2003BCSC1218

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Nadig v. Scoffield
	2003 BCSC 1218

Date: 20030806

Docket: S27946

Registry: Nanaimo

Between:

Anton Nadig

Plaintiff

And

Robert Scoffield

Defendant

Before: The Honourable Mr. Justice Taylor

Reasons for Judgment

Counsel for the Plaintiff:	V.V. Svacek
Counsel for Defendant:	D. McKay
Date and Place of Trial:	May 15 & 16, 2003, July 29 & 30, 2003, and August 6, 2003
	Nanaimo, B.C.

[1] The plaintiff, a former client of the defendant solicitor, sues for damages arising out of the defendant’s alleged assault of him on March 4, 2000. The plaintiff’s cause of action is in negligence. How that might be, as I will discuss further in these reasons, is not entirely clear to me. That absence of clarity is rendered redundant, however, by the concession of counsel for the defendant that I should determine this matter as if the plaintiff had also pled assault and battery. Accordingly, I shall consider this matter on the basis that such an amendment to the pleadings had been made.

[2] By an earlier order of this court, the issues of liability and quantum have been severed. These reasons concern themselves only with the issue of liability.

[3] The plaintiff, who is 58 years of age, is a forestry worker who has spent most of the past four decades working as a mechanic or equipment operator. Since 1995, when he accepted a retirement package from his long-term employer, he has worked for a helicopter-logging firm on Vancouver Island. Shortly after March 14, 2000, he ceased this work, allegedly because of injuries he sustained on March 14, 2000.

[4] The plaintiff testified that it had been his intention to work until he was 65 years of age.

[5] The plaintiff was married in 1961, but separated from his wife in early 2000. The reasons for the separation are not relevant to these proceedings, however, the evidence before me makes it clear that the plaintiff had a hard time accepting the separation itself, as well as the financial consequences of the separation.

[6] Throughout his working life, the plaintiff was an industrious and hard-working person. He testified that in the post-1995 work period, he worked for long periods of time. He recalled at one point being in camp for 52 days straight.

[7] After being served with the divorce papers and never before having had occasion to engage a lawyer, he sought out and retained the defendant to represent him. He testified at trial that he was referred to the defendant by another lawyer’s office, but at his examination for discovery he said that the defendant’s office was the first office he walked by.

[8] The plaintiff is 6’ 1” tall and, at the time of March 14, 2000, weighed 245 pounds and was in generally good health.

[9] The defendant has been a lawyer for slightly over four decades. He was engaged in a general practice working both as a solicitor and barrister. A portion of this practice was in family law.

[10] The defendant is 5’ 11”, and on March 14, 2000, weighed 165 pounds. He suffers from arthritis and has done so for many years. His arthritis is located in his knee and ankle and more recently in his hands and neck. His arthritis affects his grip and he has at times difficulty picking up papers and turning pages.

[11] On March 24, 1999, the plaintiff retained the defendant to act for him in divorce proceedings. The plaintiff has no understanding as to why his wife of 38 years left him. He testified that he “is still trying to figure out why she left.” He did not want a separation and, I conclude, did not want to face the reality of the consequences of such a separation.

[12] In his meetings with the defendant, the plaintiff repeatedly advanced the concept of mediation and was frustrated by the defendant’s apparent inability to persuade his wife’s counsel to engage in that process.

[13] The plaintiff complains that the defendant would send him letters and that he remonstrated with him about such letters, which he called “one-line $75 letters.” His complaint was that he would only see these letters when he came out of camp.

[14] The defendant’s view with respect to his correspondence with the plaintiff was that it was a way of keeping him informed as to what was transpiring with respect to his matrimonial affairs.

[15] The plaintiff testified that he was charged once for a three-hour phone call to his camp supervisor and when he complained to the defendant that he had to “put the money back in” the defendant replied “No God damned way.”

