Financial Compensation for Victims of Domestic Violence

On October 7, 2024 the Ontario Superior Court issued its decision on a highly contentious divorce and property application that found the Husband (Syed Zunnurian) financially liable for the ongoing domestic violence inflicted on the Wife (Sarahat Chowdhury) over the course of their marriage.

The Court awarded Ms Chowdhury $200,000 after finding that Mr. Zunnurian was liable for assaulting, battering and inflicting emotional stress on her. The Court awarded her $175,000 in compensatory and aggravated damages and an additional $25,000 in punitive damages for lying to the Court in attempting to “explain away” his previous guilty conviction involving violence against Ms Chowdhury. As the Court noted, “Parties should be deterred from lying to explain away their guilty pleas, especially where doing so once again degrades their ex-partner.”

Background

The husband and wife were married in June 2003 in Bangladesh. They were a wealthy couple. Mr. Zunnurian, despite little education, started a garment factory that soon turned him into a multi-millionaire. Ms Chowdhury had two business degrees and became successful in her own right, helping her husband grow the garment business.

The couple had 4 children who enjoyed a privileged lifestyle. When the family emigrated to Melborne, Australia in 2015 the family had household assistants and a driver who would shuttle the children back and forth to private school.

In 2019 the family moved to Canada. The marriage was not a happy one with Ms Chowdhury alleging ongoing domestic violence including numerous instances of being raped by her husband. In 2021 Mr. Zunnurian pled guilty to assaulting Ms Chowdhury as well as failure to comply with the terms of his release order.

Following the separation of the couple, in 2023 Zunnurian filed an application for division of matrimonial property (the parenting issues had been successfully negotiated through the parties’ lawyers). Ms Chowdhury counter claimed, suing Mr. Zunnurian for the torts of battery, assault, intentional infliction of mental suffering, false imprisonment and public disclosure of private facts. Ms Chowdhury was claiming $325,000 in “general and aggravated damages for 13 tortious acts”, including physical and sexual assault. She also alleged that she was forcibly confined by Mr. Zunnurian in a hospital against her will. She further alleged he shared intimate private photos of her with family and friends.

Mr. Zunnurian denied all the allegations.

In hearing the evidence, the Court was required to decide on 14 separate issues, including enforceability of the Separation Agreement, the sale and division of matrimonial property, child support, spousal support and determining whether Zunnurian was liable for abusing Chowdhury and violation her privacy.

The Ontario Superior Court issued its 93 page decision on October 7, 2023 and did find Zunnurian liable for assaulting, battering and inflicting emotional stress on Chowdhury. The Court awarded $200,000 to her, finding (as noted above) $175,000 in compensatory and aggravated damages and an additional $25,000 in punitive damages.

The Court’s review of Domestic Violence and the Awarding of Damages

The Court noted that the tort of battery requires “direct interference with one’s person”. Interference is direct if it is “the immediate consequence of force” caused by the defendant’s actions. Assault involves “intentionally causing another to fear imminent contact of a harmful or offensive nature” and that damages are recoverable by a claimant who is “made apprehensive of immediate physical contact, even though that contact never actually occurs.”

In looking at the tort of intentional emotional distress, the Court noted a three-part test:

  1. The defendant’s conduct was flagrant and outrageous,
  2. The conduct was calculated to harm,
  3. The conduct caused the plaintiff to suffer a visible and provable illness.

In hearing testimony, the Court noted “starkly different” versions of the alleged assaults. Zunnerian flatly denied the allegations and attempted to explain to the Court why he pleaded guilty on the earlier assault charge.

Given the opposing testimony, the Court needed to review the reliability and credibility of the parties. In matters like this one, particularly where domestic violence is alleged, the courts will often be forced to determine who provides the most reliable and credible evidence where testimony becomes a “he said – she said” battle between the parties.

The Court noted inconsistencies in Zunnerian’s testimony and did not believe his statement regarding his previous guilty plea (which was, he stated, in order to avoid jail and agree to a restraining order). The Court was dismissive of Zunnerian’s statements regarding the breach of the restraining order as an effort by Chowdhury to entrap him. The Court ultimately found that Zunnurian lacked credibility and, as a consequence, came to the conclusion that the assaults on Chowdhury had taken place.

