ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 49118

DATE: 2014/03/17

BETWEEN:

Jeff Sica
Plaintiff

– and –

Curtis Doe and Melkos Inc. carrying on business as Red Hot Chili Pepper bar and Grille
Defendants

Teri-Ellen Haddy, for the plaintiff

No one appearing for the defendants

HEARD: March 3, 2014

JUSTICE M. A. GaRSON

REASONS FOR JUDGMENT

Introduction and Background

1This is a personal injury action that arose from a less than happy New Year’s Eve celebration that occurred on the early morning hours of January 1, 2004.

2The defendants have been noted in default and the issue of liability has already been determined by McDermid J on April 27, 2012. Essentially, this is an undefended trial to determine the appropriate quantum of damages.

3The plaintiff, Jeff Sica, was born February 23, 1979. He was 24 years old at the time of the incident and is currently 35 years of age. He has a Bachelor’s degree in psychology and is employed full time at Community Addiction Services of Niagara as an addiction counsellor.

4The plaintiff was celebrating New Year’s Eve with friends at the Red Hot Chili Pepper Bar (“the bar”) in Niagara Falls, Ontario on December 31, 2003. The bar is owned by the defendant Melkos. The plaintiff was on the lower level of the bar having a conversation when he heard raised voices behind him at the bar. He turned around and observed the defendant Curtis Doe (“CD”), a former employee of the bar, throw a cup of ice at his friend’s face and spray her face and body with soda from the dispenser.

5The plaintiff asked what was going on and at that point, CD threw a full unopened bottle of beer at the plaintiff, striking him under the eye.

6The plaintiff’s head was thrown back violently and he fell to the ground, smashing the back of his head on the floor and bruising his tailbone and hand. He was rendered unconscious for a period of time. When he awoke he was bleeding from a cut under his eye. After consulting with an officer on the scene, the plaintiff went home. No arrest was made from this incident. The extent of his injuries will be discussed further under the heading of damages.

7The plaintiff subsequently made a claim for compensation before the Criminal Injuries Compensation Board (“CICB”). After a hearing, the CICB found that the plaintiff was a victim of the crime of assault with a weapon and ordered that he be compensated for pain and suffering in the amount of $4000.

8At the motion for default judgment, the plaintiff argued that Melkos owed a duty of care to the plaintiff to ensure he was reasonably safe while visiting the tavern. The plaintiff further argued that Melkos allowed CD to occupy the space behind the bar and behave in an inappropriate and threatening manner towards a female patron and took no steps to remove him from the premises.

Damages

9As a result of the injuries sustained during the incident, the plaintiff claims the following categories of damages from the defendant Melkos:

(a) Non-Pecuniary General Damages

(b) CICB subrogated interest; and

(c) OHIP subrogated interest.

General Damages

10The plaintiff sustained a laceration under his left eye, bruising to his face and a black eye as well as bruising to his left hand and arm. He also suffered from headaches, neck, shoulder and low back pain from his fall to the floor.

11He attended at Greater Niagara Hospital later that day and received sutures to close the cut under his eye and a tetanus shot. He has been left with a visible permanent scar under his left eye that the court was clearly able to see.

12He had to miss a previously scheduled holiday vacation that week as well as being on light duties for three weeks at his then position as a server at Ruby Tuesdays. In the weeks following the incident, he suffered from severe headaches, blurred vision in his left eye, fatigue and loss of appetite. He was diagnosed with post-concussion syndrome.

13In addition to his physical injuries, he suffered from feelings of fear and anxiety after the incident. He has been diagnosed as suffering from social anxiety/phobia and continues to be hyper vigilant when out in public bars or amongst large crowds.

14The scar, the headaches and the emotional impact continue with him to this day.

15In light of the injuries suffered and the manner in which they were sustained, the plaintiff seeks a sum of $35,000 to reasonably compensate for his pain and suffering.

16The court must look to comparable cases to assess the reasonableness of the claim. The effect of inflation should also be considered when looking at past awards.¹

17In Bras v. Pietraszek, [2005] O.J. No. 1659 (Ont SC), two females got into an altercation. The plaintiff had her hair pulled and suffered a broken nose (which healed quickly). She also had some anxiety and symptoms of depression. She was awarded $45,000 in general damages ($51,315.06 in 2013 damages).

