



COURT OF APPEAL FOR ONTARIO

CITATION: Zando v. Ali, 2018 ONCA 680

DATE: 20180807

DOCKET: C63650

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Iram
    Kareemi Zando

Plaintiff (Respondent)

and

Dr. Syed N. Ali
    a.k.a. Dr. Sayed N. Ali

Defendant (Appellant)

John Adair, for the appellant

Amandeep S. Dhillon, for the respondent

Heard: July 18, 2018

On
    appeal from the judgment of Justice Johanne N. Morissette of the Superior Court
    of Justice, dated April 5, 2017, with reasons reported at 2017 ONSC 1289.

van Rensburg J.A.:

[1]

This is an appeal from an assessment of damages for sexual assault in a
    judge-alone trial.

[2]

The appellant Syed Ali and the respondent Iram Zando are physicians who
    were friends and colleagues at the Sarnia General Hospital (the Hospital). Dr.
    Zando commenced an action in December 2001 for damages against Dr. Ali, two
    other physicians, and the Hospital.

[3]

She alleged that the appellant had sexually assaulted her at her home on
    June 22, 1999, causing her to react negatively to him in their shared
    workplace. She also alleged that, as a result of her reaction to the assault,
    the appellant instigated a campaign of harassment and discrimination at the
    Hospital in which the two other physicians participated. The respondent settled
    her claims against all defendants except the appellant shortly before trial. She
    amended her statement of claim to remove all claims against the settling
    defendants and the appellant except for those relating to sexual assault.

[4]

The trial judge concluded that the respondent was sexually assaulted by
    the appellant in the manner she described. She awarded general damages of
    $175,000, punitive damages of $25,000, pre-judgment interest of $155,773.97, and
    costs of $325,000.

[5]

The appellant originally appealed both liability and damages. At the
    hearing of the appeal, he abandoned his appeal on liability. His appeal
    challenges the trial judges assessment of non-pecuniary damages and her
    decision to award punitive damages.

[6]

For the reasons that follow, I would dismiss the appeal.

Non-Pecuniary Damages

[7]

A trial judges determination of non-pecuniary damages may only be set
    aside or varied on appeal if she erred in legal principle or arrived at an
    amount that is so inordinately high or low that it is a wholly erroneous
    estimate of the compensation to which the plaintiff should be entitled:
Fernandes
    v. Penncorp Life Insurance Company
, 2014 ONCA 615, 122 O.R. (3d) 192, at
    para. 97 (citing
Nance v. British Columbia Electric R. Co
., [1951] 3
    D.L.R. 705 (P.C.), at p. 713).

[8]

The appellants counsel acknowledges that the damages in this case are
    not so high as to be disproportionate. Rather, he asserts that the trial judge
    made two errors of principle. First, he contends that the range of damages
    selected by the trial judge was unsuitable as it applied to cases of severe
    sexual assault involving repeated abuse and breaches of trust, which are not
    comparable to the present case. Second, the appellant argues that the trial judge
    failed to apportion responsibility for the respondents psychological injuries
    between the appellant and the other defendants with whom she had settled her
    claim, and instead attributed all such injuries to the sexual assault.

[9]

I would not give effect to these arguments. I see no reversible error in
    the trial judges assessment of the non-pecuniary damages in this case.

[10]

Dr.
    Zando and Dr. Ali were co-workers at the Hospital, and friends. They were both
    married, and had immigrated to Canada from Pakistan. The sexual assault
    consisted of one incident. Dr. Ali went to Dr. Zandos home, on the pretext of
    an urgent matter, the completion of a medical form. While he was there he
    removed his shirt and then, in the bathroom, the rest of his clothes. Returning
    to the room, he tripped Dr. Zando, thrust his erect penis into her face, pulled
    down her pants and penetrated her vagina. He rolled off after Dr. Zando
    screamed. As she was leaving the room she saw Dr. Ali masturbate and ejaculate
    onto the rug. On the pretext that a patient was waiting for her, Dr. Ali had
    Dr. Zando drive him back to the Hospital.

[11]

The
    appellant accepts, and I would adopt, the framework for determining damages in
    a civil sexual battery or assault cases described in
Nova Scotia (Attorney
    General) v. B.M.G.
, 2007 NSCA 120, 260 N.S.R. (2d) 257, per Cromwell J.A.
    (as he then was).

[12]

First,
    there is the purpose of non-pecuniary damages in sexual assault and battery
    cases: to provide solace for the victim's pain and suffering and loss of
    enjoyment of life, to vindicate the victim's dignity and personal autonomy and
    to recognize the humiliating and degrading nature of the wrongful acts (
B.M.G.
,
    at para. 132).

[13]

Second,
    the factors for assessing such damages include: (i) the circumstances of the
    victim at the time of the events, including the victims age and vulnerability;
    (ii) the circumstances of the assaults including their number, frequency and
    how violent, invasive and degrading they were; (iii) the circumstances of the
    defendant, including age and whether he or she was in a position of trust; and
    (iv) the consequences for the victim of the wrongful behaviour including
    ongoing psychological injuries (
B.M.G.
, at para. 134, citing
Blackwater
    v. Plint
, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 89).

[14]

Third,
    in assessing non-pecuniary damages for sexual assault, the court must first
    consider the important characteristics of the case to define the types of cases
    that should be considered for comparison purposes in establishing an
    appropriate range, and then select an amount of damages within that range,
    based on the features of the particular case (
B.M.G.
, at paras. 136 to
    140).

