COURT FILE NO.: CV-18-7619 DATE: 2023-10-13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rachelle Miron Plaintiff – and – Robson Miron Defendant

Rachelle Miron, on her own behalf James M. Longstreet, for the Defendant

HEARD: September 11, 12, 13, 14, 2023

REASONS FOR JUDGMENT

Boucher J.

Introduction

[1] The plaintiff alleges the defendant physically assaulted her. She seeks $250,000 in damages for personal injuries she alleges she sustained because of the assault. The defendant denies the assault and the damages and counterclaims for $200,000. He claims general and punitive damages from the plaintiff for falsely accusing him of the physical assault.

[2] The claim and counterclaim were heard together over a four-day in-person trial.

Background

[3] The parties are siblings. In 2016 their father, Richard Miron, was moved into a retirement home. At that time, the defendant was Richard Miron’s attorney for property and personal care pursuant to a continuing power of attorney dated June 21, 2016.

[4] In early July 2016, the plaintiff borrowed $60,000 from Richard Miron. The morning of July 08, 2016, the plaintiff visited her father at his room in the retirement home. She was accompanied by her friend Charles Tardif. The defendant attended the room as well and a dispute ensued about a paper relating to the loan that the plaintiff held in her hand. I will review the details of what transpired later in these reasons.

[5] The defendant ripped several pieces of the paper from the plaintiff’s hand. The plaintiff left the room and returned home. She called the police. Two days after the incident she attended at the emergency department of the hospital. She was released later that day.

[6] The defendant was charged with assault on July 10, 2016. The charge was withdrawn on September 14, 2016, after he entered into a recognisance to keep the peace pursuant to s. 810 of the Criminal Code of Canada.

Issues

[7] Although framed as an assault in her pleadings, the plaintiff’s claim, and the evidence she presented in support of it, allege the tort of battery. The question then is whether the defendant committed the tort of battery upon the plaintiff, and if so, what, if any, damages flow from that tort.

[8] Although the defendant does not plead a specific tort in his counterclaim, he claims the plaintiff caused him substantial grief and tried to financially ruin him by contacting the police (which resulted in the assault charge) and by pursuing this proceeding. He also claims the plaintiff “put into fruition” a plan to physically assault him. The counterclaim and the evidence presented in support of it allege the torts of malicious prosecution, intentional infliction of mental suffering and assault. The question then is whether the defendant’s counterclaim has been made out, and, if so, whether any damages flow from the plaintiff’s behaviour.

The Law

[9] The following excerpt from Justice Linden’s Canadian Tort Law summarizes the law of battery (at pp 46-48):

Traditionally, battery has included any non-consensual contact beyond the trivial contact that is expected in the course of ordinary life…In Non-Marine Underwriters, Lloyd’s of London v. Scalera, the Supreme Court of Canada defined battery as requiring ‘contact plus’ something else that distinguished the contact in question from the ‘ordinary conduct of daily life.’ The nature of that ‘something else’ was defined further in Figueiras v. Toronto (City) Police Services Board as ‘something about the contact that renders the contact either physically harmful or offensive to a reasonable person’s sense of dignity.’

It is not necessary that the skin of the plaintiff be touched.

[10] Battery includes intentionally slapping a cell phone out of someone’s hand: R.T. v. Lowe, 2021 BCSC 590 at para 48.

[11] Concerning malicious prosecution, the Supreme Court set out in Nelles v. Ontario at para 193 the elements required:

a. The proceedings must have been initiated by the defendant; b. The proceedings must have been terminated in favour of the plaintiff; c. The absence of reasonable and probable cause; and d. Malice, or a primary purpose other than that of carrying the law into effect.

[12] About intentional infliction of mental suffering, the Ontario Court of Appeal set out in Prinzo v. Baycrest Centre for Geriatric Care at para 48 the elements required:

a. Flagrant or outrageous conduct; b. Calculated to produce harm; and c. Resulting in a visible and provable illness.

[13] With respect to assault, the Ontario Court of Appeal confirmed in Barker v. Barker, 2022 ONCA 567 at para 138 the tort consists of “intentionally causing another to fear imminent contact of a harmful or offensive nature.”

Analysis

Did the defendant commit a battery on the plaintiff?

[14] Four people were present in Richard Morin’s room on the day in question: the plaintiff, the defendant, Charles Tardif, and Richard Morin, who has since passed away.

