IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131203

Docket: S124951

Registry:
New Westminster

Between:

Jacob Aidan Reimer

Plaintiff

And

Rooster’s Country
Cabaret Ltd.,

Timothy Spry, Sam
Turnau and John Doe

Defendants

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

I.                
Introduction

[1]            
On the evening of September 12, 2009, Jacob Reimer consumed almost a
dozen cans of beer and at approximately 1:00 a.m. the next morning, entered a
night club known as Rooster’s Country Cabaret Ltd. (“Rooster’s”), which is
located in a small shopping center in Pitt Meadows, B.C. At the time, Mr.
Reimer was with his friend, Ryan Murchie, and two young women, all of whom had
also been drinking alcohol, although not as excessively as had Mr. Reimer.

[2]            
After being denied entry into Rooster’s for concealing a can of beer in
his cargo shorts, Mr. Reimer became very animated and aggressive. As a result,
he was physically removed by two security personnel employed by Rooster’s.

[3]            
After being ejected, Mr. Reimer and Mr. Murchie walked to an area of the
parking lot approximately 100 feet from the entrance of Rooster’s. Moments
later, Mr. Reimer was seriously beaten by more than one person. The beating
resulted in head injuries including a concussion, laceration of the right
eyebrow, a swollen right eye with swelling and contusions of the right temple, and
bruises on his neck and ear, as well as injuries to his right shoulder and
other soft tissue injuries and sprains.

[4]            
Mr. Reimer seeks damages for assault and battery against the assailants
and vicariously against their employer, Rooster’s. He also seeks damages directly
from Rooster’s for their negligent policy of detaining patrons while awaiting
RCMP arrival.

[5]            
A claim has also been advanced against the defendants under s. 16 of the
Health Care Costs Recovery Act, S.B.C. 2008, c. 27, to recover the
health care services “relating to a health care services claim for Jacob
R[eimer]… for personal injuries suffered as a result of the negligence or
wrongful act or omission of a wrongdoer on or about 2009/09/13.”

II.              
The Parties

A.             
Jacob Reimer

[6]            
At the time of the assault, Mr. Reimer was 20 years of age. He has been
active in community athletics, including rugby. He appears to be less than six
feet tall and can best be described as having a slim build. At the time of the
incident he had been working odd jobs in the construction industry, and had
been laid off from seasonal work on the greenskeeping crew at the Pitt Meadows
Golf Club two days previous.

B.             
Rooster’s Country Cabaret Ltd.

[7]            
Rooster’s is a country and western themed night club, which, according
to several witnesses, is very popular with young adults who attend to dance,
drink alcohol and otherwise socialize. Rooster’s has been in business at the
same Pitt Meadows location since approximately 1996. As of the date of trial,
the general manager of Rooster’s, Cliff Barber, testified at trial that
Rooster’s employs a staff of approximately 25 people, eight of which are
security personnel.

[8]            
In these reasons I will refer to the security staff employed by
Rooster’s as the “security personnel” or the “bouncers”. Mr. Barber, the
general manager of Rooster’s, objected to the use of the term “bouncers” and
preferred the term security personnel or staff, whereas others in their
evidence commonly referred to the same group as bouncers.

C.             
Sam Turnau

[9]            
Mr. Turnau was one of the security personnel at Rooster’s on the night
in question. Mr. Turnau was charged with assault causing bodily harm under the Criminal
Code, R.S.C. 1985, c. C-46, following the incident in question and was
acquitted at trial.

[10]        
Mr. Turnau is an experienced “bouncer” who testified he had received
training in how to deal with belligerent patrons who are often under the
influence of a significant amount of alcohol. At the time of the incident, Mr.
Turnau stated he weighed between 240 and 250 pounds and stood six feet three
inches tall. His hair was blonde and witnesses described one of the security
personnel as having “shaggy blonde hair”. Mr. Turnau testified that he “worked
out” four days per week in cardiovascular exercise and weight training. He had
been taking protein supplements daily since 2009 to build muscle. Mr. Turnau
was described at trial as “huge” and was clearly much larger than Mr. Reimer.

