Court File and Parties

Court File No.: CV-23-91241 Date: 2024/10/11 Ontario Superior Court of Justice

Between: Leanne Aubin, Plaintiff – and – James Bowie, Defendant

Counsel: Christine Johnson, counsel for the plaintiff In default, for the defendant

Heard: January 10, 2024

Reasons for Judgment

Justice H. J. Williams

Overview

1The defendant was, briefly, the plaintiff’s criminal defence lawyer.

2This is a motion for default judgment.

3The plaintiff seeks damages for breach of fiduciary duty, breaches of the Human Rights Code, R.S.O. 1990, c. H.19 (or the “Code”) and defamation. She also seeks punitive damages.

4Where a defendant has been noted in default, the plaintiff may bring a motion for judgment, based on the statement of claim. A defendant who has been noted in default is deemed to admit all of the factual allegations in the statement of claim. The judge hearing the motion must decide whether the facts in the statement of claim entitle the plaintiff to judgment and, if so, assess damages based on those facts and any affidavit evidence filed by the plaintiff: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 19.

5In this case, the defendant was noted in default twice. He brought a motion to set aside the first noting in default, which I granted. When he did not then file a statement of defence, the plaintiff noted him in default a second time.

The Facts

6In late May 2022, the plaintiff was charged with assault with a weapon after she threw a plastic beer pitcher at a man in a bar. The plaintiff had not been charged with a crime before. She did not know what was involved and was worried about the impact a conviction might have on her job as a personal support worker and the custody arrangements she had for her son.

7On June 1, 2022, the plaintiff contacted the defendant, who was recommended to her by an acquaintance. The defendant said that he would require a retainer of $4,000. The plaintiff was worried about money and decided to attend her first court appearance without the defendant’s assistance. She was granted an adjournment. She then applied for Legal Aid assistance and was denied.

8In August 2022, the plaintiff contacted the defendant again and asked if he would consider a payment plan. He said that he would.

9The defendant encouraged the plaintiff to use Snapchat to communicate with him in the future. Snapchat is a messaging app which automatically deletes messages 24 hours after they have been viewed. The plaintiff and the defendant began communicating through Snapchat.

10Within a few weeks, the defendant proposed that he would provide the plaintiff with legal services in exchange for oral sex every two weeks. The plaintiff said that she was not interested in having a sexual relationship with him. She offered to pay him $200 every two weeks for 24 months.

11Throughout August 2022, the defendant continued to suggest, via Snapchat, the exchange of legal and sexual services. He sent the plaintiff a photograph of his penis. He invited the plaintiff to his home to consume alcohol and drugs. He asked the plaintiff if she found him attractive and told her he was propositioning her. He said he found the idea of trading oral sex for legal services to be “hot.”

12The defendant told the plaintiff not to tell anyone about their Snapchat communications and said that if she did, she could jeopardize the defence to her criminal charge. He also told the plaintiff that he knew the Crown Attorney assigned to her case and hinted that this could help him arrange for the charge against her to be dismissed.

13In late August 2022, the plaintiff told the defendant that she was in extreme mental distress and was having suicidal thoughts. The defendant suggested that the plaintiff could reduce her stress by consuming alcohol and drugs with him and having sex with him.

14In September 2022, the plaintiff told a police officer the defendant was harassing her. The officer suggested that she report the defendant’s conduct and retain a new lawyer.

15The plaintiff retained a new lawyer, who promptly filed a complaint against the defendant with the Law Society of Ontario (LSO). Within two weeks, the plaintiff’s new lawyer arranged to have the charge against the plaintiff dismissed.

16On November 29, 2022, the media reported on the plaintiff’s complaint to the LSO. That same day, the defendant posted a tweet on Twitter (now X) that said, “[i]t’s fake.” That evening, the defendant hosted a chat on a social media platform called Discord in which he talked about the plaintiff and her complaint.

17During the chat, the defendant identified the plaintiff by name. The defendant talked about the charge against the plaintiff and said he had arranged to have it withdrawn. The defendant said the plaintiff had agreed to pay his bill over time. The defendant suggested the plaintiff had made up the substance of her LSO complaint in order to avoid paying his legal bill. The defendant disclosed personal information about the plaintiff. The defendant said that the plaintiff was a drug user, that she had sent him intimate photographs over social media and that they were friends who had engaged in mutual flirting.

