CITATION: Jane Doe v. His Majesty the King in Right of Ontario, B.H., and Toronto Police Services Board, 2026 ONSC 2807

COURT FILE NO.: CV21-09

DATE: 20260513

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jane Doe

Plaintiff

– and –

His Majesty the King in Right of Ontario, B.H., and Toronto Police Services Board

Defendant

Tara Lemke and Gabriella Gader, for the Plaintiff

Michael Sims, Eric Wagner and Mariam Gagi, for the Defendant

HEARD: October 20, 21, 22, 23, 24 27, 28, 29, 30, 31, 2025 and November 7, 2025

REASONS FOR judgment

Justice H. Desormeau

[1] The plaintiff claims she was sexually assaulted while in the Witness Protection Program (WPP).

[2] Her claim raises the following issues, some of which overlap:

i. The reliability and accuracy of the plaintiff's recall of events pertaining to the evening of the alleged assault and context for her quantification of damages.

ii. Whether the WPP was negligent in its management of the plaintiff's file. This includes issues regarding definition of the base essentials of the WPP duty to the plaintiff and standard of care, whether the WPP breached either and if so whether the plaintiff's damages can be said to have been caused by or were reasonably foreseeable consequences.

iii. The nature of the relationship between the plaintiff and the WPP. This includes her assertions in contract and as to whether they stood in a fiduciary relationship and whether the WPP breached their contractual and fiduciary duties.

iv. The correlation, if any, between the plaintiff's experience after the events of the sexual assault and the sexual assault itself.

[3] The active defendant at trial was His Majesty the King in Right of Ontario, hereinafter “Ontario.”

[4] The Toronto Police Services Board defendant was not involved in the trial.

[5] Importantly, the original pleadings identified the defendant noted as “B.H.” as ‘Constable John Doe.’ His identity was subsequently ascertained; however, the individual was never served with the Statement of Claim and therefore had no opportunity to respond to or defend the action. The Court was advised that efforts to locate him were unsuccessful. At the conclusion of trial, the Court expressed concern regarding the continued use of a distinctive name in the title of proceedings where the individual had not been served. Upon further consideration, and with the agreement of the parties, the Court determined that it was appropriate to amend the style of cause by initializing this defendant’s name to “B.H.”. This decision therefore also references the person in question as “B.H.”

[6] These reasons, as a prelude to discussion of independent evidence on the issues and legal analysis, record in some detail the plaintiff's narrative.

Overview

[7] Jane Doe (“Jane”[^1]) experienced adversity through her life. Her father was an abusive alcoholic who was a product of the residential schools. Her mother struggled financially and emotionally yet instilled strong values. Jane had four siblings with various challenges, especially her older brother, who will be referred to as “T.D.” in these reasons.

[8] Jane dropped out of school around grade 10 due to poverty and bullying. She worked various minimum wage jobs to support her family. She began working as an exotic dancer at about 18 years of age for which she earned income sufficient to buy an apartment building. Her goal in purchasing the apartment building was to provide housing for her mother and siblings.

[9] After witnessing unlawful activities, she reported them to the police and subsequently served as a confidential informant (“CI”) against individuals engaged in serious organized criminal conduct. These organized criminals were prepared to kill whomever was talking to the police.

[10] When the Crown disclosed her identity as a confidential informant during court proceedings, Jane’s life was placed in imminent danger, prompting her to enter the Witness Protection Program, fearing for her life. Jane believed there was a hit out for her. She had very few options but to run and hide.

[11] According to Jane, as a result of entering the WPP without having the opportunity to put her life in order, she lost control of the building, her car and her individual identity. She believes the actions/inactions of the WPP exacerbated her life's trajectory and that of her family.

[12] In the WPP, Jane recalls she was under the strict control of her Team, which consisted of a handler, two members of the TRU Team[^2], and a highly trained female police officer. She had confidence in her handler, PC Bruce Burley, from the Organized Crime Section of the OPP’s Intelligence Branch. Corporal Ted MacDonnell of the OPP’s Intelligence Branch was his superior, acting as Jane’s alternate handler. There were occasional changes in her Team for various reasons, including inappropriate comments made about her by Team members. She was reportedly subjected to multiple inappropriate sexual remarks from her Team. She said those comments made a lasting impression on her.

[13] During the period which forms part of the allegation that Jane was sexually assaulted, the Team consisted of Jack Goobie (“Jack”), Mario Bourgeois (“Mario”) and Valerie Jarvis (“Val”)[^3].

[14] As a prelude to entering the WPP, Jane signed an undertaking document, reproduced here, in full:

I [redacted] acknowledge that I am under the protection of the Ontario Provincial Police and agree as part of my responsibility:

a) Not to contact or in any way divulge my location to any person without prior authorization of a designated member of the Ontario Provincial Police force.

b) to accept the level of security as deemed sufficient by the Ontario Provincial Police and co-operate in these matters of security as instructed by them.

c) Should I decide not to agree to follow the conditions referred to as (a) and (b) I absolve the Ontario Provincial Police force and its' members and employees involved in my protection from any blame or responsibility resulting from actions or activity which I have undertaken of my own accord.

I have read and understood the contents of this document.

Signed by [redacted] Witness [blank]

Date October 06/87

Background evidence

Jane

[15] Jane’s father was described by her as the “devil incarnate.” He was physically and emotionally abusive when he was around but was largely absent. He eventually drank himself to death.

[16] She characterized her mother as a person who tried her best to raise the five children. She recalled that her mother had been born into privilege but was ostracized by her family for choosing their father. She regularly attended church with the children. Her mother died in approximately 2008.

[17] Jane described being “beyond close” to her mother and feeling blessed with their relationship. On cross-examination Jane admitted this characterization was untrue. The relationship between them became conflicted and fraught.

[18] Jane’s oldest brother, T.D. has severe mental health issues, and after years of searching he has finally found the proper concoction of medications, and he has stabilized. Jane, her mother and her other brother “Reggie[^4]” were significantly involved in caring for T.D. T.D. did not get far in school; Jane and Reggie went to approximately grade 10. Reggie worked in several places and eventually worked out west in the “patches.” Jane and Reggie speak almost daily.

[19] Jane’s younger two sisters Liza[^5] and Nancy[^6] were spoiled by the family. Their maternal grandmother helped pay for Liza to go to a private school and to graduate from high school. Liza went out west and found secure employment, then found a job in the government. Nancy finished high school and did some college courses. She works full time and provides equine therapy.

[20] Growing up, Jane’s family lived up north, moved out west for a few months, then back to Ontario. Thereafter the church housed Liza and Nancy in an orphanage until the family could secure housing. Jane commented that at least the young girls had food and a bed.

Jane’s direct experience

[21] As a child, Jane was a victim of sexual abuse. The first incident was when she was about six or seven years old, by her female friend who “lay on top of me and urinated on me and bit my tits until my nipples bled.” This happened two to three times, and then that friend’s brother attempted to abuse Jane as well, but Jane escaped.

[22] When asked of any other incidents of abuse she remembered, Jane responded, “You know, if I was to indulge you in every instance in my life that somebody took a shot at me, we'd be sitting here for days in recounting my stories about this one and that one, this one and that one. It was just a part of the life and, you know, I've often … I’ve often asked myself, “Why?” because I never thought that I was … I never looked at myself as a … as a victim. I just couldn't figure out why and I realize sometimes, I think, and I still don't know if I'm right or wrong, but it's my assumption today that everybody saw me as vulnerable. But I didn't see myself as vulnerable.” She testified that none of the incidents in her childhood involved penetration.

[23] Despite this, she saw herself as a warrior. Jane testified that she disclosed every incident to her mother, who always comforted her.

[24] Jane started exotic dancing for the money. She did not want her mother to lose housing due to her brother aging out. She said, “I decided that if this is what everybody wants, then this is what everybody’s going to pay for…” After speaking to someone, she was guaranteed $800 per week for dancing, more than her mother’s welfare cheque. Dancing was safe and empowering for Jane. She worked as a dancer for about three years and bought herself a small sports car on top of giving weekly remittances to her mother. She went home regularly, between every two and six weeks.

[25] Jane did not drink, and she indicated nobody in her family drinks except for Liza. She dabbled in cocaine, mushrooms, marijuana and “benny’s” but was not a drug addict.

[26] It was Jane’s evidence that she had a criminal record for narcotics possession in 1983 for a joint which she said was not hers; and theft under $1,000 for a bottle that she “ended up with” without the intent to steal it. She testified as to being arrested some time in approximately 1980 for spitting on the ground.

[27] Jane described her approach to dating, instilled by her mother that “if you’re going to love somebody, dedicate everything you have to that person. She explained that was why she and her siblings have been with their partners forever. When she was younger Jane did not date. She was with her first boyfriend “R” for about three years. They broke up because he was seeing other people. She did not believe in one-night stands and referenced herself as being a “serial monogamist.” After “R” Jane dated “Graham[^7].” When asked how she ended up with Graham she testified she had money to buy a building and knew Graham had one, and knew he liked her. The bank would not give her a mortgage despite her sizeable downpayment of $8,000 or $12,000. She went to Graham, and he was doing everything to “woo” her, so that was how she chose with whom to “endeavour.” It got her what she needed. She was with Graham for about one to two years, remembering their relationship made her stomach turn. She stopped being with him because he was a criminal. After Graham she dated “Pascal,” [^8] who was a police officer who treated her decently. He went to see her while she was in the Witness Protection Program and wanted to run away with her to Florida. Jane recounted that their relationship ultimately terminated after Pascal received a letter from his boss saying that “he was to cease and desist seeing [her].”

[28] Jane stopped dancing because she had enough money to buy an apartment building for her family to move into. She recalled she purchased the building for $38,000.00. Jane described her apartment building as a four-unit building, in fair condition, fully rented. Jane was current on the mortgage and line of credit. She and her family moved in. She was looking for alternate remunerative employment and felt confident.

[29] It was then that Jane witnessed the impugned criminal activity that she reported. Once the Crown exposed her as the CI, her connection to the building, her car and lifestyle aspirations ended. Jane entered the WPP and disappeared from the life she knew.

Jane’s experience in the Witness Protection Program

[30] Jane understood that the WPP Team was going to be looking after her apartment building and her car. She felt their actions were to her detriment. She testified that she begged them to tell her what happened to her car and her building but was told not to worry about it. She believed the police were managing the building. Once she reached her final relocation through the WPP, she spoke to a man who told her she had to sell her building, and they found the person she was going to sell it to and told her she had to find her own real estate lawyer. Prior to that, they gave her a cheque of $2,500 or $2,800 for her car, which she thought was being kept safely for her future. She was told they had to sell her car because it was too noticeable.

[31] At trial, Jane displayed outrage, stating “before I met you people, I had my own car… and I had an apartment building, something for my family to live in forever. I do you people a favour by telling you who the bad guys are and I end up [here] with no car and no building? Are you kidding me? I should have just taken my chances on my own.”

[32] From the time of entering the Program until mid-November 1987, Jane’s life was a nomadic one. She was told not to contact her family. According to Jane, when she did call her family, her detail dialed the number and were standing nearby. She denied ever dialing the phone herself. She surrendered her identification upon entering the program and needed to seek legal help to get new identification.

[33] Jane was subjected to sexualized derogatory comments by her Protection detail about her life and her clothing. She recalled that the “guys” had alcohol in their rooms during her protection, and they regularly consumed alcohol.

[34] She described that when she left the room, they were in a “box” formation, and there was a process for when attending restaurants and leaving hotel rooms.

[35] Jane was never a social butterfly. She had done enough socializing when she was dancing. She never went to movies; she never went dancing or asked to go to either. Her evidence was that her Team “dragged” her there. She had no control over where they went and what they did.

[36] Jane’s account was that she signed whatever paperwork was put in front of her by the WPP Team.

[37] Following the assault, on October 15, 1987, she was relocated to Eastern Ontario, with no identification, and her belongings, which were in the apartment up north, were sent to her. She was upset as she had left those for her family in her apartment building. She was unable to work as “they never gave me ID.”

[38] Jane briefly touched upon her relationship with Pascal, and recalled that he went to visit her in Eastern Ontario a few times. She vaguely remembered him going to see her when she first entered the WPP. When asked if she recalled him staying overnight once when she was with the WPP, she responded “obviously it wasn’t memorable.” Shortly thereafter they terminated their relationship.

Jane’s recounting of the events of October 14, 1987

[39] Jane’s claims arise from an incident which occurred on October 14, 1987, when she was approximately 23 years old.

[40] It was uncontested that on that night, a Wednesday just after Thanksgiving, Jane and her Protection detail went to the Toronto Police Association Building (“TPA”) also known as the Metro Club. The Metro Club admissions were restricted to serving police officers and their guests.

[41] At trial, there were two competing narratives as to what occurred on the night in question.

[42] Jane alleged there was a conspiracy which led to the sexual assault of October 14, 1987.

[43] According to Jane, she did not want to go out that night at all and did not want to go dancing. Nevertheless, she dressed up in a 3-piece gold lamé outfit and went to the club with her Team. She denied ever having attended before, at least the dancing area.

[44] Upon arriving, Jane noticed it was dead, but she was mesmerized by a piano player playing Flight of the Bumblebee. They needed to sign a book upon entering. Thereafter, Jane was sitting at a table with her Team. Jane was not a drinker, not liking the effects of alcohol. Someone bought her an alcoholic drink which she consumed to be polite. There was a second drink that she barely touched. An African American male approached and asked her to dance. She happily accepted. While she was dancing with this man, another man, “B.H.” came up behind her and began grinding against her. She was uncomfortable. This contact was completely unwanted. She denied ever being introduced to B.H.

[45] Back at the table where they were all sitting, the two police officers who were on her detail, “leaned back” and had words together. These words were not overheard by Jane. However, the actions of these two police officers, which may or may not have included B.H., caused Jane to be alarmed as her “spidey senses” were ringing. She was uncomfortable and insisted on leaving. She never expected to see B.H. again.

[46] They all left and went back to the hotel room at around 2:00 a.m. Val, with whom she shared a room, opened their hotel room door and let Jane into the room. Jane went to the bathroom. Val was gone when she exited the bathroom minutes after. Jane had no idea where she went or why.

[47] Jane changed into her nightgown to go to bed. She was expecting Val to return at any moment. There was a knock at the door. Jane opened it, expecting to see Val. She was surprised to see B.H. at her door. He entered her room uninvited. She was uncomfortable with him being there. She retrieved her housecoat from the bathroom and sat down. He sat beside her and made small talk. She learned he was with the Toronto Police. Jane expected Val’s return momentarily.

[48] Jane was tired, and she wanted B.H. to leave. She got into bed and curled into the fetal position, hoping he would get the hint and leave. Instead of leaving, B.H. got undressed. She heard his belt buckle hit the floor, followed by the rest of his clothes. B.H. got into bed with her. He turned her over to face him. He forcibly pried her legs away from her body, told her to relax, and proceeded to violate her. He forcibly penetrated her while Jane lay there frozen and terrified that he would smother her. Her Team was only a few feet away in the next room. He ejaculated on her stomach and got up to get dressed while joking that he had to get back to his wife and telling Jane that she was so strong.

[49] Jane was horrified, disgusted and felt broken. She cleaned herself up with the sheet and spent most of the rest of the night awake. Jane felt betrayed. She could not understand how B.H. ended up at her door. She believed there was a conspiracy.

[50] To Jane’s knowledge, Val did not return to the room that night and did not recall seeing her again until the next morning in the lobby. She believed that Val was in the male officer’s room which contained two beds, chairs and floor space, sufficient for Val to have spent the night in that room.

[51] The next morning Bruce came to her door. She did not have a chance to tell Bruce what happened because “he walked in and named three names”. Jane said “I knew in that moment I was beat… I couldn’t believe I was betrayed by Bruce too.” When asked if she spoke to the Team about what had happened, she was adamant that “they knew”. She articulated that things were worse after that.

[52] It was conceded in submissions that Jane may have a fragmented memory from the trauma of that night and cannot clearly recall what happened immediately after her assault.

[53] Jane blames the Team, with whom she had been trusting her life, for not protecting her from this sexual assault.

The Witness Protection Team's understanding of its relationship with Jane

Val

[54] Val had been on the job for about 5 years prior to being assigned the Witness Protection detail. She was 28 years old. She described that the OPP in the 1980’s was a male dominated profession rife with sexism from both the public and her colleagues. Despite this, she did not recall any sexist comments having been made to Jane during her involvement.

[55] Val was assigned to the Witness Protection detail, arriving on October 7^th^, 1987, starting the following day until November 5, 1987. In the 1980’s, there were no strict requirements of what went into their notes, much depended on the assignment. She received no training before joining the WPP detail. There were no courses offered at the time and there were no standard operating procedures regarding the detail. The only direction she received was that Jane was not the “bad guy,” and they were to keep her intact until she gave evidence. Until then, they were to keep her happy and “let her live as normal a life as possible and not make her feel like a prisoner because she wasn’t a prisoner, she was a person under [their] protection and basically give her what she wants to the extent [they] can.” She clarified by “keep her intact” she meant to keep her alive and willing to give evidence, but Jane “had the ability to walk away from this program.” By keeping her happy, Val’s instructions were that they were to accommodate her requests to go out, to allow Jane to feel as normal as possible. Jane was under Val’s watch, but not under her control.

[56] Val’s role was a little different than that of the TRU Team as she was the assigned female officer in the room with Jane and was there to protect but also be a female companion. Day-to-day decisions were made collectively, between the four of them. According to Val, the Team did pretty much whatever Jane wanted to do.

[57] Upon her arrival with the Protection detail, Val noted that Jane was having a conjugal visit with her boyfriend, Pascal, a municipal police officer, on the 8^th^ of October. She believed Pascal spent the night. As such, Val did not meet Jane until the 9^th^ of October 1987. Val recalled that on the 10^th^ of October, Jane called Pascal and “told him to ‘F’ off and go back to his wife and that she hoped he’d get burnt by her.” When questioned about any other gentlemen in Jane’s life, Val recalled someone from Jane’s next location calling their room on October 22^nd^, 1987, and having a meal with them. She “ran” that person’s name and licence plate number as she did not know how he got their hotel number and wanted to ensure he did not have ties to gangs. There was another male caller that showed upon the 23^rd^ of October, who Jane described as a “new friend.”

[58] Val shared that she felt Jane was “very pretty,” “very bright,” “very outgoing” and “very brave.” From the things Jane shared with Val, Jane “had it rough”, and she did not have a good relationship with her mother, that her mother kicked her out of her house. Jane had shared she had been an exotic dancer, and that she believed there was a hit out for her.

[59] While on the Protection detail in Toronto, Jane and the detail went out for meals, went to the mall and to the theatre a few times, and on the last night went to the Metro Club. The Team did not ask Bruce’s permission to attend or seek his instructions, nor was it practical to do so as cell phones did not exist at the time. Val received Bruce’s pager number only when they arrived at their next location in Eastern Ontario. Val did not recall the detail walking in box formation when outside the hotel, as she thought this would bring too much attention to them. She believed that they walked as two couples, or four close friends, to deter unwanted attention toward Jane.

[60] Val acknowledged that Jane’s location was to be kept confidential from the people who were trying to kill her. She called Jane by her birth name and was not aware Jane had no personal identification available to her. Val denied being constantly present with Jane and restricting her every movement. Jane made phone calls and was given privacy during them, including to Pascal, and did not require permission to make calls. Val recalled Jane receiving money and that once Jane was upset that some money had not shown up in her bank account as expected. Val had been given cash to pass on to Jane from Bruce but confirmed Jane was not paying for hotel or meals.

[61] Val confirmed this detail was the first time she was part of a Witness Protection assignment.

[62] She testified as to taking photographs of her time with Jane and /or the Protection detail, including October 15^th^, on their way to Eastern Ontario. These, along with some from photobooths, and one sent by Jane to Val about a year following the termination of the protective detail were marked as exhibits at trial.

Jack

[63] Jack’s evidence confirmed that he was part of Jane’s detail as a TRU Team member. He had been in the OPP for approximately 5 years prior to being assigned to the Tactics and Rescue Unit in early 1987. On or about September 25, 1987, he was assigned to Jane’s detail. The TRU Team was a highly specialized unit trained for hostage rescue, dynamic entries, and Witness Protection amongst other specialities.

[64] Jack testified that he took minimal notes to protect Jane’s safety. He was not taking notes for “investigative purposes” as Jane was not being investigated. Jane was a witness he was assigned to protect from an outlaw group. She was a witness, not a prisoner. He understood that she had free rein to leave the WPP at any time but would have to assume any liabilities if she chose to do so, which might be dangerous to her.

[65] At the time he was assigned, there was no training available regarding how to operate within the Witness Protection Program, nor were there Standing Operating Procedures, Standing Orders, or specific requirements regarding taking notes.

[66] Jack’s evidence was that the Team did not have exclusive control over Jane’s movements. They needed to balance Jane’s needs with their obligation to protect her from the outlaw group/ Outside Threat. Given the amount of time spent with Jane, it was important to keep a balance and to ensure everyone got along, which included making sure she was happy. However, according to Jack, the Team had total discretion on how that balance was achieved. They would discuss Jane’s requests as a group and if they could effectuate it safely, they would take her to fulfill that request, such as shopping or going to a movie. Jack would have been content with not leaving the hotel room at all. Jack also recalled going to the Toronto Police Association building/ Metro Club with Jane and her detail prior to the night of the 14^th^ of October 1987, though his notes on this topic were redacted.

[67] Jack testified Jane could be alone in her hotel room provided they were in the next room where they could have access to enter, but they would not leave her alone in the room and go to the hotel gym or pool. Her location always needed to be secure from the threats of the outlaw group.

[68] Jane’s team was briefed on differing frequency, which could be daily, or every second or third day. This briefing usually occurred in person. The primary source of information though came from Bruce Burley. Otherwise, the Team has pretty free reign on what they could do without checking with Bruce, provided they could do it safely. Bruce, however was the person who decided when they were relocating and to where.

[69] Jack’s evidence was that when they were outside of the hotel with Jane, they typically moved in a formation that ensured 360-degrees protection.

Val and Jack’s evidence regarding the night of the sexual assault

[70] Both Val and Jack testified as to their role in the protective detail regarding Jane. They were there to ensure that she was safe from individuals who were attempting to stop her from testifying. They were given wide discretion within their mandate of keeping Jane safe from the threat of the criminal organization with ties up north.

[71] Three days prior to attending the Metro Club, Jane and her detail went to the mall to see the movie Dirty Dancing. Val’s evidence was that Jane thereafter was antsy; she wanted to go dancing, “wanted to go out and party and not just go out for dinner.” The officers determined that Jane’s request was reasonable. The Metro Club was the safest venue they could think of, though Val had never been there before. That club only permitted police officers and their dates to enter.

[72] According to Val, given she had no appropriate clothing to go to the club, Jane and the detail went to the Woodbine Mall, where Jane encouraged Val to buy a snakeskin jumpsuit.

[73] That night, Jane and the detail went to dinner then made their way to the Metro Club at around 10:00pm.

