On August 20, 2018, in a landmark judgement, the Ontario Court of Appeal upheld that no breach of trust is not a reason for modest damages in a sexual assault lawsuit.
In this case, Zando Vs Ali, a male doctor sexually assaulted a female colleague. A total of $200,000 was awarded to the plaintiff which included $25,000 in punitive damages and $175,000 in general damages. Pre-judgement interest and legal costs amounting to $480,000 were also ordered payable to the plaintiff due to significant delays in going to trial.
Justice Katherine va Rensburg held that the sexual battery charges are awarded for not only mental or physical injuries but also for the degrading and humiliating nature of the wrongful acts. The Court of Appeal also found that the pecuniary damages awarded by the Superior Court of Justice were as per principle but should be re-evaluated in civil lawsuits in the nature of sexual assault.
In this case, the plaintiff, Dr Zando and the defendant Dr Ali were colleagues at Sarnia General Hospital. Dr Ali forcefully penetrated Dr Zando at her home in July 1999. Dr Ali had apparently gone to Dr Zando’s house under the guise of an urgent official matter.
The incident was first reported to Sarnia Police in 2004 where the initial investigations confirmed the DNA evidence implicated Dr Ali. The case went to trial in October 2016 after the initial counsel was replaced.
The sexual assault was confirmed on a balance of probabilities where the judge ruled that the plaintiff’s sense of dignity and pride was attacked. Dr Ali appealed and argued that it was a single incident involving persons of equal status and that no long-term psychological trauma had been noticed in Dr Zando post the incident.
Cultural background was also considered as a factor in assessing damages in the lawsuit. It was also noted the plaintiff did not feel comfortable in making the incident public.
The awards in sexual assault cases for ‘pain and suffering’ have typically been much lower than other personal injury cases. The Court of Appeal noted that the morally reprehensible incident met the punitive damages standard and the harms of the sexual abuse was reflected in the damages awarded.
