IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Charland v. Cloverdale Minor Baseball Association and |
| 2013 BCSC 488 |
Date: 20130320
Docket: S136056
Registry:
New Westminster
Between:
Benoit Charland
Plaintiff
And:
Cloverdale Minor
Baseball Association
and David Wheeler
Defendants
Before:
The Honourable Madam Justice Watchuk
Reasons for Judgment
Counsel for the Plaintiff: | G.A. Pyper |
Counsel for the Defendant Wheeler: | J.M. Green |
No one appearing for the Defendant Cloverdale Minor |
|
Place and Date of Trial: | New Westminster, B.C. August 30-31, 2012 Vancouver, B.C. September 5, 2012 |
Place and Date of Judgment: | New Westminster, B.C. March 20, 2013 |
I.
INTRODUCTION
[1]
The individual parties are fathers whose sons are involved in Pee Wee
baseball in Cloverdale, British Columbia. This action involves an altercation between
the fathers at a Pee Wee baseball game at Greenaway Park (the park) in
Cloverdale on May 16, 2011.
[2]
The claim against the Cloverdale Minor Baseball Association was
discontinued before the trial.
[3]
On May 16th, one of Mr. Charlands sons was playing
in the baseball game, and Mr. Wheelers son, Cameron, was scheduled to
umpire. When Mr. Wheelers son was late arriving for the game, Mr. Charland
telephoned another of his sons to come and umpire.
[4]
When Mr. Wheelers son arrived at the park, Mr. Charland told
him to go home as he had been replaced due to his tardiness. Cameron left as
he was told.
[5]
Mr. Wheelers son went home upset from the game. As he was worried
about his son, Mr. Wheeler went to the baseball field to talk to Mr. Charland.
[6]
In the course of that conversation between Mr. Charland and Mr. Wheeler
at the park, an altercation ensued. Mr. Charland says that Mr. Wheeler
assaulted him and caused injuries. Mr. Wheeler says that Mr. Charland
assaulted him and that he acted in self-defence. The police officer who
attended the scene concluded that the fight was consensual.
II.
ISSUES
[7]
The issues which the parties seek to be decided by the Court are:
1.
whether Mr. Wheeler assaulted Mr. Charland by hitting him;
2.
whether Mr. Charland assaulted Mr. Wheeler by hitting him;
3.
whether Mr. Wheeler assaulted Mr. Charland by kicking him;
4.
whether Mr. Wheeler acted in self-defence;
5.
whether the fight was consensual; and,
6.
if there was an assault by Mr. Wheeler on Mr. Charland, what
quantum of damages should be awarded to Mr. Charland? Should special and
punitive damages be awarded to Mr. Charland?
III.
FACTS
[8]
It is not in issue that there was an altercation involving the two
fathers at the Pee Wee baseball game at the park on May 16, 2011.
However, the sequence of events and the altercation itself are in issue due in
part to the variations and discrepancies in and between the evidence of the six
witnesses. In addition to the parties evidence, I will summarize the evidence
of each witness, and then make the necessary findings of fact.
[9]
On behalf of Mr. Charland, the witnesses who were called were John Geppert,
Jeff Young and Deborah Brozer, all of whom were also in attendance at the
game.
[10]
On behalf of Mr. Wheeler, Cst. Lee of the RCMP testified as
did another parent who was at the game, Brianne Korrins, and his son, Cameron
Wheeler.
A. The Plaintiff
Benoit Charland
[11]
Mr. Charland, who is 48 years old, is a painting contractor who resides
in Surrey, British Columbia. He has three children. His two sons play
baseball at the park which is a five-minute walk from his home.
[12]
On May 16th, as it had rained the day before, Mr. Charland
volunteered to go to the field early to do the maintenance to get the field
playable. Game time was 6:30 p.m., and 20 minutes prior, he noticed that
one umpire had not yet arrived. As his son Cayman, who is an umpire, was
available, he called Cayman who arrived at the park to umpire the game.
[13]
As the game was getting underway, the other umpire, Cameron Wheeler, arrived
late. Mr. Charland testified that he let Cameron know that he had
forfeited the opportunity to umpire and should leave the field. Mr. Charland
said he was not emotional as he gave Cameron this information and was not
concerned for Cameron.
[14]
Mr. Charland then went to sit down and watch the game and eat his
meal. His chair was set up on the asphalt near the bleacher, but not
immediately adjacent to the bleacher.
[15]
At the end of the first inning, a man approached who he realized was
Camerons father, Mr. Wheeler. Mr. Wheeler gestured for Mr. Charland
to go with him to the back of the bleachers, but Mr. Charland asked what
about. He replied You had no right to do that.
