



COURT OF APPEAL FOR ONTARIO

CITATION: Calin v. Calin, 2021 ONCA 558

DATE: 20210805

DOCKET: C67175

Tulloch, Nordheimer and Jamal JJ.A.

BETWEEN

Ilinca Calin and Ana Calin

Plaintiffs (Respondents/

Appellants by way of cross-appeal)

and

Liviu Calin

Defendant (Appellant/

Respondent by way of cross-appeal)

Andréa Baldy, for the appellant/respondent by way of cross-appeal

Alexander C. Gibson and Charles M. Gibson, for the
    respondents/appellants by way of cross-appeal

Heard: April 8, 2021 by video conference

On appeal from the judgment of Justice Sally A. Gomery of
    the Superior Court of Justice, dated June 7, 2019 with reasons reported at 2019
    ONSC 3564 and from the costs order dated July 16, 2019 with reasons reported at
    2019 ONSC 4313.

Jamal J.A.:

[1]

After a three-week trial, the appellant, Liviu Calin, was found liable
    for assault, battery, negligence, and breach of fiduciary duty for physically
    and emotionally abusing his twin daughters, the respondents, Ilinca and Ana Calin.
    The respondents claims for intentional infliction of mental distress and
    wrongful imprisonment were, however, dismissed. The appellant was ordered to
    pay the respondents a total of $85,000 as general damages and $20,000 as
    punitive damages.

[2]

The appellant now appeals the findings of liability and the quantum of
    damages awarded at trial. The respondents cross-appeal the dismissal of their
    claim for intentional infliction of mental distress and the quantum of damages.

[3]

In my view, the parties largely seek to relitigate the trial judges
    factual findings, credibility findings, and assessment of the evidence. I see
    no basis to do so. For the reasons that follow, I would dismiss the appeal and
    cross-appeal.

Background

[4]

The respondents were born in Romania and moved to Ottawa in 1994 with
    their father (the appellant) and mother. In 1999, the respondents mother was
    diagnosed with cancer. She died about a year later, just as the respondents
    were entering high school. In 2002, the appellant began a romantic relationship
    and moved in with another woman, leaving the respondents in the family home alone.
    In 2004, the respondents graduated from high school and began university. They continued
    to live in the family home until March 2005.

[5]

On March 26, 2005, the appellant went to the family home to have Easter
    dinner with the respondents. An argument and physical confrontation ensued. The
    respondents fled the home and sought refuge with the family of Ilincas
    boyfriend. The next day, the respondents filed a police report, alleging that
    the appellant had assaulted them, but they decided not to press charges.

[6]

In 2012, the respondents sued the appellant for assault, battery,
    negligence, breach of fiduciary duty, intentional infliction of mental
    distress, and wrongful imprisonment. They alleged that, on March 26, 2005, the
    appellant beat them violently and threatened Ana with a knife. They said that the
    March 26, 2005 incident was the culmination of a lifetime of physical and
    emotional abuse by the appellant. They claimed he beat them often, called them
    degrading names, isolated them from their peers and maternal relatives, and
    controlled their activities. They said the abuse caused them to suffer post-traumatic
    stress disorder (PTSD), depression, and anxiety, resulting in their inability
    to continue their education or obtain employment at the level they otherwise would
    have achieved. The appellant denied ever having physically or emotionally
    abused the respondents.

The trial decision

[7]

The trial judge found the appellant liable for assault, battery,
    negligence, and breach of fiduciary duty, but not liable for intentional
    infliction of mental distress and wrongful imprisonment. She awarded general
    damages of $50,000 to Ilinca and $35,000 to Ana and punitive damages of $10,000
    to each of them.

[8]

In thorough reasons, the trial judge acknowledged that determining what
    happened was challenging because most incidents were alleged to have occurred
    during the respondents childhood or adolescence, between 14 and 30 years ago, when
    they were alone with the appellant or their mother. No medical records documented
    the alleged physical injuries. The credibility of the central witnesses  the
    appellants, the respondents, and their grandmother  was thus a critical issue
    at trial.

[9]

Based on the totality of the evidence, the trial judge accepted the respondents
    accounts about certain incidents prior to March 26, 2005 as credible and
    largely accept[ed] their account of what happened that day, which reinforce[d]
    the plausibility of their allegations of earlier physical violence. She found that
    the appellant was physically violent towards the respondents nine times between
    1994 and 2005. She concluded that the appellants acts exceeded the reasonable
    discipline that parents may impose on their children. He had slapped them,
    punched them, pulled their hair, and beat them with a belt at least once. One
    time, he slapped Anas face, dragged her by the hair, punched her in the
    stomach, and threatened to hit her with a wooden beam. Another time, he hit Ilinca
    with a wooden broom. The trial judge also found that, on March 26, 2005, the
    appellant slapped and spanked the respondents and pulled their hair, punched
    Ana, held a steak knife to her throat, called her a fucking bitch, and
    threatened to kill her.

