Court File No.: CV-22-00000929 Date: 2026-06-25 Superior Court of Justice – Ontario

Between: Jessica Simon, Plaintiff – and – Tyler Reis, Defendant

Before: Justice M.A. Cook

Counsel: S. Chams for the Plaintiff T. Reis (defendant in default), did not appear

Heard: March 18, 2026

INTRODUCTION

1This is the plaintiff's motion for default judgment under r. 19 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, returnable as a summary trial pursuant to the directions of Tranquilli J. dated November 14, 2025.

2The plaintiff, Jessica Simon, was born on February 19, 1988 and resides in Thamesford, Ontario. The defendant, Tyler Reis, resides in London, Ontario.

3The action is for damages for assault, battery and intentional infliction of mental suffering in the context of an intimate partner relationship. The plaintiff alleges that on April 1, 2022, the defendant assaulted her at the defendant's residence at 599 Regent Street in London, when she was trying to leave the residence. The plaintiff pleads that the defendant grabbed her by the straps of a knapsack that she was wearing, and pulled her backward. The force of the pull caused her to roll over on her left leg and fracture her ankle. The defendant then attempted to strangle her.

4In her statement of claim, the plaintiff pleads that the assault on April 1, 2022 was part of a broader pattern of abuse at the hands of the defendant, including an earlier assault on or about March 25, 2021 that resulted in criminal charges against the defendant.

5The defendant initially defended the action. However, his statement of defence was struck by Order of the Honourable Justice L. Leitch dated January 24, 2025. He did not respond to the motion for default judgment and did not attend the summary trial.

6By her Notice of Motion and Statement of Claim, the plaintiff seeks default judgment for:

a. non-pecuniary general damages of $500,000;

b. pecuniary damages estimated at $500,000;

c. damages for intentional infliction of mental suffering of $100,000;

d. aggravated, punitive, and exemplary damages of $100,000;

e. pre- and post-judgment interest pursuant to ss. 128 and 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43; and

f. costs payable on a substantial indemnity basis.

7The motion for default judgment first came before the Court on September 26, 2025 before Justice Garson, who found that he was unable to assess damages on the motion materials presented. He adjourned the plaintiff's motion to permit her an opportunity to supplement the motion record. When the motion returned on November 14, 2025, Tranquilli J. directed that the motion proceed by way of summary trial with viva voce evidence from at least the plaintiff and any medical or other witnesses identified by counsel.

8I heard the summary trial on March 18, 2026. Despite Justice Tranquilli's direction, counsel for the plaintiff elected not to call any viva voce evidence. The plaintiff's case proceeded on the plaintiff's 17-paragraph affidavit sworn August 13, 2025, and the supplementary affidavit of law clerk Elaine Heffernan dated November 3, 2025 attaching the plaintiff's records from Woodstock General Hospital, Alexandra Hospital, St. Joseph's Health Care, Dr. Brown of New Vision Family Health Team, and London Health Sciences Centre.

9At the end of the plaintiff's submissions, I adjourned the trial for 30 days to permit the plaintiff to file further supplementary affidavit evidence to support her claim for punitive damages including, in particular, evidence of the defendant's criminal charges and their disposition. The plaintiff filed the supplementary affidavit of law clerk Elaine Heffernan sworn April 17, 2026 which included supplementary documentary evidence, a bill of costs and a draft order.

10Upon receiving the plaintiff's further supplementary materials, I reserved my decision. What follows are my decision and reasons for judgment.

ISSUES

11The issues to be determined on this uncontested trial are:

a. Is the plaintiff entitled to default judgment on liability for the torts of assault and battery and intentional infliction of mental suffering?

b. On what basis, and to what extent, are the medical and counselling records admissible, and how does the law of evidence shape the use that may be made of them?

c. What evidentiary record is properly before the Court for the assessment of damages, and what categories of damages are available to the plaintiff on that record?

d. What is the appropriate quantum of general damages?

e. Should aggravated damages be awarded, and if so, in what amount?

f. Are punitive damages warranted, having regard to the defendant's criminal prosecution for the same conduct?

LAW AND ANALYSIS

A. Liability

12Rule 19.02(1) of the Rules of Civil Procedure provides that a defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the statement of claim. On a motion for default judgment, the Court must nevertheless be satisfied that the facts pleaded, taken as true, disclose a cause of action and support the relief sought.