[16]
Mr. Charland testified that he was adamant that he was not going
with Mr. Wheeler to speak with him as he had a meal and he wanted to stay
in the chair where he was sitting. Mr. Charland testified that he
politely asked Mr. Wheeler to wait but Mr. Wheeler continued to
harass him using bad words such as You fat fucking asshole.
[17]
Mr. Charland testified that Mr. Wheeler was getting heated,
and that he tried to ignore Mr. Wheeler but Mr. Wheeler kept
harassing him and would not take no for an answer. Mr. Charland described
the harassment as verbal assaults such as Come with me over here which
continued for four to five minutes.
[18]
Finally, Mr. Charland had had enough and decided he was going to go
with Mr. Wheeler. When he had not quite stood up, Mr. Wheeler
punched him in the left eye leaving the eye bleeding. Mr. Charland fell
down on the wet grass. There was some kicking and commotion until the opposing
coach came to take Mr. Wheeler away. Mr. Charland went to the
concession stand and from there someone called 911.
[19]
The police arrived and took information from Mr. Charland; he
understood they were subsequently going to Mr. Wheelers home to interview
him. Mr. Charland finished watching the game with a compress and band
aids on his eye.
[20]
Mr. Charland testified that as a result of the injuries inflicted
by Mr. Wheeler, he had a contused kidney which resulted in blood in his
urine. The cut on his eyelid was serious. The swelling in his eye took one
week to subside, and for three weeks he had bright flashes in his eye every 20
minutes. He had headaches on the left side of his head. In addition, standing
and lifting was difficult for several weeks. He had severe pain in his side
and back. These injuries affected his work as hand-eye coordination and heavy
lifting are required. He was unable to work for about a month.
[21]
Mr. Charland testified that his personal life was affected by the
injuries as were the relationships with him and his family. He also found it
hard to go out in public as it was a topic of conversation.
[22]
In cross-examination Mr. Charland agreed that he was not an umpire
coordinator. However, he thought he had the authority to kick Cameron Wheeler
off the field.
[23]
He also agreed that when Mr. Wheeler approached him, he approached
fairly calmly and was speaking in a fairly calm voice. He agreed that Mr. Wheeler
said words to the effect of Id like to talk to you about my son Cameron. He
agreed that he told Mr. Wheeler to fuck off, but he said that he used
the word after Mr. Wheeler did. He said that Mr. Wheelers demeanor
changed instantly from calm to confrontational.
[24]
Moments before standing up, he thought that he had been asked to fight.
Mr. Charland remained calm, he said, throughout, even after he was called
a fat fucker. He testified that he did not get angry at any point and he
only swore after he was sworn at. He said that he got out of the chair to meet
with Mr. Wheeler when all of a sudden Mr. Wheeler threw a punch.
[25]
Mr. Charland stated that he had been truthful in his statement to
Cst. Lee, but denied that he told the officer that he said Okay, Ill get
you to Mr. Wheeler. He said that he told Mr. Wheeler Ill do you
later which means I will meet with you later.
[26]
Mr. Charland agreed that the fight ended when he slipped on the
grass. He said he ended up on the grass because he stumbled there when he
could not see as he was stunned after he was hit in the head. He said he was
getting out of his chair and the sideways momentum took him five feet over onto
the grass.
[27]
In cross-examination, he recalled that he had been punched in the head
one time although he said in examination-in-chief that there were multiple
punches. He said that he was kicked when he was down on the grass. He agreed
that he had not said anything to the police about being kicked.
[28]
Mr. Charland weighed 289 lbs and is 62 tall.
B. Jeff
Young
[29]
Jeff Young was at the park on May 16th. He has been
connected with Cloverdale Minor Baseball as a coach for two years. Mr. Young
observed Mr. Charland tell Cameron Wheeler to go home when Cameron
arrived late to umpire the game.
[30]
About 15 minutes later, Mr. Young who was sitting at the top of the
bleachers, observed Mr. Wheeler lean over to chat with Mr. Charland who
was seated in a chair. Mr. Young did not notice anything out of the
ordinary at that point.
[31]
Mr. Young then observed Mr. Wheeler to become agitated and
motion Mr. Charland to a fight. He heard Mr. Wheeler call Mr. Charland
a fat fucker many times. Mr. Wheeler then backed up about 10 feet.
[32]
As Mr. Charland was getting up, when he was about three-quarters of
the way out of his chair to standing, Mr. Wheeler approached him and
punched him. The scuffle moved about 10-15 feet and then he and three or four
others moved in and separated Mr. Charland and the defendant. Mr. Wheeler
left the park; Mr. Charland got ice for his eye; and the RCMP came and
left.
[33]
It was Mr. Youngs opinion that between the two individuals, Mr. Wheeler
was the aggressor.