[16] An examination of the two accounts rendered by the defendant to the plaintiff, however, show that at no time did the defendant charge any phone calls of such a length to the plaintiff. That being so, there would be no basis for the comment allegedly made by the defendant.

[17] The plaintiff’s view of the relationship was that he was a busy man and on the occasions that he would come out of camp for a day or two, before returning he should be able to see the defendant on demand.

[18] It is clear that the plaintiff felt uncomfortable in this matrimonial litigation and began to view the defendant as not supportive of his position. In his evidence he described how the defendant remonstrated with him for being late for examinations for discovery, and that the defendant treated him like “a rag” at the examination for discovery. He testified that he said to the defendant, “Whose side are you on?”

[19] His view of the defendant was that he was not doing his job, and that the work he did was poor considering what he was paying him. He reiterated throughout his evidence that the defendant continued, against the plaintiff’s protests, to send what he called “$75 to $100” letters that said nothing.

[20] A review of the two accounts, dated August 12, 1999, and April 26, 2000, show that the defendant charged the plaintiff at the rate of $150, and that there were no letters billed to the plaintiff in the range of $75 to $100.

[21] The essence of the plaintiff’s evidence with respect to fees charged by the defendant was that he felt “ripped off by the defendant.”

[22] Despite his complaints that he did not feel that the defendant kept him informed, he conceded that when he would get home from camp he would often not even read his mail. As he testified, “I didn’t have time to read or open them before I went to see the defendant.”

[23] The defendant said that from the first meeting on March 24, 1999, it was evident to him that the plaintiff was reluctant to pay anything to his wife and did not seem receptive to the defendant’s suggestions that he deal with some immediate issues such as spousal support and the “triggering event.” The defendant said that the plaintiff seemed reluctant to tell him much of anything and he did not like the concept of attempting to settle matters. Notes of the defendant taken in a meeting of April 20, 1999, record: “[h]e expects to be laid off soon. He is low in seniority.”

[24] The defendant agreed that the two of them discussed the concept of mediation but that he tried to make it clear to the plaintiff that his wife would have to agree to that process and that he had been unsuccessful in persuading counsel for the plaintiff’s wife to agree to mediation.

[25] The defendant also agreed that the plaintiff complained to him about sending letters, but that he told the plaintiff that if he didn’t, then he might be accused of not keeping him informed of events.

[26] The relationship between client and lawyer was not improved over a misunderstanding of an amount paid by way of a retainer. The records of the defendant recorded that this was half of the amount actually paid, however, the defendant corrected this at a subsequent meeting.

[27] On March 14, 2000, after returning from camp at 2:00 a.m., the plaintiff appeared at the defendant’s office without an appointment. Within about ten minutes of his arrival, the defendant came to the reception area and invited the plaintiff to his office. The plaintiff said the defendant complained to him about not having been at a hearing in Nanaimo, but the plaintiff also testified that he told the defendant that he had left a message on the defendant’s answering machine that he had had to go out of town on an emergency job.

[28] The defendant’s office has never had an answering machine.

[29] The meeting did not go well. The plaintiff described the defendant as being hyper, speaking in a high-pitched voice. The defendant denies this. He said that he was calm.

[30] The plaintiff said at one point he reached for his file with his right hand. He recalls there being a small bear-shaped, soapstone bowl with paper clips on the desk.

[31] He said that as he reached for the file, the defendant grabbed his wrist and twisted it to the right. At that point, he said, he stood up. He said that he was holding the file with his thumb on the bottom and fingers on the top.

[32] The plaintiff said that the defendant then jumped up out of his chair, grabbed the file with his left hand while the plaintiff attempted to relieve the pressure on his right arm by moving to the right. He said the defendant then hit him in the bicep muscle with what he assumed was an object, perhaps the soapstone bear or a stapler.

