M.L.H. v. R.G.R. et al., 2007 ONCA 804

• Judge: Cronk, Gillese and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 06, 2007
• Jurisdiction: Ontario
• Citations: 2007 ONCA 804;(2007), 231 O.A.C. 136 (CA)

M.L.H. v. R.G.R. (2007), 231 O.A.C. 136 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. NO.074

M.L.H. (respondent) v. R.G.R. and M.L., formerly M.R. (appellant)

(C44490; 2007 ONCA 804)

Indexed As: M.L.H. v. R.G.R. et al.

Ontario Court of Appeal

Cronk, Gillese and Epstein, JJ.A.

November 26, 2007.

Summary:

The plaintiff sued the defendants, former spouses who use to babysit the plaintiff, for, inter alia, historical sexual assaults and breach of fiduciary duty. The husband did not defend the action and was noted in default. The wife defended the action and argued that the abusive incidents did not take place in her presence and that she was unaware of them.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 1033, held that the defendants were jointly and severally liable to pay general damages of $100,000. The trial judge also awarded exemplary damages of $20,000 against the wife. The wife appealed.

The Ontario Court of Appeal, Gillese, J.A., dissenting in part, allowed the appeal, to the extent of setting aside the exemplary damages award.

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.

Damages - Topic 1302.1

Exemplary or punitive damages - Sexual assault (incl. sexual abuse) - The plaintiff sued the defendants, former spouses who use to babysit the plaintiff, for, inter alia, historical sexual assaults and breach of fiduciary duty - The husband did not defend the action but the wife did - The trial judge allowed the action and awarded general damages of $100,000 and exemplary or punitive damages of $20,000 against the wife - The Ontario Court of Appeal allowed the wife's appeal respecting the exemplary or punitive damages award - The trial judge reasoned that an award of exemplary damages was necessary to punish and deter conduct by the wife that he found to be reprehensible - However, his reasons contained no indication that, in so concluding, he related the facts of this case to the underlying purposes of exemplary or punitive damages and considered how, in particular, an award of exemplary or punitive damages would further one or other of the objectives of the law not already met by his award of general damages - This was especially necessary in this case because the trial judge's reasons suggested that his general damages award contained a punitive element - This defect in the trial judge's reasoning was an error - See paragraphs 19 to 29.

Damages - Topic 1309.1

Exemplary or punitive damages - Breach of confidence or fiduciary duty - [See Damages - Topic 1302.1 ].

Damages - Topic 1322.1

Exemplary or punitive damages - Bars - Award unnecessary - [See Damages - Topic 1302.1 ].

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - The plaintiff sued the defendants, former spouses who use to babysit the plaintiff, for, inter alia, historical sexual assaults and breach of fiduciary duty - The husband did not defend the action but the wife did - She acknowledged that she was aware of a propensity by her husband to abuse young girls and that she knew of his criminal record for sexually inappropriate behaviour towards young girls - She argued, however, that the abusive incidents did not take place in her presence and that she was unaware of them - The trial judge found that she knew of the abusive acts or was wilfully blind to them, that the acts took place when she was present, and that she did nothing to prevent them - The Ontario Court of Appeal agreed with the trial judge that a relationship of trust existed between the wife and the plaintiff and that the wife owed a fiduciary duty to the plaintiff - On the findings of the trial judge, that duty was repeatedly breached by virtue of the wife's deliberate failure to take any steps to prevent her husband's abusive acts in relation to the plaintiff - See paragraphs 8 to 14.

Equity - Topic 3654.3

Fiduciary or confidential relationships - Breach of fiduciary relationship - By babysitter - [See Equity - Topic 3606 ].

Torts - Topic 7142

Joint and concurrent tortfeasors - Concurrent tortfeasors - What constitutes - The plaintiff sued the defendants, former spouses who use to babysit the plaintiff, for, inter alia, historical sexual assaults and breach of fiduciary duty - The husband did not defend the action but the wife did - The trial judge allowed the action - The wife appealed, respecting the trial judge's imposition of joint and several liability - The Ontario Court of Appeal dismissed that ground of appeal - The trial judge found that the wife was negligent because she had actual knowledge of her husband's improper conduct towards the plaintiff (or was wilfully blind) and she failed to take proper steps to prevent the abuse - The trial judge also found that the wife and husband were both able to unilaterally exercise some discretion or power in relation to the plaintiff and that the plaintiff was vulnerable to the wife's actions as well as to those of her husband - Therefore, the wife engaged in tortious conduct distinct from that of her husband and acquiesced in or furthered her husband's wrongful conduct - These findings were sufficient to fix the wife with liability on a joint and several basis - Her actions, as found by the trial judge, were those of a joint or an independent concurrent tortfeasor - See paragraphs 15 to 18.

Torts - Topic 7162

Joint and concurrent tortfeasors - Joint tortfeasors - What constitutes - [See Torts - Topic 7142 ].

Cases Noticed:

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 13].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [paras. 22, 39].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39, refd to. [para. 24].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201, refd to. [para. 24].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 33].

Counsel:

Michael David Lannan, for the appellant;

Deborah L. Ditchfield, for the respondent.

This appeal was heard on November 6, 2007, by Cronk, Gillese and Epstein, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on November 26, 2007, and the following opinions were filed:

Cronk, J.A., (Epstein, J.A., concurring) - see paragraphs 1 to 30;

Gillese, J.A., dissenting - see paragraphs 31 to 43.