18In Culver v. 624671 BC Ltd. et al, 2006 BCSC 1241, the plaintiff was punched in the face by an employee of the defendant bar. He needed surgery to repair a fractured right eye orbit. He suffered from ongoing headaches and pain in the eye (and a slight eye twitch). He was left with a fear of going to bars and nightclubs. His dream of becoming a professional snowboarder was likely dashed. He was awarded $40,000 in general damages ($44,826.89 in 2013 dollars).

19In Burton v. Daciw, 2003 22829 (Ont SC), the plaintiff was hit by a carelessly discarded beer bottle, leaving a 2-3 inch gash beside her eye that bled profusely and required sutures. Her eye was swollen for a week or two and bruised for a month. She felt intimidated about going out socially after the incident and up to the date of trial. Her scar was permanent and the injury forced her to retire from professional boxing. She was awarded $50,000 in general damages ($59,447.67 in 2013 dollars).

20Based on the manner the injuries were obtained, the nature of the injuries and comparable cases and awards, a general damages award of $35,000 is reasonable in the circumstances.

Subrogated Claims: CICB and OHIP

21Sections 17 (3) and 26 (5.1) of the Victims of Crime Act, RSO 1990, c.C24, as am. provide:

17(3) In assessing compensation, The Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than general welfare assistance or family benefits.

26 (5.1) The Board is entitled to be reimbursed, out of any amount recovered by the applicant from the offender or any other party, for the amount of compensation awarded to the applicant.

22It is appropriate the plaintiff be ordered to pay the CICB subrogated claim in the amount of $4000.

23Evidence was filed with the court that OHIP has a subrogated interest in the amount of $398.20 relating to medical care received by the plaintiff following the incident. It is appropriate that the defendant be ordered to pay the OHIP subrogated claim in the amount of $398.20.

24Pursuant to Rule 53 (10) of the Rules of Civil Procedure, pre-judgment interest is calculated at 5% for a total of $14,302.

Disposition

25There will be judgement against the defendant Melkos as follows:

(i) Non pecuniary general damages $35,000.00

(ii) Pre-judgment interest $14,302.00

(iii) CICB and OHIP subrogated claim $ 4,398.20

Total $53,700.20

Costs

26The plaintiff seeks costs on a substantial indemnity basis in the amount of $25,578.61.

27Section 4(6) of the Victim’s Bill of Rights, SO, 1995, c.6 speaks to solicitor and client costs as follows:

A judge who makes an order for costs in favour of a victim shall make the order on a solicitor and client basis, unless the judge considers that to do so would not be in the interests of justice.

28In CM v. EB, [2012] O.J. No. 4828 (Ont SC) beginning at para. 112, Stevenson J in a default judgment damages assessment applied the above section in awarding the plaintiff substantial indemnity costs of $41,617.49 and stated:

…Although there has been no criminal trial or conviction in this case, I find that the same principles underlying the Victim’s Bill of Rights should apply here in that C.M. and T.D. should be treated with compassion and fairness.

It would be unfair to make C.M. and T.D. bear the costs with respect to this litigation.²

29In applying the factors to be considered as set out in sub rule 57.01 (1) of the Rules of Civil Procedure, I am satisfied that the fees and disbursements claimed are reasonable and that the defendants’ failure to properly respond to this claim (and the resultant delay in time), coupled with the fact that it would be simply unfair and unjust for the plaintiff to have to bear any costs of this proceeding all militate in favour of an award for costs on a substantial indemnity basis.

30The plaintiff is awarded his costs in the amount of $25,578.61 inclusive of fees disbursements and GST.

“Justice M. A. Garson”

Justice M. A. Garson

Released: March 17, 2014

Footnotes

1. 1See Singh v. Bains, [2008] BCJ No. 1196 (BCSC) at para. 99 and ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3SCR 674 at paras 104-114
2. 2See also Evans v. Sproule, 2008 58428 (ON SC) at paras 138-141