K.K. v. K.W.G.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Weiler, Cronk and Blair, JJ.A.
• Citation: 2008 ONCA 489,(2008), 238 O.A.C. 282 (CA)
• Date: 14 December 2007

K.K. v. K.W.G. (2008), 238 O.A.C. 282 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JN.092

K.K. (respondent/appellant by cross-appeal) v. K.W.G. (appellant/respondent by cross-appeal)

(C45686; 2008 ONCA 489)

Indexed As: K.K. v. K.W.G.

Ontario Court of Appeal

Weiler, Cronk and Blair, JJ.A.

June 20, 2008.

Summary:

A daughter sued her mother for damages for breach of fiduciary duty relating to the mother's alleged failure to protect the daughter from recurrent sexual abuse perpetrated by the mother's husband when the daughter was an adolescent.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. 609, allowed the action and awarded the daughter damages of $230,000 (i.e., $100,000 general and aggravated damages, $100,000 for lost income and $30,000 for future care). The court also awarded the daughter costs of the action on a partial indemnity basis. The mother appealed liability, and in the alternative, the awards for lost income and future care. The daughter cross-appealed, claiming that costs should have been awarded on a substantial indemnity scale.

The Ontario Court of Appeal, Blair, J.A., dissenting, allowed the appeal in part, by setting aside the trial judge's damage award of $100,000 for lost income and substituting an award of $20,000. The court otherwise dismissed the appeal. The court granted leave to the mother to appeal the costs award but dismissed the cross-appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Equity - Topic 3615

Fiduciary or confidential relationships - General principles - Spousal or family relationships - [See all Equity - Topic 3645 ].

Equity - Topic 3645

Fiduciary or confidential relationships - Breach of fiduciary relationship - By parent - In 2000, a daughter sued her mother for damages for breach of fiduciary duty relating to the mother's alleged failure to protect the daughter from recurrent historical sexual abuse (1951 to 1958) perpetrated by the mother's husband (father) when the daughter was an adolescent - The mother claimed that the action was barred by the equitable doctrine of laches in light of the 42 year delay in commencement of proceedings between 1958 and 2000 - The trial judge held that the doctrine of laches did not apply to bar the daughter's claim for equitable relief - The mother appealed - The Ontario Court of Appeal rejected this ground of appeal - The court did not accept that the timing of the initiation and prosecution of the daughter's action worked a fundamental injustice on the mother that should be charged to the daughter so as to justify the application of the doctrine of laches - Although the mother was a passive bystander to the abuse, this was not a case where the "bystander" parent learned of the sexual abuse, for the first time, years after it occurred - This was a case where, on the trial judge's findings, the bystander parent knew of the abuse when it was ongoing but took no action of any kind to stop it or to obtain assistance for her victimized child - In so doing, the mother breached her fundamental trust obligation to her daughter - In all these circumstances, the court concluded that the trial judge did not err in rejecting the mother's defence of laches - See paragraphs 39 to 51.

Equity - Topic 3645

Fiduciary or confidential relationships - Breach of fiduciary relationship - By parent - In 2000, a daughter sued her mother for damages for breach of fiduciary duty relating to the mother's alleged failure to protect the daughter from recurrent historical sexual abuse (1951 to 1958) perpetrated by the mother's husband (father) when the daughter was an adolescent - The mother claimed that the action was barred by the equitable doctrine of laches in light of the 42 year delay in commencement of proceedings between 1958 and 2000 - The trial judge held that the doctrine of laches did not apply to bar the daughter's claim for equitable relief - The mother appealed - The Ontario Court of Appeal rejected this ground of appeal - The court noted that mere delay, in itself, did not disentitle a claimant from equitable relief, even where delay was extensive - The court discussed the application of the doctrine of laches in incest cases and concluded that courts should be reluctant to allow a defendant in an incest case, including the "bystander" parent, to escape liability for breach of fiduciary duty by invocation of the doctrine of laches - The court stated that given the special character of the parental fiduciary duty and the especially "heinous" nature of the breach of trust and loyalty that incest represents, a strict application of the doctrine of laches in such cases was inappropriate - See paragraphs 39 to 51.

Equity - Topic 3645

Fiduciary or confidential relationships - Breach of fiduciary relationship - By parent - In 2000, a daughter sued her mother for damages for breach of fiduciary duty relating to the mother's alleged failure to protect the daughter from recurrent historical sexual abuse (1951 to 1958) perpetrated by the mother's husband (father) when the daughter was an adolescent - The trial judge allowed the action, finding that the mother had knowledge of the abuse - The mother appealed, arguing that the trial judge's finding of knowledge was unsustainable because the trial judge erred in "processing" the evidence bearing on this key issue, by disregarding or misapprehending relevant evidence and by making unsupportable findings regarding the daughter's evidence - The Ontario Court of Appeal rejected this ground of appeal - The court commented that the mother faced a significant hurdle to succeed on this ground of appeal - The court stated that a processing error would occur where a trial judge failed to appreciate the evidence relevant to a factual issue, either by disregarding or misapprehending that evidence - A processing error warranted appellate intervention if it tainted that part of the trial judge's reasoning process that was essential to the challenged finding of fact - To displace a factual finding on the basis of an alleged processing error by the trial judge, it was necessary to demonstrate both that the error occurred and that it was palpable and overriding - Neither requirement was met here - See paragraphs 87 to 95.