13The admitted facts pleaded in the Statement of Claim establish the elements of the intentional torts asserted. The defendant's act of pulling the plaintiff backward by her knapsack and his subsequent attempt to strangle the plaintiff were intentional, harmful, and non-consensual physical contacts that satisfy the tort of battery. The same conduct, coupled with the attempted strangulation, satisfies the tort of assault as a threat of imminent harmful contact. The plaintiff is therefore entitled to default judgment on liability for assault and battery.

14The Court is also satisfied, on the admitted facts, that the defendant's conduct, including its repetition over the course of the relationship, was flagrant and outrageous and calculated to produce harm. Liability for intentional infliction of mental suffering is established subject to proof of a visible and provable illness.

15The requirement of a "visible and provable illness" is properly understood in light of the Supreme Court of Canada's decision in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543. Although Saadati arose in the context of negligently caused mental injury, Brown J., writing for a unanimous Court, held at paras. 2, 31, 37–38 that a claimant is not required to demonstrate a recognizable psychiatric illness identified by reference to an established diagnostic classification, and that expert psychiatric evidence is not a precondition to recovery. What is required is evidence of a "serious and prolonged" disturbance that rises above the ordinary annoyances, anxieties, and fears that come with living in civil society.

16That principle applies with equal force to the tort of intentional infliction of mental suffering. The absence of a formal psychiatric diagnosis is not, in itself, fatal to the claim, but the plaintiff must still adduce evidence from which the Court can find, on a balance of probabilities, that she has suffered a serious and prolonged psychological injury caused by the defendant's conduct. As discussed below at paragraphs 29 to 31, the admissible evidence in this case falls short of that threshold, and the plaintiff's psychological harm is properly addressed within the assessment of general damages rather than as a discrete head of recovery.

B. Admissibility and Evidentiary Use of the Medical Records

17The plaintiff has the burden of proving her damages on admissible evidence. Her claim depends almost entirely on a body of medical, hospital, and counselling records filed as exhibits to the affidavit of a law clerk. Two evidentiary questions arise given how the plaintiff chose to present her evidence: are the records admissible, and if so, for what purposes may they be used.

Admissibility — ss. 35 and 52 of the Evidence Act

18Sections 35 and 52 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 (as amended), provide a statutory and efficient means by which a plaintiff can seek admission of business records and medical reports, respectively. Both provisions have a prescribed notice period. Under s. 35(3), a party who intends to produce a business record must give at least seven days' notice to the opposite party. Under s. 52(2), a party who intends to introduce a medical report in lieu of calling a practitioner must give at least ten days' notice and seek leave of the court.

19The plaintiff did not deliver notice of her intention to tender business records or medical reports under the Evidence Act. However, where, as here, a defendant is in default and is not entitled to any step in the proceeding under r. 19.02(1)(b), I find it appropriate, in the exercise of the Court's discretion under r. 1.04 to secure the just, most expeditious and least expensive determination of the proceeding, to relieve the plaintiff of the notice requirement.

Use of the Records Admitted

20Section 35 of the Evidence Act allows business records made in the usual and ordinary course of business to be admitted to prove dates, times, acts, transactions, occurrences, and events so recorded. Medical records admitted as business records under s. 35 can be tendered for proof that certain events happened, like, for example, that vital signs were taken at a specific time on a specific date. However, medical records containing medical opinions, diagnoses or treatment recommendations are not admissible under s. 35.

21Section 52 of the Evidence Act allows medical reports signed by a medical practitioner to be admitted for the proof of the truth of the contents of the report, subject to a requirement that the practitioner be made available for cross-examination. In this case, the plaintiff did not seek leave to file any medical reports under s. 52 of the Evidence Act, nor has she tendered any expert medical evidence under Rule 53.03. This means that the clinical opinions of her medical caregivers, set out in the medical records appended to Ms. Heffernan's affidavit, are not admitted for the proof of the truth of the contents of those reports.

22Similarly, statements made in the medical and counselling records that are attributed to the plaintiff are not admissible for the truth of their contents. For example, a document that states "the patient reports she was assaulted by her partner" or "the patient reports symptoms of nightmares and panic attacks" is admissible to prove that the plaintiff made the statement to the clinician creating the chart entry, but it is not admissible to prove the truth of the recorded statement without direct testimony from the plaintiff.