The Plaintiff’s Claim

18The plaintiff seeks compensatory damages of $175,000 and argues that she is entitled to $50,000 for breach of fiduciary duty, $75,000 in damages under Ontario’s Human Rights Code and $50,000 for defamation. The plaintiff also seeks $100,000 in punitive damages.

Analysis

Damages for breach of fiduciary duty

19I have no hesitation in finding that the facts of this case support a claim for damages for breach of fiduciary duty.

20The defendant was a lawyer who agreed to assist a young, vulnerable client with limited financial means who had never been charged criminally before. When the plaintiff asked the defendant if he would accept a payment plan for his legal services, the defendant obviously knew that he did not want a record to exist of what he was going to do next: The defendant suggested they move their communications to Snapchat, where they would not be preserved. The defendant then offered to accept oral sex in lieu of payment of his fees. The plaintiff said no. The defendant repeatedly revisited the proposal. He told the plaintiff he was propositioning her. He sent her a photograph of his penis. When this vulnerable client later told the defendant that she was having mental health issues and feeling suicidal, he recommended alcohol, drugs and the sex with him that she had repeatedly said she was not interested in. After the plaintiff complained about the defendant to the LSO, he took to social media to defend himself. He identified the plaintiff, openly discussed their confidential lawyer-client relationship and disclosed personal information about the plaintiff.

21The lawyer-client relationship is founded on trust. That trust is why persons can and do confidently bring their most intimate problems and all manner of matters, great or small, to their lawyers. This is an overarching trust that the profession and each member of the profession accepts. Indeed, it is the very foundation of the profession and governs the relationships and services that are rendered: Adams v. Law Society of Alberta, 2000 ABCA 240, 266 A.R. 157, at para. 10.

22In my view, the defendant’s campaign to exploit the circumstances of this vulnerable young client for his own gratification followed by his public disclosure of her personal circumstances and confidential information amount to a staggering breach of the trust obligations a lawyer owes to a client.

23The proper approach to damages for breach of fiduciary duty is restitutionary. Damages for breach of fiduciary duty may also serve to put special pressure on those in positions of trust or power over others in situations of vulnerability and to guard against abusive behaviour, particularly where the wrong complained of goes to the heart of the duty of loyalty that lies at the core of the fiduciary principle: Hodgkinson v. Simms, 1994 SCC 70, [1994] 3 S.C.R. 377, p. 452.

24The plaintiff relies on R.B. v. E.S., 2017 ONSC 7866, in which the plaintiff was awarded $70,000 in damages for sexual assault, battery, breach of fiduciary duty, breach of trust and intentional infliction of mental distress when her criminal lawyer touched her without her consent. The plaintiff and the defendant had met to discuss the plaintiff’s case. The defendant, who was later found to be suffering from Alzheimer’s disease, had touched the plaintiff’s breast, hugged her and tried to kiss her.

25In R.B., Justice Kristjanson found that the lawyer had breached his fiduciary duty to the client. She found that engaging in sexual touching and comments in the context of a lawyer-client meeting is a breach of trust central to the lawyer-client relationship. She described the defendant’s conduct as “a unilateral exercise of power or discretion affecting the plaintiff’s personal autonomy and personal sense of trust and security” and as a betrayal of the duty of loyalty and trust reposed in a lawyer.” In a comment equally applicable to the case before me, Kristjanson J., at para. 39, recognized the special role of the criminal defence lawyer:

Criminal lawyers must be able to receive a client’s darkest secrets. When charged with an offence, the criminal lawyer has a critical role as the only person on a client’s side, the one expected to protect the client’s interests at a time of great stress and vulnerability, as she faces criminal charges in the legal system.

26To arrive at the $70,000 assessment, Kristjanson J. took into account that the defendant was in a position of trust, that he was the plaintiff’s lawyer and that the assault took place during their first meeting to prepare her defence to a criminal charge. Justice Kristjanson considered that the plaintiff was vulnerable, and the touching was sexual and unwanted. She found that the consequences for the plaintiff’s psychological integrity were significant.

27The plaintiff in the case before me acknowledges that the defendant did not touch her. She said his conduct nonetheless caused her to suffer significant mental and emotional distress. She said she felt like there was no one she could turn to because the person who was supposed to be helping her was making things worse. She said she felt that the defendant wanted her situation to become worse so that she would be even more vulnerable, and he would be better able to take advantage of her.