Equity - Topic 3645

Fiduciary or confidential relationships - Breach of fiduciary relationship - By parent - In 2000, a daughter sued her mother for damages for breach of fiduciary duty relating to the mother's alleged failure to protect the daughter from recurrent historical sexual abuse (1951 to 1958) perpetrated by the mother's husband (father) when the daughter was an adolescent - The trial judge allowed the action - The mother appealed, arguing that the trail judge erred by applying the wrong standard of proof by requiring the mother to establish to a standard of "absolute certainty" that she was powerless to intervene to prevent the abuse by the father (i.e., the trial judge rejected the defence argument that the mother had an "inability to intervene" to prevent the abuse, either because of her own history of sexual trauma, her fear of her husband or other factors) - The Ontario Court of Appeal rejected this ground of appeal - The court stated that there was nothing in the trial judge's language or reasoning to explicitly suggest that he applied any standard of proof other than the civil standard of proof on a balance of probabilities in determining whether the mother was powerless to intervene to protect her daughter from the father's sexual abuse - Nor did the court believe that the error alleged arose by necessary implication - There was no reviewable error in the trial judge's assessment of the evidence - See paragraphs 96 to 110.

Equity - Topic 3655

Fiduciary or confidential relationships - Breach of fiduciary relationship - Damages - A daughter sued her mother for damages for breach of fiduciary duty relating to a historical sexual assault by her father - The daughter claimed damages for lost income from 1959 until March 2006, when she turned 65 - The trial judge accepted that the sexual abuse had an adverse impact on the daughter's income earning capacity and, after noting that the claim for lost income defied precision in quantification, awarded $100,000 for lost income - The mother appealed the award for lost income - The Ontario Court of Appeal allowed this aspect of the appeal - The court stated that this was not a case where the absence of evidence made it impossible to assess damages, thereby reducing the daughter's entitlement to only nominal damages at best - What the daughter suffered in this case was a lost opportunity to be in a safe environment that would have allowed her to continue her education at the time of her life when her career choices mattered - That lost opportunity was distinct from the general damages awarded by the trial judge - While the trial judge did his best to assess the daughter's damages for economic loss, the factors on which he based his award significantly overlapped with those pertinent to his assessment of general damages - The trial judge also failed to adequately consider the many other complex contingencies that had to be taken into account in assessing damages for the lost opportunity suffered by the daughter - Therefore the court set aside the trial judge's damage award for lost income, holding that $20,000 was a reasonable estimate of the daughter's damages for her lost opportunity to maximize her earning potential - See paragraphs 111 to 125.

Equity - Topic 3655

Fiduciary or confidential relationships - Breach of fiduciary relationship - Damages - A daughter sued her mother for damages for breach of fiduciary duty relating to a historical sexual assault by her father - The daughter claimed damages for lost income from 1959 until March 2006, when she turned 65 - The trial judge allowed the action and awarded, inter alia, $30,000 damages for future care - The mother appealed, arguing that the daughter would continue to receive publicly funded counselling services and therefore the award for future care amounted to double recovery - The Ontario Court of Appeal rejected this ground of appeal - See paragraphs 126 to 128.

Equity - Topic 3961

Fiduciary or confidential relationships - Evidence and proof - General - [See third Equity - Topic 3645 ].

Equity - Topic 3963

Fiduciary or confidential relationships - Evidence and proof - Standard of proof - [See fourth Equity - Topic 3645 ].

Limitation of Actions - Topic 520

Equitable limitation periods - Laches - General - [See first and second Equity - Topic 3645 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - A daughter sued her mother for damages for breach of fiduciary duty relating to a historical sexual assault by her father - The trial judge allowed the action - Prior to trial, the daughter had made an offer to settle that was not accepted - When the offer proved to be more favourable to the mother than the result at trial, the daughter sought recovery of her costs on a partial indemnity scale to the date of her offer and on a substantial indemnity scale thereafter, in accordance with rule 49.10(1) of the Rules of Civil Procedure - The trial judge declined to award costs on a substantial indemnity scale and, instead, awarded the daughter her costs throughout on a partial indemnity scale - The daughter appealed the costs decision - The Ontario Court of Appeal refused to interfere with the costs award - The court stated that a trial judge has a broad discretion and a trial judge's decision on costs was entitled to appellate deference - Such a decision would not be set aside absent an error in principle or unless it was plainly wrong - The costs consequences in rule 49.10(1) were not automatic - The language of the rule expressly permitted a trial judge to depart from a strict application of the rule - In this case, after considering the evidence and the issues at trial and the unusual circumstances arising from the mother's mental illness by the time of trial, the trial judge held that rule 49.10(1) should not be strictly applied - The court was unable to say that this discretionary decision was plainly wrong or tainted by an error in principle - See paragraphs 129 to 133.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - [See third Equity - Topic 3645 ].

