Court File and Parties
Court File No.: CV-18-279 (Kingston) Date: 2024-05-21 Superior Court of Justice - Ontario
Re: Jane Elizabeth Pichie, Plaintiff And: Derrick Pichie, Defendant
Before: Mr. Justice Graeme Mew
Counsel: Joseph Dart and Rachel Law, for the Plaintiff Derrick Pichie (defendant in default), did not participate
Heard: In writing, at Kingston
Endorsement (Motion for Judgment on Unliquidated Claim)
[1] At all material times the parties were married to each other. They separated on 11 October 2016.
[2] Prior to their separation, the defendant assaulted the plaintiff multiple times. His verbal and physical abuse culminated in a significant attack on 16 September 2016. This incident resulted in the defendant pleading guilty to assaulting the plaintiff, contrary to s. 266 of the Criminal Code.
Procedural History
[3] The plaintiff commenced this action on 5 September 2018, claiming damages for the physical and psychological injuries resulting from the defendant’s violent and abusive conduct.
[4] The defendant was served with the statement of claim on 19 December 2018. He did not respond, despite follow-up correspondence from the plaintiff’s lawyers advising him of the consequences of not doing so. He was subsequently noted in default on 14 February 2019.
[5] The matter came before me on 17 November 2023 at civil trial management court. In my endorsement of 20 November 2023, I directed the plaintiff to deliver the evidence relied upon by her in support of her claim in writing. I indicated that it would also assist the court to have a factum and any authorities and comparables that the plaintiff wishes the court to consider in awarding damages, as well as a bill of costs. I also directed that despite the defendant being in default, the motion materials should be served on the defendant. My endorsement continued:
The court will either grant judgment based on the written record and submissions without holding an oral hearing or, if the court deems it appropriate to do so, direct that a hearing should take place prior to rendering judgment.
[6] The defendant was served with the motion record, factum and book of authorities by registered mail on 29 February 2024.
Facts
[7] As a result of the defendant being noted in default, he is deemed to admit the truth of the allegations made against him in the statement of claim.
[8] The evidentiary record before the court consists of affidavits from the plaintiff, from her family physician, Dr. Nancy Reid, and from a law clerk employed by the plaintiff’s solicitors, to which is appended the plaintiff’s clinical notes and records and her OHIP summary.
[9] The plaintiff’s evidence is that she and the defendant were married on 30 April 2005. During the course of their relationship, the defendant assaulted the plaintiff physically, emotionally, verbally and financially many times. His assaults were often fueled by jealousy and included numerous pushes and shoves during arguments, in addition to verbal abuse.
[10] Towards the end of 2015, the plaintiff and the defendant had an argument before bed. When the plaintiff woke in the morning, she went to the kitchen for a glass of water. The defendant rushed into the kitchen, threw the plaintiff’s pillows on the floor, and told her she would be sleeping alone. When the plaintiff bent to pick up the pillows, the defendant grabbed her and threw her to the floor, forcing her to slide six to seven feet across the room and slam into the wall, causing the plaintiff to injure her right shoulder, hand and hip.
[11] On 16 September 2016, the defendant got drunk and fell asleep. The plaintiff had gone out. When she returned home, the defendant became verbally abusive. The plaintiff went into the shower. The defendant came into the bathroom, forcibly grabbing her and dragging her out of the shower by her arms. He dragged her through the house and threatened to throw her naked out into the street. During the struggle to escape the assault, the defendant landed on top of the plaintiff. When she screamed for 911, the defendant told her that she would be nothing but a rat, and that no one would believe her. He continued verbally assaulting her and then shoved her into the floor before eventually relenting and going to bed.
[12] On 11 October 2016, with support from her friends, the plaintiff moved out of the matrimonial home while the defendant was at work. She went to the police on 2 February 2017, following which the defendant was charged with assault.
[13] The plaintiff says that she remains fearful and anxious. She eventually felt that she had no choice but to leave Canada for fear of retaliation against her by the defendant and/or his family.
[14] On 13 June 2017, the defendant pleaded guilty to assaulting the plaintiff. He was given a suspended sentence and twelve months’ probation.