[33] The plaintiff testified that after the defendant hit him, he put something in a drawer, slammed the drawer with his knee and then shoved the desk toward the plaintiff, at the same time still holding onto the plaintiff’s arm. He said that the defendant then moved around the desk and continued to hold his arm in a twisting motion. He said the defendant then jerked the arm toward him and launched at his shoulder with his head and “coco bonked” him two or three times.

[34] The plaintiff then testified that the defendant “judo-chopped him” and the file and its contents fell to the floor. The plaintiff says this encounter lasted between 20 and 25 seconds, and then he heard someone whom he later identified as Mr. Mosley yell, “let him go.” At that point the defendant let go of the plaintiff’s hand and stepped back.

[35] The plaintiff recalled Mr. Mosley saying, “I think you had better leave.” The plaintiff testified that he said “call the police.”

[36] The plaintiff said that the defendant then offered him a ride to the hospital, to which he responded, “you are the last guy to take me to the hospital.” The plaintiff then said he turned to Mr. Mosley and said, “What do think of a guy you pay $150 per hour to and he tries to rip your arm off?”

[37] The RCMP subsequently arrived and detained the plaintiff, but released him shortly thereafter after the defendant told the police he did not want charges laid.

[38] The defendant testified to a substantially different description of events.

[39] On March 14, 2000, he said the plaintiff appeared at his office and remarked in a low voice, “do you feel safe?” He said he ushered the plaintiff in and went to get his file. As he left, he saw the plaintiff pick up a chair and slam it down on the floor. The defendant said he became apprehensive at this behaviour.

[40] The defendant returned to his office, placed the file on his desk, sat down, and asked the plaintiff where he had been, whereupon the plaintiff responded, “you ripped me off.”

[41] The defendant thought that he was referring to the earlier misunderstanding about the amount of the retainer and replied, “don’t you read my letters?” referring to the missed examination for discovery.

[42] The defendant said the plaintiff then said, “I don’t understand all your shit words.” The defendant testified that he asked, and then demanded that the plaintiff leave his office. He said he repeated this request.

[43] The defendant agrees that he was angry at these comments and that was why he had asked the plaintiff to leave his office. He said he was also frustrated by the plaintiff in part because he was hard to get together to work with and he did not respond to correspondence.

[44] The defendant said that his desk was an old wooden one and that it weighed in excess of 100 pounds. Photographs of the office, which the defendant said was the same in March, 2000, show that as one enters the office in front of the desk, there are chairs and that he has to walk around to the right to get behind the desk.

[45] After he had asked the plaintiff to leave, the defendant said the plaintiff remained silent and then reached for the file with both of his hands. As the plaintiff did this, the defendant said that he leaned forward, put an arm on the file and said, “you are not taking it.”

[46] At that point, he said, the plaintiff leapt to his feet and then pushed the desk back, forcing the defendant’s chair against the wall and causing his head to snap forward and his glasses to fly off. The defendant said he was pinned to the wall and so he pushed the desk forward, trying to get to his feet out of a concern that he might be struck further by the plaintiff.

[47] At that point, he said, the plaintiff had the file in his hands and was looking at it. The defendant said that he took steps forward to get closer into the plaintiff so as to prevent the plaintiff from striking him. He said he then reached for the file, putting his hands near the plaintiff’s right hand, and then jerked the file to the right while the plaintiff jerked his arm to the left.

[48] The defendant said that at no time did he strike the plaintiff nor did he have any soap-stone carving object on his desk. He said that he had a small ceramic bowl in which he kept pens.

[49] At that point, he said, the file fell apart and Mr. Mosley, his partner, appeared in the room. The defendant said that he heard Mr. Mosley tell the plaintiff to leave and then heard him call a secretary to call the police. He agreed that he said to the plaintiff that he was sorry and that if he was hurt that he would drive him to the hospital. He said that he said this because the plaintiff was favouring his shoulder, as opposed to in response to anything the plaintiff may have said.