[34]
In cross-examination, Mr. Young agreed that he was sitting about 10
or 15 feet away in the bleachers, more up from the parties than sideways.
People came and went in between him and the parties.
[35]
Mr. Wheeler at first appeared calm as he leaned over and crouched
down to talk with Mr. Charland. He could see Mr. Wheelers face at a
45 degree angle but Mr. Charland was facing away. He could not see Mr. Charland,
but he could hear some of what was said. He did hear Mr. Charland say
words to the effect of Ive had enough as he was getting up. He did not hear
Mr. Wheeler use the word fight, but he took that from the context. Mr. Young
did not witness a kick.
C. John
Geppert
[36]
Mr. Geppert is also connected to minor baseball as his younger son
plays in Cloverdale. He was sitting on the bleachers on the third base side
about four to five levels up on the top corner at the home base end watching
the game. He was aware of another parent, Mr. Charland, sitting in a
chair beside the bleachers with his food on the bleacher.
[37]
During the game, he noticed Mr. Wheeler arrive and start an
exchange with Mr. Charland. He does not know the exact words, but had a
good understanding of the content of the conversation. Mr. Wheeler was
upset about Mr. Charland telling his son to go home as his son had come
home upset.
[38]
Mr. Geppert testified that it was clear that Mr. Wheeler
wanted to get into a fight as he was using a lot of profanity and amping it up.
Just before the fisticuffs, Mr. Wheeler was standing in front of Mr. Charland
between the lawn chair and the fence. Mr. Charland told him to get outta
here. Mr. Geppert hoped that Mr. Charland would not get out of his
chair.
[39]
When Mr. Charland got out of his chair, Mr. Wheeler grabbed
him by his shirt on the shoulder and immediately started punching him a number
of times. Mr. Wheeler then swung him around and continued punching him in
the face. Mr. Geppert intervened and told Mr. Wheeler to get out of
the park. Mr. Charland got up, bleeding profusely from a cut on his
eyelid.
[40]
When the RCMP officer arrived and told Mr. Charland that his
conclusion was that it was a consensual fight, Mr. Geppert was aghast.
[41]
Mr. Geppert did not see any kicking although he was concerned that
was going to happen.
[42]
In cross-examination, Mr. Geppert agreed that he did not see Mr. Wheeler
first approach Mr. Charland. When his attention was drawn to the two men,
he had a sense that things were escalating. He could see Mr. Wheelers
face and Mr. Charlands back from where he was sitting, and continued to
have a view only of Mr. Charlands back when Mr. Charland got up from
his chair. He did not hear Mr. Charland say anything to Mr. Wheeler.
He fairly agreed that he had missed some of the exchange between the two
fathers.
D. Deborah
Brozer
[43]
Ms. Brozer was at the park to watch her son play. She was sitting
beside her father who was keeping score for the game. They were sitting on a
bit higher level than Mr. Charland, on the bleachers a few feet away from Mr. Charlands
chair.
[44]
Ms. Brozer observed Mr. Charland tell Cameron Wheeler that he
was not needed. He said We dont need you.
[45]
Mr. Charland was sitting and eating his burger and fries with a
drink when Mr. Wheeler arrived. She observed Mr. Wheeler start to
yell at Mr. Charland with the word fuck being used a lot. The words piece
of shit were also used. Mr. Charland also responded move it and get
outta here and used some of the same language back at Mr. Wheeler.
[46]
Ms. Brozer then saw Mr. Charland get up, and saw a kafuffle,
but did not see any punches thrown. When Mr. Wheeler got up, he had the
French fry tray in his hand.
[47]
In cross-examination, Ms. Brozer could not say what Mr. Charland
said to Mr. Wheeler and could not see Mr. Charlands face the whole
time, but could see some of the side of Mr. Charlands face and Mr. Wheelers
face. Mr. Charland did not look angry at the beginning. At the end, she
saw Mr. Charland with a cut on his eye and blood trickling from the cut.
E. Constable
Lee
[48]
Cst. Lee of the Surrey RCMP attended at the park on May 16th
at approximately 18:56 hours. An employee of the ballpark had telephoned after
the altercation.
[49]
Cst. Lee met with Mr. Charland at the northwest side of the
field. He noticed a fresh mark below one of Mr. Charlands eyes which had
not yet progressed to a bruise. Mr. Charland advised Cst. Lee that as
Cam Wheeler had been late, he kicked him out of the game. Cst. Lee
understood that Mr. Charland had no authority to do that. After Cam was
ejected, his father came to the field and confronted Mr. Charland.
[50]
Cst. Lee testified that Mr. Charland said he agreed to Mr. Wheelers
request for a physical altercation and said to Mr. Wheeler Ill get you.
