2018 NUCJ 10, 2018 NUCJ 10

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R.N., et. al. v. Haulli, 2018 NUCJ 10 Date: 20180418 Docket: 07-07-127, 07-07-658, 07-14-133, 07-15-483-CVC Registry: Iqaluit Plaintiffs: R.N., R.Q., B.A. and L.Q -and- Defendant: Ike Haulli ________________________________________________________________________ Before: The Honourable Mr. Justice Earl Johnson Counsel (Plaintiff): Alan Regel Counsel (Defendant): Self-represented Location Heard: Iqaluit, Nunavut Date Heard: October 30 - November 2, 2017 Matters: Trial and Assessment of damages for sexual assault; Supreme Court of the Northwest Territories , NWT Reg (Nu) 010-96 ,

Part 11 and s 294 REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order, any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Anonymization Disclaimer: This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. Contents I. INTRODUCTION . 4 II. APPLICATION FOR ADJOURNMENT . 6 III. TRIAL OF R.N. & R.Q., ASSESSMENT OF DAMAGES OF B.A. & L.Q. 9 A. Overview . 9 B. Notice to Admit Facts . 10 C.

Testimony of Plaintiffs R.N., R.Q. and B.A. 13 D. Transcript of Evidence of L.Q. 15 E. Testimony of Defendant 16 IV. DAMAGES . 18 A. General Damages . 18 i. General Principles . 18 ii. R.Q. and R.N. 19

iii. B.A. and L.Q. 21 B. Special Damages . 24 i. Plaintiff’s Argument 24 ii. Analysis . 24 C. Punitive Damages . 25 I. INTRODUCTION [ 1 ] R.N. filed a Statement of Claim on March 2, 2007 and R.Q. filed a Statement of Claim on November 21, 2007. Statements of Defence were filed in both actions on November 14, 2008 but the law firm that filed them ceased acting for the Defendant on September 13, 2010. [ 2 ] B.A. filed a Statement of Claim on March 5, 2014 and L.Q. filed a Statement of Claim on August 26, 2015.

Both actions were undefended and the Defendant was noted in default on September 3, 2015 on the B.A. action and on October 21, 2015 on the L.Q. action. [ 3 ] During 2010 and 2011, the Plaintiffs R.N. and R.Q. attempted to conduct examinations for discovery with the self-represented Defendant but they were unsuccessful. [ 4 ] The file was dormant until L.Q. applied for an Order joining together the trials of the R.N. and R.Q. actions and to hold a default hearing in the B.A. action at the same time as the trials.

The Plaintiff L.Q. also requested that the default hearing be heard at the same time as the trials upon further Order of the Court. [ 5 ] On September 14, 2015, I issued an Order granting the relief requested and ordered that the evidence entered in the trials could also be relied on in the default hearings. [ 6 ] Despite the efforts of Counsel for the Plaintiffs [Regel], the self-represented Defendant did not respond to Notices to Admit Facts

and to complete a Certificate of Readiness. As a result, Regel applied for an Order directing the Defendant to submit a Form 33A. [ 7 ] The Defendant did not appear by telephone when the application was heard by Justice Bychok on October 17, 2016. At the hearing, Regel indicated he had been in contact with the Defendant in the previous week and understood he was trying to retain the services of a lawyer with civil law experience.

Justice Bychok directed the Plaintiffs to file a Form 33A and to have the Trial Coordinator set a trial date far enough into the future to give the Defendant time to retain legal counsel. He also indicated that once the trial date was set there would be no adjournment “barring something extraordinary.” [ 8 ] On May 26, 2017, the Trial Coordinator set the trial for the week of October 30-November 3, 2017. Regel informed the Defendant about the trial date by letter, dated June 9, 2017. [ 9 ] On August 21, 2017, Regel contacted the Defendant to discuss the upcoming civil trial.

During the conversation the Defendant indicated that he was a party to a criminal trial scheduled for September 5, 2017. They agreed to postpone any further discussion about the civil trial until after the conclusion of the criminal trial. [ 10 ] There were further communications between Regel and the Defendant on September 24 and 25, 2017. The Defendant informed Regel that he had not been successful in retaining legal counsel and could not afford to travel to Iqaluit for the trial.

Counsel for the Plaintiff informed the Defendant that if he was seeking an adjournment he should contact the Clerk of the Court as soon as possible. [ 11 ] On October 4, 2017, Regel communicated with the Defendant by telephone and gave him the opportunity to question L.Q. at an examination before a court reporter, conducted in Quispamsis, New Brunswick. The examination had been arranged to preserve L.Q.’s evidence because her health was deteriorating and Regel was concerned she would be unable to attend the trial.

The Defendant declined the opportunity to question L.Q. [ 12 ] On October 24, 2017, I heard an application by the Defendant by telephone to adjourn the trial and I denied the application with more fulsome reasons to follow with the trial judgment. Regel also requested that the expert evidence of Dr. Boulais and Dr. Klassen be given by telephone and the Defendant did not oppose this request.

Finally, Regel requested leave to rely on the transcript of the examination of L.Q. instead of having her in court and the Defendant did not oppose this request. [ 13 ] I heard evidence on the trial and default hearings on October 30, 31, November 1 and 2, with the Defendant attending by telephone, and I reserved judgment. Because of the sensitive nature of the evidence, I issued a publication ban on the names of the Plaintiffs and they have been anonymized in the judgment. II.

APPLICATION FOR ADJOURNMENT [ 14 ] At the hearing, I reviewed the history of the file with the Defendant and he did not dispute any of the facts stated above. I asked him to explain what he had done to obtain a lawyer since Justice Bychok made the Order to set a trial date in October 2016. [ 15 ] The Defendant indicated that he had paid a lawyer $30,000 to defend him in the criminal trial scheduled for September 5, 2017. When that money was spent, he applied for and was provided with legal counsel through legal aid.