[15] The plaintiff testified that on the morning in question she went to see her father to bring him a cheesecake and to show him a document she prepared in relation to the money she had borrowed from him. Her father was laying down and she sat on his bed. She stated that the defendant asked to see the paper and she refused and then suddenly the defendant was upon her, punched her in the head, put her in a headlock, and ripped half the paper out of her hand. He then returned and forced her hand open and took the rest of the paper. She testified that at that point the defendant became upset because the loan was sixty-thousand dollars and yelled about this. She said goodbye to her father and went home.

[16] Charles Tardif testified for the plaintiff. He said that while he was putting the cheesecake in the mini fridge in Richard Morin’s room, the defendant entered and was upset. He asked the plaintiff for the paper in her hand and when she refused, he put her in a headlock. He believed the defendant hit her in the side of the head because he saw her head move to the side. He said the defendant obtained half the paper and then went back for the second piece, forcing the plaintiff’s hand open. Afterwards the defendant yelled “sixty-thousand dollars” several times and jumped around the room like he had just won a boxing match.

[17] The defendant testified that he was sitting on a pink ottoman next to his father’s bed when the plaintiff tried to show their father the paper in her hand. He felt that because he was acting under a continuing power of attorney, he would take the paper and explain it to his father. He denied attacking the plaintiff in the way described by the plaintiff and Charles Tardif. He testified that he grabbed the paper in the plaintiff’s hand and pulled on it, tearing a piece from her hand. He grabbed the remining piece in her hand and the parties moved back and forth in a tug-of-war type action until the paper tore and he obtained another piece. When the second piece broke away the plaintiff fell backward on the bed into their father, who then got up from his bed. This ended the incident and the plaintiff left with Charles Tardif.

[18] I find that Charles Tardif’s evidence is of no assistance to me in determining this issue. First, he acknowledged in cross-examination that he is good friends with the plaintiff and that he had discussed the incident with her the day before he testified. Second, he violated the witness exclusion order I made at the outset of this proceeding. I learned after a recess, and while he was still testifying, that he had attempted to speak with the plaintiff during the break. He was reminded of the exclusion order at that time. At the end of his evidence, I reminded him of the order and told him not to discuss his evidence with any other witnesses until the matter was completed in its entirety.

[19] During the plaintiff’s cross-examination on the second day of trial, she confirmed Charles Tardif spoke with her after he had completed his testimony. Specifically, he tried to explain to her why he had not seen bruising on some of the photographs that were put to him in cross-examination, saying they were in black and white. I denied the plaintiff’s request to have him return to testify on this point and noted that the exhibits he was shown were in colour. His violation of my exclusion order despite my reminder is very concerning. Coupled with his discussions with the plaintiff the day before the trial started, I find his independence and credibility are diminished to the point that his evidence is of no assistance to me.

[20] I also reject the plaintiff’s evidence about the alleged headlock and punch to her head.

[21] First, she and Charles Tardif spoke about their evidence at least the day before the trial started and while she was testifying, despite several explanations by me about the exclusion order. She was self-represented at trial, and I accordingly explained the importance of and reason for the exclusion order. The flagrant violation of the order is concerning.

[22] I also find the plaintiff’s behaviour in cross-examination was problematic, displaying a carelessness for the truth. For example, she was quick to deny points put to her in cross-examination, rather than to take a moment to consider them. In one instance she denied having asked the Crown to extend the defendant’s recognisance to keep the peace. When her handwritten letter requesting a further peace bond (which was included in her affidavit of documents) was shown to her, she said if that is her handwriting then she wrote it. She initially described wanting the extension because she claimed the defendant harassed her, then testified that it was because he prevented her, through no trespass letters, from attending at her father’s room. She concluded her evidence on this point by agreeing she wanted another peace bond to keep him away from her.

[23] In addition, the plaintiff often rambled on at length during cross-examination, avoiding the questions put to her and trying to instead get a preferred narrative before the court. This continued despite reminders to answer the questions.

[24] However, while I reject the plaintiff’s evidence about the headlock and the punch to her head, I accept that she refused to give the paper to the defendant, resulting in the tug-of-war he described.

[25] This evidence and the defendant’s testimony make out the tort of battery. The defendant may not have been happy about his father’s loan to the plaintiff, but he had no authority to forcefully grab the paper from her hand twice. He engaged in a tug-of-war with her while she was seated next to their father. During his evidence he physically demonstrated this back and forth motion. The strength used was enough, on his evidence, for the plaintiff to fall backward onto their father on the bed when the paper tore the second time.

[26] The defendant’s physical contact with the plaintiff in these circumstances constituted a violation of the reasonable person’s sense of dignity, as described in Figueiras. The intentional tort of battery is accordingly made out.

What damages, if any, did the plaintiff suffer?

