Court File and Parties

COURT FILE NO.: CV-16-126574 DATE: 20211008

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joseph Grech Plaintiff

– and –

Michael Scherrer Defendant

COUNSEL: Mr. Joseph Ziemba, for the Plaintiff Mr. Ari A. Lokshin, for the Defendant

HEARD: November 20-23, 26-28, 30, 2018 December 3-4, 6, 2018 May 13-16, 2019 February 26, 2020 January 28, 2021 June 24, 2021

REASONS FOR DECISION

MCKELVEY J.:

Introduction

[1] The plaintiff, Joseph Grech, purchased and moved into a single-family home in a new subdivision in Richmond Hill in around September 2001. He lived in the home with his wife, Georgia Grech, and their daughter, Caroline. The home was located at 137 Humberland Drive.

[2] At the same time, the defendant, Michael Scherrer, purchased and moved into the home next door, located at 139 Humberland Drive, together with his wife, Helen Scherrer, and their son, James.

[3] Both families expected to enjoy their new homes in an upscale subdivision. Both Mr. Grech and Mr. Scherrer had good jobs and appeared to have been solid members of the community. However, shortly after moving in as neighbours, a needless feud developed between Mr. Grech and Mr. Scherrer, which resulted in a toxic relationship developing between them. This toxic relationship deteriorated over the years that they lived beside each other and ultimately led to a physical altercation on March 30, 2010 between Mr. Grech and Mr. Scherrer, and which is the major subject matter of this lawsuit.

[4] The plaintiff claims damages in the statement of claim for assault, battery, aggravated assault, intentional infliction of harm, nervous shock and mental distress. The plaintiff also claims aggravated, exemplary, and/or punitive damages.

[5] The defendant in his statement of defence pleads a limitation defence to the extent that the plaintiff relies on any acts which took place more than two years prior to the issuance of the statement of claim. The plaintiff agrees that all actions of the defendant, except for the incident on March 30, 2010, are not actionable in light of the expiry of the limitation period. The defendant also takes the position that the plaintiff was at all times the aggressor in any physical altercation. Although not originally pleaded in the defence, Mr. Scherrer argued that he acted in self defence. In separate Reasons dated February 19, 2021, I permitted the defendant to amend his pleading to rely on the doctrine of self defence. The defendant further denies that he is liable for the tort of intentional infliction of mental distress.

Witnesses at Trial

[6] The principal witness for the plaintiff was Joseph Grech, the plaintiff. His wife, Georgia Grech, and his daughter, Caroline Grech, were also called as witnesses. With respect to damages, the plaintiff called Dr. Eric Grief, who is a family physician and who gave psychotherapy treatments to Mr. Grech following the altercation in March 2010. The plaintiff also called Dr. Judith Pilowsky, who is a psychologist and who conducted assessments of the plaintiff prior to trial.

[7] The defence called Michael Scherrer as its principal witness. His wife Helen Scherrer also gave evidence, as well as his son James.

Background and Chronology

[8] Both Mr. Grech and Mr. Scherrer purchased homes in a new subdivision which was being built in Richmond Hill. Their homes were completed by September 2001 and both families moved into their new homes at around this time. Mr. Grech and his family moved into the residence at 137 Humberland Drive and Mr. Scherrer and his family moved into the home at 139 Humberland Drive. Photographs of the homes show that both are attractive single-family homes. Each has a garage and attractive landscaping. The backyards are fenced and there are gates which allow entry into the backyard. There are gates adjacent to each other between the plaintiff’s and the defendant’s residences. Each of the homes has a deck, which overlooks the backyard of the respective residences.

[9] The plaintiff’s wife, Georgia Grech, had a pre-existing history of bipolar disorder at the time the plaintiff’s family moved into the new home on Humberland Drive. She has regularly taken medication for this condition. Unfortunately, she was also diagnosed with colon cancer in 2010. She underwent several surgeries and is taking ongoing treatment for this condition.

[10] The evidence at trial suggests that there were no unusual problems in the relationship between the parties prior to the fall of 2002. At that point in time, the relationship between the parties took a sudden turn for the worse. The following is a chronology of some of the critical events leading up to the altercation of March 30, 2010.

Fall 2002

[11] Helen Scherrer testified that in the fall of 2002, Georgia Grech came to her house. She was crying and asking for help. She told Mrs. Scherrer that her husband had abused her and had threatened to kill her with a knife. She offered to call the police, but Mrs. Grech told her that she didn’t want the police to be called as that would make things worse. She asked Mrs. Scherrer to take her to the hospital. Mrs. Scherrer gave Mrs. Grech a trench coat and went to the car with her son. She drove Mrs. Grech to the York Central Hospital. She later told her husband about the incident which had occurred earlier in the afternoon.