Around the date of the criminal trial, the Canada Revenue Agency garnished $400,000 from his company and $75,000 from his personal account. This left him virtually bankrupt. He owed over $100,000 and could not borrow any money from friends or family. [ 16 ] When I questioned the Defendant about whether he had applied for civil legal aid, he responded that he was not aware he could obtain that type of legal assistance.

He simply requested an adjournment for one year because he hoped he would be in a better position to obtain legal representation. [ 17 ] Regel opposed the request for an adjournment and cited Ludmer v Ludmer , 2012 ONSC 5738 , 2012 CarswellOnt 16100 [ Ludmer ] , and BST v ER , 2011 YKSC 68 , 2011 CarswellYukon 134 [ BST ] , in support of his argument. [ 18 ] In BST , Justice Gower emphasized that the applicant for an adjournment must demonstrate that they were diligent in preparing for the trial.

In denying the applicant’s request for an adjournment because of her alleged emotional stress in proceeding with a trial, he

noted that she had the capacity to run as a candidate in a territorial election and had two lawyers who were ready to assist her in the trial. [ 19 ] In Ludmer , the applicant for an adjournment had been involved in a lengthy and costly litigation for a number of years that resulted in her inability to continue to pay her lawyer. She sought an Order compelling the respondent to pay her interim costs but was unsuccessful. As a result, her lawyer ceased acting and she applied for an adjournment for a trial scheduled to commence six weeks later.

In rejecting the request Justice Penny noted that the applicant wanted an adjournment for six months but there was no evidence the situation would be any different at that time. She would still be in the situation of being unable to pay for a lawyer. He also pointed out that the lawyers for the respondent had carried extensive preparation for the trial, including the summoning and preparation of witnesses and preparation for trial arguments and examinations. An adjournment would result in significant costs that the applicant would be unable to pay.

Finally, he concluded that the litigation which had been in progress for seven years had to reach an end so the parties could get on with their lives. There had been two prior adjournments and the issues were well-defined. [ 20 ] Regel argued that the Defendant had not been diligent in obtaining a lawyer even though he knew from the remarks of Justice Bychok that it was unlikely that the trial date would be adjourned “barring something exceptional”. The Defendant was unrepresented from 2010 and there were several attempts made to set dates for examination that were unsuccessful because he did not respond.

He was repeatedly reminded to obtain legal counsel but did not do much about it. He was a sophisticated businessman who was well aware of the process of obtaining legal representation and had paid for lawyers in the past. He also knew how to obtain legal aid for a criminal matter but failed to inquire about assistance for civil legal aid. [ 21 ] Regel emphasized that the issues were well defined. R.Q’s claim is supported by a criminal conviction against the Defendant and essentially amounts to an assessment of damages as are the claims of L.Q. and B.A.

The only matter where there is any real dispute is with respect to R.N. Time was of the essence because of L.Q.’s poor health. [ 22 ] Similar to Ludmer, to prepare for trial the Plaintiffs have incurred extensive costs that they will be unable to recover because of the Defendant’s financial condition.

Furthermore, there is no indication that the Defendant will be in any better position one year from the trial date. [ 23 ] The factors that might be considered in an adjournment application were stated at paragraph 23 of Ludmer, quoting the Alberta Court of Queen’s Bench in Lameman v Alberta , 2011 ABQB 40 at para 33 , [2011] AJ No 82 : 1. courts should make a just determination of the real matters in dispute and they should decide cases on their merits; 2. the prejudice caused by granting or denying the adjournment; 3. the applicant’s explanation for not being ready to proceed; 4. the length of the adjournment the applicant is seeking and the consequent disruption of the court’s schedule; 5. the importance of effectively enforcing previous court orders; 6. the proper marshaling of evidence and prosecution of complex and multifaceted actions; 7. whether there is a realistic expectation that the adjournment will accomplish its stated purpose; 8. the history of the proceedings, including other adjournments and delays, and at whose instance those adjournments and delays occurred; 9. where a party is seeking the adjournment to amend pleadings, how long counsel has known of the issue to which the amendment is aimed and whether counsel has had previous opportunities to amend; 10. whether the application is merely an attempt to delay the proceedings; and 11. the party that seeks the adjournment should not bear the consequences of its counsel’s failures. [ 24 ] I was satisfied factors 2,3,4,7 and 8 were applicable and worked in favour of the Plaintiffs.

[ 25 ] The Plaintiffs would have been seriously prejudiced if a one-year adjournment was granted. L.Q.’s potential prejudice would have been greater because of her health and all would be unable to recover any costs thrown away by the adjournment. [ 26 ] Although the Defendant did not have a lawyer, he did have experience in dealing with lawyers and retained counsel until 2010. He also retained private criminal counsel to deal with the criminal charges set for trial in September 2017.

He was aware on January 13, 2017 about the comments of Justice Bychok that the trial would not be adjourned absent exceptional circumstances, and yet he took no steps to retain civil counsel. He was aware on June 9, 2017 that the trial date had been set and took no steps to retain counsel. Then his financial deteriorated in September, when the CRA took action and effectively ended any possibility of obtaining legal assistance.

He still could have applied for civil legal aid but did not think about making that inquiry. [ 27 ] The Defendant sought an adjournment of one year but was in no position to pay for the costs that would have been thrown away by the Plaintiffs. He also was unable to argue that he would be ready to proceed even if the request was granted. [ 28 ] Finally, the history of this proceeding suggested delay would only exacerbate the current problems. The issues were well defined and primarily consisted of an assessment of damages.