[50] The defendant was pressed in cross examination as to how he may have received a small cut on his nose. The defendant did not think that if their heads did collide, it was with enough force to cause a cut, but conceded that at the examination for discovery he said that that was a possible cause.

[51] He testified that he felt it more likely the small cut occurred when his hands went up to his face and his glasses fell off.

[52] Mr. Mosley, the defendant’s partner since 1977, also testified. His evidence was that he was alone in his office on March 14, 2000, and that his office is next to the defendant’s.

[53] He said he heard the defendant’s voice from his office, saying several times, “get out.” As he was considering what to do, he heard what he described as a bang.

[54] Mr. Mosley then left his office and attempted to enter the defendant’s. The door was closed and locked. Mr. Mosley testified that this was not uncommon as the office doors had buttons that occasionally would not reset, causing the doors to lock when shut. He said he banged on the door and, getting no response, went to get his key so that he could enter the office.

[55] He opened the door and as he entered he said he saw the plaintiff standing at the corner of the desk with a file in his right hand. The plaintiff then began to walk toward the door and portions of the file spilled to the floor.

[56] He said he spoke to the plaintiff but did not recall the words he used, other than that they were to the effect that the plaintiff should put the file down and leave.

[57] He said the plaintiff said that he would not and Mr. Mosley said that he would then call the police, to which the plaintiff responded, “go ahead.”

[58] Mr. Mosley then left to have the police called but a secretary had already done that. He returned to the office momentarily, telling both the plaintiff and the defendant to sit down. Mr. Mosley said that at no time did he see the defendant touch the plaintiff and at no time did he tell the defendant to “let him go.”

[59] He says he did not notice if the position of the desk was other than normal, but said that his focus was not on the desk but rather the file not leaving the office.

[60] He said that when he returned to the office, the plaintiff said his shoulder was sore. The defendant said that he was sorry if it was sore, but he had done nothing.

[61] In cross examination Mr. Mosley said that the bang or noise he heard was consistent with the desk being moved or hitting something. He said it was not consistent with a desk drawer being shut forcefully or a chair being slammed onto the floor.

[62] Ms. Thompson, a secretary in the defendant’s law office but not the defendant’s secretary, testified that she heard a noise that she thought at first might have been workers repairing an air-conditioning system on the roof. She then heard the defendant yell, “get out of here.”

[63] Mindful of an instance of some years before in which a client shot and killed a lawyer in Nanaimo, she called 911. She then said that she saw Mr. Mosley at the defendant’s office door, which seemed locked, and shortly thereafter the police arrived. She observed the plaintiff being ushered out of the building and she then went into the defendant’s office. She saw the defendant sitting in a client chair and bleeding from a small scratch on his nose. She observed that his desk was in a skewed position and that this was consistent with what the defendant had told her had happened.

[64] She said the defendant’s desk had side drawers but these could not be opened unless the centre pen drawer was pulled back some 4 to 5 inches. She said the law firm had neither an answering machine nor voice mail in 1999 or 2000. She said that the sound she heard and had first thought to be associated with the roof was consistent with the desk being moved. She recalled the police officers being told by the defendant to “let it pass.”

[65] As will be apparent from this review of the evidence, there is a significant dichotomy between the descriptions of what occurred, as testified to by the plaintiff and the defendant. It is, accordingly, necessary to examine other evidence in this trial to see where there is support or detraction from either version.

[66] As a part of that process, the assessment of credibility of each of the plaintiff and defendant is necessary. I have already reviewed the evidence of Mr. Mosley and Ms. Thompson. Dr. Cameron, an orthopaedic surgeon whose medical report was filed, testified by way of a video deposition. Although the issues of liability and quantum are severed, his evidence bears on the question of liability.

[67] Dr. Cameron saw the plaintiff in October, 2000, on a referral from his general practitioner, Dr. Fraser. Dr. Cameron records in his report that the plaintiff told him that he had been assaulted on April 14, [sic].