[10]

Even
    so, the trial judge found that the appellant did not socially isolate the
    respondents or control all their activities. She also concluded, based on the
    expert evidence, that the respondents had not proved the appellants conduct
    caused them to suffer from psychiatric disorders. Finally, she concluded that
    the respondents had not proved loss of income or competitive advantage because
    of the appellants actions.

Issues

[11]

On
    the appeal, the appellant asserts that the trial judge made palpable and
    overriding errors in her factual findings and credibility assessments and erred
    by awarding inordinately high damages.

[12]

On
    the cross-appeal, the respondents argue that the trial judge erred in finding that
    they did not prove that the appellants actions caused their psychiatric
    conditions, awarded inordinately low damages, and should have awarded damages for
    the loss of competitive advantage.

Issue #1: Did
    the trial judge err in her factual findings or credibility assessments?

[13]

The
    appellant argues that the trial judge made palpable and overriding errors in her
    factual findings underlying the appellants tort liability.

[14]

First,
    the appellant argues that the trial judge misapprehended the evidence by
    failing to consider and give sufficient weight to relevant evidence in
    assessing the respondents credibility. He highlights inconsistencies between the
    witnesses accounts of the incidents and between the respondents trial and
    discovery evidence, and the absence of contemporaneous evidence corroborating their
    alleged physical or psychological injuries. He asserts that the trial judges
    failure to address these inconsistencies was a reversible error.

[15]

I
    disagree.
Inconsistencies in a witnesss evidence, even absent
    corroborative evidence, do not open the door to appellate review of a trial
    judges credibility findings:
F.H. v. McDougall
, 2008 SCC 53, [2008]
    3 S.C.R. 41
, at paras. 70, 72, and 75-76. A trial judge may place
    less weight on certain evidence and accept other, conflicting evidence
that
they find more convincing. An appellate court cannot intervene
    just because it would weigh the evidence differently and arrive at alternative factual
    findings:
Salomon v. Matte-Thompson
, 2019 SCC
    14, [2019] 1 S.C.R. 729, at para. 33;
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58.

[16]

Moreover,
    a trial judges
credibility findings attract heightened
    deference:
R. v. G.F.
, 2021 SCC 20,

71 C.R. (7th) 1, at para. 81;
McDougall
, at para. 72.
A trial judge need not
    find a witness not credible or unreliable because of inconsistences in the witnesss
    evidence. If the trial judge was alive to the inconsistencies, assessed the
    witnesss credibility in
the context of
the evidence
as
    a whole,
and concluded that the witness was credible, absent
    palpable and overriding error, there is no basis for an appellate court to
    interfere:
McDougall
, at paras. 70, 75-76.

[17]

Here, in my view, the trial judge was alive to the inconsistencies
    in the respondents evidence. She highlighted those inconsistencies throughout
    her reasons, rejecting aspects of their evidence and accepting others, or
    finding the evidence insufficient to conclude one way or another. She did not
    have to expressly reconcile every inconsistency arising from the respondents
    evidence: see
R. v. R.E.M.
, 2008 SCC 51, [2008]
    3 S.C.R. 3, at paras. 32, 64;
R. v. A.M.
, 2014
    ONCA 769, 123 O.R. (3d) 536, at para. 14.

[18]

For example, because of
the witnesses significantly
    divergent accounts of two incidents that occurred between 1994 and 2000, the
    trial judge could not determine precisely what had happened. Although she found
    that the appellants exact words and actions were in doubt, considering the
    overall accounts of the respondents and their grandmother and the appellants
    testimony and demeanour at trial, she concluded that the appellant had lashed
    out physically and verbally at the respondents on both occasions
.


[19]

Similarly,
    the trial judge expressed doubts about certain aspects of the evidence of the
    incident on March 26, 2005 that she found concerning, such as the absence of
    any mention of the knife in the police report and the embellished account given
    by the respondents to Ilincas boyfriends father right after the incident. Having
    considered these concerns in the context of all the evidence, the trial judge accepted
    that the appellant threatened Ana with a knife but found that the appellants
    violence was much less extreme than what the [respondents] described.

[20]

As
    these examples illustrate, the trial judge carefully considered the
    inconsistencies in the context of the evidence as a whole, with the benefit of
    the intangible impact of watching and listening to [the] witnesses and
    attempting to reconcile their evidence, and ultimately accepted aspects of the
    respondents evidence while rejecting others:
G.F.
, at para. 81;
R.
    v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. I see no
    palpable and overriding error in the trial judges approach or conclusions.

