) ) Cassandra Shaw Plaintiff – v. –, 2013 ONSC 3290

CITATION : Shaw v. Staples, 2013 ONSC 3290 COURT FILE NO.: 337/07 DATE: 20130606 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Cassandra Shaw Plaintiff – and – Jason Staples Defendant ) ) ) ) ) ) ) ) ) Jeff Lanctot and Catharine Blastorah, for the Plaintiff Jason Staples noted in default and not present; ) ) ) HEARD: May 15, 16, 17, 21, 22, 27, 28, 29 and 30, 2013, in conjunction with related case, File No. 16/11. GUNSOLUS, j. [ 1 ] The plaintiff, Cassandra Shaw was a 25 year old university student, in the midst of pursuing her education at Trent University.

She was enrolled in a Bachelor of Science programme and had a special interest in Biology. The defendant, Jason Staples, was a store clerk in an independent health food store, located in what is popularly known as “East City” in Peterborough, Ontario. [ 2 ] On November 7 th , 2005, Ms. Shaw was studying for her final exams. She was suffering from a headache and decided to visit the health food store in order to purchase mint tea, which she found sometimes helped to alleviate the effects of her headaches.

The innocent retail excursion quickly became an unforgiveable tragedy. [ 3 ] Jason Staples restrained her at knifepoint, bound her with duct tape, forcibly confining her and committing sexual assault and physical assault upon her. The attack was without warning and most brutal. Ms. Shaw continues to suffer in the result. [ 4 ] Jason Staples was noted in default in this action. He pled guilty on December 20 th , 2007 to the following, amongst other, charges in relation to Cassandra Shaw: kidnapping with intent to confine Ms.

Shaw against her will; aggravated sexual assault; rendering the plaintiff unconscious by choking; carrying a weapon for the purpose of committing a criminal offence; verbally and knowingly uttered a threat to the plaintiff to cause her death. [ 5 ] On February 28, 2008, Jason Staples was found guilty of those charges in the Ontario Superior Court of Justice by Mr. Justice Barry MacDougall. [ 6 ] On May 15 th , 2008, Mr. Justice MacDougall designated Jason Staples a dangerous offender and sentenced him to an indeterminate sentence in penitentiary based upon these and other charges before him.

Issues Before This Court [ 7 ] Ms. Shaw’s claim includes a request for damages for assault and battery, for the intentional infliction of mental suffering together with aggravated and punitive or exemplary damages. [ 8 ] Ms. Shaw also claims non-pecuniary economic loss, including loss of past income and loss of future earning capacity. Cassandra Shaw [ 9 ] Cassandra Shaw was born November 9 th , 1979, and although she is not married, has maintained a long-term relationship with her boyfriend, Curtis Self.

She currently resides in the City of Peterborough with her mother and her one sister. [ 10 ] On November 7 th , 2005, she was studying for examinations in relation to the Bachelor of Science she was pursuing at Trent University. She was then 25 years of age.

[ 11 ] Because she was feeling headachy, she left the apartment that she then shared with her boyfriend in order to walk the couple of blocks to Kelcey’s Nutrition Centre in order to purchase mint tea, which she found sometimes helped her headaches. She had visited the store before, which she described as being “high-end” and welcoming and located amongst a number of other stores and eateries.

The time of day was approximately 5pm. [ 12 ] After finding the tea which she wished to purchase, she approached the cash, where she encountered the sole employee working at the time, whom she later learned to be Jason Staples. He began asking her a number of questions which she found to be rather forward, and eventually he asked her if she could help him. Being an outgoing person, she agreed, set down her tea and held a broom handle against a vent for Mr. Staples. [ 13 ] At that juncture, Mr. Staples absented himself in order to retrieve a hammer. Moments later, he came up behind Ms.

Shaw, brandishing a knife and ordering her to descend stairs into the basement of the retail establishment. She reacted by grabbing his arm, which resulted in a serious cut between her thumb and first finger on her right hand. Although she began screaming and yelling for help, she soon realized that she could not overtake Staples, and he was able to easily pull her down the stairs despite her struggling and resistance. [ 14 ] Once Mr.