[27] I note at the outset that the plaintiff suffers from a meningioma, or tumor in her brain. Part of it was removed in 2003, resulting in paralysis on the left side of her body. That paralysis has improved but she remains reliant on a walker and is unable to use her left arm. By 2012 the plaintiff’s tumor had grown, resulting in further surgery. Due to its location, the surgeon was unable to completely remove it. As I will detail later, it is monitored by her specialist.

[28] Colour photographs of the plaintiff were entered in evidence. The plaintiff testified they were taken in the days after the incident. Edgar Carriere, who took some photos of the plaintiff, testified that most of the photos that were filed were taken in 2014 when the plaintiff tripped and fell over a telephone line. He testified in cross-examination that the photo of an arm showing a small bruise was taken by him in July 2016, which he maintained in re-examination.

[29] There were also suggestions from the defendant that the plaintiff tampered with the photos, adding dates and times to them after the fact. In support of this position, he pointed out that one set of photos do not have lettering on them, whereas similar photos in another exhibit show dates and times. The plaintiff’s evidence was that the dates and times were from her camera.

[30] I have carefully reviewed the photographs filed and conclude the dispute about the dates and times is moot. The photos are otherwise very similar, and I see no significant difference between the two exhibits. What is more important is that other than the small bruise seen on an arm, the rest of the photos do not establish the bruising and swelling the plaintiff alleges.

[31] Add to this the fact that no bruising or swelling or redness was noted by the medical staff when the plaintiff attended at the emergency room. In addition, they conducted a CT scan and compared it to one from 2013 and no changes or new abnormalities were noted. She was provided with morphine for her self-reported pain and was discharged the same day.

[32] The plaintiff alleges the incident caused her pre-existing condition to worsen. Her evidence is that her balance has been off, she has blurred vision in one eye, she suffers pain in her left shoulder and lower back, she needs a walker and is often dizzy.

[33] The allegation that her meningioma worsened because of the incident is not supported by the evidence. On July 16, 2015, her specialist reported that the tumor was stable. On June 01, 2017, about a year after the incident, her specialist reported that an MRI showed no change in the tumour.

[34] Joseph Gaudreau, an Osteopath, testified for the plaintiff. He testified that he started treating her after a car accident. Although he prepared a report that said the accident was in 2015 and that she had recovered well with his therapy, his clinical notes and records indicate the accident was in April 2016. When questioned about this discrepancy Mr. Gaudreau unfortunately became quite upset. He had warned me at the outset of his testimony that he has mental health concerns and that his anxiety and anger were quite elevated due to the stress of testifying. His clinical notes are quite detailed and were taken at the time of treatment. I accept them as setting out the accurate date of the motor vehicle accident. He further testified that he treated her after the incident and felt something was off in her head and recommended that she see a specialist. No issue was identified by the CT scan.

[35] Celeste Miron and Charmaine Miron, the sisters of the parties, testified on behalf of the defendant. They spoke about helping the plaintiff after the surgeries on her meningioma and after her car accident in 2016. This included cleaning, doing laundry, and cooking meals. I take it that this evidence was offered to detail the plaintiff’s pre-existing limitations. For reasons I will explain, I am unable to give any weight to their evidence.

[36] Both these witnesses displayed a clear animus toward the plaintiff, despite my efforts to ensure civility in the courtroom. Further, Celeste Miron testified that she saw the plaintiff after the incident with her brother and she did not see any bruising. In cross-examination, she said that she saw the plaintiff when she drove by her house in her van. She slowed down, saw the plaintiff outside her door and did not see any bruising. Testifying that she could not see any bruising on the plaintiff from her van, when the plaintiff was wearing a sweater, demonstrates the lengths this witness would go to support the defendant’s case.

[37] Charmaine Miron had difficulty expressing herself and remembering details throughout her testimony. She began her evidence by saying that she was “right out of it” when she could not identify where she currently lives. Her evidence is simply not reliable enough for me to give it any weight.

[38] To conclude, in the absence of medical evidence linking the plaintiff’s current complaints to the defendant’s conduct, I am unable to determine if her complaints are due to pre-existing injuries caused, for example, in the car accident or linked to her meningioma. I am therefore unable to find any injuries that endured much beyond her trip to the emergency room on July 10, 2023. The only treatment prescribed at that time was pain medication, and she was encouraged to follow up with her family doctor and specialists.