23The only admissible evidence of the plaintiff's subjective experience, including the mechanism of the assault, the history and pattern of the abuse she suffered, the nature and intensity of her physical symptoms, the nature and progression of her psychological symptoms, the impact of the assault and battery on her daily life, her employment, and her relationships, is the plaintiff's affidavit sworn August 13, 2025.

24The state of the evidentiary record is difficult to reconcile with Justice Tranquilli's direction that this matter proceed by way of summary trial precisely because "the judge must have supporting evidence and be able to weigh the facts in order to make a judicial determination with respect to the quantum of damages to be awarded." In the end, the Court has little admissible evidence of the plaintiff's medical diagnoses, current medical status or prognosis.

C. General Damages

25General damages in cases of assault and battery serve to compensate the plaintiff for pain, suffering, loss of amenities, and loss of enjoyment of life. The assessment is necessarily impressionistic and must be grounded in the particulars of the plaintiff's injuries.

26The injuries suffered by the plaintiff are significant. The record before the Court establishes, on a balance of probabilities:

a. The April 1, 2022 assault resulted in a left bimalleolar equivalent ankle fracture which required reduction at University Hospital, repeat reduction at Victoria Hospital on April 7, 2022 by Dr. Christopher Del Balso, and open reduction and internal fixation surgery on April 14, 2022;

b. The plaintiff suffered post-surgical complications, including an attendance at Alexandra Hospital on April 25–26, 2022 because her cast was too tight, and a CT pulmonary angiogram at Woodstock General Hospital on April 29, 2022 to rule out pulmonary embolism following chest pain; and

c. The plaintiff has suffered continuing physical limitations and has experienced "depression, anxiety, nightmares, panic attacks, and a loss of trust in others" since the assault.

27A bimalleolar equivalent ankle fracture requiring two reductions and an open reduction and internal fixation with internal hardware is a serious orthopaedic injury. The plaintiff suffered post-operative complications sufficient to prompt investigation for pulmonary embolism. The plaintiff deposes to continuing pain, reduced mobility, and muscular weakness. It is unclear whether the plaintiff is permanently impaired, what her prognosis is or what her future care needs might be.

28There is very scant evidence about the plaintiff's claimed psychological injuries, and they cannot be presumed in law.¹ The plaintiff's limited evidence is as follows:

Since the incidents, I have suffered from depression, anxiety, nightmares, panic attacks and a loss of trust in others. I began therapy shortly after the events and continue to attend treatment to this day.

29The Court accepts that the plaintiff spoke to a number of medical and health care providers and counsellors about the trauma she experienced, and that she pursued therapy after the assault. However, the Court's ability to assess the extent to which the plaintiff's depression, anxiety, nightmares, panic attacks and loss of trust in others were caused by the defendant's assault is very limited. The plaintiff provided no evidence about her life and her functioning before the defendant assaulted her. Moreover, the medical records suggest that the plaintiff had other significant psychological stressors contemporaneous with the assault, including a miscarriage, and that she was later a victim of domestic violence at the hands of another individual.

30The Court has considered the range of general damages awarded in cases involving intimate partner violence involving physical injury, including, in particular, fracture injuries. In Sorrenti v. Blair, 2013 ONSC 2584, the plaintiff sustained a right arm fracture during a course of intimate partner violence extending over approximately ten years. The fracture required surgical intervention and left her with permanent physical limitations. The defendant was criminally charged and convicted of assault. General damages were assessed at $75,000.

31In Montgomery v. Kenwell, 2017 ONSC 3107, Healey J. awarded general damages of $75,000 to a plaintiff who had endured serious physical violence during a fourteen-year relationship. The defendant had been criminally convicted on four occasions, two of which involved assault upon the plaintiff. Justice Healey observed, at para. 33, that the case law was "slowly departing from an era where nominal awards were frequently made in the context of inter-spousal assaults and is now edging toward more appropriate damage awards in keeping with the general principles of tort law".

32More recently, in Pichie v. Pichie, 2024 ONSC 2868, Mew J. awarded general damages of $75,000 on a motion for default judgment arising out of a course of physical, emotional, psychological, and financial abuse culminating in an assault for which the defendant had pleaded guilty under s. 266 of the Criminal Code. The plaintiff was left with a frozen shoulder and lasting psychological trauma.

