IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Bajwa v. Deol, |
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2017 BCSC 1673 |
Date: 20170921
Docket: S146980
Registry: New Westminster
Between:
Himmat Singh Bajwa
Plaintiff
And
Gurpaul Purgash Singh Deol and John Doe
Defendants
Before: The Honourable Madam Justice B.J. Brown
Reasons for Judgment
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Counsel for Plaintiff: |
K.S. Garcha |
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Counsel for Defendants: |
J. Jachimowicz |
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Place and Date of Hearing: |
New Westminster, B.C. February 10, 2017 June 9, 2017 |
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Place and Date of Judgment: |
New Westminster, B.C. September 21, 2017 |
[1] There are two applications before me, the first is an application made by Mr. Deol for an order setting aside the default judgment granted against him by the registrar on December 9, 2014. The second is an application by the plaintiff for the court to assess damages against Mr. Deol.
[2] The background is set out in Mr. Bajwa’s statement of claim. He pleads that on or about August 11, 2012, he was assaulted by Mr. Deol and another. He received serious injuries. He sued Mr. Deol, John Doe, Sandeep Parhar, Nicole Parhar, Bombay Banquet Hall Ltd., Gurminder Singh Brar, and the owners of Strata Plan BCS 1684.
[3] Mr. and Mrs. Parhar were married on or about August 10, 2012. It was their wedding celebration at which Mr. Bajwa says that he was assaulted. That celebration took place at Bombay Banquet Hall. Mr. Brar is a principal of Bombay. The strata corporation was the owner and occupier of the common property.
[4] Before this matter came before me, the action against the defendants other than Mr. Deol had been resolved.
[5] Although not much turns on it, Mr. Deol’s application was heard by me on June 9, 2017, after Mr. Bajwa’s application.
[6] The plaintiff obtained a default judgment against Mr. Deol with damages to be assessed. Mr. Deol says that he was not served with the original notice of civil claim. He argues that the affidavit of service fails to identify him as the party that was served. In addition, he argues that the style of cause on the face of the affidavit of service is incorrect.
[7] In the affidavit of service filed November 27, 2014, and sworn November 21, 2012, Mr. Buck deposes that on Monday, November 19, 2012, he served Gurpaul Purgash Singh Deol with the notice of civil claim (attached as Exhibit A) by handing it to and leaving it with that person at his place of employment, Deol and Basi Trucking, 5517 Spruce Street, Burnaby, BC. The style of cause of the affidavit of personal service does not list all of the defendants in the attached notice of civil claim. It lists only Gurpaul Purgash Singh Deol, John Doe, and Sandeep Singh Parhar.
[8] In his affidavit in support of his application, Mr. Deol denies that he was served with the notice of civil claim. He says he never received the documents attached as Exhibit A to the affidavit of Mr. Buck. He has searched for his records to determine what he was doing on November 19, 2012, but has not been able to locate any information. He says “the first time I became aware I was the defendant in a civil action brought by the plaintiff was in August 2016, when the notice of application and supporting documents were delivered to my home."
[9] In response, the plaintiff filed the affidavit of Lisa Dixon, a legal assistant. She appends to her affidavit a printout dated October 24, 2012, of the contact details on the website for Deol and Basi Trucking and Film Transportation which provided an address of 5517 Spruce Street Burnaby, BC. She also attached an interoffice memo from Lisa to “Kinda". I understand Kinda to be Mr. Garcha, counsel on this application. In the memo Lisa says “the defendant Deol has been served but has not filed a reply to civil claim. Do you want me to take default against it?” In handwritten notes, written on the memorandum are the following instructions: December 11, 2012. Paul (1) phone defendant Deol ask who his lawyer is (2) address for defendants Parhars.
[10] In response, in an affidavit of December 2, 2016, Mr. Deol deposed “I have never spoken to counsel for the plaintiff. I certainly never spoke to him on December 21, 2012."