[74] At the Metro Club, Jack recognized B.H. a classmate from police college, with whom he had not been in contact since 1983. Jack introduced B.H. to Jane.

[75] According to Val, Jane wore a gray silky outfit, while she wore her new jumpsuit. There were bar tables, music and people were dancing. Her recollections as to specifics were vague, such as the size of the club and how far it was from their hotel. However, she remembered the noise level of the music, that they had a table and chairs on the edge of the dance floor and sitting down between dances. She recalled Jane dancing with B.H. for several songs, but not with an African American gentleman. The dance floor was crowded. She and Jane danced until they were sweaty.

[76] Jack recalled the detail keeping an eye on Jane that evening, but their guard was more relaxed given the safety of their location. He did not recall if Jane danced with anyone, or if B.H. danced with her, if B.H. came and sat at their table, or who wanted to leave the club at the end of the night.

[77] However, he did recall that toward the end of the evening, Jane had invited B.H. back to the hotel. Jack explicitly asked Jane if she wanted B.H. to come back to her hotel room. Jane said “yes.” After receiving confirmation from Jane, Jack shared the hotel with B.H. based on Jane’s request for him to go back to her room. Jack was adamant in his evidence that he would not have allowed anyone to enter Jane’s hotel room without her express permission. B.H. was permitted to know Jane’s location only after Jack received Jane’s verbal confirmation that she wished for B.H. to return to her room. He was not concerned about B.H. attending the hotel room as B.H. was a police officer, and based on his prior dealings with B.H. in police college. When it was suggested in cross-examination that Jack could have said no to Jane inviting B.H. to the hotel room, he responded that he would have said no if it had been an “outside threat, like the threat that [they] were actually protecting her against” as that was their assignment.

[78] Jane and her detail returned to the hotel at around 2:00 a.m. Val’s evidence was that B.H. must have followed them in his car as they did not travel together. She had a clear recollection of Jane and their Team walking down the hotel hallway, just the four of them.

[79] Val recalled that on their way to their hotel rooms, Jane was happy about B.H.’s impending visit.

[80] According to Val, the walk down the hallway was the first time she herself became aware that B.H. was going to visit Jane. She was told that the Metro cop with whom Jane had been dancing was coming over for a date, at Jane’s request. Val did not believe Jane’s encounter to be a cause for concern because she recalled that Jane had previously engaged in a private visit with her boyfriend, Pascal, whom she had broken up with a few days’ prior, and B.H. was also a police officer. It appeared to her that the TRU Team knew B.H. and they were comfortable with it. This, in her view, was reasonable within their mandate, and she was prepared to accommodate Jane’s request for B.H. to attend.

[81] The TRU Team went into their hotel room while Val and Jane went into their own. Val did not speak to Jane about B.H. going to visit her but had a conversation with her that she would get out of her way to give her some privacy and confirmed she would be next door. She then grabbed some jeans and a sweatshirt and went through the adjoining room to take a shower in the TRU Team’s hotel room. Her luggage and toothbrush remained in the room she shared with Jane. On cross-examination, Val testified she did not ask Jane if she was okay with B.H. going over because she was definitely under the impression that it was Jane’s idea, from both Jack and from Jane herself. When Val left their bedroom, the exterior door was locked, and the adjoining door was unlocked.

[82] Val showered in the TRU Team’s hotel room. About thirty minutes later, Val and Jack heard the outside door of the adjoining room close. Val knocked on the adjoining room door and returned to their shared room after Jane said it was okay to enter. Val recalled Jane was dressed casually in sweatpants and a top, her hair was dry and pulled back into a ponytail, and she was calm. Jane was sitting on her bed up against the pillows on the right side of her double bed, against the headboard, with her arms around her knees.

[83] Val recalled dropping off her dancing outfit by the luggage and grabbing her pajamas and went into the bathroom to brush her teeth. Val saw that Jane’s dancing outfit was soaking wet, flung over the right-hand side of the shower curtain. She found this odd, so she asked Jane, who responded, “the jerk couldn’t wait for me to take my clothes off,” in a kind of joking manner. Jane described to Val that B.H. picked her up and dumped her in the tub. Jane sounded miffed; she liked her clothes. Val finished brushing her teeth and went to bed, and no other discussions occurred.

[84] When asked why there is no mention of the visit in her notes, Val’s response was that it was Jane’s private business.

[85] The following day, the entire group went out for breakfast at 11:00 a.m. Jack debriefed Bruce as to the events of the night prior. By 11:30 a.m., Val and Bruce drove Jane to Eastern Ontario. Photographs were produced, purportedly to demonstrate that Jane did not look like she felt the police had just betrayed her.

Jane’s life since

[86] By mid-November 1987, Jane was essentially on her own.

[87] She met “Nico”[^9] in town. His mother helped her get a job at a travel agency. She was with Nico for four years. She ended their relationship when she found out he was a drug dealer against whom she later testified.

[88] After Nico, Jane had a relationship with “Luke”,[^10] whom she met in around 1989/ 1990. By that time Jane was a travel agent. She said she chose Luke because it was “better to do a dance with the devil you know.” Luke owned a bar; she knew that he drank too much sometimes. She was familiar with alcoholism. “Of course he was abusive” she stated, physically, emotionally, and financially. Despite the tumultuous relationship, Jane eventually married Luke. It was easier for her to stay and hide behind him as her independence had been taken away from her by the WPP.

[89] Jane worked for Luke at the restaurant pub he owned. There, she did everything, working 7 days a week, while Luke drank and handled the finances. When she threatened to leave him, they sold the bar and took over a motel out west on a lease-to-own agreement. This was about 1992. They had the motel for five to six years. She worked 24 hours a day, doing it all to keep it going. Then, they went to British Columbia to open a cabaret. That initiative failed when they encountered liquor licence issues. They returned home to Eastern Ontario. Despite all her hard work, Jane was never remunerated. She was “paid by [Luke] supporting me, putting a roof over my head and feeding me.”

[90] At one point, Jane left Luke after he was arrested for drunk driving and went to a shelter with their daughter. She secured her own apartment and a job starting up a restaurant. She then left Eastern Ontario and moved to Northern Ontario where she stayed for about six to eight months. Luke went to find her and asked for another chance. Their daughter was three years old. Together they went to Kitchener.

[91] In Kitchener, Luke was sober and worked at a car dealership and then opened a pizza place. Jane worked at several places in the local mall, then at a restaurant and then as a “marketing and promotions coordinator,” still earning minimum wage but with occasional “extras.” She also worked at U-Haul, where she worked alone. She testified she had a hard time trusting people and felt safer in a big crowd.

[92] Apart from doing some business schooling in Eastern Ontario, Jane also attended college for real estate but only finished her first phase of the program. She could not see herself being a real estate agent as she feared the risks involved in isolated evening work. In her youth, when she had the apartment building, she had considered getting her licence, but not anymore.

[93] Jane left Kitchener around 2006. Luke quit his job, and their daughter was finishing grade 12. Their daughter was begging them to leave as hard drugs had become prevalent in her peer group. They returned to Eastern Ontario. Jane found work at StarTech for about a year. Thereafter, Jane worked at Luke’s restaurant, stating she could not find a job in town “if my life depended on it because of Luke.” At the restaurant, she again did everything, decorating, building, staffing, ordering, cooking, etc. She went out west for six to eight weeks then returned at their daughter’s request.

[94] According to Jane, because of the assault during the WPP, she is angry, sad, confused, does not trust people, is withdrawn and cannot function. She never moved past the event. There are triggers, such as knocking on a door or being around police officers. The effects of being triggered last between minutes up to an hour. This has affected intimacy in her life. She has very few friends. She only trusts her daughter and siblings. While she resigns herself to purposeful solitude, she wishes she could enjoy the company of other people but there are too many triggers. Prior to the assault, she was looking forward to having a good, solid, intellectual, intimate relationship.

[95] She is too ill to go out to family holidays, scared that she will contract illnesses. She has nightmares and flashbacks of the events. She is sleep deprived, always angry and anxious, which she never was prior to the events in question. She occasionally is unable, or does not care, to eat. Though they are no longer together, Luke attends to her home daily to assist her with activities of daily living, including eating, cooking, and dressing.

[96] When asked if she had been sexually assaulted since being in the WPP, she spoke of her husband absolutely “trying” despite her saying no. She recalled an incident occurring in a taxi coming home from the hospital where the driver attempted to assault her. He was charged, but she did not go to testify as to the incident. She denied having flashbacks of this assault and those from her childhood.

[97] Jane has attended to the ASAP (Assault and Sexual Abuse) program to help with her feelings after years of trying to ignore them and manage them on her own. She was let down by the counsellor there. She articulated that the only way this was going to go away for her is if there was accountability. That was what prompted her move forward.

[98] Jane has been hospitalized for mental health issues. One instance was following Luke going after her in a drunken moment – she put him on the ground and that was when she knew she needed help. She went to the hospital for about a week. She has called crisis lines a half dozen times. She has relied on Mirabelle and JJ from the SIU, who help her talk through things. She articulated that JJ and Mirabelle were psychologists.

[99] Jane indicated she has not tried medications to help with her mental health due to what her brother went through and the length of time it took him to find the right ones to help him.

[100] Jane has been collecting ODSP for about six or seven years. She is unable to afford private treatment if required.

[101] Jane correlates her dependence on nicotine to her experience in the WPP. To cope with “big feelings,” Jane smoked. She recalled lighting up her mother’s cigarettes for her and sneaking a puff as a child but started smoking more regularly when she was around 14 to 16 years old. She would “sneak out a couple of smokes” without her mother catching her. She did not smoke much when she was dancing, maybe 8-10 cigarettes a day. Just before entering the WPP, she smoked maybe 5-6 cigarettes a day, but a bad day would be 10 cigarettes to half a pack. She had tried to quit in the past, being successful for three or six months, “off and on.” Her evidence was she was never a heavy smoker, unlike Luke, who would smoke a pack to a pack and a half per day. When she was “plunked down” in Eastern Ontario, that was when she started smoking “a lot,” about 10 cigarettes a day. She said she was “stressed beyond,” having “done the right thing,” but ending up with no vehicle, no apartment building, no dignity, and being a “rape victim.”

[102] She has tried to quit smoking about a “dozen, half a dozen” times over 10 years. It has been 38 years since the assault. She testified that there were times when money was tight so she could not afford to smoke, between two and seven months at a time. When she was in a depression or ruminating about the past her “go-to” was a cigarette. She testified this happened a lot but had she had to keep busy. She could be triggered by movies, smells, or even seeing a “cop.” While being around police officers now scares her, prior to the WPP she respected them.

[103] When asked when she was diagnosed with asthma, Jane said she had “problems breathing” as a child, necessitating puffers and Benylin, but said she outgrew it. She said she did not have “really heavy-duty asthma problems” but did have some breathing problems, struggling with athletics in school. This lessened when she was a teenager. She had problems at times but not significant ones. She described having asthma attacks necessitating her to go to the hospital and having a respiratory therapist who advised her to build her inside muscles. She recalled a time when she had a puffer in Kitchener and needing it once but denied using puffers between childhood and her time in Kitchener. The next time she had issues was when she had a restaurant at the marina, where she collapsed.

[104] She was diagnosed with COPD by Dr. Bencze in Ottawa, a specialist in lung diseases. When Dr. Bencze tried to admit her to the hospital for treatment, Jane refused and insisted on recovering at home. Jane indicated that based on her conversation with Dr. Bencze, she believed that working in restaurant kitchens may have helped exacerbate her condition. She saw Dr. Bencze about three times. He referred her for a bronchoscopy. She then saw Dr. Arab, a local respirologist, as well as Dr. Shahnavaz, who is an ear, nose, and throat specialist. Dr. St. Pierre, a respirologist from Mount Hope Hospital currently treats her lung conditions. Dr. St. Pierre offered Nucala, which may cause blood clots, which based on family history Jane was not likely to take. She was offered a double lung transplant, which she continues to contemplate. Jane said that COPD goes “hand in hand” with emphysema.

[105] She also suffers from exacerbations which often lead her to hospital stays. Usually, she takes medication to try to prevent it from worsening. She takes amoxicillin for 10 days, and if that does not work, she starts the CHLA of 875 mls, which if by the third day does not work, she calls 911. This is part of the care plan given to her by Marian Watt. She suffers from about two exacerbations per year. Her typical hospital stays last from 5 to 10 days. However, two years ago she was hospitalized for 10 days which, based on the treatment, helped her stay out of the hospital for the next two years.

[106] Jane’s evidence was that her lung condition has deteriorated since she saw Dr. Bencze. She has had an oxygen tank for about two years, and an oximeter. She described every time she has emotional regulation issues, her heart rate increases, and her lungs fill because she cannot breathe and she retains carbon dioxide. When her heart rate is too high, she has tachycardia, and her lungs become fuller. She stated that ruminating causes this to increase. Jane’s evidence was that her normal oxygen saturation level is 92, but that level sometimes drops to below 88.

[107] Jane is unable to work due to her “breathing disability.” She can walk about 20 feet without assistance due to trouble breathing.

[108] She had managed to stop smoking about five or six years ago because she “wants to live.”

[109] She has medication delivered. A PSW visits once per week for two hours and every second Saturday for an hour. The PSW performs light cleaning of the apartment and gives her baths. The LIN offered her more assistance, but she refused as it is hard for her to be touched by someone else. She has a housekeeper for regular cleaning.

[110] She has needed a mobility scooter for five or six years, as well as walkers. She is unable to walk very far.

[111] Jane testified that Marian Watt prescribed her puffers, and she has continued to use them regularly. It turned out that one of the puffers contained Tripropylamine, which causes glaucoma, and makes her reluctant to use it but nevertheless continues to use it as she needs it.

[112] Jane has been diagnosed with PTSD and depression. She later indicated it was “severe” depression, as well as “severe” COPD.

[113] ASAP was paid for by OHIP. Most of her medication is covered under ODSP.

[114] Jane’s evidence was that the sexual assault while in the WPP ruined her life. Prior to that, she had been a “warrior.” That changed everything, which, after years being told she was nothing, and trying to “punch up” from her past, the assault solidified it for her. This affected all her relationships.

Analysis of Credibility

[115] I found Val’s recollection from October 14, 1987, was provided in rich and specific detail. She provided evidence as to Jane’s emotional state and the condition of her clothing. Jack’s recollection was more general and based on his notes. Their documented timelines match almost exactly. They both testified that it was Jane who initiated the desire to go out, and that the location was based on safety considerations. Prior to disclosing Jane’s location, Jack explicitly verified with Jane that she wanted to invite B.H. over to her hotel room.

[116] While neither Val nor Jack detailed the encounter in their notes, Jack’s evidence was that the notes were intentionally minimal to protect Jane’s location and safety, whereas Val said it was Jane’s private business. Both Jack and Val’s evidence was that there were no strict requirements on what went into police officers’ notes in the 1980’s.

[117] There were several discrepancies between Jane’s evidence and that of Val and Jack. This included whether Jane was ever left alone in her hotel room without her detail; whether Jane was permitted to initiate or make requests for outings with the Team; and the extent of Jane’s level of autonomy and day-to-day choices. Of note, Jane could not confirm or deny that Pascal had spent the night with her days prior to the event in question.

[118] The most significant is Jane’s account that she absolutely did not want B.H. to visit her at the hotel, versus Jack’s assertion that he explicitly asked Jane if she wanted B.H. to attend her room, and only after she said yes, did he provide B.H. with the hotel and room information. Jack’s account was not challenged in cross-examination.

[119] Jane argued that Val’s evidence was “deeply surprising and somewhat suspicious” and her “story was non-sensical” due to her “unusually precise” recollections and details of an event that was not described in her notes and over 38 years prior.

[120] I found Val’s evidence straightforward, unembellished, and compelling. Her evidence was balanced, and she articulated clearly when she did and did not have an independent recollection of events. For instance, she did not independently recall when they returned to the hotel but could recall re-entering the shared hotel room with Jane following Jane’s encounter with B.H., which corresponded to her recollection when answering the SIU questions. She remembered a fair amount of background information as well as details of the night in question. She corrected details such as where one of the pictures was taken. She noted this was one of her highlights of her career. Val was not challenged in cross-examination as to why she was able to recall particular details or situations. I found her to have a fairly clear recollection despite the passage of time.

[121] Jack had very little independent recollection of events, but I found his evidence was nevertheless credible despite the significant passage of time. His evidence was not shaken on cross-examination. He fairly admitted not recalling the exact words used with Jane when ensuring she wanted B.H. to go over that evening for a visit.

[122] While Jane was certain Val’s notes were fabricated, I am not persuaded this to be the case.

Was there a sexual assault?

[123] From this Court’s perspective, on this issue, only Jane and B.H. know what happened in the hotel room the night of October 14, 1987. B.H. was never served and thus did not participate at trial.

[124] Jane reasonably believes she was sexually assaulted. This was her memory 38 years after the event.

[125] On a balance of probabilities, I am persuaded that Jane was sexually assaulted.

[126] Jane’s unchallenged evidence was that there was direct and intentional physical contact by B.H., which she found to be offensive. She was forced to participate against her will. She did not consent to being touched sexually.

[127] I accept that Jane invited B.H. to her room. This did not mean she was consenting to anything other than a visit with him. Additionally, the case law is clear that any delay in reporting is irrelevant to whether the sexual assault occurred.

[128] What is relevant, however, are the events leading up to the night in question as they are factors in determining whether her detail failed to adequately protect her.

[129] Having considered the evidence, including the testimony of the key witnesses called at trial, I am not persuaded that the Protection detail intentionally and knowingly set up Jane to be sexually assaulted. In fact, the plaintiff withdrew the conspiracy assertion in submissions.

Was Ontario negligent on October 14, 1987

[130] Having found that there was a sexual assault, it is Jane’s position that the officers on her Team were on duty when the events occurred. They worked for the OPP and were on the Witness Protection Program detail, which was run by the Ministry of the Attorney General for Ontario. As such, Ontario is vicariously liable for what they did or did not do that night.

[131] It should be noted that Jane’s suggestion of there being a conspiracy between the WPP detail and B.H. was abandoned in submissions.[^11]

[132] Jane advanced a claim for negligence, breach of fiduciary duty, and breach of contract. She is claiming general damages, past and future loss of income and treatment/ future care costs. She raises the following questions:

a. Was there negligence?

b. Was there a fiduciary duty and was it breached?

c. Was there a breach of contract?

Was there negligence?

[133] The four elements of negligence are the following:

a. Duty of care: The plaintiff must prove the defendant owed them a legal duty of care. This duty exists when it is reasonably foreseeable that the defendant's actions could cause harm to another person.

b. Breach of duty: The plaintiff must show the defendant's conduct fell below the required standard of care. This is often defined as failing to act as a "reasonable person" would under similar circumstances.

c. Causation: The plaintiff must establish a direct link between the defendant's breach and the harm suffered. This includes two parts:

i. Actual cause (cause in fact): The harm would not have occurred "but for" the defendant's actions.

ii. Proximate cause: The harm was a reasonably foreseeable result of the defendant's breach.

d. Damages: The plaintiff must demonstrate they suffered actual, measurable damages as a result of the defendant's negligence. This harm can be physical, emotional, or financial.

[134] Jane submits that Ontario was negligent in their actions for several reasons. They did not stop an unauthorized visit by a stranger. The Protection Team was not provided any instructions, and they were left to “just wing it,” which was negligent. Actively telling B.H. where Jane was located was a fundamental breach of the principles of the WPP and is also blatantly negligent.

[135] Ontario argues that Jane’s claim in negligence must fail. That if it owed Jane a duty of care, it was limited. Jane failed to adduce expert opinion evidence on the Standard of Care, and her argument that she could not retain an expert must be rejected.

Duty of Care and Standard of Care

[136] To succeed in proving negligence, Ontario must be found to owe Jane a duty of care and to have breached that duty. The finding of duty of care is a question of law, not fact, and the onus is on Jane to prove there is a duty of care.

[137] Jane’s argument is that the Witness Protection Program’s role was to protect her when the assault occurred. This, in her view, included not just protecting her from a specific threat, but also not putting her into danger or creating active harm to her, which is exactly what her detail did when they provided B.H. with her room number and hotel information.

[138] Jane suggested she was never left alone prior to October 14, 1987. She notes this included when her boyfriend Pascal visited on October 8, as “[he] was with her.” In that instance, the visit was arranged and approved of by Bruce Burley and Ted McDonell. Even if he stayed overnight and “was not supposed to,” he was not a stranger to Jane.

[139] Jane had a female officer sleeping in her room and the members of the TRU Team were always close at hand to be able to quickly respond. Jane argued that Jack’s evidence of walking in a 360-degree box formation to ensure close protection supports Jane’s view that this was more than just casual protection. She could not make a phone call without her Team dialing for her. They accompanied her to all her outings, including the bank and the mall.

[140] Jane argues that she had no idea that B.H. was coming to her room, that Jack should not have given out her room information. Further, Val ought to have stopped B.H. from attending. B.H.’s attendance was not approved of by Bruce or Ted. There were no notes of B.H. attending in either Jack or Val’s records, which was different than other notes they had taken.

[141] Jane’s view is that her Team owed her a duty of care because of her being in their program, specifically, not to create risks to her safety. She argued that her detail created a risk to her safety by allowing B.H. to access Jane by giving her the location of where she was staying, and not stopping this unauthorized visit, and not providing the Team with any instructions and leaving them to “wing it” was negligent.

[142] Ontario argues that generally, the police do not owe a private law duty of care to victims of crime.[^12]

[143] Ontario suggests that if there was a duty of care owed by the OPP – the Protection detail - to Jane, it would be a limited one as their limited purpose was to protect her from the Outside Threat, not to protect her from the world at large. This, in their view, did not extend to protecting her from guests she chose to invite to meet her in the privacy of her hotel room. Jane’s signed undertaking, dated March 16, 1988, affirms her request to have the OPP protect “my life to the best of their ability, from the person whom I am going to give evidence against on behalf of the Crown in Court.”[^13] It does not state that she is to be protected from life in general.

[144] Ontario argues that even if they owed Jane a duty of care to protect her from harm caused by people other than the Outside Threat, she has not proven that the OPP’s handling of her case fell below the applicable standard of care. She has not adduced expert evidence going to the standard of care that would apply in this case if Ontario owed her a duty of care against all threats.

[145] In referencing the question of professional negligence, where the defendant has special skills and experience, he or she must “live up to the standards possessed by persons of reasonable skill and experience in that calling.”

Analysis

[146] As set out by the Supreme Court of Canada, the test for determining whether a person owes a duty of care involves two questions: (1) Does the relationship between the plaintiff and the defendant disclose sufficient foreseeability and proximity to establish a prima facie duty of care; and (2) If so, are there any residual policy considerations which ought to negate or limit that duty of care?[^14]

[147] To impose an elevated duty of care "there must also be a close and direct relationship of proximity or neighbourhood."[^15] Here, the Court must consider if the relationship between Jane and her detail/ the WPP program, is marked by sufficient proximity to make the imposition of legal liability for negligence appropriate. The relationship in question is that with the OPP/ WPP and their witness under the Witness Protection Program.