[15] As a result of the assaults, the plaintiff suffered a tear to her shoulder. She has and continues to suffer from chronic pain, particularly in the shoulder, which has been diagnosed as frozen shoulder. She also has and continues to suffer from lasting psychological impairments. These permeate all aspects of her life and prevent her from working physically demanding jobs.
[16] Section 3 of the Victims’ Bill of Rights, 1995, S.O. 1995, c. 6, provides that a person convicted of, inter alia, assault, is liable in damages to the victim of the crime for emotional distress and bodily harm resulting from the distress, arising from the commission of the crime. Subsection 2 contains the presumption that a victim of an assault who is a spouse shall be presumed to have suffered emotional distress.
[17] By virtue of the defendant’s conviction for assault, the plaintiff is presumed to have suffered emotional distress. Furthermore, as a matter of common law, the plaintiff is entitled to damages for physical injuries that she has suffered. Additionally, in cases of domestic violence, courts frequently award aggravated and/or punitive damages.
[18] The clinical notes and records include a report dated 17 July 2017 from Dr. Mike O’Connor of Kingston Orthopaedic Pain Institute who diagnosed a supraspinatus-rotator cuff tear, noting that as a consequence of the plaintiff’s ongoing pain, “she has a fairly significant adhesive capsulitis with probably only 20% range of motion”. Dr. O’Connor described the plaintiff’s degree of pain as “quite extensive and she was palpably uncomfortable and was particularly tender on supraspinatus testing and internal rotation”. She was provided with an intra-articular injection of Depo Medrol, with the goal of producing and enabling greater range of motion.
[19] A clinical note from Dr. Davide Bardana, orthopaedic surgeon, recorded that the plaintiff’s pain had resolved following the injection given by Dr. O’Connor, but that the shoulder remained bothersome with reduced range of motion in almost all directions. Dr. Bardana concluded that the plaintiff likely had a frozen shoulder. She was given physiotherapy and provided with exercises to do at home.
[20] A follow-up by Dr. Bardana on 14 November 2017 noted improved range of motion but a continuation of pain associated with overhead activities. The plaintiff had, by then, apparently returned to work as a hairdresser and continued to clean homes as well.
[21] During a further consultation with Dr. Bardana on 1 May 2018, surgical options were discussed. Manipulation of the shoulder was one option, but Dr. Bardana warned that it might not improve her pain and could possibly make things worse. As a result, Ms. Pichie decided against having any surgery.
[22] The matrimonial home was sold in September 2018. The plaintiff subsequently moved to Florida and is now remarried.
[23] The plaintiff currently works as a house cleaner. However, for several years following the assaults, she was unable to work in any significant way.
[24] An OHIP subrogated claim advanced on behalf of the Ministry of Health amounts to $3,885.76.
Damages
[25] On behalf of the plaintiff it is suggested that damages should be awarded as follows:
General damages: $75,000 Aggravated damages: $25,000 Damages for lost earning capacity: $15,000 OHIP subrogated claim: $3,885.76
[26] In addition to damages, the plaintiff claims pre-judgment interest on general damages at a rate of 5% from 16 September 2016 to the date of judgment, and costs of $17,319.09 on a substantial indemnity basis, or $12,252.74 on a partial indemnity basis.
[27] In support of these amounts, the plaintiff has provided a number of comparable cases in which damages for similar shoulder injuries, adjusted for inflation, have been assessed in the range of $40,112.95 to $83,859.01.
[28] As the plaintiff’s factum succinctly states, the assaults which the plaintiff suffered were more than just a shoulder injury sustained in a slip and fall. She suffered ongoing abuse at the hands of her then husband. The abuse was emotional, physical, psychological and financial.
[29] In Lawson v. Costco, 2010 ONSC 360, a 69-year-old female plaintiff who suffered a frozen shoulder following a slip and fall was awarded general damages of $30,000 ($40,112.95 in 2023 dollars). Taking into account that, in the present case, not only did the plaintiff suffer a physical injury to her shoulder, but she also suffered extensive psychological and emotional injury as a result of the defendant’s conduct, I have no difficulty in accepting the figure of $75,000 as a global assessment of her non-pecuniary general damages.