Staples had her in the basement, he threw her to the ground and straddled her, choking her while she pleaded with him, trying to understand what was happening and why it was happening. [ 15 ] Ms. Shaw described Mr. Staples as being extremely large such that he easily overwhelmed her. She next recalls hitting her head on the basement floor while she groped for objects she saw around her, hoping to be able to retrieve one in order to hit him and hopefully knock him out. [ 16 ] All the while, Jason Staples was telling her “shut up you bitch, stop screaming. I don’t want to kill you, I just want to rape you.

Don’t make me hurt you more.” She recalls passing out and when she began to revive, she realized that Jason Staples was taping her hands, arms and legs together, eventually putting duct tape over her eyes and mouth. [ 17 ] Staples repeatedly touched her sexually. She recalls fearing that she would vomit and choke, the duct tape having been placed over her mouth. Ms.

Shaw recalls the horrendous events and realization that her fate was completely within Jason Staples’ control. [ 18 ] Jason Staples left her from time to time in order to attend to matters in the retail establishment above, only to return in order to grab and shake and rub her breasts. [ 19 ] Ms. Shaw recalled that many things were going through her head during Mr. Staples’ assault and torment of her, including thoughts about her own family, prisoners of war and the awful realization that Jason Staples had complete control over her. [ 20 ] At some point, Ms.

Shaw became aware that there was another person in the basement with her, who had also been overcome and restrained by Staples. [ 21 ] Over time, he covered them both in garbage bags, top and bottom, duct taping the bags together, leaving holes, which again left her fearing she was going to suffocate and die. [ 22 ] At some point, Staples took them, one by one, and dropped them into a van where she felt the cold metal of the van floor as her head hit the bottom of it. [ 23 ] Staples then took his captives to what Ms.

Shaw later learned to be his home and again recalls being dropped on a cement floor, once again hitting her head. Staples continued to physically and sexually assault her. She described her fear, not knowing her ultimate fate at Staples’ hands. [ 24 ] Based on comments Staples made, she began to fear that he would kill himself and that they would be left alone in the basement, and she feared how long it would be before they were discovered. [ 25 ] At one point, Staples left, saying “I’m going to do it”, which left her with the initial thought that he was going to kill himself.

As events unfolded, and as it turned out, Staples had gone to a telephone booth and called police in order to turn himself in. [ 26 ] Rather than feeling immediate relief upon the arrival of the police, Ms. Shaw recalled the police officers as being large and “in full gear, with large rifles”. To her, they were scary, and yet they were supposed to be “the good guys”. [ 27 ] Ultimately, Ms.

Shaw was taken, along with her fellow victim, to the Peterborough Regional Health Centre, where she received treatment to her hand and where she was treated for her injuries to her neck, throat and back by a doctor and a sexual assault nurse. [ 28 ] Ms. Shaw described her physical injuries, which included the cut to her hand and the bruising to her throat, head, neck and back. She also described the emotional exhaustion and disappointment she felt, as she had always trusted people and thought that people were “generally good”.

As she said, she was “crushed” and she felt that her heart was “broken”, as was her faith in humanity. She described feeling at the time, and for many months thereafter, that her “heart had been weakened”. She began suffering headaches as well as discomfort in her throat and back. She began suffering light sensitivity, tinnitus, and often finds herself unable to focus during conversations. [ 29 ] As a result of these horrendous events, she suffers from anxiety to the extent that she has begun to question the purpose of her life.

She explained that she now feels the need to do something “amazing in her life” and often feels that what she is doing at any given time is “not good enough”. [ 30 ] Ms. Shaw suffers flashbacks and has gone through periods of extreme heightened vigilance and is distrustful of all male

strangers. Her sleep pattern has become disrupted; her relationships have suffered from her mood swings. Overall, she has lost her optimistic, happy view of life. Her energy levels have diminished and she is no longer the independent, strong, capable individual that she once was. [ 31 ] She described, and some of this was clear from her evidence, that she has lost confidence in herself; she is not confident in putting words together and sometimes finds it hard to stay focussed in the moment.

Although she was able to successfully complete her academic career, she has been unable to pursue post-graduate studies that she once thought she would, and she has been unable to achieve the full employment status that she once envisioned for herself. [ 32 ] Ms. Shaw also described the counselling that she initially pursued. She found most helpful the pursuit of yoga and speech- language pathology. She would like to pursue physiotherapy in order to see if there are exercises that would help her deal with the stress in her neck and back, however, has no funds with which to do so.