[11] In response to this affidavit, the plaintiff filed the affidavit of Paul Sangha, a lawyer with the law firm of Garcha and Company. In that affidavit Mr. Sangha attached a copy of his hand written notes of a telephone conversation between counsel for the plaintiff, K. S. Garcha and the defendant Deol on December 21, 2012. Mr. Sangha deposes that he was present for that conversation and heard it over the speakerphone. It was a conversation regarding an extension for the filing of a response to civil claim by Mr. Deol. The memorandum is as follows: ”TCW defendant Deol (W/KG) gave extension for response to civil claim to mid-January.” The memorandum is dated December 21, 2012.
[12] Mr. Deol argues that the plaintiff sat on its rights to take default judgment for 3 1/2 years from December 2012, until the fall of 2016. Mr. Deol argues that if the plaintiff had moved quicker he could have been in a better position to defend himself. He says that the delay in proceeding has worked to his prejudice. He is out of time. He could have issued third-party proceedings. He would have had counsel and could have participated in settlement discussions.
[13] He argues as well that the error with respect to the style of cause in the affidavit of service brings into question the accuracy of the documents. He says that Mr. Buck does not indicate that he obtained identification for Mr. Deol and that this should cause the court concern.
[14] He argues that I should permit cross-examination of Mr. Sangha if the affidavits are accepted. He argues that there are “glaring errors in the affidavit" and that these demonstrate that the process server's affidavit should not be preferred over that of Mr. Deol.
[15] He says that he applied to set aside the default judgment as soon as reasonably possible. He learned of the plaintiff's claim in August 2016 and then applied to set aside the default judgment in November 2016. His defence is contributory negligence and provocation. He refers me to paras. 35 and 36 of his affidavit of November 21, 2016. There he says:
The plaintiff looked at me in a drunken manner said he was going to punch me out or knock me out. He was right in my face so that as he spoke his saliva hit my face. I think he stumbled at that moment and I was certain he was going to strike me so I moved quickly and struck him first. I struck him with an open hand.
He then stumbled and fell to the ground. I did not hit him hard enough to cause him to fall. I believe that he fell because he was unsteady on his feet due to the alcohol he had consumed. He fell backwards on his rear end."
[16] Mr. Bajwa argues that there are sufficient circumstances to establish that Mr. Deol was indeed served. He says that nothing turns on the irregularity in the style of cause.
[17] Mr. Bajwa argues that there is nothing to support Mr. Deol's assertion that he was not served. Mr. Bajwa argues that if Mr. Deol had a defence to the claim, he would have put it before the provincial court judge on the criminal charges arising from the incident. Instead, he pled guilty.
[18] He says as well that there is no explanation for a delay of 3 1/2 months before bringing an application to set aside the default judgment.
[19] Mr. Deol refers me to the leading decision in this area, Miracle Feeds v. D. & H. Enterprises Ltd., 10 B.C.L.R. P 58, [1979] A.C.W.S. 264, [“Miracle Feeds”] and to Fraser Valley Disposal Ltd. v. Cho, 2016 BCSC 1923 [“Fraser Valley”]. In Fraser Valley, Mr. Justice Kent said:
[9] The case law is clear that if the court is satisfied service has not been effected upon a defendant, then any subsequent default judgment against that defendant is a nullity and the defendant is entitled to have the order set aside as of right. The discretionary considerations usually invoked in cases of this sort, and which have been articulated in Miracle Feeds v. D. & H Enterprises Ltd., [1979] B.C.J. No. 1965, simply do not apply to applications to set aside default judgments where proper service was not first effected.
[20] In this case, I am not satisfied that service was not affected on Mr. Deol.
[21] Mr. Buck, the process server, swears that he served Mr. Deol and provides the address where he says Mr. Deol was served. That is Mr. Deol’s residence, according to Mr. Deol's own affidavit. It is also the address used on the order for substitutional service with respect to the assessment of damages application which Mr. Deol says he received. Mr. Sangha deposes to the conversation with Mr. Deol regarding the extension of time. He attaches his notes of that conversation. I also have the internal memorandum with respect to Mr. Deol's failure to respond to the action. I am not persuaded in the face of this evidence that Mr. Deol was not served, or that the affidavit of service of Mr. Buck incorrect.