[148] The onus is on the plaintiff of establishing a duty of care.[^16]

[149] Notably, neither party provided case law establishing that the police owe a duty of care to someone who is under the Witness Protection Program.

[150] In Hill v. Hamilton-Wentworth Regional Police Services Board^17 the Supreme Court of Canada found that police officers owe a duty of care to suspects, and their conduct during an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted.

[151] A review of the relevant factors leads me to conclude that the OPP had a duty of care toward Jane, limited to protecting her from the Outside Threat to her life embodied by the illegal gang. The OPP duty of care toward exigencies in Jane's life was limited in scope to the standard general duty of care owed by the police to the public at large; that is a legal obligation to take reasonable care to avoid acts or omissions that could foreseeably cause harm to others. The standard of care was the standard of care expected of a reasonable professional police officer in the context of the circumstances of the moment. I am not of the view that there are policy considerations that ought to negate that duty of care.

[152] In this case, the private duty of care undertaken by the WPP pertained to the identified risk to her life from the outlaw gang. It is a fact that the officers did not fail in that undertaking. The issue is whether the officers breached their general duty of care; namely, the legal obligation to take reasonable care to avoid acts or omissions that could foreseeably cause harm to others in the context of their general duty of care to the public.

[153] I turn now to what is the appropriate standard of care. As noted in Hill, the general rule is that the standard of care in negligence is that of a reasonable police officer in similar circumstances.[^18]

[154] In cases of professional negligence, this rule is qualified by an additional principle: where the defendant has special skills and experience, the defendant must "live up to the standards possessed by persons of reasonable skill and experience in that calling".[^19]

[155] The Court in Meady v. Greyhound Canada[^20] noted that the general standard of care of a professional, such as a police officer, is a question of law, but the content of the standard of care in a particular case is a question of fact. As such, the content of the standard will generally require expert evidence.[^21]

[156] In this case, the standard of care is that of a reasonable police officer working in the Witness Protection Program in 1987.

[157] The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made - circumstances that may include urgency and deficiencies of information.[^22]

[158] As noted by the Ontario Court of Appeal in 495793 Ontario Ltd v. Barclay, the general rule is that the content of the standard of care of a professional, such as a police officer, will require expert evidence. While there are cases in which the breach of the standard of care will be apparent without expert evidence, typically when a suit is brought for professional negligence it is customary (and generally necessary), for there to be expert evidence on the standard of care. As the analysis in Hill makes clear, police officers are professionals, and their conduct should be assessed in the same way that other professional negligence claims are evaluated.[^23]

[159] There are two exceptions established in the case law to the general rule requiring expert evidence. The first is nontechnical matters within the knowledge and experience of an ordinary person. The second is where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of that standard of care.[^24]

[160] As the Court stated in 495793, whether expert evidence as to the standard of care of a police officer is required turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care and whether it is met.[^25]

[161] Jane argues that no expert report was required and asserts as to the impossibility of finding an expert given the secrecy of the WPP. In her written submissions, she contends that even within Ontario, “anyone able to comment on 1987 is likely already retired, dead or medically unable to testify.” In written reply closing submissions, Jane expands by saying “reasonable and sustained efforts were made by the plaintiff to locate an expert with knowledge of the Witness Protection Program practices in the late 1980s, but no such expert exists for this historical period and more generally.”

[162] While Jane accepts that generally speaking, an expert opinion is required to establish a standard of care in professional negligence cases, this is not absolute, as there are the two exceptions noted above, basically that the information is nontechnical and within the knowledge and experience of an ordinary person or that the level of actions is so egregious that it is obviously conduct that falls short of the standard of care even if such is not precisely defined.

[163] Jane’s view is that the standard of care would be that of a reasonable police officer within the WPP in 1987. She relies on Val and Jack’s evidence that there were no standards at the time, nor was WPP training available. She accepts their evidence that there were no policies or standard operating procedures. Given there were no standards for their conduct in 1987, there is no comparison available, and therefore no expert evidence is required. She indicates this was “negligent in and of itself since Jane’s life was on the line.” Alternatively, Janes suggests if the standard is what happened when her boyfriend Pascal visited, that visit was coordinated and approved by Bruce and Ted, the contrast with B.H.’s visit is stark.

[164] Ultimately, Jane advances that the question of negligence turns on three things: (a) failure of the OPP to have any training or procedures to provide the WPP Team; (b) the decision to give B.H. Jane’s location; and (c) not preventing the meeting from taking place. She argues these are straightforward decisions and do not involve technical expertise or specialized police discretion, therefore no expert report is required. A reasonable person can assess using common sense and using practical judgement in relation to the everyday standards of care which “do not require expert commentary.”[^26]

[165] Contrary to her concession that there were no standards at the time, in her written closing submissions, she argues that the decision to allow B.H. to visit, when Bruce’s notes are unambiguous that she is not to be contacting anyone or having visits, is a “clear breach of the standard of care that existed in 1987.”[^27]

[166] Jane further submits the WPP’s blatantly negligent and egregious conduct fell within the second exception as to expert evidence. These actions include Jack’s decision to give B.H. her location despite it being a closely guarded secret, which is confirmed in her signed paperwork. She articulates that this was in “clear violation of one of the fundamental precepts of the WPP. It is so blatantly negligent on its face that there is no requirement for expert commentary as any reasonable person would recognize the seriousness of the breach.”[^28]

[167] The plaintiff bears the burden of demonstrating that the OPP and WPP’s handling of Jane’s case fell below the applicable standard of care. The case law requires expert evidence on this issue. There is no evidence that Jane attempted to retain an expert to address the standard of care issue. Her assertions that anyone qualified to comment on practices in 1987 is “likely already retired, dead, or medically unable to testify,” and that “no such expert exists,” are unsupported by any evidence. Submissions are not evidence.

[168] Jane articulates that section 7 of the Crown Witness Act makes it “impossible to find an expert” as there are sanctions for disclosing information. However, section 7(2) of the said Act allows exceptions. There is no evidence of this exception being sought by Jane, despite there being an argument that could have been raised by her that it was “essential to the administration of justice.”[^29] Notably, this case was commenced four years prior to the trial being heard.

[169] In the absence of an evidentiary foundation, I cannot accept the assertion that no expert was available.

[170] The evidence establishes that the WPP is a distinct program within the OPP. Jane’s on-site Protection detail was handled principally by the Tactical and Response Unit (“TRU”) Team. In my view, Jane cannot simply compare general programs versus specific programs as well as possible standards of care without expert evidence to support such comparison.

[171] Looking at the facts of this case, I am of the view that the WPP is a tailored program within the OPP such that I cannot simply rely on my own knowledge and experience to determine the applicable standard of care. Nor am I persuaded that the issues at hand are non-technical or so blatantly negligent or egregious that the conduct has fallen short of the standard of care without evidence as to what that standard was in 1987.

[172] Further, I am not of the view that a lack of policies or standard operating procedures equates to there not being a standard of care. These, in my view, are very distinct issues, and do not detract from the necessity of expert evidence.

[173] In the event that I am wrong about the requirement that Jane must adduce expert evidence, I turn to the allegations raised by Jane, that the standard of care has been breached by: (a) failure of the OPP to have any training or procedures to provide the WPP Team; (b) the decision to give B.H. Jane’s location while this was a closely guarded secret; (c) not preventing the meeting from taking place; and (d) that there was a breach by the Team’s failure to conduct a background check on B.H.

[174] The evidence establishes that in 1987 there were no standard operating procedures, standing orders, or specific requirements governing note‑taking while on WPP detail, including with respect to whom Jane would meet on any given day. At that time, the level of detail recorded in notes was largely discretionary.

[175] Both Val and Jack testified that their role was to protect Jane from those against whom she was to give evidence, or who sought to kill her in relation to her testimony. Jack’s evidence established Jane was granted a fair bit of autonomy to keep her happy, as her involvement was voluntary and she was not a prisoner.

[176] The Team did not ask Bruce permission or seek his instructions to go to outings, including to meals or the movies, nor was it practical to do so as cell phones did not exist at the time. There was no evidence that there was a requirement to seek permission or instructions for outings.

[177] In 1987, it was established that there was no specialized training or procedures provided to the WPP Team. Nonetheless, the evidence at trial established that both Jack and Val had completed regular OPP training. It is reasonable in my view to believe that Jack received additional training because of his role as part of the TRU Team.

[178] The Team’s evidence was that they were responsible for Jane’s safety against the Outside Threat. They were given a great deal of latitude regarding day-to-day decisions, which was necessary to balance Jane’s happiness and ongoing cooperation versus protecting her from this Outside Threat. Both Jack and Val testified that this was achieved by discussing Jane’s requests within the Team and deciding whether it could be managed within the confines of their mandate. As such, I am of the view that there were some protocols and/or procedures in place to ensure they were protecting Jane. This included Val sleeping in the same room as Jane and the TRU Team always watching for threats when outside the hotel room.

[179] I accept Jack’s evidence that he explicitly verified with Jane that she wanted B.H. to go back to her hotel room. Only upon confirmation of her request did he provide him with Jane’s contact details.

[180] In 1987, there were no standing operating procedures, and no requirement to conduct a formal background check on a serving police officer encountered at a police-only venue. Jack’s prior knowledge of B.H. from police college and his status as a serving officer, in my view, formed part of the reasonable contemporaneous assessment. I accept Val’s recollection that Jane was happy about B.H.’s impending visit.

[181] The week prior, Jane had a private visit from her police officer boyfriend Pascal which had been approved by Bruce and Ted to spend private time with Jane in her room. Her location was revealed to him on that occasion as well as when he visited her in Eastern Ontario. B.H. was also a police officer and there was no evidence that he formed part of the Outside Threat. The Team had free rein on what was permissible provided they were protecting Jane from those trying to kill her. Given these findings of fact, as well as Jack verifying that Jane wanted B.H. to come over, I find it was reasonable for her Team to assume that they could permit her to have a male friend over on the night in question. Further, the standard required the Team to remain sufficiently close to intervene. My findings include that there was proximate supervision, in that the Team was in the adjoining room, and that the adjoining door was unlocked.

[182] The Team’s mandate was to protect her from an Outside Threat, not from decisions she wished to make about her personal life. The Team, in my view, conducted a reasonable real-time risk assessment, calibrated to the 1987 practice. They verified Jane’s wishes and ensured proximate supervision permitting rapid intervention.

[183] While Jane relies on Bruce’s 2017 SIU statement that no one in the Protection detail would have allowed an unaccompanied visit to Jane’s hotel room, this statement was not put to Jack or Val, and Bruce did not testify. The evidence as I find it, supports that Jane’s boyfriend spent time alone with her while she was in the WPP the week prior to the events in question.

[184] Further, the read-ins confirm that today’s practices cannot be retrofitted to the 1987 events. The read-ins also confirm that there were no standing operating procedures or noted policies requiring handler approval prior to allowing visits.

[185] I am not persuaded that Val’s independent recollection was flawed. While her notes provided little detail as to the night in question, I found her to be credible and her evidence reliable. Val had only recently been assigned to this task force. I also found Jack’s recollection of events, though not as precise, nevertheless reliable.

[186] The Protection details’ role, as discussed above, was to protect Jane from the Outside Threat, specifically, from the persons against whom she was going to provide evidence. The evidence as I find it includes that Jane wished to go to the movies, the mall, and out dancing. The Team organized the details to permit this to occur as safely as possible. On the night in question, they attended the Metro Club, as they felt it was reasonable to believe that the Outside Threat would not be able to enter such a location.

[187] That evening, on the evidence that I accept, Jane requested that B.H. attend her hotel room. Jack explicitly verified her consent. The balancing act imposed on her detail necessitated a determination of this issue. It was 1987. It was approximately 2:00 a.m. There were no cell phones or immediate ways to reach Bruce or Ted. The Team had the discretion consistent with Jane’s autonomy to approve reasonable requests.

[188] There was no evidence that B.H. was the Outside Threat. I am not persuaded that there would have been a breach to the standard of care by the Protection Team not running a background check on B.H. given his occupation.

[189] Further, in view of the circumstances at the time, including the latitude given to the Team to make day to day decisions, I am not persuaded that there was a breach of the standard of care in providing B.H. Jane’s location and allowing the visit to occur as (a) I find that this was her request; (b) Jack explicitly confirmed her wishes before providing the information; (c) their duty was to protect her from the outside threat; (d) they were in the adjoining room when he attended; (e) Bruce and Ted granted a very similar request the week prior; (f) B.H. and Pascal were both police officers; (g) Jane was left unattended for a short period of time; and (h) Val returned to the room after B.H. left. In my view, the officers acted in good faith.

[190] The duty of care owed by Ontario to Jane relative to life’s risks outside the purview of protecting her as against the Outside Threat has to be distinguished from risks involved in day-to-day life, such that, while there may be a private duty of care for the first, there is not for the second. The duty of care in relation to risks associated with her day-to-day life are the same as the duty of care police owe to every citizen.

[191] In Canada, a police officer's duty of care to individual members of the public is generally not a private law duty to protect every citizen, but rather a broader public duty that can evolve into a private law obligation when a special relationship of proximity or influence exists. The duty of care to individuals is limited to specific circumstances. Police do not owe a private duty of care to victims of crime simply because they are victims. A failure to respond to or prevent crime without more is generally not actionable as negligence.

[192] A private law duty of care exists when a special relationship is created such as when a specific person is brought into proximity with the police in circumstances where police are aware of a known threat to a specific identifiable victim.

[193] In my view, given their mandate to protect Jane’s life from the Outside Threat, and not protect her from life in general, I am not persuaded that the Team’s actions fell below the standard of care in 1987.

Causation / Foreseeability

[194] I have concluded that the WPP Team satisfied the requisite standard of care, they were therefore not negligent. If that conclusion is incorrect, I will briefly address the causation issue.

[195] Causation is established if the defendant's breach of duty directly caused the plaintiff's injuries, established by showing "but for" the defendant's actions, the injury would not have happened. It includes both cause in fact and proximate cause (foreseeability).

[196] As set out in Hemmings (Litigation Guardian of) v. Peng,[^30] in Canada, the general test for factual causation is the "but for" test. Under it, a plaintiff must show, on a balance of probabilities, that "but for" the defendant's negligent act or omission, the injury would not have occurred: that is, the defendant's negligence was necessary to bring about the injury.[^31] Further, the plaintiff does not need to establish the defendants negligence was the sole cause of her injury; it is sufficient to prove, on a balance of probabilities, that the defendant’s carelessness was part of the cause of her loss.[^32]

[197] In addition to showing the defendant’s conduct was a cause-in-fact of her injury, to establish the defendant’s liability a plaintiff must also prove the defendant was a legal cause of her injury.[^33] The jurisprudence calls this requirement by various names: such as “proximate cause”; not too “remote”; and “cause-in-law”. Whichever term is used, the basic inquiry remains the same: were the injuries suffered by the plaintiff linked in the right way to the carelessness of the defendant? Or, as put in Mustapha[^34]: “whether ‘the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable.’”[^35]

[198] Jane submitted that contrary to the defendant’s position which relied on Wagon Mound[^36] emphasizing that only reasonably foreseeable harms are compensable, the duty of care to Jane was broad and context specific. Her view was that the OPP undertook a duty to protect her, a vulnerable witness in their care and control, not only from a specific threat but from harm generally when she was under their direct control. In her view, the very nature of Witness Protection is that the state assumes responsibility for the witness’ safety “in all respects” given the witness’ inability to protect themselves or control their environment.

[199] From Jane’s perspective, she was under near-total control by her Team and realistically could not leave. She needed permission to see people and could not dial the telephone. Rooms were swept prior to entering and the Team walked in a 360-degree formation for protection. She argues that this level of control creates a corresponding duty to anticipate and prevent ranges of harms, not just those from the very specific criminal threats.

[200] In her submission, the law does not require that the precise manner in which harm occurs be foreseeable, only that the general type of harm is foreseeable. Jane relies on the United Kingdom 1963 decision of Hughes v. Lord Advocate,[^37] where the Court held that although in the law of negligence the duty to take reasonable care was confined to reasonably foreseeable dangers, the fact that the danger actually materialising was not identical with the danger reasonably foreseeable did not necessarily result in liability not arising. Jane equates this decision with her submission that the Team did not need to have intended for Jane to be sexually assaulted for the assault to be foreseeable.

[201] Ontario argues that any damages suffered by Jane are too remote to establish liability. To support their view, they rely on Hemmings,[^38] for the following proposition regarding legal causation:

In general terms, foreseeability lies at the heart of this inquiry: "it is the foresight of the reasonable man which alone can determine responsibility.” Mere possibility that the harm would occur is not sufficient: "possibility alone does not provide a meaningful standard for the application of reasonable foreseeability." Instead, in Mustapha, the Supreme Court stated the degree of probability or likelihood that would satisfy the reasonable foreseeability requirement is a "real risk", that is "one which would occur to the mind of a reasonable man in the position of the defendan[t] … and which he would not brush aside as far-fetched." [citations omitted]

[202] The defendant argues that foreseeability is assessed in the circumstances of this particular defendant, not against an abstract standard. Whether the risk of harm satisfied that degree of probability turns on whether the risk is one which would occur to the mind of a reasonable person in the position of the defendant.[^39]

[203] Ontario reiterates that the OPP were protecting Jane from the Outside Threat. She was not at a higher risk of being sexually assaulted than any other woman because she was in the Program. Jane was an adult woman who was free to choose to have an intimate encounter and had invited B.H. to join her in her hotel room. While she was entitled to change her mind at any time, the OPP had no reason to suspect she would change her mind or that B.H. posed a threat. In those circumstances, the OPP’s decision to permit the visit could not be the legal cause of any injury that resulted.

[204] In response to this submission, Jane argues that the case at bar clearly involved such a “real risk.” If the OPP had a general responsibility to make sure that she was not harmed while she was in their custody, then giving her hotel details to a man that neither she nor they knew, at a time when she was alone late at night after being at an event where alcohol was consumed, then it is reasonably foreseeable that she could come to harm in this scenario. She relies on the OPP’s “policies” and rules about not leaving the witness alone, not allowing unaccompanied visitors without prior authorization and documentation, and maintaining constant supervision as being reflective of an understanding that harm could come from “within the Team” or from those with access to the witness.

[205] Jane articulates that the Team’s duty was not confined to one source of danger if they themselves created or exposed Jane to a new, avoidable risk by providing B.H. with her location.

Analysis

[206] The onus is on Jane to demonstrate, on a balance of probabilities, that (a) but-for the Team’s negligent act, omission or carelessness, she would not have been sexually assaulted. Jane also needs to establish legal causation, that the sexual assault was reasonably foreseeable, and not the particular manner in which it occurred, specifically, that the Team was the legal cause of her injury.

[207] In her written submissions, Jane indicates that “while the Team was not obligated to protect [her] from everything and anything that could possibly happen to her, they were the ones that created a real risk of her being harmed by a man, a stranger, when they provided him access to her room and left her unguarded.” [^40]

[208] There is no evidence that the harm came from “within the Team.”

[209] The evidence was clear that the Team’s duty was to prevent harm coming to Jane from the Outside Threat. Jane was not a prisoner. The Team’s evidence was that they tried to balance protection from harm due to the Outside Threat and keeping her happy. She was a grown adult who, the week prior, had her boyfriend spend time with her alone, without any supervision. That encounter was not advanced as a breach of the Team’s duty.

[210] The night in question, based on the evidence which I accept, Jane again wanted to spend some time alone with a man. I find that the Team had discretion to permit Jane this autonomy so long as they were protecting her from the Outside Threat. There is no evidence that B.H. was related to that Outside Threat. The Team was in the adjoining room.

[211] I am not persuaded that their decision to accede to Jane’s request to have time alone equates to a negligent act, omission or carelessness.

[212] With the onus on Jane on a balance of probabilities, I am not persuaded that legal causation has been established. I am not persuaded that the assault was reasonably foreseeable. In light of the circumstances, including the events the week prior, I am not persuaded that the Team created a real risk of Jane being harmed when they provided B.H. access to her room and left her unguarded. I agree with Ontario’s submission that Jane was not at a higher risk of being sexually assaulted than any other woman. Further, being an adult woman who chose to share time with B.H. in her hotel room, and the Team’s decision to permit the visit is not, in my view, the legal cause of the sexual assault, nor does it make the sexual assault reasonably foreseeable.

[213] While Jane argues that the consumption of alcohol has significance, the evidence was that Jane had consumed one drink and had a few sips of another. There was no evidence as to what alcohol B.H. had consumed, or that anyone from the Team was intoxicated or their judgment incapacitated.

[214] Though Jane argues “there was no justification for leaving her unsupervised with someone who was, for all practical purposes, a stranger to both her and her protectors,” the evidence was that Jack was acquainted with B.H. from police college, Jane requested the rendezvous, and there was a precedent established the week prior.

[215] The evidence was that both B.H. and Jane’s boyfriend were police officers. This is distinguishable from the situation with the person Jane invited for supper in Eastern Ontario, for which Val conducted a background check.

[216] I am not persuaded the Team’s actions directly enabled the assault. The chain of events leading to her harm was too remote and not foreseeable. The Team’s mandate was to protect Jane from the Outside Threat, not from life in general.

Was there a fiduciary duty and was it breached?

