ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
N.M.
Plaintiff
-and-
C.T.
Defendant
John Tamming, for the plaintiff
C.T., acting in person
Heard: April 9, 10, 11, 2025
Publication restriction notice: By court order(s) made under subsection 486.4(1) of the Criminal Code, information that may identify the plaintiff may not be published, broadcasted, or transmitted in any manner. Identifying information has been removed from this version of the reasons for judgment to comply with the court order.
REASONS FOR JUDGMENT
Justice. R. Chown
1This is an action for civil sexual assault. The defendant pled guilty in criminal court to sexually assaulting the plaintiff, but he denies liability and says he was pressured into pleading guilty.
Publication Ban
2I have prepared these reasons for judgment using initials to identify the involved persons, and without referring to specific locations. There was no request for a publication ban in these proceedings and no order has been made in this regard. Despite this, it is arguable that s. 486.4(2) of the Criminal Code applies to this proceeding and that a publication ban is mandatory, subject to s. 486.51. Even if that is not the case, I assume there was a s. 486.4 publication ban in the criminal proceedings. Because these reasons deal with the criminal proceedings as well, the publication ban in the criminal proceedings would apply to these reasons. Hence, I have added a publication restriction notice at the top of these reasons. If any interested person wants me to release a version of these reasons that has not been anonymized, a hearing with me may be arranged to determine the issue.
Background
3The defendant owned a bar/restaurant in a small community in Grey-Bruce. He employed the plaintiff as a server.
4The defendant resides in Markham, but the upper storey of the bar contains an apartment where the defendant stays when he is working at the bar, normally from Thursday to Sunday.
5The bar had a security video system that recorded the interior of the bar.
6The plaintiff began her employment with the defendant when she was 18. At the time of the events giving rise to this action, she had worked for the defendant for four years and four months. She was 22 and the defendant was 52.
7The plaintiff had never expressed any sexual interest in the defendant. She found the idea disgusting. She testified that she thought of the defendant as a second father, and she could confide in him about family issues, friend issues, and things in general.
Liability
8The events in question occurred on Thursday, February 24, 2022 and Friday, February 25, 2022. The plaintiff began her shift on Thursday, February 24, 2022 at 5:00 p.m. and the bar closed at 11:00 p.m. In addition to the defendant, one other server was working that night, A.B. A.B. got told to go home early because the bar was not busy that night.
9The defendant spent much of the evening sitting at the bar, and later he joined a group of patrons at a table. The plaintiff recalls the defendant drinking red wine at the bar and Gibson’s and water at the table. When asked if the defendant became intoxicated, the plaintiff said he was “getting there,” because he became less reserved than he normally was.
10At 11:00 p.m., the plaintiff cleaned up and performed her closing duties. She then stayed behind to have some drinks with the defendant. This was the only time she had ever had drinks alone with the defendant. There had been prior occasions when she and A.B. stayed behind after work and together they had drinks with him.
11The plaintiff consumed four rye and ginger drinks and one shot of liqueur between 11:10 p.m. and 1:20 a.m. In addition, the defendant surreptitiously slipped alcohol into her drink. This can be seen on the security video. While the plaintiff went to the washroom, the defendant drank from her drink and added liquor to top it back up. He then resumed his position on a bar stool. He did not disclose to the plaintiff that he had done this. The defendant testified that it was his own drink he was topping up. I do not accept the defendant’s evidence on this point. The admitted facts at the defendant’s guilty plea included the following:
…while she was in the washroom, the defendant drank a portion of her mixed drink, which was composed of rye and ginger ale. The defendant replaced the missing volume with pure spirits and ensured the volume of the liquid in the glass remained constant. [N.M.] did not suspect that [C.T.] had tampered with her drink. As a – as a result of his actions, she consumed more alcohol than she had realized.
12The defendant began asking the plaintiff about her sex life and whether she was on any dating apps. He asked about her last date and whether she had sex on that date. The defendant grabbed her face to try to kiss her. She was sitting on a bar stool. The plaintiff recoiled and the two of them fell to the ground. The defendant continued to try to kiss her and had his body on top of her. He got off of her and helped her up. He left the room shortly after that, and she texted A.B. asking for help. She looked for her car keys, where she normally kept them – in a drawer near the point-of-sale system. She had never lost her keys at work. (Skipping ahead on this point, the next morning the plaintiff found her keys in the drawer near the point-of-sale system.)
