Court File and Parties

COURT FILE NO.: 15-DC-2164 DATE: 2016 May 20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SHAWN THOMSON Plaintiff/Respondent on Appeal – and – DAVID SIMMS Defendant/Appellant

Counsel: David Capra, for the Plaintiff/Respondent on Appeal John H. Hale, for the Defendant/Appellant

HEARD: May 11, 2016 at Ottawa

Judge: Tranmer, J.

APPEAL OF SMALL CLAIMS COURT DECISION

[1] The appellant, David Simms, appeals the decision dated October 21, 2015 of Deputy Judge Ivan G. Whitehall, sitting in Ottawa, Ontario.

[2] On the four issues advanced by the Appellant/Defendant, my decision is as follows:

Issue #1

[3] The appellant submits that there was no evidence before the learned trial judge that the defendant knew what his son had done on the ice with respect to the opposing team’s captain or with respect to the plaintiff. The appellant submits that therefore the learned trial judge erred in finding that the defendant’s conduct was motivated out of revenge for his son.

[4] I find that the learned trial judge did not err in this regard. There was evidence to support the trial judge’s conclusion. That evidence is found in the testimony of Tim MacPherson at page 154 where he testified to observing some sort of contact passing between the defendant and his son after the on-ice incident and the exchange at the plaintiff's bench, and at page 161, where he testified that the defendant was upset about the exchange between the plaintiff and the defendant's son, “he was upset.”

[5] Furthermore, the appellant concedes in his factum, para. 40, that the trial judge's “assessment is merely one of many conclusions that could be derived from the circumstances that play.”

[6] I find that there was evidence to support the deputy judge’s conclusions in this regard and I find no palpable and overriding error.

Issue #2

[7] The appellant submits that because there was no evidence to support the judge's conclusion that the defendant was acting out of revenge for his son, he erred in rejecting the defence of self-defence advanced by the defendant.

[8] I have already indicated why I find that there was evidence to support the judge's conclusion that the defendant was acting out of revenge. The trial judge made no error in that regard. There was evidence to support his conclusions.

[9] There was also other evidence to support the trial judge’s rejection of the self-defence defence, in particular, as found at paragraph 37 and 38 of his Reasons. This evidence includes the testimony of the defendant, that he “thought” the plaintiff was coming back to throw a punch at him, that he was “assuming” the plaintiff was coming back to throw a punch at him, that he “didn't know” if the plaintiff was going to swing so he did, that he didn't know if the plaintiff's hands were down and that he had “no idea if” the plaintiff was going to try to do the same thing to him. Transcript pp. 102, 103 and 114. There is evidence that the plaintiff was leaving the arena until the defendant shouted at him in the testimony of the plaintiff, p. 21, Mark Stride, p. 65, the defendant, p. 101 and 102, and Tim McPherson, p. 157. There is also the evidence of Tim McPherson that the plaintiff and the defendant had mutually agreed to take a dispute outside of the arena.

[10] I find that there was ample evidence to support the trial judge's conclusion that the defendant was not acting in self-defence and that the trial judge made no reversible error in this regard.

Issue #3

[11] With respect to the appellant's appeal against the award of punitive damages in the amount of $3000, I find that the learned trial judge made no reversible error. As I have indicated, there was evidence to support the trial judge's conclusion that the defendant knew what had occurred with respect to his son on ice and with the plaintiff. The learned judge's conclusions at paragraph 57, 58 and 59 are supported by the evidence and correct in principle. The quantum of the award reflects balanced consideration and no error.

Issue #4

[12] The appellant also appeals against the learned trial judge's award of general damages in the sum of $5000. The appellant concedes that the sum of $5000 is in the range but submits that so is a sum of $2000 or $3000. The appellant notes that the learned trial judge found that the plaintiff “whenever he had an opportunity to emphasize his injuries and fear of potential further damage he did so.” I find that the learned trial judge's decision in this regard is supported by the evidence, that he considered both the injury to the plaintiff's mouth and the alleged head injury appropriately in view of the evidence, and that this award constitutes no reversible error.

Decision

[13] For these reasons, the appeal is dismissed.

Costs

[14] The parties are unable to agree on costs of this appeal, the plaintiff may make written submissions, limited to two pages, within seven days, and the defendant may similarly respond within seven days thereafter.

Honourable Mr. Justice Gary W. Tranmer Released: May 20, 2016