Lynn Shaw and Candace Shaw [ 33 ] Lynn Shaw is Cassandra Shaw’s mother. Candace Shaw is her sister. As a result of the terrible assault that the plaintiff suffered at the hands of Mr. Staples, these witnesses described Cassandra as not being as open or fun-loving as she once was. They described her as “having no hope for the future” and as sometimes coming across as “flaky and unmotivated” with no definite plans. Curtis Self [ 34 ] Curtis Self has been Ms. Shaw’s boyfriend for a number of years. He described Ms.

Shaw, post-incident, as being traumatised and “emotionally in shambles”, lacking in passion for activities she once pursued and lacking in focus and often left with the ability to only look upon things in a negative light. [ 35 ] Their plans to have a family are pretty much now out of the question, as “she sees no point in bringing another person into a world that she does not see as a happy place anymore”. She now often exhibits an attitude that things “just are not worth it” and she easily becomes angered, flustered and suffers from “high anxiety”. Joanna Sinclair [ 36 ] Ms.

Sinclair, was the owner of “Dreams of Beans” and, at one time, employed Ms. Shaw. She described Ms. Shaw as a caring, reliable and gentle person with a great sense of humour who did not let much “faze her”. Post-incident, she described her as being less able to concentrate and very defensive, especially if a male customer should come too close to her. [ 37 ] She valued Ms. Shaw as an employee so much that she paid Ms. Shaw’s wages for approximately four months post-incident until she was able to return to work again on a part-time basis. Dr. Joanna Hamilton [ 38 ] Dr.

Joanna Hamilton was qualified as a neuropsychologist and gave evidence in relation to Ms. Shaw’s cognitive diagnosis, prognosis and disabilities and provided evidence in relation to the relative permanency of her condition and as to her possible future care needs. [ 39 ] Dr. Hamilton is well-respected in her area of expertise and was of great assistance to the court in understanding the effects that this matter has had on Cassandra Shaw. [ 40 ] She described Ms.

Shaw as an individual with superior intellectual functioning, who demonstrates significant strengths in respect to perceptual organization skills, but who also shows significant weaknesses with respect to her ability to process information. When Dr. Hamilton saw Ms. Shaw, she was not showing signs of post-traumatic stress, however, she was exhibiting moderate depression (dysthymi). Dr. Hamilton believed that this will present a barrier in relation to her academic progress and attaining employment. [ 41 ] Dr.

Hamilton recommended, amongst other things, that she undergo a vocational assessment and undertake ongoing psychological counselling in order to deal with the ongoing impact of the incident upon her. Stephanie Zawalicz-Mowinski [ 42 ] Stephanie Zawalicz-Mowinski is a speech-language pathologist and provided evidence in relation to her assessment of Ms. Shaw’s speech and language functioning, along with treatment and recommendations concerning the future speech-language needs of Ms. Shaw. [ 43 ] Ms.

Shaw was initially seen by this witness and a colleague from June, 2010 until January, 2011 on a weekly basis, when sessions were then reduced to bi-weekly. After April, 2011, Ms. Shaw had completed her undergraduate university degree and had obtained a summer job that would take her out of the area, so that speech-language sessions were put “on hold”. [ 44 ] It was clear from the evidence of this witness that, as a result of the speech-language sessions, Ms. Shaw was able to acquire a

greater ability to focus on and to organize, her academic career. In the result, Ms. Shaw excelled in the final stretch of her academic career, achieving standing on the President’s Honour Role as well as other academic awards. [ 45 ] This witness opined that Ms. Shaw will probably require speech-language intervention throughout her life, specifically in relation to life-changing events that will result in stress. She gave, as examples of such major changes, as a decision to again attend school on a full-time basis, to change employment; to marry; to have children and so on. [ 46 ] Ms.

Zawalicz-Mowinski believes that although Ms. Shaw has made significant gains with respect to planning, goal-setting, organization, time management and self-monitoring, she will continue to have some difficulty in these “executive functions”, and this will likely have a negative impact on her vocational success. [ 47 ] Ms. Zawalicz-Mowinski recommended that Ms. Shaw continue speech-language pathology intervention as needed and that she consult a psychiatrist regarding her anxiety issues, specifically in respect to planning her own future. Robert Lychenko [ 48 ] Mr.