13The defendant suggested that she stay the night in his apartment. The plaintiff did not feel she had another realistic option, and she agreed. The plaintiff felt intoxicated at this point. If she had found her keys, she would not have driven home but would have gone to her car to make phone calls. The apartment upstairs had two bedrooms. She went to the bedroom that she knew was used by the defendant’s nephew, believing the other bedroom was used by the defendant. The plaintiff laid down and fell asleep in that bedroom. This was at about 1:30 or 2:00 a.m. She was alone in the room when she fell asleep. She woke up at around 7:30 a.m. She was facing the wall and felt the defendant’s hard penis against her butt. The defendant either had his pants down or did not have pants on at all. She did not think he had underwear on. He said, “Did you text [A.B.]?” At that point the defendant tried to put his hand down her shirt. His hand went down the top of her shirt, but she got his hand out as soon as she could and did not allow him to get his hand under her bra. He then grabbed her right hand and touched it to his naked penis. He had an erection at the time. She pulled away right away and got up and walked out the door. She sat by the stairs in the apartment. He came out of the bedroom to have a shower. She had to wait for him because at that point, the bar was locked and she needed to be let in so she could get her keys. She found her keys and left. At the time she was shocked, angry, and did not know what to do. Later that day, she contacted the police. She provided a statement and participated in the criminal proceedings.
14In the criminal proceedings, the defendant was represented by counsel. On August 11, 2023, shortly before his scheduled trial, the defendant pled guilty to sexually assaulting the plaintiff. An excerpt of the transcript of the guilty plea is exhibit 19 in this trial. The agreed facts for the guilty plea covered only the events that were captured in the bar. That is, only the attempted kissing resulting in the plaintiff falling to the ground, and the defendant straddling the plaintiff for 50 seconds.
15The plaintiff said she found the defendant to be acting “weird” in the weeks leading up the events in question. For instance, the defendant sent her text messages on January 11, 2022 saying, “Hi what are you doing I am at [location omitted].” There was an exchange that may or may not have involved some miscommunication, but there was an unambiguous text from the plaintiff saying, “You are my boss [name omitted], what are you talking about,” and the defendant replied saying, “I don’t talking about anything bad” and “If you want Just come have a drink” [sic]. The defendant challenged the plaintiff in cross-examination by suggesting if she in fact did not trust him or have faith in him at that time, she did not take precautions to protect herself. The plaintiff responded, “I didn’t think you would take it where you took it.” I accept the plaintiff’s evidence in this regard.
16The defendant testified that he was pushed into pleading guilty by his lawyer’s advice. He said that, in his view, this claim was only about getting money from him. Prior to him purchasing the building where the bar is located, there were no accusation against him in any way. He said the video shows that after the fall, the plaintiff hugged him with her right arm. I do not agree. The video does not show a hug in my view.
17When it was suggested to the defendant in cross-examination that the video shows him approaching the plaintiff, grabbing her, and taking her to the ground off the bar stool, the defendant agreed that he went in front of the plaintiff but denied pushing her down. When asked if he had a memory of grabbing the defendant, he said that he was drunk and did not remember. He denied using his weight by lying on top of the plaintiff for 50 seconds, but said the plaintiff was hugging or embracing him. He said he truly believed she enjoyed this. He said if she did not, she would not have gone upstairs with him. He said she openly said she wanted to have sex with him. He said her exact words were, “Fuck me,” and she said this more than three to four times. He gave this evidence only in his cross-examination. He said this exchange occurred before he approached her while she was sitting on the bar stool. For added context, at 1:10 a.m., minutes after this encounter, the plaintiff texted her co-worker:
[A.B.] help me
This is not ok
I am getting [harassed]
He pulled me to the ground off the chairs. …
18I do not believe any of the defendant’s evidence with respect to the description of the events in question. There were at least three major problems with his evidence:
His evidence was internally inconsistent. At one point he said he was drunk and did not remember, at other points he confidently provided details of the events.
