IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120508

Docket: S074452

Registry:
Vancouver

Between:

Mitchell Henry Van
Hartevelt

Plaintiff

And:

Satinderjit
Singh Robert Grewal, His Wife, Jane Doe also known as Mrs. Satinderjit
S.R. Grewal, Gurcharin Singh Grewal and Harinderjit Kaur Grewal

Defendants

Before: The Honourable Mr. Justice
Savage

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff Mitchell Van Hartevelt (“Mr. Van Hartevelt”) sues for
an assault allegedly committed on him by the defendants Satinderjit Singh
Robert Grewal (“Mr. R. Grewal”) and Satinderjit S. R. Grewal (“Mrs. R.
Grewal”) (collectively referred to as “the First Named Defendants”) on December 22,
2006 at his apartment suite in the Randi Lynn Apartments on Jarvis Street in
Vancouver, B.C. (the “Randi Lynn”).

[2]            
The defendants Gurcharin Singh Grewal (“Mr. G. Grewal”) and
Harinderjit Kaur Grewal (“Mrs. H. Grewal”) (collectively referred to as
“the Second Named Defendants”) own the Randi Lynn in which Mr. Van
Hartevelt has been a tenant for over thirty years.  Mr. Van Hartevelt says
that these Second Named Defendants are vicariously liable for the torts
committed by their son and daughter-in-law, the First Named Defendants.

[3]            
Mr. Van Hartevelt says that Mr. R. Grewal, through past
dealings harbours ill will towards him, has a history of violence, and was
property manager of the Randi Lynn at the time of the alleged assaults.  Mr. Van
Hartevelt says that Mr. G. Grewal and Mrs. H. Grewal are vicariously
liable for the torts allegedly committed by Mr. R. Grewal and Mrs. R.
Grewal.

[4]            
Mr. Van Hartevelt says he had just completed a winter solstice
dinner with three friends when the assault occurred.  The First Named
Defendants entered his apartment uninvited, Mrs. R. Grewal was asked to
leave, was touched on the shoulder and lightly pushed in the process, a verbal
altercation ensued, and Mr. R. Grewal attacked Mr. Van Hartevelt,
beating him about the head, and then trashed his apartment.  The police were
called and attended.  Mr. Van Hartevelt attended St. Paul’s Hospital and
was released the next day.

[5]            
Mr. R. Grewal says that Mrs. R. Grewal was consoling and
investigating the distress of one of Mr. Van Hartevelt’s guests, at the
door to his apartment, when Mr. Van Hartevelt pushed and then slapped Mrs. R.
Grewal on the face.  Mr. R. Grewal reacted by pushing Mr. Van
Hartevelt once forcefully in his apartment.  He turned and then left.  The
First Named Defendants say that Mr. Van Hartevelt’s injuries were
self-inflicted and he staged and trashed his own apartment, and brought false
accusations against them.  They say that Mrs. R. Grewal was forcefully
slapped to the extent that Mr. R. Grewal sought out a cold compress for
her face.

[6]            
Mr. Van Hartevelt and the Second Named Defendants have been
involved in numerous residential tenancy disputes.  At some of those Mr. R.
Grewal has represented them at hearings.  Mr. Van Hartevelt says that the
First Named Defendants, or at least Mr. R. Grewal was the building manager
at the time of these events, and the Second Named Defendants are liable for the
torts committed by the First Named Defendants.  The Second Named Defendants
deny that either of the First Named Defendants were employed by them, and deny
that they are legally responsible if an assault occurred.

[7]            
Mr. Van Hartevelt says that at the time of these events he was
contemplating a return to work after a significant hiatus in employment. 
Although in his sixties, he could have returned to work as an industrial
electrician doing “crib” work at remote sites.  His injuries prevented him from
doing so.  The Defendants argue that this is far-fetched, and that any damages,
if an assault occurred, are much less than that claimed.

II.              
Issues

[8]            
The issues are: (1) whether the First Named Defendants or either of them
committed an assault on the plaintiff, (2) if there was an assault on the
plaintiff by either of the First Named Defendants, were either of the First
Named Defendant’s property managers or owners of the building, (3) if there was
an assault are the Second Named Defendants vicariously liable, or liable
pursuant to the Occupiers Liability Act, R.S.B.C. 1996, c.337, and (4)
if any of the defendants are liable to the plaintiff, what is the quantum of
damages?

III.            
Was there an Assault?

[9]            
The versions of the events advanced by the parties are diametrically
opposed.  The findings of fact then depend largely on assessing the credibility
of the witnesses.

[10]        
Mr. Van Hartevelt at the time of these events was 61 years old and
weighed 179 pounds.  He is an industrial electrician but as a result of a
series of events, including good and bad fortune, he had not practiced his
trade for many years.  He is single and enjoyed travel to Europe.  Mr. Van
Hartevelt has two prior criminal convictions.  He was recovering but not yet
fully recovered from injuries received in an accident some years before.

[11]        
I have no doubt that Mr. Van Hartevelt would be a difficult tenant
for some landlords.  He had resided on the premises for more than 30 years.  He
had resisted rent increases by taking appeals, received damages for loss of
quiet enjoyment, and obviously stood on his rights as a tenant.  Mr. Van
Hartevelt’s suite had a prime outlook.

[12]        
The Second Named Defendants, his landlords, had taken measures over the
immediately preceding years to have Mr. Van Hartevelt vacate the
premises.  Filed as exhibits at trial are a series of decisions from
arbitrators appointed under the Residential Tenancy Act, R.S.B.C. 1996,
c. 406, involving these and other disputes.  Their efforts to have Mr. Van
Hartevelt vacate the premises had been unsuccessful.  In some of those disputes
Mr. R. Grewal had represented the Second Named Defendants.

[13]        
On December 1, 1999 an arbitrator set aside a “Notice to End a
Residential Tenancy” dated July 23, 1999 addressed to Mr. Van
Hartevelt.  The notice was issued to allow an owner or family member to occupy
the premises.  The arbitrator found that there was a vacant suite across the
hall that could have been occupied and held that “…the primary motivation in
choosing this particular suite was to eliminate from the building a troublesome
tenant”.

[14]        
On December 29, 1999 a new Notice to End a Residential Tenancy was
issued by the Second Named Defendants to Mr. Van Hartevelt.  The grounds
reported were that the landlord’s son would be moving into the premises as a
caretaker.  There was an offer of another suite in the premises.  The
arbitrator set aside the notice on January 20, 2000 finding that “there is
new and continuing bad faith”.