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - Costs - [See Practice - Topic 7243 ].

Cases Noticed:

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [paras. 40, 137].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, additional reasons [1992] 2 S.C.R. 318, refd to. [para. 40, footnote 2].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42, refd to. [para. 48].

E.D.G. v. Hammer et al., [2003] 2 S.C.R. 459; 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193, refd to. [para. 48, footnote 5].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161, refd to. [para. 48, footnote 5].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 52].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 52].

Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, refd to. [para. 73].

Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1218 (H.L.), refd to. [para. 73].

Keljanovic Estate v. Sanseverino - see Keljanovic Estate, Re.

Keljanovic Estate, Re (2000), 132 O.A.C. 19; 186 D.L.R.(4th) 481 (C.A.), leave to appeal refused (2000), 265 N.R. 395; 143 O.A.C. 398 (S.C.C.), refd to. [para. 88].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), leave to appeal refused (2005), 339 N.R. 200; 207 O.A.C. 400 (S.C.C.), refd to. [para. 88].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 95].

R. v. Braich (A.) et al. (2002), 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 162 C.C.C.(3d) 324 (S.C.C.), refd to. [para. 95].

Martin v. Goldfarb et al. (1998), 112 O.A.C. 138; 163 D.L.R.(4th) 639 (C.A.), leave to appeal refused (1999), 239 N.R. 193; 123 O.A.C. 199 (S.C.C.), refd to. [para. 122].

K.A.T. et al. v. J.H.B., [1998] B.C.T.C. Uned. 644 (S.C.), refd to. [para. 123].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209, refd to. [para. 130].

Murphy v. Alexander et al. (2004), 183 O.A.C. 325; 236 D.L.R.(4th) 302 (C.A.), refd to. [para. 130].

Orlando Corp. v. Bothwell-Accurate Co. - see Orlando Corp. v. Dufferin Roofing Ltd.

Orlando Corp. v. Dufferin Roofing Ltd. (2004), 1 C.P.C.(6th) 144 (Ont. C.A.), refd to. [para. 131].

L.A.J. v. H.J. (1993), 13 O.R.(3d) 306 (Gen. Div.), refd to. [para. 137].

L.T. v. R.W.T. et al., [1997] B.C.T.C. Uned. 863; 36 B.C.L.R.(3d) 165 (S.C.), refd to. [para. 137].

P.B. et al. v. R.V.E. et al., [2007] B.C.T.C. Uned. F78 (S.C.), refd to. [para. 137].

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, refd to. [para. 143].

Dalton Cartage Co. v. Continental Insurance Co. and St. Paul Fire and Marine Insurance Co., [1982] 1 S.C.R. 164; 40 N.R. 135, refd to. [para. 148].

F.H. v. McDougall (2007), 239 B.C.A.C. 222; 396 W.A.C. 222; 68 B.C.L.R.(4th) 203 (C.A.), leave to appeal granted [2007] 380 N.R. 397 (S.C.C.), refd to. [para. 147].

Williams v. Sisters of the Good Shepherd (2000), 227 N.B.R.(2d) 16; 583 A.P.R. 16 (C.A.), refd to. [para. 147].

Authors and Works Noticed:

Grace, Elizabeth K.P., and Vella, Susan M., Vesting Mothers with the Power They Do Not Have: The Non-Offending Parent in Civil Sexual Assault Cases: J.(L.A.) v. J.(H.) and J.(J.) (1994), 7 Can. J. Women & L. 184, pp. 186, 187 [para. 164].

Meagher, R.P., Gummow, W.M.C., and Lehane, J.R.F., Equity: Doctrines and Remedies (2nd Ed. 1984), p. 755 [para. 41].

Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4th Ed. 2002), p. 1031 [para. 56].

Rothstein, Linda R., Centa, Robert A., and Adams, Eric, Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof (2004), p. 455 [para. 147].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 56, 60 to 65 [para. 102].

Counsel:

Lorne M. Honickman and Laurie Murphy, for the appellant;

Maia L. Bent and Cynthia B. Kuehl, for the respondent.

This appeal and cross-appeal were heard on December 14, 2007, by Weiler, Cronk and Blair, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered on June 20, 2008, when the following opinions were filed:

Cronk, J.A. (Weiler, J.A., concurring) - see paragraphs 1 to 133;

Blair, J.A., dissenting - see paragraphs 134 to 171.