




CITATION: M.B. v. 2014052 Ontario
          Ltd. (Deluxe Windows of Canada),

2012 ONCA 135



DATE: 20120302



DOCKET: C52965



COURT OF APPEAL FOR ONTARIO



Juriansz, Rouleau and Watt JJ.A.



BETWEEN



M.B.



Plaintiff (Respondent/Appellant by way of
          cross-appeal)



and



2014052
          Ontario Ltd., carrying on business as Deluxe Windows of Canada,

976017 Ontario
          Ltd., carrying on business as Deluxe Windows

Industries and
Mickey Weig a.k.a. Matwei Weig a.k.a.
          Matvey Weig



Defendants (
Appellant/Respondent by way of
          cross-appeal
)



Judy Hamilton, for the
          appellant/respondent by way of cross-appeal Mickey Weig



Paul D. Koven and Allan Fogul, for
          the respondent/appellant by way of cross-appeal M.B.



Heard: October 21, 2011



On appeal from the judgment and order of Justice Darla A.
          Wilson of the Superior Court of Justice, sitting with a jury, dated May 6,
          2010 and November 2, 2010, with the November 2, 2010 reasons reported at 2010
          ONSC 5835.



Rouleau J.A.:



[1]

The defendant (appellant), Mickey Weig, appeals from the judgment
    entered by Wilson J. in accordance with the jurys verdict holding him liable to
    the plaintiff (respondent), M.B., for assault and battery.  A total of
    $468,969.18 was awarded for general and aggravated damages, future health care
    costs and prejudgment interest.  The general damages award was $300,000.  The
    appellant also seeks leave to appeal from the order granting the respondent her
    costs on a substantial indemnity basis.

[2]

The central issues on appeal are the trial judges ruling as to the
    appropriate questions for the jury on the issues of causation and damages and
    whether the jury award for general damages was so inordinately high as to
    warrant appellate intervention.

[3]

The respondent, M.B., has cross-appealed, arguing that the trial judge
    erred in refusing to put her claim for loss of income to the jury.

[4]

For the reasons that follow, I would dismiss both the appeal and the
    cross-appeal.

FACTS

[5]

The respondent
moved to Canada in June 2002. 
    From December 2003 until May 2005, she was employed as a commissioned salesperson
    at the defendant companies, Deluxe Windows of Canada and Deluxe Windows
    Industries (collectively referred to as Deluxe).  At the time, the appellant
    was the respondents direct supervisor as well as a principal and part owner of
    Deluxe.

[6]

Between January and October 2004, the appellant
    committed four sexual assaults on the respondent.  In relation to these
    assaults, he was convicted of criminal charges and sentenced to a term of
    imprisonment.

[7]

The respondent testified that as a result of the
    sexual assaults, she feels shame and fears that she will be targeted again.  She
    is afraid to leave home and afraid to go shopping without her cell phone; she
    sleeps with double locks on her bedroom door, and purchased an alarm system for
    her home.  She experiences nightmares where the appellant is chasing her and
    attacking her children.  She suffers from insomnia and has difficulty getting
    out of bed in the morning.  She suffers a loss of sexual desire and experiences
    intermittent suicidal ideations.

[8]

According to Dr. Jackson, an expert who
    testified at trial for the respondent, the respondent experiences dissociative
    episodes, rumination, somatization, as well as intrusive memories of the
    trauma, including flashbacks.  Dr. Jackson also testified that the respondent
    experiences depression, anxiety, and symptoms such as headaches, stomach
    upset, pain, dizziness, weakness, fatigue and blank spells.

Issues at trial

[9]

The respondents action for damages for assault
    and battery was brought against both the appellant and Deluxe.

[10]

In addition to her claim for general and
    aggravated damages, the respondent sought compensation for loss of income.  She
    claimed that as a result of the assaults, her income was substantially
    reduced.  In support of this claim, she alleged that following the assaults she
    avoided her workplace and was given less lucrative sales leads as punishment
    for failing to accede to the appellants continuing sexual demands.

[11]

The experts for both parties agreed that the respondent suffers
    from post-traumatic stress disorder and major depressive disorder.
The appellant conceded liability and accepted that the psychological
    conditions from which the respondent now suffers were   due, at least in part,
    to the sexual assaults.  In his view, however, four unrelated incidents
    materially contributed to the respondents psychological disorders and,
    therefore, mitigated his responsibility for damages.  The four incidents are as
    follows:

(1)
As a child, the respondent was approached by a stranger who took
    her behind a building and made her remove her underpants before she ran away;

(2)
The respondent had been through a 14-year abusive marriage to
    her first husband, in which he would occasionally push, grab and yell at her
    when he had been drinking;

(3)
The respondent had at least one therapeutic abortion or
    miscarriage; and

(4)
The respondent was involved in a car accident after the first
    sexual assault, but before the three other sexual assaults.  As a result of the
    car accident, she claimed statutory accident benefits and damages for personal
    injury.

[12]

The appellants expert, Dr. Teplin, testified
    that these four incidents may have contributed to her depression and post-traumatic
    stress disorder, although it was impossible for him to determine the extent, if
    any, of that contribution.  His clinical opinion was:

[T]hat it
    remains unclear to what extent Ms. [B.s] chronic major depressive disorder and
    chronic post-traumatic stress disorder are directly related to the sexual
    assault itself and/ or are also directly related to a combination of the severe
    traumatic events in her life.