[15]        
There were other proceedings between the parties resulting in arbitrator
decisions dated June 24, 2004 and March 6, 2006.  On January 21,
2006 the Second Named Defendants issued a new Notice to End a Residential
Tenancy to Mr. Van Hartevelt.  The grounds were non-payment of rent.  The
new notice was set aside on March 9, 2006 by a decision from another
arbitrator.  There is no issue taken that these hearings were held and these
decisions issued by the arbitrators.

[16]        
Sometime before July 2006 Mr. R. Grewal moved into the Randi
Lynn.  Mr. Van Hartevelt says that Mr. R. Grewal on July 11,
2006 violently kicked on his door, and that there were various unpleasant
exchanges between them while Mr. Van Hartevelt sought to have Mr. R.
Grewal fix his storage area which had been tampered with.  Mr. Van
Hartevelt says that Mr. R. Grewal violently slammed a door and used
expletives during their exchanges.  Mr. R. Grewal denies this.

[17]        
Mr. Van Hartevelt telephoned and then wrote Mr. G. Grewal on
July 12, 2006 reciting his version of events saying that Mr. R.
Grewal had used a “threatening tone of voice”, and was a “loose cannon”.  In
his letter he refers to their phone conversation saying “I asked that you keep
him away from myself and any space that I occupy”.  Mr. Van Hartevelt says
he hand delivered the letter which is marked “hand delivered” because his
experience with Mr. G. Grewal was that he forgot or denied matters in
conversation in the past.  To remedy this he had taken to writing messages on
his rent cheques.  Mr. G. Grewal does not admit to receiving the letter;
however, I accept the evidence of Mr. Van Hartevelt on this point.

[18]        
Mr. R. Grewal at the time of these events was 45 years old, 6’2”
and 209 pounds.  He had full-time employment with a car dealership and was and
still is separated from his wife.  He said he moved back into the Randi Lynn
consequent upon separating from his wife.  It is admitted that prior to
December 22, 2006 Mr. R. Grewal “had a criminal history for violence
and drugs dating back to November 1983 which included two prior
convictions for assault”.  Subsequent to December 22, 2006 Mr. R.
Grewal has been convicted of assaulting Mrs. R. Grewal on two occasions.  Mr. R.
Grewal denies that he kicked Mr. Van Hartevelt’s door, and denies kicking
or slamming doors and using expletives in his exchanges with Mr. Van
Hartevelt.  Mr. R. Grewal says that Mr. Van Hartevelt used expletives
in his language during their exchanges.

[19]        
Mr. Van Hartevelt says that on the night of December 22, 2006
he had invited two women friends and their children for dinner and an exchange
of gifts to celebrate the winter solstice.  Ms. Tatiana Sviridov said she
attended but her daughter had a prior engagement.  Ms. Sharon Rublovski
testified that she attended with her nine-year-old son.  These witnesses say
they had a pleasant evening which included dinner and an exchange of gifts. 
The three adults had one bottle of wine for dinner.  The evening was coming to
an end at about 9:30 p.m. when the events occurred.

[20]        
Ms. Sviridov says that she exited the premises and stood in the
hallway where she encountered two people whom she did not know, Mr. R.
Grewal and Mrs. R. Grewal.  The area near the door to the hallway was
crowded as the guests were putting on their clothes so she moved into the
hallway.  Ms. Sviridov says that Mrs. R. Grewal was pleasant and
invited her for a drink which she declined. Ms. Sviridov says she was in
good spirits.

[21]        
Ms. Sviridov says that Mrs. R. Grewal then entered the
apartment and asked Mr. Van Hartevelt for a drink.  Mr. Van Hartevelt
declined and asked Mrs. R. Grewal to leave.  There was an exchange between
Mr. Van Hartevelt and Mr. R. Grewal and Mr. R. Grewal rushed at Mr. Van
Hartevelt taking him to the ground and pummelling him on the floor.  Ms. Sviridov
says she retreated to a bedroom and tried to locate a phone to call 911.  She
says that she heard banging and crashing and when she looked about the inside
of the apartment was in disarray. She was unable to locate a phone in the
bedroom and eventually called 911 from her own apartment which was a couple of
blocks away.

[22]        
Ms. Rublovski says she has known Mr. Van Hartevelt for many
years.  She is married and has a son who attended with her at Mr. Van Hartevelt’s
place for dinner and gifts.  She identified a couple of photographs taken at
the event which show Ms. Sviridov in apparent good spirits.  Ms. Rublovski
says she was leaving when Mrs. R. Grewal entered the apartment, asked for
a drink and said she was the owner.  Mr. Van Hartevelt refused and asked
her to leave.  She felt tension and took her son and left.  When she got to her
car she realized she had left her purse in the apartment.  Ms. Sviridov
arrived at Ms. Rublovski’s car and asked for a phone to call 911.  Ms.
Rublovski did not have a phone but was reluctant to return to the apartment.  Ms. Sviridov
left for her apartment, and soon after the police arrived, Ms. Rublovski
gave a statement to them.

[23]        
Mr. R. Grewal and Mrs. R. Grewal say that, although they were
estranged at the time, they were returning from dinner at Earl’s where they had
discussed their children and Christmas gifts.  Mr. R. Grewal and Mrs. R.
Grewal say that they encountered Ms. Sviridov in the hallway near Mr. Van
Hartevelt’s apartment.  She was sobbing and in distress.  Ms. Sviridov
denies this.  The door to Mr. Van Hartevelt’s apartment was open.  Mr. R.
Grewal says that they stood near the entrance to Mr. Van Hartevelt’s
apartment while Mrs. R. Grewal sought to investigate the cause of Ms. Sviridov’s
distress, who, she said, had told her she had been kicked out of Mr. Van Hartevelt’s
suite.  In doing so Mrs. R. Grewal may have stepped just over the
threshold.  Mr. R. Grewal says that they were determined to ascertain the
cause of Ms. Sviridov’s distress.

[24]        
Mr. R. Grewal says that Mr. Van Hartevelt pushed Mrs. R.
Grewal who had only just stepped over the threshold.  Mr. R. Grewal and Mrs. R.
Grewal say that Mr. Van Hartevelt issued a racial slur, calling them
monkeys.  They say that Mr. Van Hartevelt then with force slapped Mrs. R.
Grewal in the face.  Mr. R. Grewal says that he gave Mr. Van
Hartevelt one hard shove, from near the apartment threshold, and then he and Mrs. R.
Grewal left.  Mr. R. Grewal says that Mrs. R. Grewal had redness on
her cheek and they retreated to his apartment to put on a cold compress.  On
the way they immediately encountered Mr. Rossignol another tenant.  They
invited Mr. Rossignol back to their room, offered him a drink, and
discussed with him what had occurred.

