Suchorab v. Broughton, 2021 ONSC 2544

COURT FILE NO.: 9183/14

DATE: 2021-04-06

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Carl Suchorab, plaintiff

AND: Wayne Broughton and Betty Jo Doan, defendants

BEFORE: Mr Justice Ramsay

COUNSEL: Steven C.J. Venhuizen for plaintiff; Broughton self-represented; Doan in default

HEARD: April 6, 2021 at Welland

ENDORSEMENT

[1] The plaintiff sues for assault and battery.

[2] On January 5, 2013 at four-thirty or five o’clock in the morning a man broke into the sunroom of the house occupied by the defendants. Ms Doan confronted him and sounded the alarm to Mr Broughton. The man ran off. According to the defendants, he slipped and fell and then got up and ran away. They lost sight of him.

[3] The defendants got into their car and drove around looking for him. A short time later and a short distance away, the defendants saw the plaintiff walking down the sidewalk the next street over. Mr Broughton says that he stopped the car and went over to him. He held his arm to detain him and they both fell down. That was an assault. Mr Broughton had not found the man committing an indictable offence and at that point he had no need to protect himself or anyone else or his property. He had no right to lay a hand on the plaintiff even if he thought he had just broken into his house.

[4] Mr Broughton and Ms Doan say that the man had the obvious eye injury before the fall on the street. Ms Doan says it was there before he entered the sunroom.

[5] The defendant says that he was walking down the street to make a deposit at the bank on East Main. He says that the man pushed or knocked him onto the ground and then punched and kicked him. That statement is not inconsistent with what the doctor wrote down in the emergency room.

[6] The plaintiff says that once he got the idea that the man was after someone for something, he offered him his OHIP card so that he could be satisfied with his identity and let him go. The man took the OHIP card and drove away. The plaintiff took a photo of the back of the car in an effort to get his licence plate. He produced the photo. He ran to the hospital, which was near by.

[7] The plaintiff suffered bruises to his forehead and a fracture along the bottom of his occipital orbit. Fortunately, it has healed, and it did not cost him his vision. He still feels pain on rainy days along where the bone was broken.

[8] The defendant called the police. He gave them the OHIP card. He also went into the station and gave him a cell phone cover, which he said he found on his back deck. The plaintiff agrees that it was his cell phone cover, but he says he has never been to the property of the defendants. The cover must have come off on the street when he fell during the assault.

[9] The plaintiff was in his late ‘20s. He was living with his parents and supporting himself with ODSP. As a teenager he had been diagnosed with a brain tumour. He underwent chemotherapy and had a shunt inserted in his skull, which drains spinal fluid into his chest cavity. As a result, he has had to be careful about contact sports and anything that would risk a head injury. He sleeps poorly, so it is not unusual for him to be awake in the early morning hours. He has never had a driver’s licence, so he walks everywhere.

[10] I do not think it plausible that he would be out looking to break into houses, especially with a broken eye socket.

[11] The transcript of the trial of the plaintiff before Colvin J. on November 12, 2013 was admitted into evidence on consent of the plaintiff and Mr Broughton. The fact of an acquittal is admissible, but in the circumstances, it does not help me because it was based on reasonable doubt, as opposed to positive findings of fact.

[12] In the transcript I have only referred to the evidence of the parties, that is, Mr Suchorab, Mr Broughton and Ms Doan, as well as one answer from PC Virag, the arresting officer. On page 72 of exhibit 9 he said that Mr Broughton came into the police station at 6:04 am on January 5 and gave him the cell phone cover. Mr Broughton does not deny this. He says that he does not remember. The cell phone cover, then, is no smoking gun. It could well have come from the street, not the back deck.

[13] I found the plaintiff to be credible. His evidence was more plausible than that of the defendants and fit better with the injuries that he sustained. On the preponderance of the evidence I find that he did not break into the defendants’ house. He was walking down the street when Mr Broughton pushed him down and beat him severely, causing his injuries. I cannot say that Ms Doan had any reason to know that Mr Broughton was going to do more than speak to the man. I find for the plaintiff against Mr Broughton and dismiss the action against Ms Doan without costs.

[14] The plaintiff suffered a horrible looking facial injury and suffered pain for two weeks. He has some residual pain as a reminder. He suffered psychologically in that he did not feel safe when walking about. In 2016 he got a job in Niagara Falls and moved there, in part to get away from Welland. He is now back with his parents because he was laid off when the pandemic started. I find that he lost considerable enjoyment from walking around, which was one of the few activities he enjoyed given his medical condition and inability to drive. He worried about damage to his shunt and he suffered a serious insult to his personal integrity. He still feels uncomfortable living in his home town.

[15] I fix damages at $20,000 for pain and suffering and subrogated damages to OHIP at $1618.01. An order may go requiring the defendant Broughton to pay that amount to the plaintiff with pre-judgement interest from January 5, 2013 and the usual post-judgment interest. The Registrar may sign an order in those terms without approval of Mr Broughton.

[16] The parties may make written submissions to costs, the plaintiff by April 13 next and Mr Broughton by April 20. They should be emailed to me in care of the trial coordinator.

J.A. Ramsay J.

Date: 2021-04-06