Lychenko was qualified as a vocational consultant in order to provide evidence as to Cassandra Shaw’s vocational aptitudes, interests, ambitions and in relation to her employability and skills as they relate to the labour market and how these have been affected by her injuries and disabilities and provided an opinion as to her future ability to maintain work on a full-time basis. [ 49 ] Mr. Lychenko advised that testing results revealed that Ms. Shaw is a very bright individual who had the capacity to pursue graduate level studies at both the masters and doctoral levels. In his opinion, Ms.

Shaw’s vocational potential has become drastically altered as a result of the events surrounding the sexual assault she suffered. He was of the view that she had become marginalized from an employment perspective. To quote him: “Ms. Shaw suffers disability related to her emotional functioning, and to a lesser degree, her cognitive functioning. Thus, she can be considered multiply handicapped.” In short, he believes that she will be less than competitive in the job market. [ 50 ] This witness confirmed that Ms.

Shaw will need ongoing assistance in order to achieve her full potential, either in the academic world or in relation to employment. Dr. vanReekum [ 51 ] Dr. Robert vanReekum is a psychiatric expert qualified to provide the court with a diagnosis and prognosis as to the psychiatric condition of Cassandra Shaw, including an opinion as to the impairment and handicaps that Ms. Shaw suffers from and to provide areas of consideration for her future treatment. He felt that Ms.

Shaw was subjected to acceleration-deceleration forces directed towards her head and neck when her abductor slammed her head on flooring of both the retail establishment and his van. He suggested that such forces would have potentially put her at risk for suffering a mild Traumatic Brain Injury (mTBI). He also noted that she was at risk for a hypoxic insult to her brain, which could have occurred during Staples’ choking of her.

He opined that Cassandra may have suffered either an mTBI, hypoxic brain insult or both. [ 52 ] He also noted that the incident has produced a number of stresses for Cassandra, including her acute fear of death during the incident itself, and ongoing stresses related to legal issues and the need for assessments that caused a “reliving” of the incident, as well as a number of perceived losses such as reduced quality of life, loss of self-confidence and loss of self-esteem. [ 53 ] Dr. vanReekum suggested that Cassandra had probably developed the following sequelae:

(1) Common post-concussion symptoms of photosensitivity and tinnitus.

(2) Post-Traumatic Stress Disorder, which when he saw her, was at least in partial remission.

(3) Sleep disturbance.

(4) Greatly reduced energy levels.

(5) Probable Major Depressive Episodes or Adjustment Disorder with Depressed Mood.

(6) Generalized Anxiety Disorder

(7) Cognitive impairments which are multi-factorial in origin, with potential contribution from the concussion and/or hypoxic brain insult, sleep disturbance, Major Depressive Episodes and Generalized Anxiety Disorder.

(8) Significant loss of general interest and motivation. [ 54 ] As a result, he described her as being handicapped such that she is probably significantly disadvantaged in the maintenance and pursuit of her usual, expected social roles, such as her academic career; her employment career; relationships; social and leisure functions; and independent living. Finally, he opined that Cassandra’s future role functioning (for example, parenting or contributing to her community generally) may also be adversely affected.

As he noted: “I can’t tell the future and no one can, when it comes to mental health.” However, he pointed out that this was his opinion based upon his examination of Cassandra, his experience, education and research. [ 55 ] Going forward, Dr. vanReekum feels that Cassandra remains at risk for permanent suffering, impairment and handicap.

These include, but are not limited to suicidal behaviours; apathy and cognitive impairments. [56] In the result, Dr. vanReekum suggested that Cassandra’s treatment should include consideration of the following:

(1) A full medical/medical metabolic workup as related to her lack of energy as this may relate to blood sugar levels, iron levels or othercauses;

(2) A sleep study in relation to her complaints of sleep disturbances, lack of restful sleep and interruptions in her sleep pattern;

(3) An assessment in relation to her complaint of tinnitus;

(4) Consideration of a rehabilitation case manager who, over time, could assist Cassandra in pursuing rehabilitation by way of “ongoingperiodic involvement” of a rehabilitation case manager;

(5) A trial of an anti-depressant medication;

(6) Psychotherapeutic interventions which should probably not, at least initially, focus on the incident itself, but rather on her symptomsand/or her future. [57] Dr. vanReekum felt that Ms. Shaw may benefit from, at various points in her life, supportive therapy, cognitive behaviouraltherapy, educational interventions and family therapy. [58] From Dr. vanReekum’s evidence, it became clear that Cassandra Shaw will likely require treatment in the future that mayinclude many of the six components that he felt caregivers should consider.