[68] He records the history of the alleged assault being that the plaintiff’s “right wrist was grabbed and that he was punched in the right anterior arm area.”

[69] Dr. Cameron said there was a “definite reproducible shoulder pain” but he had the impression there was an exaggeration of symptoms by the plaintiff.

[70] In his written opinion, Dr. Cameron appears to accept the plaintiff’s history of the assault and accepts what he saw as a consequence of the described assault.

[71] Dr. Cameron notes at page 5 that the assault

. . .consisted essentially of his right arm being grabbed and the arm being twisted and the interior arm being punched. Such a blunt blow would not in and of itself cause inflammation of the rotator cuff, but any involuntary jerking response in response to the impact could have occurred and that could result in such an injury.

[72] In his deposition, Dr. Cameron heard, for the first time, the defendant’s version of what occurred. Dr. Cameron at page 10, line 41 and following said that a straining injury results in damage to the tendon, and damage to the tendon results in pain with movement of the shoulder. That, he opined, is what created the tenderness involved the plaintiff’s entire shoulder girdle.

[73] At page 8, line 17 of the transcript, Dr. Cameron opined that the more likely mechanism of the plaintiff’s injury was the motion of forcibly driving an object such as the defendant’s desk against an immoveable object and having it come to a sudden stop. He agreed at page 8, line 34 that a so-described tug-of-war with the file, with pulling on both sides in an effort to grab hold of the file was less likely a cause of such injury. He discounted any punch causing the plaintiff’s complaints.

[74] The plaintiff, both in his evidence and in his examination for discovery, denied that he had any recent injury to his arm, only to concede in cross examination that in October, 1999, he suffered an injury to his right elbow which occurred when he lifted a heavy tool box into a float plane. He testified that he made no WCB claim, only to later agree that at his request, his physician completed a W.C.B. claim form that recorded the injury as follows:

Lifting a 75-pound tool box out of an aircraft as he set it down, felt something pull in his right elbow, felt immediate pain.

[75] The plaintiff said he disagreed with what his physician wrote down and commented that “Dr. Fraser does not write down what he thinks.”

[76] The plaintiff, notwithstanding this evidence, testified that he went to physiotherapy for a few days and that all was fine after that.

[77] A report was not received from Dr. Fraser, even though the plaintiff testified that he saw him 35 to 40 times following the alleged assault by the defendant. Plaintiff’s counsel informed me that whilst a report was requested, one was not received. That may be so, but in light of the plaintiff’s comments about his physicians, a subpoena might have been a wise avenue to take.

[78] There is further evidence that touches upon the credibility of the plaintiff. The plaintiff testified that the defendant had charged him for a three-hour phone call and had habitually written him letters for which he was charged $75. In examination Exhibits 5 and 6, the two invoices of the defendant to the plaintiff reveal that there was no three-hour phone call and there are no $75 letters. The only exception with respect to that is a letter which was written on February 28, 2000, for which, in addition to a phone call and file review, the defendant charged the plaintiff for 1.5 hours.

[79] That letter was filed as Exhibit 8 and the defendant testified that the letter was written after a review of the plaintiff’s file, and after much thought about his view of the plaintiff’s state of denial with respect to the matrimonial affairs.

[80] I referred earlier in these reasons to the state of the pleadings. Although framed in negligence, they allege what is actually an assault. Counsel for the plaintiff argued that it was appropriate to plead negligence as there was “a duty of care of a lawyer to protect a client.” At one point, he sought to argue the Occupiers Liability Act, although that too was not pled. I simply do not understand, if the plaintiff’s evidence is accepted in any measure, how an intentional application of force can convert itself to an act of negligence. Quite apart from that, the Occupier’s Liability Act has no application to this matter, even with respect to the plaintiff’s version of events.

[81] It does not matter whether the defendant intended to hurt the plaintiff by doing what the defendant allegedly did. A simple assault is an act of general, not specific intention. The form of pleading does not change what is alleged.