The parties also needed finality so they could get on with their lives. [ 29 ] As a result, I denied the request for the adjournment and proceeded with the trial from October 30 to November 2, 2017. III. TRIAL OF R.N. & R.Q., ASSESSMENT OF DAMAGES OF B.A. & L.Q. A. Overview [ 30 ] The Defendant was unable to pay for the cost of travel from Igloolik to Iqaluit for the trial and the Court arranged for him to participate by conference telephone call throughout the trial. He was sworn, gave evidence and was cross-examined.

He was also given the opportunity to cross-examine the Plaintiffs and to make submissions. [ 31 ] Regel filed a binder of exhibits that had been provided to the Defendant. It included Exhibit A-18, which is a transcript of the evidence of L.Q. and Exhibit A-6, which contains the expert reports of clinical psychologist Dr. Gilles Boulais and psychiatrist Dr. Philip Klassen. Exhibit A-18 also contains Dr. Klassen’s expert report on L.Q. Regel also called evidence from R.Q., R.N. and B.A. Dr. Boulais was briefly examined on his report and the Defendant was given the opportunity to cross-examine but declined.

He also declined to examine Dr. Klassen and the Plaintiffs simply relied on the report. [ 32 ] The Defendant did not defend the actions commenced by B.A. and L.Q. As a result, liability is not in dispute and their evidence is only relevant to the assessment of damages. The Defendant was also served with a Notice to Admit Facts and he did not file a response so those facts are not in dispute. Despite these technicalities, Regel called evidence from three of the Plaintiffs and relied on the transcript of the examination of L.Q. that was relevant to both liability and damages.

The Defendant was given the opportunity to cross-examine these witnesses. [ 33 ] The Defendant also testified and Regel cross-examined him. B. Notice to Admit Facts [ 34 ] Rule 294 of the Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96, states that a party may serve another party with a Notice to Admit Facts. The party that is served with a Notice is required to respond within 30 of being served. If the party fails to respond, the party is deemed to admit the facts stated in the Notice. Since the Defendant did not respond to the Notice, the following facts are admitted.

[ 35 ] The Defendant is a close relative of the Plaintiff R.N. [ 36 ] One day in September 1971, when R.N. was four years old, she went to the Defendant’s residence to see the Defendant’s baby, recently born to the Defendant and his then-wife Louise Haulli. [ 37 ] Louise Haulli and the baby were not at home and R.N. waited at the home for their return. [ 38 ] While R.N. was at the Defendant’s residence, the Defendant sexually assaulted her by either inserting his penis or something else into her vagina. [ 39 ] The sexual assault caused bleeding and injuries and R.N. was treated at the Igloolik nursing station on September 18, 1971. [ 40 ] Although R.N. recovered from her physical injuries, she incurred serious and lasting psychological injuries. [ 41 ] Dr.

Boulais conducted a psychological assessment of R.N. and produced a report that is exhibit A-6. [ 42 ] The Defendant is the biological uncle of the Plaintiff R.Q. [ 43 ] One day in the spring of 1968, when R.Q. was about nine years old, she went to her grandmother’s house to do chores. Her grandmother was not at home and the Defendant was the only person in the house. [ 44 ] The Defendant took R.Q. to a bedroom, removed her clothes and tried to put his penis in her vagina. R.Q. experienced an intense pain in her anus and blacked out. [ 45 ] The next thing R.Q. recalled was being in pain.

She got dressed and the Defendant led her to the door and smiled as she left. [ 46 ] Although R.Q. cannot recall the number of times she experienced multiple similar incidents at her grandmother’s house, the incidents continued until she was 15 or 16 years old. On some occasions the Defendant inserted his penis in her vagina and other times in her anus. [ 47 ] There was one occasion when the Defendant told R.Q. to go to the government office where he worked. When she got there, the Defendant raped her. [ 48 ] The Defendant’s sexual assaults caused R.Q. serious lasting psychological harm. [ 49 ] Dr.

Boulais conducted a psychological assessment of R.Q and produced a report that is exhibit A-6. [ 50 ] The Defendant organized and managed recreational and sporting activities when he was employed as the Recreation Director for the Hamlet of Igloolik. [ 51 ] The Plaintiff B.A. used to do errands and light labour as a volunteer under the Defendant’s supervision during and in preparation for recreational and social events organized and managed at the community hall by the Defendant when he was the Recreation Director. [ 52 ] One day, when B.A. was 10 years old, the Defendant directed him to take some pop to the furnace room.

The Defendant followed B.A. to the furnace room, closed the door and then forced B.A. to perform fellatio on him. [ 53 ] On another occasion, after the first incident, in or around 1980 or 1981, the Defendant directed B.A. to take some pop to the Defendant’s office. Once inside the office, the Defendant again closed the door and forced B.A. to perform fellatio on him. [ 54 ] The Defendant’s sexual assaults caused B.A. serious lasting psychological harm. [ 55 ] Dr.

Klassen conducted a psychiatric assessment of B.A. and produced a report that is exhibit A-6. [ 56 ] The Defendant is the biological uncle to the Plaintiff L.Q.

[57] On an unknown date in or around 1982, when L.Q. was approximately 15 years old, the Defendant took her to the office issued tohim as an employee of the Government of the Northwest Territories. Once inside, the Defendant locked the door, threw L.Q. on the floorand placed his penis in her vagina. [58] Between 1982 and 1986, the Defendant sexually assaulted L.Q. four more times as follows. [59] The Defendant’s girlfriend invited L.Q. to the Defendant’s home in Igloolik to visit, but when L.Q. got there the girlfriend was nothome.

While waiting for his girlfriend, the Defendant forced L.Q. into one of the bedrooms and had sexual intercourse with her. [60] When L.Q. was in Iqaluit for a medical appointment, she met the Defendant and accompanied him to his hotel room. AlthoughL.Q. was menstruating, the Defendant forced her to have sexual intercourse with him. [61] On another occasion, L.Q. was walking with her two sons in Igloolik when the Defendant approached them and offered them a ridein his Jeep. They accepted and the Defendant drove to a tent outside the community.