His evidence is not consistent with the video evidence. He is seen lying on the plaintiff for a significant period of time after they go to the ground. His suggestion that the plaintif enjoyed this is not credible.
His suggestion that the drink he added liquor to was his own drink is not credible in the face of the admission he made in the criminal proceedings. That admission was not central to a conviction so would have made little difference if it was omitted from the agreed facts.
19I observe as well that the guilty plea in the criminal case and the admissions necessary for the conviction are conclusive in this case: Caci v. MacArthur, 2008 ONCA 750, at para. 15; P.L. v. L.L., 2022 ONSC 6432, at paras. 9, 10, and 17. I do not accept that there was any undue coercion on the defendant to enter his plea. He had counsel present. According to the plaintiff’s evidence, the defendant apologized to the court and said it would not happen again. He did avoid jail as part of his plea arrangement, but that is not an adequate reason in the circumstances of this case to say his plea was coerced.
20The defendant’s guilty plea did not cover the sexual assault that occurred upstairs in the bedroom. However, I accept the plaintiff’s evidence that the sexual assault in the bedroom occurred as she described it. I find the defendant liable to the plaintiff for sexual assault and accept her version of how the sexual assaults occurred.
21The statement of claim also claims damages for wrongful dismissal based on constructive dismissal. I agree that the continued employment of the plaintiff was untenable because of the actions of the defendant, and therefore also find the defendant liable for constructive dismissal.
Damages
1. General Damages
22In Zando v. Ali, 2018 ONCA 680, at paras. 12 to 14, the Court of Appeal adopted the following framework for determining damages in civil sexual battery or assault cases.
12First, there is the purpose of non-pecuniary damages in sexual assault and battery cases: “to provide solace for the victim’s pain and suffering and loss of enjoyment of life, to vindicate the victim’s dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts.”
13Second, the factors for assessing such damages include: (i) the circumstances of the victim at the time of the events, including the victim’s age and vulnerability; (ii) the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were; (iii) the circumstances of the defendant, including age and whether he or she was in a position of trust; and (iv) the consequences for the victim of the wrongful behaviour including ongoing psychological injuries.
14Third, in assessing non-pecuniary damages for sexual assault, the court must first consider the important characteristics of the case to define the types of cases that should be considered for comparison purposes in establishing an appropriate range, and then select an amount of damages within that range, based on the features of the particular case. [Citations omitted.]
The Circumstances of the Victim, the Assaults, and the Defendant, and the Consequences for the Victim
23The plaintiff had some pre-existing depression, with a remote history that included a suicide attempt. A clinical note dated October 27, 2021 indicates a five-year history of intermittent depression and a “remote [history] of attempted overdose with pills.” The ER doctor charted low mood, poor sleep and energy, poor concentration, poor appetite, with a diagnosis of major depressive disorder. The plaintiff was discharged with a prescription for mirtazapine, a medication she is still on to this day. Other clinical notes in the records also identify concerns with depression, but overall, the symptoms seem relatively minor and there is little to suggest any sustained impact on the plaintiff’s daily function. The plaintiff’s depression was seemingly well-controlled with the anti-depressant medication. A clinical note from a social worker who did counselling for the plaintiff in November 2021 indicates, “Pt tells me she is doing much better – work was feeling overwhelmed with school but has adjusted things and feels she is OK right now.”
24At the time of the sexual assaults, the plaintiff was a full-time student taking online courses in a diploma program at a college. She had completed her first full semester and was in her second semester.
25The plaintiff testified that she withdrew from everyone after the sexual assault. She stayed at home and did not want to leave the house. She avoided the town where the bar was. She found that she could not concentrate. She had depressive symptoms. Her family doctor increased her anti-depressant medication. She remains on the higher dose. By March, she decided she needed to withdraw from her courses for that semester. She withdrew from all her courses that semester (five courses). She attended counselling with a therapist. The appointments were virtual. She continues to talk to the counsellor. She estimates she has had 20 counselling sessions.