[13]

The respondents expert, Dr. Jackson, testified
    that she had no difficulty concluding that the sexual assaults caused the
    respondents depression and post-traumatic stress.  In cross-examination,
    counsel for the appellant suggested to Dr. Jackson that her opinion would have
    been different had the details of the four incidents been fully disclosed to
    her.  Although Dr. Jackson conceded that she had not been made aware of the
    extent of these incidents, she did not resile from her opinion that the sexual
    assaults caused the depression and post-traumatic stress.

[14]

The respondent
argued that the magnitude of the
    other causal incidents was overblown.  And that the impact, if any, of these
    other incidents was to make her more susceptible to depression; however, they
    did not cause or aggravate her psychological disorders.

[15]

Following an eight-day trial, the jury awarded
    damages for assault and battery against the appellant and Deluxe on a joint and
    several basis as follows:

(a)

$300,000
    in general damages;

(b)

$25,000
    in aggravated damages;

(c)

$45,000
    for future health care costs; and

(d)

$98,969.18
    in prejudgment interest.

[16]

The respondents claim for loss of income was
    not left with the jury because the trial judge ruled that it was improperly
    pleaded and not sufficiently supported by the evidence.

[17]

The trial judge also awarded the respondent her costs
    on a substantial indemnity basis - fixed at $150,000, plus GST and $24,382.82
    in disbursements.

ISSUES

[18]

The issues raised on appeal are as follows:

1.
Should the jury have been instructed to assess whether a portion of
    the respondents damages were attributable to other causes?

2.
Is the general damages award inordinately high and so excessively disproportionate
    to other awards for similar injuries as to warrant appellate intervention?

3.
Should the respondent be allowed to amend her claim to increase the
    claim for general damages from $250,000 to $300,000?

4.
Should the jury have been instructed on the cap on non-pecuniary
    damages?

5.
Was the jury inflamed by a picture filed by the respondent and by
    comments made by her lawyer in his closing address?

6.
Is the costs award inordinately high?

[19]

By way of cross-appeal, the respondent raises
    the following question:

Did the trial judge err
    by precluding the respondents claim for loss of income from being put to the
    jury?

DISCUSSION

1)

Should the jury have been instructed to assess whether a portion of the
    respondents damages were attributable to other causes?

[20]

Before final submissions, the parties met with the trial judge to
    formulate the questions to be put to the jury.  The appellant sought to include
    a question or questions asking the jury to assess the role, if any, that the four
    incidents raised by the appellant played in the respondents damages.

[21]

After hearing submissions from counsel on the jury questions, the trial
    judge summarized the position of counsel as follows:

Counsel agree that one of the questions
    to be put to the jury is the assessment of the plaintiffs non-pecuniary
    damages for her pain and suffering and loss of enjoyment of life.  The focus of
    the defence of Weig was that while it was conceded that the plaintiff had
    suffered damages as a result of the sexual assaults, there were other traumatic
    events in her life that had contributed to her damages, and counsel for Mr.
    Weig wished the jury to make a finding on that issue.

Counsel for the plaintiff
    did not object to a question being put to the jury on the role of the sexual
    assaults in the plaintiffs overall diagnosis, but he disagreed with the manner
    in which counsel for the defendant Weig drafted the question.

[22]

However, the trial judge appears to have disagreed with the positions of
    both parties.  She was of the view that if the sexual assaults caused or
    materially contributed to the respondents damages, the defendant would be
    liable for all of the damages.  In support of that conclusion she relied on the
    following quote from the Supreme Courts decision in
Athey v. Leonati,
[1996] 3 S.C.R. 458, at para. 17:

It is not now necessary, nor has it ever been, for
    the plaintiff to establish that the defendant's negligence was the sole cause
    of the injury.  There will frequently be a myriad of other background events
    which were necessary preconditions to the injury occurring. ... As long as a
    defendant is part of the cause of an injury, the defendant is liable, even
    though his 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.

On that basis, in her view, a question regarding the
    role, if any, the four incidents played in the overall diagnosis was
    unnecessary.

[23]

Accordingly, the trial judge ruled that the following questions would go
    to the jury:

1)

At what
    amount do you assess the damages sustained by the plaintiff arising from the
    actions of defendant Matvei Weig for her pain and suffering and loss of
    enjoyment of life from the date of the assault forward?

2)

Did the
    actions of the defendant Matvei Weig cause or materially contribute to the
    injuries sustained by [M.B.]? Answer: Yes or no.

3)

At what
    amount, if any, do you assess the damages for future treatment of [M.B.]?

4)

At what
    amount, if any, do you assess aggravated damages?

5)

Has the
    plaintiff satisfied you on a balance of probabilities that the defendant Deluxe
    Windows of Canada should be found vicariously liable for the actions of the
    defendant Matvei Weig?

[24]

The appellant argues that the trial judge erred in her interpretation of
Athey
and its application to the facts of this case, and conflated the
    principles that apply to causation
with the assessment of
    damages.  As a result, she erred in failing to ask the jury to consider the
    role, if any, of the other incidents on the respondents damages.