He sent the children to play and had forcible sexualintercourse with her. [62] When the Plaintiff was pregnant with her daughter, who was born in 1986, she went to rent a movie from the store the Defendantowned and operated. While she was looking at movies to rent, the Defendant approached her from behind and again attempted forciblesexual intercourse but was not successful. [63] The Defendant’s sexual assaults on L.Q. caused her serious psychological harm. [64] Dr.

Klassen conducted a psychiatric assessment of L.Q. and produced a report that is marked as exhibit A-18. [65] All the sexual activity among the Defendant and the Plaintiffs was without actual consent or, if there was consent, it was vitiatedby the Defendant’s position of trust and authority over the Plaintiffs. [66] On September 23, 2008, the Defendant was before the Nunavut Court of Justice on an Information numbered 07-08-11 and enteredguilty pleas to having sexual intercourse with R.Q., who was not his wife and was under the age of 14, and to committing an indecentassault of E.K., who is not a Plaintiff. [67] The presiding Justice convicted the Defendant, suspended the sentence and placed him on probation for a period of 12 months.

C. Testimony of Plaintiffs R.N., R.Q. and B.A. [68] These Plaintiffs confirmed the evidence admitted above and were not shaken in the cross-examination by the Defendant. Each ofthe Plaintiffs recounted incidents that happened to them many years earlier when they were children.

As held in R v SQ, 2007 NUCJ 7,2007 CarswellNun 6, R v W(R) (SCC), [1992] 2 SCR 122, 74 CCC (3d) 134 and R v Takawgak, 2015 NUCJ 7, 2015CarswellNun 5, a Court should adopt a common sense approach in assessing the evidence of adults giving evidence about events thathappened when they were children. [69] The incident that is first in time is that alleged by R.Q. The Defendant pled guilty to sexually assaulting R.Q. when she was nineyears old and the Defendant was 16.

This conviction coupled with the deemed admissions from the Notice to Admit and R.Q.’s evidencein court establish on a balance of probabilities that her claim, as alleged in the Statement of Claim, is proven. [70] Next in time is the allegation of R.N. She was only three or four years old at the time of the sexual assault. The Defendant arguedthat a child of that age could not remember the alleged incident. However, there is no absolute rule of law that the testimony of an adultis unreliable because it concerns events that occurred when the witness was a child. R.N. was interviewed by Dr.

Boulais and he had nodifficulty accepting that her memory was reliable. Dr. Boulais stated at page 5 of his report:

The author assumes the reported sexual assault to be true because of the credibility of the plaintiff’s narrative during the assessment process, the credibility of the circumstances surrounding the discovery/remembering (reported by the subject/client) of the assault and the corroborating evidence of the grandmother’s reported observations of similar assaultive behaviour by the defendant in the family context (also reported by Mrs. [N.]). [ 71 ] The Defendant did not provide any contrary expert evidence and R.N. was not shaken in cross-examination.

The staying of the criminal charges does not detract from R.N.’s credibility and she has the benefit of the deemed admissions in the Notice to Admit. [ 72 ] There is also additional evidence that supports her testimony. The nursing notes made contemporaneously and entered as exhibit A-1 show there was blood in R.N.’s urine. It is a reasonable inference that it was the sexual assault that caused the bleeding. R.N. was in the Defendant’s home in or around 1971 and he resided there when he sexually assaulted R.Q. in 1968 and in 1975, when he sexually assaulted E.K.

There is no evidence that the Defendant was away from the community during these periods. The Defendant is R.N.’s close relative and it is a reasonable inference that he would have had access to her during the material time frame. [ 73 ] R.N. believed the perpetrator was trying to hide his face. Even though the Defendant is her close relative, she could be mistaken. The person was obviously male and was bigger and stronger than R.N. since he could easily overpower R.N. and take her to the bedroom, where he committed the act.

The act took place in the Defendant’s home and only R.N. and the Defendant were in the house. This circumstantial evidence supports R.N’s. belief that it was the Defendant who sexually assaulted her. [ 74 ] There is similar fact evidence that provides further support on the issue of identity. Regel submitted written argument on this issue in paragraphs 56-60 of his trial brief.

As noted in R v Shearing, 2002 SCC 58 , [2002] 3 SCR 33 , the test to be applied is whether the probative value of the evidence outweighs the prejudicial impact. [ 75 ] The Plaintiffs rely on the evidence of each Plaintiff to support their individual claims and the claims of the other Plaintiffs. They also rely on the criminal conviction in relation to E.K., who is not a Plaintiff. [ 76 ] The convictions in relation to R.Q. and E.K. occurred because of a guilty plea and therefore the conduct described is admitted. The facts accepted by the sentencing judge include the following: (

a) the Defendant had a sexual appetite for both male and female persons over a long time span; (

b) the sexual activity with R.Q. took place from 1968 and continued with E.K until 1975 and included the assault on R.N. around 1971. The sexual activity with B.A. occurred in 1980 or 1981 and with L.Q. between 1982 and 1986; (

c) in each case, the victim was younger and presumably incapable of repulsing the advances; (

d) the Defendant was older and more physically mature than each of the Plaintiffs and was in a position of trust or quasi-trust; (

d) all the Plaintiffs were quite young at the time of the first assault. R.N. was four, R.Q. was nine and B.A was 10 or 11. L.Q. was 15 when the first assault occurred. The Defendant was 16 when he assaulted R.Q., 19 when he assaulted R.N., 23 when he assaulted E.K., 28 or 29 when he assaulted B.A. and 34 when he assaulted L.Q.; (

e) each of the Plaintiffs was sexually assaulted in a place where the Defendant was in control of the premises. [ 77 ] There is no prejudicial impact to the evidence because the Defendant pled guilty to the assaults against R.Q. and E.K. He was given credit on his sentencing for admitting the offences to the police and for following up with guilty pleas in court. There is no unfairness to him in using those cases to support a civil suit. [ 78 ] I am satisfied that the similar fact evidence is admissible and supports on a balance of probabilities the conclusion that the Defendant sexually assaulted R.N. D.

