The Ontario Court of Appeal recently released the decision in Zando v. Ali, 2018 ONCA 680, which involved an appeal of an assessment of damages in a sexual assault case. This case confirms the principles to be used in determining damages in civil sexual assault cases and is particularly relevant in the current climate of the #MeToo movement.
In this case, the parties were physicians and colleagues at the Sarnia General Hospital. They had initially met after their residency examination in Toronto and became friends. They were both married and had immigrated from Pakistan. After completing their respective training elsewhere, they both ended up practicing medicine at the Sarnia General Hospital.
The respondent alleged that the appellant sexually assaulted her on June 22, 1999 at her house. The appellant had attended her house to complete an insurance medical form. After completing the insurance form, the respondent alleged that the appellant took his clothes off, tripped her to the floor and sexually assaulted her.
The trial judge found that the respondent had been sexually assaulted by the appellant and awarded her general damages of $175,000, punitive damages of $25,000, prejudgment interest of $155,773.97 and costs of $325,000. The appellant conceded liability but appealed the damages award.
In assessing general damages for sexual assault, the Court of Appeal adopted the following principles as described in Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120:
-  First, there is the purpose of non-pecuniary damages in sexual assault and battery cases: “to provide solace for the victim’s pain and suffering and loss of enjoyment of life, to vindicate the victim’s dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts”.
-  Second, the factors for assessing such damages include: (i) the circumstances of the victim at the time of the events, including the victim’s age and vulnerability; (ii) the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were; (iii) the circumstances of the defendant, including age and whether he or she was in a position of trust; and (iv) the consequences for the victim of the wrongful behaviour including ongoing psychological injuries
-  The court must first consider the important characteristics of the case to define the types of cases that should be considered for comparison purposes in establishing an appropriate range, and then select an amount of damages within that range, based on the features of the particular case.
The Court of Appeal found that the trial judge did not err in characterizing the case and identifying the applicable range of damages. The general damages were reasonable in consideration of the severity of the sexual assault and the long-term psychological harm caused including feelings of shame, guilt, humiliation and degradation. The Court of Appeal also affirmed the trial judge’s decision to award punitive damages to denounce, deter and punish the appellant.
If you require legal advice and representation in respect to a case involving sexual harassment or sexual assault, please contact us for an initial consultation.
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