2011 QCCQ 8476, 2011 QCCQ 8476

J.G. c. Richardson 2011 QCCQ 8476 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-115293-096 DATE: July 14, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ J. G. [...] Vancouver B.C. [...] Plaintiff v.

THOM RICHARDSON [...] Montréal Québec [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, J. G., is suing Defendant, Thom Richardson, for $7,000. She is seeking compensation following the sexual assault by Defendant. Plaintiff, who was not present at the hearing, was represented by Ms. Marites Carino. The evidence [ 2 ] On March 22, 2006, at 2:50 a.m., Defendant entered Plaintiff's apartment through a balcony door, alleging that he believed he had been invited by Plaintiff.

He found Plaintiff hiding in her cupboard and touched her leg. Plaintiff yelled at him to get out and Defendant left. [ 3 ] Plaintiff denies having invited Defendant to her apartment and maintains she did not know him. Defendant was charged and found guilty of sexual assault. He was given conditional probation. [ 4 ] Plaintiff developed Post Traumatic Stress Disorder (PTSD); she suffers insomnia, flashbacks, inability to concentrate and nightmares. She underwent therapy with several specialists. Upon medical advice, she took a temporary leave of absence from her teaching position at College A.

Plaintiff had an alarm system installed and ultimately moved to Vancouver. [ 5 ] Plaintiff is seeking compensation for her financial losses, including loss of salary, the cost of medication, therapy, installing an alarm system and moving. [ 6 ] Defendant submits that while his actions are inexcusable, he co-operated with the police, pleaded guilty to the criminal charges against him, spent three years dealing with Court proceedings and paid a $100 fine. In addition, he has expressed remorse for what he had done. Analysis

[ 7 ] Plaintiff, in her demand letter dated January 11, 2009, claimed $85,000 from Defendant. Her lawsuit lists various losses amounting to 80,577.51 $. She reduced her claim in order to present her case before this Court’s Small Claims Division. [ 8 ] Plaintiff did not appear at her hearing, choosing to send a representative in her place. Plaintiff provided additional information through affidavit evidence. [ 9 ] Defendant alleged that Plaintiff’s absence was prejudicial to his right to question Plaintiff as to the amounts claimed.

While the undersigned considers that it would have been appropriate for Plaintiff to appear personally, the Court verified and determined the admissibility of all the evidence presented and the value of Plaintiff’s claim. [ 10 ] The following items are claimed: The cost of three (3) months rent ($1,605) for Plaintiff's apartment when Plaintiff left to temporarily live with her boyfriend [ 11 ] Plaintiff is seeking $1,605 for her rent during a three-month period following her assault, when she lived with her boyfriend but continued to pay her rent. [ 12 ] Plaintiff failed to produce her lease or any evidence to support her allegation that she moved to live with her boyfriend.

Therefore, this aspect of her claim is denied. The sum of $180 for Plaintiff's hydro bill for a period of three (3) months [ 13 ] Plaintiff is claiming $180 for the same three-month period following the assault but in the absence of any documentation, compensation for this item is denied. The sum of $150 for Plaintiff's telephone bill for a period of three months [ 14 ] This claim is not supported by any documentation and therefore is not granted. Cost of Medication [ 15 ] Plaintiff is seeking $742.36 for the cost of her drugs, prescribed by Dr. Wong and Dr. Lament.

The medication was for insomnia and anxiety. [ 16 ] Given that the medication was related to Plaintiff’s post traumatic stress disorder and the cost constitutes a direct damage, the claim of 742.36 $ is accepted. Costs related to Doctor's fee for letter sent to IVAC [ 17 ] Plaintiff seeks $150, which she paid to a physician for the purposes of submitting her insurance claim. The Court accepts this item. Moving Costs [ 18 ] In January 2007, Dr. Hagshi's medical certificate indicates that she approves Plaintiff leaving Montreal for the duration of her leave of absence from work.

Plaintiff's absence initially was foreseen for a semester. In April 2007, Dr. Hagshi advised Plaintiff to temporarily live outside of the city of Montreal, until September 2007. Dr. Hagashi indicates in her medical certificate that prior to that date, Plaintiff will be re-evaluated. [ 19 ] Plaintiff decided to move to Vancouver in June 2008, more that a year later. There is no medical report to establish that her move to Vancouver was required at that time. Accordingly no compensation is granted for her move to Vancouver.

Costs related to a claim against her insurance company [ 20 ] Plaintiff seeks reimbursement of $151 for her Court costs related to her lawsuit against her insurance company, Desjardins, when it failed to pay her disability claim. The parties settled out of Court and Plaintiff accepted the sum of $6,092. [ 21 ] In doing so, Plaintiff signed a release, recognizing the amount received as final payment in capital interest and costs for her case. There is consequently no basis for the payment of any further sum related to that litigation.

