Good afternoon.

There was only one case released by the Ontario Court of Appeal this week, Zando v Ali. At issue was the assessment of damages in a case of sexual assault by a physician. The appellant asserted that the trial judge had erred in establishing a range for damages for non-pecuniary damages, and erred in basing her award of punitive damages on the fact that the appellant had not been charged criminally.

The Court adopted the Nova Scotia Court of Appeal’s framework for determining damages in a civil sexual battery or assault case in Nova Scotia (Attorney General) v B.M.G. per Comwell J.A. (as he then was), and found that the trial judge had correctly established the range of damages and assessed the damages within that range.

With respect to the punitive damages award, the Court found that the trial judge’s decision to award punitive damages was based on the fact that the appellant’s conduct was morally reprehensible and should be punished and denounced, and on the fact that the appellant was not charged criminally (not solely on the fact that the appellant had not been charged criminally). The court confirmed that the fact that the appellant had not been punished criminally was a relevant factor for the trial judge to consider in her analysis.

Have a great weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2053  Email

Zando v. Ali, 2018 ONCA 680

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

Counsel:

John Adair, for the appellant

Amandeep S Dhillon, for the respondent

Keywords: Torts, Sexual Assault, Battery, Assessment of Damages, Non-pecuniary Damages, Punitive Damages

Facts:

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

The appellant, Dr. A, and the respondent, Dr. Z, are physicians who were friends and colleagues at the Sarnia General Hospital (the “Hospital”). Dr. Z commenced an action in December 2001 for damages against Dr. A, two other physicians, and the Hospital. Specifically, Dr. Z alleged that Dr. A had sexually assaulted her at her home on June 22, 1999, causing her to react negatively towards him in their shared workplace. Dr. Z also alleged that, as a result of her reaction to the assault, Dr. A instigated a campaign of harassment and discrimination at the Hospital in which the two other physicians participated. Shortly before trial, Dr. Z settled her claims against the two other physicians and the Hospital. Consequently, Dr. Z amended her statement of claim to remove all claims against the settling defendants and Dr. A, except for those relating to sexual assault.

The trial judge concluded that Dr. Z was sexually assaulted by Dr. A. Accordingly, the trial judge awarded damages as particularized as follows: general damages of $175,000, punitive damages of $25,000, pre-judgment interest of $155, 773.97, and costs of $325,000.

On appeal, Dr. A submitted that the trial judge made two (2) errors in principle with respect to non-pecuniary damages. Namely, he submitted that:

  • the range of damages selected by the trial judge (said by Dr. A to be between $144,000 and $290,000 for all cases of sexual assault) was unsuitable as it applied to cases of severe sexual assault involving repeated abuse and breaches of trust, which was not comparable to the present case; and
  • the trial judge failed to apportion responsibility for Dr. Z’s psychological injuries between Dr. A and the settling defendants, and instead attributed all such injuries to the sexual assault.

With respect to punitive damages, Dr. A submitted that the trial judge failed to analyze whether the non-pecuniary damages awarded for the sexual assault were sufficient to accomplish the goals of denunciation, deterrence and punishment. Moreover, Dr. A asserted that the trial judge erroneously assumed that punitive damages were required because he had not been charged criminally.

Issues:

(1) Did the trial judge err in assessing non-pecuniary damages?

(2) Did the trial judge err in awarding punitive damages?

Held:
Appeal dismissed.
Reasoning:

(1) No. The court held that there was no reversible error in the trial judge’s determination of the non-pecuniary damages in this case.

With respect to the trial judge’s determination of the range of non-pecuniary damages, the court adopted the Nova Scotia Court of Appeal’s framework for determining damages in a civil sexual battery or assault case in Nova Scotia (Attorney General) v B.M.G. per Comwell J.A. (as he then was), and found that the trial judge correctly referred to the factors for assessing non-pecuniary damages for sexual assault as set out in Blackwater v. Plint, 2005 SCC 58. Furthermore, before making a determination, the trial judge considered the specific features of the assault in addition to the parties’ written submissions as to the damages that would be appropriate in the case at hand. Thus, in assessing the severity of the sexual assault, the court held that it was open to the trial judge to adopt the range that she did.

Regarding the alleged failure to apportion liability among Dr. A and the settling defendants,  the court found that the trial judge was aware of the fact Dr. Z had reached a settlement with the other defendants for her alleged harassment by them. However, the trial judge rejected the argument that Dr. Z’s psychological injuries were caused by the alleged harassment that was not before her. Instead, the focus of the trial judge was to determine damages for the sexual assault.

(2) No. Punitive damages are awarded when a defendant’s misconduct is so outrageous that such damages are rationally required to act as a deterrent. The court found that the trial judge’s decision to award punitive damages was based on the fact that Dr. A’s conduct in sexually assaulting Dr. Z was morally reprehensible and should be punished and denounced, and that Dr. A had not been punished criminally. The court held that the fact that Dr. A had not been punished criminally was a relevant factor to satisfy the court of the need for such damages as deterrence. However, it was not the reason that punitive damages were awarded.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract and other business litigation, to estates and matrimonial litigation, and to debtor-creditor and insolvency litigation. John also represents amateur sports organizations in contentious matters and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.