[11]        
For identification purposes it is significant to point out that all
Rooster’s security personnel wore identical dark blue t-shirts on which there
was yellow printing stating “Security” and the name “Rooster’s”.

D.             
Timothy Spry

[12]        
Mr. Spry was named as a defendant in this action. He, too, was a
security guard at Rooster’s on the night in question and was charged with
assault causing bodily harm on Mr. Reimer; however, the charges against Mr.
Spry were withdrawn or stayed prior to trial.

[13]        
The response to civil claim was filed for all defendants in this action
including Mr. Spry. Plaintiff’s counsel did not attempt to schedule an
examination for discovery of Mr. Spry until early 2013, some three years after the
commencement of this action. Mr. Spry did not appear for two scheduled
examinations for discovery, following which counsel for the defendants had
advised they were no longer able to contact Mr. Spry.

[14]        
At the commencement of the trial, counsel for Mr. Reimer brought a
notice of application seeking an order that this action proceed as if no response
to civil claim had been filed on Mr. Spry’s behalf. In the response to application,
the defendants opposed the application on the basis that the plaintiff had not
pursued an examination for discovery until early 2013, and  in the meantime
counsel and the other defendants were no longer in contact with Mr. Spry. The
defendants also submitted that:

Rooster’s needs the opportunity to defend Spry at trial to
avoid any possible vicarious liability against itself. Striking out the Defence
of Spry would be “Draconian” as it would deprive Rooster’s of a trial on the
evidence, with respect to Spry.

[15]        
I reserved my decision on the application relating to Mr. Spry.

[16]        
After considering the material submitted on the application, I am
dismissing the plaintiff’s application that the action proceed as if no response
to civil claim had been filed on Mr. Spry’s behalf. My reasons for doing so
include the plaintiff’s delay in arranging an examination for discovery of Mr.
Spry and the resulting difficulties for the defence due to their loss of
contact with Mr. Spry. In addition, Rooster’s admitted at trial that they are
vicariously liable for the actions of the security personnel defendants who
were at all material times acting in the course of their employment with
Rooster’s. Thus, if I were to grant the order, I would not only be denying the
defendant Spry the right to proceed to trial, but also the defendant Rooster’s the
right to do so.

E.             
John Doe

[17]        
Several other security personnel on duty for Rooster’s on the night of
the alleged assault have been identified through examinations for discovery and
at trial; however, none of those persons have been added as defendants. In
light of the conclusions I have come to in these reasons for judgment, it is unnecessary
to deal with the issue of the further “John Does”, if any, and whether they
should have been added as defendants in this action.

III.            
Evidence of The Events of September 13, 2009

[18]        
In reviewing the facts of this case, I will occasionally refer to the
recordings generated by Rooster’s video surveillance systems in place on the
evening in question. Although the recordings do not extend to the area of the
parking lot where the assault on Mr. Reimer occurred, the recordings have been
helpful in setting the scene both of the entrance vestibule or coat check area inside
Rooster’s premises, and of the front door and view from Rooster’s toward the
parking lot outside of the premises.

[19]        
When Mr. Reimer, his friend, Ryan Murchie, and two young women arrived
at Rooster’s at approximately 1:00 a.m. on the morning of September 13, 2009,
Mr. Reimer had already consumed at least 10 to 12 cans of beer.

[20]        
The two young women entered Rooster’s before Mr. Reimer and Mr. Murchie.
Mr. Reimer was stopped at the entrance after a “pat down” by a Rooster’s staff
member revealed that Mr. Reimer had an unopened can of beer in a pocket in his
cargo shorts. The beer was confiscated by Rooster’s staff as required by
regulation. At around the same time, Mr. Murchie was not allowed to enter
Rooster’s as he did not have any photo identification. He had recently received
a new driver’s license but only possessed the temporary license which did not
include his photograph.

[21]        
Mr. Reimer then asked to enter the premises to find the two young women to
explain why Mr. Murchie could not enter. He was allowed to temporarily enter
for that reason. Mr. Reimer could not find the young women. On his way back
through the lobby vestibule, he saw his can of beer on a shelf and asked the female
coat check person to return it. He was advised that staff were not allowed to,
and would not, return his can of beer.