Based on Mr. Charlands evidence, Cst. Lee concluded that this was
consensual fight.
[51]
Cst. Lee noted that Mr. Charlands demeanour when he was
interviewed was agitated, but he made allowances since he had just been punched
in the face. Mr. Charland became angry with him when Cst. Lee told
him that no charges were being recommended against Mr. Wheeler.
[52]
Cst. Lee then went to Mr. Wheelers home where he interviewed Mr. Wheeler.
He was told that Cam had been kicked out of the game, and that when Mr. Wheeler
went to speak with Mr. Charland, Mr. Charland was confrontational and
advancing closer. Mr. Wheeler feared for his safety and punched Mr. Charland
one time to prevent him from being punched himself.
[53]
In cross-examination, Cst. Lee said that he would have taken more
notes if charges were to be recommended. He was not recommending charges as
from the evidence of Mr. Charland alone, it was, in his view, clearly a
consensual fight.
[54]
Cst. Lee also confirmed his evidence with regard to the statement
of Mr. Charland in cross-examination. Mr. Charland told the officer
that he was upset because Cam Wheeler was late, so he ejected Cam out of the
game, and Cam left. Cams father, Mr. David Wheeler, then came,
confronted him, and there was a verbal confrontation. When David Wheeler
motioned for a physical altercation, Mr. Charland, as he advised Cst. Lee,
agreed to a confrontation by saying, I will get you, and then Mr. Charland
was punched one time in the face after saying that.
[55]
Cst. Lee testified that Mr. Wheeler told him that Cam came
home from the game upset after being ejected by Mr. Charland. Mr. Wheeler
then went to the baseball field and confronted Mr. Charland, where they
had a verbal confrontation. Mr. Charland was close to his face, very
angry, and advancing closer. To prevent being assaulted, Mr. Wheeler told
Cst. Lee, he punched Mr. Charland.
[56]
Cst. Lee did not make the conclusion, in response to a question in cross-examination,
that it was self-defence.
[57]
Cst. Lee was a very credible and articulate witness. He testified
from memory which was consistent in all respects with his notes.
F. Brianne
Korrins
[58]
Ms. Korrins was at the game as her 13-year-old son plays baseball.
She witnessed Cam Wheeler being yelled at by Mr. Charland when he arrived
to umpire the game. Cam was told that he was late and not needed. He was told
to go away and get lost. Cams reaction, she testified, was that he looked
very upset and had tears in his eyes.
[59]
Ms. Korrins saw Mr. Wheeler come to the field and lean over Mr. Charland
to talk to him. She had not previously met either of the fathers, and was not
paying much attention to their interaction as she was watching the game.
[60]
Ms. Korrins turned her attention back to the fathers when Mr. Charland
stood up of his chair. She could not hear what they were saying, but saw them
both start swinging and throwing punches at each other, and grappling.
[61]
She estimated the time from Mr. Wheelers arrival to the commotion
at one minute and the entire event being very short, maybe two minutes. At the
end, it just dissolved, and Mr. Wheeler left the field. She did not
observe any injuries.
G. Cameron
Wheeler
[62]
The scheduled umpire, Cam Wheeler, is 14-years-old and has been a little
league umpire for approximately three years. On May 16th, he
was rushing to get to the game from a track meet and was running behind.
[63]
When he got his gear on and got to the field, Mr. Charland told him
that it was his fault and that he should go home.
[64]
Cam turned around and walked home. His mother was home, and when his
dad got home, he told him what happened at the game. He told him that Mr. Charland
had been speaking loudly from the other side of the fence and that Mr. Charland
had scared him.
[65]
Cam had two upcoming games scheduled to umpire at the time of this
game. He did umpire them, but he has not umpired since.
[66]
In response to a question with regard to the meaning of respect, Cam
said that he understood it to mean being kind. When he was asked if Mr. Charland
had provided him with respect when he was sent home, Cam said no. He said that
Mr. Charland just scared him.
H. David
Wheeler
[67]
Mr. Wheeler has lived in Cloverdale for 13 years and has been a bus
driver with Coast Mountain for 25 years. He is married and has three children,
of whom Cam is the youngest. Mr. Wheeler was surprised when Cam came home
on May 16th, and knew that something was wrong. He was told by
his wife that Cam had been sent home by a man, and that Cam came home crying.
At that time, Cam was not quite 5 feet tall and weighed 90 pounds.
[68]
When Mr. Wheeler talked to Cam, he learned that Caymans father has
sent him home. Mr. Wheeler wanted to talk to Caymans father, Mr. Charland,
to see if Mr. Charland would talk to Cameron to help make it better.