28Unlike the situation in R.B., the defendant’s abuse of the plaintiff was not a single, isolated event. It was a pattern of persuasion that continued for several weeks, followed three months later, by the defendant’s chat on Discord. There is ample evidence of the distress the plaintiff was suffering at the time. The plaintiff told the defendant about her deteriorating mental health and her suicidal thoughts. There is evidence she was unable to work for multiple days around the time he was representing her. The plaintiff later confided in a doctor that her pre-existing mental health issues had been exacerbated by her encounter with the defendant.

29Having considered all of these factors, I assess the plaintiff’s damages for the defendant’s breach of fiduciary duty at $75,000.

Damages under the Human Rights Code

30The plaintiff seeks damages under Ontario’s Human Rights Code. She argues that the defendant denied her the right to equal treatment without discrimination on the basis of sex under s. 1 of the Code, which includes the right to be free from sexual harassment. She also argues the defendant’s sexual harassment was in breach of s. 7(3) of the Code, because the defendant was in a position to confer, grant or deny her legal services.

31Section 46.1 of the Code provides that the court may order compensation for injury to dignity, feelings and self-respect flowing from a breach of the Code. These awards are intended to recognize the right to be free from discrimination and the experience of victimization: Sharpe-McNeil v. Swaby, 2023 HRTO 872, at para. 48.

32Damages under the Code serve a purpose different from the purpose of non-pecuniary general damages. This means that the two heads of damages may be awarded to compensate a plaintiff for losses suffered as a result of the same conduct of the defendant, without an adjustment to account for double recovery. There is no double recovery because the damage awards “vindicate different interests in law.” (Doyle v. Zochem Inc., 2017 ONCA 130, at para. 49).

33The assessment of damages under the Code requires consideration of the objective seriousness of the defendant’s conduct and the subjective impact on the plaintiff. Factors to be considered include humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, the vulnerability of the complainant and the seriousness of the offensive treatment: Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, at paras. 59, 61.

34In my view, the defendant’s conduct was on the serious end of the scale, particularly given the context of the lawyer-client relationship and the complete trust the plaintiff should have felt she could place in him. I have set out above the reasons the plaintiff was vulnerable. I am satisfied the defendant’s conduct had a profound impact on her.

35The plaintiff relies on some Ontario Human Rights Tribunal decisions involving sexual harassment. She concedes that none is comparable to this case. She asks for damages of $65,000. I agree that this is a fair assessment of the damages for the breaches in this case and award her $65,000.

36The plaintiff also asks for $10,000 for “reprisal.” She relies on s. 8 of the Code which provides that “[e]very person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for doing so.”

37There was no evidence before me that the plaintiff was faced with a reprisal or a threat of a reprisal for claiming her rights under the Code. The request for damages for reprisal is denied.

Damages for defamation

38The plaintiff seeks $50,000 in damages for defamation.

39The plaintiff’s claim is based on the defendant’s tweet of November 29, 2022 (“It’s fake”) and the chat he hosted on Discord that evening.

40To establish defamation, a communication must be published to at least one person other than the plaintiff, the communication must refer to the plaintiff and the communication must be defamatory, in the sense that it must tend to lower the plaintiff’s reputation in the eyes of a reasonable person: Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

41The plaintiff has not satisfied me that the defendant’s tweet on November 29, 2022 (“It’s fake”) was defamatory. The tweet was posted the same day as the media articles about the plaintiff’s LSO complaint, suggesting that it was in reference to the articles, the complainant or the complaint. This is not clear, however. It is not clear what the “it” in the tweet is in reference to. I am not satisfied that the tweet refers to the plaintiff or that it would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

42I am, however, satisfied that the three requirements for defamation are met in respect of the defendant’s Discord chat. The number of listeners who heard the Discord chat is unknown, but there is evidence that there were “multiple” listeners and that some people participated in the chat. The plaintiff knows the defendant identified her, because a person the plaintiff did not know sent her a message on Facebook during the chat and said he was listening and was able to alert her because the defendant had just said her name.

43During the chat, the defendant talked about the charge against the plaintiff. The defendant suggested the plaintiff had made up what she told the LSO about him in order to avoid paying his bill. The defendant disclosed personal information about the plaintiff. He said that she was a drug user and had been required to miss work because she was doing drugs. He said that she had sent him intimate photographs over social media. He also said they were friends who engaged in mutual flirting.

