Dewing v Kostiuk et al, 2017 MBCA 22

Citation: Dewing v Kostiuk et al, 2017 MBCA 22 Date: 20170210 Docket: AI15-30-08398 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ZAPHERAH DEWING ) Z.

Dewing ) on her own behalf (Applicant/Plaintiff) Appellant ) ) No appearance - and - ) for the Respondents ) RICKEY NICHOLAS KOSTIUK, ) Appeal heard: NICHOLAS KOSTIUK and MARY ) September 27, 2016 KOSTIUK ) ) Judgment delivered: (Respondents/Defendants) Respondents ) February 10, 2017 MONNIN JA [ 1 ] This appeal raises the delicate but now much more frequent issue of how a trial judge must deal with a self- represented litigant. [ 2 ] By way of background, the plaintiff, a self-represented litigant, filed a statement of claim in 2013, alleging that she was sexually assaulted when she was four years old by the defendant Rickey Kostiuk (the defendant), her first cousin, who was twelve years old at the time.

She also alleged that she was forced to witness a similar assault on her sister. The statement of claim seeks significant damages that allegedly flow from the abuse and the plaintiff’s inability to cope with the consequences of it. She claims pecuniary and non-pecuniary damages of over 3.6 million dollars, broken down as follows: Damages Non-Pecuniary Loss Pain injury, suffering, and loss of enjoyment of life………….. $ 500,000.00 Pecuniary Loss Cost of Future Care………….. $ 41,880.00 Past Loss of Income…………. May 9, 1999 - May 9, 2013

10 years @ $77,098.00………. $ 770,980.00 4 years @ $125,758.00………. $ 503,032.00 Loss of Future Earning Capacity May 9, 2013 - December 9, 2033 20.7 years @ $125,758.00……. $2,603,190.00 Total Non-Pecuniary Loss & Pecuniary Loss $4,419,082.00 Minus Life Time Earnings as a Legal Assistant……………….. - $ 793,700.00 Total Damages $3,625,382.00 [ 3 ] In the amended statement of claim, after recounting briefly the sexual assault and the consequences of it, the plaintiff sets out the basis upon which she claims the amounts in question.

In the paragraphs dealing with the past loss of income and loss of future-earning capacity, she provides references to economic calculators and average Canadian wages for lawyers in order to explain the manner in which the amount of the damages is calculated. [ 4 ] She obtained an order from the Master adding the defendant’s parents as defendants to the action. [ 5 ] The plaintiff brought the matter on before the motion judge on September 11, 2014, seeking to note all three defendants in default.

The motion judge, concerned about the serious allegations and the substantial damages being claimed, indicated that she would not issue default on the basis of what was on the file. She advised the plaintiff that the matter would have to be set down for a hearing for the plaintiff to prove her case. [ 6 ] There was a brief exchange between the plaintiff and the motion judge whereby the motion judge raised the need for the plaintiff to give evidence under oath, as well as bring any witnesses that were required.

Although that exchange focussed on the need for evidence concerning the alleged sexual assault, the motion judge did raise the issue of damages also having to be considered. The question of the appropriate forum—whether it be British Columbia where the plaintiff and the defendants currently lived or Manitoba where the events occurred—followed. At the end, the motion judge arranged for a hearing before her a few months later.

Despite the defendants having been served by substitutional service, she required notice of service of the new hearing date upon all defendants. [ 7 ] The matter then proceeded before the same motion judge on January 7, 2015. At the outset and before hearing the plaintiff’s evidence, the motion judge outlined the issues, including the distinction between general damages for pain and suffering and special damages related to pecuniary loss. The motion judge stated as follows: [Y]ou’re entitled to default being noted, because they haven’t filed their defences, okay?

The issue is what amount of damages you’re entitled to. That’s something that I have to decide. And that’s not automatic. . . . But in order to get special damages, that’s damages related to the amount that you lost for not being able to work, or the amount that you might lose in the future for not being able to work . . . you have to actually prove that your inability to work was related to the assault.

So that’s, that, that’s something I have to consider and that’s something that if you don’t prove, I may say that I can, I will order you general damages, but I won’t order you, order damages for special, any special damages claimed. [ 8 ] After that introduction, the plaintiff proceeded to give her evidence under oath in response to questions from the motion judge, which was primarily related to when and how she disclosed the events, as well as her relationship with the defendant and her family.