[25]        
Mr. Rossignol is a tenant of the Randi Lynn apartments with a unit
immediately below that of Mr. Van Hartevelt.  He says that he had been out
that night and returned to his apartment feeling the call of nature.  Mr. Rossignol
had on his headphones and was listening to loud music.  He was answering the
call while listening to music when he heard a commotion from upstairs while in
mid-stream.  He heard a loud thud and bang which had been preceded by other
bangs which he had heard.  Mr.  Rossignol finished and proceeded
upstairs.  Mr. Rossignol encountered and then attended with the First
Named Defendants at Mr. R. Grewal’s suite.

[26]        
Mr. Van Hartevelt says that after Ms. Sviridov left the
apartment, when the door next opened he saw Ms. Sviridov speaking with Mr. R.
Grewal and Mrs. R. Grewal in the hallway.  Mr. Van Hartevelt says
that at this point Mrs. R. Grewal entered his apartment, leaned against a
wall, and asked for a drink.  There was an exchange, he declined the request and
asked her to leave.  She said she was the owner.  When she did not leave Mr. Van
Hartevelt put his hand on her shoulder lightly and pushed her towards the
door.  Mr. Van Hartevelt said that Mr. R. Grewal was not welcome as he lied at
residential tenancy hearings.

[27]        
Mr. Van Hartevelt says Mr. R. Grewal then attacked him,
beating him with his firsts and forcing him to the floor.  Mrs. R. Grewal
then pulled at Mr. R. Grewal asking him to desist.  After Mr. R. Grewal
was pulled off he leaned back and kicked Mr. Van Hartevelt forcefully in
the ribs.  Mr. R. Grewal then went about knocking things over as Mr. Van
Hartevelt lay on the floor.  Mr. Van Hartevelt picked himself up, located
a phone, and then called 911.  At the end of the phone call, which lasted nearly
six minutes, the police arrived.

[28]        
There are photographs in evidence of Mr. Van Hartevelt showing a
cut, bruising and swelling of his left ear, abrasions on his upper and lower
lip, bruising on his shoulder, back, and chest.  These were taken by the police
the next day, but the police also observed the injuries at the time they
arrived.  Mr. Van Hartevelt also attended at St. Paul’s hospital and
injuries were noted.  In cross-examination it was suggested that Mr. Van
Hartevelt’s injuries were self-inflicted and that he trashed his own apartment.

[29]        
When the police attended they took statements from all concerned. 
Before giving a written statement Mrs. R. Grewal told the police that she had
not been assaulted by Mr. Van Hartevelt. The version of events she gave
after her initial discussion with the police changed in that she then asserted
that Mr. Van Hartevelt had struck her.  She says that she changed her
story to police because when she first spoke to police she wanted to downplay
the incident so that no one would be in trouble.  After Mr. R. Grewal was
charged she then spoke the truth about being struck by Mr. Van Hartevelt.

[30]        
In gauging a witness’s evidence, a court may, inter alia,
consider the factors, summarized by Thomson J. in Unique Tool &
Gauge Inc. v. Impact Tool & Mould Inc., [2002] O.J. No. 681 (Ont.
S.C.J.) at para. 121:

…[The witness’] ability and
opportunity to observe; his appearance and manner while testifying; his power
of recollection; any interest, bias or prejudice he may have; any
inconsistencies in his testimony and, the reasonableness of his testimony, when
considered in the light of its harmony with the preponderance of the
probabilities that the evidence was credible, believable and reliable.

[31]        
A relevant factor to consider in assessing credibility is a party’s
interests. However, as Rowles J.A. said in R. v. R.W.B., [1993]
B.C.J. No. 758 (C.A.), at para. 28:

Whether a witness has a motive to
lie is one factor which may be considered in assessing the credibility of a witness,
but it is not the only factor to be considered. …[I]t is essential that the
credibility and reliability of the complainant’s evidence be tested in the
light of all of the other evidence presented.

[32]        
In Ng v. Ng, 2011 BCSC 192 the Court rejected the evidence
of one person as flawed because “it relies on the mechanism of coincidence, it
includes improbable and elaborate explanations to explain away telling
circumstances and, in connection with [certain evidence] it relies on a
manufactured foundation” (at para. 326).

[33]        
Mr. Justice McIntyre in R. v. Béland, [1987] 2
S.C.R. 398 at 418-419 said that:

…in the resolution of disputes
in litigation, issues of credibility will be decided by human triers of fact,
using their experience of human affairs and basing judgment upon their
assessment of the witness and on consideration of how an individual’s evidence
fits into the general picture revealed on a consideration of the whole of the
case.

[34]        
In Faryna v. Chorny, [1952] 2 D.L.R. 354, Mr. Justice
O’Halloran observed at 357 that:

The credibility of interested
witnesses, particularly in cases of conflict of evidence, cannot be gauged
solely by the test of whether the personal demeanour of the particular witness
carried conviction of the truth. The test must reasonably subject his story to
an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions.

[35]        
How then does a trier of fact assess what evidence is in “harmony with a
preponderance of the probabilities”?  As Ryan J.A. recently stated in her
concurring reasons in R. v. Sue, 2011 BCCA 91 at para. 47:

Doubtless, a skilled liar or a
good actor can easily feign sincerity. But it is also the case that most people
of average intelligence can tailor a story to fit the circumstances if they put
their minds to it. Thus, a trier of fact will test a story for both its logic
and, with the appropriate cautions, the manner in which it was told.

[36]        
I found the evidence of Mr. R. Grewal difficult and troubling, not
only in its presentation.  The version of events he gave at trial differed
markedly from the version of events he initially gave to the police in both its
general aspects and details.  His evidence conflicted with that of most of the
witnesses.

[37]        
For example, at trial Mr. R. Grewal said he may have just stepped
across the threshold of Mr. Van Hartevelt’s suite during these events but
no more.  Mr. R. Grewal insisted at trial that he gave Mr. Van
Hartevelt only one shove and then retreated down the hallway with Mrs. R.
Grewal.  However he initially reported to police that he had entered the suite
after Mrs. R. Grewal, after an exchange with Mr. Van Hartevelt he was
pushed to the floor by Mr. Van Hartevelt, and then he pushed Mr. Van
Hartevelt to the floor.