[22] The irregularity, if it is one, in the abbreviated style of cause (on the affidavit) is nothing more than an irregularity and does not persuade me that Mr. Buck was sloppy or inaccurate in the substance of his affidavit. He appends the materials that were served on Mr. Deol. The affidavit follows the form set out in the rules of court that applied at the time.
[23] A defendant seeking an order pursuant to Rule 3-8(1) of the Supreme Court Civil Rules [the “Rules”] to set aside or vary a judgment obtained by default should show:
1. They did not fail to enter an appearance or file a defence to the plaintiff's claim wilfully or deliberately;
2. They applied to set aside the default judgment as soon as reasonably possible after learning of the default judgment, or have given and explanation for any delay in bringing their application;
3. They have a meritorious defence, or at least a defence worthy of investigation; and
4. The foregoing requirements have been established to the satisfaction of the court through affidavit material.
[24] The elements in Miracle Feeds are not conditions that the applicant has to satisfy, but are relevant factors that the chambers judge should take into account when exercising discretion to set aside the default judgment (British Columbia v. Ismail, 2007 BCCA 55, 235, B.C.A.C. 299, at para. 11).
[25] Here, I am not persuaded that it is appropriate for me to exercise my discretion to set aside the default judgment based on the first and third factors. Mr. Deol's affidavit materials do not persuade me that he was not served and did not wilfully or deliberately fail to respond to the plaintiff's claim. In addition, I am not persuaded that he has a meritorious defence or defence worthy of investigation. His defence, as set out in his affidavit is that the plaintiff threatened to assault him; that he believed that the plaintiff was going to assault him and so he intentionally struck the plaintiff first. Although Mr. Deol argues that this constitutes contributory negligence or provocation and that this could form a defence to the civil claim for assault, I am not persuaded that it is so. Mr. Deol has not provided me with any authority to support his contention. The claim is not in negligence, it is for assault and battery, an intentional act. Therefore, I am not persuaded that contributory negligence applies. Secondly, I have been provided with no authority that provocation constitutes a defence in a civil action.
[26] Mr. Deol argues that Mr. Bajwa’s injuries are not as extensive as he suggests or were not caused by his actions. It is for that reason that I ordered that Mr. Bajwa be produced for cross-examination on the assessment of damages, so that the extent of his injuries and the effect of Mr. Deol's actions could be tested and determined. The extent of Mr. Bajwa’s damages is a matter for the assessment of damages. It is not a defence to the action.
[27] Finally, Mr. Deol argues that had he had an opportunity to participate in settlement negotiations the results could have been different. Or, he could have brought third-party proceedings. Or, the amount paid in settlement by the other defendants could have affected how much he will be required to pay. It is speculative to suggest that the results of settlement might have been different had Mr. Deol participated. In any event, the amount paid in settlement by the other defendants will be deducted from the damages that I assess. Mr. Deol will have the benefit of that deduction.
[28] With respect to the second factor listed in Miracle Feeds, that is that Mr. Deol applied to set aside the default judgment as soon as reasonably possible after learning of the default judgment, he deposes that he learned of the default judgment in August 2016. If that were so, he applied to set aside the default judgment on November 23, 2016. While I do not consider that to be particularly prompt action, and I am not persuaded that he learned of the action in August 2016, this is not a significant factor in my decision not to set aside the default judgment.
[29] Mr. Bajwa seeks damages against Mr. Deol pursuant to Rules 9-7 and 3-8. On December 9, 2014, Mr. Bajwa obtained a default judgment against Mr. Deol. He seeks damages arising from an assault and battery committed by Mr. Deol and/or John Doe on August 11, 2012.
[30] This action was commenced on November 13, 2012. Police investigated the assault and Mr. Deol was charged with assault, assault causing bodily harm and assault with a weapon pursuant to ss. 266 and 267 of the Criminal Code. On November 19, 2012 Mr. Deol was personally served with the notice of civil claim. On July 14, 2014 Mr. Bajwa filed a notice of trial with a trial date set of January 11, 2016 for 10 days.