[69]
Mr. Wheeler went to the field and saw Mr. Charland sitting
beside the bleachers on the south side at the left corner in the lawn chair. Mr. Wheeler
approached Mr. Charland, and kneeled down to be eye level. He asked Mr. Charland
if he was the umpire allocator or had anything to do with allocating. Mr. Wheeler
told Mr. Charland that when his son had been sent home, his son was
upset.
[70]
Mr. Wheeler testified that the response of Mr. Charland was to
say, Fuck off. Mr. Wheeler was taken aback and stood up and said, pardon
to which Mr. Charland responded, Get the fuck out of my face.
[71]
Mr. Wheeler testified that he was shocked that Mr. Charland
was swearing as kids were around. He felt it had come out of nowhere,
especially in front of kids at a ballpark.
[72]
Mr. Wheeler then asked Mr. Charland to walk away to the side
with him to have a private conversation. When Mr. Charland declined, Mr. Wheeler
became upset and called Mr. Charland a fat shit.
[73]
Mr. Wheeler then walked away, 8 to 10 feet onto the asphalt area.
As Mr. Wheeler walked away, he heard Mr. Charland say Ill do you
later.
[74]
Mr. Wheeler was trying to process what was said to him. He
returned to continue the conversation with Mr. Charland, but noticed that Mr. Charland
was mad and aggressive.
[75]
Mr. Wheeler looked up and Mr. Charland was coming at him with
his arms like he was going to take off his head. Mr. Wheeler reacted and
threw a punch as Mr. Charland came forward. Mr. Wheeler backpedalled
towards the grass area where they fell. Another fellow came between them, and
it was over.
[76]
Mr. Wheeler testified that when Mr. Charland was coming at
him, he was very scared and thought he was going to hurt him. He thought that Mr. Charland
would end up on top of him. Mr. Wheeler is 61 and 220 lbs. To
him, Mr. Charland looked huge and Mr. Wheeler thought he was going to
get run over.
[77]
Mr. Charland slipped, and Mr. Wheeler stepped back. Mr. Wheeler
then left and went home. Mr. Wheeler testified that he did not kick Mr. Charland
when Mr. Charland was on the ground. He says he did not come to the field
with the intention to fight, and he had no intention to fight until Mr. Charland
got up from his chair.
[78]
Mr. Wheeler testified that he had a black eye for 3 to 5 days. He
has never before been in a fight as an adult.
[79]
When the RCMP officer came to his home after the incident, he told the
RCMP officer the same thing he told the Court, that he was scared and he
reacted.
[80]
In cross-examination, Mr. Wheeler agreed that he did not tell the
police officer that he had been hit by Mr. Charland and that he did not go
to a doctor for his black eye.
[81]
Mr. Wheeler testified in cross-examination that he went to the
ballpark because he was worried about his son who was scared and upset. He did
not want his son to be scared to go to a ballpark. He wanted Mr. Charland
to talk to his son as his son was intimidated by him.
[82]
Mr. Wheeler described Mr. Charland as having been nasty. When
he walked away, he still thought that they could talk, but he was processing
the reaction of Mr. Charland. He did not realize that he was going to be
hit until Mr. Charland was coming at him. He did not go to the ballpark
and invite Mr. Charland to fight. He thought as two adults with sons
umpiring, he and Mr. Charland could resolve the situation, that Mr. Charland
would talk to his son and make him feel better.
[83]
Mr. Wheeler said in cross-examination that he did not run away
because he did not know the attack was coming until he saw Mr. Charland
getting up. He did not invite Mr. Charland to fight; he invited him to
talk. He asked him to walk away with him to talk as he was concerned about Mr. Charlands
demeanour in front of the kids.
[84]
Mr. Wheeler agreed that he had called Mr. Charland a fat shit,
but said that he had not otherwise sworn at Mr. Charland.
[85]
Mr. Wheeler denied that he kicked Mr. Charland. He testified
that after Mr. Charland fell, he stepped back and it was over.
[86]
In cross-examination Mr. Wheeler disagreed with the suggestion that
at no time did Mr. Charland agree to engage in a fight. Mr. Wheeler
responded that Mr. Charland had initiated the fight, and that Mr. Charland
came at him.
IV.
The Law
[87]
In their pleadings, both parties alleged an assault by the other party.
As stated in the text cited below, the tort of assault, which is the
intentional creation of the apprehension of an imminently harmful contact, is
often blurred together with the tort of battery which is the act of striking.
Assault is the intentional creation of the apprehension of
imminent harmful or offensive contact. The tort of assault furnishes
protection for the interest in freedom from fear of being physically interfered
with. Damages are recoverable by someone who is made apprehensive of immediate
physical contact, even though that contact never actually occurs. The
underlying policy thrust of the tort of assault, like that of battery, is the
reduction of violence. Because threatening to inflict harm is apt to attract
retaliation in the same way as causing harm, it must also be discouraged by
tort law.