26The plaintiff obtained a further compassionate leave for two more semesters, allowing her to take two courses for the next semester and one course the semester after that. The plaintiff said that she incurred extra tuition because of her course withdrawals, in the approximate amount of $7,000. However, no documentary evidence of this loss is in evidence.
27Whereas the plaintiff would have completed her diploma in April 2023 had she maintained her course load, she in fact graduated in December 2023, eight months late. After this, she decided to pursue a degree instead of a diploma as she felt that her grades were not what they could have been, and a degree would leave her in a position to obtain a higher paying job. She expects to complete this degree in April 2026. Her studies are now going well, and her grades are good. At the time of the trial, she was working in a full-time job as a cabinet maker, 40 hours a week. She felt that her diploma or degree would qualify her to work for Bruce Power.
28The plaintiff testified that she feels she is changed. She said she would “do anything to go back” and to avoid this litigation matter. She does not like having the label of being a sexual assault survivor. She does not have as much confidence as she had before, and she finds it difficult to trust people. This is not surprising given that the defendant’s conduct involved a serious breach of trust. Notes from the post-sexual assault counselling sessions tend to confirm that the plaintiff suffered considerable ongoing distress, triggered by reminders of the events. The social dimension of the plaintiff’s life seems to have been significantly impacted by reminders of the sexual assault. One hopes that with time, these will decrease in frequency.
29The expert witness called by the plaintiff, psychologist Dr. Carol-Anne Hendry, found that the plaintiff met the criteria for PTSD and persistent depressive disorder.
30Functionally, the plaintiff seems to have suffered considerably as demonstrated by her delayed, gradual return to schooling. However, after a lengthy period, she has seemingly recovered to good functioning. She got good grades in school while working full time. There is no evidence of ongoing sexual anxiety. The treatment she has had appears to have been limited to interventions by her family doctor and counselling with a social worker. This is encouraging and it is a testament to the plaintiff that she has done relatively well.
31Dr. Hendry opined that the plaintiff’s prognosis is “cautiously optimistic.” She felt that, with psychotherapy, “there is potential for significant improvement in her overall psychological functioning.” This is consistent with my overall impression from the plaintiff’s evidence. She impressed me as someone who will be able to do well despite the trauma she experienced at the hands of the defendant.
32Turning briefly to the circumstances of the defendant, he was the plaintiff’s employer. He was in a position of authority over the plaintiff and was someone the plaintiff trusted. He was far older than the plaintiff. It should have been clear to him not only from the text messages that are in evidence, and from the circumstances, but also from the unwillingness the plaintiff demonstrated in the initial sexual assault, that the plaintiff was not sexually interested in him. He would have known the plaintiff consumed considerable alcohol, and worse, he surreptitiously added to the alcohol she consumed without her knowledge.
Comparing the Jurisprudence
33Mr. Tamming suggests general damages should be $175,000 based on comparison to three cases on damages for sexual assault that he has provided for my consideration: Zando; M.B. v. 2014052 Ontario Ltd., 2012 ONCA 135; and Upton v. Carson, 2024 ONSC 3417. On my own I have also reviewed Zunnurain v. Chowdhury, 2024 ONSC 5552; Mikhail v. Mikhail, 2024 ONSC 4427; and H.N. v. School District No. 61 (Greater Victoria), 2024 BCSC 128, aff’d 2025 BCCA 144.
34In this case, the sexual assaults did not involve removal of the plaintiff’s clothing or penetration. The cases cited to me and the cases I have reviewed generally involve penetrative sexual assaults. Without in any way diminishing the plaintiff’s experience, in this case the assaults occurred on one evening and were limited in duration. In some of the cases cited, the assaults spanned a much lengthier period of time – decades in some of the cases. Some of the cases involve physical assaults causing injury, threats of harm, coercive control, extended abuse, and demeaning conduct.
35The Zando case involved a single incident of a sexual assault with overpowering force and penetration by one physician against another, together with “a campaign of harassment and discrimination at the Hospital” where they both worked. The trial judge awarded general (including aggravated damages) of $175,000. The Court of Appeal found no error in principle in the trial judge’s assessment.