[217] Jane relies on the Supreme Court of Canada’s decision Lac Minerals Ltd.[^41]where the Court found that there are common features discernible in the contexts in which fiduciary duties have been found to exist, and these common features do provide a rough and ready guide to whether or not the imposition of a fiduciary obligation on a new relationship would be appropriate and consistent. Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.[^42]

[218] The Supreme Court went on to indicate:

The focus is on the identification of relationships in which, because of their inherent purpose or their presumed factual or legal incidents, the Courts will impose a fiduciary obligation on one party to act or refrain from acting in a certain way. The obligation imposed may vary in its specific substance depending on the relationship, though compendiously it can be described as the fiduciary duty of loyalty and will most often include the avoidance of a conflict of duty and interest and a duty not to profit at the expense of the beneficiary. The presumption that a fiduciary obligation will be owed in the context of such a relationship is not irrebuttable, but a strong presumption will exist that such an obligation is present. Further, not every legal claim arising out of a relationship with fiduciary incidents will give rise to a claim for breach of fiduciary duty.[^43]

[219] Fiduciary duty is a doctrine originating in trust. It requires that one party, the fiduciary, act with absolute loyalty toward another party, the beneficiary or cestui que trust, in managing the latter's affairs.[^44] In Alberta, the Court stated that in the past, actors have been held to be under a fiduciary duty in limited circumstances, namely, in discharging the Crown's special responsibilities towards Aboriginal peoples and where the Crown is acting in a private capacity, as in its role as the public guardian and trustee.[^45]

[220] The Supreme Court went on to set out elements which identify the existence of a fiduciary duty in cases not covered by an existing category:

a. First, the evidence must show that the alleged fiduciary gave an undertaking of responsibility to act in the best interests of a beneficiary[^46]. As Cromwell J. wrote in Galambos, at para. 75, "what is required in all cases is an undertaking by the fiduciary, express or implied, to act in accordance with the duty of loyalty reposed on him or her."[^47] The party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake.[^48] The fiduciary's undertaking may be the result of the exercise of statutory powers, the express or implied terms of an agreement or, perhaps, simply an undertaking to act in this way. In cases of per se fiduciary relationships, this undertaking will be found in the nature of the category of relationship in issue. The critical point is that in both per se and ad hoc fiduciary relationships, there will be some undertaking on the part of the fiduciary to act with loyalty.[^49] [emphasis in original]

b. Second, the duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them. Fiduciary duties do not exist at large; they are confined to specific relationships between particular parties. Per se, historically recognized, fiduciary relationships exist as a matter of course within the traditional categories of trustee-cestui que trust, executor-beneficiary, solicitor-client, agent-principal, director-corporation, and guardian-ward or parent-child. By contrast, ad hoc fiduciary relationships must be established on a case-by-case basis.[^50]

c. Finally, to establish a fiduciary duty, the claimant must show that the alleged fiduciary's power may affect the legal or substantial practical interests of the beneficiary.[^51]

[221] In summary, for an ad hoc fiduciary duty to arise, the claimant must show, in addition to the vulnerability arising from the relationship as described by Wilson J. in Frame: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control.[^52]

[222] Fiduciary comes from the Latin "fiducia' meaning 'trust'. Thus, the adjective, 'fiduciary' means of or pertaining to a trustee or trusteeship.[^53] It is only in relation to breaches of the specific obligations imposed because the relationship is one characterized as fiduciary that a claim for breach of fiduciary duty can be founded.^54 The imposition of fiduciary obligations is not limited to those relationships in which a presumption of such an obligation arises. Rather, a fiduciary obligation can arise as a matter of fact out of the specific circumstances of a relationship.[^55]

[223] Fiduciary duties generally arise with regard to obligations originating in a private law context.[^56]

[224] The special characteristics of governmental responsibilities and functions mean that governments will owe fiduciary duties only in limited and special circumstances. As Dickson J., as he then was, wrote for the majority in Guerin, at p. 385:

It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. As the "political trust" cases indicate, the Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function.[^57]

[Emphasis in original]

[225] The duty is one of utmost loyalty to the beneficiary. As Finn states, the fiduciary principle's function "is not to mediate between interests. It is to secure the paramountcy of one side's interests .... The beneficiary's interests are to be protected. This is achieved through a regime designed to secure loyal service of those interests."[^58] Compelling a fiduciary to put the best interests of the beneficiary before their own is thus essential to the relationship.[^59]

[226] The Supreme Court went on to indicate that the degree of control exerted by the government over the interest in question must be equivalent or analogous to direct administration of that interest before a fiduciary relationship can be said to arise. The type of legal control over an interest that arises from the ordinary exercise of statutory powers does not suffice. Otherwise, fiduciary obligations would arise in most day to day government functions making general action for the public good difficult or almost impossible.[^60] It thus emerges that a rigorous application of the general requirements for fiduciary duty will of necessity limit the range of cases in which a fiduciary duty on the government is found.[^61]

[227] In Romagnuolo[^62] the Court confirmed that a claim for a breach of fiduciary duty is not available with respect to police officers carrying out their functions because they owe a duty to the public at large, rather than individual members of the public. The Court went on to indicate that the nature of a fiduciary relationship requires that one party act selflessly in the exclusive interests of another. In performing his or her duty, a police officer does not, either personally or statutorily, undertake to act in the exclusive interest of each individual member of the public. Instead, the officer’s duties are owed to society as a whole.^63

[228] In White v. Ontario, the Court stated that police officers are required to act in the best interests of the public at large without necessarily forming a special relationship, which would have them representing the interests of one party or a group of parties only. [^64] The Court went on to review Guerin; Edwards and Romagnulo, where the Courts did not find that the fiduciary relationship had been made out. The Court did not find that police officers owe a fiduciary duty to the participant in the WPP.[^65]

[229] In John Doe[^66] without deciding the point, the Court assumed Ontario had a fiduciary duty to Mr. Doe, but found there was no evidence of a breach of fiduciary duty. The Court stated that to establish a breach of fiduciary duty, it is not enough just to prove misconduct by a fiduciary. The subtle, sometimes overlooked point, is that a fiduciary’s misconduct is not necessarily fiduciary misconduct.[^67] The Court went on to cite Girardet v. Crease & Co. where Justice Southin noted that it is a perversion of words to say that simple negligence is a breach of fiduciary duty.[^68] Justice Southin went on to indicate “[b]ut ‘fiduciary’” comes from the Latin ‘fiducia’ meaning ‘trust’. Thus, the adjective ‘fiduciary’ means of or pertaining to a trustee or trusteeship.[^69] In John Doe, the Court cited with approval Varcoe v. Sterling[^70] where Keenan J.: “made the point nicely: But not every wrong done by a fiduciary is a breach of that duty. It must be a wrong which is a betrayal of that trust component of the relationship.”

[230] As Jane notes, the Ontario decisions are contrasted by the B.C. decisions where an ad hoc fiduciary duty has been found to exist in Franc v. Webb, where the Court found that “in the unique circumstances of this case, a “power-dependency” relationship arose between the parties sufficient to invoke the fiduciary principle.”[^71] The circumstances in Franc however are, in my view, distinguishable in that Franc was an informant who worked with the RCMP and the “Force” over the course of several years; was later classified as an “agent” and agreed to a fee for his services upon conclusion of his involvement in the investigation, following which he and his family would need special protective measures, essentially being Witness Protection. Ultimately, the Court found that the Force, knowing that Franc was completely vulnerable and completely dependent on it to protect his and his family’s interests, insisted on an inflexible application of the RCMP policy, despite the effect on Franc and his family, and despite their assistance being within the Force’s means. The Court found the Force’s conduct to be high-handed, resulting in that case in entitlement to aggravated damages.

[231] In other words, the Court determined that the WPP owed the plaintiff fidelity relative to the primary risk of safety by the criminal element to the plaintiff and the family. The discussion did not cross over into the matters within the autonomy of the plaintiff and his family.

[232] Jane also relied on Smith v. New Westminster (City), another case from British Columbia where the Court did not recognize WPP officers and their witnesses as a specific class in which there was a fiduciary relationship but did recognize an ad hoc fiduciary relationship in the circumstances of the case.[^72] In Smith, the Court expanded on Southin J.’s comments in Girardet, where they stated, “I make this point because an allegation of breach of fiduciary duty carries with it the stench of dishonesty — if not deceit, then of constructive fraud.”[^73]

[233] The Court went on to review A.(C.) v. C.(J.W.)[^74] where many of the above noted cases were examined. Justice McEachern, C.J.B.C. (as he then was) applied the approach found in the cases decided by the SCC:

I conclude that it would be a principled approach to confine recovery based upon fiduciary duties to cases of the kind where, in addition to other usual requirements such as vulnerability and the existence of a discretion, the defendant personally takes advantage of a relationship of trust or confidence for his or her direct or indirect personal advantage. This excludes from the reach of fiduciary duties many cases that can be resolved upon a tort or contract analysis, has the advantage of greater certainty, and also protects honest persons doing their business in difficult circumstances from the shame and stigma of disloyalty or dishonesty.[^75]

[234] It is also clear that the existence of a fiduciary relationship does not mean that any and all wrongdoing on the part of the fiduciary that may adversely affect the interests of the beneficiary amounts to the breach of a fiduciary duty.[^76]

[235] “A fiduciary is not a guarantor.” A fiduciary “does not breach his or her duties by simply failing to obtain the best result for the beneficiary.”[^77]

[236] The Court in Smith went on state:

In considering the scope of a fiduciary duty in the private law context arising from a relationship of discretionary power and trust, McLachlin C.J.C., in B. (K.L.), supra, for the majority, stated at ¶50:

Returning to the facts of this case, there is no evidence that the government put its own interests ahead of those of the children or committed acts that harmed the children in a way that amounted to betrayal of trust or disloyalty. The worst that can be said of the Superintendent is that he, along with the social workers, failed properly to assess whether the children’s needs and problems could be met in the designated foster homes; failed to discuss the limits of acceptable discipline with the foster parents; and failed to conduct frequent visits to the homes given that they were overplaced and had a documented history of risk (trial judgment, at paras. 74). The essence of the Superintendent’s misconduct was negligence, not disloyalty or breach of trust. There is no suggestion but that he was serving anyone’s interest but that of the children. His fault was not disloyalty, but failure to take sufficient care.[^78]

Jane’s position

[237] Jane submits that upon entering the WPP, she surrendered all of her identification. She argues that the officers had complete discretion over her security. She agreed to comply with their rules. They would keep her safe and alive. She wanted to testify. She advances there was a clear power imbalance in that she was cut off from her friends and family, moved to places she did not know, was no longer able to manage her affairs, such as her mortgage. She relies on documentation from March 9, 1988, regarding her financial debts.[^79]

[238] Jane relies on the October 6, 1987, agreement where she agreed to cooperate in matters of security “as instructed by them.”[^80] She argues that when she entered the WPP, she was a young woman from an unsophisticated background. The OPP exercised complete control over her movements while with her Team, relocating her between hotels and across Ontario under continuous 24/7 protection. Jane’s evidence was that she signed anything they put in front of her. She trusted them when they told her they were looking after her things. She relied completely on her Team, and advanced that this trust was misplaced.

[239] From Jane’s perspective, the circumstances surrounding the assault were the end result of a complete breach of trust between her and the Team, as well as her and Bruce.

[240] She argues that rather than keep her safe, they created a risk for her that resulted in her assault. Similarly, the breach resulted from a breach of trust and the obligation of her Team to keep her location secure. All the hallmarks of a fiduciary duty or an ad hoc fiduciary duty are present.

Ontario’s position

[241] Ontario meanwhile argues that there is nothing in evidence to suggest that the OPP gave any sort of undertaking to act in Jane’s best interests, nor is there anything from which such an undertaking could be implied.

[242] Ontario articulated that the evidence demonstrates that the OPP did not have control over Jane. She and the OPP officers frequently went out at her request, and she was allowed to choose what motel she wanted to stay at in Toronto. It was advanced that she clearly had some sort of government identification because she opened bank accounts, enrolled for unemployment benefits, applied for jobs and rented an apartment in her own name.

[243] Ontario relies on internal OPP documents from 1987 to 1988, reflecting concerns about Jane’s behaviour and risk she was placing herself in, while similarly note that the OPP had no control over her. Such examples include the OPP’s attempt to change Jane’s attitude about paying the phone bill failing which it was going to be cut off by Bell; encouraging Jane to find a job,[^81] Jane’s actions compromising her own security by disclosing her location;[^82] and Jane being less than frank with the OPP regarding her personal financial debts and only telling them what she wants to;[^83] that she was making payments on her loan until December 2, 1987 but was then in arrears for her loan.[^84]

[244] The January 18, 1988, correspondence addresses the impending sale of Jane’s building and going through a lawyer for her business problems rather than using the police officers.[^85] The January 20, 1988, letter states, “We must have input and a degree of control over the actions of the witness to make the program ‘feasible.’”[^86] The letter dated March 9, 1988 references Jane being totally dependent on the OPP as is she still waiting to testify, has relocated, has extensive medical expenses not covered by OHIP, and is working on reintegration into the work force.[^87]

Analysis

[245] There is no evidence to suggest that anyone in the WPP personally took advantage of a relationship of trust or confidence for his or her direct or indirect personal advantage.

[246] I find that a review of the evidence shows that contrary to Jane’s assertion, she was not completely under the control of the WPP, nor was she unsophisticated. Upon entering the WPP, Jane owned an apartment building and was making regular payments toward her loans. She owned a sporty vehicle which was damaged around the time she entered Witness Protection. While she did not recall her licence being suspended, she remembered contacting a lawyer to get her car back. The evidence also establishes a lawyer was looking after her interests regarding the sale of her apartment building for which she received the proceeds.

[247] Nevertheless, though Jane was granted some autonomy while under the WPP, the evidence also shows that the Team made the final decisions, at least in the early days, including the time of the assault, as to her location, relocation, and outings.

[248] On a balance of probabilities, I find the evidence supports the assertion that Jane had sufficient identification to rent an apartment, have a phone line, and have a bank account in which she regularly received money.

[249] Jane’s evidence that she signed whatever documents the OPP/WPP placed before her does not, in my view, establish a fiduciary duty. Nor does her trust that they would act properly or manage her assets fairly.

[250] The evidence as I find it demonstrates that the OPP protected Jane from the Outside Threat and satisfactorily honoured the undertaking.

[251] As noted by Jane in her written closing submissions, there is very little jurisprudence touching on WPP and whether a fiduciary relationship exists. In White,[^88] the Court declined to rule on the issue. In Edwards,[^89] no specific finding was made about whether there was such a duty in circumstances of the case. In John Doe,[^90] without finding there was a fiduciary relationship, the breach had not been established.

[252] The Supreme Court of Canada in Albert indicated that a fiduciary duty is a doctrine resulting in trust. It requires that one party, the fiduciary, act with absolute loyalty toward the other party, the beneficiary, in managing their affairs. The party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake. There is some undertaking, implied or express, to act in this manner. There beneficiary must be vulnerable to the fiduciary’s control who has a discretionary power over them. In addition, the claimant must show a legal or substantial practical interest of the beneficiary that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.

[253] Importantly, it is only in relation to breaches of the specific obligations imposed because the relationship is one characterized as fiduciary that a claim for breach of fiduciary duty can be founded.[^91] The case law necessitates a rigorous application of the general requirements for a fiduciary duty on the government to be found. As noted in Romagnulo, a claim for breach of fiduciary duty is not available with respect to police officers carrying out their functions because they owe a duty to the public at large, not individual members of the public.

[254] The question to be answered is whether this changes with Jane being in the Witness Protection Program.

[255] In my view, this question was addressed in Guerin; Edwards and Romagnulo, and the Court declined to find that the police officers owed a fiduciary duty to a participant in the WPP. In John Doe, the Court assumed there was a fiduciary duty but found there was no evidence of a breach of same. The Court noted in that case that not every wrong done by a fiduciary is a breach of that duty, it must be a wrong which is a betrayal of that trust component of the relationship. In Girardet, the Court noted that an allegation of breach of fiduciary duties carries with it the stench of dishonesty – if not deceit. In A.(C.), the Court concluded that in addition to the usual requirements such as vulnerability and the existence of discretion, the defendant personally takes advantage of a relationship of trust or confidence for their direct or indirect personal advantage. Further, a fiduciary is not a guarantor, they do not breach their duties by simply failing to obtain the best result for the beneficiary.

[256] Again, Jane’s position is that rather than keep her safe, the WPP Team created a risk that resulted in her assault, as well as creating a breach of trust by revealing her location.

[257] In my view, there is no evidence that the defendant exploited the relationship for any personal, direct or indirect, advantage. Rather, the risk that materialized in Jane’s assault arose from the difficult balance between respecting her autonomy, specifically her request for a private visit with B.H., and the responsibility to protect her from the Outside Threat.

[258] The WPP Team’s instruction was to protect Jane from the Outside Threat. In my view, there was no fiduciary duty owed to Jane. However, even assuming the existence of a fiduciary duty, I am not satisfied that the events of October 14, 1987, amounted to a breach of that duty.

Was there a breach of contract?

[259] Jane argues that she was assisting the police investigate a criminal group she knew. She was put into the WPP when her identity as a confidential informant was revealed. She argues “the contract is simple” in that she would testify to help the police put away the criminal element. In exchange, the police and WPP would keep her alive.

[260] Ontario’s position is that there was no contract signed by Jane.

[261] Both Jane and Ontario rely on the same document, signed October 6, 1987.[^92] Details of the document are at paragraph 14, above.

[262] Ontario takes the position that the document is not a contract as only Jane signed it and there is no evidence of an agreement on Ontario’s part or a meeting of the minds. Additionally, the form sets out no obligations on the part of the police or the Ministry. Accordingly, there is no evidence of consideration. The surrounding circumstances further suggest that no agreement between Jane and the Ministry had been reached before October 14, 1987, relying on Bruce Burley’s note of October 20, 1987, which references an agreement having been worked out.[^93]

[263] Ontario argues that even in the documents signed after October 14,1987, there is no evidence of consideration between Jane and Ontario. Jane counter-signed a letter from the Ministry dated October 23, 1987, on October 27, 1987.[^94]

[264] The October 23, 1987, letter establishes the Ministry’s financial commitment to Jane but says nothing about providing protection from or to anyone. It sets out Jane’s only obligation, which is to testify truthfully and to assist the police. In the defendant’s view, testifying for the Crown does not constitute consideration. Jane had already testified before she was threatened and had committed to testify again. Further, as a compellable witness, Jane was required to testify regardless of any arrangement with the OPP or the Crown.

[265] Jane meanwhile argues that the consideration is inherent in the structure and purpose of the Witness Protection Program. Jane’s agreement to follow the rules, including not contacting anyone without authorization, is matched by the OPP’s commitment to provide her protection. The contract clearly states that Jane is under the protection of the OPP, demonstrating that both parties have responsibilities: Jane’s to comply with the rules and the OPP to ensure her safety. The agreement includes an offer, acceptance and consideration, thus a contractual relationship.

[266] Jane’s evidence at trial was that she “signed anything put in front of [her]” “without question, without reading it.”

[267] Jane articulates she was completely reliant on the WPP throughout her time with them. The WPP made sure she could not leave as they had taken her ID and forbidden her to use her birth name. She had no money. She had no ability to leave their protection even if she had wanted to. Had she chosen to leave, she would likely have been killed, and the police would have lost their witness they needed to prosecute.

[268] In arguing that the breach of contract cannot succeed due to the lack of consideration, Ontario relies on Edwards v. Canada (Attorney General)[^95] a case revolving around the Witness Protection Program and Ms. Edward’s request for protection through the WPP. Ms. Edward’s position was that based on the words spoken by the Chief Justice in chambers on the afternoon she gave testimony gave rise to a contract that could be enforced against the Attorney General. Her recollection was the Chief Justice stated “she should not be afraid because from that moment [of her meeting with the Chief Justice], she was in the Witness Protection and Relocation Program.” This statement was not recalled in the same fashion by the other witnesses present, nor did they, nor the Chief Justice, have the authority to place someone in the WPP. Justice Lax, in Edwards, discussed the difference between the WPP and police protection for a witness, and found the latter was the one recommended by the Chief Justice. Lax J. went on to find that the claim in contract could not success:

Finally, it cannot be overlooked that Ms. Edwards was not offered any inducements or rewards to testify. She came forward voluntarily and was a compellable witness. Agreement is the basis of any legally enforceable contract. Here, there was no meeting of the minds, nor was there any consideration for the alleged contract. The plaintiffs’ claim in contract cannot succeed.

Analysis

[269] In Ontario, a contract is formed based on an offer by one party, accepted by the other, or through an exchange of promises, supported by consideration.[^96] There must be an intention to create a contractual relationship, a clear offer and acceptance, certainty of terms and consideration for the agreement.

[270] The essence of Jane’s argument is that on October 14, 1987, when she was sexually assaulted by B.H., based on the contract above, she was to comply with the rules and the WPP Team was to ensure her safety, or, as articulated in her written submissions, keep her alive.

[271] A plain reading of the document is required in this case. I note that the document does not specify the level of protection and what was involved in terms of the Ministry. It is not clear what level of protection was offered for Jane.

[272] I am not of the view that this document is meant to establish a duty on the OPP to protect Jane from each and every threat possibly imagined. Reasonably, it has to be related to the threat with regard to her involvement as a witness. It cannot be open ended.

[273] To state that the WPP would keep Jane alive is not in evidence from the wording of the document, should I find it to be a contract. It can just as easily be said that they would protect her from a threat directly related to her status as an informant.

[274] What occurred in this instance is wholly unrelated to the risks arising from her status as an informant and, consequently, falls outside the scope or purpose of the WPP is intended to guard against.

[275] Jane’s inclusion in the WPP was predicated solely on risks flowing from her cooperation as an informant in a criminal prosecution. The program does not, and could not reasonably be understood to, provide protection against all risks imaginable, irrespective of their connection to her informant role.

[276] Even if I were to find that there has been a breach because of the events of October 14, 1987, this event had nothing to do with Jane’s status as an informant and could easily have occurred had she not been an informant.

[277] As such, in my view, this argument fails.

Conclusion on negligence

[278] In the event that I have erred in my conclusion that Ontario is not liable, I will determine what damages I would have found in favour of Jane had I concluded that the defendant was liable in the manner that she alleges.

[279] For the purpose of damage assessment only the context, to make sense, assumes that Ontario was negligent, that Ontario breached its undertaking to the plaintiff or that it failed in its fiduciary duties to her. As noted above, that is contrary to my findings.

What are the damages?

a. What are Jane’s general damages?

b. Is Jane’s COPD causally linked to the assault?

c. Is there a loss of income?

d. What are Jane’s treatment needs?

[280] Jane is seeking the following damages:

a. General Damages: $300,000.00

b. Past Loss of Income: $1,004,585.00

c. Future Loss of Income: $190,038.00

d. Psychological treatment: $60,000.00

e. Other care/ Housekeeping: $169,478.40

Total: $1,724,101.40

[281] As set out by the Supreme Court of Canada in Athey v. Leonati, Jane has the burden of proving, on a balance of probabilities, that the defendant caused or contributed to her injuries by their negligence.[^97] The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision.[^98]

Jane’s causation argument regarding her psychological diagnosis

[282] Jane argues there was no evidence brought forward by the defendants to show she would have developed her physical and psychological condition regardless of the assault.

[283] On the issue of causation regarding psychological diagnosis, Jane testified that she was suffering from nightmares following the 1987 assault and to vivid frequent flashbacks to that night. Jane did not describe nightmares or flashbacks emanating from her childhood or her abusive husband.

[284] Dr. Jackson, Jane’s expert, testified that during their interview, Jane spoke of her nightmares and intrusive memories of B.H. leaving the room following the assault, the words uttered by him, and the vaginal sensations that were so strong they woke her up and were reminiscent of the sexual assault.

[285] According to Jane, both Dr. Ricci, the defendant’s expert, and Dr. Jackson, came largely to the same diagnoses: PTSD – severe (late onset according to Dr. Jackson) (complex, chronic according to Dr. Ricci) and persistent depressive disorder- severe. Their main difference was their respective positions regarding causation.

[286] Jane argues that the assault is the primary cause of her PTSD and depression. But for the assault, she saw herself as strong, a warrior, a survivor, Teflon. Following the assault, she described herself as broken, without dignity. She entered the WPP as a warrior and exited as a broken woman.

[287] Dr. Jackson concluded that the assault is the cause of Jane’s psychological presentation. She gave more weight to the assault given Jane’s age at the time and the facts of how it happened. She also noted the presence of mitigating factors to Jane’s adverse childhood events including having a strong relationship with her mother.