Assault should be distinguished from battery, although the
two are often blurred together and called assault. This does not usually
matter very much because in most cases both assault and battery are committed
in rapid succession. If a battery occurs, the assault tends to be ignored
since the quantum of damages for it will be rather small. An assault can be
committed without a battery and battery can occur without an assault preceding
it. For example, swinging at someone and missing is an assault but not a
battery; striking someone from behind, without his or her knowledge, is a
battery but not an assault.
Allen M. Linden & Bruce
Feldthusen, Canadian Tort Law, 9th ed. (Markham: LexisNexis Butterworths,
2011) at 46-47.
In the discussion below, I will, for consistency, for
the most part, refer to the assault as encompassing the assault and battery
involved in this case.
[88]
Consent is a defence to the torts of assault and battery. If Mr. Wheeler
alleges and proves that the parties agreed to the physical contact in question,
then Mr. Charland cannot complain of injuries suffered. The onus of
establishing consent is on Mr. Wheeler:
Although the fact that the plaintiff consented to the
defendants conduct effectively negates the argument that a wrong has been
committed, consent is treated as a defence which must be established by the
defendant.
Lewis n. Klar, Q.C., Tort Law,
5th ed. (Toronto: Thomson Reuters, 2012) at 128.
[89]
If a fight is proven to be mutual or consensual, the parties cannot
complain of injuries suffered in the course of the fight:
A related matter concern consent to violent acts in other
contexts, for example, in the case of mutual fights. The case law supports
the proposition that those who engage in fights, even though these activities
may be criminal, cannot complain of injuries suffered in the course of the
fight, unless the force which is used by one of the combatants is excessive or
unnecessary. The dismissal of the plaintiffs actions in these cases may be
grounded either on the basis of the defence of consent or illegality.
Lewis n. Klar, Q.C., Tort Law,
5th ed. (Toronto: Thomson Reuters, 2012) at 134.
[90]
In Petersen v. Stadnyk, 2006 BCSC 806 at para. 22, the Court
found that the first stage of a fight was consensual even though both parties
used excessive force. If the fight had ended at the point of mutuality, both
parties would have been disentitled to damages:
[22] When Mr. Petersen hit Mr. Stadnyk at the
bar, it was an excessive use of force. He had a choice to leave or call for
the staff to deal with Mr. Stadnyk. Mr. Stadnyk, after he was
punched, grabbed and began pushing Mr. Petersen. That, too, became
excessive. It might not have been if Mr. Stadnyk had acted only to ward
off further blows, but as he admitted, he prolonged the skirmish, intending to
force Mr. Petersen out of the exit door. It may be said that at that
point, the two gentlemen had become involved in a consensual fight, which, if
it had continued that way, both combatants could have disentitled themselves to
damages for any injury.
[Emphasis Added]
[91]
The use of excessive force was also considered in the case of Glover
v. Fell, [1999] B.C.J. No. 1333 (S.C.) which considered self defence
at para. 38:
[38] In preventing or repelling an attack, if in fact
that is what it was by Mr. Glover, no more than reasonable force may be
used, and what is reasonable depends on the facts and circumstances of the
case, including the nature and seriousness of the attack or threatened attack,
the relative size and strength of the combatants, and whether the acts complained
of took place after the threat was averted: (Klar et al, Remedies in Tort,
looseleaf ed., vol.1 (Toronto: Carswell) at pp. 2-28). Further, force may
only be used to repel or prevent an attack, not to punish an aggressor for past
actions or as a guise for a counterattack: Klar, supra at 2-27.
[39] Professor Fridman in The Law of Torts in Canada,
vol. 1 (Toronto: Carswell, 1989) at 60, discusses self defence in the
context of a civil action.
Self defence imports the idea that the defendant is
under attack at the hands of the plaintiff, or reasonably believes that he will
be subject to such an attack, even if the plaintiff has neither the intention
nor the power to make such an attack. Even if the circumstances entitle
the defendant to claim he was acting in self defence, he cannot escape
liability unless he discharges the burden of proving that the amount of force
he used was reasonable in all the circumstances. This will depend on the
courts assessment of the situation, taking into account the form and nature of
the plaintiffs attack on the defendant and the reasonableness of the response
of the defendant.
[92]
Counsel for Mr. Charland submits that the rule in Browne v. Dunn
(1893), 6 R. 67 (H.L.) must be applied to the evidence of Mr. Wheeler.