[22]        
At this point, Mr. Reimer became quite animated and argumentative in
demanding return of his can of beer. Voices were raised as he argued with the coat
check person. She eventually called for assistance from the security staff.

[23]        
Mr. Turnau and another member of the Rooster’s security staff, named
“Jas” or “Jaspreet”, arrived. An argument continued between the two security
personnel and Mr. Reimer, which eventually resulted in all three men throwing
punches. It is not clear from the video surveillance of the entrance area who
commenced the physical altercation. It was clear, however, that Mr. Reimer was
being argumentative. It was also clear that both Mr. Turnau and Jas were both
much larger in stature and weight than Mr. Reimer. Although Mr. Turnau and Jas
appeared at first to make efforts to hold Mr. Reimer at bay, the situation
quickly turned into, for lack of a better word, a “slugfest”.

[24]        
The altercation continued out the front door of Rooster’s and continued
on the sidewalk adjacent to Rooster’s. Mr. Murchie, who witnessed the fight
from close by, gave evidence that Mr. Reimer had thrown a few punches to the
body of Mr. Turnau, and Mr. Turnau had thrown several punches at Mr. Reimer. My
review of the video surveillance confirms that Mr. Turnau and Mr. Reimer were
both throwing punches with the majority clearly being delivered by Mr. Turnau. The
video clearly shows Mr. Reimer kicking, punching and pulling on Mr.
Turnau’s t-shirt, causing it to rip. Mr. Turnau was clearly fighting back,
taking wide swings at Mr. Reimer. Jas appeared to be the most passive of the
three. Once the fighting moved outside, a third security staff member also became
involved in the altercation.

[25]        
Eventually Mr. Murchie broke up the fight. Mr. Murchie then took Mr.
Reimer approximately 100 feet from the entrance to Rooster’s into the parking
lot near a lamp standard. Mr. Murchie intended to get Mr. Reimer away from the
security personnel while waiting for the young women to come out of Rooster’s,
and then to leave the area.

[26]        
This first altercation likely lasted less than a minute. Both Mr. Reimer
and Mr. Turnau had been overly aggressive and both had received minor
injuries. Unfortunately, the worst of the fighting was yet to come.

[27]        
Mr. Turnau and other security staff then went into the club and told
Rooster’s assistant manager about the incident. Rooster’s management had a
policy of detaining patrons who may have committed a crime so the assistant
manager instructed the security staff to go back out to the parking lot to
detain Mr. Reimer until the police arrived.

[28]        
The video then shows several security personnel leaving the front door
of Rooster’s and heading toward the parking lot. In his evidence at trial, Mr.
Turnau stated he did not go out into the parking lot in search of Mr. Reimer. I
do not accept this evidence. As I will describe below, it is completely at odds
with the video and eye witness evidence.

[29]        
The video surveillance does not show the assault in the parking lot. It
was only helpful in identifying those coming and going from the area of the
front door of Rooster’s out towards the area of the lamp standard where the
assault took place. Evidence of the assault in the parking lot for the
plaintiff was given by Mr. Reimer, Mr. Murchie, and Rhiannon Griffiths and
Jenny McGuire, two young women who came upon the events in the parking lot both
of whom had no previous knowledge of Mr. Reimer. Only Mr. Turnau and Cliff
Barber, the manager of Rooster’s who appears to have arrived at the scene in
the parking lot as the fighting concluded, gave evidence for the defendant.

[30]        
As there are significant differences in the accounts of the assault, I
will review each party’s evidence and make findings of credibility and fact.

[31]        
Mr. Reimer testified that after the incident in the foyer he and Mr.
Murchie went out into the parking lot and stopped near a lamp post about 100
feet from the entrance to Rooster’s. He was intending to continue the night
elsewhere, and he and Mr. Murchie were waiting to see if the girls they had
arrived with were going to join them.