[38]        
Mr. R. Grewal’s evidence also conflicts with that of Ms. Sviridov. 
Ms. Sviridov says that she had a good time at the event and left the
apartment because there was no room for everyone at the door.  She was in good
spirits as shown in the photographs.  Mr. R. Grewal says she was sobbing
and distressed when they encountered each other in the hallway.  The evidence
of Ms. Rublovski confirms the attitude of Ms. Sviridov when she left
the apartment as does the evidence of Mr. Van Hartevelt.  How Ms. Sviridov’s
demeanor could so markedly change upon entering the hallway and encountering
the First Named Defendants is unexplained.

[39]        
Mr. R. Grewal’s evidence conflicts again with that of Ms. Rublovski
and Ms. Sviridov concerning Mrs. R. Grewal’s entry into Mr. Van
Hartevelt’s apartment.  They say Mrs. R. Grewal entered uninvited, said
she wanted a drink and said she was the owner.  She was then asked to leave.  Mr. R.
Grewal says that she entered the apartment only by a step.  Mrs. R. Grewal
was intent, as was he, on investigating the problem with Ms. Sviridov, not
seeking a drink.  Although cross-examined, Ms. Rublovski and Ms. Sviridov
did not retreat from their accounts.  Although there are minor inconsistencies
with respect to time estimates, I found their accounts credible and not
weakened during cross-examination.

[40]        
Mr. R. Grewal’s “one-shove” description is also inconsistent with Mr. Rossignol’s
account.  Mr. Rossignol said that he heard banging and a loud thud.  The
banging carried on for some time.  At trial Mr. R. Grewal said he only
shoved Mr. Van Hartevelt once, then turned and almost immediately
encountered Mr. Rossignol.  Yet Mr. Rossignol heard banging and a loud
thud over a period of time before he went upstairs.  This is inconsistent with Mr. R.
Grewal’s account that he only made one shove of Mr. Van Hartevelt and
immediately encountered Mr. Rossignol.

[41]        
In my opinion, Mr. R. Grewal’s description is also inconsistent
with the injuries Mr. Van Hartevelt suffered.  No effort was made to
explain Mr. Van Hartevelt’s injuries other than to suggest in
cross-examination that they were self-inflicted.  However Mr. Van
Hartevelt phoned the police immediately following the events and was on the
phone to the police for some minutes before they arrived and while the First
Named Defendants were either in or near the apartment.  The police observed the
injuries when they first arrived.  The police observed the disarray of the
apartment, with chairs overturned and other chattels knocked to the ground.  Mr. Van
Hartevelt’s injuries are further described in the medical reports of Dr. Blaney.

[42]        
There are other points of contradiction between the testimony of Mr. R.
Grewal and others on unrelated events.  For example, Mr. R. Grewal at
trial denied collecting rent cheques, giving out keys, or cleaning suites.  Ms. Anna
Christina Ramsay testified that he did such on her behalf.  Mr. R.
Grewal’s denial seemed designed to downplay his role at the Randi Lynn.  Ms. Ramsay
is an independent witness.

[43]        
I have also considered the extent to which Mrs. R. Grewal’s
evidence can be said to support that of Mr. R. Grewal.  Since these events
she has suffered two assaults at the hands of Mr. R. Grewal, for which he
has been convicted.  To the extent her evidence at trial parallels that of Mr. R.
Grewal it suffers the same flaws as his evidence.  No one observed any
consequence to the slap she is alleged to have received.  There was no ice
present or other indication she required treatment or succor as a result of the
events.

[44]        
The account Mrs. R. Grewal gave at trial contradicts the account
she first gave to police in which she denied there was any assault on her.  It
is admitted that both of the First Named Defendants had consumed alcoholic
beverages prior to these events, and that with respect to Mrs. R. Grewal,
“…when Police Constable Bridges interviewed her following the assault he
determined that she still showed signs of having consumed intoxicating
liquor”.  I do not accept the evidence of Mrs. R. Grewal.

[45]        
I do not accept that Mr. Van Hartevelt injured himself and staged
the scene at his apartment in the short time between the assault and the 911
call, or, for that matter, while making the 911 call.

[46]        
In the result, considering the whole of the evidence and the
preponderance of probabilities, concerning the alleged assault I prefer the
evidence of Mr. Van Hartevelt, Ms. Sviridov and Ms. Rublovski to
that of the First Named Defendants.  In some important respects the evidence of
Mr. Rossignol supports that of the plaintiff.  I reject the evidence of Mr. R.
Grewal and Mrs. R. Grewal.

[47]        
In summary, I find that Mrs. R. Grewal entered the apartment of Mr. Van
Hartevelt uninvited, there was a verbal exchange and Mrs. R. Grewal was
asked to leave, she did not do so, at which time Mr. Van Hartevelt lightly
sought to push her towards the door.  Mr. Van Hartevelt said that Mr. R. Grewal
was not welcome as he lied at residential tenancy hearings.  At that point Mr. R.
Grewal attacked Mr. Van Hartevelt, pummelling him with his fists and
sending him to the ground.  Mrs. R. Grewal sought to pull him off, at
which time Mr. R. Grewal kicked Mr. Van Hartevelt forcefully in the
ribs as he lay on the floor.  Mr. R. Grewal then proceeded to trash the
apartment.  The First Named Defendants were trespassers in the apartment.  I do
not accept the evidence of the First Named Defendants that Mr. Van
Hartevelt called them “monkeys” or any racial slur, or provoked them in any way.

[48]        
Mr. R. Grewal assaulted and committed a battery on Mr. Van
Hartevelt causing him injury.  Although counsel used the term “assault”
throughout in their submissions, the proper term for what occurred is a battery
by Mr. R. Grewal on Mr. Van Hartevelt:  see Han v. Cho, 2009
BCSC 458 at para. 149.  Mrs. R. Grewal did not threaten or strike Mr. Van
Hartevelt and therefore did not commit an assault or battery in the legal
sense.

IV.           
Liability for the Assault

A.             
Status of Mr. R. Grewal at time of Assault

[49]        
What was the status of Mr. R. Grewal at the time of these events?

