M.B. v. 2014052 Ontario Ltd. et al., 2012 ONCA 135

• Judge: Juriansz, Rouleau and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 21, 2011
• Jurisdiction: Ontario
• Citations: 2012 ONCA 135;(2012), 288 O.A.C. 370 (CA)

M.B. v. 2014052 Ont. (2012), 288 O.A.C. 370 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. MR.002

M.B. (plaintiff/respondent/appellant by way of cross-appeal) v. 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)

(C52965; 2012 ONCA 135)

Indexed As: M.B. v. 2014052 Ontario Ltd. et al.

Ontario Court of Appeal

Juriansz, Rouleau and Watt, JJ.A.

March 2, 2012.

Summary:

M.B. was employed at the defendant companies ("Deluxe"). Weig was M.B.'s direct supervisor. Weig committed four sexual assaults on M.B. He was convicted of criminal charges. M.B.'s action for damages for assault and battery was brought against both Weig and Deluxe. Liability was not a live issue at trial. The experts for both parties agreed that M.B. suffered from post-traumatic stress disorder and major depressive disorder. In Weig's view, however, four unrelated incidents materially contributed to M.B.'s psychological disorders and therefore mitigated his responsibility for damages.

The Ontario Superior Court, in reasons reported at 2010 ONSC 5835, entered judgment in accordance with the jury's verdict holding Weig liable 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. Weig appealed. The central issues were the trial judge's ruling as to the appropriate questions for the jury on causation and damages, and whether the $300,000 award warranted appellate intervention. M.B. cross-appealed, arguing that the trial judge erred in refusing to put her claim for loss of income to the jury.

The Ontario Court of Appeal dismissed the appeal and 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.

Damage Awards - Topic 487

Injury and death - General damage awards - Large awards - General - [See first Damage Awards - Topic 627 ].

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - [See third Damage Awards - Topic 627 ].

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The defendant committed four sexual assaults on the plaintiff - He argued that the jury's award of $300,000 in general damages was inordinately high and so excessively disproportionate to other awards for similar injuries as to warrant appellate intervention - The Ontario Court of Appeal held that the award, though outside the general range, was not so exceptional as to warrant appellant intervention - It was 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 - "Jury awards attract significant deference" - See paragraphs 66 to 70.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The defendant committed four sexual assaults on the plaintiff - He argued that the jury's general damages award of $300,000 should be reduced as it exceeded the $250,000 claimed in the statement of claim - No amendment to the claim was sought or obtained at trial - The Ontario Court of Appeal granted leave to the plaintiff to amend her pleadings to conform with the general damages award - The defendant would suffer no prejudice if the amendment was allowed - The amount awarded was not so significantly higher than the amount pleaded as to be obviously unfair - The amendment did not depend on additional facts or legal arguments - The increase in the amount claimed would not have affected the way the defendant responded to the claim - See paragraphs 71 to 74.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The defendant committed four sexual assaults on the plaintiff - The defendant argued that, because the jury's general damages award of $300,000 was very close to the limit on nonpecuniary 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 - The Ontario Court of Appeal did not give effect to that ground of appeal - Even assuming that the cap applied to general damages for sexual assault, the trial judge could not be faulted for her failure to instruct on the cap in the circumstances of this case - The ranges 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 - See paragraphs 75 to 77.

Damages - Topic 62

General principles - Considerations in assessing damages - Similar cases - [See first Damage Awards - Topic 627 ].

Damages - Topic 508

Limits of compensatory damages - General - Causes independent of wrongful act - [See Damages - Topic 591 and Damages - Topic 595 ].

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - The Ontario Court of Appeal stated that "[c]ertain principles may limit the extent of a plaintiff's damages notwithstanding a finding that the defendant caused the injuries. Two such principles formed the thrust of the appellant's case at trial - the crumbling skull principle and the principle of successive tortious events" - The court addressed each of those principles in turn - See paragraphs 33 to 46.