[12] The evidence of Mrs. Grech corroborated much of Mrs. Scherrer’s evidence. She recalled that she went over to the Scherrer residence because she felt she was having a breakdown and was feeling very mad and afraid. She did not have a very good recollection of events and did not specifically recall her husband threatening her with a knife as was reported by Mrs. Scherrer in her evidence. She agreed on cross-examination that she might have told Mrs. Scherrer that she had a fight with her husband, but did not recall telling her that he had threatened her with a knife. Later in her evidence, she agreed that she might have said something about a knife. Mrs. Grech explained that when she got high with her mental illness, everything is exaggerated. She stated that because she was scared, she ran out of her home and went over to the Scherrer residence.

[13] In his evidence, Mr. Grech testified that on the day in question, his wife wanted to go out of the home. He told her to stay at the front door while he went to retrieve some belongings in the bedroom. When he came back he couldn’t see her. He searched the house and she was nowhere to be found. He subsequently took the car out and started to look for her. He later called 911 and learned from the police that she had been taken to the hospital.

[14] As a result of this incident, the Scherrer family was left with the impression that Mr. Grech was a wife abuser. There was no evidence of any communication between the parties to explain the sudden appearance of Mrs. Grech at the Scherrer home. Mr. Grech was not advised by the Scherrer’s of the report by his wife that he was a wife abuser, nor were the Scherrer’s made aware that Mrs. Grech had a history of mental illness. I have concluded that as a result of this failure of communication, the seeds of a feud between the families were sown.

[15] In his evidence, Mr. Grech testified that he went over to the Scherrer home following his wife’s admission to hospital to return the coat that she had borrowed from Mrs. Scherrer. He saw Mr. Scherrer and wanted to thank him for the assistance his family had given. However, Mr. Scherrer simply gave him a “dirty look” and Mr. Grech did not understand why he received such a cold reception.

August 30, 2003

[16] On this date, the police were called to attend by Mrs. Scherrer. The police record was introduced as a business record at trial. The record states that,

At 1832 hrs on 30Aug03 police attended 139 Humberland Dr in the Town of Richmond Hill in regards to a neighbour dispute – Police met with the complainant who advised that she is having an ongoing problem with her neighbour at 137 Humberland Drive. The neighbour has on numerous occasions made insults towards the complainant and left garbage on her property. This behaviour came to a climax today when her husband confronted the neighbour and attempted to coax him into a physical confrontation. No violence occurred as both parties returned to home before things got out of hand.

[17] Mr. Grech stated that on the day in question, Mrs. Scherrer came out on her deck and called him a wife beater. She said she told him he was ignorant and to get an education. Mr. Scherrer then turned to him and said, “let’s go to the school yard”. Mr. Scherrer started to call him a coward and subsequently, Mrs. Scherrer called the police who wanted both families to stay away from each other.

[18] In her evidence, Mrs. Scherrer stated that Mr. Grech started to attack her verbally. He called her a cow or a pig and told her husband to tie her up in the barn. She responded by calling Mr. Grech a wife abuser. Following this exchange, her husband took her inside. However, she could hear her husband and Mr. Grech yelling outside. She was concerned that things could get physical and she called the police. Mrs. Scherrer stated that following this incident, her relationship with Mr. Grech got worse. He would call her “Miss Piggy” and she also heard Mr. Grech calling her husband names. On occasion, she reported that Mr. Grech would look over at their deck and say something like, “I think I can smell a pig”.

August 4, 2008

[19] On this date, Mr. Scherrer installed a video camera on his deck, which was directed towards Mr. Grech’s deck. The video captures a conversation between Mr. Grech and Mr. Scherrer which is quite disturbing in light of the profanities and insults that were exchanged between the parties.

August 10, 2008

[20] On this date, there was an altercation between Mr. Grech and Mr. Scherrer. According to Mr. Grech, Mr. Scherrer came up to him while he was picking weeds in his yard with a small steak knife. Mr. Scherrer then flicked a piece of paper that was on the ground into his face. Mr. Grech stated that he then dropped the knife and tried to get away. He also asserted that Mr. Scherrer punched him in the face. The plaintiff’s version of events was denied by Mr. Scherrer, who denied hitting the plaintiff in the face. He stated that he returned home in his car and saw Mr. Grech on the front lawn between the two houses. He asked Mr. Grech if he was throwing garbage on his property. He stated that Mr. Grech brought the knife up to a 90 degree angle and in response he pushed him away. Mr. Grech then ran into the front of his house yelling for his wife to call the police.

[21] The York Regional Police Report with respect to this incident was submitted as a business record. It records that at approximately 17:00 hours on August 10, 2008, York Regional Police were dispatched in response to a call. The report states,

Upon arrival, police spoke to the reporting party, Joseph Grech, residing at [address redacted in the report]. Joseph advised that at approximately 16:00 hours on this date, he got punched in the face by his next door neighbour, Michael Scherrer, while he was picking weeds in his front lawn.

Joseph had an ice bag covering his right cheek while speaking to police. Police did not observe any apparent physical injuries. Some redness was observed on his right cheek. However, after a several minute conversation with Joseph, the redness dissipated indicating the redness was likely caused by the ice pack on his face. Joseph further advised that he was struck in the right cheek by Michael’s closed right fist when they were standing face to face. Joseph was advised by the police that it would be difficult to strike him in the right cheek with a right hand from that position. Joseph then changed his story indicating that he was struck by Michael’s left hand. Joseph appeared frustrated when questioned about the details of the assault.