[50]        
Prior to living at the Randi Lynn in 2006 Mr. R. Grewal
acknowledged that he had represented the Second Named Defendants on several
occasions before adjudicators appointed under the Residential Tenancy Act
at residential tenancy hearings.  He also did so in 2006 while living there
rent-free.  Mr. R. Grewal was a point of contact agent for the owners, Mr. G.
Grewal and Mrs. H. Grewal.

[51]        
Mr. R. Grewal on occasion collected rent cheques from tenants such
as Ms. Anna Ramsay, gave out keys, and on occasion helped clean out suites. 
I accept the evidence of Ms. Anna Ramsay over that of Mr. R. Grewal. 
I accept the evidence of Mr. Van Hartevelt that Mr. R. Grewal
responded to his noise complaint, and was his point of contact in dealing with
his storage locker.  Mr. R. Grewal had a key to the boiler room.

[52]        
I accept Mr. G. Grewal’s evidence that he did not charge family
members rent while they were living at the Randi Lynn.  However, he did not
charge rent to Mr. R. Grewal, and at other times other relatives living at
the Randi Lynn on the expectation that they would perform services for him
at the apartment.  Mr. G. Grewal was confronted with his testimony in
other proceedings.  In previous proceedings Mr. R. Grewal described those
persons as “managers”, however, he said that by that he really meant
“helpers”.

[53]        
Mr. G. Grewal testified through a translator.  He has lived in
Canada since 1968.  Prior to living in Canada he lived in England.  While
giving his testimony he would on occasion give his answer in English before the
question was translated.  I do not accept that he confused the term “manager”
and “helper”.  There is evidence that on at least one occasion notices went out
to tenants in which the relatives called themselves managers.

[54]        
Although Mr. G. Grewal called his relatives managers, I do not
think they were either managers or employees in any conventional sense.  Mr. G.
Grewal retained most decision making himself.  The ad hoc nature of
their duties, and especially Mr. R. Grewal, who had a full time job
elsewhere, made him more of a point of contact agent than an employee in any
conventional sense.  As a family member receiving free rent Mr. R. Grewal
was beholden to the Second Named Defendants and was expected to do their
bidding at the Randi Lynn.

B.             
Mrs. R. Grewal

[55]        
I accept the evidence of Mr. Van Hartevelt that Mrs. R. Grewal
said she was an owner when asked to leave his apartment at the Randi Lynn. 
That does not make her an owner.  There is no evidence that she has any
interest in or performed any services at the Randi Lynn.  Indeed, she was
estranged from Mr. R. Grewal at the time of these events.

[56]        
Mrs. R. Grewal is not either an owner of the Randi Lynn, nor an
employee or agent of the Second Named Defendants.

C.             
Vicarious Liability

[57]        
In his argument on vicarious liability the plaintiff referred to the
history of Henry II and the death of Thomas à Becket.  Henry II
appointed Thomas Becket Archbishop of Canterbury in 1162, desirous that the new
archbishop, his friend, could help Henry impose his will on the Church.  Eventually,
however, there was a falling out between Henry II and Thomas Becket which
reached a head when Thomas Becket excommunicated the Bishops of London and
Salsbury for their support of the king.

[58]        
When Thomas Becket refused to absolve the bishops Henry II is said
to have flown into a rage and said “What sluggards, what cowards have I brought
up in my court, who care nothing for their allegiance to their lord.  Who will
rid me of this meddlesome priest”.  Three knights in attendance travelled from
France to the Cathedral at Canterbury and slew Thomas Becket on the altar. 
Henry II, recognizing his role in the death, later sought penance by
spending a night in the martyr’s crypt.

[59]        
There is no evidence here of any words spoken between the Second Named
Defendants and Mr. R. Grewal.  However, there is a history of ill will
between the Second Named Defendants, qua landlord, and Mr. Van Hartevelt
as their tenant.  The residential tenancy proceedings indicate that arbitrators
found continuing evidence of bad faith in the landlord’s dealings with Mr. Van
Hartevelt.  Often at the forefront of those dealings was Mr. R. Grewal,
representing the Second Named Defendants.

[60]        
I have found that in July 2006 Mr. R. Grewal kicked on Mr. Van
Hartevelt’s door and behaved in other obnoxious ways to Mr. Van Hartevelt
when dealing with his concerns.  That resulted in the letter of July 12,
2006 from Mr. Van Hartevelt to Mr. G. Grewal in which Mr. Van Hartevelt
asked Mr. G. Grewal to keep Mr. R. Grewal away from him describing Mr. R.
Grewal as a “loose cannon”.

[61]        
The phrase “loose cannon” is idiomatic.  It refers to the cannons
mounted on rollers in 17^th-19^th century warships, which
were a considerable danger to sailors while loose upon the vessel decks. 
Although I do not know if Mr. G. Grewal understood that particular
reference, he did receive the letter which in other ways conveyed Mr. Van Hartevelt’s
concern that Mr. R. Grewal’s behaviours indicated that he was a danger to Mr. Van
Hartevelt.

[62]        
In Bazley v. Curry, [1999] 2 S.C.R. 534 [Bazley], the Court
considered vicarious liability in the employer/employee context.  While in the
present case the relationship between Mr. R. Grewal and Second Named
Defendants is different from the typical employer/employee relationship, it is
similar to that relationship, and I find the following discussion from Bazley
is nevertheless instructive:

41        Reviewing the jurisprudence, and considering the policy
issues involved, I conclude that in determining whether an employer is
vicariously liable for an employee’s unauthorized, intentional wrong in cases
where precedent is inconclusive, courts should be guided by the following
principles:

(1)   They should openly confront the
question of whether liability should lie against the employer, rather than
obscuring the decision beneath semantic discussions of "scope of
employment" and "mode of conduct".

(2)   The fundamental question is
whether the wrongful act is sufficiently related to conduct authorized by the
employer to justify the imposition of vicarious liability. Vicarious liability
is generally appropriate where there is a significant connection between the
creation or enhancement of a risk and the wrong that accrues therefrom, even if
unrelated to the employer’s desires. Where this is so, vicarious liability will
serve the policy considerations of provision of an adequate and just remedy and
deterrence. Incidental connections to the employment enterprise, like time and
place (without more), will not suffice. Once engaged in a particular business,
it is fair that an employer be made to pay the generally [page560] foreseeable
costs of that business. In contrast, to impose liability for costs unrelated to
the risk would effectively make the employer an involuntary insurer.