She also provided evidence as to how she coped with current sequels of the mental trauma in order to continue her studies. [ 9 ] The following day, the motion judge gave her decision in brief oral reasons. She explained that she would grant

default judgment against the defendant but declined to do so against his parents as, in her view, there were no facts pleaded in the claimor raised in the evidence which would disclose a cause of action against them. [10] As to the issue of damages, she took as a fact that the defendant did sexually assault the plaintiff when she was four orfive years old and, notwithstanding the fact that he would have been only twelve years old at the time, he could be held liable in tort forthe assault.

She noted that, while the plaintiff could not afford a lawyer and Legal Aid was not available, the plaintiff still had to meetthe standard of proof that would apply if she had counsel representing her. [11] She noted the plaintiff’s evidence was that she was currently enrolled in university and had aspirations to go to lawschool, but that she had difficulty completing educational programs because of concentration and memory problems due to the trauma.

The motion judge concluded that, while she was satisfied that the plaintiff had suffered from significant mental health issues which likelyaffected her ability to complete her education and become gainfully employed, there was, in her view, no basis on the evidence by whichto quantify the loss to the extent the plaintiff claimed. She noted the distinction between the pleadings, which set out substantialdamages based upon amounts provided in previous sexual assault cases, but found that there was no such correlation with the plaintiff’sevidence.

In the motion judge’s view, there was no evidence of what the plaintiff had been able to earn or what she should have beenable to earn. She noted as well that the plaintiff had had some success with therapy and her therapist believed that she would be able tosuccessfully complete her education.

The motion judge concluded that, while the plaintiff may have been able to present her evidence ina more cogent fashion had she had the assistance of counsel, she was not satisfied that she could make an award of damages as claimedon the basis of the evidence presented by the plaintiff with respect to a loss of income, both past and future. [12] As to non-pecuniary loss, she reviewed the case law and awarded damages in the amount of $100,000. [13] The plaintiff appeals the decision and raises four concerns:

i) on loss of past and future income, which the motion judge denied on the basis of lack of evidence, sheargues that she should be entitled to a greater amount because the motion judge erred in assessing the evidence and dealt with herunfairly by reason of her inability to communicate her evidence; ii) on non-pecuniary loss, she submits that the amount awarded is too low and not in keeping with thesuffering she endures and the authorities provided in support of her position; iii) on the cost of future care, she argues that the motion judge failed to award her an appropriate amountby reason of concluding that she will continue to have psychiatric services provided by the state; and iv) as to the claim against the parents, she argues that the motion judge erred in dismissing it.

Standard of Review [14] All four issues involve issues of mixed fact and law. Since there is no extricable issue of law, they are to be decided ona standard of palpable and overriding error (see Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235). [15] The motion judge’s conduct of the proceedings and, more particularly, the extent to which she provided assistance tothe plaintiff, is a discretionary decision (see Murphy v Wulkowicz, 2005 NSCA 147 at para 37, 238 NSR (2d) 304; and Mujagic v Kamps,2014 ONSC 5504 at para 16).

As such, it is subject to a highly deferential standard of review as set out in Elsom v Elsom, (SCC), [1989] 1 SCR 1367. Therefore, we are justified in intervening only if the motion judge has misdirected herself or thedecision is so clearly wrong as to amount to an injustice. (

a) Loss of Future Income [16] The plaintiff’s position is that she should be allowed loss of income, both past and future, calculated as if she hadobtained a law degree and been a practicing lawyer, earning upwards of $125,000 per year now and in the future. She argues that she hasa mental disability; specifically, Complex Post Traumatic Stress Disorder, caused by the sexual assaults as a child, and the motion judgefailed to accommodate that disability by not allowing her to present her evidence in a manner consistent with her condition. She arguesthat she was denied her rights under

section 15 of the Canadian Charter of Rights and Freedoms (the Charter) to equal treatment as aresult of a prohibited ground of discrimination, namely, her mental illness. She seeks a rehearing before the trial judge to present hercase over a period of days to accommodate her specific condition. I note that she did not request this procedure at any time before thetrial judge and it is raised for the first time on this appeal.

Duty of the Motion Judge to the Self-Represented Litigant [17] Current jurisprudence recognizes that, with the advent of a greater number of self-represented litigants (SRLs), the roleof the presiding judge has evolved. A judge in a civil proceeding has the obligation to ensure that the hearing over which he or she ispresiding is fair to all parties whether represented or not.