[31] On September 25, 2014 Mr. Bajwa reached a settlement against the other defendants and third parties, excluding Mr. Deol and Mr. Doe. On December 9, 2014 Mr. Bajwa obtained a default judgment against Mr. Deol for his failure to file and serve a response to civil claim. It was ordered that Mr. Deol pay to Mr. Bajwa damages to be assessed.
[32] On May 12, 2015 Mr. Deol was found guilty of the offence of assault contrary to s. 266 of the Criminal Code and was sentenced to one day jail, one year probation and a two-year firearms prohibition.
[33] On June 3, 2015 the trial of the action herein was adjourned by requisition.
[34] Mr. Bajwa argues that it is appropriate to proceed summarily with a damage assessment on the basis of affidavit evidence because the amount of damages involved is relatively small. The court should be able to assess the range of general damages based on medical and legal reports and clinical records. The plaintiff's loss of income claim is relatively small and he did not miss a substantial amount of work due to his injuries. It is largely an arithmetic calculation. The claim for special damages is also supported by documentation and capable of assessment.
[35] In his response the defendant admits that he was present during the altercation with the plaintiff. He says, however, that he was not involved to the extent claimed by the plaintiff. He says that there is a statement from the plaintiff's spouse who was present during the altercation in which she says that Mr. Deol was less involved than the plaintiff says he was. He says that the plaintiff has acknowledged that his wife has more recall of the altercation than he does.
[36] As I have indicated above, I permitted examination and cross-examination of Mr. Bajwa so that Mr. Deol could challenge Mr. Bajwa’s evidence, particularly on the grounds advanced by Mr. Deol.
[37] Mr. Bajwa gave his evidence on February 10, 2017. He stated that he is 38 years old and lives in Surrey. He has been married since June 2010. He immigrated to Canada from the United States in 2012. He is a dentist. On August 11, 2012, he and his wife attended a wedding reception at the Bombay Banquet Hall. They arrived at approximately 8:00 pm. He said that he was socializing with his in-laws. He had three to four beers over the course of the evening between 8:00 pm and 12 o'clock midnight. He was introduced to Mr. Deol's father by his wife when they were outside on the patio. He also met Mr. Deol briefly on the patio. He and his wife were leaving at approximately 12:30 am. They were waiting for a cab. Mr. Deol and another individual arrived. Mr. Deol charged Mr. Bajwa and punched him in the side of the face with what appeared to be brass knuckles. He was struck just below the nose on the right side of his mouth with a closed fist. Mr. Bajwa saw something sharp and shiny, a metal object in Mr. Deol's hand as he was punched. Mr. Bajwa said that he was stunned and at that point another individual struck him on the back of the head. He could not see what he was struck with but it felt like some kind of hard object. He fell to the ground and lost consciousness. He was taken to Surrey Memorial Hospital where he received a CT scan. His lip was split open and his front teeth were broken. He had numerous abrasions to his cheek and chin. He also had scrapes and cuts to the back of his head.
[38] After discharge from Surrey Memorial Hospital he received treatment from a dentist, Dr. Machine. He also had follow-up with Dr. Adrian Lee, a plastic surgeon. He took Tylenol 3’s for approximately one week. He also took Xanax for anxiety over the course of the week. He had been working two different dental offices, one in Maple Ridge and one in Langley. After the assault he had to take a week off work because of the pain and because of his appearance. He could not chew properly for approximately two to three weeks. He suffered from facial swelling, headaches, and had difficulty sleeping. He had anxiety and a fear of going out in public. The bruising and swelling took approximately three weeks to resolve. He said that five days of lost income equates to $3,000, averaging his income over the period.
[39] He will require further dental treatment in the future. He will require porcelain crowns or veneers. He will also require endodontic treatments. He may need a root canal. He has been quoted $7,000 for further treatments which does not include specialist or endodontic treatment and a root canal.
[40] As to other effects from the assault, he has a fear of social situations. He has experienced pain and suffering. He has suffered from embarrassment and shock. His relationship with his wife has suffered.
[41] He had persistent headaches for the first month. Thereafter he suffered from headaches from time to time. It does not affect his ability to work.