Police then spoke to Michael regarding this incident. Michael advised that Joseph and he had a verbal argument on this date as Joseph threw weeds on his lawn. He further advised that he is right-handed and he did not punch Joseph. Police did not observe any redness or injuries on Michael’s hands.

Police canvassed the neighbourhood attempting to find any independent witness with negative results.

Police issued verbal warning to both Joseph and Michael to cease communications with each other.

August 21, 2008

[22] An application for a peace bond was filed by Joseph Grech dated August 21, 2008. In support his application he refers back to the incident which occurred on August 10, 2008. Mr. Grech in his evidence stated that the peace bond application was subsequently dismissed despite the concerns he expressed in the application about fearing for his own safety.

February 28, 2010

[23] On this date, the defendant, Mr. Scherrer, took a video of Mr. Grech’s activities, which were seen from his kitchen window and which showed Mr. Grech making obscene gestures towards Mr. Scherrer’s home.

March 17 and 18, 2010

[24] On these dates, Mr. Scherrer took video showing garbage which had accumulated on Mr. Grech’s side of the property between the two homes. In a video taken on March 18, 2010, the accumulation of garbage on Mr. Grech’s side of the property has disappeared, there is now garbage shown on Mr. Scherrer’s side of the property.

March 30, 2010

[25] This is the date when a physical altercation took place between Mr. Grech and Mr. Scherrer.

August 2011

[26] By this time, Mr. Scherrer had sold his home and had moved from his residence on Humberland Drive.

March 16, 2012

[27] On this date, the statement of claim in the action was issued.

Limitation Period Defence

[28] The defence relies on the two-year limitation period provided for under the Limitations Act, 2002, S.O. 2002 c. 24. It is apparent that the action relating to the altercation on March 30, 2010 is not affected by the limitation period. However, there is no evidence of any altercation after March 16, 2010, except for the March 30, 2010 incident. The defence argues that any acts by Mr. Scherrer prior to March 16, 2010 would be statute barred. The plaintiff has not raised any discoverability issue or argument against the application of the limitation period. I therefore conclude that the limitation period would apply to any claims pre-dating the incident on March 30, 2010.

Did the Defendant Commit an Assault and/or Battery on the Plaintiff on March 30, 2010?

[29] Assault is defined in the text Bruce Feldthusen et al., Canadian Tort Law, 11th ed. (Markham, Ont.: LexisNexis Canada, 2018), as the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest and freedom from fear of being physically interfered with. The underlying policy for the tort of assault is the reduction of violence because threatening to inflict harm is apt to attract retaliation in the same way as causing harm. It therefore must also be discouraged by tort law.

[30] In the text, the authors state at p. 51,

Assault should be distinguished from battery, although the two are often blurred together and called “assault”. This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and a battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault, but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault.

[31] Battery is defined in the text Canadian Tort Law on page 46 as follows,

A person who proves that the defendant made direct physical contact with her person makes her case for battery. The onus then shifts to the defendant to establish that the contact was neither intentional nor negligent; or that the plaintiff consented to the contact or that a reasonable person would think she had consented. This nominate tort protects the interest in bodily security for interference from others. It is sometimes said that the contact must be harmful or offensive, but this is misleading. By definition, any contact beyond the trivial contact that is expected in the course of ordinary life is prima facie offensive if it is non-consensual. Every person’s body is inviolate. The tort protects the integrity of one’s person and does not require proof of further injury.

[32] On page10 of Canadian Tort Law, it states that the common law has excused intentional interference with the person of another, if one person is threatened with harm by another. Self preservation is recognized as an inevitable and unavoidable instinct in human beings which must be accepted by the law.

[33] The authors of the text, however, note that self defence is a preventive mechanism and not an instrument for revenge. Force employed by a threatened person for self defence must be reasonable. Since the right of self defence is one which might be easily abused, the courts have condemned measures, “out of proportion to the apparent urgency of the occasion”. Defensive force is not reasonable if it is either greater than necessary for the purpose of preventing the attack, or disproportionate to the evil being counteracted. In other words, acts of self defence must be both reasonably necessary as well as reasonably proportionate to the harm being threatened. The force must therefore, not transgress the reasonable limits of the occasion, recognizing, however, that errors are possible when split second decisions must be made in response to threatened harm. The courts do not expect people to measure with legal nicety the extent of their blows.

[34] The onus of proving self defence in a civil action rests upon the defendant.

[35] There were no witnesses to the altercation on March 30, 2010. The plaintiff’s version of events is directly contradicted by the defence version of the events. Consequently, the result in this case depends largely on the credibility and reliability of the evidence given by Mr. Grech and Mr. Scherrer.

[36] In his evidence, Mr. Grech testified that he got up at around 4:00 a.m. on the morning of March 30, 2010 and was preparing to go to work. He decided to go into the backyard and went there by using the gate on the side of his house which was furthest away from the defendant’s home. He saw some garbage on his side of the fence and took a plastic broom handle and started to push it underneath the gate closest to the defendant’s property. He estimated the time of this activity at around 5:30 a.m. On the second time that he pushed some of the garbage underneath his gate, Mr. Scherrer grabbed the stick on the other side of the gate and started to bang it on top of the gate yelling “come on coward”.