44The plaintiff denies the truth of these statements, which are all deemed to be untrue on this motion. I find that the statements are defamatory.

45I have considered the following factors to assess the damages caused by these defamatory comments:

• The plaintiff was identified by name;
• The allegations the defendant made against the plaintiff—that she was dishonest, that she used illegal drugs and that she skipped work because she used illegal drugs—were serious and damaging to her reputation;
• The plaintiff’s reputation is important to her because her employment as a personal support worker requires that her clients have faith in her trustworthiness;
• The defendant made the defamatory comments about the plaintiff in an effort to rehabilitate his own reputation after the media reported on the plaintiff’s complaint to the LSO; and
• The chat was heard by “multiple” members of the public but by how many is not known.

46In assessing damages for defamation, I have not considered as a factor that the defendant was the plaintiff’s lawyer. I considered that factor in my assessment of the damages for breach of fiduciary duty. It is also relevant to my consideration of punitive damages, below.

47I assess the plaintiff’s damages for defamation at $30,000.

Punitive damages

48The plaintiff seeks $100,000 in punitive damages.

49Punitive damages are awarded in exceptional cases for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency.” Awards of punitive damages are limited to misconduct that represents a marked departure from ordinary standards of decent behaviour. Because their objective is to punish the defendant, rather than compensate a plaintiff, punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment): Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 36.

50Punitive damages are to 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. Other fines or penalties suffered by the defendant for the same misconduct should be considered. Punitive damages are awarded in an amount that is no greater than necessary to rationally accomplish their purpose. Moderate awards, which inevitably carry a stigma in the broader community, are generally sufficient: Whiten, at para. 94.

51The starting point for my consideration of this issue is the fiduciary relationship between the plaintiff and the defendant. The defendant owed the plaintiff duties of loyalty, trust and confidentiality. The plaintiff was vulnerable. The defendant knew it. When the plaintiff asked the defendant about a payment plan, he said they should go off-line and communicate only through a messaging service in which messages are destroyed after 24 hours. The defendant suggested a swap of sexual services for legal services. When the plaintiff said no, the defendant persisted. He sent her a photograph of his penis. He said he thought that trading legal services for sex was “hot.”

52The plaintiff told the defendant that her mental health was deteriorating and that she was feeling suicidal. The defendant suggested to this vulnerable client, who had told him that she did not want to have a sexual relationship with him, that having sex with him would make her feel better.

53After the plaintiff retained a new lawyer, who managed to have the charge against her dropped within weeks, and complained about the defendant to the LSO, the defendant took to the internet and hosted a chat where he named the plaintiff, discussed her retainer, divulged confidential information she had provided to him and said she had complained about him to the LSO to avoid paying his legal bill.

54The defendant harmed not only the plaintiff but the reputation of lawyers generally. While his misconduct was directed toward the plaintiff, and directly and seriously harmed the plaintiff, its effects will have been felt more widely. “While it may be difficult to measure with precision the harm that a lawyer’s misconduct may have on the reputation of the profession, there can be little doubt that public confidence in the administration of justice and trust in the legal profession will be eroded by disreputable conduct of an individual lawyer”: Adams, at para. 10.

55I find the defendant’s conduct to be shocking, an offense to the court’s sense of decency and deserving of the sanction of punitive damages. To assess the amount, I have considered the lawyer-client relationship that existed in this case and the defendant’s complete disregard for the obligations associated with it. I have considered the nature and the seriousness of the defendant’s breach of the plaintiff’s trust. I have considered the defendant’s premeditation and how, right after telling the plaintiff that he would consider a payment plan for her, he proposed that they switch to Snapchat, knowing there would then be no trace of their communications. I have considered the vulnerability of the plaintiff and the defendant’s knowledge of her vulnerability. I have also, however, considered that the defendant has not gone unpunished to date and that the fallout may not be over for him yet. This case has received considerable media attention. The defendant, of course innocent until proven guilty, faces related criminal charges. His issues with the LSO are ongoing.

56Having considered these factors and the Supreme Court of Canada’s observation that because of the stigma associated with punitive damage awards, moderate awards are typically sufficient, I award punitive damages of $25,000.

Costs

57I have reviewed the plaintiff’s costs outline dated January 10, 2024. I award costs of the motion on a substantial indemnity basis fixed at $40,000, inclusive of fees, disbursements and HST.