[82] According to the plaintiff’s description, what occurred was not a negligent act but rather a purposeful application of force to the plaintiff’s person. That being so, what is being alleged is, in essence, the criminal act of assault. Yet, these are civil proceedings and the civil burden of proof is imposed upon the plaintiff to establish his case on “a balance of probabilities.”

[83] As observed by Laskin J., as he then was, in Continental Insurance Company v. Dalton Cartage Co., [1982] 1 SCR 164 at p. 4:

Where there is an allegation of conduct that is morally blameworthy or that could have a criminal or penal aspect and the allegation is made in civil litigation, the relevant burden of proof remains proof on a balance of probabilities. So this Court decided in Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154. There Richie J. canvassed the then existing authorities including especially the judgment of Lord Dening in Bater v. Bater, [1950] 2 All E.R. 458 at p. 459; and the judgment of Cartwright J. as he then was in Smith v. Smith and Smedman, [1952] 2 S.C.R. 312 at p. 331 and he concluded as follows (at p. 164):

Having regard to the above authorities, I am of the opinion that the learned trial judge applied the wrong standard of proof in the present case. At the question of whether or not the appellant was in a state of intoxication at the time of the accident is a question which ought to have been determined according the “balance of probabilities.”

[84] At p. 5, Laskin J. continued his observation as to the standard of proof and the degree of scrutiny which must be applied when the claim is founded upon an act that involves behaviour that is criminal in nature:

There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial judge is justified in scrutinizing evidence with a greater care if there are serious allegations to be established by the proof that is offered. I put the matter in the words used by Lord Dening in Bater v. Bater, supra, at p. 459 as follows:

It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond a reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends upon the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which commensurate with the occasion.

I do not regard such an approach as a departure from a standard of proof based on the balance of probabilities nor is supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established.

[85] More recently, the British Columbia Court of Appeal in J.R.I.G. v. Tyhurst, 2003 BCCA 224, [2003] B.C.J. 846 considered how a court should approach the question of the standard of proof when the cause of action is criminal in nature.

[86] Huddart J.A. noted at para. 6 that the common law recognizes these and other difficulties in cases where morally blameworthy conduct is alleged, and the consequences are grave by demanding an exacting analysis of the evidence and a standard of proof based on a balance of probabilities, as would be commensurate with the occasion. One of the authorities to which Her Ladyship referred was the decision of Continental Insurance Company. v. Dalton Cartage, supra.

[87] I conclude, therefore, that when the basis of the plaintiff’s claim is essentially one of criminal conduct on the part of the defendant, close scrutiny must be brought to bear with respect to the plaintiff’s assertions.

[88] Applying these principles to the plaintiff’s assertions against the defendant, can it be said that he has established on a balance of probabilities that he was assaulted by the defendant? As is clear from my review of the evidence, there were no witnesses to this assault. The defendant gives a very different version from that of the plaintiff.

[89] I have touched upon the independent evidence and I wish now to specifically review that evidence in the context of the law as I have enunciated it.

[90] The evidence of Dr. Cameron does not support the plaintiff’s assertion as to how this injury occurred.

[91] In his deposition transcript at page 8, he said that the more likely cause of injury was the driving of an object like a desk up against an immovable object and having it come to a sudden stop. In his deposition at page 7 he justified this opinion as follows:

Q All right. Now, would – I gather from your – your report it is not your opinion that the injury that he had to his shoulder – it’s your opinion that that could not have been as a result of the grabbing, twisting of the arm, and a punch.

A I don’t think that that – those, either of those things would have caused directly an injury to the rotator cuff, no.

Q I gather that what your opinion does say is that if, if there was an injury to the rotator cuff from this incident it may have occurred as a result of his involuntarily jerking away from being held, and that would have somehow – may have caused an injury?

A Yes.