[25]

I agree that the trial judges analysis was flawed.  However, she did
    not conflate causation and damages principles.  The flaw in her analysis was
    her reliance on the material contribution test and the consequent failure to
    turn her mind to the applicability of the principles of damages relied on by
    the appellant.

a)

Treatment of causation and damage principles

i)

Principles of causation

[26]

In
Snell v. Farrell
, [1990] 2 S.C.R. 311, at p. 326, Sopinka J.
    described causation as an expression of the relationship that must be found to
    exist between the tortious act of the wrongdoer and the injury to the victim in
    order to justify compensation of the latter out of the pocket of the former. The
    prevailing test for causation is the but for test: see
Hanke v. Resurfice
,
    2007 SCC 7, [2007] 1 S.C.R. 333.  It requires the trier of fact to conclude
    that but for the defendants misconduct, the plaintiff would not have
    suffered the injuries in question.

[27]

In rare cases, causation may also be proven on the basis of the material
    contribution test.  However, the test is only available where two stringent
    preconditions are met: (1) it must be impossible to prove causation using the
    but for test due to factors beyond the plaintiffs control; and (2) the
    plaintiffs injury must be within the ambit of risk created by the defendants
    breach:
Hanke
, at para. 25.  If, and only if, these two conditions are
    met, causation may be established by demonstrating that the defendants conduct
    was a material contributing cause of the plaintiffs injury, that is, causation
    may be established on the basis of the material contribution test.

[28]

In this case the defendant conceded that the sexual assaults caused or
    materially contributed to plaintiffs injuries.  Liability was not a live issue
    at trial.  Nor was it an issue on appeal.  However, this was not an appropriate
    case in which to use the material contribution test to establish causation.

[29]

The appellants argument that other factors contributed to the
    respondents injuries did not make it impossible to prove causation in this
    case using the but for test. As Erik S. Knutsen,
[1]
points out in his paper Clarifying Causation in Tort (2010) 33 Dal. L.J. 153,
    at p. 169: Successive and cumulative injury cases, including those involving
    pre-existing conditions, can also satisfactorily meet the but for test.  This
    is because a defendants negligence need only be a cause, not the cause
    [of the injury].  It was therefore an error for the trial judge to instruct
    the jury in accordance with the material contribution test.

[30]

As far as liability goes, however, the error was harmless because: (1)
    liability was not seriously challenged; and (2) the trial judge charged the
    jury that she, as well as both counsel, urged them to answer the question of
    liability in the affirmative.  The difficulty arising from this error is that it
    coloured the trial judges treatment of the appellants arguments regarding the
    possibility that other causes contributed to the respondents damages.

ii)

Principles of damages

[31]

Once causation, and therefore liability, has been established, a
    separate inquiry must be conducted to assess the extent of the harm.  Different
    principles govern the two analyses.  Causation is concerned with connecting the
    defendants fault to the plaintiffs harm.  Damages are concerned with
    repairing that harm by putting the plaintiff in the same position he or she
    would have been in but for the defendants fault.

[32]

While a finding of causation equates to responsibility for the entire
    injury, a defendant is not required to put the plaintiff in a better position
    than his or her original one.  Major J. explained this principle in
Athey
,

at para. 32:

The essential purpose and most basic principle of
    tort law is that the plaintiff must be placed in the position he or she would
    have been in absent the defendants negligence (the original position). 
    However, the plaintiff is not to be placed in a position better than his or her
    original one.  It is therefore necessary not only to determine the plaintiffs position
    after the tort but also to assess what original position would have been.  It
    is the difference between these positions, the original position and the
    injured position, which is the plaintiffs loss.

[33]

Certain principles may limit the extent of a plaintiffs damages
    notwithstanding a finding that the defendant caused the injuries.  Two such
    principles formed the thrust of the appellants case at trial  the crumbling
    skull principle and the principle of successive tortious events.  The
    appellants position was that:

1.

Even
    absent the sexual assaults, there was a measurable risk that because of the
    other incidents, the respondent would have suffered from depression or
    post-traumatic stress and, therefore, part of the damages she suffered would
    have occurred in any event (the crumbling skull principle); and

2.

The tortfeasors responsible for the other tortious incidents caused or
    contributed to the depression and post-traumatic stress now suffered by the
    respondent (the successive tortious events).

[34]

I will address each of these principles in turn.

Argument 1 - The Crumbling Skull

[35]

The first argument put forward by the appellant is based on the
    crumbling skull principle.  The crumbling skull principle is derived from the
    familiar thin skull principle. Both principles speak to the extent of damages 
    not causation. The thin skull rule holds that a tortfeasor takes his victim as
    he finds him.  In other words, if as a result of a pre-existing vulnerability 
    a thin skull - a plaintiff suffers greater injury than an average person would,
    the defendant is nonetheless responsible for the full extent of the plaintiffs
    loss:
Athey
, at para. 34.

[36]

The crumbling skull rule on the other hand, applies to situations where
    the defendants act causes the premature or accelerated degeneration of the plaintiffs
    pre-existing condition.  If there is a measurable risk that the condition suffered
    by the plaintiff would have affected the plaintiff in the future regardless of
    the defendants tortious act, the defendant will be liable for the effect of
    his act on the degenerative process.  However, the defendant need not
    compensate the plaintiff for any debilitating effects of the pre-existing
    condition that would have occurred in any event: see
Athey
, at para. 35.