The rule is often stated as: if the cross-examiner intends to impeach the
credibility of a witness by means of extrinsic evidence, he or she must give
that witness notice of his or her intention. The witness must be confronted
with the evidence intended to impeach the witness, while he or she is still in
the witness box. However, the rule is not absolute and the trial judge has
discretion in its application in all of the circumstances of a case:
§16.182 The Supreme Court of Canada in R. v. Lyttle
confirmed that the rule in Browne v. Dunn remains a sound rule of
general application. As the rule is not absolute and is grounded in common
sense and fairness to the witness and to, the parties, it is a matter of
discretion as to how a trial judge deals with the failure on the part of
counsel to confront a witness in cross-examination before impeaching the
witness by contradictory evidence. Rather than excluding the contradictory
evidence, other avenues may be open to the trial judge. The judge may permit
the contradictory evidence, but the failure to have confronted the witness may
be used to negatively affect the credibility of the contradictory evidence; or
the trial judge may permit the counsel to respond to the contradictory
evidence.
Alan W. Bryant, Sidney N. Lederman
& Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Toronto:
LexisNexis, 2009) at 1163-1164.
V.
Discussion
[93]
After considering the totality of the evidence including the evidence of
each witness, the other exhibits and any consistencies and inconsistencies in
that evidence, I make the following findings of fact.
[94]
As is often the case when individuals observe unexpected violent
incidents, each of the independent civilian witnesses saw things differently.
Their evidence reflects their honest differing recollections.
[95]
Although Mr. Charland was genuinely concerned that the baseball
game which was about to begin was missing an umpire, Mr. Charland was
brusque with Cam Wheeler when he arrived late. Cam as a result was scared and
was crying when he arrived home. Mr. Wheeler wanted to talk to Mr. Charland
to see if they as two fathers could resolve the situation so that Cam would not
be afraid to go back to a baseball park. Mr. Wheeler did not go to the
park for the purpose of fighting with Mr. Charland; he went to the park to
talk to Mr. Charland.
[96]
At the beginning of the conversation between the fathers when Mr. Wheeler
was kneeling or bending down to talk to Mr. Charland who was seated, Mr. Wheeler
was conciliatory. Mr. Charland fairly stated that Mr. Wheeler at
that point was fairly calm. This part of their interaction was not observed by
the witnesses, Jeff Young and John Geppert, which is to be expected as it was a
normal quiet conversation between two parents during a childrens ball game.
[97]
The conversation then escalated. Mr. Charland says that Mr. Wheelers
tone suddenly changed. I find that the reason for that sudden change in Mr. Wheelers
tone was Mr. Charlands telling him to fuck off. After Mr. Charland
escalated the conversation to a confrontation, Mr. Wheeler replied with
words to the effect of fat shit. There was some loud conversation between
the two fathers.
[98]
Mr. Wheeler then walked away to process Mr. Charlands
response. He still wanted to resolve the situation and assist his son Cam. As
Mr. Wheeler walked away, Mr. Charland said, Ill get you later, as
he told Cst. Lee. The words he told the court he said, Ill do you later,
do not equate, I find, with I will meet you later. In making that statement,
Mr. Charland had formed the intention to fight and had chosen to accept
what he mistakenly understood to be an invitation to fight from Mr. Wheeler.
[99]
Mr. Wheeler had walked away 8 to 10 feet to the grassy area. He
walked back part of that distance to Mr. Charland. Mr. Charland
stood up from his chair and moved forward quickly towards Mr. Wheeler.
When Mr. Wheeler saw him coming, he had a real fear of being injured or,
as he put it, run over. Mr. Wheeler then hit Mr. Charland once in
the head. The moments of contact between the two fathers included some mutual
grabbing which Mr. Geppert described part of, Ms. Brozer referred to
as a kafuffle and Ms. Korrins described as grappling. In the course of
that interaction, Mr. Charland slipped and fell on the grass. Mr. Wheeler
then walked away after the intervention of some of the other witnesses and
observers.
[100] Mr. Wheeler
did not kick Mr. Charland. There is no independent evidence of a kick.
If Mr. Charland was injured in his kidney during the altercation at the
park, I conclude that the injury occurred from his fall on the grass.
Similarly, Mr. Wheelers injury to his eye which resulted in a black eye
was a result of the mutual grappling and physical interaction rather than a
punch by Mr. Charland directly to Mr. Wheeler.
[101] I find
that when Mr. Charland got up out of his chair and moved quickly towards Mr. Wheeler
who was then 8 to 10 feet away on the grass Mr. Charland had an intention
to fight. Mr. Wheeler reacted by engaging in the fight after walking back
toward an angry man. Mr. Charlands action in standing up and moving
toward Mr. Wheeler, as it created fear, was an assault. Mr. Wheeler
responded with a punch which was a battery. I conclude that the proper
characterisation of the altercation between the two fathers is that it was
consensual.