[37] Mr. Grech did not say anything in response and went to the gate on the far side of his house. He then lifted up his garage door, entered the garage and closed the garage door. He then proceeded to the foyer of his house. Mr. Grech saw Mr. Scherrer through a window in the foyer of his house. Mr. Scherrer was on the property line between the two houses. He then saw Mr. Scherrer start to hit his house with the broom handle. Mr. Grech then waved his hand in a motion to tell him to go away. He then saw Mr. Scherrer move toward the front part of his house and the next thing he heard was a thud on his front door. About five minutes later, Mr. Grech opened his front door in order to try and identify where Mr. Scherrer was located. He stated that Mr. Scherrer was hiding behind a pillar beside his front door. Mr. Scherrer then grabbed him in a headlock and dragged him out of his house. Mr. Grech stated that Mr. Scherrer hit him with the stick on the forehead and once over his left eye. He was struggling to get out of the headlock grip and in doing so, both of them fell off the porch onto the grass beside the porch.

[38] Mr. Scherrer landed on top of Mr. Grech. Mr. Scherrer then ended up straddling him and facing him. Mr. Scherrer then started to punch him with both hands on his face. He estimated that Mr. Scherrer landed three punches on each side of his face. Mr. Grech was pleading with him to stop and subsequently, Mr. Scherrer stopped beating his face, stood up and left towards his own home.

[39] Mr. Grech then picked up the broomstick or stick, threw it in the garage, and went into his house to call 911.

[40] Mr. Scherrer testified that in March of 2010 he woke up early at around 4:00 a.m. He could not get back to sleep and went to the kitchen to get a glass of water. He could see a light on in the Grech home.

[41] Mr. Scherrer wanted to see if Mr. Grech was raking garbage onto his property. This had been an ongoing concern of his which was consistently denied by Mr. Grech. Mr. Scherrer felt that if he was able to catch Mr. Grech dumping garbage on his property, he might stop doing it.

[42] Mr. Scherrer went out his front door and walked to the area between the two houses. He walked towards the gate and saw a stick coming from underneath Mr. Grech’s gate and saw that he was sweeping garbage onto his side of the property. He then reached down and grabbed the stick from under the fence. At that point, Mr. Scherrer stated that Mr. Grech went “ballistic”, he was jumping up and down to try and see him above the top of the gate and was cursing and was extremely angry. Mr. Scherrer then told Mr. Grech “this is how you don’t put garbage on my property”. According to Mr. Scherrer, Mr. Grech started to curse him and he then felt a heavy thump against his chest. Mr. Scherrer did not know at the time what had hit him, but later on after the police arrived, he went back with the police officer and found a rock that was thrown at him by Mr. Grech.

[43] After Mr. Scherrer was hit in the chest, he went toward the front of his house. He stated that Mr. Grech by this point was “out of control” and looked like he might come onto his property. He stuck the broom handle or stick in front of him and told Mr. Grech to keep his distance. At that point, Mr. Grech grabbed the stick and started to hit Mr. Scherrer with it, telling him “how do you like this?”. As Mr. Grech was trying to hit him with the stick, Mr. Scherrer was protecting himself with his arms and hands. At one point as Mr. Grech was winding up to hit him again with the stick, he grabbed him in a headlock. Both fell to the ground and both were trying to punch each other. Mr. Scherrer was able to get on top of Mr. Grech and pinned his arms, when Mr. Grech said, “okay, I quit”. At that point, Mr. Scherrer got off the plaintiff who started to curse him again and then went into the house.

[44] It is apparent that if Mr. Grech’s evidence is accepted, Mr. Scherrer was the aggressor in the fight and waited in a hidden location to attack Mr. Grech as he opened the door after Mr. Scherrer grabbed the broomstick, which Mr. Grech was using to push papers underneath the gate.

[45] On the other hand, if Mr. Scherrer’s evidence is believed, Mr. Grech was the aggressor. At worst, in this scenario, Mr. Scherrer was defending himself with Mr. Scherrer foregoing any further physical contact with Mr. Grech once he said he wanted to quit. At worst, the assault would have been committed by Mr. Grech on Mr. Scherrer.

[46] There are a number of factors to support Mr. Grech’s version of events. He points to the fact that following this incident, there was a dent in the front door of his home and blood on the cement porch outside the front door. These observations would be consistent with Mr. Grech’s assertion that the initial altercation took place on his front porch. However, I do not consider those observations definitive because there was no clear evidence as to when the dent on the front door occurred. I also do not consider the presence of a spot of blood on the cement porch by the front door to be conclusive as that could have occurred as Mr. Grech was returning following the altercation to his home.