[32]        
Once at the lamp post, he heard the security personnel yelling and
coming towards him and he was attacked. The security personnel were screaming
obscenities, and saying things like “you are coming with us.” Mr. Reimer was
“attacked, choked, dragged, [and] punched” out by the lamp post. He stated he
had difficulty breathing and was panicked. He testified that he was thrashing, kicking
and yelling, and tried to get away. He said the security personnel dragged him
back towards the entrance to Rooster’s. Mr. Reimer stated that the assault went
on long enough that he asked the security personnel to stop more than once. He
recalled hearing “girls screaming.” He could not identify the security
personnel who were assaulting him, which may be explained by his state of
impairment the entire time he was at Rooster’s.

[33]        
Mr. Murchie’s evidence of the events in the parking lot near the lamp
standard included the following statements:

a)       Mr. Reimer was catching his breath, and the
two of them were trying to figure out what happened because it was quite a
shock. Mr. Murchie soon heard incoherent yelling and people coming up behind him,
and he turned to see three bouncers coming across the parking lot. He
recognized the tall Caucasian with because he stood out, but did not recognize
the others. The tall Caucasian man had Mr. Reimer in a headlock, threw him to
the ground, picked him up, and the others were punching, kicking, kneeing and
elbowing him. All of the bouncers were punching Mr. Reimer, the tall Caucasian
man was kneeing him, and Mr. Murchie did not recall who was kicking Mr. Reimer.

b)       Mr. Murchie was “eight to 10 feet” away
while this was happening. He stated that “a couple other [security personnel] after
a short duration.”

c)       Mr.
Reimer “was trying to defend himself as much as he could.” He tried to cover areas
of his body. He was flailing around to try to get away and he tried to throw a
couple of punches, but his punches did not connect.

d)       Mr.
Murchie stated he heard Mr. Reimer yelling at them to “stop” and asking why
they were doing this to him.

e)       Mr.
Murchie stated that at this point he was in shock and turned around in
disbelief.

f)        In
response to being asked whether he noticed if any of the security personnel
were injured, he stated that “the taller Caucasian person had his shirt almost
completely ripped off”.

g)       Mr.
Murchie said that when he turned around again Mr. Reimer and the security personnel
were up by the entrance to the bar. At that point, Mr. Reimer was on his back
and was “pinned down” by one of the security personnel who put his knee on Mr.
Reimer’s chest. At that point, “he was trying to plead with them to let him go
and stop hurting him” but they did not stop.

h)       Mr.
Murchie noticed the taller Caucasian security person with the torn shirt
returning to the front entrance of Rooster’s from the area of the lamp post in
the parking lot.

i)        There
were approximately “20 or so people” around the entrance when this was going on.
One woman offered Mr. Reimer water, and a few told the security personnel to
“let him go”. In response, the security people “told them all to go away”.

j)        Once
the police arrived, the security personnel let Mr. Reimer get up. Mr. Murchie
then tried to clean up Mr. Reimer and waited for an ambulance. Mr. Reimer’s
face was swollen around his eye and cheekbone, almost his entire face was
swollen, he had a tooth missing, his lip was cut and he had many scratches on
his face, knees and arms. Mr. Reimer was taken away in an ambulance.

k)       Mr.
Murchie gave his contact information to the police officer, Cst. Sparks. Cst.
Sparks asked Mr. Murchie to point out the bouncers who had been involved, and
Mr. Murchie pointed out the tall Caucasian man and the man who had been holding
Mr. Reimer on the ground.

l)        On
cross-examination, Mr. Murchie stated that Mr. Turnau, the tall Caucasian security
person with blonde hair, was very distinct from the other security personnel
and also that he did not notice that any of the other security personnel had
blonde hair.

m)      Also
on cross-examination Mr. Murchie was shown a photograph of Timothy Spry, one of
the defendants and stated the photo reminded him of “the guy holding him [Mr. Reimer]
down” but was uncertain if Mr. Spry was one of the security personnel who was
at the incident by the lamp post.