[37]

The trial judge was alive to this principle. After giving an example of
    a crumbling skull situation in her discussion of the jury questions with
    counsel, she stated:

[B]ut I dont see that in the case here because
there
    is no evidence of a pre-existing condition here
.  You dont have evidence
    of the plaintiff getting psychiatric or psychological treatment prior to the
    accident, based on the medical information that I have reviewed. So it is not
    the same factual basis, in my view.
This isnt a case, Mr. Novak, in my
    view, of a pre-existing condition
. Rather it is the defence position that
    the diagnosis is multi-factorial and is not just related to the sexual assault.
    That is a different situation than where an assessment is made based on the
    pre-existing condition. [Emphasis added.]

[38]

However, she was of the view that the crumbling skull doctrine was
    inapplicable to the facts of this case.  She came to this conclusion not
    because she wrongly conflated causation and damages principles, but rather
    because of her understanding that using the material contribution test the
    appellant was liable for all of the damages.  The trial judge, therefore, did
    not turn her mind to the question of whether there was a material risk that
    because of the other incidents the respondent would have suffered from some
    degree of depression and post-traumatic stress in the future even without the
    sexual assaults.  Assuming, for the moment, that there was an evidentiary basis
    to support that position, this is a question that should have been left with the
    jury.

[39]

In such circumstances, the jury would be asked to determine if there was
    anything inherent in the respondents original condition, that is, her
    pre-assault condition, that posed a measurable risk that she would develop
    her current problems notwithstanding the sexual assaults.  In assessing her
    original condition, the jury could consider the four incidents relied on by the
    appellant.  If the jury concluded that there was indeed a measurable risk that
    her current problems would have developed in any event, the measure of damages
    attributable to the appellant would reflect only the increased aggravation of
    her condition brought about by the sexual assaults.

Argument 2 - Successive Tortious Events

[40]

The appellants second argument relates to the principle that where
    multiple tortious events contribute to a divisible injury, each tortfeasor will
    only be responsible for damages relating to the portion of the injury he
    caused.  The classic example is where the plaintiff has suffered injuries in
    two separate car accidents  but for the first accident the plaintiff would not
    have suffered
some
injury, and but for the second accident the plaintiff
    would not have suffered some
additional
injury.  Each defendant is only
    responsible for the damages attributable to his or her accident: see
Hicks v. Cooper
(1973), 1 O.R. (2d) 221
(C.A.)
.

[41]

This concept was not necessarily lost on the trial judge; but, because
    of her approach to liability she failed to turn her mind to it.  The material
    contribution test assumes the existence of other potentially contributing
    causes, but due to the impossibility of isolating each cause, the tortfeasor is
    held liable for the whole of the injury.  The use of the material contribution
    test in this case accounted for the potential causal effects of the other
    tortious causes and acknowledged the impossibility of parsing out the damages
    attributable to each.  Its application therefore foreclosed the appellants
    argument that the jury ought to have been instructed to assess the contribution
    of the other tortious causes.

[42]

However, as I have already discussed, this was not an appropriate case
    in which to use the material contribution test to establish causation and it
    was an error to do so.  On a proper but for analysis, the contribution of the
    other tortious causes to the respondents injuries may have been a live issue
    for the jury to consider in assessing damages.

[43]

Thus, once again assuming a sufficient evidentiary basis to support the
    appellants position, the jury should have been asked to assess the extent, if
    any, to which the other tortious incidents,
i.e.
, the motor vehicle
    accident and the assaults by the respondents former husband, contributed to
    the respondents current condition.  This would require the jury to first determine
    whether the respondents injuries were divisible,
i.e.
, whether the
    contributions of the other tortious causes could be identified.  From there,
    the jury would be asked to assess the respondents original position to
    determine whether she was suffering from depression or post-traumatic stress
caused
by one or both of the tortious incidents prior to the sexual
    assaults.  That position would then be compared to her position after the
    sexual assaults, with the difference in severity between the two being the
    portion of damages attributable to the defendant: see
Hicks
.

[44]

Importantly, for the purpose of answering this question, the jury would
    be instructed not to consider the childhood incident or the abortions and
    miscarriages.  In my view, the childhood incident is non-justiciable as it
    involved a relatively vague incident of inappropriate conduct alleged to have
    occurred 30 years ago by an unknown individual in the former Soviet Union.  The
    abortions and miscarriages are simply not tortious.

[45]

Therefore, while the trial judge did not conflate causation and damages
    principles, her analysis of what questions should go to the jury was not
    without error.  She failed to consider whether there was a material risk that
    the respondent would suffer some degree of depression or post-traumatic stress
    in the absence of the sexual assaults.  And, her reliance on the material
    contribution test led to her failure to consider whether other tortious causes might
    have contributed to the respondents damages.  Her failure to consider these
    issues resulted in her refusal to leave the crumbling skull and successive
    tortious events questions with the jury.

[46]

However, that is not the end of the inquiry.  The question remains as to
    whether the error is serious enough to merit a new trial.

b)

Are the errors of such significance as to warrant ordering a new trial
    on the issue of damages?

[47]

In a civil case, a new trial will only be ordered where the interests of
    justice plainly require it: see
Fiddler v. Chiavetti
, 2010 ONCA 210, 317
    D.L.R. (4
th
) 385, at para. 9.  A reviewing court will not direct a
    new trial unless there has been a substantial wrong or miscarriage of
    justice: see
Courts of Justice Act
, R.S.O. 1990, c. C-43, s. 134(6).  Although
    I have concluded that the trial judge erred in her analysis of the
    applicability of principles limiting damages, an issue remains as to the
    gravity of the error.

