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Appeal by the defendant from a jury award of damages for sexual abuse. The jury awarded general and aggravated damages of $250,000, loss of income of $280,000, treatment expenses of $5,000, and punitive damages of $15,000.
The respondent was sexually abused as a child by a now deceased priest on one occasion. The impact on the respondent led to difficulties in family relationships and alcoholism. The respondent attended treatment of alcoholism in 1988. The notes of the hospital employees disclosed that the respondent did not attribute his alcohol use to childhood sexual abuse.
The respondent’s academic records included comments and observations about positive academic results after the abuse. The documents had been tendered under the common law rule. The trial judge found that the hospital chart and the comments of teachers in the respondent’s academic records were inadmissible hearsay. The trial judge agreed that the failure of the appellant to admit liability until the morning of trial would be put to the jury under the category of punitive damages. The appellant’s counsel raised concerns about some of the respondent’s counsel’s comments during his closing submissions to the jury indicating that the jury should identify with the victim as an 11-year-old, asking the jury to do the right thing, referencing facts without an evidentiary basis and suggesting the defendant knew the priest was a problem priest.

HELD: Appeal allowed in part. The award for punitive damages was set aside. The trial judge did not err in the hearsay ruling. The hospital records did not fall within the personal knowledge of the author and thus could not be admitted for the truth of their contents. The school records were properly characterized by the trial judge as opinion and thus inadmissible. The appellant was not precluded from using the records for impeachment purposes in cross-examination yet chose not to do so. The comments made by the respondent’s counsel to the jury did not amount to a miscarriage of justice. The comments could not be considered apart from the judge’s charge. The trial judge fully and fairly reviewed the expert evidence for the jury and properly instructed the jury. The trial judge was in the best position to assess whether comments were inappropriate. The damages award was within a permissible range. The trial judge erred in leaving the issue of punitive damages to the jury for determination because neither the pleadings nor facts of this case supported such an award. In essence, the trial judge created a new and unprecedented category of punitive damages arising out of the timing of the appellant’s admission of liability. The appellant’s delay in admitting liability until trial should not have been considered under the rubric of punitive damages but was more properly a question of costs. Whether the delay was the kind of misconduct that attracted an elevated award of costs was a question that could have been left for the trial judge’s determination had the parties not agreed on costs.

McCabe v. Roman Catholic Episcopal Corp., [2019] O.J. No. 1351, Ontario Court of Appeal, G.R. Strathy C.J.O., M.L. Benotto and L.B. Roberts JJ.A., March 19, 2019. Digest No. TLD-April82019008