ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-2724-SR
DATE: 20120507

B E T W E E N:

PETER FRITSCH

Michelle Simard, for the Plaintiff

Plaintiff

• and -

RANJITH MAGEE

Shawn Philbert, for the Defendant

Defendant

HEARD: May 1, 2, and 4, 2012

REASONS FOR JUDGMENT

Baltman J.

1One night in May 2006 the plaintiff and the defendant were attending a dinner banquet at the Marriott hotel, in Brampton. They got into a fight over a bottle of wine. The defendant head butted the plaintiff, who suffered damage to several of his teeth. The plaintiff seeks compensation for the alleged assault. The defendant argues self-defence. For the following reasons I am satisfied the defendant was the primary aggressor, and the plaintiff is entitled to compensation.

2Before dealing with the merits of the assault itself, I shall discuss the limitation period defence raised by the defendant.

Limitation Period Defence

3The defendant brought a motion at the outset of trial to have the plaintiff’s action dismissed as statute barred. The relevant facts are as follows. The alleged assault occurred on May 13, 2006. Both parties agree that the relevant limitation period is two years. The plaintiff issued a claim in Small Claims Court on July 17, 2007, well within that period.

4However, in July 2008 plaintiff’s counsel became concerned that the damage claim would exceed the monetary jurisdiction of the Small Claims Court, then $10,000. He wrote to defendant’s counsel, asking to have the Small Claims Court action “stayed” on consent on July 31, 2008, when the matter was scheduled to be spoken to. On July 30, 2008, plaintiff’s counsel issued a statement of claim in the Superior Court.

5Both parties and their representatives attended before the deputy judge of the Small Claims Court on July 31, 2008. The paralegal representing the plaintiff asked that the action be “stayed”. Mr. Erskine, who was the defendant’s counsel at the time, stated that he was “not necessarily opposed to [the stay]” but “would leave it in Your Honour’s hands.” He indicated that in his view “Your Honour does have ultimate inherent jurisdiction to decide whether or not it should be moved.”, but advised that if the matter was moved to Superior Court he may not be able to represent the defendant.

6The judge’s emphatic and repeated recommendation was that to avoid duplication the plaintiff should withdraw the claim, rather than stay it:

…why don’t you simply withdraw the claim? If you’re issuing a claim in Superior Court, you’re not going to have two claims with the same relief in two courts….So why don’t you simply withdraw it; why stay it? Stay it pending what?

…If you’ve got a claim in Superior Court really for the same relief, there’s no sense keeping this one on the books. Why don’t you simply withdraw it….there’s no point in staying this…..why keep this thing extent?

7Once it was ascertained that both parties consented to a withdrawal on a without costs basis, the judge stated:

I think in the whole scheme of things that’s the best resolution and that if for any reason the plaintiff gets qualms of conscience and decides in fact this is better to be in Small Claims, you’re not precluded from bringing it back here again. So I’ve not dismissed it. I haven’t prejudged it. On the other hand, you don’t have an identical claim on the books and you have the same claim apparently going on in the Superior Court.

So I’ve simply endorsed it on consent, claim withdrawn without costs…

8Sometime after that appearance Mr. Erskine ceased to act for the defendant. On September 10, 2008, the defendant served a statement of defence, on his own behalf. He did not raise the limitation period in his pleading. He subsequently retained Mr. Philbert, his current counsel. When the plaintiff moved for an order striking the defendant’s statement of defence for failure to deliver an affidavit of documents, the defendant brought a cross-motion to amend his statement of defence to plead the limitation period and for summary judgment dismissing the plaintiff’s action on the basis that it was statute barred.

9Justice Daley allowed the defendant to amend his pleading, but dismissed his motion to dismiss the plaintiff’s action as statute barred on the basis that the record before him was incomplete. He ruled that the defendant was free to pursue this defence at trial.

10Before me the parties advised that contrary to what may have been indicated to Daley J., they are now relying solely on the transcript of what occurred before the deputy judge of the Small Claims Court.

11Mr. Philbert argues that because the Superior Court action was begun more than two years after the assault, it is statue barred unless the plaintiff can demonstrate promissory estoppel or waiver of the limitation period. He relies on Maracle v. Travellers Indemnity Co. of Canada , [1991] 2 S.C.R. 50, where the Supreme Court state that for estoppel to be made out, there must be evidence that the representor made an express or implied promise to the representee that the limitation period would not be relied upon, and that the representee relied upon this promise when commencing his action outside of the limitation period (para. 13).

12In response to my observation that the deputy judge emphasized that if necessary the plaintiff could revive the small claims court action, but that it made no sense to switch jurisdictions at this stage, Mr. Philbert submitted he was content to proceed in Superior Court provided the plaintiff’s claim was limited to $10,000, as that was the limit in existence when the action was withdrawn. The plaintiff, quite understandably, was not prepared to bind himself to that cap.