Transcript of Evidence of L.Q. [ 79 ] Although the Defendant did not object to the admission of the transcript of the evidence that L.Q. gave before a court reporter,

Regal did provide some written argument to justify its admissibility. He relied on R v Khan (SCC), [1990] 2 SCR 531,59 CCC (3d) 92, and argued that the statement met the requirements of necessity and reliability. The necessity was made out due toL.Q.’s medical condition. She suffers from epilepsy and had come close to death three times, including the incident when L.Q. had aseizure about a year before the examination.

The reliability was made out because L.Q. gave sworn evidence and the Defendant wasgiven an opportunity to cross-examine her. [80] I am satisfied that the Kahn requirements were met and hold that the transcript is admissible as proof of the truth of the statementscontained in it. [81] The statements in the transcript support the admissions made in the Notice to Admit. E. Testimony of Defendant [82] The Defendant testified and was cross-examined by Regel. He admitted to sexually assaulting R.Q. as set out in the Information butdenied all the other allegations.

He also relied on his acquittal on the criminal charges with respect to B.A. and pointed out that there wasa stay of proceedings for a charge in respect of R.N. [83] Regel made major inroads on the Defendant’s testimony and I agree that for the most part the testimony was self-serving andminimizing the Plaintiffs’ evidence. The Defendant testified that R.N. was lying and that she persuaded the other Plaintiffs to lie aboutwhat had happened. He suggested R.N. could do this because she had some kind of control over the other Plaintiffs.

I am satisfied fromtheir demeanor in the witness box that the Plaintiffs were telling the truth. All were embarrassed to be in court about this family secret.R.Q. did not tell her birth mother that she was going to court because she knew that she and other members of the family were mad atthem for starting this litigation. [84] Other indicators that the female Plaintiffs were telling the truth were that they made admissions against their own interest. BothR.Q. and L.Q. acknowledged that, despite the abuse, the Defendant was a good uncle and was also smart and well-groomed.

They alsoacknowledged that some of the emotional damage they suffered was the result of abuse by their father.

They did not blame everythingthat went wrong in their lives on the Defendant and they did not volunteer other negative things about the Defendant. [85] The Defendant testified that he could not remember some of the events about which the female Plaintiffs testified and it leavesopen the possibility that it might have happened as described by the Plaintiffs. [86] The Defendant also admitted that he was now a changed man and admitted that the sexual assault against R.Q. happened becausehe was sexually aroused and she was available.

This leaves open the probability that the same thing occurred with the other Plaintiffs. Inparticular, he admitted that the indecent assault on E.K. took place in the community hall. This is the same place where B.A. alleges thathe was sexually assaulted. Since there was no mention of the community hall in the sentencing transcript for the assault on E.K., B.A.likely obtained that information from his own personal experience. [87] The standard of proof in criminal proceedings is much higher than it is in civil proceedings.

The failure of the Crown to meet thatstandard in the prosecution of the Defendant for the sexual assaults on B.A. does not foreclose the complainant from attempting to meetthe lower civil standard. The criminal court did not have the benefit of similar fact evidence and the outcome of the criminal trial is notconclusive.

The stay of proceedings against R.N. is even less conclusive because there was no determination. [88] The fact that the stay was on the same day as the guilty pleas for the charges against R.Q. and E.K. and there was a jointsubmission for no jail time suggests the stay was entered pursuant to plea discussions. [89] The guilty plea is another matter.

For the plea to be accepted there must be an admission of each essential ingredient of the offence.Such an admission is relevant and in the absence of a good reason to disregard it, the guilty plea is a sufficient basis for finding asestablished the elements of a subsequent civil claim. See RB v ES, 2017 ONSC 7866, 2017 CarswellOnt 248.

[90] In

summary, I am satisfied on a balance of probabilities that the Defendant sexually assaulted the Plaintiffs as alleged in theStatements of Claim and is liable to them under tort law for the damages they suffered. IV. DAMAGES A. General Damages i. General Principles [91] The leading case on the assessment of damages for sexual assault is Blackwater v Plint [2005] 3 SCR 3, 2005 SCC 58 [Plint].

Inthat case, the Supreme Court of Canada declined to interfere with the trial judge’s award of $125,000 for general damages and approvedhis statements on the principles to be applied. [92] The recent case of SL v Prince, 2015 ONSC 7450, 2015 CarswellOnt 19627 [Prince], updated the cases since Plint.

In Prince,Justice Fitzpatrick accepted the Plaintiff’s argument that a $175,000 general damages award was appropriate and at paragraph 26 appliedthe following factors approved in Plint: • the circumstances of the victim at the time of the events, including factors such as age and vulnerability; • the circumstances of the assaults including their number and frequency and how violent, invasive and degrading they were; • the circumstances of the Defendant, including age and whether he or she was in a position of trust; and • the consequences for the victim of the wrongful behaviour including ongoing psychological injuries. [93] Justice Fitzpatrick noted the statement of Justice Cromwell in Nova Scotia (Attorney General) v BMG, 2007 NSCA 120, 288 DLR(4th) 88, that the range for general damages for sexual assault was between $125,000 and $250,000.