[288] Dr. Ricci, however, opined that the assault is “a” cause of her psychological diagnoses as she found Jane’s psychological history was too complicated. She likened it to a ball of tangled yarn. Jane articulates that Dr. Ricci clearly applied the material contribution test.

[289] Jane submits that the law does not require her to prove that the defendant’s negligence was the sole cause of the injury, it is sufficient to demonstrate their actions were “a” cause, a real and meaningful part of the chain of events leading to the harm. As long as the defendant is part of the cause, liability attaches, even if their act alone was not enough to create the injury. The presence of other causal factors does not excuse the defendant from liability if their conduct materially contributed to the harm.

[290] According to Jane, Dr. Ricci described her PTSD and depression as resulting from a constellation of traumas, including the 1987 assault. She specifically describes all of the traumas Jane experienced as having been “wrapped together in a ball.” These injuries are indivisible and cannot be separated by cause. However, as Dr. Ricci was clear that the 1987 assault was “a” cause of her psychological diagnoses, the 1987 assault materially contributed to the plaintiff’s condition, the requirements for causation are satisfied under Athey.

[291] While in Jane’s view, Dr. Jackson’s opinion provides a more compelling and equitable assessment, she advances that even considering Dr. Ricci’s analysis, the legal requirements for causation are fully satisfied. The evidence clearly establishes that the assault was a contributing factor to her psychological condition. On this basis, the defendants remain fully liable for all of Jane’s psychological diagnoses. Jane also submits that contrary to Ontario’s assertion, Dr. Jackson had the 2015 hospital records.

[292] On the issue raised by Ontario about Jane’s trauma from the sexual assault by the taxi driver, Jane’s evidence was that though it took her a long time to get over it, she had managed to put it to the back of her mind and did not experience flashbacks. This incident was not raised to either expert and there is no basis to suggest it plays any role in her present condition.

Ontario’s causation argument regarding Jane’s psychological diagnosis

[293] The defendant’s primary argument is that if this Court finds that Ontario is responsible for B.H.’s actions, Jane would be entitled to damages. However, Jane’s claim for damages is disproportionate, excessive and remote.

[294] They argue that while Jane would be entitled to general damages for sexual assault, and some additional amount for psychological injuries, Ontario cannot be held responsible for all, or even most, of her psychological difficulties.

[295] It is conceded that Jane suffers from serious psychological conditions. Both Dr. Jackson and Dr. Ricci agree that Jane suffers from PTSD and Depression. However, the cause of Jane's present psychological condition is disputed. Jane’s position is that the 1987 assault was the sole cause of her psychological injury. Ontario submits this assertion was undermined by the evidence at trial, including the admissions made by her own expert psychologist. Instead, Jane experienced a long history of traumatic events, dating back to her childhood, which continue to substantially influence her psychological condition, and which resulted in serious psychological symptoms well before the events of 1987.

[296] Ontario suggests that the nature and extent of Jane’s pre-existing psychological traumas must result in a substantial discount to any damages amount awarded on this issue.

Submissions as to Jane’s evidence

[297] Ontario submits that Jane experienced a longstanding history of trauma and abuse that significantly predated the 1987 assault. Her childhood was marked by severe domestic abuse at the hands of an alcoholic father who terrorized the family. Jane reported, for example, that her father once forced her to eat cat feces. She told Dr. Ricci that she and her siblings referred to their father using an epithet reflective of their fear and contempt toward him. Her father was intermittently present throughout her childhood, later returning when Jane was a young adult. During that period, he lived with her and, on one occasion, threatened her with a knife. Jane lived with her mother and four siblings in unstable circumstances, moving frequently between cities. At one point, her younger siblings were placed in an orphanage, an experience Jane described as creating significant tension within the family. Jane was compelled to assume substantial caregiving responsibilities in the household at a young age, pressures that ultimately led her to run away from home.

[298] Jane further reported that she was subjected to repeated sexual abuse during her childhood. This included abuse by individuals outside her immediate household.

[299] On one occasion, the neighbour next door chewed her nipples and urinated on Jane. Jane testified that she was sexually assaulted by her cousin. The evidence suggests that the full scope of Jane’s childhood sexual victimization may not yet be fully known. When asked by Dr. Ricci to describe the totality of this trauma, Jane responded that “we don’t have time to discuss it all,” underscoring both its extent and ongoing impact. Jane made similar remarks in her testimony at trial, telling the Court about how she had been a victim of sexual assault many times over the years, that “if I was to indulge you with every instance in my life that somebody took a shot at me, we would be sitting here for days. This one and that one, it was just a part of life.”[^99]

[300] Ontario provides several more examples of incidents in Jane’s life which, according to Dr. Jackson and/or Dr. Ricci, had a significant impact on Jane’s life. These included:

o her in-patient psychiatric admission when she was around 12-13 years old where she stayed for nine months, and where she was sexually assaulted by another patient in the psychiatric ward. Jane was traumatized by her perception of abandonment as her mother did not come to take her home. In Jane’s mind that omission “knocked [her mother] off the pedestal.”

o Jane’s mother chose Jane’s abusive ex-boyfriend over her because he bought her mother a car, effectively forcing Jane from the home.

o Jane was a victim of sexual assault as an adult, including incidents before entering the WPP when a friend of hers masturbated on her leg, and once by a taxi driver taking Jane home from the hospital, where her evidence was it “took me a long time to get over that one.”[^100]

[301] Jane’s long history of trauma eventually took its toll, culminating with admission to the psychiatric hospital in June 2015. While at the hospital Jane expressed in great detail all of her past history and trauma. Jane’s response when asked how she ended up in the hospital was that her husband Luke “came at me drunk on night. The last time he ever came at me drunk. I didn’t hesitate this time, it didn’t take much too, and he was on the ground. That’s when I knew I needed help. This is over. This is it. I’m done. I’ve got to fix me.”

[302] Luke had been abusive in various ways, including physically and sexually. He was an alcoholic. He did things like pull her out of the bed by her ankles when he came home drunk. Jane also had financial problems which were impacting her at the time of her admission. She had recently lost the restaurant business, and she and Luke were without a source of income and expected eviction from their apartment.

[303] Ontario submits that it is notable that in Jane’s 2015 psychiatric admission, Jane went into great detail about her childhood sexual abuse, abuse from her father, and current abuse, but did not mention the 1987 assault. Jane put a great deal of weight on being a “survivor” of childhood abuse but had been “broken” by the 1987 assault. Jane meanwhile told Dr. Ricci that she felt she had been a survivor of all her traumas, until around 2015 when it all became too much for her to handle.

Submissions as to Expert’s evidence

[304] A brief overview of Ontario’s submissions are detailed below.

[305] Dr. Jackson spent some time describing the impact of “Aversive Childhood Experiences” (“ACE”) on adult psychological symptoms. She clarified that the types of ACE’s that could be expected to create the most serious and long-lasting psychological impact into adulthood are childhood sexual abuse, and abandonment. Dr. Ricci agreed, clarifying that sexual abuse experienced in childhood is generally significantly more traumatic than sexual abuse suffered as an adult.

[306] Dr. Jackson’s initial opinion was that Jane’s childhood trauma was not serious as she had not experienced either abandonment or sexual abuse, and that any negative experiences she had encountered as a child had been mitigated by her mother’s support. However, on cross-examination this position was revised when details about Jane’s childhood trauma and sexual abuse were brought to her attention, along with the nine-month psychiatric admission as a young adolescent.

[307] Jane described her parents as being “evil” to the hospital staff and told Dr. Ricci that the safest she ever felt in her life was when she was working as an exotic dancer, which arguably would be unexpected from someone who experienced a safe, secure childhood.

[308] Dr. Jackson agreed that Jane’s statement to hospital staff that she “cannot stop thinking about her past as a child where she was sexually assaulted by various family members and friends” constituted severe rumination on past trauma, serious enough to land Jane in the hospital.

[309] Dr. Ricci’s evidence was that Jane’s lack of interest in sex started several years into her relationship with her partner, most likely due to his ongoing physical and sexual abuse.

[310] According to Dr. Ricci, when completing the DAP’s test, Jane identified as her “index traumas” as her father forcing her to eat cat feces as a child and a neighbour sexually assaulting her as a child. It was not until the next day during a phone call that Jane added the 1987 assault to the list. When Dr. Ricci asked Jane what she felt caused her psychological symptoms, Jane said she did not know, that there were multiple causes.

[311] Dr. Ricci’s evidence was that the nightmares and flashbacks experienced by Jane were not only due to the 1987 assault, but on a variety of topics.

[312] Ontario accepts Dr. Jackson’s evidence that delayed onset of symptoms of trauma is common; that an individual may appear to not be seriously affected by trauma until it manifests later in life. Despite a lengthy psychiatric hospitalization around the age of 12 or 13, through her adulthood, Jane appeared to have effectively dealt with both the trauma of her childhood sexual abuse and the 1987 assault, going on to lead a normal life where she was able to work, get married, and have a child. This continued until 2015, when a variety of factors collided, leading Jane to the 2015 admission to the psychiatric hospital.

[313] There is no “battle of the experts” on the issue of causation. The plaintiff’s submissions suggest there is a contest between Dr. Jackson’s opinion that the sole cause of Jane’s diagnosis was the 1987 assault, and Dr. Ricci’s opinion that Jane’s trauma has multiple causes.

[314] Ontario argues that while this was indeed Dr. Jackson’s opinion in her original and supplementary reports, Jane ignores Dr. Jackson’s cross examination. Ontario submits that on cross-examination Dr. Jackson flipped her opinion, agreeing with Dr. Ricci that given Jane suffered from serious preexisting trauma, and that her current psychological condition has multiple causes. While Ontario submits that Dr. Jackson has adopted the causation opinion of Dr. Ricci, to the extent that there is conflict between the two, Dr. Ricci’s opinion should be preferred, as she was the only one provided with a full picture of Jane’s history of trauma.

[315] While disputed by the plaintiff, Dr. Jackson appeared not to have reviewed Jane’s 2015 psychiatric admission materials, which demonstrated that Jane was suffering from a wide variety of pre-existing psychological difficulties that Dr. Jackson had not been aware of, most notably that she “cannot stop thinking about her past where she was sexually assaulted by various family members and friends,” and her institutionalization at age 12-13 in a psychiatric hospital.

[316] Additionally, Ontario argues that Jane failed to inform Dr. Jackson about a whole laundry list of traumas that she had experienced in her life. Jane also failed to inform Dr. Jackson of serious instances of abuse perpetrated by her father, including being forced to eat cat feces, as well as a long history of abuse by her husband. Dr Jackson testified that she had only been aware that Jane’s husband had been an alcoholic, not that he had been physically and sexually abusive throughout their marriage.

[317] Moreover, after portions of the previously missing information came to Dr. Jackson’s attention through her review of Dr. Ricci’s report, she was unable to reassess Jane, despite testifying that she would have wished to do so.

[318] In Athey, the defendants were liable for the full extent of damages because there was no measurable risk that the plaintiff would have suffered a herniated disc without the accident. In this case, there is not only a “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future,” there is a virtual certainty. Jane had already been hospitalized for nine months as an adolescent for suicidal ideation. When she was admitted to the psychiatric hospital in 2015 because she could not “stop thinking about her past as a child where she was sexually assaulted by various family members and friends.” Even Dr. Jackson, when she attempted to fall back on re-examination to the opinion that Jane’s childhood trauma could not have caused PTSD because it supposedly resulted in no psychological symptoms in childhood, was forced to admit on sur-cross examination that this was inaccurate given her psychiatric hospitalization as a youth.

[319] Jane had already suffered from significant psychological harm before the assault in question, which had already had a major impact on her life. Accordingly, Jane’s pre-existing trauma should be taken into account in any damages award.

[320] Ontario submits that 50% would be an appropriate discount rate given the severity and nature of Jane’s pre-existing trauma.

Caselaw

[321] Jane relies on Athey v. Leonati to suggest that Ontario should be responsible for 100% of her current psychological condition, that it is not necessary for the plaintiff to establish that the defendant's negligence was the sole cause of the injury.[^101]

[322] Causation is established where the plaintiff proves on a balance of probabilities that the defendant caused or contributed to the injury.[^102] The general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.[^103] The "but for" test is unworkable in some circumstances, so the Courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury.[^104]

[323] The plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury. The causation test is not to be applied too rigidly.[^105]

[324] As long as a defendant is part of the cause of an injury, the defendant is liable, even though their act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.[^106] The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm. It is sufficient if the defendant's negligence was a cause of the harm.[^107]

[325] The Supreme Court in Athey commented that if the law permitted apportionment between tortious causes and non-tortious causes, a plaintiff could recover 100 per cent of his or her loss only when the defendant's negligence was the sole cause of the injuries. Since most events are the result of a complex set of causes, there will frequently be non-tortious causes contributing to the injury. defendants could frequently and easily identify non-tortious contributing causes, so plaintiffs would rarely receive full compensation even after proving that the defendant caused the injury. This would be contrary to established principles and the essential purpose of tort law, which is to restore the plaintiff to the position he or she would have enjoyed but for the negligence of the defendant.[^108]

[326] However, Athey does not stand for the proposition that pre-existing issues can be ignored. Rather, Athey reinforces the longstanding principle of tort damages that “the defendant need not put the plaintiff in a position better than his or her original position” and “need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway.” Rather, the “defendant is liable for the additional damage but not the pre-existing damage.”[^109] Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this can be taken into account in reducing the overall award.[^110]

[327] Nine years later, in Blackwater v. Plint,[^111] the Supreme Court explored the context of pre-existing psychological injuries, and in doing so considered Athey. In that case, the Court evaluated damages awards to residential school survivors who had experienced sexual abuse. The Court discussed the calculation of damages for sexual assault to a particular individual as being complicated by two other sources of trauma, being the trauma suffered in his home prior to going to the residential school and trauma for non-sexual abuse and deprivation at the school which was statute barred.[^112] The Court commented that all these sources of trauma fused with subsequent experiences to create the problems that beset the individual in question all his life. The Court articulated, “[u]ntangling the different sources of damage and loss may be nigh impossible. Yet the law requires that it be done, since at law a plaintiff is entitled only to be compensated for loss caused by the actionable wrong. It is the “essential purpose and most basic principle of tort law” that the plaintiff be placed in the position he or she would have been in had the tort not been committed.”[^113]

[328] In Blackwater, the trial judge had excluded damages relating to trauma suffered before attending the residential school, concluding that his prior trauma and other experiences “made it likely that he would have suffered serious psychological difficulties even if the sexual abuse had never occurred.”[^114] The Supreme Court held that the trial judge was correct to reduce the quantum of damages accordingly. The Court noted:

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway.[^115] [The plaintiff’s] submissions that injury from traumas other than the sexual assault should not be excluded amount to the contention that once a tortious act has been found to be a material cause of injury, the defendant becomes liable for all damages complained of after, whether or not the defendant was responsible for those damages.

At the same time, the defendant takes his victim as he finds him – the thin skull rule. Here, the victim suffered trauma before coming to [the residential school]. The question then becomes: what was the effect of the sexual assault on him, in his already damaged condition? The damages are damages caused by the sexual assaults, not the prior condition. However, it is necessary to consider the prior condition to determine what loss was caused by the assaults. Therefore, to the extent that the evidence shows that the effect of the sexual assaults would have been greater because of his pre-existing injury, that pre-existing condition can be taken into account in assessing damages.

Where a second wrongful act or contributory negligence of the plaintiff occurs after or along with the first wrongful act, yet another scenario, sometimes called the “crumbling skull” scenario, may arise. Each tortfeasor is entitled to have the consequences of the acts of the other tortfeasor taken into account. The defendant must compensate for the damages it actually caused but need not compensate for the debilitating effects of the other wrongful act that would have occurred anyway. This means that the damages of the tortfeasor may be reduced by reason of other contributing causes.[^116]

All these scenarios flow from the basic principle that damages must seek to put the plaintiff in the position he or she would have been in but for the tort for which the defendant is liable. [^117]

[329] Ontario, citing Blackwater, submits that while under Athey, a defendant is liable for the full extent of damages caused by its wrongful act, the Court must ask what the full extent of that damage is, which necessitates a determination of plaintiff’s original position, taking into account pre-existing trauma. Accordingly, “the governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway.”

[330] Ontario argues that there is no requirement that any pre-existing or latent conditions have already manifested in a disabling condition at the time the tort is committed. As the British Columbia Court of Appeal has made clear, a pre-existing condition, whether it is quiescent or active, is part of the plaintiff’s original position.”[^118] In A.(T.W.N.) v Clarke, the B.C. Court of Appeal held that the trial judge had erred by failing to consider pre-existing conditions, mis-applying Athey to award 100% of the damages to the plaintiff. According to the Court:

It was not correct to say that the alleged non-tortious causal factors were irrelevant unless they had already become manifest in a disabling condition and unless the defendants could prove that they would have inevitably led to the plaintiffs’ present conditions. Whether manifest or not, a weakness inherent in a plaintiff that might realistically cause or contribute to the loss claimed regardless of the tort is relevant to the assessment of damages. It is a contingency that should be accounted for in the award. Moreover, such a contingency does not have to be proven to a certainty. Rather, it should be given weight according to its relative likelihood.[^119]

[331] In general, these principles are applied in the manner of a discount factor applied to general damages, damages awarded for psychological injuries, and damages for lost income.[^120]

[332] Ontario also relies on W.(D.) v. Canada, where the plaintiff in question suffered sexual abuse at a residential school. The Court stated that “[t]he plaintiff's damages must be reduced for the possibility that all or part of his losses may have occurred apart from the battery.”[^121] The Court recognized the plaintiff’s abusive childhood, that he was raised in poverty, had early exposure to drugs and alcohol and thus applied a “contingency deduction” or discount of 50% to his claim for loss of earnings.[^122]

[333] In B.(T.M.) v. R.R. the plaintiff was sexually abused as a child by an uncle. The Court applied an adjustment, or discount rate, of 30% to recognize the contributing factor of debilitation, the alcoholic parents. The Court found the impact of the sexual abuse on that plaintiff was greater because she had been made more vulnerable by inappropriate parenting. This discount was applied to both non-pecuniary damages and income loss. The Court found that virtually every non-organic aspect of the plaintiff's life has been deleteriously affected by the mistreatment she received.[^123]

[334] Finally, Ontario relies on Boyetchko v.Mentias where the Court considered pre-existing physical and psychological conditions in the context of an automobile accident, which included depression, anxiety, PTSD, chronic headaches and fibromyalgia, amongst others, some of which flowed from earlier sexual abuse. [^124] Given the severity of the unrelated pre-existing conditions, the Court reduced general damages by a contingency factor of 40%, and reduced future income loss by a factor of 60%.[^125]

Analysis regarding Jane’s psychological diagnosis

[335] Ontario conceded that Jane is entitled to damages for the sexual assault, and some additional amount for psychological injuries. The remaining issue is the scope of compensable harm and the appropriate causation framework.

[336] This Court accepts that Jane suffers from PTSD and Persistent Depressive Disorder. Both Dr. Jackson and Dr. Ricci have diagnosed these conditions, and no contrary psychological evidence was tendered. Their descriptions of Jane’s symptoms, including nightmares, intrusive recollections, chronic depressed mood, mistrust, and social withdrawal, are consistent with this Court’s observations of Jane’s testimony and the evidence of other witnesses, including SIU staff.

[337] I accept the experts’ shared conclusion that Jane entered adulthood with significant psychological vulnerabilities arising from extensive childhood trauma. These vulnerabilities rendered her particularly fragile and less resilient to later stressors. This finding, however, does not diminish the legal significance of subsequent injury-causing events.

[338] I found both Dr. Jackson and Dr. Ricci’s testimony and credentials compelling. However, having considered their evidence in totality, I find I am unable to place any weight on much of Dr. Jackson’s evidence for reasons that follow.

[339] The evidence as I find it, is that Dr. Jackson did not seem to have knowledge of Jane’s 2015 psychiatric hospitalization and the details contained in those medical records. Dr. Jackson acknowledged that Jane disclosed far more extensive early trauma to Dr. Ricci in 2025 than she had disclosed to her in 2021. Jane had not told Dr. Jackson about her father forcing her to eat cat feces; sexual abuse by a cousin; repeated abuse by others in childhood; psychological and sexual abuse by her husband throughout their marriage; childhood psychiatric hospitalization for suicidal ideation lasting many months and sexual assault during that hospitalization. Dr. Jackson agreed that the additional history suggested early adversities which had some impact on Jane’s psychological development and may have increased her vulnerability to later adult trauma. Dr. Jackson acknowledged on cross-examination that these were new and significant facts.

[340] Dr. Jackson’s opinion vacillated significantly during her evidence. Despite noting on cross-examination, the significance of the information she was unaware of, on re-examination she returned to her original position. Exceptionally, I permitted sur-reply, where Dr. Jackson accepted that she lacked complete information about Jane’s childhood trauma and conceded she could not state with absolute certainty that earlier events could not have contributed to PTSD. Dr. Jackson also acknowledged that generational trauma, such as the father’s experience at the residential school, should be considered as a potentially relevant factor.

[341] I find that Dr. Jackson’s causation opinion was premised on an incomplete evidentiary foundation. However, I am not of the view that this renders Dr. Jackson’s opinion unreliable for the purpose of the thin skull analysis. Rather, it underscores the nature of Jane’s fragility at the time of the 1987 assault. Those early adversities materially shaped Jane’s psychological development and increased her vulnerability to later trauma.

[342] Dr. Ricci’s methodology, incorporating both historical records and Jane’s own indexing of traumatic events during formal testing, supports her conclusion that Jane’s symptoms cannot be meaningfully disaggregated by trauma. On the DAP’s trauma instrument, Jane initially identified two childhood traumas, not the 1987 assault, as her index traumas. She only asked to include the 1987 sexual assault after Dr. Ricci followed up to clarify the categories.

[343] I accept Dr. Ricci’s testimony that this pattern is clinically significant because index‑trauma selection reflects the examinee’s internal weighing of what is most salient. I find that Jane’s symptoms are tied to decades of cumulative trauma, and that the 1987 assault, though serious and damaging, is one contributor among many.

[344] Dr. Ricci’s evidence establishes that Jane’s psychological injuries reflect cumulative trauma and that the 1987 assault was not the sole or predominant traumatic experience in Jane’s life. I accept that Jane’s symptoms cannot be neatly disaggregated by source and that earlier and later traumas interacted over time.

[345] Thus, I find that the 1987 sexual assault is a significant contributing trauma but not the dominant or exclusive cause of her psychological injuries.

[346] Importantly, however, Dr. Ricci does not opine—and no evidence establishes—that Jane’s PTSD and depressive disorder would probably have reached their present severity absent the 1987 sexual assault. The evidence demonstrates vulnerability, not inevitability.

[347] I find that the 1987 sexual assault constituted a significant psychological injury that struck Jane at an already vulnerable moment in her development. The assault involved, from her perspective, a profound betrayal by police officers responsible for her safety, a feature that substantially amplified its psychological impact.