33The plaintiff in this case suffered a serious physical injury at the hands of her intimate partner and the incident was part of a course of abusive conduct. While the facts of this case have similarities to Sorrenti, Montgomery and Pichie, the evidentiary record before me is quite limited. There is no viva voce evidence from the plaintiff, no admissible expert opinion on prognosis or permanent impairment, no admissible expert evidence on causation of the plaintiff's depression, nightmares, panic attacks and loss of trust in others. The medical records disclose that the plaintiff suffered contemporaneous and unrelated psychological stressors including a miscarriage and domestic violence at the hands of a subsequent partner.

34Having considered the available evidence, the seriousness of the ankle injury and the subsequent complications, and the limited evidence of the psychological trauma the plaintiff suffered at the hands of her intimate partner, I assess the plaintiff's general damages at $60,000. For the reasons discussed above, the plaintiff's psychological injury is reflected in the general damages assessment.

D. Aggravated Damages

35Aggravated damages compensate for intangible injury to dignity and feelings caused by the high-handed or insulting way the wrong was committed. The admitted course of conduct by the defendant, including repeated assaults against the plaintiff within a relationship of trust, attempted strangulation, and the defendant's continued infliction of violence notwithstanding prior criminal charges, aggravates the harm done.

36In Pichie, Justice Mew awarded aggravated damages of $25,000 to the plaintiff, a victim of intimate partner violence. Justice Mew cited Ahluwalia v. Ahluwalia, 2023 ONCA 476, aff'd in part 2026 SCC 16, where the Court of Appeal observed at para. 128 that the increasing magnitude of damage awards in intimate partner violence cases "reflects an emerging understanding of the evils of intimate partner violence and its harms". This passage was endorsed by Kasirer J. for the majority of the Supreme Court of Canada, at paras. 16, 162, 221.

37The plaintiff has suffered abuse at the hands of her intimate partner for several years. The April 1, 2022 assault took place at a time when the defendant was bound by an undertaking to the Ontario Court of Justice not to have any contact with the plaintiff and to be of good behaviour.

38I award the plaintiff aggravated damages in the amount of $30,000.

E. Pecuniary Losses

39The plaintiff seeks "pecuniary damages estimated in the amount of $500,000" and has pleaded that she suffered an impairment of her earning capacity, lost employment opportunities, and out-of-pocket expenses for medication, treatment, counselling, transportation, and accommodation.

40The plaintiff has presented no evidence in relation to any of the claims for pecuniary losses. There is no income tax documentation, no employment records, no vocational evidence, no receipts or itemized accounts of expenses incurred, no admissible medical-legal opinion as to future care needs, and no actuarial or other expert quantification. The plaintiff deposes that she has "incurred and continues to incur" such expenses and that she is "prepared to provide documentation" but no documentation was tendered at trial and no oral evidence was received. A claim for pecuniary damages cannot be proved by assertion. The plaintiff's claim for pecuniary loss is dismissed for want of proof.

F. Punitive Damages

41Punitive damages are an exceptional civil remedy. Unlike compensatory damages, they are not directed to making the plaintiff whole. The objects of punitive damages are retribution, deterrence, and denunciation of conduct that the Court regards as deserving of punishment.

42Where the defendant's misconduct has already attracted punishment in another forum, that prior punishment is a material and often dispositive consideration in the punitive damages analysis. The principle of proportionality demands that a civil court not punish for what the criminal law has already addressed: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595, at paras. 123–124.

43That principle has informed the disposition of punitive damages claims in comparable Ontario cases. In Sorrenti, for example, the court declined to award punitive damages in light of the guilty plea and criminal sentence already imposed on the defendant.

44During oral submissions, plaintiff's counsel advised the Court that the defendant was criminally prosecuted in respect of the April 1, 2022 assault and a prior incident. At the conclusion of the hearing, the Court reserved its decision and invited the plaintiff to file additional evidence regarding the charges laid and the disposition of those charges. In response, the plaintiff filed a further supplementary affidavit of a law clerk attaching various documents from the Ontario Court of Justice. According to those documents, police laid two charges against the defendant in relation to the April 1, 2022 incident, but the record remains silent on their disposition.

