Not enough evidence found for sexual assault, battery, intentional infliction of mental suffering
The British Columbia Court of Appeal has affirmed a trial judge’s dismissal of a woman’s action seeking damages from her former husband based on the torts of sexual assault, assault, battery, and intentional infliction of mental suffering.
In Kulbacki v. Kulbacki, 2026 BCCA 316, the parties were married from 1988–2003. The appellant ex-wife commenced an action for damages arising from the respondent ex-husband’s alleged conduct during and after their marriage.
At trial, there was no objective evidence of the alleged events because the parties were both self-represented litigants and the sole witnesses. The ex-husband denied his ex-wife’s claim that he had a history of being physically and emotionally abusive.
Trial judge denies action
On Mar. 13, 2025, the trial judge dismissed the ex-wife’s action. He determined that:
- BC’s Limitation Act, 2012, barred the tort claim for intentional infliction of mental suffering
- The ex-wife failed to prove the facts needed to establish that tort, as well as the torts of sexual assault, assault, and battery
- The ex-wife’s mental health history undermined her reliability
- The ex-wife’s insufficiently reliable testimony fell short of the more likely than not burden of proof for her claims
- The ex-husband’s credibility had not been successfully challenged
Ex-wife’s appeal
The ex-wife appealed against the dismissal of her action. She asserted procedural unfairness in the trial. She also alleged errors in the trial judge’s findings regarding the evidence’s credibility and reliability and her disability in connection with the limitation period’s possible suspension.
The ex-wife also applied to adduce additional evidence. For this purpose, she submitted a 489-page affidavit with exhibits.
BC Court of Appeal rejects appeal
The British Columbia Court of Appeal dismissed the ex-wife’s appeal. The appeal court also denied her application to adduce further evidence, which failed the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759.
The appeal court saw no reviewable errors in the judge’s findings, which the evidence supported. The appeal court added that the ex-wife was trying to reargue her claim in a manner disregarding the trial judge’s evidentiary assessment.
Trial found procedurally fair
The BC Court of Appeal found no merit to the ex-wife’s trial unfairness argument.
While the trial judge intervened during the evidentiary phase, the appeal court emphasized that he was fulfilling his duty to assist both self-represented parties in properly presenting their cases and clarifying their evidence.
Describing the judge as scrupulously fair, the appeal court ruled that he gave the ex-wife every opportunity to present her case fully and address everything in her affidavits during her testimony, despite refusing to admit them into evidence.
The appeal court noted that the judge admitted certain exhibits for some purposes.
Challenge against ex-husband’s testimony
The BC Court of Appeal explained that the trial judge held that cross-examination did not successfully challenge the ex-husband’s evidence despite being aware of the ex-wife’s attempts to assail his credibility, including her allegations that she believed that her former husband was lying.
Reliability of the ex-wife’s testimony
The BC Court of Appeal saw no error in the trial judge’s finding that the ex-wife’s testimony was insufficiently reliable to satisfy the required burden of proof.
The appeal court saw ample evidence backing the judge’s findings that the ex-wife experienced a substantial deterioration in her health after the separation and believed that psychiatrists were experimenting on her, as stated in her own testimony.
Limitation Act argument
Lastly, the BC Court of Appeal saw no reviewable error in the trial judge’s finding that the ex-wife failed to establish the suspension of the limitation period for her tort claim for intentional infliction of mental suffering.
Previous battery or assault cases
Here are some other recent injury-related matters involving battery and assault.
In an appeal arising from the injuries of a man assaulted by a then-minor defendant and two others, the Quebec Court of Appeal issued a July 20 decision confirming that the parents were not liable on behalf of their son, who was then 17 years old.
In a proceeding with allegations of physical and sexual assaults against minors, the Alberta Court of King’s Bench made a Feb. 18 decision committing a resident of Wetaskiwin, Alberta – who used to teach at boarding schools operated by the De La Salle Order – into custody for his potential surrender to the United Kingdom of Great Britain and Northern Ireland.
The New Brunswick Court of King’s Bench issued a Nov. 10, 2025, decision refusing to dismiss a claim alleging the intentional torts of assault and battery against two men, while discontinuing the case against a woman involved, who had acted in her brother’s defence.
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