[39] In her submissions the plaintiff sought $250,000 in damages, though she provided no caselaw to support her position. Her statement of claim seeks the following: general damages ($150,000), special damages ($100,000) and punitive damages ($100,000). No evidence was led by the plaintiff to establish special damages. General or non-pecuniary damages resulting from bodily injury are capped at $100,000: Robinson c. Films Cinar Inc., 2013 SCC 73, at para 95. In Robinson, the Supreme Court defined non-pecuniary damages as covering “loss of enjoyment of life, esthetic prejudice, physical and psychological pain and suffering, inconvenience, loss of amenities, and sexual prejudice” (para 95).

[40] Punitive damages, which are separate from aggravated damages, are meant to make an example of the tortfeasor and to deter others from engaging in the same type of conduct: Norberg v. Wynrib, [1992] 2 S.C.R. 266 (SCC) at para 54. Aggravated damages are not a separate head but rather must be considered in determining general non-pecuniary damages. They are meant to address “humiliating, oppressive and malicious aspects of the defendant’s conduct which aggravate the plaintiff’s suffering”: W.(T.) v. Seo at para 69.

[41] In this case, the plaintiff has failed to establish any behaviour on the part of the defendant that would attract punitive or aggravated damages. This incident involved starting a tug-of-war over a piece of paper. It resulted in rocking back and forth while sitting, with the plaintiff falling back on the bed when the paper ripped. The incident was very brief, and the only witnesses were the parties, their father and Charles Tardif.

[42] I conclude that nominal non-pecuniary damages of $750.00 are appropriate in the circumstances of this case. In arriving at this amount, I have considered the age of the plaintiff, the fact she has physical limitations, the brief nature of the battery, the minimal physical intrusion upon the plaintiff, and the fact the plaintiff was prescribed morphine for pain a few days later.

Has the defendant’s counterclaim been made out?

Assault

[43] The defendant testified that he believed the plaintiff sent her son and his friend after him to beat him up because of what happened in his father’s room. He described an incident where his nephew and his friend followed him in their motor vehicle. The friend got out of the car and accused him of being a woman beater, swinging his fists around but not striking him.

[44] Assuming, without deciding, that this conduct was the tort of assault, there is no evidence linking the behaviour to the plaintiff. For example, there is no evidence to suggest the plaintiff enlisted her son and his friend to engage in this behaviour. It cannot therefore succeed.

Malicious Prosecution

[45] I also find the tort of malicious prosecution has not been established. The third element – the absence of reasonable and probable cause – cannot be made out given my finding that a battery took place. There was necessarily reasonable and probable cause for the plaintiff’s complaint to the police.

[46] That alone disposes of the matter. However, the defendant is also unable to meet the fourth element – malice, or a primary purpose other than carrying the law into effect. The plaintiff reported the incident to police. The defendant was charged and was issued an appearance notice, one of the least intrusive ways to institute criminal proceedings. He was not subject to conditions. The case was resolved within two months by way of a recognisance for twelve months that he agreed to sign. The conditions of the recognisance were not onerous.

Intentional Infliction of Mental Suffering

[47] The defendant also testified that the plaintiff’s behaviour regarding their father (having to send no-trespass letters, for example) and these proceedings and the criminal proceedings have caused him undue stress. I understand this to be an allegation of intentional infliction of mental suffering, which is not borne out by the evidence.

[48] The defendant feels some of his siblings have taken sides against him. The stress has impacted his marriage, which his wife confirmed. He had therapy to help in 2014 and 2018 and for a brief time in 2018 he took some medication but did not like the way it made him feel so he stopped. He and his wife talk about leaving Sudbury to get away from the stress. He also testified that he sold a building at a loss.

[49] The defendant became emotional when he described these stressors and difficulties and I accept that he has been under stress. However, he identified other stressors in his life, including difficult residential tenants in his buildings, and looking after his father’s home. I note as well he attended therapy in 2014, prior to the incident with the plaintiff. He no longer plays in a band but enjoys playing music and singing in retirement homes.

[50] I have no evidence that the plaintiff intended by her conduct to cause the defendant mental suffering. The plaintiff’s behaviour, while causing difficulties for the defendant, does not rise to the level required to satisfy the test for intentional infliction of mental suffering. It cannot be said that the plaintiff’s conduct was flagrant, outrageous, and calculated to produce harm. The counterclaim must therefore fail.

Conclusion

[51] For these reasons, I find the defendant committed an intentional battery upon the plaintiff on July 08, 2016. I assess her nominal non-pecuniary damages at $750.00. Her claims for special and punitive damages are dismissed.

[52] The defendant’s counterclaim is dismissed.

[53] If the parties cannot agree on costs, they can contact the Trial Coordinator within 14 days of this decision to schedule a date and time for submissions on costs.

The Honourable Mr. Justice P.J. Boucher

Released: October 13, 2023