[42] In cross-examination he said that he was not intoxicated. He acknowledged that he had had a few drinks. He denied that there had been any scuffle inside the banquet hall with the Deol family. He and his wife left after an argument with Mr. Deol's father. They walked down the stairs outside from the banquet hall. They saw the cab and then Mr. Bajwa saw Mr. Deol. He said that he received a direct blow to the right side of his face when Mr. Deol punched him. There appeared to be a weapon of some sort in Mr. Deol's hand. There was definitely one and possibly two punches. Mr. Bajwa said that he was unsteady after he was struck by Mr. Deol and then another individual hit him on the back of the head with a hard object. He remembered being struck on the head and falling to the ground.
[43] He said that his teeth were not knocked out - they were fractured. He said that his teeth were not fractured by a fall to his face after he was he was struck by the other individual. There was a direct hit by Mr. Deol which shattered his teeth. He said that he felt the fracture from Mr. Deol's punch. He was struck by Mr. Deol at the exact location where his teeth were broken.
[44] He saw a plastic surgeon, Adrian Lee to deal with his split lip.
[45] In his affidavits filed in this matter the defendant Mr. Deol in Affidavit No. 1 sworn November 10, 2016 said:
9. With respect to the allegations set out in the Notice of Civil Claim, I admit that I was present at the time and place where the alleged assault of the Plaintiff occurred. There was a scuffle between myself and the Plaintiff where there was pushing and shoving. However, I deny causing the injuries that the Plaintiff is claiming compensation for.
[46] In Affidavit No. 2 sworn November 21, 2016 Mr. Deol said
26. I arrived at the reception at approximately 9:00 PM. My father and wife were with me.
27. We sat at a table and ate appetizers while listening to the various traditional wedding speeches. I recall having a scotch and water during that time.
28. Then dinner was served. The hosts had set up a BBQ outside on the patio. I went outside with my Mother, Father, wife, and uncles and grandparents. While we were chatting Rose Gill approached us. She was unsteady on her feet and appeared intoxicated. She started poking my wife in an obnoxious manner and was harassing about some dispute they had between them. I believe it related to a mutual friend of theirs who had been told something by my wife which led her to cease associating with Rose. She was loudly and drunkenly saying “why don’t you like me”, “why did you get in between me and Preeti”?
29. My wife told Rose to leave her alone. My family is of course observing this. My father told Rose that she was assaulting his daughter in law, and to just leave.
30. At this time I looked into the reception hall and noticed there was a scuffle occurring between the Plaintiff, Himmat Singh Bajwa, and another guest. They were shoving and pushing each other and yelling.
31. Rose took her husband, the Plaintiff, by his arm and pulled him outside to the patio area. The plaintiff was clearly intoxicated. I heard Rose him what my father had told her earlier.
32. The Plaintiff then stared speaking loudly and aggressively to my father. He said things like “you don’t know who I am!”, “you can’t talk to me and my wife like that!”, and “I am a dentist!” He was extremely cocky and belligerent. My mother left to seek out someone from Security because all of us could see that this was not a good situation.
33. I then left with my cousin to take a look at a car that he had borrowed from a friend. It was a 66 Chevelle. I was having a cigarette and talking to my cousin when another one of my cousin’s came out to see the car.
34. Then I saw the Plaintiff and his wife exiting the hall. They were both unsteady on their feet and were obviously intoxicated.
35. The Plaintiff looked at me and in a drunken manner said he was going to punch me out or knock me out. He was right in my face so that as he spoke his saliva hit my face. I think he stumbled at that moment and I was certain he was going to strike me so I moved quickly and struck him first. I struck him with an open hand.
36. He then stumbled and fell to the ground. I didn’t hit him hard enough to cause him to fall. I believe that he fell because he was unsteady on his feet due to the alcohol he had consumed. He fell backwards on his rear end.
37. At that point my cousin said let’s leave and we got into the car and left the parking lot.
38. I do not know what occurred after I left.
[47] The application for assessment of damages was heard on November 15, 2016, before Mr. Deol's second affidavit was filed. At that time Mr. Deol argued that the application should not be dealt with summarily, based on his Affidavit No. 1, that there was a scuffle between himself and Mr. Bajwa, but he did not cause the injuries that Mr. Bajwa was claiming compensation for. His counsel argued:
If my client caused damage, and it is likely that he did cause some damage, my lady, what was the extent of it?
