2013 ONSC 2584, 2013 ONSC 2584

CITATION : Sorrenti v. Blair, 2013 ONSC 2584 COURT FILE NO.: 7181/12 DATE: 2013/05/08 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Joanne Sorrenti (Plaintiff) - and - Gordon Grant Blair (Defendant) BEFORE: Justice H. A. Rady COUNSEL: Norman A. Pizzale, for the Plaintiff Gordon Blair, noted in default and not appearing HEARD: April 26, 2013 ENDORSEMENT Introduction [ 1 ] This claim proceeded as an uncontested assessment of damages. The parties were husband and wife. On October 16, 2010, the defendant assaulted the plaintiff, fracturing her right arm, leaving her with physical limitations that persist today.

This assault was the last in a history of physical and verbal abuse that spanned ten years. As a result of the most recent incident, the defendant was charged and convicted of assault. He is subject to a non-association order pursuant to the terms of his probation and a restraining order in a pending family law proceeding. The plaintiff is very concerned that the defendant has breached those orders. [ 2 ] The couple is now divorced but some family law issues remain outstanding in the Unified Family Court. A trial date has not yet been secured.

I understand that the defendant purchased the plaintiff’s interest in the matrimonial home for slightly less than her share of the equity. [ 3 ] This claim was originally advanced in the matrimonial proceeding. Over Mr. Pizzale’s objection, it was severed by a judge of the Unified Family Court and remitted to this court for adjudication. Mr. Blair was (and continues to be) represented in the matrimonial action. His counsel was made aware of this hearing by Mr. Pizzale. Whether he filed an answer to this claim as originally pleaded in the context of the family law proceedings is not clear to me.

However, he has filed no defence to this claim and has been noted in default. The Claim [ 4 ] The plaintiff seeks damages under the following heads of relief: 1. general damages $50,000.00 2. aggravated damages $20,000.00 3. punitive damages $20,000.00 4. special damages $25,828.78 5. OHIP subrogated claim $ 8,726.73 6. prejudgment interest 7. costs The Evidence [ 5 ] In support of her claim, Ms. Sorrenti filed an affidavit outlining the history of abuse, her injuries and their lasting effect.

She also set out the particulars of her claim for special damages which includes the cost of travelling for medical appointments and physiotherapy and associated parking; the cost of alternate living arrangements following separation during which Ms. Sorrenti continued to pay for half of the mortgage and taxes and some of the utilities; and the estimated cost of hotels and motels where she took

refuge during the marriage, estimated to be as many as thirty times per year for the last seven years plus return taxi fare. [6] As already noted, this claim was undefended and as a result, the evidence is uncontroverted. The Law [7] I am assisted by the thorough discussion of the relevant case law in the recent decision of Pazaratz J. in Constantini v.Constantini, 2013 ONSC 1626 (S.C.J.). [8] I begin by repeating the observation that this claim was originally advanced in the family law proceeding.

Compensation fortortious behaviour that took place during the marital relationship can be advanced in family law proceedings. [9] In fact, to quote from Constantini, “it is preferable that all potential claims arising from the breakdown of a relationship –including tort claims – be dealt with at the same time. A consolidated action has the advantage of saving litigation costs and court time;ensuring consistency in the outcomes; and allowing a tort judgment to be factored into the overall financial result. A.(I.) v. S.(R.H.) (2000), (ON SC), 5 R.F.L. (5th) 1 (Ont. S.C.J.); Cunningham v.

Cunningham 2013 ONSC 282 (Ont. S.C.J.).” [10] To this I would add that it is easier to assess proportionality when the court has all of the relevant information available in theone proceeding. I am concerned as well about a multiplicity of proceedings and the attendant expense. The plaintiff was obliged toissue a statement of claim in this court, and if it had been defended, the usual procedures set out in the Rules of Civil Procedure wouldfollow.

I recognize that the Unified Family Court ordered that the “costs associated with the issuance of the statement of claim arehereby waived.” Presumably, that order refers to the filing fee but not the legal fees associated with the drafting of the claim. [11] On the merits of the claim, in Shaw v. Brunelle, 2012 ONSC 590 (S.C.J.), Justice Blishen dealt with a similar claim arisingfrom a similar injury.

Her analysis is instructive and is reproduced as follows: A person who ‘intentionally causes a harmful or offensive contact with another person is liable for battery’: see Linden and Feldthusen, Canada Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), p. 44, ‘A battery may occur even when no harm isintended. The only intention required is that of making contact.’ In Canadian Tort Law, the authors provide the following definition of assault at pp. 46-47: Assault is the intentional creation of the apprehension of imminent harmful or offensive contact.

The tort of assault provides protectionfor the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is madeapprehensive or immediate physical contact, even though that contact never actually occurs. The underlying policy of the tort of assault,like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way ascausing harm, it must also be discouraged by tort law. Assault should be distinguished from battery, although the two are often blurred together and called ‘assault’.

This does not usuallymatter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tendsto be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery canoccur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someonefrom behind, without his or her knowledge, is a battery but not an assault. Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault.

In this case both parties blurred the torts of assault and battery and used the term ‘assault’ throughout. I do not find this asignificant problem. The essence of Ms. Brunelle’s argument is that Mr. Shaw intentionally physically ejected her from the home,causing her to break her right wrist. Therefore, “battery” is the more accurate description of what is alleged. [12] After finding the husband had committed the intentional tort of battery causing the wife’s injuries, Her Honour referred toseveral appellate decisions dealing with the assessment of damages.