Future Care and Loss of Past and Future Income [59] The court also received and reviewed the reports of an economist, Douglas Welland and future care consultant, Mary EllenMeyers, in relation to future care costs. Applicable Law and Analysis Liability of Jason Staples [60] Jason Staples committed the intentional tort of sexual assault on Cassandra Shaw, amongst other things. Such a tort is knownas battery, which is the intentional infliction of unlawful force on another person.

It is actionable without proof of damage and theconsequential liability is not limited to foreseeable damage.[1] [61] Staples is also liable as a result of the provisions of the Victim’s Bill of Rights[2] since he was convicted of the crime and istherefore liable in damages to Ms. Shaw for emotional distress, bodily harm resulting from the stress and arising from the actualcommission of the crimes that he committed against Ms. Shaw. Further, by

section 3.2, as a victim of sexual assault, Ms. Shaw ispresumed to have suffered emotional distress. [62] Jason Staples pled guilty to sexual assault amongst other crimes in relation to Ms. Shaw before Mr.

Justice Barry MacDougall on December 20th, 2007 and he was found in the result to be a dangerous offender by Justice MacDougall on May 15th, 2008. [63] Rules 19.02 and 19.06 of the Rules of Civil Procedure[3] apply such that Jason Staples, being a defendant noted in default, isdeemed to admit the truth of all allegations of fact made in the statement of claim filed in this matter as against him. [64] Paragraphs 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 of the Statementof Claim set out the facts upon which Ms.

Shaw is entitled to judgment as against Jason Staples. The evidence that the court heard alsoentitles Cassandra Shaw to judgment against Jason Staples. Damages [65] In B.M.G. v. Nova Scotia (Attorney General),2007 NSCA 120 , [2007] N.S.J. No. 506 (NSCA), Justice Cromwellsuggested taking a functional approach to the assessment of non-pecuniary damages in cases of sexual battery.

The objectives ofproviding solace for the victim, to vindicate the victim’s physical autonomy and dignity, through an award of aggravated damages,account for the humiliation and degradation caused by the defendant’s conduct. [66] Using this functional approach, damages are intended to cover a single loss, that being the plaintiff’s overall psychologicalcondition and the consequent need for solace. These non-pecuniary damages are typically covered by a global sum.[4] Such damagesnow include distress from psychological illness and common feelings such as anxiety, frustration and so on.

Such anxiety anddepression are at the core of such suffering, whether it is due to cancer or trauma.[5] [67] In determining damages to reflect the victim’s dignity, personal automony and pain and suffering, a number of factors must beconsidered, including but not limited to: (

a) The age and vulnerability of the victim;

(

b) The frequency, level of violence, invasiveness and degradation of the assault; (

c) The consequences for the victim of the wrongful behaviour, including ongoing psychological injuries. [6] [ 68 ] Ms. Shaw was abducted, physically and sexually assaulted and held by Mr. Staples for at least 7 hours. He repeatedly groped her. He inserted his penis in her mouth. She was bound and gagged, believing that her fate was completely and utterly at Mr. Staples’ mercy. She had innocently entered the retail establishment that Mr. Staples worked in and was attacked on a completely unprovoked basis. [ 69 ] Ms.

Shaw continues to suffer anxiety and depression and her cognitive abilities have been compromised such that she is currently unable to pursue a full-time academic or employment career. Her relationship with her sisters and mother and boyfriend of long-term standing have been negatively affected. She and her boyfriend are no longer looking forward to raising a family. [ 70 ] Ms.

Shaw remains overly vigilant and is far-less outgoing and no longer pursues social activity or the art that she once loved. [ 71 ] Witnesses have diagnosed her as suffering from post-traumatic stress disorder, depression, mild brain injury, all of which have negatively impacted her social and family relationships; the intimate relationship she attempts to enjoy with her boyfriend of longstanding; the ability to pursue and obtain employment and to achieve the level of academic education that she once thought she would.