In Prince, a priest entered guiltypleas to repeatedly sexually abusing 12 young boys. He denied abusing the Plaintiff but was convicted after a trial. In accepting thePlaintiff’s request for $175,000 in general damages, Justice Fitzpatrick felt that these facts put the award in the upper range. He stated atparagraph 32: The factors approved in Plint suggest that an award closer to the higher end of the range is appropriate in this case. S.L. was only 13years old when these assaults began. His vulnerability was exacerbated by Prince’s status within the community.

Prince was in a positionof trust thanks to this status and the S.L. family’s faith in him. The assaults occurred with some regularity over a number of years. Asemphasized by Dr. Barnes, the assaults have had a devastating impact on S.L.’s personal relationships and his psychologicaldevelopment and well-being. Although such comparisons are unpleasant, it must be noted that the assaults were not as invasive ordegrading as the assaults in some of the cases resulting in damages at the higher end of the range: see Glendinning, and John Doev.O’Dell (2003), (ON SC), 230 D.L.R. (4th) 383 (Ont.

S.C.). [94] In this case, Regel suggests $250,000 for each Plaintiff. [95] In this action, both R.Q. and L.Q. were also sexually abused by their father. As held in Ahmad v Pandher, 2017 BCSC 1732, 2017CarswellBC 2680, Saadati v Moorhead, 2017 SCC 28, [2017] 1 SCR 543, and MB v British Columbia [2003] 2 SCR 477, 2003 SCC 53,causation is still determined according to the “but for” test. However, the Plaintiff is not required to establish that the Defendant’s actionswere the sole cause of the injuries. The tortfeasor must take his victim as the tortfeasor finds them.

He is liable even if other causalfactors for which the Defendant is not responsible result in the victim’s losses being more severe than would be for the average person. ii. R.Q. and R.N. [96] The sexual abuse of R.Q. started when she was nine. In the first incident, the Defendant had vaginal intercourse with R.Q. She feltan intense pain in her anus and blacked out. The Defendant continued to have vaginal and anal intercourse with her until she was 15 or16. The abuse by the Defendant overlapped with abuse by R.Q.’s father, who continued long after the Defendant stopped.

[ 97 ] The sexual abuse of R.N. occurred when she was four years old and was also severe. The Defendant either inserted his penis or some other object into her vagina and R.N. incurred vaginal bleeding and injuries. [ 98 ] Dr.

Boulais stated in his report that the abuse of both R.Q. and R.N. led to a cascade of developmental deficits, including inability to trust, inability to establish satisfying relationships, inability to care for themselves in an effective way, self-destructiveness, chronic emotional distress, inability to regulate emotions, inability to self-soothe, attention deficits related to cognitive deficits and depression, amotivation stemming from depression and multiple failed attempts at schooling, inability to sustain relationships and chronic rage leading to aggressive behaviour. [ 99 ] He diagnosed both Plaintiffs as suffering from PTSD, major depression with suicidal ideation and drug and alcohol addictions. [ 100 ] Dr.

Boulais stated at page 6 that R.Q.’s maladjustment was: in great

part caused by the psychological injuries sustained during childhood, foremost being the assault she reported. The likelihood of the assault by the plaintiff causing significant harm is beyond probable. Most of the psychological evidence points to this psychological injury likely being a major significant factor in her later maladjustment. The assaults by her uncle overlapped those by her father for 2 years. When those by the defendant stopped her father’s continued. [Emphasis original] [ 101 ] He concluded at page 12 that R.Q.: did not get a good start in life.

She had parents who seem to have been rather both harsh, neglectful and abusive with her and her mother failed to protect her from even harsher treatment from an uncle and her father. The severe psychological consequences of the assaults form an older male at such a tender age have created havoc in her life. She cannot maintain relationships without conflict because she is angry and cannot trust. Her inner turmoil has led her to be self- destructive and sometimes socially irresponsible. She has had a problem with substances which betray her rage towards herself and others.

It would seem to the writer that a better quality life could be engendered by compensation for the damage caused and residential treatment in a specialized facility. [ 102 ] Dr. Boulais made similar comments about R.N. and concluded at pages 15-16: This woman did not get a good start in life. She was adopted at an early age by older family members who seem to have been rather both harsh and neglectful with her and failed to protect her from even harsher treatment from a [relative].

The severe psychological consequences of the assault from [a close male relative] at such a tender age have created havoc in her life. She cannot maintain relationships without conflict because she is angry and cannot trust. Her inner turmoil has led her to be self-destructive and sometimes socially irresponsible. She has had two criminal convictions which betray her rage towards herself and others. It would seem to the writer that a better quality life could be engendered by compensation for the damage caused and residential treatment in a specialized facility.

[ 103 ] I am satisfied that both R.Q. and R.N. are at the upper range of the general damage awards and believe the $250,000 award suggested by Regel is reasonable given the rate of inflation since 2007. Since Dr. Boulais opined that R.N.’s maladjustment was in great

part caused by the injuries she suffered in childhood, I am satisfied that the Defendant must take her as he found her and is responsible in law for all of her damages. I award both R.Q. and R.N. general damages of $250,000 each. iii. B.A. and L.Q. [ 104 ] B.A. experienced two incidents of sexual abuse in the form of forced fellatio. Dr.

Klassen described the abuse as: In terms of trauma-specific factors, this gentleman experienced relatively limited duration, but significantly intrusive, trauma, albeit by a perpetrator who, while in a position of trust, was not an individual with whom [B.A] had a substantial relationship. In terms of post- traumatic factors, this gentleman likely had difficulties with support, after the sexual abuse. [ 105 ] Dr. Klassen’s diagnosis was equivocal. He stated: It’s not entirely clear that [B.A.] warrants a formal psychiatric diagnosis.

Given the history offered by [wife S.A.], however, I would wonder whether this gentleman has some symptoms of ‘complex’ PTSD.