(3)   In determining the sufficiency of
the connection between the employer’s creation or enhancement of the risk and
the wrong complained of, subsidiary factors may be considered. These may vary
with the nature of the case. When related to intentional torts, the relevant
factors may include, but are not limited to, the following:

(a)     the opportunity that the
enterprise afforded the employee to abuse his or her power;

(b)     the extent to which the
wrongful act may have furthered the employer’s aims (and hence be more likely
to have been committed by the employee);

(c)     the extent to which the
wrongful act was related to friction, confrontation or intimacy inherent in the
employer’s enterprise;

(d)     the extent of power conferred
on the employee in relation to the victim;

(e)     the vulnerability of potential
victims to wrongful exercise of the employee’s power.

[63]        
In K.B.L. v. British Columbia, [2003] 2 S.C.R. 403 [K.B.L.],
the Court set out the following general test for vicarious liability at
para. 19:

To make out a successful claim
for vicarious liability, plaintiffs must demonstrate at least two things.  First,
they must show that the relationship between the tortfeasor and the person
against whom liability is sought is sufficiently close as to make a claim for
vicarious liability appropriate.  This was the issue in 671122 Ontario Ltd.
v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, 2001 SCC 59,
where the defendant argued that the tortfeasor was an independent contractor
rather than an employee, and hence was not sufficiently connected to the
employer to ground a claim for vicarious liability.  Second, plaintiffs must
demonstrate that the tort is sufficiently connected to the tortfeasor’s assigned
tasks that the tort can be regarded as a materialization of the risks created
by the enterprise.  This was the issue in Bazley, supra, which concerned
whether sexual assaults on children by employees of a residential care
institution were sufficiently closely connected to the enterprise to justify
imposing vicarious liability.  These two issues are of course related.  A tort
will only be sufficiently connected to an enterprise to constitute a
materialization of the risks introduced by it if [page418] the tortfeasor is
sufficiently closely related to the employer.

[64]        
While it is true that independent contractors will not generally attract
such liability and that employees generally will, it is not the case that the
employer/employee relationship is the only one that can attract vicarious
liability.  At para. 20 of K.B.L., the Court continued:

The relationship that most
commonly attracts vicarious liability is that of employer/employee. Imposing
vicarious liability in the context of an employer/employee relationship will
often serve both of the policy goals outlined in Bazley: fair and
effective compensation and deterrence of future harm.  As I noted in Bazley,
when an employer creates a risk and that risk materializes and causes injury,
"it is fair that the person or organization that creates the enterprise
and hence the risk should bear the loss" (para. 31).  And assigning
responsibility to an employer for an employee’s tort will often have a
deterrent effect, because "[e]mployers are often in a position to reduce
accidents and intentional wrongs by efficient organization and
supervision" (para. 32). By contrast, imposing vicarious liability in the
context of an employer/independent contractor relationship will not generally
satisfy these two policy goals.  Compensation will not be fair where the
organization fixed with responsibility for the tort is too remote from the
tortfeasor for the latter to be acting on behalf of it: in such a case, the
tort cannot reasonably be regarded as a materialization of the organization’s
own risks.  And vicarious liability will have no deterrent effect where the
tortfeasor is too independent for the organization to be able to take any
measures to prevent such conduct.  Hence, the relationship of employer to
independent contractor does not generally give rise to vicarious liability
(subject to certain exceptions:  see P. S. Atiyah, Vicarious Liability in
the Law of Torts (1967), at p. 327).

[65]        
Therefore, the main considerations in the present case are whether the
relationship was sufficiently close to justify the imposition of liability,
whether the tort was sufficiently connected to the assigned tasks of the
tortfeasor to be regarded as the materialization of the risks created by the
enterprise, and whether the imposition of liability would satisfy the policy
goals outlined in Bazley.  I answer all of these questions in the
affirmative.

[66]        
The reason that employers are often found to be vicariously liable
whereas those hiring independent contractors are not is that in the former
case, the employer has created the risk and is in the best position to mitigate
it.  Thus, it is both efficient and fair to impose vicarious liability.  In the
present case, although it was not a typical employment relationship, the Second
Named Defendants created the risk associated with Mr. R. Grewal, were or
should have been aware of the risk, and were in the best position to mitigate
this risk.

[67]        
The Second Named Defendants were aware of the violent history of Mr. R.
Grewal and were aware of the recent confrontation between Mr. R. Grewal
and Mr. Van Hartevelt; a confrontation that arose in the context of  Mr. R.
Grewal’s role as an on-site owner representative.  As such, the risk of violent
confrontations initiated by Mr. R. Grewal was caused by the enterprise of
the Second Named Defendants and they were in a unique position to mitigate this
risk.  They were specifically made aware of the risk by Mr. Van Hartevelt’s
letter of July 12, 2006.  The fact that the Second Named Defendants did not
take steps to mitigate the risk renders them blameworthy.

[68]        
There is also the assertion, albeit made by Mrs. R. Grewal, that the
‘owners’ of the building were entitled to enter Mr. Hartevelt’s suite.   This
was made in the presence of Mr. R. Grewal.   Mr. R. Grewal, rather than
correcting this misapprehension, schooled as he was in tenancy matters,
remained and the events followed.

[69]        
In my opinion there is a sufficiently close relationship to justify the
imposition of vicarious liability in this case.

D.             
Occupier’s Liability Act

[70]        
Section 3 of the Occupiers Liability Act provides:

3    (1)  An
occupier of premises owes a duty to take that care that in all the
circumstances of the case is reasonable to see that a person, and the person’s
property, on the premises, and property on the premises of a person, whether or
not that person personally enters on the premises, will be reasonably safe in
using the premises.

(2)  The duty of care referred to in subsection (1) applies in relation
to the

(a)  condition of the premises,

(b)  activities on the premises, or

(c)  conduct of third parties on the
premises.

[71]        
In PS v. Miki, 2005 BCSC 406 [Miki], a tenant was
sexually assaulted by the property owner’s cousin who had been hired to do some
repairs to the property and liability was claimed under the Occupiers
Liability Act.  The court said the following with respect to the duty of
care:

21        A duty of care is
only owed to persons whom one would reasonably foresee would be injured by a
contemplated act or omission. In Home Office v. Dorset Yacht Co., [1970]
2 All E.R. 294 (H.L.), Lord Reid on behalf of the majority stated:

These cases show that, where human action forms one of the
links between the original wrongdoing of the defendant and the loss suffered by
the plaintiff, that action must at least have something very likely to happen
if it is not to be regarded as novus actus interveniens breaking the chain of
causation. I do not think that a mere foreseeable possibility is or should be
sufficient, for then the intervening human action can more properly be regarded
as a new cause than as a consequence of the original wrongdoing. But if the
intervening action was likely to happen I do not think it can matter whether
that action was innocent or tortious or criminal. Unfortunately tortious or
criminal action by a third party is often the "very kind of thing"
which is likely to happen as a result of the wrongful or careless act of the
defendant.