36The M.B. case involved a review of a jury award of $300,000 for general damages for sexual assault. There had been four assaults, two of which “involved significant violence.” It is difficult to use a jury award as a comparator. Because juries do not give reasons, we do not know their findings of fact.
37The Upton case involved a single penetrative sexual assault with ejaculation while the plaintiff was passed out from alcohol. The impact on the plaintiff was severe with multiple psychological diagnoses. Her life was dramatically altered in that she sustained a serious loss of functioning both in her activities of daily living and her occupational pursuits. The court awarded general and aggravated damages of $175,000.
38Zunnurain involved a spousal relationship with many occasions of sexual assault over 20 years, and in addition constant threats of imminent harm, solidified by actual harm. The victim lived in near-constant fear of imminent harm because of the abuse, and suffered depression, a miscarriage, bruises to her back and hips, extreme pain, soreness, and a fever. The trial judge awarded general damages of $175,000.
39Mikhail involved domestic violence during the parties’ marriage and post-separation cohabitation. The assaultive behaviour included sexual assaults and punching, slapping, choking, an attempted suffocation with a pillow; a kick to the ankle causing ligament damage; dragging the victim down the stairs by her hair; and spitting on the victim. The trial judge awarded damages of $100,000.
40H.N. involved six years of abuse starting at the victim’s age 11. The trial judge awarded general damages (including aggravated damages) of $225,000.
41In R. v. Friesen, 2020 SCC 9, at para. 144, the Supreme Court of Canada said they would “strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation.” This statement was made in reference to sentencing in criminal sexual assault cases, but the case is nevertheless instructive. At para. 142 of Friesen, the court said:
[C]ourts should not assume that there is any clear correlation between the type of physical act and the harm to the victim. In assessing the significance of the degree of physical interference as a factor, … “judges should think in terms of what is most threatening and damaging to victims.” Judges can legitimately consider the greater risk of harm that may flow from specific physical acts such as penetration. However, as McLachlin J. explained in McDonnell, an excessive focus on the physical act can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause. Sexual violence that does not involve penetration is still “extremely serious” and can have a devastating effect on the victim. This Court has recognized that “any sexual offence is serious,” and has held that “even mild non-consensual touching of a sexual nature can have profound implications for the complainant.” The modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity. [Citations omitted.]
42As with any assessment of damages for personal injury, there must be a significant focus on the impact on the victim. The longer and more severe the impact and consequences, the higher the damages should be.
43Based on the facts and the jurisprudence, this case does not call for damages at the level proposed by Mr. Tamming. In my view an appropriate figure for general damages (including aggravated damages) is $75,000. This is a significant amount that is commensurate with a sexual assault having serious consequences, and also reflects the aggravating conduct of the defendant. The plaintiff was young and vulnerable, and that is a factor that pulls towards higher damages. However, the nature, duration, and circumstances of the assault, the defendant’s conduct, and the consequences to the plaintiff in this case are less serious than in the cases that award higher amounts.
44Rule 53.10 applies to this award. This award therefore attracts prejudgment interest at 5% from February 25, 2022 to today’s date (1,424 days), for a total of $14,630.
2. Punitive Damages
45The plaintiff acknowledges that punitive damages are not appropriate for the conduct admitted in the criminal proceedings. However, she claims $25,000 for punitive damages for the upstairs assault.
46In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, at para. 79, the Court of Appeal stated:
To obtain an award of punitive damages, a plaintiff must meet two basic requirements. First, the plaintiff must show that the defendant’s conduct is reprehensible: in the words of Binnie J. in Whiten, “malicious, oppressive and high-handed” and “a marked departure from ordinary standards of decent behaviour”: see Whiten, at para. 36. Second, the plaintiff must show that a punitive damages award, when added to any compensatory award, is rationally required to punish the defendant and to meet the objectives of retribution, deterrence and denunciation.
47The first element is clearly present, but the second element is close to the line in this case because the defendant was punished in the criminal proceedings, and he is being ordered to pay significant compensatory damages here. I do think a very modest award of punitive damages is appropriate, however. The award needs to specifically include something to reflect retribution, deterrence, and denunciation in respect of the upstairs assault, but without providing either overlapping damages or overlapping punishment. I award punitive damages of $5,000.