[47] I do note that at the time of this altercation, Mr. Grech was approximately 5’6” tall, while Mr. Scherrer was 5’11” tall. Mr. Scherrer had training in martial arts and had obtained a black belt in karate. It is readily apparent that Mr. Grech would be at a physical disadvantage in any physical altercation. He clearly recognized this and had tried to make sure in the past that he did not put himself in a position where he could be exposed to a physical attack by Mr. Scherrer. This is also reinforced by the fact that Mr. Scherrer on his own evidence had tried to induce Mr. Grech to fight him on a number of occasions and Mr. Grech had consistently declined to get involved. It is also beyond dispute that Mr. Grech engaged in verbal confrontations in situations where there was no opportunity for Mr. Scherrer to respond physically. This led Mr. Scherrer to call Mr. Grech on a number of occasions a coward or a “pansy”.

[48] All of these factors tend to support a conclusion that Mr. Grech was careful not to put himself in close proximity to Mr. Scherrer.

[49] However, these factors must be balanced against factors which tend to support Mr. Scherrer’s version of events.

[50] There were significant inconsistencies in the evidence given by Mr. Grech which caused me to have serious concerns about the credibility and reliability of his evidence. In his evidence in chief he presented himself as an innocent victim who was unjustly targeted by his neighbour. He referenced how he was accused of being a wife beater and invited to go to the local school yard to have a fight. He referred to what he felt were unjust accusations of him throwing garbage on the neighbouring property and denied that he did this. The circumstances of the incident on March 30, 2010 have lead me to conclude that in fact Mr. Grech was attempting to move garbage onto Mr. Scherrer’s property just prior to the altercation.

[51] Mr. Grech also referred to continuing verbal assaults by his neighbour over the years, and the fact that Mr. Scherrer made disparaging remarks about him, calling him a “nobody”, and made disparaging remarks about his Maltese heritage.

[52] The video taken by Mr. Scherrer on August 4, 2008 paints a much different picture of Mr. Grech. On August 4, 2008, Mr. Scherrer set up his video camera just underneath the roof of his back deck. It was pointed towards the back deck of the plaintiff. At the beginning of the video, Mr. Grech can be seen sitting at a table on his back deck which would overlook the gardens of both his and Mr. Scherrer’s property. What follows is a verbal confrontation between Mr. Grech and Mr. Scherrer who was apparently located in his garden. The verbal confrontation starts with Mr. Grech starting to laugh, getting out his chair and moving to the front railing of the porch so that he could speak directly to Mr. Scherrer.

[53] The verbal confrontation on the video lasts for approximately 20 minutes. There is no yelling between the two men. However, the content of their conversation is very disturbing.

[54] Mr. Scherrer responds to Mr. Grech’s laugh by telling him that that was his “girly” laugh. Mr. Grech responds that Mr. Scherrer has a “faggot laugh”. He asked Mr. Scherrer when he was going to act like a man. He tells him that he doesn’t like him and that he is a “fucking weirdo”. Mr. Scherrer responds that Mr. Grech “is so full of shit that’s why your lawn is so green”.

[55] During the conversation, Mr. Grech calls Mr. Scherrer a “dumb asshole” and “white trash”.

[56] Later in the conversation, Mr. Grech tells Mr. Scherrer that his wife looks like a pig and that, “I call her Miss Piggy”. Mr. Scherrer then asks him if he is a man and invites him to go to the park. Mr. Grech responds that if he comes over to his property, he’ll charge him with trespassing and will call the police. Mr. Scherrer responds that Mr. Grech does not have the “intestinal fortitude” to stand up for himself and that he is a babbling idiot. He later tells Mr. Grech, “your manhood is like your flowers; they’re pansies”.

[57] I consider the video to be significant in a number of respects. First, it is totally inconsistent with the plaintiff’s portrayal in his evidence in chief of being victimized and abused by Mr. Scherrer. The video would suggest that the confrontation was triggered initially by Mr. Grech himself laughing in Mr. Scherrer’s direction. It is also apparent that in terms of verbal abuse, Mr. Grech was totally engaged in attacking Mr. Scherrer. I have considered the fact that Mr. Scherrer’s responses may have been tempered by the fact that he was aware of the fact that the discussion was being recorded on video while Mr. Grech was not. However, the point I take from the video is that Mr. Grech, for a period of 20 minutes heaps verbal abuse relentlessly on Mr. Scherrer and that this is inconsistent with his portrayal of the relationship which he gave in his examination in chief.

[58] This portrayal is further eroded by the video which was taken by Mr. Scherrer on February 28, 2010. The video was taken in the nighttime hours from Mr. Scherrer’s kitchen which was dark and had no lights on. Mr. Grech can be seen in his home in his kitchen making profane gestures towards the Scherrer’s home.

[59] There are also significant inconsistencies in the plaintiff’s evidence.

[60] Mr. Grech’s evidence with respect to the alleged altercation on August 10, 2008 was inconsistent, confusing and in my mind, evasive. The following is his evidence when questioned about this in cross-examination:

Question: Okay. So – and then Joseph was advised - I’m just going to read it, “Joseph was advised by police that it would be difficult to strike him in the right cheek with the right hand from that position. Joseph then changed the story, indicating he was struck by Michael’s left hand.” Do you confirm that on the day of the incident you changed your story and then said that you were not punched by the right hand, but then by the left hand?

