Court File and Parties
COURT FILE NO.: CV-14-3315-00SR DATE: 2016 04 12 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Darren John, Plaintiff AND: Steve Kiefer and Wee Rent It
BEFORE: Trimble J.
COUNSEL: Self-Represented, Plaintiff
Reasons for Judgment
Background
[1] This is the trial of an undefended action.
[2] The Defendants, Evans and Budget Rent a Car System, were discontinued against on consent, leaving only Mr. Kiefer and Wee Rent It, who have never defended.
[3] Under Rule 19.06, the Defendants are deemed to have admitted the facts as alleged in the Statement of Claim. Mr. John confirmed that the facts on which he bases his claim for liability are set out in paragraph 5 of the Claim, as supplemented by his oral evidence.
Facts
[4] On July 17, 2014, Mr. John was in a Budget store on Royal Windsor Drive to rent a car when he dropped a blood spotted paper towel he had been using to dress a cut finger. Mr. Kiefer became irate, told Mr. John to pick up the paper and put it in the garbage. He approached Mr. John threateningly. He picked up the paper, demanded that Mr. John put the paper in the garbage, and when Mr. John refused, he threw the paper at Mr. John. Mr. Kiefer moved to strike Mr. John. Mr John blocked “and used the necessary force to bring the defendant under control…” The employee behind the desk called police and lied, saying that John was the assailant. Mr. Kiefer took at least two punches at Mr. John. One he blocked, the other he “partially avoided.”
[5] In his oral evidence, Mr. John said that he was charged with two counts of assault, released on bail, and then acquitted on May 11, 2015 after a two day trial in October, 2014. The acquittal is confirmed by Ex. 4.
[6] Mr. John was and is a process server. He testified that on that day, he was renting a car for the weekend, in order to go to Barrie on an assignment for a lawyer, Alexanian.
[7] Much of Mr. John’s oral evidence on liability (aside from paragraph 5 of the Statement of Claim) focused on the charges laid against him following the altercation at the car rental, the trial, plea negotiations and his acquittal. Mr. John spoke of an agreement whereby the charges would be dismissed if he entered into a peace bond, which the Crown abandoned when Mr. Kiefer objected. He spoke of evidence given at the criminal trial.
[8] He introduced documents generated by others and sent to others on the basis that the documents proved that Mr. Kiefer acted maliciously in blocking the plea deal. Mr. John says that Mr. Kiefer was found to be not credible and was found to be the aggressor. There was no transcript of the proceedings before, or the judgment of Justice Monaghan.
[9] I did not accept any of this evidence as it was hearsay. Mr. John did not call any witnesses to give direct evidence.
Issues
[10] The following issues arise in this case:
a) Liability b) Damages
Liability
[11] Mr. John advances his claim in negligence, harassment, bad faith, maintaining an unsafe environment for the public, conspiracy, racial discrimination, and assault. In any event, all causes of action other than assault and that Mr. Kiefer was racially motivated, were advanced against others than Mr. Kiefer. With respect to the allegation of racial motivation, there was no evidence to support this claim.
[12] The only cause of action advanced at trial was assault. The other causes of action were not abandoned, overtly. No evidence or submissions were advanced in respect of any cause of action other than assault.
[13] On the facts as admitted by the defaulting defendants, I find that Mr. Kiefer is liable for assault.
[14] The action, as based on all causes of action other than assault, is dismissed. There are two reasons for this. First, there are insufficient facts pleaded to support the claims advanced. Second, no evidence or submissions were made in respect of them.
[15] Most specifically, Mr. John did not advance against Mr. Kiefer a cause of action for malicious or wrongful prosecution.
[16] The action against Wee Rent It is also dismissed. No cause of action is advanced against it. Allegations are advanced against Budget in paragraph 11, but there is no nexus between Budget and Wee Rent It pleaded, and Mr. John dismissed the action against Budget.
Damages
[17] Mr. John advances claims for general damages and punitive damages, loss of income and special damages. He pleads that he suffered from a host of problems, physical and mental, and required unspecified treatment.
[18] At trial, however, Mr. John advanced claims for two days loss of work for the weekend following the assault, for three days lost to attend trial in the criminal matter, $5,000 for legal fees attendant on the criminal matter, and $20,000 in general damages for the embarrassment and anxiety connected to his arrest, bail and trial.