45I decline to award punitive damages in this case. It is uncontested that the conduct underlying this action has been the subject of criminal proceedings. While the ultimate disposition of those charges is not in evidence before me, the rule against double punishment is engaged where misconduct has already attracted criminal sanction: Whiten, at paras. 123–124. The compensatory and aggravated damages awarded in these reasons are themselves substantial and serve denunciatory and deterrent functions. In those circumstances, a further award of punitive damages is not warranted.

G. Pre- and Post-Judgment Interest

46The plaintiff is entitled to pre-judgment interest on the damage for the period from April 1, 2022 to the date of this judgment, and to post-judgment interest thereafter, at the prescribed statutory rate.

COSTS

47The plaintiff seeks her costs of the action on a substantial indemnity basis. She did not file a Bill of Costs or make costs submissions. Instead, she has delivered a listing of dockets for all the work her lawyers completed on her behalf, recorded on a solicitor-and-client basis. That listing indicates that the plaintiff incurred solicitor-and-client costs of $25,237.48 inclusive of fees, disbursements and HST.

48Costs are in the discretion of the Court under s. 131 of the Courts of Justice Act and r. 57.01 of the Rules. Given the lack of proper costs submissions, it would be open to the Court to deny costs entirely; the plaintiff cannot expect the Court to sift through dockets and arrive at an appropriate costs award without the assistance of counsel marshalling the costs information and presenting it in accordance with the Rules. Moreover, the plaintiff was granted three separate opportunities to address the deficiencies in her materials. The Court is not prepared to provide further indulgence.

49At the same time, the plaintiff's failure to meet the expectations of the Court is only one of many factors to be considered in fixing costs. The plaintiff has obtained judgment for $90,000 plus pre-judgment interest. It is a substantial compensatory award. While the legal issues in the action were relatively straightforward, the issues were of great personal importance to the plaintiff.

50Both parties engaged in some unreasonable litigation conduct. The defendant's statement of defence was struck for delay and a failure to communicate and he is properly held to account for waste. The plaintiff failed to serve and file the motion materials necessary to address the quantification of damages in time for the initial return of her motion on September 26, 2025. When the matter returned on November 14, 2025, Justice Tranquilli found that the materials remained deficient and directed a summary trial on the issue of damages. Substantial time was docketed that is referable to attendances wasted by the plaintiff, and those amounts are not properly recoverable from the defendant.

51I am not persuaded that this is a case for substantial indemnity costs. Elevated scales of costs are reserved for cases of reprehensible, scandalous, or outrageous litigation conduct. While the underlying tortious conduct of the defendant was reprehensible, his litigation conduct does not rise to that same level.

52In all the circumstances, I fix the plaintiff's costs at a partial indemnity scale in the amount of $15,000 inclusive of fees, disbursements and HST, payable by the defendant.

DISPOSITION

53In summary, and for the reasons set out above, I make the following orders:

a. THIS COURT ORDERS that the medical, hospital, and counselling records tendered by the plaintiff are admitted under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, as proof of the acts, transactions, occurrences, and events made in the usual and ordinary course of a business or medical practice but not as proof of the truth of clinical opinions expressed or of statements attributed to the plaintiff therein;

b. THIS COURT ORDERS and ADJUDGES the defendant liable to the plaintiff for assault, battery and intentional infliction of mental distress in the amount of $90,000 comprised of general damages in the amount of $60,000 and aggravated damages in the amount of $30,000;

c. THIS COURT ORDERS the defendant is liable to pay the plaintiff pre-judgment interest on the damages award of $90,000 for the period from April 1, 2022 to the date of this judgment in accordance with s. 128 of the Courts of Justice Act;

d. THIS COURT ORDERS that the defendant is liable to pay the plaintiff her partial indemnity costs of the action in the amount of $15,000.00 inclusive of fees, disbursements and HST.

e. THIS COURT ORDERS that the balance of the action is dismissed.

Footnotes

1. 1Legal presumption of psychological injury is available in limited circumstances under the Victims' Bill of Rights, 1995, S.O. 1995, c. 6, but the presumption is contingent on a criminal conviction. The evidence is that charges were laid against the defendant but is silent as to their disposition. The statutory presumption of injury is therefore not engaged.