[48]

In this respect the respondent argues that:

(i)

the questions as
    phrased were nonetheless adequate;

(ii)

the evidence in support of the
    suggestion that the other incidents contributed   to the damages is weak; and

(iii)

the appellant never pleaded that the other incidents contributed to the
    damages suffered by the respondent.

[49]

I would not give effect to the third submission  that contribution was
    not pleaded.  Though the statement of defence simply contained a bald denial,
    it was clear from the conduct of the trial and the submissions of counsel that
    the potential impact of the other incidents on the measure of damages was a
    live issue.

[50]

However, as I will explain, even taken at its highest, the evidence
    suggesting that the other incidents somehow contributed to the damages suffered
    by the respondent was weak.  In my view, there was no reasonable basis to
    justify leaving the questions of contribution with the jury. In my view,
    therefore, the trial judges error did not cause a substantial wrong. In the
    light of this conclusion, it is unnecessary to address the submission that the
    question as phrased was adequate.

i)

Was there sufficient evidence of contribution to warrant the questions
    being put to the jury?

[51]

Whether a jury in a civil case should be asked to decide on a particular
    issue is a question of evidence. There must be reasonable evidence to allow a
    question to go to the jury. As Meredith J.A. stated in
Milligan v. Toronto
    Railway
(1908), 17 O.L.R. 530 (C.A.):

Although the jury are the sole judges of fact they
    are such judges only in cases in which there is a reasonable question of fact
    to be determined. It is the duty of the Court to determine whether there is any
reasonable evidence
to go to the jury, upon any
question
of fact; and no such
question
can be rightly submitted to them until that
question
has been answered in the affirmative: at para.
    50.

[52]

Had the trial judge applied the proper analysis in the present case, she
    would have gone on to consider whether there was reasonable evidence to leave
    the following questions with the jury:

(a) Was there a material risk
    that the respondent would have suffered some degree of depression or post-traumatic
    stress notwithstanding the sexual assaults?; and

(b) Did other tortious
    incidents cause part of the respondents damages?

[53]

In the appellants submission, there was expert evidence that, if
    accepted by the jury, provided a basis for both of these positions and
    therefore the questions should have been left with the jury.  The respondent,
    however, contends there was no evidentiary basis for either question. For the
    reasons that follow, I agree with the respondent that there was no reasonable
    evidence to support either question being put to the jury.

The Crumbling Skull Question

[54]

With respect to the first question  the crumbling skull issue, the
    appellant argues that Dr. Teplins evidence suggested that there was a
    substantial likelihood that because of the other incidents, the respondents
    pre-assault condition was such that her psychological problems would have
    developed in the future albeit to a lesser degree, even in the absence of the
    sexual assaults.

[55]

The respondent asserts that Dr. Teplins evidence does not go that far. 
    At best, his testimony suggests that other events created a pre-existing
    vulnerability to the harm caused by the sexual assaults.  As the respondent
    explains, the presence of contributing causes is to be distinguished from the
    situation where the plaintiff is thin skulled in the sense that the damages
    flowing from the sexual assaults are more significant as a result of the
    victims vulnerability.  In accordance with the principles set out in
Athey
,
    a vulnerable plaintiff is entitled to be compensated for the entire harm caused
    by the sexual assaults.

[56]

I agree that Dr. Teplins evidence does not go as far as the appellant
    contends.  Most of his evidence, and that of the other experts, suggested that
    the other incidents made the plaintiff more vulnerable to depression and
    post-traumatic stress.  Indeed, Dr. Teplins clinical opinion was that it
    remains unclear to what extent Ms. [B.s] chronic major depressive disorder and
    chronic post-traumatic stress disorder are directly related to the sexual
    assault itself and/or are also directly related to a combination of other
    severe traumatic events in her life.

[57]

Dr. Teplin did not, opine that the occurrence of any of the four other
    incidents caused or contributed to the respondents condition  he could only
    say that they may have.  Indeed, none of the experts could offer anything tangible
    with respect to the risk that the other incidents would have eventually caused
    the respondent to develop her current psychological conditions.

[58]

At various points, the experts independently opined that while certain
    things may be traumatic to certain people, there are no absolutes.  For
    example, when Dr. Jackson, the respondents expert, was asked in
    cross-examination if she agreed that abortions were stressful incidents, she
    replied that in many cases women who had abortions felt relief and not stress.  The
    evidence of, Dr. Brown, the respondents psychologist, was similar. She said
    women are not necessarily traumatized by abortions if theyve made a decision
    that suits them.  Significantly, the respondents own evidence was that she was
    not traumatized by any of the incidents relied on by the appellant.

[59]

In my view, the evidence on the record establishes no more than a vague possibility
    that the respondents depression and post-traumatic stress would have developed
    to some degree in the absence of the sexual assaults.  However, evidence of a vague
    possibility is not reasonable evidence of a material risk. In the absence of
    reasonable evidence that there was a material risk that the respondents
    conditions would have developed absent the sexual assaults, there was no need
    to leave the crumbling skull question with the jury.  I therefore conclude
    that there was no substantial wrong or miscarriage of justice occasioned by the
    failure of the trial judge to consider whether to do so.