My friend shows you photographs of the plaintiff. And his face looks quite cutup and puffy. And it is my submission that could have happened as a result of other parties who were involved in this -- in the scuffle.
[48] He referred me to Mr. Bajwa’s statement to police in which Mr. Bajwa described Mr. Deol punching him and someone else hitting him on the back of the head. He argued:
So someone smacked him from the back of the head, on the back of the head, my lady, which caused him to fall over onto the concrete, which I submit is very plausible that that caused a lot of the damage. And he is not saying that Mr. Deol did that. [p.32]
[49] He also referred me to Mrs. Bajwa’s statement to police which described Mr. Deol punching Mr. Bajwa twice and then a second person striking Mr. Bajwa on the back of the head with a crowbar.
[50] He submitted:
It is unclear as to the amount of involvement Mr. Deol had. And that is one of the reasons why I would like to cross-examine… the plaintiff on his affidavit so I can get more information on this.
He continued:
… my client admits he was involved in the altercation. He admits there was a scuffle. There is no doubt about it.… he struck him and then someone came from behind with some crowbar and knocked him over and then started banging on him with it… my client believes that that is what caused the majority of the damage to the plaintiff. And that requires the ability or the opportunity to -- to cross-examination – to cross-examine, and perhaps also examine the plaintiff's wife to determine what exactly – to get their evidence out properly and fully for the court.
[51] Mr. Deol argued that the court needed to be able to see Mr. Bajwa to assess the extent of his damages and that he needed to cross-examine Mr. Bajwa with respect to the extent of his loss.
[52] He argued that the claim was not a minor claim and was not appropriate on that basis for summary trial.
[53] He submitted that the appropriate range of damages was between $25,000 and $50,000.
[54] After having heard submissions from counsel, and considered the evidence as it was before me on November 15, 2016, I concluded “it seems to me that the case really depends on the Athey v. Leonati (1996), 140 D.L.R. (4th) 235 analysis:
Which is divisible and indivisible injuries .… to that extent there is some purpose in a cross-examination or an examination and cross-examination of Mr. Bajwa to permit me to determine whether the teeth are actually the result of the punch or if they are divisible injuries and are the result of the second… I will call it the "second assault.
That is one of the things that I can do on an application such as this. And I think that it serves a purpose to have Mr. Bajwa attend to get evidence and be cross-examined.… so I am thinking that what we really want to do is have Mr. Bajwa in for cross… for examination and cross-examination as to the cause of his injuries as best he recalls it and extent of his injuries.
[55] Based on the state of the evidence before me, that is Mr. Deol's affidavit of November 10, 2016; I concluded that it was not necessary for Mr. Deol to attend to give evidence. Mr. Deol did not deny that he was involved in an altercation with the plaintiff. His counsel in submissions acknowledged that Mr. Deol may have caused some injury. The issue was whether the “second assault" caused Mr. Bajwa’s injuries, or whether those injuries were indivisible.
[56] After hearing of November 15, 2016, Mr. Deol filed the further affidavit sworn November 21, 2016 with the contents as noted above.
[57] Mr. Bajwa was examined on February 10, 2017. At that time Mr. Deol's evidence that he had struck Mr. Bajwa with an open hand and Mr. Bajwa had fallen on his rear-end was not put to Mr. Bajwa in cross-examination. Rather, the thesis advanced in cross-examination was that Mr. Bajwa fell on his face after he was struck from behind with a crowbar. This thesis is not consistent with Mr. Deol's second affidavit.
[58] The new evidence was filed after the hearing of the original application. The question then becomes whether this matter continues to be appropriate for summary trial disposition.
[59] At the conclusion of Mr. Bajwa’s evidence, Mr. Deol argued that Mr. Bajwa was somehow struck by him. He was then struck on the back of his head and landed on his face. He argued that it was more likely the fall that caused the chipped teeth and that this would be a divisible injury. He argued that he could be liable for the bruise and the split lip but not the teeth or the blow to the back of the head. He argued that only the punch to the face was attributable to Mr. Deol.
