This month the judiciary in Ontario blazed new legal ground by creating the tort of “family violence”.
In the recent case (Ahluwalia v. Ahluwalia) the parties were involved in divorce proceedings following a violent marriage. Over and above the typical payments for spousal support the Court created the tort of ‘family violence’ and ordered $150,000 in damages to be paid for this wrong. In creating this new tort the Court provided the following reasons:
Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, demonstrating that civil litigation can be an important tool to help achieve justice following physical assault where criminal repercussions alone fail to address harm caused.
In the recent case the Defendant battered the Plaintiff is a domestic incident. He was charged with criminal assault and plead guilty but was sentenced to an absolute discharge. The civil repercussions, however, were far heftier.
Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, ordering two defendants to pay over $650,000 in damages following an unprovoked attack.
In this week’s case (Andrews v. Shelemey) the Plaintiff alleged that the Defendants “came to his residence on August 3, 2015, as a result of a dispute concerning a transmission repair that Mr. Andrews had completed on Mr. Shelemey’s vehicle in late 2014 or early 2015. He says that without provocation, Mr. Shelemey and Mr. Leveque wrongfully and intentionally assaulted him resulting in serious injuries including a fractured sternum, soft tissue injuries to his back, rib fractures, a fractured lumbar vertebra, a broken tooth and various lacerations, bruises and contusions.”.
Despite the defendants denying fault the court found the unprovoked attack took place and held the Defendants jointly and severally liable to pay the damages. In reaching this decision Mr. Justice Mayer provided the following reasons:
A little appreciated fact are the broad timeframes at play when certain individuals can sue their abusers for either sexual or physical abuse.
For many years BC has had no limitation period for claims relating to sexual assault. Whether the victim is a minor or an adult a lawsuit can be brought at any time against their sexual assailant. In cases without actual sexual assault but that amount to “misconduct of a sexual nature” there also is no limitation period if the victim was a minor at the time of the misconduct.
But what about cases of physical assault with no sexual nature? Historically these were subject to the limits set out in BC’s Limitation Act. However, in 2013 changes to the Act came into force which removed limitation periods for certain victims of non sexual abuse.
Section 3(1)(k) came into force and removed limitations for lawsuits based on
(k)a claim relating to assault or battery, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant
(i)was a minor, or
(ii)was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery;
The broad section gives the right for children to sue their abusers at any time. It also expands this right to those in financially, emotionally or physically dependent relationships with their abusers.
Assault and battery are legally simple concepts. Battery simply refers to the unwanted application of intentional force. Assault is the threat of the application of such force. Anyone perpetrating these wrongs to vulnerable victims can be pursued at any time to be made accountable for their wrongdoing. This expanded limitation period was discussed in a case published earlier this year by the BC Supreme Court.
In Khan v. School District No. 39 the Plaintiff sued for various historic allegations of harm. In discussing those that were and were not statute barred Mr. Justice Majawa provided the following comments on the current state of the Limitation Act:
Getting in a bar fight is seldom a good idea. Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, providing 226,000 reasons to think twice before doing so.
In today’s case (Thompson v. Fraser) the Defendant, who was employed as a school teacher, got into an altercation with other patrons at the lounge bar of Vancouver’s Pan Pacific Hotel. The Plaintiff, a security guard, was called to deal with the situation and proceeded to escort the Defendant out. The Defendant then “sucker-punched the plaintiff in the face, badly and permanently damaging the bony structure around his left eye.“. The court described it as “a thoroughly disgraceful incident.”
The Defendant was criminally charged and convicted of assault causing bodily harm. The criminal consequences were “extremely lenient” with the imposition of a mere conditional discharge. Mr. Justice Baird, presiding over the civil suit, opined “part of the reason for this, I have no doubt, was the understanding that eventually he would have to answer for his misconduct in a civil lawsuit and, in all likelihood, pay the plaintiff a sizeable sum in damages.”
The assault caused serious injury requiring”metallic gear fused into his facial bones that causes him significant pain and discomfort when it is cold outside. There is a screw directly beneath his left eye that he can feel with his finger and causes a great deal of pain on incidental contact.“.
In assessing global damages at $266,000 including $10,000 for aggravated damages Mr. Justice Baird provided the following reasons:
Both civil and even criminal repercussions occasionally arise following recreational and even professional sporting assaults in Canada. Reasons for sentencing were published this week by the BC Provincial Court highlighting a case of the latter.
In this week’s case (R v. Miletic) the Defendant sucker punched a fellow competitor during an adult league recreational soccer game in New Westminster, BC. The punch “broke the victim’s orbital bone and caused him negative longer-term effects“. At trial the Defendant was convicted of assault causing bodily harm.