Answer: Because, because I wasn’t sure. So when, when they start asking me questions I wasn’t sure. I told you, I wasn’t looking at Mr. Scherrer. If I was looking which hand that he, he punched me with I would have ducked or, or whatever, if I can’t escape it. So I don’t know what he did, but I know he almost knocked me down.

Question: Okay. But you did tell the police you were standing face to face with Michael when this incident occurred?

Answer: That, that – that’s what it say [sic] here. I don’t know what I told him. that’s what it say [sic] here.

Question: So you deny – do you deny telling them that?

Answer: No, I’m not denying anything. I’m not denying anything. I’m not denying anything. I told you I was facing….

[61] Earlier in his cross-examination, the plaintiff testified as follows:

Question: So you were facing with your left side towards my client, but, yet, he somehow punched you on your right cheek. Is that your evidence? Even though your left side is facing towards my client…

Answer: Yeah.

[62] In his cross-examination, Mr. Grech denied having made any racial slurs toward Mr. Scherrer despite the fact that he was aware of what was contained in the video. His evidence on this point was as follows:

Question: My client, did you ever call my client white trash?

Answer: His wife?

Question: My client…

Answer: Yeah, Mister…

Question: …Mr. Scherrer. Did you ever call….

Answer: …Mr. Scherrer, right?

Question: Did you ever call Mr. Scherrer white trash?

Answer: Not that I remember, no.

Question: Did you ever call my client Mr. Scherrer a, “dumb asshole”?

Answer: On that video I called him an, an, an – that – how do I even say it? The asshole of the neighbourhood.

Question: And it is your evidence that that’s the only time you’ve ever called him that?

Answer: I can’t recall any other time.

[63] Mr. Grech in his cross-examination maintained that the altercation with Mr. Scherrer on March 30, 2010 occurred between 5:30 and 5:45 a.m. In fact, according to the agreed statement of fact at paragraph 26, the incident occurred between 4:00 and 4:30 a.m. The police documents record the time of the call to the police following the altercation at 4:53 a.m. The reason this is important is because the explanation given by Mr. Grech in his evidence for checking outside his front door before Mr. Scherrer grabbed him was that he wanted to know where Mr. Scherrer was because he needed to leave for work. It is apparent that if the incident occurred an hour earlier than Mr. Grech’s estimate, the need for Mr. Grech to look outside his door to check on Mr. Scherrer’s whereabouts before he left for work evaporates.

[64] In contrast to Mr. Grech, the evidence of Mr. Scherrer was much more persuasive. He did not have any serious inconsistencies in his evidence and there was evidence which tended to support his evidence. For example, the photographs taken of his hands following the incident do show swelling which is consistent with his assertion that he was using his arms and hands to protect himself from the assault by Mr. Grech with the broomstick. The notes of the police officer who investigated following the altercation also record that there was “some redness to the upper right side of his torso”. The notes also document that the police officer attended between the houses and “located a large rock laying on the ground”.

[65] Mr. Scherrer was candid in acknowledging that on a number of occasions he invited Mr. Grech to fight him. He inferred that this was justified in light of Mr. Grech’s comments about him and his family. One can be critical of Mr. Scherrer for his actions which clearly had the potential to escalate into the physical altercation which subsequently occurred; however, he did not shy away from taking responsibility for his actions.

[66] Mr. Scherrer’s assertion that Mr. Grech was attempting to move garbage from his property over to the Scherrer property is also supported by the video which was taken by Mr. Scherrer on March 17 and 18, 2010, just a short time prior to the physical altercation. I also find it difficult to understand why Mr. Grech would feel the need to move the garbage from inside his garden to outside the gate door if it was not his intention to move it onto the defendant’s property. If it was his intention to keep the garbage on his property, the logical step would simply be to collect it in his backyard and put it in a garbage bag.

[67] For the reasons set out above, I find that on a balance of probabilities, the altercation which occurred on March 30, 2010 took place as described by Mr. Scherrer in his evidence. I reject the evidence of Mr. Grech as to how this altercation occurred.

[68] In light of the above findings, I find that the fight occurred with Mr. Grech being the aggressor. I further find that Mr. Scherrer has established self defence as a complete defence to the plaintiff’s claim. Mr. Grech started the altercation by hitting Mr. Scherrer with the stick and Mr. Scherrer initially protected himself with his arms and hands. Mr. Scherrer then grabbed Mr. Grech in a headlock, both fell to the ground and both were trying to punch each other until Mr. Scherrer was able to get on top of Mr. Grech and pinned his arms. At that point Mr. Grech told Mr. Scherrer that he wanted to quit the fight and at that point Mr. Scherrer got off the plaintiff who started to curse him again and then went into his house. I have concluded that the force used by Mr. Scherrer was both reasonably necessary as well as reasonably proportionate to the harm being threatened. In addition, he stopped the altercation once Mr. Grech said, “ok, I quit”; he did not take the opportunity to inflict any further injury on Mr. Grech. On this issue the evidence of both Mr. Grech and Mr. Scherrer were consistent.