[348] I accept that Jane considers the 1987 assault as a betrayal which meaningfully intensified her’s pre‑existing mistrust and fear, accelerating and deepening her psychological injury. While these vulnerabilities existed beforehand, the 1987 assault transformed them into entrenched psychiatric disorders.

[349] The evidence supports the finding that Jane’s psychological functioning deteriorated between 2021 and 2025. Both experts noted differences in Jane’s presentation between their assessments. I accept Dr. Ricci’s view that Jane’s psychological condition worsened in the intervening four years, likely due to (a) declining physical health, (b) litigation‑related stress, and (c) aging‑related cognitive and emotional vulnerabilities. This deterioration does not reflect disingenuous symptom reporting but, in my view, is consistent with normal clinical progression in a person with complex trauma and worsening medical comorbidity.

[350] In Athey, the Supreme Court discussed the “thin skull” and “crumbling skull” doctrines. The "thin skull" rule makes the tortfeasor liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim and is therefore liable even though the plaintiff's losses are more dramatic than they would be for the average person.[^126]

[351] The “crumbling skull” principle recognizes that the pre-existing condition was inherent in the plaintiff's "original position". The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage.[^127] Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this can be taken into account in reducing the overall award. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position. ^128

[352] The crumbling skull doctrine applies only where the evidence establishes a real and measurable risk that the plaintiff’s condition would have deteriorated to the same extent in any event. In such cases, damages may be limited to reflect that inevitability.

[353] Unlike the situation contemplated by the crumbling skull doctrine, the evidence here does not establish that Jane’s PTSD and Persistent Depressive Disorder would likely have manifested in their present form and severity, absent the 1987 assault.

[354] Jane’s pre‑existing trauma rendered her psychologically fragile, but fragile is not the same as inevitably ruined. The 1987 sexual assault did not merely aggravate a condition that was bound to worsen; it materially changed Jane’s psychological trajectory.

[355] I therefore find that Jane has proven, on a balance of probabilities, that the 1987 sexual assault materially contributed to, and significantly shaped, the psychological injuries from which she now suffers.

[356] Although Jane’s injuries reflect the interaction of multiple life experiences, the defendant must take Jane as she was in 1987, including her heightened susceptibility to psychological harm.

[357] This case engages the thin skull doctrine. Jane is entitled to full compensation for the psychiatric injuries that in fact resulted from the assault, even though they were more severe because of her pre‑existing vulnerabilities.

[358] To characterize Jane’s condition as a crumbling skull would improperly shift the focus from causation to moral comparative fault between traumas. That is not the inquiry mandated by Athey.

[359] The evidence establishes that Jane entered adulthood with a long-standing history of significant trauma, including repeated childhood sexual abuse, abandonment, domestic violence, and an extended psychiatric hospitalization in early adolescence. These experiences had already caused enduring psychological harm and substantially increased her vulnerability to later stressors.

[360] As noted above, I prefer the opinion of Dr. Ricci that Jane’s psychological injuries are the product of cumulative and interwoven traumas that cannot be meaningfully disentangled by source. While the 1987 assault materially contributed to her condition within the meaning of Athey, it was one contributor among many, and not the dominant cause. The deterioration of Jane’s psychological functioning in later years reflects the combined effects of her early trauma, abusive adult relationships, declining physical health, and the stressors associated with litigation and aging, rather than the delayed emergence of symptoms attributable solely to the 1987 assault.

[361] Therefore, damages should not be reduced on the basis that Jane was already psychologically vulnerable. The law requires compensation for the injury caused, not speculation about alternate psychological futures.

[362] Accordingly, had I found liability, Ontario would be liable for the full extent of the psychological harm materially caused by the 1987 sexual assault, even though that harm was exacerbated by Jane’s pre‑existing condition.

Jane’s causation argument regarding her COPD

[363] Jane’s evidence was that she does not like taking medications. She has been very clear that she saw what her brother T.D. went through trying to find the medication cocktail that stabilized his mental health. She called it “hell.”

[364] Jane is limited in what medications she can take because of the multiplicity of her health conditions and allergic reactions to various classes of medications. Side effects cannot include anything that affects her heart rate, breathing or glaucoma. Her body does not tolerate many medications due to the side effects.

[365] She chose to smoke rather than take pills for her mental health. She told the Court that smoking helped calm her down. Her evidence is uncontroverted that smoking would help calm her when the intrusive memories became too much. She has tried to quit again and again over the years with no success. She told us that every time she quit, maybe for months at a time, the memories would overwhelm her, and she picked it up again.

[366] Dr. Jackson referred to this behaviour of turning to smoking as a form of self-harm to get away from the pain of the memories.

[367] Jane finally quit in September 2021 when the choice was literally quit or die.

[368] Dr. Sharma, a respirologist, explained breathing and how lungs work. Jane submits that he was very clear that Jane’s COPD was directly caused by her smoking. More specifically, he noted that not all smoking leads to COPD. Smoking a bit when you are younger does not cause COPD. For women, it takes 10 years smoking one pack a day to lead to COPD. In Jane’s case, she smoked a half a pack a day at most when her mental health was at its worst. She smoked enough over the years to lead to her current poor lung health.

[369] Dr. Sharma explained that COPD is not caused by asthma. Jane would not be in her current state but for the amount of smoking that she did.

[370] Jane smoked intermittently before 1987. Her evidence was that she was not smoking when she was dancing. She was more likely to smoke when she was with smokers and that she did not smoke when she was around non-smokers. Following the assault, Jane chose to be with Luke, a smoker. This has contributed to her continuing to smoke when she may otherwise have been able to quit.

[371] The question the Court will have to answer is whether Jane would likely have been able to quit and make it stick had the assault not happened. Jane’s evidence was that she stopped her very limited cocaine consumption with no help in 1986. She told us she dabbled and was never addicted.

[372] She has a history of being able to do hard things. There is a real and substantial possibility that Jane could have and would have been able to quit had the assault and its intrusive thoughts not been a factor.

[373] Regardless, it is clear that Jane has used smoking to help cope with the effects of the assault. She smoked more and possibly longer because of the assault. The assault caused or contributed to her psychological condition which she treated by smoking. Her smoking directly led to her COPD and current limitations.

[374] The causal chain is intact. Her COPD is caused by the psychological effects of the assault. All damages flowing from her COPD are, therefore, properly compensable in this matter.

[375] Her COPD has been managed by various respirologists and by Marian Watt. She is hospitalized several times a year due to lung exacerbations. She is fully vaccinated although there was a time when she was reluctant to take the flu shot because of how it made her feel. She has a care plan set out for her by her treatment team that she follows when she feels a lung infection coming on. Despite following this plan, she still requires hospitalization from time to time reflecting the complexity of her lung condition. There is no evidence that the time she did not have her flu vaccine has materially worsened her current state.

[376] Jane’s best bet is to get a double lung transplant which would require the lungs of a young person as Jane is so physically small. Jane has been clear that she is not willing to take lungs which could go to someone else. This is a very invasive procedure that carries its own risks, especially given Jane’s allergy to various medications. It is also not clear that any lungs would become available to her in a timely way. There is no failure to mitigate argument to be made in how her lung condition has been managed, including her refusal to get a lung transplant, since it is under the care and guidance of medical professionals.

[377] Contrary to Ontario’s submission, Dr. Sharma clarified that anti-interleukin 5 medications are used for severe asthma, not COPD, and that asthma cannot cause COPD.[^129] Jane’s reluctance to take Nucala was based on legitimate concerns about side effects, including a family history of DVT. Her evidence established that she had not categorically refused a lung transplant but was still weighing the risks and benefits. Ontario’s assertion that Jane failed to mitigate her condition is therefore unsupported, as her decisions reflect considered medical judgment rather than a refusal of necessary treatment.

[378] Further, while Ontario asserts that Jane refused antibiotics, citing Dr. Arab’s discharge, Jane’s and Marian Watt’s evidence contradicted this. Jane testified she regularly took antibiotics during the COPD exacerbations, but they were no longer effective. Ms. Watt confirmed that hospitalization occurred when antibiotics failed, not because Jane refused them. She also confirmed that she had no concerns about Jane’s adherence to her antibiotic regimen, noting she took them as prescribed during exacerbations.

Ontario’s causation argument regarding Jane’s COPD

[379] Ontario argues that they cannot be blamed for Jane developing COPD. Further, her claim for income loss is remote and unproven.

[380] Jane claims that the 1987 assault is ultimately responsible for her COPD. However, her COPD is so far removed from any fault of Ontario that it is too remote to be compensable. No employee of Ontario assaulted Jane. The chain of reasoning which connects Ontario to Jane’s COPD has to be that some fault of Ontario allowed a third party to assault Jane, which caused her to experience anxiety, which she chose to treat with tobacco instead of psychiatric medication because a schizophrenic family member had bad experiences with medications, which caused her to smoke more than she already was, which caused her to develop COPD.

[381] This chain of events would not be reasonably foreseeable by a police officer in 1987 allowing an individual to host an overnight visitor in her hotel room at her own request.

[382] Accordingly, Ontario submits that any claim for damages for COPD is not legally sustainable.

[383] Even leaving remoteness aside, the facts of Jane’s smoking history themselves do not support her theory that the 1987 assault was the cause of her smoking. Jane testified that she was a smoker since the age of 12 and began smoking regularly around the age of 14-16. She further testified that in the immediate period of time before going into the WPP, she had been smoking approximately five to six cigarettes per day regularly, sometimes smoking as much as ten cigarettes per day.

[384] Furthermore, her evidence was that even before her entry into the WPP, she had already tried to quit smoking several times and would be able to quit for a period of a month to six months, but then would start smoking again, a pattern that she would repeat several times in her later life.

[385] Her evidence was that after the 1987 assault, she began to smoke ten cigarettes per day more regularly, however, there was not a marked increase in the rate of her cigarette consumption. Furthermore, her evidence was that as an adult, she managed to quit many times but began to smoke again when in the presence of other smokers. In particular, when she was away from Luke for any period of time, her evidence was that she managed to quit smoking. However, when she would get back together with Luke, himself a chain smoker, she would start again.

[386] It should perhaps come as no surprise that Jane was able to quit smoking for good after splitting up with Luke, despite a marked decline in her psychological health and coping over the same period.

[387] This life pattern of cigarette smoking does not match up with Jane’s theory of causation. Many people start smoking as teenagers and experience difficulty quitting. Nicotine is a highly addictive drug. If Jane’s theory is correct, that she was unable to quit smoking due to psychological stress, it should be surprising that she was able to quit in recent years, during which period of time her psychological health has experienced a decline.

[388] It is notable that no expert opined Jane smoked more cigarettes, or was unable to quit, because of the 1987 assault. Not Dr. Jackson, and not Dr. Sharma. Their evidence was restricted only to very generalized opinions about smoking and coping with stress in general. Contrary to Jane’s submissions, Dr. Jackson did not testify that Jane smoked cigarettes due to the 1987 assault. Dr. Jackson merely reported that Jane had made that claim. Dr. Jackson offered no opinion of her own on the point.

[389] Finally, if trauma caused Jane to smoke, the same question as before arises: which trauma? There is no evidence that the 1987 sexual assault specifically caused Jane to smoke rather than all of the other traumas she has experienced in her life. If Jane was smoking in order to cope with traumas, it stands to reason that her long history of childhood sexual abuse, pre- existing psychological conditions severe enough to land her in a psychiatric hospital as a teenager, and history of abuse by her husband, would have caused her to smoke more as well.

[390] Given all of the above, the claim that Jane was unable to quit smoking due to the 1987 assault is speculative and fits poorly with the evidence that is known. Ontario submits that this Court should reject any claim for damages which flows from Jane’s physical disabilities due to COPD. In the alternative, a substantial discount should be applied, given the probability that Jane would have been unable to quit smoking in any event, due to both the addictive properties of nicotine, and her pre-existing trauma. This substantial discount would apply to any income loss claim from 2015 onward, if any income loss is assessed at all.

Failure to mitigate her damages

[391] Ontario submits that Jane has failed to mitigate her damages, both with regard to her psychological symptoms, as well as her COPD. This as well should result in a discount applicable to any damages awarded in this case.

[392] According to Jane, she has refused to take psychiatric drugs, or seek psychiatric treatment, because of her brother’s experience with psychiatric medication in his struggle with schizophrenia. According to Jane’s submissions, she has also been reluctant to take these medications due to unspecified side effects, and concerns over glaucoma.

[393] There is no medical evidence on the record to establish that Jane cannot take psychiatric drugs due to glaucoma or side effects, contrary to her suggestions. Instead, this appears to be a personal preference. Upon her discharge from a local hospital in 2015, she was prescribed Seroquel and Cymbalta, and in fact took these medications while in hospital. Dr. Jackson confirmed that, at a minimum, Jane is able to take at least some psychiatric drugs.

[394] Dr. Ricci’s evidence was that psychiatric medication would likely be beneficial to Jane, if she was motivated to take them. However, Jane has steadfastly refused to even explore the possibility of doing so.

[395] Jane’s refusal to take psychiatric drugs due to her brother’s experiences has impacted her physical health as well. If the plaintiff’s own theory is accepted, instead of taking appropriate psychiatric medications, she self-medicated with cigarettes.

[396] Regarding COPD, it is clear that Jane has refused a host of treatments that likely would have improved her condition. She refused to take anti-interleukin 5 medications (Nucala), which had been recommended to her by Dr. Saint-Pierre, and which Dr. Sharma indicated likely would have been helpful to her. Dr. Saint-Pierre also recommended that she get a lung transplant, and it was the only treatment that would have a major positive impact on her condition. Jane refused after speaking to her niece about the procedure.

[397] Perhaps most seriously, Jane has failed to take antibiotics meant to prevent COPD exacerbations before they start. The evidence of Dr. Sharma and Ms. Watt was that every COPD exacerbation worsens the underlying condition and decreases lung function over time. Lung infections can lead to exacerbations. To prevent exacerbations before they start, Jane was prescribed the drug azithromycin by her respirologist, Dr. Arab.

[398] Dr. Arab wanted Jane to take the drug prophylactically on Monday, Wednesday, and Friday, but she wanted to take it only when she already had a COPD exacerbation. Ms. Watt indicated that Dr. Arab suddenly discharged Jane from his care as he “had nothing more to offer her.”

[399] While Ms. Watt did not know the reason for this, Jane was able to clarify. She testified that Dr. Arab discharged her because she refused to take antibiotics as he had directed, to prevent exacerbations before they begin.

[400] This refusal to follow medical advice, serious enough to push her respirologist to withdraw treatment, fits into a well-established pattern for Jane. Faced with serious medical symptoms, either medical or psychological, Jane has, in many instances, refused to pursue a course of treatment that has been recommended to her. The result should be a discount applied to any damages award for lost income, and for psychological damages.

Review of the Medical Evidence

Dr. Sharma

[401] Dr. Sharma’s evidence as a respirology expert establishes that the dominant cause of Jane’s current respiratory impairment is moderate‑to‑severe chronic obstructive pulmonary disease with emphysema subtype with underlying mild asthma since childhood, exacerbated by ongoing smoking and potential co-existing mental health challenges.

[402] COPD is a progressive, smoking‑caused, dose-dependent lung disease. Jane’s estimated smoking history of 10 to 20 pack-years is clinically significant. Smoking makes asthma worse and is a common trigger.

[403] He explained that COPD arises from neutrophilic airway inflammation, ciliary paralysis, mucus retention, and alveolar destruction, all of which are consequences of smoking.

[404] Dr. Sharma further testified that asthma and COPD are biologically distinct. Asthma is eosinophilic inflammation, reversible, and generally non‑progressive in adults. COPD is irreversible, progressive, and driven overwhelmingly by smoking. He stated unequivocally that “asthma does not cause COPD,” nor does it materially accelerate the progression of COPD.

[405] He testified that COPD alone increases the risk of chest infections such as acute bronchitis or pneumonia. The primary recommendation as treatment is smoking cessation. Prompt treatment of exacerbations is important, and this usually requires medication. Given they are targeting neutrophilic inflammation, one of the first line choices is an anti cholinergic type of medication. They use a long-acting beta agonist. Dr. Sharma noted that patients with moderate or severe disease are less likely to respond to medication that they use regularly.

[406] Dr. Sharma explained that “the more you smoke, the more likely you are to develop COPD, and the more likely it is to be severe or even moderate instead of mild.” The amount of smoking is measured in “pack years,” that if someone smokes for 10 years, one pack per day, that would be 10 pack years. If someone smokes two packs per day for 20 years, that would be 40-pack years. Most large packs of cigarettes from convenience stores have 35 cigarettes, but the research standard is based on 20 cigarettes per pack. Dr. Sharma found that it would be the lowest estimate of “10-pack years realistically 20.”

[407] Dr. Sharma spoke of the cause of Jane’s non-pulmonary causes of her symptoms, based on her chart, that a significant component is anxiety, depression and stress are triggers. He testified that there are high rates of depression with people with COPD. “Depressed patients are more likely to smoke, which might lead to COPD.” The research was less definitive with PTSD.

[408] He described Jane’s prognosis using validated prediction models, estimating her four‑year survival probability at 70% and her five‑year survival at 88%, based on her FEV1, oxygenation status, symptom scores, and comorbidities. He recommends ongoing respirology care and treatment of both COPD and asthma, vaccination optimization, COPD management, and mental‑health support. Without the vaccines, one is at higher risk of contracting the infection.

[409] Dr. Sharma testified that depending on the level of severity, COPD may significantly affect one’s ability to work.

[410] On cross‑examination, he agreed that the harmful effects of smoking were well understood publicly in 1987. He distinguished the physiological processes of asthma exacerbation and COPD exacerbation, noting that COPD exacerbations accelerate lung‑function decline whereas asthma exacerbations generally do not affect long‑term COPD prognosis. He confirmed that anxiety and depression can worsen the subjective experience of dyspnea (shortness of breath), although scientific literature does not establish clear direction of causality.

[411] Dr. Sharma noted that anit-IL5 drug is one possible treatment for asthma but not first on the list. He agreed that anti-IL5 is anti-interleukin control and is interleukin 5 is a cytokine. He agreed that for the appropriate patient, anit-IL5 therapy is potentially going to improve their quality of life and is typically injected. The first line of treatment in terms of medication is inhaled corticosteroid, second is the long-acting beta agonist, third would be anticholinergic inhaled medication. Only after do they go to less common measures such as anti-IL5. Before starting any medication, side effects are discussed and their direct effects and patient views considered.

[412] Dr. Sharma attributed Jane’s symptoms—shortness of breath, exertional limitation, chronic mucus production, poor gas exchange, and progressive residual lung decline, primarily to COPD and emphysema rather than asthma, anxiety, or historical trauma. He rated Jane’s dyspnea as consistent with severe limitation at baseline.

[413] Dr. Sharma was not in a position to state that Jane’s symptoms may have been worsened by the assault. He was unable to identify what caused the PTSD, anxiety and depression. His analysis is that Jane has mental health diagnoses on one hand, and she had a respiratory diagnosis on the other hand, and they are interacting.

Marian Watt

[414] Nurse Practitioner and treating clinician Marian Watt has followed Jane for a decade in the local respiratory clinic. She first saw Jane following a referral from Jane’s psychiatrist. At that initial assessment, Jane was “very short of breath,” anxious, and “dyspneic,” with uncontrolled asthma and an MRC dyspnea score of 4. Ms. Watt referred her to respirologist Dr. Ben for diagnostic clarification and treatment optimization.

[415] Ms. Watt stated that Jane’s diagnoses include asthma, COPD, emphysema and frequent lung infections. She confirmed that all of these will contribute to physical symptoms she currently experiences.

[416] She described multiple respirologists being involved due to physician turnover and a discharge from one respirologist, Dr. Arab, who wrote that he had “nothing more to offer”. Jane, however, provided evidence to indicate that the medication prescribed by Dr. Arab was no longer working for her, and he recommended she continue taking it. This resulted in him indicating there was nothing left he could do for her. As such, Jane was referred to another respirologist. Ms. Watt emphasized that Jane required specialist management because of the complexity and severity of her condition.

[417] Ms. Watt testified that once someone stops smoking cigarettes, in some patients it helps to reduce the coughing and the incidence of exacerbations, and it can increase the quality of life. She remarked it was common that it takes patients five to seven attempts to stop smoking.

[418] She also testified that Jane’s pulmonary function has deteriorated over time, particularly her Forced Expiratory Volume 1 (FEV1), the key measure of expiratory volume. Functionally, Jane went from being able to walk 100 feet in 2015 to becoming breathless after approximately 20 feet and requiring a walker by 2025.

[419] On cross-examination, Ms. Watt confirmed that Jane was diagnosed with asthma as a child and had frequent lung infections, which are risk factors for developing COPD later in life. Further, Jane having been exposed to mold in previous living conditions could be a risk for potentially developing respiratory infections.

[420] Ms. Watt also discussed vaccination history, including Jane’s refusal of the flu vaccine based on a belief she had previously been hospitalized after receiving it. She confirmed that Jane had not accepted a biologic therapy (Nucala) that had been recommended by a respirologist. She explained certain respiratory medications, such as “long-acting muscarinic agent (LAMA) inhalers had previously been contraindicated due to glaucoma, though later an ophthalmologist reported no continuing contraindication. Nevertheless, Dr. Arab suggested that Jane not take that class of drugs due to concerns with glaucoma. Ms. Watt agreed that not taking the vaccines would make her more vulnerable to COPD exacerbations and contracting the flu.

[421] On cross‑examination, counsel focused on Jane’s medication adherence. Ms. Watt agreed that at times Jane had not taken azithromycin as prescribed. However, on re‑examination, Ms. Watt reiterated that based on her own observations, Jane did take antibiotics when experiencing COPD exacerbations. She confirmed that any references in her notes to hospitalization events were summaries of hospital records rather than her own assessments. She also agreed that hospital documentation indicated Jane had taken prescribed antibiotics during the 2021 admission.

Analysis regarding causation for COPD

[422] Jane suggests the causal chain is intact. Her COPD is caused by the psychological effects of the assault. All damages flowing from her COPD are, therefore, properly compensable in this matter.

[423] Ontario meanwhile argues that Jane’s COPD is so far removed from any fault attributable to them that it is too remote to be compensable.

[424] Jane bears the burden of proving, on a balance of probabilities, that her COPD was factually and legally caused, or materially contributed to, by the 1987 sexual assault. Jane’s claim regarding COPD requires the Court to assess a longer and more complex causal chain linking the assault to physical disease many decades later.

[425] I begin with the medical evidence. I accept both Dr. Sharma’s evidence and that of Ms. Watt. I found them both to be credible and their evidence reliable.

[426] Dr. Sharma was clear that Jane’s COPD is a smoking‑related, dose‑dependent, progressive lung disease. He explained that COPD arises from smoking‑induced neutrophilic inflammation, mucus retention, ciliary dysfunction, and alveolar destruction. He was unequivocal that asthma does not cause COPD and does not materially accelerate its progression. Jane’s estimated smoking history of approximately 10 to 20 pack‑years was, in his opinion, clinically sufficient to result in the moderate to severe COPD from which she now suffers.

