Law Times

Page 10 August 20, 2018 • LAw times www.lawtimesnews.com Case plagued by delays Sexual assault victim awarded $200,000 in civil action BY SHANNON KARI For Law Times T he Ontario Court of Appeal has rejected the notion that general damages for a sexual assault victim should be rela- tively modest if it is a single in- cident involving adults and no breach of trust. An award of $200,000, which included $175,000 in general damages and $25,000 in punitive damages, was upheld earlier his month in a case where a female doctor was sexually assaulted by a male colleague at a hospital in southwestern Ontario. Costs of $325,000 and pre- judgment interest of $155,000 were also awarded to the plaintiff in a civil action that was plagued with delays in going to trial. "Damages for sexual battery or assault are not solely to com- pensate for physical or mental injuries. They fulfill a range of functions, including the recog- nition of the humiliating and degrading nature of the wrong- ful acts," wrote Justice Katherine van Rensburg in Zando v. Ali, with justices Alexandra Hoy and Gladys Pardu concurring. The Court of Appeal, in its ruling issued Aug. 7, found that Superior Court Justice Jo- hanne Morissette awarded non- pecuniary damages that were in the appropriate range based on past case law in this area and, as a result, there was no error in principle. What was not determined by the appeal court is whether this established "range" should be re- visited in civil cases where there has been a finding of sexual as- sault. Amandeep Dhillon, who acted for the plaintiff, says this is an issue that courts should re- consider. "For too long we have under- appreciated the impact of this type of an attack on an indi- vidual. We are starting to move toward acknowledging that the past [damages] standards are unacceptable," says Dhillon, a partner at Kramer Simaan Dhil- lon LLP in Toronto. The plaintiff, Dr. Iram Zan- do, and the defendant, Dr. Syed Nasir Ali, are both originally from Pakistan and were friends and colleagues at Sarnia General Hospital. The litigation stems from an incident in July 1999, when Ali went to the home of Zando be- cause of what he said was an ur- gent matter. While there, he was alleged to have taken off his clothes, tripped Zando, thrust his penis into her face, pulled down her pants and penetrated her. After she screamed, he rolled off her, then masturbated and ejaculated into a rug. The incident was reported by the complainant to Sarnia po- lice in 2004 after Ali denied the sexual assault during examina- tions for discovery in the civil action. DNA evidence from the rug that was tested privately matched up with that of Ali, the court heard. The case was not heard until October 2016 and Zando re- placed her initial counsel with Dhillon and Jaclyn McNamara for the trial. Morissette heard from sev- eral witnesses during the 12-day trial. "I am satisfied that Dr. Zan- do has proved on a balance of probabilities a sexual assault occurred," stated the Superior Court judge in her April 2017 ruling. "Her pride and dignity and sense of self-worth were at- tacked. She felt like he treated her like a prostitute in her own home," said the judge. "The fact is that Dr. Ali has not had to atone for his actions since 1999. He has continued to practise medicine and live in Sarnia without consequence for the sexual assault he commit- ted," explained Morissette about the decision to award punitive damages. Ali ultimately appealed only the damages award and not li- ability. His lawyer on appeal, John Adair, argued that the appropri- ate general damages would be between $20,000 and $50,000 since it was a single incident that involved "persons of equal status" and no evidence of long- term psychological trauma. Adair, a partner at Adair Gold- blatt Bieber LLP in Toronto, declined comment about the Court of Appeal decision. In her ruling, Morissette agreed that a single incident would result in damages at "the lower end of the spectrum," but she found the appropriate range to be between $144,000 and $290,000. The Superior Court judge also concluded that the com- plainant felt "she had to bear this FOCUS Amandeep Dhillon says people have 'underappreciated' the effect of sexual assault on a victim. See Sexual, page 12 Well-known condominium authority Audrey Loeb brings you up to date on all the opportunities and challenges of the Condominium Act, 1998, as well as other complex issues arising in condominium law. 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