(at p. 300)

[72]        
The court in Miki went on to state that in order to find
liability under the Act, “Ms. P.S. must be able to show that it was
reasonably foreseeable that Mr. Miki would assault her” (at para. 23). 
In Miki, this was found not to have been reasonably foreseeable.  In the
present circumstances however, I find that it was reasonably foreseeable that Mr. R.
Grewal would commit the assault.  Unlike in Miki, in the present case,
the Second Named Defendants were aware of a previous confrontation between Mr. R.
Grewal and Mr. Van Hartevelt.

[73]        
This confrontation sufficiently concerned Mr. Van Hartevelt that he
wrote a letter to the Second Named Defendants alerting them to the problem, and
asking them to do something about it.  In these circumstances, in my view the
event that occurred was reasonably foreseeable.  That is, even if I had not
found liability on the basis of the common law doctrine of vicarious liability,
I would still find the Second Named Defendants liable under the Occupiers
Liability Act.

V.             
Damages

A.             
Non-Pecuniary Damages

[74]        
Dr. G.P. Blaney (“Dr. Blaney”) prepared an expert report.  Dr. Blaney
is a general practitioner with postgraduate training in biomechanics and
osteopathic manual therapy.  Mr. Van Hartevelt has been his patient since
2003.  At the time of these events he had been treating Mr. Van Hartevelt
for recurring pain and muscle spasms affecting his right shoulder and mid
back.  On October 31, 2005 he had written a medical letter “To Whom It May
Concern” that “…Mr. Van Hartevelt is under my care for a chronic muscle
skeletal disorder that has totally disabled him from his occupation as an
electrician”.

[75]        
The treatments Mr. Van Hartevelt had been receiving were
“myofascial trigger point injections” every 2 to 6 weeks.  By December 22,
2006 however Dr. Blaney considered that Mr. Van Hartevelt “…was doing
quite well with lower levels of pain, less extensive involvements of muscles,
improved sleep and more tolerant to increased activity and exertion”.

[76]        
Dr. Blaney first examined Mr. Van Hartevelt on December 29,
2006 at which time he observed “…healing facial contusions and abrasions, …a
large bruise over his right upper arm mostly on the back and a bruise under his
left breast area”.  Mr. Van Hartevelt was “exquisitely tender” over the
right humeral bone and the anterial and lateral aspect of his left rib cage. 
“Auscultation over the left lateral rib area revealed crepitus indicating
likely rib fracture(s)”.  There was a concavity deformation of the left lateral
thorax and posterior subluxation of the left 7^th to 11^th
ribs at the point of attachment.

[77]        
Dr. Blaney diagnosed Mr. Van Hartevelt as having suffered
possible fractured ribs on the left side, multiple abrasions and contusions,
closed head injury with trauma to the nose and sinus, severely strained right
hip flexor muscles and post-traumatic anxiety.  Dr. Blaney recommended
passive therapies included manual therapy, trigger point injections, massage,
application of ice and heat and “judicious use” of analgesic and
anti-inflammatory medications.

[78]        
One year post-assault Mr. Van Hartevelt’s main symptoms where
stiffness, pain and weakness in his right shoulder, and intrascapular tension
which when irritated spread to include the right low back and hip.  He was
limited in what he could do and refrained from any strenuous household or
recreational activities.

[79]        
Mr. Van Hartevelt continued to improve up to trial but still had
some residual symptoms and Dr. Blaney’s view, although he acknowledged
that he was not a functional therapist, was that his ability to work full-time
as an electrician was questionable.  The sequella of the injuries, which aggravated
some pre-existing problems, continued to impact Mr. Van Hartevelt’s
quality of life.

[80]        
There is some discussion in Dr. Blaney’s report about hearing loss,
but I cannot conclude from reading the report that Dr. Blaney attributes
this to the accident, or is qualified to make that diagnosis.

[81]        
The factors to be considered in arriving at a fit and just award are set
out in Stapley v. Hejslet, 2006 BCCA 34 at
para. 46:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration
of pain;

(d)        disability;

(e)        emotional suffering;
and

(f)         loss or impairment
of life;

(g)        impairment of family,
marital and social relationships;

(h)        impairment of
physical and mental abilities;

(i)         loss of lifestyle;
and

(j)         the plaintiff’s stoicism
(as a factor that should not, generally speaking, penalize the plaintiff…).

[82]        
The plaintiff cites three cases in support of an award of $65,000 for
non-pecuniary damages: Kardum v. Asad-Moghadam, 2011 BCSC 1566 [Kardum]
($70,000), Tarzwell v. Ewashina, 2011 BCSC 1464 [Tarzwell] ($60,000)
and Miller v. Lawlor, 2012 BCSC 387 [Miller] ($65,000).  The
defendants argue for a damage award in the range of $8,000 to $22,000, citing Chrisgian
v. Hatzisavva, 2002 BCSC 538 [Chrisgian] ($8000), Manering
v. Imanian, 2006 BCSC 323 [Manering] ($22,000) and Xu v.
ICBC, 2001 BCSC 830 [Xu] ($20,000).

[83]        
In Kardum a 37-year-old architect suffered musculoligamentous
injuries resulting in ongoing chronic headaches and disrupted sleep with a
guarded prognosis.  In Tarzwell the plaintiff who was a university
student was diagnosed with soft tissue pain which “…was chronic (a fibromyalgia
like condition) and could not be expected to completely resolve”.  In Miller
a 24-year-old plaintiff was diagnosed with “…chronic neck, upper back and
low back pain; pain and stiffness in the right shoulder…” with a permanent
functional impairment requiring workplace accommodation.

[84]        
In Chrisgian a self-represented 65-year-old litigant with
pre-existing conditions received a small award based on findings that the
accident battered and bruised him to some extent, but that at trial he was not
any worse off than he would have been otherwise.  In Manering the 73-year-old
plaintiff had various pre-existing conditions.  The award considered injuries
that continued to interfere with her enjoyment of life, but from which she was
expected to fully recover.  In Xu a self-represented 60-year-old
plaintiff was awarded $20,000 in general damages after a finding that by
failing to take recommended treatment he had failed to mitigate his damages.