[19] Mr. John gave no evidence as to his damages, other than his oral testimony.
[20] With respect to his lost wages for the weekend following the assault, Mr. John says that he was paid $390 for each of two days to go to Barrie. That assignment was for Mr. Alexanian, and was oral. He could not go because of the upset following the assault.
[21] Mr. Alexanian was not called to give evidence nor was it explained why. I presume that he was available to give evidence or to provide an affidavit. However, Mr. John’s evidence makes sense, and there is no evidence to the contrary.
[22] Mr. John is entitled to recover from Mr. Kiefer $780 for two days of lost wages or contract payments.
[23] Mr. John advances a claim for general damages for anxiety and stress. From his evidence, this claim has two aspects: damages for Mr. Kiefer’s assault of Mr. John, and damages arising from the criminal process arising from the charges laid against Mr. John for the alleged assault against Mr. Kiefer.
[24] Mr. Kiefer assaulted Mr. John. Mr. John, however, provided no evidence of any physical or emotional injury because of the assault, other than his boilerplate allegation.
[25] Mr. John did not prove an injury arising from the assault. However, he was assaulted. He tussled with Mr. Kiefer. He pleads, and the defendants admit that Mr. John fended off one blow and received another “partially”. Where he was struck, the extent of the blow and its sequelae are not stated. He was, however, assaulted and is entitled to damages. Given the lack of evidence on the damages, however, Mr. John is still entitled to nominal damages. I fix them at $100.
[26] Most of Mr. John’s evidence on damages focussed on damages caused by the fact that charges were laid against him. He lost two days of wages following the assault, lost three days of wages to attend the trial ($200/day), incurred legal fees of $5,000 in total to defend himself, and asked for $25,000 in damages for anxiety and stress for being charged and its possible outcomes.
[27] Mr. John is not entitled to damages for these damages from Mr. Kiefer. I say this for a number of reasons.
[28] First, and foremost, these damages do not arise from Mr. Kiefer’s assault on Mr. John. They arise from the charges laid against Mr. John and his later acquittal. Mr. John does not advance a claim against Mr. Kiefer for malicious prosecution. There is no allegation in the Statement of Claim of malicious prosecution. There are allegations about lying to the police that Mr. John was the assailant, but these are made against the Budget employee, not Mr. Kiefer. The evidence at trial that Mr. John says show that Mr. Kiefer was motivated by malice (Exhibits 1, 2 and 3) are all hearsay. Mr. John came to these documents as part of his disclosure from the Crown in the criminal case. He was neither the author nor recipient of these documents, nor was he involved in the circumstances described in the documents.
[29] Second, and in any event, the damages claimed for legal fees were not substantiated. Mr. John identified his lawyer and said that he had invoices from his lawyer to support the claim. He did not bring them. I am not prepared to accept his evidence without documents in support on this issue, especially when Mr. John simply forgot to bring them.
[30] Third, and in any event, Mr. John’s claim for loss of income of $400 for attending at trial for three days is also dismissed. Mr. John said that he averaged $200 per day as a process server. He was paid $20 per document that he served and filed as a process server. He would average 10 filings per day.
[31] I find Mr. John’s special damage claim doubtful. Mr. John said that in 2014-15 he worked for a lawyer and a paralegal doing process serving. He called neither. He produced a letter or affidavit from neither.
[32] Further, Mr. John began this action in April, 2015. He was at trial in the criminal matter in October, 2014, and appeared for judgment in May, 2015. All this while, he said he was an independent contractor earning $200 per day. Based on his evidence, if he was paid $200 per day, and assuming he worked 250 days per year, his gross annual income ought to have been $50,000. I note that at the outset of the file, he was granted a fee waiver by Legal Aid. This fact does not support the income level on which he bases his loss of income claim.
Summary
[33] Mr. Kiefer is liable to Mr. John for assault. General damages arising from the assault are fixed at $100, and special damages at $780.
Costs
[34] Mr. John made no submissions as to costs. The trial lasted 1 hour and 5 minutes. He was unrepresented. I allow him costs at $250. He had no disbursements because of his fee waiver. If he had disbursements for service of documents related to this action, I am pleased to consider them provided they are sent to the Court by April 24, 2016, attached as exhibits to an Affidavit explaining why they were incurred.