She has benefitted from speech-language intervention and will continue to need such intervention throughout her life. Although reluctant to do so, she clearly could benefit from psychological counselling.

It would appear that it is to be expected that the effects of the assault committed by Jason Staples upon her, will be with her for the rest of her life. [ 72 ] A review of the case law indicates a range of anywhere from as low as $25,000 to an amount above $300,000 for damages applicable to a case such as this one. [ 73 ] It is open to the court to consider, in addition to a general award of damages, aggravated damages, which are meant to augment the assessment of general damages, by taking into account any aggravating features. [7] Determination of General Damages including Aggravated Damages [ 74 ] This is a case of abduction and sexual abuse that occurred over a period of time in excess of seven hours.

The plaintiff innocently entered a retail establishment and was viciously physically and sexually attacked. The evidence indicates that she will never be as she was pre-incident. The prognosis is such that her attempts to re-enter the academic world and the world of employment will be adversely affected in that she may only be able to achieve work on a part-time status and will require ongoing intervention. Her family relationships and her relationship with her long-time boyfriend are no longer the close, loving relationships that she once enjoyed.

She continues to have a negative outlook on life and suffers ongoing depression. She did nothing to attract the attention of Jason Staples and continues to have, hanging over her, the question of why this happened to her. [ 75 ] I order General Damages in the amount of $225,000, which includes $75,000 representing Aggravated Damages, arising out of Ms. Shaw’s personal violation, distress and humiliation as appropriate in this case.

Punitive Damages [ 76 ] While punitive damages are only ordered in exceptional cases, they are intended to go beyond compensatory damages with the intention to punish the wrongdoer. [ 77 ] Justice Binney, in Whitten v. Pilot Insurance Company [8] describes punitive damages as designed to meet the objectives of punishment, deterrence and denunciation outside the realm of compensation. [ 78 ] Punitive damages are generally imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible conduct that departs, from a marked degree, from the ordinary standards of behaviour.

A quantum of punitive damages should be awarded in an amount reasonably proportionate to such factors as the harm caused, the degree of misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant. Punitive damages should generally be given only where the misconduct would otherwise be unpunished, or other penalties are or are likely to be, inadequate to achieve the objections of retribution, deterrence and denunciation.

While they are not intended to compensate the plaintiff, they are intended to defer the defendant or others from similar misconduct in the future and to reflect the community’s collective denunciation of such activity. [ 79 ] Considering these and in particular the eleven criteria set out by Justice Binney in Whitten at paragraph 94 [9] , I believe in this case, punitive damages should be ordered. Jason Staples’ behaviour was vicious, cruel and inflicted upon the plaintiff, who was a total stranger. The attack was unprovoked.

In the circumstances of a young student innocently entering into a retail establishment in order to buy a small item, to be viciously physically and sexually assaulted, is conduct that markedly departs from ordinary standards of decent behaviour and that society, not only collectively condemns but expects to be responded to in such a way by our courts, to deter a defendant such as Jason Staples and others from similar conduct in the future. [ 80 ] Jason Staples’ actions were reprehensible.

Cassandra Shaw’s person and self-worth reflect compensatory damages insufficient to accomplish the objective of punishment in this case. The sum of $75,000 shall be so ordered. Past Loss of Income and Future Loss of Income

[ 81 ] In considering the awards under this category, the award may cover not only all injuries actually suffered and disabilities proved as of the date of this trial, but also the “risk or likely” future developments attributable to such injuries. A plaintiff is not required to prove on a balance of probabilities, the probability of future damage, but rather may be compensated, if they prove in accordance with the degree of proof required in civil matters, that there is a possibility or a danger of some adverse future development. [10] [ 82 ] The evidence of Dr.

Joanna Hamilton, Stephanie Zawalicz-Mowinski, Robert Lychenko and Dr. vanReekum, have satisfied me that Cassandra Shaw’s ability to earn future income will, in all likelihood, suffer as a result of the injuries that she sustained at the hands of Jason Staples. [ 83 ] I also had the report of Douglas Welland with his best estimates as to the past lost income and future loss of income that Ms. Shaw will in all likelihood suffer.