[85]        
In my opinion the plaintiff’s cases involve more severe sequella with
much younger injured persons.  The defendants’ cases involve less severe injuries
with some anomalous features.  In my opinion the appropriate award in this case
for non-pecuniary damages is $35,000.

B.             
Out-of-Pocket Expenses

[86]        
 The plaintiff claims for various out-of-pocket expenses including
physicians’ fees, massage and sport therapy clinic fees, and damage to
property.

[87]        
The largest part of this claim is for physicians fees of Dr. Blaney
totalling $21,650.  Dr. Blaney is a physician who has opted out of billing
under the BC Medical Plan.  Instead Dr. Blaney direct-bills his patients
without reference to the BC Medical Plan schedule.  It is not suggested
that Dr. Blaney provides a service that is not covered by the BC Medical
Plan.  Rather, Mr. Van Hartevelt preferred the services of Dr. Blaney
and has gone to him since 2003 accepting direct billing.

[88]        
A plaintiff is under a duty to mitigate his damages:  see Janaik v.
Ippolito, [1985] 1 S.C.R. 146, Antoniali v. Massey, 2008 BCSC 1085,
and Loveys v. Fleetham, 2012 BCSC 358.  Although many of the cases
on mitigation arise in the context of a contest over whether by following
medical advice an injured person could have recovered sooner, similar
considerations apply in considering whether an injured person can recover the
extra costs incurred by eschewing the services of persons providing services
under publicly funded programs.  The threshold question in such cases must be
whether there is sufficient reason to incur the expense.

[89]        
In Darbishire v. Warran [1963], 3 All E.R. 310 (C.A.) at p. 315
Lord Pearson discussed the “true nature” of the duty to mitigate thus:

[It] is important to appreciate
the true nature of the so-called “duty to mitigate the loss” or “duty to
minimize damage.”  The plaintiff is not under any actual obligation to adopt
the cheaper method: if he wishes to adopt the more expensive method, he is at
liberty to do so and by doing so he commits no wrong against the defendant or
anyone else.  The true meaning is that the plaintiff is not entitled to charge
the defendant by way of damages with any greater sum that that which he
reasonably needs to expend for the purpose of making good the loss.  In short,
he is fully entitled to be as extravagant as he pleases, but not at the expense
of the defendant.

[90]        
In this case the evidence falls short of establishing that Mr. Van Hartevelt
reasonably needed to expend the greater sums on Dr. Blaney’s services rather
than use the publicly funded plan.  In my opinion the plaintiff cannot visit
upon the defendants the cost of Dr. Blaney’s accounts when he could have
received treatment from physicians operating within the BC Medical Plan at
no cost.  I disallow Dr. Blaney’s accounts.

[91]        
The Bruce MacLean and Urban Active Sport Therapy Clinic accounts are for
massage treatments and total $20,000.  The plaintiff in his submissions
acknowledges that some part of these accounts would have been incurred in any
event, because of his pre-existing conditions.  I would allow 50% of those
costs or $10,000.

[92]        
In addition to these sums I allow $3500 in property losses which are
damages arising from the destruction in his apartment.

C.             
Loss of Opportunity/Income Loss Past & Future

[93]        
Counsel did not differentiate in their submissions past and future
income loss and loss of income earning capacity.  I am content to deal with
these heads of damages in that way, in the particular circumstances of this
case.

[94]        
The plaintiff maintained his membership in an Alberta local of the
International Brotherhood of Electrical Workers.  Although he last worked as an
electrician in 1986, he says he maintained his membership with a view to future
employment in his senior years.  Had he obtained employment he would have earned
up to $83,000 per year for full-time work.  The plaintiff argues that one to
two years employment income is reasonable.  The plaintiff is now 67.

[95]        
In considering a claim for loss of earning capacity, Garson J.A.,
in Perren v. Lalari, 2010 BCCA 140 confirmed that a court must
first enquire into whether there is a substantial possibility of future income
loss before embarking on methods to assess a loss.  A future or hypothetical
possibility is only considered if it is a real and substantial possibility and
not a speculation: Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th)
235.

[96]        
I accept that there was more than a speculative loss, but a real and
substantial possibility of income loss.  That said, it falls short of being a probability
and must be considerably discounted because of the factors I have mentioned;
the plaintiff’s pre-existing conditions, age, and work history.  I would award
$10,000 under this head for any past or future income loss and loss of income
earning capacity.

D.             
Punitive Damages

[97]        
The plaintiff claims for punitive damages.  No authorities were cited by
either party to assist the Court.  An award for punitive damages is reserved
for instances where conduct has been high-handed, malicious, arbitrary, or
highly reprehensible and departing to a marked degree from the standards of
ordinary behaviour: Whitten v. Pilot Insurance Co., 2002 SCC 18,
[2002] 1 S.C.R. 595 at para. 94, and Lowry J.A., in Grewal v.
Sandhu, 2012 BCCA 26.

[98]        
In my opinion the assault upon Mr. Van Hartevelt and destruction of
Mr. Van Hartevelt’s chattels fits that category.  I would award punitive
damages of $10,000 against Mr. R. Grewal.  In cases of vicarious
liability, however, punitive damages cannot be awarded against the vicariously
liable party absent specific reprehensible conduct on the part of that party: Blackwater
v. Plint, 2005 SCC 58, at para. 91.  I do not find that the
conduct of the Second Named Defendants was high-handed, malicious, arbitrary,
or reprehensible, and they are accordingly not vicariously liable for punitive
damages.

VI.           
Summary

[99]        
Mr. R. Gewal is liable for an assault and battery on the plaintiff,
Mr. Van Hartevelt.

[100]     The Second
Named Defendants, Mr. G. Grewal and Mrs. H. Grewal, are vicariously
liable for the assault and battery committed by Mr. R. Grewal.

[101]    
Mr. R. Grewal and the Second Named Defendants are jointly and
severally liable for the following damages:

(1)      Non-pecuniary damages of $35,000,

(2)      Compensation for out-of-pocket expenses of
$13,500, and

(3)      Compensation for loss of
income/income earning capacity of $10,000.

[102]    
Mr. R. Grewal is alone liable for punitive damages of $10,000.

[103]     The action
against Mrs. R. Grewal is dismissed.

[104]     Unless
there is something of which I am not aware, the plaintiff shall have his costs
at Scale B.

“The
Honourable Mr. Justice Savage”