[15]

The
    appellant says that the trial judge in this case did not follow the process
    anticipated by
B.M.G.
of selecting an appropriate range for
    non-pecuniary damages, and then placing the assessment within that range.
    Rather, he asserts, the trial judge wrongly assumed that
all
cases of sexual assault attract non-pecuniary damages awards of $144,000 to
    $290,000. The appellant refers to para. 95 of the trial judges reasons where
    she stated:

The case law suggests a range between 125,000 to $250,000
    for battery and sexual assault cases [citing
Evans v. v. Sproule
,
    [2008] O.J. No. 4518 (S.C.)
], which adjusted for inflation,
    amounts to $144,000 to $290,000.

[16]

The appellant asserts that the range set out in
B.M.G.
, a case
which involved repeated sexual
    assaults on a child by a person in a position of trust, was adopted in
Evans
although that case involved a single
    incident of sexual assault (by an on-duty police officer after a traffic stop).

The appellant contends that the range adopted by the trial judge is
    appropriate for cases of serious and repeated sexual assaults, including those
    on children and by persons in positions of trust.
The appellant
    argues that the appropriate range in this case was $20,000 to $50,000, such
    that non-pecuniary damages of no more than $50,000 ought to have been awarded.
    He contends that this was a single incident involving persons of equal status,
    and that there was no evidence of any long-term psychological trauma. The event
    took place in 1999, by 2003 the respondent had moved away from Sarnia, and the
    evidence at trial provided by Dr. Robinson, the respondents psychologist, was
    current only until 2006.

[17]

In my view there was no error in principle in the trial judges
    determination of the range of non-pecuniary damages. The trial judge adverted
    to the factors set out in
Blackwater v. Plint
for assessing non-pecuniary
    damages for sexual assault. She considered the particular features of the
    assault in the case before her in identifying a range and in assessing the
    respondents non-pecuniary damages. It is only by reading para. 95 of her
    reasons in isolation and out of the context of the record that one might conclude
    that the trial judge was identifying a range applicable to
all
cases of sexual assault. In fact, the
    parties provided the trial judge with their written submissions as to the
    damages that would be appropriate in the present case. The appellant at trial,
    as on appeal, suggested a range that was applicable to less serious cases of
    sexual assault, while the respondent suggested a higher range and argued
Evans
as an appropriate comparator.

[18]

In assessing the severity of this sexual assault, it was open to the
    trial judge to adopt the range that she did. This was a case of sexual assault
    with penetration by a colleague and friend in the victims own home. The trial
    judge identified the features specific to the sexual assault in this case (at
    paras. 89 to 91):

After Dr. Zando was sexually assaulted, she had
    feelings of shame, guilt, humiliation and degradation.

As a result of her cultural upbringing, she felt
    she had to bear this suffering on her own. Her Muslim faith and Eastern values
    and beliefs deterred her from speaking out immediately and making it public.

As Dr. Robinson testified, Dr. Zandos feelings
    of betrayal and mistrust regarding a colleague who she perceived was attempting
    to control or sabotage her career, are reasonable and legitimate feelings as a
    victim of sexual assault.

[19]

The trial judges determination of damages did not depend on a finding
    that the respondent suffered long-term psychological trauma from the one
    incident of sexual assault, nor in my view would it be an error in principle for
    a trial judge to assess damages at that level in the absence of evidence of
    such long-term injury. As noted earlier, damages for sexual battery or assault
    are not solely to compensate for physical or mental injuries. They fulfill a
    range of functions, including the recognition of the humiliating and degrading
    nature of the wrongful acts (
B.M.G.
, at para.
    132).

[20]

In all the circumstances, I see no error in principle in the trial
    judges selection of the appropriate range of non-pecuniary damages in this
    case or in her assessment of Dr. Zandos damages. Again, I note that the
    appellants argument was not that the damages award was so high as to be
    disproportionate.

[21]

As for the argument that the trial judge did not take into
    consideration the other potential contributors to the respondents mental
    state, I disagree. The trial judge was aware of the fact that the respondent
    had reached a settlement with the other defendants for her alleged harassment
    by them. She rejected the argument that Dr. Zandos psychological injuries were
    caused by the alleged harassment that was not before her. The trial judge
    determined that Dr. Ali had not harassed Dr. Zando, a factor that she indicated
    was relevant to her assessment of damages. The focus of the trial judge was to determine
    damages for the sexual assault. I am not persuaded that the damages assessed by
    the trial judge improperly included in her assessment of damages an amount that
    would be attributable to harassment of Dr. Zando by the other defendants.

Punitive Damages

[22]

Punitive damages are awarded when a defendants misconduct is so
    outrageous that such damages are rationally required to act as a deterrent:
Hill
    v. Church of Scientology of Toronto et al.
, [1995] 2 S.C.R.
    1130,

at para. 197.

[23]

The appellant argues that punitive damages were unwarranted in this
    case. He says that the trial judge failed to undertake the required analysis,
    in particular to determine whether the non-pecuniary damages she had already awarded
    for the sexual assault were sufficient to accomplish the goals of denunciation,
    deterrence, and punishment. Instead, she assumed punitive damages were required
    simply because the appellant had not been charged criminally.

[24]

I disagree. The trial judges decision with respect to punitive damages
    was based on the fact that the appellants conduct in sexually assaulting the
    respondent was morally reprehensible and should be punished and denounced, and
    that he had not been punished criminally. The fact that he had not been
    punished criminally was a relevant factor (to satisfy the court of the need for
    such damages as deterrence) but was not the reason punitive damages were
    awarded. As such, I see no reversible error in the trial judges decision to
    award punitive damages in this case.

Disposition

[25]

For these reasons I would dismiss the appeal. I would award costs to
    the respondent in the amount agreed by the parties, the sum of $15,000
    inclusive of HST and disbursements.

Released: August 7, 2018

K. van
    Rensburg J.A.

I agree
    Alexandra Hoy A.C.J.O.

I agree
    G. Pardu J.A.