[427] Accordingly, there is no dispute that smoking was the direct and dominant medical cause of Jane’s COPD. The real issue is whether the assault materially contributed to Jane’s smoking in a manner that satisfies the legal test for causation, such that Ontario may be held responsible for the downstream physical consequences of that behaviour.

[428] I remind myself the thin skull doctrine applies to Jane’s psychological health. Ontario must take Jane as it found her, including her particular psychological vulnerabilities, and is fully responsible for the extent of the psychological harm caused or aggravated by the assault, even if that harm was more severe because of her pre‑existing fragility.

[429] Jane submits that her smoking functioned as a trauma‑driven coping mechanism. She says she smoked to manage intrusive memories, anxiety, and distress associated with the assault, and that these symptoms undermined her repeated efforts to quit. Ontario responds that this theory is speculative, unsupported by expert opinion, and inconsistent with Jane’s long‑standing smoking history, her repeated ability to quit, and the presence of extensive pre‑existing trauma unrelated to the 1987 assault.

[430] While I accept Jane’s evidence that smoking subjectively helped her manage distress, the legal question is not whether smoking alleviated her symptoms, but whether the assault materially caused her to smoke more, or longer, than she otherwise would have done. On this point, I am not persuaded that Jane has met her burden.

[431] First, Jane was a regular smoker well before the 1987 assault. She began smoking as a teenager, smoked regularly into adulthood, and had already demonstrated a pattern of quitting and relapsing prior to entering the WPP. This pattern persisted throughout her adult life, often influenced by social context, particularly cohabitation with other smokers. The evidence does not establish a marked or sustained increase in cigarette consumption following the assault.

[432] Second, while Jane attributes her difficulty quitting to assault‑related intrusive memories, the evidence equally supports alternative explanations that pre‑date the assault, including nicotine dependence, childhood trauma, pre‑existing psychological illness, and later domestic abuse. Although thin skull principles require Ontario to take Jane’s psychological fragility as it existed in 1987, they do not relieve Jane from the burden of proving that this particular assault materially altered her smoking behaviour. As I have already found, Jane’s mental health condition is the product of cumulative trauma, with the 1987 assault being a contributing but not predominant factor. That finding critically limits the inferential strength of Jane’s COPD causation theory.

[433] Notably, no expert opined that the 1987 assault caused Jane to smoke more, prevented her from quitting, or otherwise materially altered the course of her smoking behaviour. Dr. Sharma did not venture into psychological causation and expressly declined to link Jane’s respiratory decline to trauma. Dr. Jackson did not offer an independent causation opinion on smoking but merely reported Jane’s self‑attribution of motive. In contrast to the psychological claim, where expert evidence grounded the causal link, the smoking‑to‑assault connection rests entirely on Jane’s subjective account.

[434] Third, Jane’s own history demonstrates that she retained the capacity to quit smoking in response to changing circumstances. She quit repeatedly for months at a time, including during periods of significant psychological stress. Most tellingly, she ultimately quit permanently in 2021 during a period when, according to Dr. Ricci, her psychological functioning had deteriorated. This undermines the submission that assault‑related psychological distress rendered her unable to stop smoking.

[435] I also accept Ontario’s submission that the causal chain advanced by Jane raises serious concerns of remoteness. Even accepting that the assault contributed to Jane’s psychological condition, and that psychological distress can increase the propensity to smoke, the law requires more than sequential connection. The assault did not compel Jane to smoke, dictate the quantity she consumed, or prevent cessation. Smoking was a voluntary behaviour, exercised repeatedly over decades, in the face of well‑known health risks that were publicly understood by 1987.

[436] This is not a case where an intervening act is excused because it was effectively involuntary or unavoidable. Jane’s choices were constrained by distress but not dictated by it. To impose liability for COPD in these circumstances would extend causation beyond its principled limits, effectively rendering the defendant responsible for all downstream health consequences associated with long‑term coping strategies adopted by a psychologically vulnerable plaintiff.

[437] The principles in Athey and Blackwater are instructive here. While a defendant is liable for injuries to which their wrongdoing materially contributes, the law does not permit recovery for loss that would likely have occurred in any event due to the plaintiff’s baseline position. Thin skull does not transform a background vulnerability into proof of causation. Given Jane’s pre‑existing trauma, early onset smoking, established nicotine dependence, and multiple non‑assault‑related stressors, I find there was a substantial and measurable risk that she would have continued smoking and developed COPD regardless of the 1987 assault.

[438] Unlike the psychological injuries, where the assault aggravated an existing condition in a manner that could not be disentangled, Jane’s COPD represents a physical disease with a well‑understood etiology. The evidence does not support a finding that the assault materially accelerated the onset of COPD or materially increased the degree of smoking exposure sufficient to alter the disease course.

[439] Accordingly, I find that Jane has not established factual causation between the 1987 assault and her COPD on a balance of probabilities. The assault may have formed part of the background stressors in her life but it was not a material contributing cause of the smoking exposure that produced her lung disease. The causal chain advanced by Jane is too attenuated, and too heavily dependent on speculative inference, to ground liability.

[440] For these reasons, damages flowing from Jane’s COPD, including physical impairment, hospitalizations, and any associated income loss, are not compensable as losses caused by the 1987 assault. In light of this conclusion, it is unnecessary to determine the extent to which mitigation principles would otherwise apply to the COPD claim.

General Damages

Jane’s position

[441] General damages are intended to compensate Jane for the injuries she sustained as a result of the assault.

[442] Sexual assault files contain an inherent difficulty in assessing general damages as the impact of such an assault or abuse is not easy to determine. Rather, it is like “trying to estimate the depth of the ocean by looking at the surface of the water.”[^130]

[443] These matters inherently include a humiliating and degrading act.[^131]

[444] In an effort to clarify what considerations should be given weight in coming to an appropriate figure, the Supreme Court of Canada has set out a non-exhaustive list:

a. The victim’s circumstances at the time of the events, including factors such as age and vulnerability;

b. The circumstances of the assaults, including their number, frequency, and how violent, invasive and degrading they were;

c. The circumstances of the defendant, including age, and whether he or she was in a position of trust; and

d. The consequences for the victim of the wrongful behaviour, including ongoing psychological injuries.[^132]

Victim’s circumstances

[445] Jane was 23 and naïve in the sense that she lacked experience or deep understanding of the world and culture. Her life was in danger as a direct result of the actions of a grandstanding Crown attorney. Her mother instilled a sense of community responsibility. She was trying to do the right thing. As a result, her safety was in jeopardy and she needed the care and protection of the police, more specifically, the WPP.

[446] Jane testified that she signed whatever was put in front of her. She trusted Bruce Burley and the officers responsible for her that much. She was young. She was vulnerable. Her life had been threatened. She was under the 24/7 control of the WPP when the assault took place. She put her trust in the police. That trust was misplaced.

The nature of the assault

[447] While this was a single incident, it included B.H. having to physically force Jane into a position that would allow him to violate her. He forcibly penetrated her and ejaculated on her stomach. Jane felt angry and degraded by what had happened to her. She felt helpless to stop what was happening to her and was afraid he could smother her with his hand.

The circumstances of the defendant

[448] Jane was under the 24/7 protection and control of the WPP when the assault took place. She was in her hotel room, a place where she expected to be safe. In her view, her roommate abandoned her for reasons that were unknown to Jane at the time. She had a Team of officers who were supposed to be keeping her alive and safe.

[449] Instead, Jane recalls that she found herself abandoned by the Team she had trusted so much. Her Team coordinated B.H. coming to her room which, she argues, means they are responsible for her resulting assault and all the effects thereafter. B.H. was a police officer with the Toronto Police. He sexually assaulted Jane while she was in the protection of the WPP. While she did not trust B.H., she certainly trusted her Team and was very clear how betrayed she felt by them for what happened to her.

The Consequences

[450] There has been both physical and psychological harm to Jane. She has lived with nightmares, anger, anxiety and the other effects of the assault for years. Her physical health has declined to the point where she has lost her independence.

[451] Every decision since October 14, 1987 has been coloured by the effects of the assault. From the types of jobs she did to her choice of husband.

[452] Based on all of the above, the plaintiff is seeking $300,000 in general damages given the fact that this assault has affected every aspect of her life.

Ontario’s position

[453] Ontario submits that the amounts claimed by Jane are excessive. First, as noted above, any amount awarded for general damages, psychological damages, or lost income must be discounted by an appropriate factor given Jane’s serious pre-existing psychological trauma.

[454] Ontario submits that the appropriate discount factor is 50%, given the severity of the previous abuse and trauma suffered by the Jane.

[455] Before any discount is applied, Ontario submits that the appropriate amount for general damages would be in the range of $150,000-$225,000.

[456] In the case of Hudson v Youth Continuum Inc., the plaintiff was sexually assaulted while working as a youth care worker. She was physically overpowered, choked with a cord, and raped. She suffered physical injuries requiring stitches, was required to take anti-HIV drugs and suffered severe psychological consequences. [^133] The Court awarded $150,000 inclusive of aggravated damages of $50,000,[^134] which translates to $203,000 in 2025 dollars.

[457] In K.T. v Vranich, the plaintiff was a 22-year-old employee of the defendant, who owned a bar. The defendant pushed the plaintiff against the wall and touched her breasts while digitally penetrating her.[^135] The assault caused PTSD and anxiety. Noting the plaintiff’s vulnerability as an employee, the Court awarded $75,000 in general damages and $50,000 for aggravated damages for a total of $125,000,[^136] which translates to $171,000 in 2025 dollars.

[458] The Court in K.T. also noted that, typically, general damages for single instances of sexual assault fell in the range of $90,000-$100,000 in 2006 dollars ($136,000-$151,000 in 2025 dollars).[^137]

[459] In R.K. v Dickson, the plaintiff was viciously attacked, badly beaten, and sexually assaulted by the defendant after she had left the bar. The Court awarded general damages in the amount of $75,000,[^138] which translates to $115,000 in 2025 dollars.

[460] In J.P. v D.T.L., the plaintiff woke up to being raped by her cousin while intoxicated, which caused significant psychological harm including PTSD. The Court awarded damages in the amount of $175,000, which included loss of competitive advantage for the single instance of sexual assault.[^139]

[461] Finally, in Zando v Ali, the Court awarded general damages in the amount of $175,000 for a single occurrence of sexual assault. The Court noted that when assessing general damages, a single instance of sexual assault between adults without significant physical violence would generally attract damages towards the lower end of the spectrum.[^140]

[462] Given the circumstances of this case, which involved a single instance of sexual assault between adults, and no physical injuries, Ontario submits that a fair award for general damages would be in the range of $150,000-$225,000, before any discount is applied.

Analysis on General Damages

[463] Jane seeks compensation under four heads: (a) general damages for pain, suffering, and loss of enjoyment of life; (b) damages related to COPD; (c) past and future loss of income; and (d) future treatment and care needs. As set out above, damages must place Jane, so far as money can, in the position she would have occupied but for the 1987 sexual assault, no more and no less. In assessing psychological damages, this includes application of the thin skull doctrine, such that Ontario must take Jane as it found her psychologically at the time of the assault.

[464] The assessment that follows reflects my findings that (1) the assault materially contributed to and aggravated Jane’s psychological injuries; (2) Jane’s COPD is not causally connected to the assault; and (3) Jane has not established a compensable loss of income arising from the assault.

[465] General damages must reflect the nature of the sexual assault, the breach of trust involved, and the psychological harm caused by the actionable tort. Jane was sexually assaulted while under the protection of the Witness Protection Program by a police officer. The assault involved forced penetration, humiliation, and fear, and constituted a profound betrayal of institutional trust. These are grave aggravating features, particularly given Jane’s psychological vulnerability at the time.

[466] I have found it to be a fact, however, that Jane instructed the WPP detail to communicate her hotel and room number in the context that she was ready and willing to entertain B.H.

[467] I accept that Jane has lived for decades with PTSD and Persistent Depressive Disorder, and that the 1987 assault materially aggravated her psychological fragility. Her symptoms: nightmares, intrusive memories, mistrust, anger, and emotional withdrawal, are real and persistent. The assault also intensified Jane’s already compromised ability to trust authority and men, worsening her psychological functioning.

[468] As set out in detail above, Jane entered adulthood with extensive and severe pre‑existing trauma, including repeated childhood sexual abuse, abandonment, domestic violence, and an extended psychiatric hospitalization in early adolescence. Jane must be compensated for the additional harm caused by the assault, but not for psychological injury or deterioration she would likely have experienced in any event as part of her pre-existing trajectory.

[469] Balancing these considerations and having regard to the jurisprudential range for single‑incident sexual assault cases involving significant psychological harm and breach of trust and assessing the seriousness of Jane’s injury on a thin skull basis, if I had found Ontario liable, I find that an appropriate unadjusted general damages figure would be $200,000.

[470] On the facts of this case, I am not prepared to apply a contingency reduction.

[471] I find that Jane has not established, on a balance of probabilities, that her COPD was caused or materially contributed to by the 1987 assault. Smoking was the dominant and direct cause of her lung disease, and the assault did not materially alter the course or extent of that exposure.

[472] Accordingly, no damages are recoverable for COPD, including physical impairment, hospitalizations, reduced mobility, loss of independence, or care needs arising from respiratory disease.

What is Jane’s loss of income?

Jane’s position

[473] Jane was only 23 years old when the assault happened. She was just climbing towards success and stability in her life. She was "punching up." She was making her own table. She was succeeding and bringing her family along with her when the assault took place.

[474] She is now 61 and the Court is tasked with trying to predict what she could have been had the assault not taken place.

[475] Because this analysis looks at what she could have become, the test is no longer a balance of probabilities. This is a past claim that is analogous to a future claim in that it is a hypothetical event, not a known event. According to the Court of Appeal, the standard becomes whether a real and substantial possibility exists.[^141]

[476] The inquiry becomes:

a. What Jane's life could have looked like and what economic opportunities she might have had had the assault not taken place;

b. What is the monetary value of those possible opportunities had the assault not taken place;

c. What is the likelihood that Jane would have earned the sums claimed; and

d. Quantify the damages associated with the chance that the opportunity would have materialized.[^142]

[477] The Court must consider what Jane did do or could have done for work and compare it to what she could have become.

[478] Jane suggests that the Court should look at her siblings as comparators. The evidence was that their mother instilled a strong work ethic in all of her children. The only one who has not worked is T.D., who faced mental health challenges. Her brother Reggie testified as to never finishing high school and is earning $197,000 per year working in the oil patch. He has worked continuously since he dropped out of high school. He immediately got to work in a lumber yard. He got his truck driver's license and drove a garbage truck out west for 25-26 years before moving to the oil patch where the pay is better.

[479] Reggie does not have a high school diploma or a college degree. He has worked continuously and successfully since he dropped out of high school.

[480] Liza and Nancy both completed high school, supported by their older siblings. Liza earned a college diploma in travel and tourism, spent two decades guiding ships in western passages, and later transitioned to a career in government finance. Nancy holds a college diploma in accounting and currently works at a contractor's desk at Home Hardware. She has gained experience across various roles in her field and has maintained continuous employment.

[481] Jane submits that she is a smart woman. School was easy. It was not the difficulty of the schoolwork that forced her to stop going. Jane testified that she had wanted to work in sales. Jane would not need high school or a college degree to work as a real estate agent. Statistics say that she would have earned a decent income even without any further education.

[482] It was suggested that in this case, the best comparator group is all other workers with no diploma or degree. This did not require any further education on Jane's part. It just required her to work. Given her siblings' work histories, this is not a remarkable assumption to have made. This is also not surprising given Jane's history of what she actually did and how hard she worked even if she was not being paid.

[483] Jane’s evidence was that she hid behind her alcoholic husband Luke. He was safe to her as she understood abusive alcoholics. The ambitious girl who danced to make money and buy a building so her family would not be homeless was gone.

[484] Jane worked to support Luke's various businesses. She started at his bar in town. She continued at their motel out West and the proposed Cabaret. She continued at their restaurant just outside of town. In each instance, Jane did "everything" and tried her best to make the business work with no help from Luke.

[485] Jane checked in guests. She cleaned hotel rooms. She ordered supplies for the bar/restaurant. She made sure that she did everything she could to make them run well. She never knew whether her efforts bore fruit or whether the businesses were profitable, Luke handled all the money. She had a roof over her head and food to eat. That was enough.

[486] In between the various enterprises from Luke, Jane worked various minimum wage jobs to ensure that money was coming in. She had been poor growing up and was doing better than that for her daughter. It is hard to know exactly what she was earning. No tax records were produced going back far enough and there are no records from the businesses.

[487] In an effort to fairly reflect what she was earning during this time, RSM used $22,500 per year. This is a little less than full-time minimum wage and is, in all the circumstances, a reasonable estimate of what she actually earned over her working life.

[488] Jane’s evidence was that she stopped working in 2015, around the time that Luke sold his restaurant outside of town. This is also around the time that her breathing issues became too severe for her to be able to keep working and her mental health took a nosedive. She has not worked since. She was only 51 years old when she stopped working.

[489] It was suggested that the average retirement age is 65. It varies depending on whether someone is self-employed or works in the private or public sector. Had the assault not happened, 65 is a conservative, reasonable age to use for her retirement and is statistically supported. Given her financial situation, it is more likely, however, that she would have retired at age 67 or higher.

[490] The plaintiff presented two reasonable comparator groups: real estate agent without a degree or diploma or anyone else working without any formal education. Both are conservative estimates of what Jane could have done had the assault not occurred.

[491] Jane has had a loss of income starting in 1990 when she came out of the WPP and this loss runs until at least age 65.

[492] It was submitted that Jane’s COPD is stopping her from working. However, her psychological symptoms have also impeded her and this is what prevented her from reaching her potential over the years. Since the assault, she could not work alone at night. She does not like being around men. She has trouble with authority. All of these things would have affected her ability to work in a more traditional setting and would have negatively affected her ability to work. By working for Luke, she was in a sheltered work environment where she had more control over what she was doing and who she was working with.

[493] Ontario’s argument that Jane's income loss is solely attributable to her physical health, rather than the psychological consequences of the 1987 assault and the government's negligence, overlooks not only the well-established interplay between trauma, mental health, and long-term employability, but the evidence that the psychological injuries were caused by the assault and undermined her ability to maintain stable, traditional employment. Additionally, to suggest that her income loss is too remote or unforeseeable is to disregard the foreseeable and devastating impact that institutional failures and sexual violence have on survivors' lives and livelihoods.

[494] It is submitted that Jane's loss of income is based on all workers with no diploma or degree. Stephanie Greenwald calculated this past loss dating back to 1990 at $1,004,585 [^143] and her future loss from the date of the trial to age 65 as $190,038.[^144]

[495] Age 65 is a conservative estimate of when Jane would have retired. Given her low education and the likelihood that she would have been self-employed, it is entirely likely that she would have continued to work to age 67 at least.

[496] Alternatively, if the Court does not accept that there was any loss before 2015, there is still a loss of income from 2015 to age 65, or 14 years. This finding requires the Court to accept that Jane’s COPD is causally related to the effects of the assault and that her psychological condition declined to the point that she was no longer able to work.

[497] It is submitted that looking at schedule 2 for this scenario and taking the values from the chart starting July 1, 2015, to October 19, 2025, and adding them together has a total value of $486,142.50 if the Court thinks Jane would not have been working anywhere with benefits and $529,277 [^145] if the Court believes she would have had benefits.

[498] Her future loss of income is $190,038 with benefits or $170,439.32 without.[^146] This, again, assumes a retirement age of 65 which is very conservative in Jane's case. It is open to the Court to find that it is more likely that she would have worked to age 67 or even age 70 depending on her personal circumstances.

Ontario’s position

[499] Ontario submits that Jane’s claim for income loss rests on a tenuous thread: the proposition that had it not been for the 1987 sexual assault, her career would have gone in a significantly different direction. The evidence to support this claim is lacking. The evidence is definitive that Jane was fully capable of working and working hard. The claim for income loss rests entirely on the proposition that she would have done different, more lucrative, work instead.

[500] First, it is clear that for decades after 1987, Jane was quite capable of working and did in fact work in a variety of jobs. Most notably, she chose to work for a succession of businesses owned by her husband Luke. Jane herself took great pains to emphasize how much work she did and how much responsibility she had in these businesses. According to Jane’s own evidence, she was responsible for the great majority of the work, while Luke drank. Contrary to Jane’s arguments that this was somehow “sheltered employment” in the manner of someone with an intellectual disability, Jane by her own evidence had the greatest amount of responsibility. Dr. Ricci explicitly disagreed that this was a “sheltered employment” situation for this reason.

[501] It was Jane’s choice to not take cash compensation for her work in these family businesses. While this may not have been a prudent choice in retrospect, working unpaid for a family business is not an unusual thing to do.

[502] Ontario submits that it turned out that Luke was a drunk and a deadbeat. The businesses all appear to have failed, culminating in Luke getting stiffed on payment while selling a restaurant outside of town in 2015, an event which seems to have catalyzed the plaintiff’s 2015 psychiatric admission.

[503] While Luke’s businesses did not turn out well, and Jane failed to realize any money from her long years working for them, Ontario cannot be held responsible for these business losses. In presenting Ontario with a bill in excess of $1 million, Jane in effect is asking the Court to insure her against her business losses over the decades. The task is made even more difficult by the fact that she appears not to have filed any tax returns. It is impossible to know what exactly Jane actually did earn over the years, especially as she appears to have been paid in kind by Luke taking care of bills and living expenses.

[504] Jane attempts to link these alleged income losses to her alleged loss of independence after the 1987 assault, leading to her choice of Luke as a husband.

[505] The proposition that marriage to a less than ideal husband amounts to compensable damages is an extraordinary enough suggestion. However, it does not match up with the facts either. It is clear that Jane’s romantic history prior to Luke was littered with bad decisions. Some of whom were connected to criminal activity and whose association with a gang ultimately led to death threats against her and her participation in the Program. Nico, who seemed like a good choice until he turned into an international drug trafficker. It is clear that Jane’s choice of Luke is not an aberration, but fits in with her prior history.

[506] Any attempt to draw a straight line of causation between the 1987 assault and Jane’s choice of Luke as a husband also fails on the facts. The only evidence on this point is Dr. Ricci’s. In cross-examination, Dr. Ricci testified that Luke was familiar to her because he reminded her of her alcoholic and abusive father. If Jane married Luke because of her history, it is more likely that this was because of her history with her father, rather than the 1987 assault.

[507] Furthermore, it cannot be said that Jane was a passive observer in her relationship with Luke. The plaintiff’s evidence described several instances where she exercised agency to shape the direction of her life with Luke. For instance, when the plaintiff’s daughter was born, she herself moved out to the West Coast alone, giving Luke an ultimatum that he could stay in Ontario without them, or sell his bar and come West. He chose the latter.

[508] It is clear as well that the events leading up to Jane needing to be in the Program in the first place also likely had an impact on her career. Jane and her boyfriend at that time were mixed up in criminal activity, “dancing on the edge of a knife.” She ultimately chose to become a Confidential Informant, turning on her boyfriend. She was threatened with death as a result and had to leave her old life behind.