[92] These two answers, in my opinion, contradict the plaintiff’s version of how he became injured. Furthermore, as seen in his report at page 5, Dr. Cameron’s opinion concerning the cause of the plaintiff’s injury was formed before he had the defendant’s version placed before him.

Mr. Nadig’s description of the assault consisted essentially of his right wrist being grabbed and the arm being twisted, and the anterior arm area being punched. Such a blunt blow would not in and of itself cause inflammation of the rotator cuff, but an involuntary jerking response in response to the impact could have occurred and that could result in such an injury.

In my view, that view is consistent with the defence’s version of how this injury occurred.

[93] The plaintiff asserted that Mr. Mosley told the defendant to “let go of him.” Mr. Mosley denies any such statement.

[94] The plaintiff says that on earlier occasions he had left messages on the defendant’s answering machine. The defendant had no answering machine.

[95] Both Mr. Mosley and Ms. Thompson testified that the sound they heard was consistent with the sound of the desk being moved.

[96] The plaintiff denies that the desk was moved other than when the defendant at one point pushed the desk forward, which is entirely consistent with the defendant’s version of extricating himself from behind the desk which was pinning him against the wall. The evidence of Ms. Thompson is that the desk was askew with the front right being pushed back. That is consistent with the defendant’s version and inconsistent with the plaintiff’s version.

[97] I find that Mr. Mosley and Ms. Thompson, notwithstanding their long association with the defendant, were credible and reliable witnesses.

[98] Although the plaintiff attended upon his general practitioner shortly after the events at the defendant’s office and 35 to 40 times thereafter, there is no evidence from that doctor with respect to the cause of injury or the effect of the earlier injury from lifting the tool box. The plaintiff denied there had been a W.C.B. claim pertaining to this earlier injury prior to March 14, yet, some four months before this incident occurred, Dr. Fraser’s report, in which the plaintiff claimed something was pulled in his right elbow, was forwarded to W.C.B..

[99] The plaintiff’s answer to this report was he “disagreed with what Dr. Fraser wrote.” Dr. Fraser did not testify.

[100] I have already referred to the exaggerations of the plaintiff with respect to the three-hour phone call and the $75 to $100 letters.

[101] In my view, these exaggerations, while perhaps minor in isolation, when added to the other evidence inconsistent with the plaintiff’s version, cause me to have reservations with respect to the credibility of the plaintiff’s version of what happened on March 14, and just how his injury occurred.

[102] The plaintiff, in my view, is not a reliable witness. Quite apart from the direct contradictions of his evidence to which I have referred throughout these reasons, his demeanour as a witness was one of exaggeration, a trait observed by Dr. Cameron.

[103] Without corroboration I am not prepared to accept the plaintiff’s assertions of assault. There is no basis to find any negligence.

[104] In contrast, I found the defendant to be not only a credible witness, but one whose evidence finds support in the other evidence to which I have referred, including that of Mr. Mosley, Ms. Thompson and Dr. Cameron. I find no inconsistencies in the evidence that detract from the defendant’s version of events.

[105] In the result, I am not satisfied the plaintiff has established liability of the defendant, whether pled in negligence or as it should have been more properly pled, in assault and battery.

[106] Accordingly, the plaintiff’s claim is dismissed. The defendant is entitled to costs on Scale 3.

“J.D. Taylor, J.”
The Honourable Mr. Justice J.D. Taylor

August 27, 2003 – Corrigendum to the Reasons for Judgment issued by Mr. Justice J.D. Taylor advising that the second sentence of paragraph 78 should read:

“… The plaintiff testified that the defendant had charged him for a three-hour phone call and had habitually written him letters for which he was charged $75.”

And that the paragraph 79 should read:

“… That letter was filed as Exhibit 8 and the defendant testified that the letter was written after a review of the plaintiff’s file, and after much thought about his view of the plaintiff’s state of denial with respect to the matrimonial affairs.”