The Successive Tortious Events Question

[60]

The respondent argues that the evidence at trial demonstrated that her
    injuries - post-traumatic stress disorder and major depressive disorder - were indivisible,
    making it neither possible nor appropriate to attribute portions of the damages
    to other tortious causes.  Relying on
Athey
, at paras. 22-25, she
    contends that because the sexual assaults caused these indivisible injuries,
    the appellant should be responsible for the full extent of the damages suffered
    (although he could bring third party claims against the alleged contributing
    tortfeasors who would be jointly and severally liable for the full extent of
    the injury pursuant to s. 1 of the
Negligence Act
, R.S.O. 1990, c. N-1).

[61]

The respondent points to the evidence of the appellants own expert, Dr.
    Teplin, who testified that it was impossible to discern the impact of any one
    possible cause. Although that evidence appears to support the view of the
    injuries as indivisible, in my view it speaks more to the lack of evidence of
    other contributing causes, than to the divisibility of the injuries.  The
    simple fact that it may be difficult to attribute damages to their particular
    source is not a sufficient excuse to refrain from doing so.  As the Supreme
    Court explained in
Blackwater v. Plint
, 2005 SCC 58, [2005] 3 S.C.R. 3,
    at para. 74:

The calculation of
damages for sexual assault
to Mr. Barney [the plaintiff] is complicated by two other sources of trauma: (1)
    trauma suffered in his home before he came to AIRS [the residential school];
    and (2) trauma for non-sexual abuse and deprivation at AIRS that was statute
    barred.  In reality, all these sources of trauma fused with subsequent
    experiences to create the problems that have beset Mr. Barney all his life.
    Untangling 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. [Emphasis in original. Citations omitted.]

[62]

More problematic for the appellant is the dearth of reasonable evidence
    that might suggest the two tortious incidents,
i.e.
, the motor vehicle
    accident and the abuse by the respondents ex-husband, caused any portion of
    the depression or post-traumatic stress suffered by the respondent.  The
    evidence surrounding the motor vehicle accident was that, but for that
    accident, the respondent would not have suffered a number of physical injuries
    and ailments.  By contrast, the evidence on the record that the accident caused
    any psychological problems was more in the nature of speculation.

[63]

The appellant argued that because the pain caused by the physical
    injuries from the motor vehicle accident was strong enough to necessitate pain
    medication, that pain could have lead to increased anxiety. However, there was
    no evidence that the respondents pain had in fact caused her any anxiety.
    There was also evidence that in December of 2004 the respondent was on a drug
    that can be used to treat depression, amitriptyline.   This, however, was after
    all of the sexual assaults and it is unclear from the record when she began
    taking that drug or why it was prescribed.

[64]

As for the abuse by the respondents ex-husband, the respondents
    testimony was that this abuse was occasional and consisted of yelling, pushing
    and grabbing when her ex-husband was drinking.  The respondent denied any
    adverse effects of the relationship.  When it was suggested in
    cross-examination that she downplayed its significance to Dr. Brown, the
    respondent questioned why she would discuss it in any more detail than she did
    given that, in her words: I didnt have any problems with my ex-husband.  I
    divorced him and Im happy and I move on; right. There was no specific evidence
    that this relationship caused the respondent any psychological harm.  The most
    any of the experts could say was that it could have.

[65]

To attribute fault to other tortious causes, those causes must be shown on
    a balance of probabilities to have caused some harm  speculation that they
    might have is not sufficient.  In my view, the evidence did no more than
    suggest a vague possibility that the tortious incidents might have done so.
    Speculative evidence is not reasonable evidence. In the absence of reasonable
    evidence that the other tortious incidents contributed to the respondents
    condition, there was no need for the trial judge to leave the question of
    contribution from the other tortious incidents with the jury.  I must therefore
    once again conclude that no substantial wrong or miscarriage of justice was
    brought about by the failure of the trial judge to consider whether to do so.

2)

Is the general damages award inordinately high and so excessively
    disproportionate to other awards for similar injuries as to warrant appellate
    intervention?

[66]

The appellant argues that the jurys award of $300,000 in general
    damages is grossly disproportionate to the damages the respondent suffered.  He
    contends that it is so plainly unreasonable and unjust as to satisfy the court
    that no jury reviewing the evidence as a whole and acting judicially could have
    reached it.  In his submission, awards for general damages should be in line
    with those reached in other cases involving similar wrongs.  He suggests that a
    review of the case law reveals that the appropriate range for damages as a
    result of the sexual assault of an adult victim is between $75,000 and
    $125,000.  These amounts are well below the amount awarded in this case.

[67]

The respondent submits that an appellate court may not substitute its
    own assessment of damages merely because it would have arrived at a different
    figure or because the award is larger than those in similar cases.  To justify
    intervention by an appellate court, there must be a palpable and overriding
    error.  The difference between what was awarded and what could properly have been
    awarded must be even wider than when the figure has been assessed by a judge
    sitting alone:
Bella v. Young
, 2006 SCC 3, [2006] 1 S.C.R. 108, at
    para. 64.

[68]

The respondent maintains that although the award is high and does in
    fact exceed the range suggested by her counsel at trial ($125,000 to $225,000),
    it is not so high as to shock the conscience of the court: see
Hill v.
    Church of Scientology of Toronto
, [1995] 2 S.C.R. 1130.