Where a party is self-represented, the judge has the duty to ensure that the SRLhas the opportunity to meaningfully participate in the hearing and has a reasonable opportunity to present his or her case. [18] This Court has recognized that fairness and balance are the touchstones to enable justice to be done for all parties (seeDirector of Child and Family Services (Man) v JA et al, 2004 MBCA 184, 190 ManR (2d) 298 (JA No 1); and Director of Child andFamily Services (Man) v JA, 2006 MBCA 44, 205 ManR (2d) 50 (JA No 2)).

In JA No 2, Hamilton JA reiterated the overridingprinciples (at paras 20, 32): The foregoing quotes speak to the obligation of a judge to permit an unrepresented party to present his or her case. This often requiressome assistance and accommodation, provided the rights of the other party are not prejudiced.

As already noted, the trial judge cannot become the advocate for the unrepresented litigant, nor can the judge provide legal advice.

However, the judge’s challenge is to take pains to ensure that a party’s lack of legal training does not unduly prejudice his or her ability to participate meaningfully in the proceeding. [ 19 ] A fair opportunity to present a case to the best of his or her ability does not mean that the SRL is to be assisted to present the best possible case ( see Ridout v Ridout , 2006 MBCA 59 , 205 ManR (2d) 146 ). [ 20 ] In 2006 the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons” (September 2006), online: <https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_other_PrinciplesStatement_2006_en.pdf>.

Although advisory in nature and not a code of conduct, its aim, amongst other things, was to provide guidance to the judiciary and litigants themselves as to what may be expected. According to that statement, one of the responsibilities of a judge, depending on the circumstances and nature of the case, could be to (at principle B(4)): (

a) explain the process; (

b) inquire whether both parties understand the process and the procedure; . . . (

d) provide information about the law and evidentiary requirements. [ 21 ] It also noted that there is a responsibility on self-represented persons to familiarize themselves with the relevant legal practices and procedures pertaining to the case and to “prepare their own case”. [ 22 ] At the end of the day, however, the procedure that is chosen by a judge and the decision that is made as to the amount or type of assistance to be given is within the discretion of the hearing judge depending on the circumstances of the case (see Cold Lake First Nations v Alberta (Minister of Tourism, Parks and Recreation) et al , 2012 ABCA 36 , 522 AR 159 ). [ 23 ] Applying these concepts to the facts before us is rendered more difficult by the manner in which this case first presented itself to the motion judge, namely, as a motion for default judgment.

At the September 11, 2014 hearing, what was before the motion judge was an attempt to note default judgment which proceeded on the civil motions list. The motion judge was faced with a decision on that issue and properly decided that it was not something which should be dealt with summarily and without further evidence of service. The issue of damages was not directly before her on that day, although she made it known that it would have to be dealt with at the next hearing. [ 24 ] Ideally, at that time, the plaintiff should have been advised of what would be expected at the next hearing.

The motion judge did provide some guidance and indicated the damages would be an issue; however, in hindsight, a more expansive explanation would have been beneficial. Presumably, if this matter had been set down for a trial on the issue of damages, then a pre-trial would have occurred, at which time a discussion as to the evidence that would be called or tendered would have occurred. [ 25 ] At the January 7, 2015 hearing to note default and prove damages, the motion judge, at the outset, did advise the plaintiff of the procedure that would be followed, namely, the calling of evidence under oath.

As well, at the beginning of the hearing to note default, the motion judge raised the requirement that there be evidence to substantiate the claims for special damages. [ 26 ] The plaintiff’s claim for special damages for loss of past and future income failed on the motion judge’s determination that the plaintiff had not proven the extent to which the assault had affected her ability to work, nor evidence of the income she had been able to earn as compared to what she would have been able to earn. The plaintiff’s estimates of income lost and future income was found in the pleadings and not in direct evidence.

It consisted of reference to average incomes for lawyers in Canada.

I am unable to conclude, in the circumstances of this case, that the motion judge’s decision that the evidence did not support the amounts that were sought by the plaintiff is a palpable and overriding error, which is the standard of review required to overturn her decision on this issue. [ 27 ] The question of whether the motion judge should have allowed greater leeway to the plaintiff in presenting her evidence was never raised by the plaintiff and, given the circumstances under which the matter was brought on, namely, the desire for the plaintiff to have the matter dealt with in a

summary fashion, amounted, in my view, to a discretionary decision by the motion judge which is not lightly overturned. [ 28 ] I fail to see an argument that a breach of

section 15 of the Charter took place. Had the plaintiff requested some form of procedural accommodation required by her disability and been refused, a different issue would arise. Here, the motion judge decided the case on well-known evidentiary principles. I see no error. [ 29 ] Had this matter proceeded in a different fashion in the trial court, such as under the

summary proceeding rules or with a

pre-trial conference given that there was, in essence, a trial of an issue, there may have been an opportunity for a judge to provide specific guidance and direction to the plaintiff as to the nature and extent of the evidence she would have had to provide in the usual course.