[69] The plaintiff in his argument has suggested that even if self defence is established for the first part of the altercation, such a defence would not apply after Mr. Scherrer succeeded in getting on top of Mr. Grech. On the evidence of Mr. Scherrer in his cross-examination, he acknowledged that he punched Mr. Grech one or two times after he got on top of him prior to Mr. Grech asking him to stop. However, his evidence on this point was as follows:

Question: How long were you on top of Mr. Grech?

Answer: Just a few seconds.

Question: A few seconds? And how many punches did you throw when you were on top of Mr. Grech?

Answer: That’s when I was able to connect a couple of – maybe one or two punches that I hit him with and then I was able to restrain his arms because he was trying to punch me at the same time, and that’s when he asked me to stop.

[70] I accept Mr. Scherrer’s evidence on this issue and based on that evidence the plaintiff was attempting to hit him at the same time as he landed his punches. In these circumstances Mr. Scherrer was justified in hitting Mr. Grech. In any event, for the very short duration of time that Mr. Scherrer was on top of Mr. Grech, I have concluded that his response was not out of proportion to the urgency of the situation. As noted earlier, a court does not expect people to measure with legal nicety the extent of their blows. I therefore find that self defence has been established for the entire duration of this fight.

[71] The claims for assault and battery are therefore dismissed. For the same reasons, the claims for aggravated assault and intentional infliction of mental suffering are also dismissed.

Damages

[72] With respect to damages, the principal claim of the plaintiff is for general damages arising out of the injuries suffered in the altercation on March 30, 2010. The plaintiff has suggested that the damages for non-pecuniary injuries, including aggravated damages, should be in the range of $120,000. The defendant’s position is that the range of general damages in these types of cases range from $40,000 to $50,000 but that the general damages in this case should be reduced further because of the plaintiff’s advanced age, the fact that the plaintiff did not suffer any lasting physical injuries or scarring, and it is asserted that the plaintiff failed to mitigate his damages by going off psychiatric medications prescribed by Dr. Grief. The defence therefore argues that the general damages should be assessed at no more than $2,500 assuming that there is no evidence before the court that the plaintiff’s psychological injuries were caused by the altercation in general. In the event that the court determines that the plaintiff’s mental health problems were caused by the defendant’s actions, the defence submits that the general damages should be no more than $20,000 which takes into account the defence position that the plaintiff failed to mitigate his damages.

[73] With respect to the physical injuries suffered by the plaintiff, it is apparent that he suffered a cut on the top of his forehead which required two or three stitches to close. There was also a cut over his left eye requiring two stitches. There was also bruising on his face, arm and leg. He also suffered two fractured ribs on his right side.

[74] Mr. Grech described in his evidence that he felt a lot of pain for about a month prior to his return to work and that it took approximately two months before he could function normally. He stated that he still feels pain in his side depending on the weather.

[75] The most serious complaint relates to psychological injuries which are alleged to have been suffered as a result of the altercation. Mr. Grech described feelings of anxiety, depression and fear since the altercation. He also has had trouble sleeping, has suffered panic attacks and has nightmares. Even though the Scherrer family has moved away from the neighbourhood, Mr. Grech testified that he remains in fear that Mr. Scherrer may return at some point to try and harm him again. Mr. Grech stated that he has been prescribed anti-depressant medication as well as another medication to assist him in sleeping.

[76] Mr. Grech stated that he used to enjoy working in his garden. However, he does not tend to the garden like he used to and does not have the same enthusiasm for doing things. He testified, “the pleasure is gone”.

[77] It is significant to note that Mr. Grech has a history of being involved in three prior motor vehicle accidents. The medical records suggest that he has a prior history of depression and was on medication for this condition. He commenced a claim for compensation arising out of the second motor vehicle accident, but could not recall if a claim for psychological injury had been presented in that action.

[78] The plaintiff’s family physician referred him to Dr. Eric Grief who is a family physician who provides psychotherapy. Dr. Grief testified that following the altercation in March of 2010, Mr. Grech complained of being depressed, was having nightmares and was nervous. He also experienced periods where he cried. Nevertheless, Dr. Grief stated that Mr. Grech was able to continue working at his job and functioning. He stated that he did not feel that he needed medication at that time. Dr. Grief described the plaintiff’s symptoms following the altercation as typical symptoms of depression and anxiety. His impression was that the plaintiff was not severely depressed because of his ability to work and interact with family.

[79] In August of 2010, however, Dr. Grief decided to use anti-depressant medication to lessen Mr. Grech’s depression and so that he would dwell less on negative thoughts. In November of 2010, Mr. Grech reported that he was no longer taking his medication. Dr. Grief subsequently changed his anti-depressant medication which Mr. Grech took for a significant period of time. Dr. Grief also engaged in talk therapy over an extended period of time. In January of 2013, Dr. Grief described the plaintiff’s condition as stable but not well. By March of 2017, Dr. Grief felt that the plaintiff was still suffering from anxiety, depression and post traumatic stress disorder, but he was no longer taking any medication. He was able to do all his usual activities of daily living at this point.