[69]

The respondent takes the position that the appropriate range, adjusted for
    inflation, is in the order of $96,000 to $277,000: see
Evans v. Sproule
(2008),
    176 A.C.W.S. (3d) 895 (S.C.).  The respondent further asserts that an award outside
    of this range is justified in the present case because:

(a)

two of the assaults involved
    significant violence;

(b)

she was particularly
    vulnerable, being a recent immigrant with limited language skills;

(c)

she was required to work to
    support her family;

(d)

the appellant was her
    immediate supervisor and misused his position of authority and awareness of her
    plight for his own sexual purpose; and

(e)

the appellant threatened her
    with violence and death.

[70]

There is no doubt that the jurys award for general damages was high and
    outside of the generally expected range. Nonetheless, I would not interfere. 
    Although it is certainly  generous and may not have been one this court would
    make, it is not so plainly unreasonable and unjust as to satisfy the court that
    no jury reviewing the evidence as a whole, and acting judicially could have
    reached it: see
McCannell v. McLean
, [1937] S.C.R. 341, at p. 343.  Jury
    awards attract significant deference.  This award, though outside the general
    range is not, in my view, so exceptional as to warrant appellant intervention.

3)

Should the respondent be allowed to amend her claim to
    increase the claim for general damages from $250,000 to $300,000?

[71]

The appellant argues that the general damages award of $300,000 should
    be reduced as it exceeds the $250,000 claimed in the statement of claim.  No
    amendment to the claim was sought or obtained at trial.  The respondent
    concedes this point.  However, she asks this court to allow the amendment to
    the statement of claim to increase the claim for general damages from $250,000
    to $300,000.

[72]

I see no reason not to grant the respondents request to amend her statement
    of claim.  As this court stated in
Beals v. Saldanha
(2001), 54 O.R.
    (3d) 641 (C.A.), at para. 99, rule 26.01 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, requires the court to make those amendments unless the
    defendant can show prejudice that cannot be cured by costs or an adjournment.
    Further, the power is available at any stage of the proceeding, including on
    appeal:
Beals
, at para. 98.

[73]

In this case, the appellant will suffer no prejudice if the amendment is
    allowed. The respondent specifically asked for general damages in her
    pleadings.  There were sufficient pleadings to alert the appellant of the case
    he had to meet.  While the award of $300,000 may have come as a surprise given
    that the amount at issue in the pleadings was $250,000, the amount awarded is
    not so significantly higher than the amount pleaded as to be obviously unfair.

[74]

The amendment to the amount claimed does not depend on additional facts
    or legal arguments and the appellant has not presented any arguments addressing
    the issue of prejudice.  In my view, an increase in the amount claimed would not
    have affected the way the appellant responded to the claim.  I would,
    therefore, grant leave to the respondent to amend her pleadings to conform with
    the jurys general damages award.

4)

Should the jury have been instructed as to the cap on non-pecuniary
    damages?

[75]

The appellant submits that, because the jurys award of $300,000 is very
    close to the limit on non-pecuniary loss - the cap - set by the Supreme Court
    of Canada in a trilogy of cases, the jury should have been instructed on the
    cap and the policy behind it.  In the Supreme Court trilogy the court held that
    a plaintiff should not recover more than $100,000 for non-pecuniary damages for
    personal injury: see
Andrews v. Grand & Toy Alberta Ltd.
,
[1978] 2 S.C.R. 229
;
Arnold v. Teno
,
[1978] 2 S.C.R. 287
;
    and
Thornton v. Board of School Trustees of School District No. 57 (Prince
    George)
,
[1978] 2 S.C.R. 267
.
    The appellant submits that, adjusted for inflation, the cap was $328,000 in
    2010.

[76]

The respondent argues that the cap does not apply in cases of personal
    injury resulting from sexual assaults.  In any event, the damage award did not
    exceed the cap and no one asked the trial judge to instruct the jury about it.

[77]

I would not give effect to this ground of appeal.  Even assuming that
    the cap applies to general damages for sexual assault, the trial judge cannot
    be faulted for her failure to instruct on the cap in the circumstances of this
    case.  The ranges being proposed to the jury were well below the amount of the cap;
    counsel did not request such an instruction; and the amount awarded did not
    exceed it.

5)

Was the jury inflamed by a picture filed by the respondent and by
    comments made by her counsel in his closing address?

[78]

The appellant submits that jury was inflamed by the admission of a
    photograph of him under which the following caption appeared: If you see this
    person, do not let him in.  He is wanted.  In addition, the appellant submits
    that counsel for the respondents remark in his closing submissions that the
    appellant was behind bars further inflamed the jury.  The result was an
    excessive general damages award.

[79]

The respondent argues that the photograph was properly admitted as an
    exhibit at trial.  The evidence established that the picture, which hung on the
    appellants office door, caused the respondent a great deal of distress in the light
    of the sexual assaults perpetrated against her by the appellant.  The picture
    was therefore relevant and there was no unfairness in its admission at trial. 
    Further, the trial judge specifically instructed the jury as to the limited use
    they could make of that photograph.

[80]

With respect to counsels statement that the appellant was in jail, the
    respondent concedes that the statement ought not to have been made.  The
    respondents counsel invited the trial judge to provide a correcting
    instruction in the charge and a clear and blunt correcting instruction was
    given, including a reminder that the absence of the appellant at trial was due
    to medical reasons.  The instruction clearly stated that the jury was not to
    draw any inference, therefore, from the failure of the appellant to be present
    throughout his trial.