In addition to at times experiencing some of the ‘core’ symptoms of PTSD, such individuals who have experienced abuse, or neglect, over a period of time in their earlier years, can also present with some combination of low mood, anxiety, anger, antiauthority sentiment, low self-esteem, substance abuse difficulties, somatic symptoms, and other problems, reflective of difficulties with sense of security and safety that, over a period of time, became woven into their personality, and into their worldview.

It is difficult to be unequivocal about this given the disconnect between the reports of [S.A.], and [B.A.]. [ 106 ] Dr. Klassen felt that, given B.A.’s long-term relationship with his wife, his symptom burden has likely not been severe. However, Dr. Klassen felt some of B.A.’s earlier difficulties with emotional lability, suicidality, substance abuse and aggression were in part due to the sexual abuse. Dr. Klassen also attributed some the difficulties in B.A.’s relationship with his wife to the sexual abuse but could not give a definitive opinion about the impact of abuse on his education.

He felt B.A.’s work history was reasonably good but thought he might have achieved more absent the sexual abuse. He concluded that B.A. could benefit from trauma-focused cognitive behaviour therapy to assist him in his emotional reactivity and anger. [ 107 ] I am satisfied that the abuse suffered by B.A. falls in the middle range and award him $150,000 general damages. [ 108 ] L.Q. was 15 years old in 1982 when she was first sexually assaulted by the Defendant. She was assaulted four more times between that date and 1986. Dr.

Klassen noted that her father started abusing her when she was 13 years old and the sexual assaults continued until she was 24 or 26. The only way she could get away from her father was to leave the community. Her father was ultimately convicted of the sexual assaults and was sentenced to 15 years in jail. The impact of the actions of both the Defendant and her father were a factor in L.Q.’s ultimate condition. These were significant. As Dr.

Klassen stated: [L.Q.] has experienced a significant symptom burden. [L.Q.] presents with a history of low self-esteem, anger and emotional dysregulation, suicidal ideation, mistrust, shame, low mood, panic and anxiety, impersonal sexuality, pain and IBS (now seemingly remitted), and intrusive experiences. In large measure, her symptoms have been symptoms of ‘complex’ post traumatic stress disorder (PTSD).

In the alternative, she could be described as suffering from borderline personality disorder, albeit there’s considerable overlap between these conditions and many would favour the diagnosis of ‘complex’ PTSD, as this diagnosis attributes the symptoms to their origins, rather than to the sufferer. In DSM-5 terms [L.Q.] suffers from an Unspecified Trauma - and Stressor- related Disorder. In addition, [L.Q.] would appear to meet the criteria for dysthymic disorder, defined as essentially chronic, mild, depression; this is a common co-occuring finding in persons suffering from ‘complex’ PTSD.

She also likely meets the criteria for an alcohol use disorder, currently in remission; given that alcohol appears to have had a significant impact on her parenting, to the extent that the CAS were involved, and given that she’s sought treatment, in an ongoing way, for alcohol overuse. [ 109 ] Dr. Klassen noted that it was difficult to determine the extent of the abuse attributable to the Defendant or L.Q.’s father. Dr. Klassen felt her psychiatric disturbance and emotional maladjustment primarily resulted from family of origin issues, with a modest contribution by the Defendant.

Similarly, he felt L.Q.’s difficulty with interpersonal relationships, lack of educational achievement, employment difficulties, parenting issues and sexual function derived mainly from her family of origin and her father’s abuse, with a modest contribution by the Defendant. [ 110 ] Regal argued from R v Sandercock, 1985 ABCA 218 , 22 CCC (3d) 79 , that the Defendant committed five major sexual assaults on

L.Q. and even without expert evidence this Court would be entitled to presume they caused serious longstanding psychological injury to her. At paragraph 16, Justice Kerans stated: The other aspect which creates a major sexual assault is the effect on the victim. Notwithstanding statements in some authorities to the contrary, the tradition is to assume, in the case of a rape for example, that the victim has suffered notable psychological or emotional harm aside entirely from any physical injury. Of course, once this assumption is brought into question, the Crown must prove it.

Nevertheless, harm generally is inferred from the very nature of the assault. This harm includes not just the haunting fear of another attack, the painful struggle with a feeling that somehow the victim is to blame, and the sense of violation or outrage, but also a lingering sense of powerlessness.

What we mean by this last is that, while we all are aware in an intellectual way about the fragility of normal existence, to experience a sudden and real threat to one’s well-being, a threat so intense that one must beg to be spared, tends to destroy that sense of personal security which modern society strives to offer and humanity so obviously wants.

It matters little in this respect whether that threat comes from a robber, a rapist, or any swaggering bully. [ 111 ] I am satisfied that the Defendant’s conduct contributed to L.Q.’s ultimate condition in a material way even though the abuse by her father may have caused more of the damage. The Defendant must take his victim as he found her and is not relieved from liability because she was also sexually abused by her father. [ 112 ] I am satisfied that $250,000 is an appropriate figure for her general damages. B. Special Damages i.

Plaintiff’s Argument [ 113 ] Regel submitted that an award of $350,000 was justified for each of the Plaintiffs for past and future loss of income. He did not retain an economist to support this amount and provided very little evidence to support it except some general statements about the Plaintiffs’ health and employment history. [ 114 ] Regel argued that it is a reasonable inference that, but for the sexual abuse, the Plaintiffs would have earned an additional $20,000 per year from the age of 25 to the age of 60. Some part of the award would be past loss and some part — future loss. This adds up to $700,000.

Since some of the Plaintiffs’ loss was due to other sources and there is no guarantee the Plaintiffs would have obtained more education or better jobs, Regel proposed a 50 per cent reduction to reach the figure of $350,000. ii. Analysis [ 115 ] R.Q. was born in 1968, started working when she was 15 and worked until 2014. Her first job was at the local Co-op store. Then, she worked as an adult educator teaching E-tip programming for 13 years, followed by 20 years working as an interpreter at the health centre. She was earning $90,000 to $92,000 per year when she retired.

