Damages Award in the Amount of $200,000 for Sexual Assault Upheld by Ontario Court of Appeal
September 19, 2018
The Ontario Court of Appeal in Zando v Ali, has upheld the trial court’s damages award in a case in which a female physician was sexually assaulted by a male colleague (trial court decision available here).
In this case, the Plaintiff, Dr. Iram Zando, sued the defendant, Dr. Syed Ali, for damages for a single sexual assault that occurred in her home on June 22, 1999. The parties met in 1991 after a residency examination at the University of Toronto, became friends and ended up working together the same hospital. The assault occurred when Dr. Ali went to Dr. Zando’s home on the pretext of an urgent matter regarding the completion of a medical form. While there, Dr. Ali removed his clothing, tripped Dr. Zando, thrust his erect penis into her face, pulled down her pants and penetrated her vagina. Dr. Zando screamed, causing Dr. Ali to roll off of her. As Dr. Zando left the room, she saw Dr. Ali masturbate and ejaculate onto the rug.
General Damages Awarded
The trial judge held that on a balance of probabilities, Dr. Zando had proven that a sexual assault had occurred. She was awarded general damages in the amount of $175,000 and punitive damages in the amount of $25,000. Costs of $325,000 and pre-judgment interest of $155,000 were also awarded as the civil action was plagued with delays in going to trial.
The Defendant appealed the trial judge’s decision on liability and damages, but eventually abandoned the liability appeal and proceeded only with respect to the damages award. The Defendant argued that the range of general damages considered by the trial judge was more appropriate in cases of serious or repeated sexual assaults, including those on children and by persons in positions of trust. The Defendant submitted that this was a single incident involving persons of equal status and there was no evidence of any long-term psychological trauma. The Defendant further argued that punitive damages were unwarranted in this case.
The Court of Appeal Decision
The Court of Appeal rejected these arguments, upholding the trial judge’s award. At paragraph 19 of the decision, the Court of Appeal stated:
Damages for sexual battery or assault are not solely to compensate for physical or mental injuries. They fulfill a range of functions, including “the recognition of the humiliating and degrading nature of the wrongful acts.
The Court rejected the idea that only modest damages should be awarded to survivors of a single incident involving adults. The judgment specifically notes the trial judge’s findings that Dr. Zando had feelings of shame, guilt, humiliation and degradation after the assault, felt she had to bear the suffering on her own as a result of her cultural upbringing and her Muslim faith, and further felt feelings of betrayal and mistrust regarding a colleague who she perceived was attempting to control and sabotage her career.
While previous general damages awards in sexual assault and sexual abuse cases have been lower than in other types of personal injury litigation, this case suggests an important shift towards awards that acknowledge the significant and often long-lasting impact these types of assaults have on individuals.
If you have questions about this case, or about proceeding with a civil claim in a sexual assault matter, the personal injury lawyers at HMC Lawyers can help. We will provide guidance and advice at every step of your matter, and represent you at mediations, hearings, and other legal proceedings throughout. To make an appointment with a member of our team, call 1-800-480-3534 or contact us online. We represent injured individuals in Calgary and across Alberta.