In finding Zunnurian lacked credibility, the Court noted his explanation of events to be incredible, “so much so that they taint all of his evidence on the abuse issue.”

The Court noted a “pattern of abuse” had taken place from 2003 to the present. Chowdhury had suffered “constant threats of physical harm, solidified by actual harm”. She lived in a “near constant fear of imminent harm” and, further, the Court concluded that the ongoing beatings caused “visible and provable illnesses” which included depression, a miscarriage, bruises to back and hips, extreme pain, soreness and fever.

The determination of damages

In finding that the abuse had taken place, the Court next looked at the issue of damages. Unsurprisingly, Zunnurian believed Chowdhury should be awarded only “nominal charges.”

Damages are awarded in an attempt to put the plaintiff in a position they would have been but for the injury. This can be difficult to calculate. The Court noted a previous Supreme Court decision directing that a reviewing judge must often look to intangible losses arising from “enjoyment of life, esthetic prejudice, physical and psychological pain and suffering, inconvenience, loss of amenities and sexual prejudice.”

The Ontario Court noted damages are awarded when the “reprehensible or outrageous nature of the defendant’s conduct causes a loss of dignity, humiliation, additional psychological injury or harm to the plaintiff’s feelings.” The Court noted society’s abhorrence of domestic violence and added that an ongoing pattern of abuse as a reason to award higher damages.

The Court examined recent case law from both the Ontario and B.C. courts, noting total damages (compensatory and aggravated) ranged from $4000 to $175,000.

In awarding compensatory and aggravated damages of $175,000, the Ontario court noted the 20 years of sexual and physical abuse suffered by Chowdhury and the physical pain and emotional distress resulting from these ongoing assaults. Adding further to her anguish was the religious and cultural stigma resulting from domestic violence that would isolate her from family and the larger community. The Court noted that when she returned home after a beating, she would often be greeted with more abuse. Zunnurian believed he had that right as a husband to rape his wife. The Court bluntly stated Zunnerian’s actions “were evil.”

The Court believed additional punitive damages were needed along with the compensatory damages noted above “…when rationally required to punish a defendant to meet the objectives of retribution, deterrence and denunciation, in an amount no greater than necessary to satisfy these objectives.” Further, where compensatory damages are insufficient to meet the goals of denunciation and deterrence, punitive damages should be awarded. The Court stated that, beyond the assaults, it was concerning that Zunnurian lied to the court, and concocted “elaborate tales” to again harm Chowdhury “this time from the witness stand”.

Although the Court did find Zunnurian liable for the assaults on his wife and awarded financial damages, it did not find that he was liable for public disclosure of private facts, nor was he liable for false imprisonment at a local hospital. The Court found that physicians determined that Chowdhury required hospital care following a mental health breakdown and that Zunnerian was not responsible for her apprehension.

Summary

Statistics Canada notes domestic violence (including intimate partner violence) has remained stubbornly high with the 3 prairie provinces reporting some of the highest rates in the nation. Alberta has a reported rate of 338 per 100,000 people, Manitoba at 633 and Saskatchewan at an alarming rate of 732. It is important that victims of domestic violence reach out to police, the courts (for restraining and no-contact orders) and to reach out to support services to cope with the mental and physical effects of this violence.

It is often said that courts can only provide a piece of paper in the form of an order, but this can serve as a warning that the victim is serious in taking steps in stopping abuse. Breach of an order can lead to incarceration, but this too relies on the victim taking the steps necessary to put the abuser “on notice” that abuse whether physical, sexual or in the form of threats, intimidation, contact, stalking, bullying will be dealt harshly by the courts.

And, increasingly, the courts are willing to look to tort law to provide monetary compensation to a victim where it is determined physical and emotional harm have been inflicted to an extent that the victim suffers from the losses of “enjoyment of life, esthetic prejudice, physical and psychological pain and suffering, inconvenience, loss of amenities and sexual prejudice.”

Given the courts’ openness to looking at tort law as a further remedy regarding domestic violence, it is important for a victim to speak with a lawyer to review a possible claim for damages resulting from the harm suffered.


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