Having regard to the evidence provided to me, I find an award of $27,957.00 for past lost income and $800,000 for future lost income would be appropriate in the circumstances of this case. [ 84 ] The evidence is such that it is doubtful that Ms. Shaw will ever be in a position to achieve, on a regular basis, full-time income. Her academic career was interrupted such that she has not pursued the post-graduate education that she was not only capable of, but which she had expected to pursue, before the incident.

It is clear that her pursuit of continuing education and full-time employment have not only been delayed, but her ability to earn the income that she might have, has been reduced, probably for her entire productive lifetime. Future Therapy and Care Costs [ 85 ] The evidence of Dr. vanReekum, Dr. Joanna Hamilton, Stephanie Zawalicz-Mowinski, Robert Lychenko and Mary Ellen Meyers prescribed a number of therapies, including but not limited to: speech-language pathology, individual counselling, assessments and re-assessments, as well as specific counselling to assist Ms.

Shaw through major changes in her life that will cause high anxiety that she will need to address. It is very difficult, based on the evidence, to conclude which of these therapies Cassandra Shaw is likely to pursue. However, having considered the evidence and the present values of the costs of such future care items as provided to me be the Welland report, I fix these costs in the amount of $125,000. Costs [ 86 ] In matters of this nature, I believe that the appropriate level of cost indemnification would be on a substantial indemnity basis. Ms.

Shaw is the victim of the intentional acts of Jason Staples, and the costs of the litigation should be borne by Jason Staples. I have reviewed the bill of costs presented to me to reflect an hourly rate for counsel over the life of this litigation to vary between $275 to $375. Counsel for Ms. Shaw indicated that when the action started, his billing rate was $275 per hour and is now at the rate of $375. As suggested by counsel, I am going to provide substantial indemnity compensation in the amount of $128,000, (which reflects the change in hourly rates) together with disbursements of $25,000, plus applicable GST.

Summary [ 87 ] Judgment shall issue requiring that Jason Staples pay to the plaintiff damages for: (

a) Non-pecuniary, general and aggravated damages in the amount of $225,000; (

b) Punitive damages in the amount of $75,000; (

c) Past Loss of Income of $27,957; (

d) Future Loss of Income in the amount of $800,000; (

e) Future Care and Therapy Costs in the amount of $125,000 (

f) Costs in the amount of $128,000, plus applicable GST; (

g) Disbursements of $25,000, plus applicable GST; [ 88 ] Pre-judgment interest shall be payable at a rate of 5% per annum on the general damages. Pre-judgment interest on the past- income loss shall be payable at the rate of 4.8%, commencing the 5 th of November, 2007. Post-judgment interest will also apply. Conclusion [ 89 ] It is to be hoped that this judgment will allow Cassandra Shaw to move on with her life. I think it is important that Ms. Shaw understand that the court heard her and the suffering that she was subjected to at the hands of Jason Staples.

It is difficult to believe that good can come from such an evil event, however, Ms. Shaw presented herself as being an articulate and intelligent person, but whose self-esteem and very “self” have been damaged. She, with the assistance of counselling, and in particular, speech-language pathology, has begun to shake off the effects of this terrible event upon her life. She clearly can accomplish much as she proved, by making the President’s Honour Roll when she graduated from Trent University with her Bachelor of Science degree. Having watched Ms. Shaw as

she bravely provided her evidence in difficult circumstances, there is no doubt in my mind that Cassandra Shaw has the ability to continue an academic career and/or to attain much success in the working world. She is a strong and resilient person, who can and will rise above the awful events of November 7, 2005. [ 90 ] Counsel who undertake this type of action on behalf of victims, are to be commended. These matters are emotionally charged and, ultimately, may be undertaken without actual compensation.

This matter initially involved other defendants; however, that aspect of this litigation was resolved either before the commencement of trial or mid-trial. The plaintiff in this case was indeed fortunate to have counsel who was prepared to pursue this matter on her behalf with much zeal, professionalism and compassion. “Mr. Justice D.S. Gunsolus” Released: June 6 th , 2013 CITATION : Shaw v. Staples, 2013 ONSC 3290 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Cassandra Shaw Plaintiff – and – Jason Staples Defendant JUDGMENT GUNSOLUS, J. Released: June 6, 2013 [2] See: Victim’s Bill of Rights , 1995, S.O. 1995 c.6 .

section 3.1