She observed: The Supreme Court of Canada in discussing the issue of general damages and the cap on those damages makes the followingcomments in Andrews v. Grand & Toy Alberta Ltd., (SCC), [1978] 2 S.C.R. 229 (S.C.C.), as follows: ... The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. Theaward must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary orconventional.

No money can provide true restitution... [13] At paragraph 109, she went on to discuss the approach to be taken to aggravated damages: In Norberg v. Wynrib, (SCC), [1992] 2 S.C.R. 226, the Supreme Court of Canada indicated aggravated damagesare not awarded in addition to general damages but general damages are assessed ‘taking into account any aggravating features of thecase and to that extent increasing the amount awarded.’ Further, in a more recent decision of the Ontario Court of Appeal in Weingerl v. Seo (2005), (ON CA), 199 O.A.C. 172, 256 D.L.R. (4th) 1 (Ont.

C.A.), the Court noted the following at paras. 69-70: General non-pecuniary damage should be assessed after taking into account any aggravating features of the defendant’s conduct.The court may separately identify the aggravated damages, however, in principle they are not to be assessed separately. The purpose ofaggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive, and malicious aspects of thedefendant’s conduct which aggravate the plaintiff’s suffering.

In cases of negligence, aggravating factors can also be taken into accountwhere the defendant’s conduct recklessly disregards the plaintiff’s right. The following are aggravating factors which should be taken into account to determine whether non-pecuniary damages should

be increased: humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim, and post-incident conduct which aggravates the harm to the victim. [ 14 ] At paragraph 113, she distinguished between punitive and aggravated damages in the following way: Aggravated and punitive damages are fundamentally different. As explained by the Supreme Court of Canada in Norberg v. Wynrib , supra , general damages are assessed taking into account any aggravating features of the case and must be distinguished from punitive or exemplary damages.

The Court states at para. 54: ‘The latter are awarded to punish the defendant and to make an example of him or her in order to deter others from committing the same tort.’ The Court goes on to indicate: ‘Although aggravated damages will frequently cover conduct which could be also the subject of punitive damages, as I noted, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate.’ I have already considered the aggravating factors in this case in assessing general damages. Although reprehensible, I do not find Mr.

Shaw’s conduct, though extreme, to warrant an award of punitive damages in order to punish him and deter him and others from committing a similar act. Therefore, I will not order punitive damages. Analysis [ 15 ] With that foundation, I will deal with the plaintiff’s claim. There is no question that the defendant caused serious injury to the plaintiff, namely a spiral fracture of her dominant arm. There is ample supporting medical evidence that corroborates the plaintiff’s evidence. She underwent surgery to reduce the fracture and required the insertion of a plate and screws. Mr.

Blair also pleaded guilty to the criminal charge against him, which is sufficient evidence that he was the perpetrator of this violence. [ 16 ] Ms. Sorrenti has been left with a number of residual deficits that continue to bother her. She has undergone intensive physiotherapy – some 200 sessions over the course of 20 months. She has a diminished range of motion and has difficulty performing certain activities that require grip strength or endurance. [ 17 ] This was a domestic assault and the culmination of many years of abuse. There is evidence that Mr.

Blair is in breach of his court ordered non-association orders, causing Ms. Sorrenti to fear for her safety. [ 18 ] The range of damages for a serious orthopaedic injury such as this is $50,000 to $60,000. Taking into consideration the above noted aggravating factors in assessing general damages (as required by Weingerl , supra .) I would assess Ms. Sorrenti’s general damages to be $75,000. [ 19 ] Punitive damages are a more difficult issue to assess. They have a separate and distinct purpose, as discussed in Norberg , supra , namely to punish rather than compensate. Mr.

Blair did plead guilty to the assault charge and was sentenced. However, I do not know the details of his sentence except that there was a term of probation. There may have been other consequences, such as a custodial term of some description, whether conventional or by way of a conditional sentence. Further, I do not know what submissions were made on sentencing or whether Mr. Blair expressed remorse for his behaviour. [ 20 ] Obviously, spousal abuse is of grave concern to the court and is to be denounced in no uncertain terms.

However, given the lack of information about the sentencing process, I am unable to assess proportionality. As a result, I decline to award punitive damages. [ 21 ] The special damages are a source of some concern because there is no supporting documentation. Ms. Sorrenti deposes that during her marriage, she was obliged to seek shelter at hotels or motels as many as 30 times per year. She claims for 20 times yearly after 2003 until separation. She also requests reimbursement for taxi costs.

The other claims are for transportation and parking costs, the cost of alternate living arrangements and the cost of obtaining medical reports. [ 22 ] While I completely understand why the plaintiff has no record of her expenses, I remain concerned that part of the claim is an estimate only. Accordingly, I would reduce the claim somewhat and allow the sum of $20,000 for special damages. [ 23 ] The OHIP claim is assessed as presented at $8,726.73. [ 24 ] The plaintiff shall have her costs fixed at $7,400 as well as prejudgment interest. “Justice H. A. Rady” Justice H. A. Rady Date: May 08, 2013