48I would not award prejudgment interest on the punitive damages.
3. Future Counselling Expenses
49I accept Dr. Hendry’s recommendations for future counselling. Her estimate of the cost was $21,150. The counselling proposed and the cost of it appears moderate. I am also impressed by Dr. Hendry’s comments about the importance of this counselling to the plaintiff. The plaintiff submits that there should be a contingency added because there is a risk of re-emergence of symptoms later in the plaintiff’s life. To reflect these considerations, and because the estimate is now a year and a half old, I would round Dr. Hendry’s figure up. I award $25,000 for future counselling expenses.
4. Past Special Expenses
50As the claim for $7,000 for increased tuition is entirely undocumented and no reason has been provided for the lack of documentation, I decline to award this amount.
5. Past Income Loss
51The plaintiff claims $46,000 for past loss of income on the basis that, but for the consequences of the sexual assaults, she would have been able to obtain a $70,000 per year job eight months earlier. I accept that the plaintiff’s entry into the workforce has been delayed by eight months because of the consequences of the sexual assaults. I do not accept that the plaintiff would have been able to obtain a $70,000 per year job eight months sooner. This is entirely unsupported by objective evidence. I award $15,000 for delayed entry into the work force. This may be more properly characterized as a future loss of income award than a past loss of income award because the plaintiff has not yet graduated.
6. Loss of Competitive Advantage
52I do not accept the claim for loss of competitive advantage. The plaintiff has not established that she is at any significant elevated risk for a loss of future income as a result of the sexual assaults. My impression from the evidence, and especially the plaintiff’s evidence, is that this is extremely unlikely. Dr. Hendry’s evidence supports a conclusion that there is a risk of recurring symptoms, but in no way emphasizes any significant risk of future unemployment attributable to the consequences of the sexual assaults.
7. Moral Damages
53Moral damages are available in wrongful dismissal cases, but they flow not from the fact of the dismissal itself, “but rather from the manner in which the dismissal was effected by the employer”: Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701, at para. 103. This case does not fit the typical mould for moral damages. A classic example of a case for moral damages is one where an employee has been wrongfully dismissed in a high-handed way, with a loud dismissal in front of the employee’s colleagues, perhaps with degrading remarks to the employee. In this case, the defendant did not want to terminate the plaintiff’s employment, but rather his conduct was inconsistent with a continued employment relationship such that the law considers the plaintiff to have been constructively dismissed. In any event, any award of moral damages in this case would be entirely duplicative of the awards made under other heads of damages. This is not an appropriate case for moral damages.
8. Termination Pay
54The plaintiff claims termination pay of $5,000 based on the submission that she earned about $1,000 per month from her employment with the defendant and she worked for him for five years, so she should be entitled to five months pay in lieu of notice.
55I have reviewed the available T4s, income tax records, pay stubs, and wage detail records. There is no record of employment. Bearing in mind that the plaintiff’s income in 2020 and 2021 was affected by COVID, I agree that $1,000 per month is a reasonable estimate of the plaintiff’s income from the defendant. However, the plaintiff’s testimony was that she worked for the defendant for four years and four months, not five years. Her evidence is consistent with the available income records. Five months notice is excessive notice for four years and four months of less-than-full-time employment in a server position.
56I assess the damages for constructive dismissal at $3,000, based on 3 months as being reasonable notice, at $1,000 per month.
57Under s. 128 of the Courts of Justice Act, this amount attracts prejudgment interest at 0.5% per year from February 25, 2022 to today’s date (1424 days), for total prejudgment interest of $59.
Disposition
58The plaintiff shall have judgment against the defendant as follows:
General and Aggravated Damages
75,000
Prejudment Interest on this Amount
14,630
Puntive Damages
5,000
Future Counselling Expenses
25,000
Delayed Entry to the Workforce
15,000
Damages for Constructive Dismissal
3,000
Prejudgment Interest on this Amount
59
Total
$137,689
59The parties may arrange a hearing to address costs by contacting the trial coordinator.
Chown J.
Released: January 19, 2026