[102]
In arriving at those conclusions, I make also the following findings of
fact and credibility:
1.
I do not accept Mr. Charlands evidence as to the location of his
chair. Mr. Charlands chair was immediately adjacent to the front of the
bleachers on the asphalt. The place where Mr. Charland fell down after
the altercation was on the grass at the rear of the bleachers 8 to 10 feet
away. Mr. Charland testified that his chair was some distance away from
the bleachers with a shorter distance to the grass. I accept the evidence of
the other witnesses including Mr. Geppert who described his use of the
bleachers as a table for his food. I conclude that Mr. Charland moved
from his chair beside the bleachers to the grass at the rear of the bleachers towards
Mr. Wheeler when he stood up from his chair after he said, Ill get you
later or Ill do you later. His intention in moving towards Mr. Wheeler
at that time was to engage in a fight.
2.
Mr. Charland did not have food in his hands when he stood up from
the chair. Only the witness Deborah Brozer testified as to that, and it is
inconsistent with the evidence of the other witnesses, including Mr. Charland.
3.
Mr. Charland was angry at Cameron Wheeler for being late and was
angry at the time that Camerons father, Mr. Wheeler, approached him. Mr. Charland
never had an intention to talk to Mr. Wheeler and sort out the matter
between the two fathers. I do not accept Mr. Charlands evidence that he
was calm.
4.
Mr. Charland was not calm when he spoke with Cameron or with Mr. Wheeler.
The witnesses, Mr. Geppert and Mr. Young, could not clearly observe Mr. Charlands
face during the heated interaction with Mr. Wheeler. Mr. Wheelers
face, however, was visible to the witnesses. Mr. Young heard very little
of the conversation. Mr. Geppert missed the beginning of the interaction
and conversation. Those witnesses had a limited opportunity to observe and saw
and heard only part of the sequence of events.
5.
The evidence of Mr. Charland at the trial is inconsistent with the
statement he made to Cst. Lee immediately after the event. That
statement, that he agreed to the physical confrontation with Mr. Wheeler
by saying words to the effect of Ill get you, is the most reliable evidence.
Although Mr. Charland testified that he told Cst. Lee the truth, he
denied saying I will get you. I prefer the evidence of Cst. Lee in this
regard. Further, I do not believe Mr. Charland that Ill do you later
means I will meet with you later. Mr. Charland agreed in
cross-examination that his words Ill do you later, which equate to Cst. Lees
evidence of Mr. Charland saying Ill get you later, were said by him at
the time he got out of the chair. Those words were an expression of Mr. Charlands
intention to fight. When Mr. Wheeler turned to walk toward Mr. Charland,
he knew that Mr. Charland was angry.
6.
Mr. Charlands evidence is internally and externally inconsistent
with regard to the assaults of Mr. Wheeler. In direct examination he
testified that he had been hit multiple times, while in cross examination, he
agreed that there was one punch. He testified in court to being kicked by Mr. Wheeler,
but did not tell Cst. Lee about a kick.
7.
None of the other witnesses testified that there was a kick. Mr. Geppert
and Mr. Young testified specifically that they did not see any kick. I
cannot find on the evidence that there was a kick by Mr. Wheeler.
8.
The independent witnesses differed on the number of punches. Mr. Geppert
said that there were a number of punches thrown by Mr. Wheeler, differing
from Mr. Charlands evidence in cross-examination that there was one punch.
Ms. Brozer did not see any punches.
9.
I accept Mr. Wheelers evidence that he punched Mr. Charland
one time and did not kick him. I generally found Mr. Wheeler to be a
credible and sincere witness.
[103] In making
these findings I am mindful of the submissions of counsel for Mr. Charland
that there was a lack of compliance with the rule in Browne v. Dunn. He
cites this especially with regard to the evidence of Cam Wheeler that he was
upset, and with regard to the evidence of Mr. Wheeler that he suffered a
black eye. I am satisfied that by submissions of counsel and by the
consideration of the totality of the evidence, all evidence has been taken into
account in these circumstances. No credibility findings have been adversely
affected by the lack of strict compliance with the rule.
[104] It is also
necessary to state that I find that the force used by Mr. Wheeler was not
excessive in the circumstances.
[105] As Mr. Wheeler
has proven that the fight was consensual, the defence to the allegation of
assault by Mr. Wheeler is established. Both parties would be disentitled
to any damages. Only Mr. Charland sought damages. The claim of Mr. Charland
is dismissed.
[106] Unless
there are matters of which I am unaware Mr. Wheeler is entitled to the
costs of the action. If either party seeks a different cost determination they
should file written submissions within 21 days. Any responsive submissions
should be filed within 15 days thereafter.
The Honourable
Madam Justice Watchuk