[21]

Second,
    the appellant asserts that the trial judge erred by failing to address concerns
    about the respondents reliability, focusing only on their credibility.

[22]

I
    do not accept this submission. A trial judges determination to accept a
    witnesss evidence includes an implicit assessment of its accuracy or
    reliability. T
he trial judge is presumed to have correctly
    applied the law in accepting a witnesss evidence, including the relationship
    between credibility and reliability:

G.F.
,
    at para. 82. Assessing reliability is within the province of the trial judge
    who has the opportunity to hear and observe all of the witnesses:
R. v.
    Slatter
, 2019 ONCA 807, 148 O.R. (3d) 81, at para. 118,
per
Pepall
    J.A. (dissenting), affd 2020 SCC 36.
If the trial judge was
    alive to reliability concerns, considered those concerns, and assessed the
    witness's reliability and credibility, the trial judge's assessment attracts deference:
R. v. Sanichar
, 2012 ONCA 117, 280 C.C.C. (3d)
    500, at para. 82,
per
Laskin J.A.
    (dissenting), affd, 2013 SCC 4, [2013] 1 S.C.R. 54.


[23]

Here,
    the trial judge was sensitive to the reliability concerns arising from the
    respondents evidence. She raised concerns about their ability to recall
    incidents that took place when they were children or teenagers, their coloured
    view of the appellant, their tendency to describe emotional memor[ies] reflecting
    an amalgamation of events rather than a specific incident, and to repeat
    family folklore consisting of reconstructed accounts of events that they did
    not recall clearly but had told themselves and others over many years. The trial
    judge observed that the respondents may have confused the details of some
    incidents because the appellant had been violent with them many times. When these
    concerns warranted, the trial judge rejected their evidence as an example of
    how [they] may have reconstructed events to impute the [appellant] with more
    extreme and consistently abusive conduct than the evidence otherwise indicates.
    She cautioned herself that, to find the appellant liable, she must be
    persuaded that [the respondents] evidence is based on genuine recollection as
    opposed to the memory of a memory, tailored over time to suit a certain
    narrative.

[24]

That
    the respondents did not remember certain particulars of the incidents or
    remembered certain particulars incorrectly did not oblige the trial judge to
    disregard their evidence or conclude that they were lying. She found that the
    respondents were sincere and were honestly attempting to recall what
    happened to them. It was open to her to not accept the respondents evidence
    about certain details because of her reliability concerns and to accept their
    evidence about other aspects. I see no error in the trial judges treatment of the
    reliability concerns arising from the evidence.

[25]

Third,
    the appellant argues that the trial judge ignored credibility concerns about
    certain aspects of the respondents evidence, which he says undermined their evidence
    as a whole.

[26]

I
    do not agree with this submission. As with the reliability concerns discussed
    above, the trial judges credibility concerns did not oblige her to reject all the
    respondents evidence. Even after raising
credibility concerns
    about some aspects of their evidence, it was open to her to find them credible
    and reliable on other aspects. She
was entitled to accept
some, all, or none of their evidence: see
R.E.M.
, at para. 65;
R. v. N.K.
, 2021
    ONCA 13, at para. 11; and
R. v. A.K.
, 2018
    ONCA 567, at para. 7.

[27]

The
    trial judges reasons show that she considered the credibility concerns arising
    from the respondents evidence and rejected evidence that she did not find
    credible. She was entitled to assess the respondents credibility in light of all
    the evidence, including the appellants admissions of having physically
    punished the respondents twice. I see no reviewable error in the trial judges
    credibility findings.

[28]

Finally,
    the appellant asserts that the trial judge reversed the burden of proof and applied
    uneven scrutiny to the evidence.

[29]

I
    do not agree. The trial judges reasons show that she understood and applied
    the correct law on the burden and standard of proof. She is presumed to have
    applied the correct burden and standard, unless the appellant establishes reviewable
    error: see
McDougall
, at para. 54. In my view, the appellant has failed
    to do so.

Issue #2: Did
    the trial judge err in finding that the respondents had not proved that the
    appellants acts caused their psychiatric conditions?

[30]

The
    respondents argue on cross-appeal that the trial judge made a palpable and
    overriding error by failing to draw a common sense inference that their psychiatric
    conditions were caused by the appellants abuse and improperly relying on the evidence
    of the appellants expert rather than on their experts evidence.

[31]

I
    see no reviewable error in the trial judges causation analysis. Whether an
    inference of causation is warranted is within the trial judges discretion, to
    be determined with reference to all of the evidence:
Benhaim v. St-Germain
,
    2016 SCC 48, [2016] 2 S.C.R. 352, at para. 52. Such an inference must be
    reasonably available on the evidence and involves a consideration of the
    factual issues underlying causation and the relative position of each party to
    adduce evidence:
Ediger v. Johnston
, 2013 SCC 18, [2013] 2 S.C.R. 98,
    at para. 36;
Goodwin v. Olupona
, 2013 ONCA 259, 305 O.A.C. 245, at
    paras. 44-46.