Damages - Topic 595

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - Personal injury - Victim's mental condition - The defendant committed four sexual assaults on the plaintiff - He did not seriously challenge liability - In his view, however, four unrelated incidents materially contributed to the plaintiff's psychological disorders and, therefore, mitigated his responsibility for damages - The Ontario Court of Appeal held that it was an error for the trial judge to instruct the jury in accordance with the material contribution test - This was not an appropriate case in which to use the material contribution test to establish causation - The defendant's argument that other factors contributed to the plaintiff's injuries did not make it "impossible" to prove causation using the "but for" test - The difficulty that arose from the error was that it coloured the trial judge's treatment of the defendant's arguments regarding the possibility that other causes contributed to the plaintiff's damages - See paragraphs 27 to 30.

Damages - Topic 818

Assessment - General - Effect of damage awards in other cases - [See first Damage Awards - Topic 627 ].

Damages - Topic 1007

Mitigation - General principles - Jury charge - [See Damages - Topic 595 ].

Damages - Topic 1016

Mitigation - In tort - Sexual assault, abuse or harassment - [See Damages - Topic 595 ].

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - [See third Damage Awards - Topic 627 ].

Damages - Topic 2422

Torts affecting the person - Assault - Abuse or sexual assault - [See Damages - Topic 595 ].

Practice - Topic 5193.1

Jury and jury trials - Charge to jury - Respecting causation - [See Practice - Topic 5197 ].

Practice - Topic 5197

Juries and jury trials - Charge to jury - Respecting assessment of damages - The defendant committed four sexual assaults on the plaintiff - In the defendant's view, four unrelated incidents (including a motor vehicle accident after the first sexual assault, and the "abuse" by the plaintiff's ex-husband) materially contributed to the plaintiff's post-traumatic stress disorder and major depressive disorder, and therefore mitigated his responsibility for damages - The Ontario Court of Appeal held that, 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 plaintiff would suffer some degree of depression or post-traumatic stress in the absence of the sexual assaults - Also, her reliance on the material contribution test led to her failure to consider whether other tortious causes might have contributed to the damages - Her failure to consider those issues resulted in her refusal to leave the crumbling skull and successive tortious events questions with the jury - However, the error was not serious enough to merit a new trial on the issue of damages - There was no reasonable evidence to support either question being put to the jury - See paragraphs 35 to 54.

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - The Ontario Court of Appeal stated that "[t]he prevailing test for causation is the 'but for' test ... It requires the trier of fact to conclude that 'but for' the defendant's misconduct, the plaintiff would not have suffered the injuries in question. 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: it must be 'impossible' to prove causation using the 'but for' test due to factors beyond the plaintiff's control; and (2) the plaintiff's injury must be within the ambit of risk created by the defendant's breach" - See paragraph 26.

Cases Noticed:

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 22].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 26].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para 26].

Hicks et al. v. Cooper; Hicks et al. v. Canadian Petrofina Ltd. et al. (1973), 1 O.R.(2d) 221 (C.A.), refd to. [para. 40].

Fiddler v. Chiavetti et al. (2010), 260 O.A.C. 363; 317 D.L.R.(4th) 385; 2010 ONCA 210, refd to. [para. 47].

Milligan v. Toronto Railway (1908), 17 O.L.R. 530 (C.A.), refd to. [para. 51].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 61].

Young v. Bella et al., [2006] 1 S.C.R. 108; 343 N.R. 360; 254 Nfld. & P.E.I.R. 26; 764 A.P.R. 26; 2006 SCC 3, refd to. [para. 67].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 68].

Evans v. Sproule (2008), 176 A.C.W.S.(3d) 895 (Ont. S.C.), refd to. [para. 69].

Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 75].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 75].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 75].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 71 O.R.(3d) 291 (C.A.), refd to. [para. 83].

Authors and Works Noticed:

Knutsen, Erik S., Clarifying Causation in Tort (2010), 33 Dal. L.J. 153, p. 169 para. 29].

Counsel:

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.

This appeal and cross-appeal was heard on October 21, 2011, before Juriansz, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. In reasons written by Rouleau, J.A., the Court delivered the following judgment, released on March 2, 2012.