[30] As the plaintiff submits, courts have become increasingly willing to award aggravated damages in cases of spousal and intimate partner abuse. In Ahluwalia v. Ahluwalia, 2023 ONCA 476, the Court of Appeal upheld an award of $50,000 in aggravated damages related to the “overall pattern of coercion and control and clear breach of trust” of the defendant. The Court of Appeal noted, at para. 128, that while the quantum awarded by the trial judge was higher than had been typical in previous jurisprudence, “the higher damage award reflects an emerging understanding of the evils of intimate partner violence and its harms”.
[31] In Ahluwalia, the husband punched and slapped his wife, causing extensive bruising on her arms and body. On another occasion, he slapped her, grabbing her by the neck, pulling her hair and strangling her. In a third incident, the husband became drunk, restrained the wife by her wrists, shook her by the upper arms, and slapped her across the side of the head. There was also a pattern of conditioning and control.
[32] The abuse in Ahluwalia was of a greater duration and intensity than that described by the plaintiff. Nevertheless, the psychological effects of the defendant’s abuse were sufficient for the plaintiff to feel that she was no longer safe remaining in Ontario.
[33] I accept the suggested figure of $25,000 for aggravated damages as appropriate.
[34] At the time of the plaintiff’s separation from the defendant, she had just started a business, self-employed, as a cleaner. She had previously worked as a hairdresser. After moving to Florida, she was not legally able to work until 2020. She got a job working for a salon product distributor, making approximately $15,600 USD per year. However, the physical requirements of the job were too much for the plaintiff, and she left that position.
[35] In July 2021, after a period of volunteering, the plaintiff was hired as an animal care specialist at Animal Welfare League. She works an average of twenty hours a week earning twelve dollars per hour, which amounts to approximately $10,000 USD per year. Since October 2023, she has also started doing some housecleaning work.
[36] The plaintiff argues that but for her injuries, she could have continued working for the salon product distributor, earning more than she is in her current role.
[37] As the plaintiff acknowledges in her factum, dollar-for-dollar loss is difficult to quantify. In the circumstances, it is submitted that an award for loss of competitive advantage is appropriate. This was the approach taken by Blishen J. in Shaw v. Brunelle, 2012 ONSC 590, in which an award of $25,000 for loss of competitive advantage was made to a plaintiff who had suffered a severe injury to her dominant wrist. This was deemed to have caused a loss of competitive advantage which could have some impact on the plaintiff’s future employability.
[38] The plaintiff’s injuries and their impact on her employability appear to be less serious than those in Shaw. I therefore accept the suggested figure of $15,000 for loss of competitive advantage as reasonable in all of the circumstances.
[39] In addition to the foregoing, the plaintiff is entitled to recover $2,885.76 in respect of the OHIP subrogated claim, as well as interest on general damages at 5% per annum running from 16 September 2016 to the date of this decision (2,804 days for a total of $28,808.22).
[40] The plaintiff has submitted a costs outline indicating that a total of 55.4 hours of fee earners’ work has been performed in bringing this matter to resolution. That work has been appropriately distributed between senior counsel, an associate and a law clerk. Total fees incurred on a full indemnity basis are $16,812.50. Assessable disbursements total $2,180.84.
[41] Although the usual practice is to award costs on a partial indemnity scale, the court has the discretion to award substantial indemnity costs where the losing party has engaged in behaviour worthy of sanction.
[42] In many of the cases involving substantial indemnity costs, the manner in which the losing party has conducted the litigation is a significant factor.
[43] In the present case, reprehensible as the conduct of the defendant has been, as reflected in the award of damages that I have made, he did not participate in the litigation and therefore had no impact on the course of the litigation.
[44] Costs should therefore be awarded on a partial indemnity scale.
Disposition
[45] Judgment shall go ordering the defendant to pay the following amounts:
General damages: $75,000 Aggravated damages: $25,000 Damages for loss of earning capacity: $15,000 OHIP subrogated claim: $2,885.76 Pre-judgment interest: $28,808.22 Costs: $12,252.74 Total: $158,946.72