13I agree that in this case the defendant never expressly waived any limitation period that may have applied. But in my view his counsel effectively did so through his words and conduct. After telling the deputy judge that he was not opposing the move to Superior Court, Mr. Erskine essentially invited him to do what he thought was right : “…I would leave it in Your Honour’s hands…Your Honour does have ultimate jurisdiction to decide whether or not it should be moved.” He then made no objection when the judge urged the plaintiff to withdraw the claim rather than stay it, or when the judge endorsed the claim as withdrawn “on consent”.

14In these circumstances it would be grossly unfair to preclude the plaintiff from proceeding. He filed a perfectly valid claim in Small Claims Court, well within the limitation period. In order to avoid duplication with the Superior Court action the defendant, through counsel, agreed to have the Small Claims Court action withdrawn rather than stayed. Later on, with new counsel in place, the defendant tried to halt the Superior Court action or limit the plaintiff to the $10,000 limit that then existed in Small Claims Court. This smacks of “sandbagging”, and should not be condoned.

15Moreover, the defendant has no authority to support his argument that a motion to transfer an action commenced in Small Claims Court to the Superior Court of Justice should not be allowed if the limitation period has expired. The only case he found that comments directly on the issue does not help him. I refer to Waymark v. Barnes (1995) CarswellBC61 , where Taylor J.A. on behalf of the British Columbia Court of Appeal (in chambers) commented at para. 7 that :

…it seems that once the limitation period has expired a claim cannot be moved from that court to the Supreme Court: see MacMaster v. Insurance Corp. of British Columbia (1994), 91 B.C.L.R. (2d) 276 (C.A.)

16However the MacMaster case, upon which Taylor J.A. relies, is completely distinguishable. There the B.C. Court of Appeal denied an application to transfer a proceeding to the Supreme Court after the expiry of the limitation period because there was no statutory authority permitting such. In direct contrast, Ontario’s Courts of Justice Act expressly provides in s. 107 for a transfer from small claims court to Superior Court. And s. 107(6) states that a proceeding that is transferred “shall be continued as if it had been commenced in that court.” This makes sense, given that the Small Claims Court is a branch of the Superior Court.

17I appreciate that pursuant to s. 107(4) a motion to transfer should be brought to a judge of the Superior Court and not in Small Claims Court, and that in any case the deputy judge here did not purport to “transfer” the action, but instead – for good reason - urged the parties to withdraw the Small Claims Court action and continue with the Superior Court action alone. But the plaintiff could have easily, instead, applied to the Superior Court for such a transfer. Had he done so, I cannot imagine him being denied on the basis that a limitation period had expired in the interim, anymore than would a plaintiff seeking to increase his prayer for relief after a limitation period had expired be denied.

18For all those reasons I conclude it would be highly unjust to bar the plaintiff from proceeding. The defendant’s motion is dismissed.

The Assault

1. Factual Background

19Both parties worked part-time as ski patrollers for various ski resorts. On the evening of May 13, 2006, they both attended the annual awards banquet at the Marriott hotel in Brampton. Although they had some friends in common from the ski world, they had never previously met.

20The plaintiff arrived first, with his girlfriend, Arlene. They had dinner with other patrols from his resort, Horseshoe Valley. He purchased a few bottles of wine for the table. After dinner the wait staff cleared the tables and moved them aside to create a dance floor. He and Arlene got up to dance.

21The defendant arrived late, and on his own. The table he was supposed to sit at was full so he sat at the plaintiff’s table. Although most people had finished dinner by then he asked the wait staff to bring him his meal, which they did. He testified that another patroller, Dave, offered him a drink from the bottle that was sitting on the table. He drank one glass and then helped himself to another.

22When the plaintiff returned to the table he saw the defendant sitting there, on his own, eating dinner and drinking from the bottle of wine the plaintiff had purchased. They got into an argument over the fact that the defendant was drinking from the bottle of wine purchased by the plaintiff. The plaintiff and his girlfriend eventually left the table, Arlene taking the bottle with her.

23At this point their accounts diverge sharply. At trial the plaintiff testified that all he remembers is that as he was escorting Arlene out, his world suddenly went black. He cannot today recall precisely what happened, except that when he woke up several of his friends told him he had been head butted.

24At trial the plaintiff agreed that the statement he gave to the police officer shortly after the incident was likely accurate, as it was recorded immediately thereafter and he would have been doing his best to tell the truth. In that statement, he reported that after their verbal confrontation over the wine, the defendant leaped out of his seat and head butted him. Arlene tried to get between them and as he was trying to both extricate himself and get her out of the way (so she wouldn’t be hurt) the defendant head butted him again. At that point a crowd of people pulled the defendant off him.

25The defendant’s version, naturally, is very different. He claims that while he was finishing his dinner the plaintiff walked up and flicked a wet cloth napkin at his face. The defendant then stood up “in a defensive position” with his hands open, protecting his face. The plaintiff grabbed his forearms, near the elbows. The defendant saw Arlene approaching from the other side of the room, carrying the bottle of wine in her hand.

