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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)


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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witness shall not be published in any document or broadcast or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.
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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
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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, 2105, 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
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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.
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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
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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;


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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.
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[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
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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.
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[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.
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[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 to him as an
employee of the Government of the Northwest Territories. Once inside,
the Defendant locked the door, threw L.Q. on the floor and 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 not home. 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. Although L.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 ride in his Jeep. They
accepted and the Defendant drove to a tent outside the community. He
sent the children to play and had forcible sexual intercourse 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 Defendant owned and
operated. While she was looking at movies to rent, the Defendant
approached her from behind and again attempted forcible sexual
intercourse but was not successful.

[63] The Defendant’s sexual assaults on L.Q. caused her serious


psychological harm.
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[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 vitiated by 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 entered guilty pleas to
having sexual intercourse with R.Q., who was not his wife and was under
the age of 14, and to committing an indecent assault 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 of the 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) [1992] 2 SCR 122, 74 CCC (3d) 134 and R v Takawgak, 2015
NUCJ 7, 2015 CarswellNun 5, a Court should adopt a common sense
approach in assessing the evidence of adults giving evidence about
events that happened 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 nine years old and the
Defendant was 16. This conviction coupled with the deemed admissions
from the Notice to Admit and R.Q.’s evidence in 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 argued that a child of that
age could not remember the alleged incident. However, there is no
absolute rule of law that the testimony of an adult is unreliable because it
concerns events that occurred when the witness was a child. R.N. was
interviewed by Dr. Boulais and he had no difficulty accepting that her
memory was reliable. Dr. Boulais stated at page 5 of his report:
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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.
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[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
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some written argument to justify its admissibility. He relied on R v Khan


[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 to L.Q.’s medical condition. She suffers from epilepsy and had come
close to death three times, including the incident when L.Q. had a seizure
about a year before the examination. The reliability was made out
because L.Q. gave sworn evidence and the Defendant was given 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 statements contained 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 but denied all the
other allegations. He also relied on his acquittal on the criminal charges
with respect to B.A. and pointed out that there was a 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 and minimizing the
Plaintiffs’ evidence. The Defendant testified that R.N. was lying and that
she persuaded the other Plaintiffs to lie about what had happened. He
suggested R.N. could do this because she had some kind of control over
the other Plaintiffs. I am satisfied from their 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 at them for starting this litigation.

[84] Other indicators that the female Plaintiffs were telling the truth were that
they made admissions against their own interest. Both R.Q. and L.Q.
acknowledged that, despite the abuse, the Defendant was a good uncle
and was also smart and well-groomed. They also acknowledged that
some of the emotional damage they suffered was the result of abuse by
their father. They did not blame everything that went wrong in their lives
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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 leaves open 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 because he was
sexually aroused and she was available. This leaves open the probability
that the same thing occurred with the other Plaintiffs. In particular, he
admitted that the indecent assault on E.K. took place in the community
hall. This is the same place where B.A. alleges that he 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 that standard in the
prosecution of the Defendant for the sexual assaults on B.A. does not
foreclose the complainant from attempting to meet the lower civil
standard. The criminal court did not have the benefit of similar fact
evidence and the outcome of the criminal trial is not conclusive. 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 joint submission 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 as established 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 the Statements of
Claim and is liable to them under tort law for the damages they suffered.
18

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]. In that case, the
Supreme Court of Canada declined to interfere with the trial judge’s award
of $125,000 for general damages and approved his 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 applied the
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 guilty pleas to repeatedly sexually
abusing 12 young boys. He denied abusing the Plaintiff but was convicted
after a trial. In accepting the Plaintiff’s request for $175,000 in general
damages, Justice Fitzpatrick felt that these facts put the award in the
upper range. He stated at paragraph 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 13
years old when these assaults began. His vulnerability was
exacerbated by Prince’s status within the community. Prince was in
a position of trust thanks to this status and the S.L. family’s faith in
him. The assaults occurred with some regularity over a number of
19

years. As emphasized by Dr. Barnes, the assaults have had a


devastating impact on S.L.’s personal relationships and his
psychological development and well-being. Although such
comparisons are unpleasant, it must be noted that the assaults were
not as invasive or degrading as the assaults in some of the cases
resulting in damages at the higher end of the range: see
Glendinning, and John Doe v.O’Dell (2003), 2003 CanLII 64220
(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, 2017 CarswellBC
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 actions were the sole cause of
the injuries. The tortfeasor must take his victim as the tortfeasor finds
them. He is liable even if other causal factors 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 felt an intense pain
in her anus and blacked out. The Defendant continued to have vaginal
and anal intercourse with her until she was 15 or 16. 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.
20

[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 sibling.
21

The severe psychological consequences of the assault from an older


male sibling 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.
22

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
23

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
24

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
25

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 earning levels of
R.Q. and had potential, as she demonstrated in New Brunswick. However,
Dr. Klassen attributed much of her loss of income to the 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, I award 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 adults after he was
abused by the Defendant. He was regularly employed throughout his
working life. Dr. Klassen obtained his CRA records that show regular
employment over a period of 15 years with a peak of $23,896 in 2012. Dr.
Klassen stated that “I would submit based on CRA records that [B.A.] has
been more employed than many, in small communities of Nunavut.” I
award him $25,000 for past and future loss of income.

C. Punitive Damages

[121] The Plaintiffs rely on SY v FGC, 1996 CanLII 6597, 78 BCAC 209 (BC
AC), to claim punitive damages of $75,000 for R.N., B.A. and L.Q. No
26

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 v Church of
Scientology of Toronto [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 that it 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 its
outrage 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 defendant and to others from acting in this manner. It is
important to emphasize that punitive damages should only
be awarded in those circumstances where the combined
award of general and aggravated damages would be
insufficient to achieve the goal of punishment and
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
have awarded punitive damages of $25,000, referring to a judgment
in Myers v. Haroldson, 1989 CanLII 4682 (SK QB), [1989] 3 WWR
604 in 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. The Supreme Court of Canada thought the punitive
damages award to be appropriate. In P.B. v. W.B., supra, judgment
in 1992, general damages were assessed at $175,000, and punitive
damages at $50,000. In S.L.C. v. M.J., supra, a 1996 case, general
damages were assessed at $175,000, and punitive damages at
$50,000, even though there had been some criminal proceedings. In
27

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 made to 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 of
punitive 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 on
appeal, 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 that position
repeatedly over a number of years with the three Plaintiffs. Although the
Defendant was not solely responsible for the damage they suffered, he
and others must be deterred from this type of egregious conduct that
unfortunately is all too common in this territory. I award 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 all reasonable
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

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