R.Q.’s level of earnings seems higher than average for Nunavut. [ 116 ] I am aware from past experience of the type of calculations projected by economists in these types of cases. Without that base of information, I must use some common sense to come up with a reasonable figure. While it is possible she might have achieved a higher level of education and earned more money, I am satisfied R.Q.’s loss of income was minimal. I award her $25,000 for past and future loss of earnings. [ 117 ] R.N. has had a very difficult life. She has had recurring bouts of cancer and the last struggle with it ended in 2002.

She also suffers from a bone disease that limited the kind of work she could do. She quit school in grade 8 and spent nine months at the Fort Saskatchewan Correctional Centre for a weapons offence that included a standoff with the police. While she was in jail, she completed grades 9 and 10. She worked as a swimming pool supervisor for four years and worked as a cashier at the Co-op for four years. She last worked when she was 32. Although she had the potential to obtain a higher education, she would have been limited in the type of employment she could obtain because of her medical problems.

I award her $50,000 for past and future income loss. [ 118 ] Dr. Klassen provided some employment information about L.Q. He obtained her income tax information from the CRA from 1986 to 2014. She averaged $5,386 per year during this period. She was on social assistance from 2001 until 2014 but also earned $1,797 in 2013 and $12,884 in 2014. L.Q. had her first seizure in 2011, when she moved to New Brunswick, but she continued to work until 2017, when she was diagnosed with a serious case of epilepsy that forced her to stop working.

While in New Brunswick, she completed her high school at the Learning Exchange in Saint John.

[119] I am satisfied that L.Q. would have achieved a much higher level of income but for the abuse. She did not achieve the high earninglevels of R.Q. and had potential, as she demonstrated in New Brunswick. However, Dr. Klassen attributed much of her loss of income tothe abuse by her father.

I will attribute 20 per cent of her loss of income to the Defendant and, using the $350,000 figure claimed, Iaward her $70,000 for past and future income loss. [120] B.A. testified that he liked school and attended regularly until he quit in grade 6 because he did not want to be touched by adultsafter he was abused by the Defendant. He was regularly employed throughout his working life. Dr. Klassen obtained his CRA recordsthat show regular employment over a period of 15 years with a peak of $23,896 in 2012. Dr.

Klassen stated that “I would submit basedon CRA records that [B.A.] has been more employed than many, in small communities of Nunavut.” I award him $25,000 for past andfuture loss of income. C. Punitive Damages [121] The Plaintiffs rely on SY v FGC, , 78 BCAC 209 (BC AC), to claim punitive damages of $75,000 for R.N., B.A.and L.Q.

No claim is advanced for R.Q. because the Defendant has already been punished through the criminal justice system. [122] At paragraph 63, the Court of Appeal for British Columbia adopted the principles for the award of punitive damages from Hill vChurch of Scientology of Toronto (SCC), [1995] 2 SCR 1130, 126 DLR (4th) 129: The principles to be applied to an award of punitive damages are set forth in Hill v.

Church of Scientology of Toronto, supra, [sic] at pp.185-186: [196] Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and highhanded thatit offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses itsoutrage at the egregious conduct of the defendant.

They are in the nature of a fine which is meant to act as a deterrent to the defendantand to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in thosecircumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishmentand deterrence. [123] At paragraph 67, the Court of Appeal summarized the trend in punitive damage awards as follows: The range of punitive damages has increased over the years. In Norberg v.

Wynrib supra, judgment June 18, 1992, a case of a doctor-patient sexual relationship, general damages were assessed at $20,000, and punitive damages at $10,000. The minority would haveawarded punitive damages of $25,000, referring to a judgment in Myers v. Haroldson, (SK QB), [1989] 3 WWR 604in which $40,000 was awarded. In M.(

K) v. M.(

H) supra, judgment October 29, 1992, a jury awarded $10,000 in general damages, and$40,000 in punitive damages. That was a case of incest commencing when the child was eight, and continuing until she was 18. TheSupreme Court of Canada thought the punitive damages award to be appropriate. In P.B. v. W.B., supra, judgment in 1992, generaldamages were assessed at $175,000, and punitive damages at $50,000. In S.L.C. v. M.J., supra, a 1996 case, general damages wereassessed at $175,000, and punitive damages at $50,000, even though there had been some criminal proceedings.

In Mustazi v Tjin(1995), 24 C.C.L.T. (2d) 191 (B.C.S.C.) a jury awarded damages for breach of contract of $73,777.58, and punitive damages of$175,000. In that case the plaintiff, who had been employed in Asia as a nanny for the defendants, was brought to Canada and was madeto serve the defendants for three years in what can only be characterized as slavery. The award was upheld on appeal (June 21, 1996,CA019954, Vancouver Registry). It was argued that there was no evidence regarding the ability of the defendants to pay an award ofpunitive damages. The Court held that there was evidence of ability to pay.

In the case at bar the issue was not addressed at trial or onappeal, and I would leave the discussion of the question to another case on another day. [124] I am satisfied that the Defendant’s actions warrant an award of punitive damages. He was in a position of trust and abused thatposition repeatedly over a number of years with the three Plaintiffs. Although the Defendant was not solely responsible for the damagethey suffered, he and others must be deterred from this type of egregious conduct that unfortunately is all too common in this territory.

Iaward punitive damages of $50,000 to each of the Plaintiffs. [125] I award quadruple party-party costs to the Plaintiffs to account for the impact of inflation on the tariff of costs as well as allreasonable disbursements to be taxed before the Clerk of the Court.

Dated at the City of Iqaluit this 18th day of April, 2018 ___________________ Justice E. Johnson Nunavut Court of Justice