on the guilty plea would also make out the then-existing offence of sexual intercourse with a female between 14 and 16 of “previously chaste character.”

[29] The law’s understanding of consent and sexual autonomy have substantially evolved since the events at issue in this action. However, both our contemporary legal principles and the law that existed at the time recognize the defendant’s acts as wrongful and the plaintiff as a victim, even if the values underlying that recognition have changed. The defendant’s claim that this was in some sense a lawful and legitimately consensual sexual relationship from the beginning cannot be accepted and I find him liable for sexual battery.

Damages

General and aggravated damages

[30] Damages may be awarded for battery even without proof of any particular injury and significant aggravated damages are appropriate for coerced sexual assault, including in cases of nominal consent: Norberg v. Wynrib, [1992] 2 S.C.R. 226. Attempting to quantify the psychological damage caused to the plaintiff in general damages is extremely difficult. As MacFarlane J.A. said for the British Columbia Court of Appeal said in S.Y. v. F.G.C., 26 B.C.L.R. (3d) 155:

What is fair and reasonable compensation for general damages, including aggravated damages, in this case is not easy to say. . . To assess damages for the psychological impact of sexual abuse on a particular person is like trying to estimate the depth of the ocean by looking at the surface of the water. The possible consequences of such abuse presently are not capable of critical measurement.

[31] The proper approach was outlined by van Rensburg J.A. in Zando v. Ali, 2018 ONCA 680, adopting Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120:

First, there is the purpose of non-pecuniary damages in sexual assault and battery cases: “to provide solace for the victim's pain and suffering and loss of enjoyment of life, to vindicate the victim's dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts” (B.M.G., at para. 132).

Second, the factors for assessing such damages include: (i) the circumstances of the victim at the time of the events, including the victim’s age and vulnerability; (ii) the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were; (iii) the circumstances of the defendant, including age and whether he or she was in a position of trust; and (iv) the consequences for the victim of the wrongful behaviour including ongoing psychological injuries (B.M.G., at para. 134, citing Blackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58, at para. 89).

Third, in assessing non-pecuniary damages for sexual assault, the court must first consider the important characteristics of the case to define the types of cases that should be considered for comparison purposes in establishing an appropriate range, and then select an amount of damages within that range, based on the features of the particular case (B.M.G., at paras. 136 to 140).

[32] In the trial decision in Zando v. Ali, 2017 ONSC 1289, the range of damages in cases of sexual assault was put as between $144,000 and $290,000. In the subsequent case of MacLeod v. Marshall, 2018 ONSC 5100 (varied 2019 ONCA 842) an amount of $425,000 was awarded in general and aggravated damages. These amounts must also be adjusted for inflation.

[33] The first three factors enumerated in Zando mark this as a serious case of sexual assault. The plaintiff was a young teenager and the defendant was an adult relative more than twice her age who took advantage of his access to her residence and of her sexual inexperience and naivete. The sexual relationship quickly progressed to non-consensual intercourse and continued throughout the plaintiff’s teenage years. I conclude that the fact that it may have evolved at some point into a meaningfully consensual relationship does not change its seriousness or its effects on the plaintiff, and so I need not decide an exact end date of the tortious conduct.

[34] The fourth factor from Zando – the psychological consequences for the plaintiff – was the subject of the most controversy. The plaintiff described the effects of the defendant’s actions on her life and led evidence from a clinical psychologist, Dr. Carol-Anne Hendry, offering an expert opinion on her psychological condition and its relationship with the sexual abuse. The defendant argued that, if liability is found, then no more than nominal damages should be awarded. He advanced a series of arguments challenging her position that she suffered psychological harm from his conduct.

[35] First, the defendant introduced photos of the plaintiff both from the 1970s and on vacations to Italy with her husband and friends shortly before the trial. In cross-examination, it was put to the plaintiff that she took trips with the defendant in the late 1970s as depicted in one photograph and that this is inconsistent with her claims about the relationship having been one she was recognizing as harmful by that time. As best I can discern, the defendant has introduced the photos of Italy vacations in an attempt to say that the plaintiff appearing to enjoy herself (including while apparently drinking alcohol) is inconsistent with her position that she was harmed by the sexual relationship and that these harms included an unhealthy relationship with drinking. This evidence is entirely unhelpful and took up an inordinate amount of time in the plaintiff’s cross-examination. The plaintiff has never claimed that she is incapable of enjoying herself or unable to smile for a camera and the circumstances of her vacation do not in my view undermine any part of her evidence.