[509] Jane’s own evidence about the loss of her apartment building paints a particularly clear picture. After her work for the police as a Confidential Informant, Jane could no longer return up north and had to sell her apartment building. Jane placed tremendous emphasis on the loss of this apartment building in her evidence, and it is clear how much this meant to her. None of this impact flows from the 1987 sexual assault but rather flows from the events that necessitated her involvement in the Program in the first place.

[510] Ontario submits that Jane’s evidence on sibling comparators should not be given any weight. As the Courts have recognized, sibling comparator evidence is mainly used in cases involving minor plaintiffs without any pre-incident educational or employment histories.

[511] In this case, comparison to Jane’s brother is furthermore of limited value, as he earns a substantial salary working in the oil patch, something that Jane never contemplated.

[512] In addition to all of the above, the question remains: if Jane’s career was impacted by trauma, which trauma is responsible? Jane had a long history of serious trauma pre-dating the 1987 assault, which can equally be said to have impacted her career. To give one example, Jane argues that her distrust for men has impacted her career and ability to work in a normal professional context.

[513] However, it is clear from the evidence of Dr. Ricci that this aversion predated the 1987 assault. Jane told Dr. Ricci that her distrust of men dates to a young age, and that she learned early on that men only “think with their dicks.” This should come as no surprise. By her teenage years, Jane had not only grown up with alcoholic, severely abusive father, but had experienced multiple instances of sexual assault, including from her cousin, and from a fellow patient at the psychiatric hospital wherein her mother abandoned her.

[514] Ontario submits that Jane was perfectly able to work until about 2015. Ontario cannot be held responsible for any speculative income loss. After 2015, Jane’s inability to work is entirely the result of physical limitations imposed by COPD.

[515] In all of the circumstances, no damages for income loss can be assessed. Jane’s losses under this head of damages should come to zero.

Analysis on Loss of Income

[516] To recover damages for loss of income, Jane must demonstrate a real and substantial possibility that, but for the assault, her earnings trajectory would likely have been materially different.

[517] I agree with Ontario’s submissions on this issue. The evidence establishes that Jane was capable of sustained and demanding work for decades following the assault and did, in fact, work extensively. Her employment history, largely within family businesses, reflects personal choices, economic circumstances, and relationship dynamics not causally attributable to the assault.

[518] Jane’s theory of lost opportunity rests on speculation and counterfactual assumptions that cannot be reliably grounded in the evidence. Comparator analysis based on siblings is not persuasive in these circumstances. Further, to the extent Jane ceased working in or around 2015, that event coincided with non‑compensable physical decline from COPD and external stressors unrelated to the assault.

[519] I therefore find that Jane has not established a compensable loss of past or future income arising from the 1987 sexual assault. Damages under this head are assessed at zero.

What are Jane’s treatment needs?

Jane’s position

Psychological Treatment

[520] It is argued that not surprisingly, Jane has not had much in the way of formal treatment over the years. She did not tell anyone about what happened to her until more recently. She has not even fully told her siblings, with whom she maintains a very close relationship and speaks to on a regular basis. She did not want to admit what had happened or how badly it affected her. She was trying to get over it by herself. This is not surprising and not unusual.

[521] Jane tried to muscle her way through her mental health issues that were a legacy of this assault. Until she could not do that anymore.

[522] In April 2015, she checked herself into the Mental Health Unit at the local hospital.[^147] She was clearly in a mental health crisis. She told the Court that this was when she admitted to herself that it was bigger than her and she could not do it by herself anymore and she needed help.

[523] Jane did what she could with publicly funded treatment options. She reached out to CAMH and was under the care of Dr. Hanna, a psychiatrist, for a short period of time before being discharged.

[524] She received treatment from ASAP, a clinic specializing in sexual assault cases. She worked with Francine Fitzsimmons and felt that all was going well. Jane has trouble having to retell her story over and over again. She fears people will leave her. Despite being told she was with her for the long haul, Francine left ASAP and left Jane. Her successor Sandra was not the same, and Jane did not feel the same connection. Given how vulnerable one has to be to connect with a therapist, it is completely reasonable that Jane stopped working with Sandra. There was no connection, which means that there would not be any therapeutic benefit given the lack of trust and openness.

[525] Jane has received informal counselling from Maribel Robles from the SIU Affected Persons division and then from JJ Cormier. These are not formally trained counsellors, but, given their understanding of the SIU process, are uniquely qualified to help someone like Jane understand the legal aspects of what happens when a police officer is being investigated. Both described Jane as being high needs. They both provided her with information, with grounding and with breathing techniques. They gave her information when she was triggered. They have helped provide comfort to Jane.

[526] Jane submits that there is no failure to mitigate argument to be made with regard to Jane's ability to access psychological treatment. Her refusal to take psychological medications is properly grounded in medical advice about the potential interactions between such medications and her existing physical conditions coupled with her personal preferences. Those medications carry with them significant side effects which are, by themselves, a valid reason not to take them.

[527] Both Dr. Jackson and Dr. Ricci agree that treatment typically includes therapy, exercise and medication. Unfortunately, Jane is unable to take most medications due to their side effects and potential to affect her heart, her lungs or her glaucoma. She is unable to do physical exercise as a result of her COPD. She has tried and failed. She is left with therapy as the only realistic option available to her.

[528] Dr. Jackson opined that Jane requires an integrated psychotherapy approach for treatment of her conditions. This includes narrative exposure therapy and cognitive behavioural therapy. This kind of treatment is not available through community resources as most of those programs have a three-month limit on treatment.

[529] Dr. Jackson further noted that there are few people able to do this kind of treatment and she may have to go to Ottawa to access a provider. This treatment would not result in complete remission as there has been too much psychological damage.

[530] Dr. Jackson recommended 2 years of intensive treatment on a weekly basis, which is 46 sessions a year, and further ongoing treatment. While she noted a cost of $45,000, she also agreed that the hourly figures she used were already out of date. This figure also assumes that Jane is able to respond to treatment as she is bright and motivated.

[531] In order to reflect the rising costs of treatment in the 4 years since Dr. Jackson provided her opinion, her figures need to be updated. Taking $45,000 and dividing it by $225.00, the hourly rate Dr. Jackson had used, gives 200 hours. Taking 200 hours and multiplying it by $300.00 per hour (in accordance with Dr. Jackson's testimony), Jane is seeking $60,000 for ongoing psychological treatment in accordance with Dr. Jackson's recommendations. Again, this is a conservative estimate that assumes Jane is able to find a therapist she trusts and that she is able to respond to the treatment she is provided. It is entirely possible that she will need more treatment than has been proposed.

[532] At the end of the day, Dr. Ricci agreed with Dr. Jackson's treatment recommendations.

Miscellaneous Care/Housekeeping

[533] Jane testified that she is no longer able to dress herself, cook her meals or clean due to her COPD. She is receiving this assistance from her husband Luke who has not lived with her since in or around 2015, Luke gets her groceries and helps her as needed. Assuming 2-3 hours per day of help for the various tasks he is completing, 7 days a week going forward at an hourly cost of $20.00 per hour has an annual value of $14,560 at the low end and $21,840.

[534] Taking the present value multipliers from Schedule 4[^148] this has a multiplier of 7.76 to age 70 or 20.61 to life expectancy (age 86.6). At age 70, the range is $112,985.60 - $169,478.40.

[535] Finally, it is unclear exactly how long Jane will live and it is important that her losses not be underestimated.

Ontario’s position

[536] Ontario’s position is set out in the causation section, above. Briefly summarized, Ontario submits that Jane has repeatedly declined recommended medical and psychiatric treatment, and that this refusal constitutes a failure to mitigate her claimed losses.

[537] With respect to her psychological condition, Ontario argues there is no medical evidence that Jane was unable to take psychiatric medications due to glaucoma or side effects; rather, the evidence shows she tolerated medications such as Seroquel and Cymbalta during her 2015 hospitalization, and Dr. Ricci opined that medication would likely be beneficial if Jane were willing to pursue it.

[538] Jane’s continuing refusal is said to be based on personal preference rooted in her brother’s experiences, rather than medical contraindication. Ontario further contends that, on Jane’s own theory, this refusal led her to self‑medicate with cigarettes, adversely affecting her physical health. Regarding COPD, Ontario submits that Jane declined several treatments that could have improved her condition. This conduct reflects a broader pattern of rejecting medical advice, warranting a reduction of any damages awarded for physical impairment and income loss.

Analysis on Treatment/ Miscellaneous Care/ Housekeeping

[539] Both Dr. Jackson and Dr. Ricci agree that Jane would benefit from ongoing psychotherapy. I accept that therapy, rather than medication or exercise, is the only realistic treatment modality available to her, given her physical limitations and medication sensitivities. Consistent with the thin skull principle, Ontario must take Jane as it found her psychologically, including her particular vulnerabilities and resulting treatment needs. Jane is entitled to damages that fully compensate her for the harm caused by the sexual assault, but not to place her in a better position than she would otherwise have occupied.

[540] I also accept that Jane has not failed to mitigate her psychological injuries in relation to therapy access. Her difficulty sustaining therapeutic relationships is consistent with trauma‑related attachment disruption flowing from her psychological condition and reflects her vulnerability rather than unreasonable non-compliance.

[541] If I had found Ontario liable, I would accept that the proposed sum of $60,000 reasonably reflects the cost of intensive therapy over time, assessed having regard to Jane’s psychological vulnerabilities on a thin skull basis.

[542] Jane’s claim for housekeeping and personal care assistance is grounded entirely in physical limitations caused by COPD. As I have found that COPD is not causally linked to the assault, these care costs are not compensable.

[543] Accordingly, no award would have been made for housekeeping or attendant care.

[544] As such, had I found Ontario liable, I would have awarded as follows:

a. General Damages: $200,000.00

b. Past Loss of Income: $0.00

c. Future Loss of Income: $0.00

d. Psychological treatment: $60,000.00

e. Other care/ Housekeeping: $0.00

Total: $260,000.00

[545] Judgment to issue dismissing the plaintiff’s claims.

[546] Jane Doe and His Majesty the King in Right of Ontario may submit costs submissions of a maximum of five pages, plus bills of costs, offers to settle and limited highlighted relevant caselaw, within 30 days.

Justice H. Desormeau

Released: May 13, 2026

Jane Doe v. His Majesty the King in Right of Ontario, B.H., and Toronto Police Services Board, 2026 ONSC 2807

COURT FILE NO.: CV21-09

DATE: 20260513

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jane Doe v. His Majesty the King in Right of Ontario, B.H., and Toronto Police Services Board

REASONS FOR JUDGMENT

Justice H. Desormeau

Released: May 13, 2026

[^1]: For the purposes of these reasons, I refer to the plaintiff by her first name. This approach is adopted solely to maintain consistency with the style employed by her counsel in the written submissions and to facilitate clarity in addressing the issues before the Court. It should not be interpreted as a departure from the respect and decorum owed to all parties. The matter before the Court is of a deeply personal nature, and the use of the plaintiff’s first name reflects the sensitivity with which these proceedings were conducted, while ensuring alignment with the manner in which the case has been presented.

[^2]: TRU stands for Tactics and Rescue Unit

[^3]: First names used for consistencies’ sake throughout the trial. It should not be interpreted as a departure from the respect and decorum owed to all parties.

[^4]: Fictious name to protect Jane’s identity.

[^5]: Fictious name to protect Jane’s identity.

[^6]: Fictious name to protect Jane’s identity.

[^7]: Fictitious name to protect Jane’s identity.

[^8]: Fictitious name to protect Jane’s identity.

[^9]: Fictitious name to protect Jane’s identity.

[^10]: Also a fictious name to protect Jane’s identity.

[^11]: See paragraph 76 of the plaintiff’s closing submissions.

[^12]: Wellington v. Ontario, 2011 ONCA 274 at para. 20; Connelly v. Toronto (Police Services Board), 2018 ONCA 368, at para. 6.

[^13]: Ex 3, Tab 14, F3911

[^14]: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at para. 20; the Anns/Cooper analysis.

[^15]: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [page146] 2001 SCC 79, at para. 22

[^16]: Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at para. 31.

[^18]: Hill, supra, at para. 67.

[^19]: Hill, supra, at para. 69.

[^20]: Meady v. Greyhound Canada, 2015 CarswellOnt 46, at para. 34.

[^21]: Ibid; Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598, at para. 125, 133, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 319.

[^22]: 495793 Ontario Ltd cob as Central Auto Parts et al v Barclay et al [Indexed as: 495793 Ontario Ltd v Barclay], 132 OR (3d) 241, 2016 ONCA 656, 132 OR (3d) 241, citing Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, supra, at para. 73.

[^23]: Ibid, at paras. 53 and 54.

[^24]: Ibid, at para. 57; citing Krawchuck v. Scherbak, 2011 ONCA 352 at paras. 133 and 135.

[^25]: Ibid, at para. 56.

[^26]: Plaintiff’s closing submissions, paras 103 and 104.

[^27]: Plaintiff’s closing submissions para. 106.

[^28]: Plaintiff’s closing submissions, at para. 112.

[^29]: Section 7(d) Crown Witnesses Act

[^30]: Hemmings (Litigation Guardian of) v. Peng, 2024 ONCA 318 at para.61

[^31]: Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181, at para. 8.; Erika Chamberlain and Stephen G.A. Pitel, eds., Fridman's The Law of Torts in Canada, 4th ed. (Toronto: Thomson Reuters, 2020), at p. 505.

[^32]: Hemmings (Litigation Guardian of) v. Peng, 2024 ONCA 318 at para. 64; also see Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, at para. 17.

[^33]: Hemmings, supra, at para. 66; also see Saadati v. Moorhead, 2017 SCC 28 at para. 20.

[^34]: Saadati v. Moorhead, 2017 SCC 28, at para. 12.

[^35]: Hemmings, supra, at para. 66.

[^36]: Overseas Tanking (U.K.) Ltd. V. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.) (“The Wagon Mound no. 1.).

[^37]: Hughes v. Lord Advocate, [1963] AC 837

[^38]: Hemmings (Litigation Guardian of) v. Peng, [2024] O.J. No. 1918 at para. 67.

[^39]: Here the defendant cites Mustapha v. Culliang of Canada Ltd, 2008 SCC 27 at para. 13; Hemmings, supra, at para. 68.

[^40]: Plaintiff’s written submissions at para. 85.

[^41]: Lac Minerals Ltd., v. International Corona Resources Ltd., 1989 34 (SCC), [1989] 2 SCR 574, at para. 26.

[^42]: Ibid. Emphasis in original.

[^43]: Ibid, at para. 28.

[^44]: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 SCR 261, at para. 22.

[^45]: Ibid, at para. 25.

[^46]: Galambos v. Perez, 2009 SCC 48, at paras. 66,71 and 77-78; Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377, per La Forest J., at pp.409-410.

[^47]: Alberta v. Elder Advocates of Alberta Society, supra, at para. 30.

[^48]: Ibid, at para. 31.

[^49]: Ibid, at para. 32; Galambos, supra, at para.77.

[^50]: Ibid, at para. 33.

[^51]: Ibid; at para 34; Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, per Wilson J., at p. 142.

[^52]: Ibid, at para. 36.

[^53]: Lac Minerals Ltd., v. International Corona Resources Ltd, supra.

[^55]: Ibid, at para. 29.

[^56]: Edwards v. Canada (Attorney General), 2002 CarswellOnt 2701, at para. 39.

[^57]: Alberta v. Elder Advocates of Alberta Society, supra, at para. 37; Guerin v. R., (1984), 13 S.L.R. (4^th^) 321 (S.C.C.).

[^58]: Ibid, at para. 43.

[^59]: Ibid, at para. 44.

[^60]: Ibid, at para. 53

[^61]: Ibid, at para. 54.

[^62]: Romagnuolo v. Hoskin, [2001] O.J. No. 3537 (Ont. S.C.J.), at para’s 34 and 38; Cox v. Ontario, 2016 ONSC 6715 at paras 21-23.

[^64]: White v. Ontario, [2002] O.J. No. 2171, at para. 85.

[^65]: Ibid, at para. 85.

[^66]: John Doe v. Ontario, 2007 CarswellOnt 6487 at paras. 120 and 121.

[^67]: Ibid, at para. 121.

[^68]: Girardet v. Crease & Co. (1987), 1987 160 (BC SC), 11 B.C.L.R. (2d) 361 (B.C. S.C.) at p. 362.

[^69]: Ibid; John Doe v. Ontario, supra, at para. 122.

[^70]: Varcoe v. Sterling, (1992), 1992 7478 (ON SC), 7 O.R. (3d) 204 (Ont. Gen. Div.)

[^71]: Franc v. Webb, 1999 CarswellBC 2499, at para. 95.

[^72]: Smith v. New Westminster (City), 2004 BCSC 818, at paras. 162-163.

[^73]: Giradet v. Crease & Co, supra, at 362; Smith v. New Westminster (City), supra, at para. 152.

[^74]: A.(C.) v. C.(J.W.), (1998), 1998 9129 (BC CA), 60 B.C.L.R. (3d) 92 (B.C. C.A.); Giradet, supra, at para. 154.

[^75]: Smith v. New Westminster (City), 2004 BCSC 818, at para. 154.

[^76]: H.(J.) v. British Columbia, [1998] B.C.J. No. 2926 (B.C.S.C.) at para. 37; Smith v. New Westminster (City), supra, at para. 155.

[^77]: A.(C.) v. C.(J.W.), at para. 154; Smith v. New Westminster (City), supra, at para. 156.

[^78]: B. (K.L.) v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51 (S.C.C.)

[^79]: Exhibit 1, Tab 34, Letter dated March 9, 1988, F225; also found at Exhibit 3, Tab 38, F4047 to 4049.

[^80]: Exhibit 1, Tab 27, October 6, 1987 acknowledgment and agreement.

[^81]: Exhibit 3, Tab 19, correspondence dated January 18, 1988, F3934 to F3935.

[^82]: Exhibit 3, Tab 20, correspondence dated January 20, 1988, F3938.

[^83]: Exhibit 3, Tab 33, F4010.

[^84]: Exhibit 3, Tab 38, correspondence dated March 9, 1988, F4047 to 4049; also found at Exhibit 1, Tab 34, F225.

[^85]: Exhibit 3, Tab 19, correspondence dated January 18, 1988, F3934 to F3936.

[^86]: Exhibit 3, Tab 20, correspondence dated January 20, 1988, F3938.

[^87]: Exhibit 3, Tab 38, correspondence dated March 9, 1988, F4047 to 4049; also found at Exhibit 1, Tab 34, F225.

[^88]: White v. Ontario, [2002] O.J. No. 2171.

[^89]: Edwards v. Canada (Attorney General), 2002 CarswellOnt 2701, at paras. 3,4, and 55.

[^90]: John Doe v. Ontario, supra.

[^91]: Lac Minerals Ltd., v. International Corona Resources Ltd, supra.

[^92]: Exhibit 1, Tab 27 (F151 in case center), Exhibit 3, Tab 12, F3906.

[^93]: Exhibit 3, Tab 3, handwritten note of Officer B. Burley, F3718.

[^94]: Exhibit 3, Tab 13, F3908, 3909.

[^95]: Edwards v. Canada (Attorney General), 2002 CarswellOnt 2701.

[^96]: Jedfro Investments (U.S.A.) LTd. V. Jacyk Estate, 2007 SCC 55, [2007] 3 S.C.R. 679 (S.C.C.), The Law of Contracts.

[^97]: Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, at para. 12.

[^98]: Ibid, at para. 16.

[^99]: Evidence of Jane and Dr. Ricci, at trial.

[^100]: Evidence of Jane Doe, October 21, 2025.

[^101]: Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, at para. 17.

[^102]: Athey, supra, at para. 13.

[^103]: Athey, supra, at para. 14.

[^104]: Athey, supra, at para. 15.

[^105]: Athey, supra, at para. 16.

[^106]: Ibid, at para. 17.

[^107]: Ibid, at para. 19.

[^108]: Ibid, at para. 20.

[^109]: Athey v. Leonati, supra, at para. 35.

[^110]: Ibid, at para. 35.

[^111]: Blackwater v. Plint, 2005 SCC 58

[^112]: Blackwater, supra, at para. 74.

[^113]: Ibid, at para. 74; Athey v. Leonati, at para. 32.

[^114]: Blackwater v. Plint, supra, at paras. 76 and 77,

[^115]: Blackwater, supra; Athey, supra.

[^116]: Blackwater, supra; Athey, supra, at paras. 32-36.

[^117]: Ibid, at paras. 78,79, 80; Athey v. Leonai, supra.at paras. 32-36.

[^118]: A.(T.W.N.) v. Clarke, 2003 BCCA 670, at para. 28.

[^119]: A.(T.W.N.) v. Clarke, supra, at para. 48.

[^120]: Ibid, at para. 37.

[^121]: W.(D.) v. Canada (Attorney General), 1999 SKQB 187, at para. 38.

[^122]: Ibid, at paras. 38-39.

[^123]: B.(T.M.) v. R.(R.), 2000 BCSC 1029, at paras. 33, 41-44,

[^124]: Boyetchko v. Mentias, 2021 BCSC 172, at paras. 23-43.

[^125]: Ibid, at paras. 174 and 224.

[^126]: Athey v. Leonati, supra,at para. 34.

[^127]: Ibid, at para. 35.

[^129]: Evidence of Dr. Sharma, October 24, 2025.

[^130]: Y. (S.) v C. (F.G.), 1996 6597 (BC CA), [1996] B.C.J. No. 1596 (BCCA) at para 55.

[^131]: G.(B.M.) v Nova Scotia (Attorney General), 2007 NSCA 120 at para 135.

[^132]: Blackwater v Plint, 2005 SCC 58 at para 89, referencing Blackwater v. Plint, 2001 BCSC 997, [2001] B.C.J. No. 1446 (B.C.S.C.) at para. 398 as considerations approved by the SCC.

[^133]: Hudson v Youth Continuum Inc, 2012 ONSC 4421 at paras 10–12.

[^134]: Hudson v Youth Continuum Inc, 2012 ONSC 4421 at para 26.

[^135]: K.T. v Vranich, 2011 ONSC 683 at para 20.

[^136]: K.T. v Vranich, 2011 ONSC 683 at para 113.

[^137]: K.T. v Vranich, 2011 ONSC 683 at para 107.

[^138]: R.K. v Dickson, 2005 30855 (ONSC) at paras 19, 88.

[^139]: J.P. v D.T.L., 2023 ONSC 402 at para 25.

[^140]: Zando v Ali, 2017 ONSC 1289 at paras 97 and 98.

[^141]: West v. Knowles, 2021 ONCA 296 at para. 76.

[^142]: MacLeod v. Marshall, 2019 ONCA 842 at para. 25.

[^143]: Exhibit 12, schedule 2.

[^144]: Exhibit 12, schedule 3.

[^145]: Exhibit 12, schedule 2.

[^146]: Exhibit 12, schedule 3.

[^147]: Exhibit 2, Tab 158-193, Hospital Records F810-891.

[^148]: Exhibit 12, Schedule 4.