[60] Mr. Deol's own evidence in his second affidavit is inconsistent with his position on this application. His evidence is inconsistent with any injury to Mr. Bajwa’s face. His evidence says nothing about a blow to the back of Mr. Bajwa’s head or Mr. Bajwa falling on his face. He says that Mr. Bajwa fell on his rear-end. This would lead to no injury to his face. Mr. Deol's evidence does not account for any significant injury to Mr. Bajwa. It is inconsistent with his position on November 15, 2016. It is inconsistent with his position on February 10, 2017.
[61] It is also inconsistent with the statement of Rose Gill (Mr. Bajwa's wife) on which Mr. Deol relied. That statement provides:
That Ms. Gill observed Mr. Deol waiting by the front entrance of the banquet facility when she and Mr. Bajwa left to catch their taxi. She saw that Mr. Deol had an object in his right hand which she described as possibly being brass knuckles. It covered his knuckles and was dark colour. Mr. Deol was yelling and swearing at Mr. Bajwa. Mr. Deol charged Mr. Bajwa and assaulted him on the right side of his face using the object that was in his right hand. Mr. Bajwa was unsteady and she attempted to get between him and Mr. Deol. She was pushed aside by Mr. Deol and he assaulted Mr. Bajwa again using the object in his hand. An unknown second male assaulted Mr. Bajwa by hitting him in the back of the head with the object. Mr. Bajwa was knocked unconscious and fell to the ground. Ms. Gill attempted to block his fall. Other bystanders attempted to assist.
[62] Mr. Bajwa gave his evidence under oath before me. He was cross-examined by counsel for Mr. Deol. He was entirely credible in his evidence. I accept his evidence. In my view, I am able to find the facts necessary to determine this matter. As I have indicated above, Mr. Deol's affidavit of November 21, 2016, is inconsistent with the position he has advanced before me on more than one occasion. It is inconsistent with the statement that Ms. Gill gave to police, on which Mr. Deol relied. It is also inconsistent with Mr. Bajwa’s evidence.
[63] As the Court of Appeal has indicated in Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202, 36, C.P.C. (2d) 199 (B.C.C.A) said:
[56] Lastly, I do not agree, as suggested in Royal Bank v. Stonehocker, that a chambers judge is obliged to remit a case to the trial list just because there are conflicting affidavits. In this connection I prefer the view expressed by Taggart J.A. in Placer, quoted at p. 15 [pp. 212-13] of these reasons. Subject to what I am about to say, a judge should not decide an issue of fact or law solely on the basis of conflicting affidavits even if he prefers one version to the other. It may be, however, notwithstanding sworn affidavit evidence to the contrary, that other admissible evidence will make it possible to find the facts necessary for judgment to be given. For example, in an action on a cheque, the alleged maker might by affidavit deny his signature while other believable evidence may satisfy the court that he did indeed sign it. Again, the variety of different kinds of cases which will arise is unlimited. In such cases, absent other circumstances or defences, judgment should be given.
[64] In my view, in the circumstances of this case, despite the inconsistency raised by Mr. Deol's affidavit of November 21, 2016, I am able to find the facts necessary to determine this case.
[65] Mr. Bajwa seeks general damages, special damages, punitive aggravated and or exemplary damages and special costs
[66] He has provided me with three authorities with respect to assessment of damages:
Thornber v. Campbell, 2012 BCSC 1449 [“Thornber”];
Besic v. Karenyi, 2011 BCSC 1277 [“Besic”]; and
Pete v. British Columbia (A.G.), 2004 BCSC 1563, 136 A.C.W.S (3d) 282 [“Pete”]
[67] In Thornber, the plaintiff was awarded non-pecuniary damages of $125,000. In Besic the plaintiff receive non-pecuniary damages $70,000 with the reduction of $10,000 for failure to mitigate. In Pete the plaintiff was awarded $75,000 in non-pecuniary damages.