[36] Second, the defendant stresses that the plaintiff met with him and his wife as late as 2007 and attended his residence, and did not discuss this incident until she filed a reply affidavit after the defendant had described it. I do not attach any significance to this event. There is nothing surprising or unusual about a victim of sexual misconduct associating with the perpetrator after the fact and courts must not rely on a stereotypical assumption that victims will invariably avoid their abusers: R. v. A.J.R.D., 2018 SCC 6 affirming 2017 ABCA 237. The plaintiff has a continuing family connection with the defendant and her decision to come forward in 2018 caused significant strife in the family. She may have had mixed feelings about the defendant at times. I see no reason to doubt her evidence that she was attempting to be courteous in accepting his invitation to his residence in 2007 at a time long before she chose to report his sexual abuse, nor does this cause me to doubt that she was negatively affected by his actions.

[37] Third, the defendant challenged Dr. Hendry’s opinion on a number of fronts, disputing her qualifications as an expert and arguing that her reliance on the clinical notes of another counsellor who did not testify undermines the admissibility of her evidence.

[38] While I do not accept these arguments, I find that the consequences of the defendant’s actions have been sufficiently described by the plaintiff herself even if I were to place no weight at all on the opinion of Dr. Hendry. I accept the plaintiff’s evidence, outlined in the victim impact statement she filed in the criminal proceedings and in her evidence on this motion, that the defendant’s actions harmed her psychological health and her family relationships and caused ongoing feelings of guilt and shame and difficulties with sexual intimacy. The plaintiff justifiably feels she was deprived of a normal and healthy adolescence.

[39] In assessing all of the factors discussed in Zando, I award $225,000 in general damages and $50,000 in aggravated damages.

Loss of competitive advantage

[40] The plaintiff seeks damages for the career disadvantage suffered as a result of the defendant’s actions. She testified that she struggled with authority figures, especially male authority figures, throughout her life. She argues that this necessarily would have impacted her vocational potential and argues that she should receive compensation for the employment opportunities she may have received throughout her life but for the trust issues and harm to her confidence that flowed from the defendant’s sexual abuse.

[41] In her report, Dr. Hendry reported that she had been asked to consider the degree to which the plaintiff’s career trajectory may have been affected by the abuse. She found that “it can be hypothesized” that the plaintiff’s potential in her work roles might have been affected by trauma and its effects on her personality but concluded that the degree of this was “unclear” and fell outside the scope of the assessment.

[42] I cannot say on this record that there is a real and substantial possibility that the plaintiff suffered economic loss from the defendant’s actions, the standard applicable to this issue: MacLeod at para 17-18. I accept the defendant’s argument that the plaintiff has had a successful work life in administrative roles and as an executive assistant. She left this career for many years after marrying her first husband, who had his own very successful career and four children from a previous marriage, in order to take care of the household and to assist in the care for his youngest son. After his death, she returned to work and was earning as much as $93,000 before her retirement. Her retirement itself was prompted by her second husband’s cancer diagnosis and not by any lingering psychological effects of the defendant’s actions. She appears to have lived in relative financial comfort by the standards of her family, which her brother made clear was one reason for his disapproval of this lawsuit.

[43] It is understandable that the plaintiff feels that her life choices may have been limited by the psychological effects of the wrongful relationship with the defendant, and that she may wonder what life she would have led with a normal adolescence not dominated by a secret sexual relationship with an adult relative. Nonetheless, I cannot find on this record that she was harmed economically through a loss of career advantage by the defendant’s actions.

Damages for future therapy

[44] The plaintiff seeks $14,400 for a course of future therapy recommended by Dr. Hendry. I agree that this amount is appropriate and am not persuaded by the defendant’s submission that the plaintiff’s failure to have started this therapy earlier casts doubt on the sincerity of her claim that she intends to undertake it.

Punitive damages

[45] The Ontario Victims’ Bill of Rights provides that a court may impose punitive damages even where the defendant has been subject to punishment through criminal proceedings, though it directs courts to consider the criminal sentence imposed when making this determination. I have carefully considered whether imposing punitive damages would be appropriate in this case given that the criminal proceedings ended in a negotiated guilty plea to a single count for a relatively lenient sentence, but I would not do so in the circumstances.

[46] While the plaintiff notes correctly that the plea of guilt did not cover sexual activity before she was 16, the facts read in to support the plea did include this time period and the sentence imposed must be taken to have reflected those facts. The leniency of the sentence imposed also flowed from the age and health conditions of the defendant, the plea of guilt and acceptance of responsibility, and the pandemic conditions in play at the time. I appreciate the plaintiff’s submission that the defendant’s refusal to admit liability in this proceeding could be seen to be effectively retracting his admissions before Durno J., but I do not read his evidence as resiling from anything said in that proceeding. Instead, the defendant has contested the legal effect of those admissions in the tort context. While this may have consequences for a cost order in these proceedings given that I have rejected his position, I would not impose punitive damages in view of the criminal sentence that has already been served.

Disposition

[47] I grant summary judgment to the plaintiff and award $289,400 in damages. If the parties cannot agree on costs, the plaintiff may make brief costs submissions within two weeks of the date of this judgment and the defendant shall have two further weeks to respond.

Dineen J. Released: June 21, 2023