Cost of Notary for the above stated lawsuit [ 22 ] Plaintiff seeks $37 for notarial fees. Our Courts only award extra-judicial costs in exceptional circumstances, such as in the case of an abuse of procedures, which has not taken place in this instance. Cost to mail material

[ 23 ] Plaintiff is claiming $9.34, as the mailing costs she incurred in her lawsuit against Desjardins. Since she settled her case, she is not entitled to any further amounts. The cost to install a security system [ 24 ] Plaintiff had an alarm system installed in her apartment in June 2006 and is claiming $1,247.61 for a three-year contract. This does not constitute a direct damage and is therefore not granted. Cost of Therapy [ 25 ] Plaintiff, seeking $1,200 in costs for therapy, was treated by several therapists including the following: a.

Arthur Lorenz, a marriage and family therapist in San Francisco from March 7, 2007 to April 18, 2007 at a cost of $200. b. Laura McMartin, psychologist in Montreal from June 12, 2007 to September 12, 2007 at a cost of $655. c. Eva Libman, psychologist from August 30, 2007 to September 10, 2007 at a cost of $200. d. Brenna King, therapist, in Vancouver on November 17, 2008 for $95. [ 26 ] In addition, Plaintiff consulted Dr. Goldfarb, Dr. Hagashi, Dr. Danny Gagnon (psychologist) and, Dr Greg Passey. [ 27 ] Plaintiff consulted a marriage and family therapist in California, U.S.A.. According to Plaintiff Dr.

Lorenz is fully trained in individual therapy and has training in PTSD. However, Plaintiff provided no documentation to establish this allegation or the nature of the treatment received. Plaintiff also did not provide any indication as to the nature of the single counseling session given by Brenna King. [ 28 ] Laura McMartin and Eva Libman provided expert reports. Therefore, only the cost of the therapy sessions charged by these two therapists is granted, namely $855.

Cost of Acupuncture [ 29 ] Plaintiff is also seeking compensation for sessions with an acupuncturist in Vancouver, from December 28, 2007 to February 27, 2008 at a cost of $560. There is no evidence that a physician prescribed such treatment nor is there any report from the acupuncturist. In light of the foregoing, the Court is not granting any indemnity for this aspect of the claim. Costs related to filing of this action [ 30 ] Plaintiff is seeking the cost of $40 for fees paid to a notary, $15 as mailing costs and $165 for judicial costs.

Plaintiff would be entitled to her mailing costs but has not produced any receipt for this expense. A party who succeeds in his or her lawsuit is entitled to recover judicial costs; however, compensation is not granted for legal fees, for the same reasons as outlined above. Loss of income [ 31 ] Plaintiff was unable to work and took a temporary leave of absence from her teaching position.

She is claiming $68,950 for loss of revenue for a two-year period from January 2007 to 2009 as well as the loss of pension contributions amounting to $4,000 for the same period. [ 32 ] The medical evidence indicates a temporary leave of absence of one semester, namely a four-month leave from her work from January 2007 to May 2007. A second report from another therapist (Eva Libman), following her evaluations in August and September 2007, foresaw substantial therapeutic gains for Plaintiff in six to eight months. Plaintiff was not re-evaluated by Ms.

Libman in 2008 nor is there any medical or psychological report at that time. [ 33 ] The evidence established that Plaintiff began working at College B in January 2008, on a part time basis. After teaching at University A for a semester, she returned to College B, where she is now teaching. [ 34 ] Plaintiff is claiming a loss of salary for 2007. The Court accepts that Plaintiff was unable to work in 2007. Her salary in 2007 from [College A] was $54,143.80, as seen from the pay slip provided.

Her net pay was $34,748.60. [ 35 ] Plaintiff received $17,066.60 in compensation from IVAC and $6,092.09 from Desjardins Financial Security for a total of $23,158.68, leaving a salary loss of $11,589.91 for 2007. Plaintiff is entitled to compensation for this net salary loss. [ 36 ] Plaintiff is seeking $30,000 in compensation for 2008. According to her affidavit, she was only offered part time work for one semester at College B and given that there was not sufficient work at College B, she found part time work during the following semester at University A.

She subsequently returned to College B and is currently teaching there full time. [ 37 ] Plaintiff has not established that she was unable to work full time because of her medical condition; rather her part time work stems from the fact that a regular full time position was not available. Accordingly, no compensation is granted for 2008. Loss of contributions to pension fund [ 38 ] Plaintiff alleges the loss of $4,000 in pension contributions. Since this is related to her salary loss, this amount is granted. [ 39 ] The Court grants the following amounts:

- Doctor's fee for compensation claim: $150 - Therapy sessions: $855 - Prescription drugs: $742.36 - Loss of income: $11,589.91 - Loss of pension contributions: $4,000. [ 40 ] The total amount of loss awarded is $17,337.27. [ 41 ] As indicated above, Plaintiff is claiming $80,577.51. She has established $17,337.27 as damages. Since the jurisdiction of this Court is limited to $7,000, Plaintiff cannot claim a greater amount. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's claim; CONDEMNS Defendant, Thom Richardson, to pay Plaintiff, J. G., the sum of $7,000 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec , since the date of judgment and judicial costs of $165. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: April 18, 2011