[32]

Here,
    both parties led expert evidence on causation. The respondents expert was
    equivocal. He testified that it was plausible that the respondents psychiatric
    conditions were caused by the appellants abuse. He acknowledged that the circumstances
    of the respondents mothers death, of which he had been unaware when he formed
    his opinion, could also have triggered PTSD in the respondents. The trial judge
    found that this expert had limited experience in diagnosing PTSD and that his
    assessment was based on a review of the respondents records and a two-hour
    video conference with them. She therefore gave this experts evidence less
    weight.

[33]

The
    trial judge preferred the evidence of the appellants expert because of her
    experience and training as a forensic psychiatrist, which the respondents
    expert lacked. The appellants expert testified that it was impossible to
    determine whether the respondents conditions were triggered by the appellants
    abuse, by their mothers death, or by a biological predisposition.

[34]

The
    trial judge, with the benefit of watching and hearing the witnesses, also noted
    that she was struck  by how much Ilinca was visibly affected by memories of
    her mothers death. In her view, this loss [had] as profound an effect on
    [Ilinca] as [the appellants] abuse. She also noted that the respondents had
    exaggerated the extent of the appellants physical and emotional abuse in their
    interviews with both expert witnesses.

[35]

The
    trial judge weighed the evidence of both experts, in view of all the other
    evidence before her, and preferred the evidence of the appellants expert. She declined
    to infer causation and concluded that the respondents had not proved that their
    psychiatric disorders were caused by the appellants actions. The trial judges
    weighing of the expert evidence attracts appellate deference: see
Hacopian-Armen
    Estate v. Mahmoud
, 2021 ONCA 545, at paras. 66-68. I see no basis for this
    court to intervene.

Issue #3: Did the trial judge err in her assessment of
    damages?

[36]

The
    appellant argues that the damages awarded are inordinately high compared to the
    awards in other domestic assault and battery cases.

[37]

By
    contrast, the respondents argue that the damages awarded are inordinately low.
    They assert that their difficulties in life are attributable to the abuse they
    suffered at the hands of the appellant and ask this court to increase the
    quantum of general damages awarded to Ana from $35,000 to $100,000 and to Ilinca
    from $50,000 to $125,000.

[38]

The
    respondents also argue that the trial judge erred in not awarding damages for
    their loss of competitive advantage, despite evidence that the abuse hurt their
    ability to pursue their chosen vocations and work in competitive environments. The
    respondents seek $300,000 each for their loss of competitive advantage.

[39]

An
    appellate court can interfere with a damages award only if the trial judge made
    an error in principle, misapprehended the evidence, failed to consider relevant
    factors, considered irrelevant factors, made an award without any evidentiary
    foundation, or made a wholly erroneous assessment of damages:
Armstrong v.
    Moore
, 2020 ONCA 49, 15 R.P.R. (6th) 200, at para. 30.

[40]

In
    my view, neither the appellant nor the respondents meet the exacting standard
    for appellate intervention. The case law and evidence now relied on by the parties
    were canvassed and considered by the trial judge in her reasons. The trial
    judge considered that the appellants violence did not result in permanent
    physical injury to the respondents, while also recognizing the seriousness of
    the emotional and psychological scars that the respondents will bear their
    entire lives. She acknowledged that the respondents had suffered pain and
    fear that a child should never experience, much less at a fathers hands. She also
    considered the evidence of the impact of the abuse on the respondents,
    including their social, educational, employment, and health history and current
    situation. The trial judge considered and weighed all the relevant evidence and
    came to her own determination of the appropriate damages. I see no basis for
    this court to intervene.

[41]

I
    similarly see no basis to reverse the trial judges finding that the
    respondents are not entitled to damages for loss of competitive advantage. There
    is no dispute that the trial judge correctly articulated the criteria for such an
    award. She found, however, that the respondents failed to meet the applicable criteria.
    She found that [t]here is no evidence that [the respondents] have been less
    able to get or keep a job, or have lost out on employment opportunities, as a
    result of the psychological and emotional impact of their experiences with [the
    appellant]. Those findings were available to the trial judge on the record
    before the court. I again see no basis for this court to intervene.

Disposition

[42]

I
    would dismiss the appeal and the cross-appeal. Given the divided success, I
    would make no order as to costs.

Released: August 5, 2021 M.T.

M. Jamal J.A.

I agree. M. Tulloch
    J.A.

I agree. I.V.B.
    Nordheimer J.A.