[68] While the injuries suffered in each of these cases are more extensive than those suffered by Mr. Bajwa, they are nonetheless helpful in determining the appropriate range of damages.
[69] In Thornber, Mr. Justice Greyell discusses exemplary, punitive and aggravated damages. He said:
[45] I make no award for either exemplary or punitive damages. The defendant in this case was charged, convicted, and sentenced for assault causing bodily harm. In other words, there is no need to send a message of deterrence to others who may be inclined to act like Mr. Campbell. In support of this finding, I refer to the Supreme Court of Canada decision Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595. Justice Binnie, writing for the majority, laid out ten principles to guide the award of punitive damages. In particular, I note the third principle that recognizes criminal law is the primary vehicle for punishment. Punitive damages should only be resorted to in exceptional circumstances (at 635 - 636).
[46] For further guidance, I rely upon the decision of Justice Burnyeat in Reddemann v. McEachnie, 2005 BCSC 915, a case involving an unprovoked attack by a hockey assistant trainer on a spectator. Burnyeat J. awarded punitive damages to the plaintiff, taking into account the fact that the attack was unprovoked, the value of deterring and denunciating such egregious behaviour, and the absence of any criminal proceedings or actions taken by the hockey league to punish the defendant’s behaviour.
[47] Additionally, the award against Mr. Thornber is a substantial one that encompasses the compensatory intangible elements intended to be covered by an award of aggravated damages: see the BC Court of Appeal decision Huff v. Price (1990), 51 B.C.L.R. (2d) 282, 76 D.L.R. (4th) 138 at 153 and Vukelic at paras. 17 - 22.
[70] In this case, although Mr. Bajwa’s injuries are not as extensive as those suffered by the plaintiffs in the cases above, the injuries were nonetheless very serious. It was an unprovoked attack. Three of Mr. Bajwa's teeth were broken. He will require further dental repair. He suffered a loss of income. He experienced headaches and anxiety.
[71] Considering the cases to which I have been referred, in my view the appropriate award of damages, including the compensatory intangible elements to be covered by an award of aggravated damages is $55,000. In addition, I am satisfied that Mr. Bajwa lost income of $3,000 as result of this assault and will incur dental repair of $7,000.
[72] The defendant referred to the decision of McMahon v. ICBC, 1998 CanLii 5338 (B.C.S.C.) a 1998 decision of Madam Justice Quijano arising from a motor vehicle accident in 1995. The plaintiff suffered a lacerated chin, a broken molar and a chipped tooth. She had an abrasion on her right thigh and the head of her radius was fractured. She required gum surgery to prepare the site of the broken molar for a crown. The chipped tooth was smoothed out by grinding. It was likely that she would have to have the crown replaced every 10 years or so and possible that she would have to have a root canal. The plaintiff sought $30,000 to $35,000 damages for pain and suffering.
[73] I did not find this case to be helpful. It is very dated and does not arise from an intentional assault. It does not include any element of aggravated damages.
[74] Finally, it is likely that some of the injuries and pain experienced by Mr. Bajwa arose from the blow to the back of his head. He does not claim for the laceration to the back of his head. However, it may well be that the headaches and some of the psychological results of the assault are due at least in part to the blow to the back of his head. This is an invisible injury as contemplated by Athey. It is not possible for me to determine which aspects of these complaints may be due to the blow to the back of the head as opposed to the punch to his face. As the Court said in Athey:
24 The respondents submitted that apportionment is permitted where the injuries caused by two defendants are divisible (for example, one injuring the plaintiff's foot and the other the plaintiff's arm): Fleming, supra, at p. 201. Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non-tortious causes: Fleming, supra, at p. 202. Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence.
25 In the present case, there is a single indivisible injury, the disc herniation, so division is neither possible nor appropriate. The disc herniation and its consequences are one injury, and any defendant found to have negligently caused or contributed to the injury will be fully liable for it.
[75] Mr. Bajwa is also entitled to his costs. If the parties are not able to agree, they may file written submissions before me.
[76] The amount paid in damages by the other defendants will be deducted from the amount to be paid by Mr. Deol.
“B.J. Brown J.”