[81]

In my view, the trial judge did not err in admitting the photograph into
    evidence and her correcting instruction on the respondents counsels reference
    to the appellant being in jail was adequate.  No unfairness resulted.

6)

Was the costs award inordinately high?

[82]

At the conclusion of the trial, the respondent sought costs of
    $258,382.82 plus disbursements on a full indemnity scale.  The appellant took
    the position that an appropriate amount for costs was $100,000.

[83]

Following submissions, the trial judge reviewed the jurisprudence and
    concluded that in the circumstances, it was appropriate to exercise her
    discretion to fix costs on a substantial indemnity basis, which she fixed in
    the amount of $150,000.  In coming to this decision, the trial judge
    specifically adverted to this courts decision in
Boucher v. Public
    Accountants Council for the Province of Ontario
(2004), 71 O.R. (3d) 291. 
    Considering the significant amount being claimed, the trial judge concluded
    that a substantial reduction was necessary in order to ensure that the award was
    fair and reasonable in the circumstances and was in line with the parties
    expectations.

[84]

In my view, the trial judge carefully reviewed the evidence and applied
    the correct legal test.  She heavily discounted the amount of hours proposed by
    counsel for the respondent and, in my view, the final award of costs is fair
    and reasonable.

THE CROSS-APPEAL

Did the trial judge err by precluding the respondents claim for loss
    of income from being put to the jury?

[85]

The trial judge ruled that she would not ask the jury to decide whether the
    respondent had proven a claim for loss of income.  In her view, the income loss
    claim was not sufficiently pleaded by the respondent in her statement of claim
    and there was insufficient evidence tendered at trial to support it on a
    balance of probabilities standard.  As a result, the trial judge was of the
    view that the jury would be unable to make a reasonable calculation of the income
    loss.  In effect, the jury would be asked to speculate as to the amount.

[86]

In her cross-appeal, the respondent argues that, although the statement
    of claim does not contain a separate head of damages for loss of income, it
    does state that sick with stress, M.B. avoided attending at Deluxe and
    suffered a resulting loss of business income.  The respondent further states
    that her reply to the demand for particulars made clear that she had avoided
    the office.  Additionally, the respondent points out that a notice of special
    damages was given to the appellant in compliance with rule 25.06(9).  As a
    result, the respondent contends that the appellant could not have been misled
    or prejudiced by the absence of an explicit claim for loss of income in her
    statement of claim.

[87]

Further, the respondent takes the position that there was at least some
    evidence which, if accepted by the jury, was capable of supporting a finding
    that the respondent suffered a loss of income as a result of the appellants
    tortious conduct.  The trial judge therefore erred in weighing the evidence
    herself as this was properly the province of the jury.  The trial judge had an
    obligation to allow the question of liability and the question of quantum of
    the loss to be determined by the jury.  The appellant should not be relieved of
    his obligation to account for the respondents loss of income simply because it
    would be difficult for the jury to assess the damages.

[88]

The appellant submits that the trial judges decision is to be given
    deference.  The determination of whether or not there was the foundation for a
    claim for loss of income is one of mixed fact and law.

[89]

With respect to the pleading issue, the appellant argues that the trial
    judge correctly observed that a litigant is entitled to be aware of the case he
    has to meet.  No claim for loss of income was advanced because it was not included
    in the prayer for relief nor was it particularized in the body of the claim or
    in the reply to the demand for particulars.

[90]

The appellant further maintains that he would have been prejudiced had
    the issue gone to the jury.  Following the service of her notice of special
    damages alleging a $24,000.00 loss, the appellant requested the respondents
    income tax returns, further discoveries and production of any expert report she
    intended to rely on.  Further discoveries were denied, the income tax returns
    were not provided and no expert report was provided or tendered at trial.

[91]

In my view, the cross-appeal should be dismissed.  The trial judges
    ruling demonstrates that she had a full appreciation of the evidence and the
    pleadings and clearly articulated the shortcomings of both the pleadings and the
    evidence.  She found that the claim lacked detail and substance, and consisted
    of no more than bald allegations that the respondent would have made more sales
    but for the assaults.

[92]

The trial judge properly took into account the
    inadequacy of the pleading as well as the respondents failure to produce her
    income tax statements and allow further discovery.  Considering these factors
    and the nature of the evidence led at trial, she determined that there was simply
    no basis to leave the question with the jury.
This ruling is entitled
    to deference as the trial judge was in the best position to evaluate the issue
    and she did so in a reasonable manner.

CONCLUSION

[93]

For these reasons, I would allow the respondents
    amendment to the statement of claim to increase the claim for general damages to
    $300,000 and would dismiss the appeal and cross-appeal.

[94]

With respect to costs, the parties have agreed
    on the quantum of costs.  As I understand the submissions, the respondent is
    entitled to her costs for the appeal and for the appeal of the costs award in
    the amounts of $19,000 and $2,500 respectively.  The appellant is entitled to
    his costs of the cross-appeal fixed in the amount of $7,500.  All of these
    figures are inclusive of disbursements but exclusive of HST.

Paul Rouleau J.A.

I agree R.G. Juriansz
    J.A.

I agree David Watt
    J.A.

RELEASED:  March 2, 2012





[1]
Erik S. Knutsen is an assistant professor at the Faculty of Law at Queens
    University.