[80] Dr. Grief expressed the view that the plaintiff might need some medication in the future or a referral to another therapist.

[81] It is interesting to note that Dr. Grief found it difficult to link all of the plaintiff’s mental health issues to the altercation in March 2010. It is also significant to note that Mr. Grech’s wife was diagnosed with a serious form of cancer in 2010 and has been in treatment since that time. In his evidence, Dr. Grief stated that stress accumulates over time and if you don’t let it out a patient might reach his maximum ability to handle stress. He testified that both an assault and having to deal with his wife’s stress could cause problems. Later in his evidence when asked to comment further on the issue of causation he stated that “in life it is rare to have black and white”. He reiterated that Mr. Grech mentioned that he would often think about the assault but also referenced his wife’s treatment for cancer. I inferred from his comments that both were significant contributing factors to Mr. Grech’s overall mental health situation and that even in the absence of the assault Mr. Grech would have experienced significant mental health issues.

[82] The plaintiff called an expert psychologist, Dr. Judith Pilowsky. Dr. Pilowsky expressed the opinion that the plaintiff suffered from post traumatic stress disorder as well as depression. She stated that because of the plaintiff’s age and the chronicity of his symptoms, he was not likely to recover. She stated that the assault led to the development of chronic psychiatric illnesses which would require treatment as well as medication for the rest of his life. She expressed the view that the plaintiff’s prognosis is poor and that there was no evidence of malingering.

[83] In cross-examination, Dr. Pilowsky initially acknowledged that she works primarily for plaintiffs. She stated that she has done a few defence examinations, but they were minimal. Nevertheless, she stated that she is able to remain objective. She subsequently agreed that she had not done any defence work in the last three to five years. Later, however, she testified that if she does an assessment which is not favourable to the complainant, she does not normally prepare a report which is “useless”. She acknowledged, however, that such a report might be useful to the defence. Dr. Pilowsky was also referred to a portion of her report which states that the plaintiff did not have any history of a pre-existing illness. She was not aware that the plaintiff had been involved in three previous motor vehicle accidents and did not consider the impact of any of the prior accidents on his mental state. Dr. Pilowsky attempted to downplay the significance of prior accidents by suggesting that these might simply have made the plaintiff more vulnerable. I have difficulty accepting this explanation given that she had very little details about those accidents.

[84] Dr. Pilowsky was also unaware of the plaintiff’s prior history of depression and was referred to her report where it indicates that there were no prior mental health problems. Dr. Pilowsky once again attempted to downplay the significance of the documented mental health issues prior to the altercation. She stated that while Mr. Grech should have been more open about his prior psychological history, it did not change her opinion that he had suffered post traumatic stress disorder as a result of the altercation in March 2010. Overall, I place little weight on Dr. Pilowsky’s evidence because, in my view, she appeared to be an advocate for the plaintiff’s position as opposed to an independent expert.

[85] There was also some evidence that the plaintiff’s condition was starting to improve. Caroline Grech, the plaintiff’s daughter, testified that since the altercation in March 2010, her father gets easily upset. She felt that the effects of the assault have lingered up to the present time. However, her father has started to work in the garden again and she noticed that by the summer of 2018, the family garden which was tended by the plaintiff has now started to look like it used to.

[86] I have concluded that the plaintiff’s physical injuries substantially resolved within approximately two to three months following the altercation with the defendant. I accept that he has had continuing symptoms of anxiety and depression, but that these have gradually improved over time and did not significantly impact his ability to work or carryout his activities of daily living. Further, in light of this history of mental health issues prior to the altercation, it is likely that these prior mental health issues would have continued in any event. To a significant extent, the plaintiff’s current condition is related to his pre-existing condition. I am not satisfied that the plaintiff failed to mitigate his damages by going off his medication or by failing to bring his family to sessions with Dr. Grief as alleged by the defendant. At the time Mr. Grech went off his medication he was able to do all of his activities of daily living. His decision not to bring his family to therapy sessions does not appear to be significant. Taking all factors into account, I assess his general damages in the sum of $50,000. Given my findings as to how the altercation occurred, there is no basis in my view for any award of aggravated or punitive damages.

[87] There is a claim for lost income after March 30, 2010. The plaintiff was not able to return to work until April 26, 2010. After taking into account short-term disability benefits which the plaintiff received, the claim is assessed at $960.

[88] There was also a subrogated OHIP claim in the amount of $10,182.25 and a claim for ambulance fees in the sum of $45, both of which are allowed.

Conclusion

[89] For the above reasons, the plaintiff’s claim is dismissed. If the parties are not able to agree on costs, then an appointment should be taken out with the trial coordinators within 30 days of the release of this decision to address the issue of costs. In such event, the parties will deliver concise briefs at least two days before their attendance. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.

Justice M. McKelvey

Released: October 8, 2021

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Joseph Grech Plaintiff

– and –

Michael Scherrer Defendant

REASONS FOR DECISION

Justice M. McKelvey

Released: October 8, 2021