The Court summarized the circumstances of the offence as follows:
Reasons for judgement were published today by the BC Supreme Court, Smithers Registry, ordering an RCMP constable and the crown to pay $55,000 in damages to a Plaintiff who was injured during a wrongful detention.
In today’s case (Joseph v Meier) the Plaintiff was shopping at a retail store when another woman shopping in the same area of the store put a scarf into her bag and then, when confronted, threw the scarf to the floor and fled. The plaintiff, who was elderly with limited mobility, continued shopping. The store manager mistakenly believed the two women were together and had the police called.
When the Defendant RCMP constable confronted the plaintiff she “refused to stop or provide information to him. She repeatedly told him that she had done nothing wrong and did not need to talk to him” . He took her to the ground and attempted to handcuff her while she resisted. The Plaintiff was injured in the altercation. In finding the Constable liable for false arrest, false imprisonment, assault and battery Madam Justice Brown provided the following reasons:
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering a motorist to pay almost $35,000 in damages after striking another motorist in the face.
In today’s case (Henderson v. McGregor) the parties were both operating motor vehicle moving in the same direction of travel. The Plaintiff was concerned that the Defendant was not paying adequate attention. The vehicles stopped close to each other and the Plaintiff exited his vehicle and approached the Defendant. The Defendant “struck him without warning, grabbing and scratching his face causing lacerations and bruising and drew blood.”.
The Court found the Defendant liable for the torts of assault and battery and ordered damages just shy of $35,ooo to be paid including $2,000 in aggravated damages. Mr. Justice Walker provided the following findings regarding liability:
Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a lawsuit following a customer on customer assault at a commercial establishment.
In today’s case (Tanaka v. London Drugs Limited) the Plaintiff was shopping at London Drugs when another customer suddenly and unexpectedly punched the Plaintiff in the face knocking him unconscious. The assailant remained unidentified. The Plaintiff argued London Drugs should be vicariously liable for the assault either based on the principles of Negligence of Occupier’s Liability legislation. In dismissing the claim and finding there should be no vicarious liability in the face of a “sudden, random, and apparently unprecedented act of violence” Madam Justice Horsman provided the following reasons:
Reasons for judgement were published this week by the BC Supreme Court, Smithers Registry, demonstrating that punching someone in the face is rarely the legally acceptable solution to a problem.
In the recent case (Azak v. Chisholm) the Defendant was a contractor building a retaining wall on property neighbouring the Plaintiff’s. A verbal confrontation between the Plaintiff and Defendant occurred with the court finding “the plaintiff confronted Chisholm about the Project in a belligerent manner that Chisholm did not like” and specifically with the Plaintiff calling the Defendant “a ‘f-ing asshole” and a “white piece of shit”.
The Defendant gave evidence as follows surrounding the altercation: Chisholm told the plaintiff that “we are going to go to work and what are you going to do about it?” The plaintiff responded by saying: “you’re going to find out right now” and that Chisholm was a “white piece of shit”. Chisholm testified that he perceived this as a threat and he did not want to find out what the plaintiff had in mind. Chisholm said “I’ve had enough”, jumped down from the retaining wall and hit the plaintiff in the face.
The punch resulted in a fractured cheek and nose that requires surgical correction.
The Plaintiff successfully sued for damages. In rejecting the Defendant’s claim of self defense and noting the burden on a defendant to successfully raise the defense Mr. Justice Weatherill provided the following reasons:
[70] I find that, regardless of the harassment and insults the plaintiff had levied at Chisholm and regardless of how long the plaintiff’s difficult behaviour had been ongoing, Chisholm had no right or justification to do what he did. I find that, whatever threat Chisholm perceived when he was first confronted by the plaintiff on the morning of July 2, 2013 had eased well before the Assault took place. I do not accept that Chisholm was either afraid for his own safety or that of his co-workers. Chisholm could easily have either removed himself from the property or had Nyce mediate the situation, as he had done many times previously. Instead, I find that Chisholm simply and regrettably let his anger and frustration get the better of him.
[71] I find that Chisholm’s reaction was unreasonable and totally disproportionate to the circumstance he was in and I reject his claim that he acted in self-defence. No reasonable person in Chisholm’s shoes would have felt physically threatened by what the plaintiff had said.
[72] I find that the plaintiff has demonstrated, on the balance of probabilities, that Chisholm committed the tort of battery upon him, that Chisholm failed to demonstrate he was acting in self-defence and, therefore, Chisholm is liable to the plaintiff in damages.