Whether some form of more robust pre-trial procedures should be considered for a trial on the issue for damages is something the trial court may wish to examine but, under the existing rules, that opportunity did not present itself. [ 30 ] In my view, the procedure followed by the motion judge was not unfair to the plaintiff, nor did it lead to an injustice. The pleadings disclosed that the plaintiff understood the distinction between issues of liability and damages and was aware that evidence under oath would be required at the hearing of January 7, 2015.

The motion judge did not misdirect herself when she concluded that the evidence was not sufficient on a balance of probabilities to prove the damages sought under the head of pecuniary loss, nor did it lead to an unjust result in the circumstances of this case. I would dismiss the appeal on that issue. [ 31 ] I cannot leave this issue, however, without raising the salutary benefits of ensuring at the earliest opportunity that SRLs appreciate the nature of the proceedings, the issues that will be raised and the evidence that will need to be called.

As the guidelines offered by the Canadian Judicial Council referred to above suggest, when these matters are discussed at an early stage and in a balanced manner, the efficiency of proceedings will be enhanced. (

b) Non-Pecuniary Loss [ 32 ] The trial judge awarded the amount of $100,000 as a non-pecuniary loss. The plaintiff argued before us that such an amount is insufficient.

She also argued in her written material that, as was the case with her claim for loss of past and future income, had she been given the opportunity to present her case over a period of days, she would have been able to provide further evidence to describe the nature of the assaults to support a higher amount. [ 33 ] The trial judge, on this issue, referred to cases dealing with the amount of non-pecuniary loss provided for sexual assault and the principles upon which they were based.

She then reviewed the circumstances of the case before her and the medical evidence provided by the plaintiff’s treating psychiatrist. [ 34 ] Again, the standard of review on this issue is palpable and overriding error. I see no such error in the motion judge’s review of the current jurisprudence, nor in its application to the facts. The argument that the plaintiff did not receive an opportunity to present her case is to be reviewed on the basis of an exercise of discretion for which the motion judge is entitled deference. I see no basis upon which to overturn her decision on this ground. (

c) Loss of Future Care [ 35 ] The motion judge declined to award an amount for future costs of therapy.

The plaintiff argues the motion judge erred because her current psychiatric treatments are provided by the campus psychiatrist at the university she is attending and that will not continue once she graduates. [ 36 ] The point that was central to the motion judge’s determination is that future psychiatric services, as the ones that are currently being provided, would be provided at no cost to the plaintiff by the state and that, since there was no claim for reimbursement on behalf of the British Columbia Medical Services Commission, there is no basis for an amount for cost of future care.

There is no error in that reasoning. (

d) Default Judgment [ 37 ] Finally, the motion judge declined to award default judgment against the defendant’s parents. She reviewed the case law as to why a 12 year old could be held liable in tort; however, in order to succeed against the parents, there would have to be facts pleaded in the statement of claim which raised a cause of action against them either for failing to supervise properly or to show that they had somehow been involved or cognizant of the acts that took place. No such facts having been pleaded or led in evidence, the motion judge was correct in declining to note default against them.

I would therefore dismiss that ground of appeal as well. Conclusion [ 38 ] For the reasons I have set out above, the appeal is dismissed. I add only these comments. This is a difficult case made more difficult by the lack of counsel to represent the plaintiff. It has meant that her case has been presented without the benefit of evidence which would normally be expected in cases alleging substantial loss of past and future income and non-pecuniary losses. That the outcome may have been different for the plaintiff had she received legal advice and been able to present the case with greater detail is unfortunate.

However, as stated in the review of the jurisprudence relating to SRLs, the two touchstones that the court must provide are fairness and balance. For the reasons set out above, I am of the view that, while the plaintiff was not in a position to present the best case possible, she presented the case that she chose to in the circumstances. Appellate intervention is not warranted. JA I agree: JA

I agree: JA