26At that point he and the plaintiff were “struggling as equals”, but the defendant was afraid that Arlene was going to hit him with the bottle, and the plaintiff still had not let go despite his demands to be released. Therefore he head butted the plaintiff. The plaintiff continued to hang on and was pushing him into other tables. As he continued to be afraid that Arlene was going to hit him with the bottle and the plaintiff still hadn’t released him, he head butted the plaintiff a second time.

27At that point several other patrollers intervened and separated them. The police were called. The defendant was arrested and charged with assault. After a few court appearances the Crown withdrew the charge and he signed a peace bond.

28No other witnesses testified at trial.

2. The Legal Framework

29There is no dispute that an assault occurred. The only issue is whether the defendant was acting in self-defence. Self-defence involves a reasonable degree of force for the protection of oneself against any unlawful use of force.

30Force used in self-defence is not reasonable if it is either greater than what is needed under the circumstances, or disproportionate to the harm faced. The onus is on the defendant to establish that he acted in self-defence: Mann v. Balaban , [1969] S.C.J. No. 69 .

3. Analysis

31With only these two versions of what occurred before me, this case is very much a credibility contest between the plaintiff and the defendant. On the evidence I find that both men behaved badly. The plaintiff was undoubtedly irritated that the defendant was drinking from the bottle he had purchased, and likely provoked a confrontation to some degree, either verbally or, as the defendant suggested, by flicking a napkin at him. However, for the following reasons I find the defendant over reacted, and reject his assertion that in head butting the plaintiff he acted in self-defence.

32First, I am struck by the disparity in their age, size, and weight. At the time the plaintiff was 48 years old, 5’6” tall and weighed approximately 155 pounds. The defendant was 34 years old, 5’9” tall and, according to him, weighed approximately 190 pounds (although he admits he now weighs 230 pounds). On that basis alone the defendant may have had a significant advantage over the plaintiff.

33Second, the defendant’s explanation for why he resorted to head butting the plaintiff is not compelling. The defendant repeatedly stated that he needed to disengage the plaintiff because he saw Arlene approaching him carrying the wine bottle, and he was afraid she was going to hit him with it. But there was nothing Arlene said or did to reasonably suggest she was going to “bottle” him. She did not swing the bottle at him or near him. She did not raise it over her head. She did not wield it as a weapon. And she never threatened to bottle him. I therefore do not believe the defendant sincerely considered her to be a threat. If he did, that was unreasonable on his part.

34Third, on the defendant’s own evidence, other than the “threat” of Arlene (which I have already discounted) there was no need for him to subdue the plaintiff so forcefully. Although they were pushing each other around and bumping into tables, the plaintiff had not punched him, kicked him or otherwise injured him. As the defendant stated, “we [were] struggling as equals”.

35Fourth, I find the defendant’s behaviour at various points suggests he was far more pugnacious than he admits. He insisted that when the plaintiff initially confronted him, he (the defendant) remained calm, and tried to diffuse the situation, to the point of offering “restitution” for the wine he had drunk. He explained that as a ski patrol he is used to dealing with excited people in difficult situations, and is trained to try and de-escalate such situations.

36However, immediately after the confrontation, knowing the police were about to arrive, he went to the bar, ordered an alcoholic beverage, and began to drink it. Shortly thereafter, when the police arrived and instructed him to put his hands behind his back, he refused and he tried to move away from them, causing them to push him on the ground and threaten him with a taser. This is not the behaviour of a peacekeeper.

37For all those reasons the defendant has not persuaded me that the force he used was reasonable or proportionate in the circumstances.

4. Damages

38The head butts loosened several teeth in the plaintiff’s mouth. For two or three days after the assault his mouth was sore and tender, and he suffered from headaches. He eventually learned that he required root canal on four of his teeth. This necessitated numerous visits and expenditures to his dentist ($1,574.00 to Dr. Carmichael) and his endodontist ($2,813.00 to Dr. Haas), for a total of $4,387.00 in out of pocket expenses.

39Fortunately, the plaintiff made a good recovery with no major lasting effects, although he does have some residual tingling sensation in his mouth. In addition, for a few years after the event he felt apprehensive about attending any ski patrol events, for fear that he might see the defendant.

40The plaintiff seeks $15,000 in general damages; the defendant proposes the nominal amount of $5,000. I assess the general damages at $12,000.

Conclusion

41The defendant is liable to pay $4,387.00 in special damages and $12,000 in general damages, plus pre-judgment interest and costs.

42If the parties cannot agree on costs, they may each make written submissions no greater than five pages in length, excluding any offers to settle and the bill of costs. The five pages shall be double spaced, in 12 point font, with proper margins and paragraphs. The plaintiff shall deliver by May 15 th and the

defendant by May 21 st . If a reply is required, the plaintiff shall deliver same by May 24 th .

Baltman J.