[34]        
Mr. Murchie was a very credible witness overall. He was and is Mr.
Reimer’s friend but I did not sense any exaggeration of the events in the
parking lot in particular. His evidence was also consistent with the other
witnesses who were neither previously known to him nor friends or acquaintances
of Mr. Reimer. Mr. Murchie was clearly shaken by the savage nature of the beating
absorbed by Mr. Reimer.

[35]        
Rhiannon Griffiths stated at the opening of her evidence that she “does
not know Mr. Reimer”. Her evidence can be summarized as follows:

a)       Ms.
Griffiths had been in Rooster’s with five friends and they had left to go
across the parking lot to McDonald’s. She, her friend, Paula Schugg and Ms.
Shugg’s boyfriend were walking back through the parking lot to return to
Rooster’s when they ran across security people in a fight with another person.
Ms. Griffiths stood about ten feet away from the fight which was taking place
near a lamp post.

b)       Ms.
Griffiths saw a “huge guy with shaggy blonde hair throwing punches at and
kneeing a person, I guess Mr. Reimer, and … two or three other bouncers also … throwing
punches and kneeing.” With the several “bouncers” she was not sure who threw
what punches, except she knew that the shaggy blonde haired man threw some. She
was not able to describe the security personnel other than the “tall shaggy-haired
one”.

c)       She
saw the huge blonde person throw at least eight punches, and kneeing Mr. Reimer
two or three times while Mr. Reimer was “cowering … trying to defend himself”.
The huge, shaggy-haired person had his shirt ripped. She said “he [Mr. Reimer]
might have thrown a punch to defend himself but he was definitely cowering
underneath the rest of the security”.

d)       Ms.
Griffiths described the assault as “brutal, it was not right” because there was
“one guy and four bouncers on this one guy brutally beating him up.” She
observed Mr. Reimer “was bleeding from the face”. She said the security
personnel were all “much bigger” than Mr. Reimer.

e)       They
moved over to the “bar area”, that is, in front of the entrance to Rooster’s,
and she followed them and was a few feet away. At that location someone was
“kneeing” him, on top of him, and “I called the cops.” There were lots of
people around, “he was begging them to stop” but they did not stop. She said at
this point Mr. Reimer was not fighting back. She stated that she told the
security personnel she was on the phone with the police and they said “she is
not welcome back” and one of the security personnel told another to take a
photograph of Ms. Griffiths.

[36]        
The other independent witness who observed the incident in the parking
lot was Jenny McGuire. Like Ms. Griffiths, she did not know Mr. Reimer. Ms.
McGuire’s evidence was similar to Ms. Griffiths’ and can be summarized as
follows:

a)       Ms.
McGuire was with a group of friends at Rooster’s on the evening of September 12,
2009, into the following morning and at approximately 1:30 a.m. noticed a swarm
of people outside of Rooster’s and bouncers coming out of Rooster’s towards the
parking lot. She saw a fight and a guy getting stomped. She said “there were
four guys on top of him . . . and he was getting beaten bad … by a lamp post.”
The guy was asking the security personnel to “please stop” several times.

b)       She
described “a tall, huge blonde-haired guy, I believe there was a bald guy, and I
also remember a brown-haired bigger, stockier guy” and one other bouncer who “all
rushed out at him”. She said that the blond-haired guy could further be
described as having “a bowl cut” and being a Caucasian male.

c)       She
had previously seen Mr. Reimer involved in an argument in the foyer of
Rooster’s.

d)       The
security personnel were “beating [Mr. Reimer’s] head in”, and were “way bigger
than him.”   Mr. Reimer was on the ground just trying to get away from them.
She stated that the blonde man did more than the others.

e)       Near
the entrance, she was about three feet away and she tried to help him but her
friends pulled her away. Mr. Reimer was bleeding in the mouth. She stated “he
was begging them to stop” and “everyone was begging them to stop, get off of
him.” She got a good look at the blonde bouncer who was “angry when he came
out”. She said he was “so angry” and “did the most damage”.

f)        Towards
the conclusion of her evidence, Ms. McGuire stated, “in the parking lot they
were not restraining him, they were pummeling him, beating him up”.

[37]        
The evidence of both Ms. McGuire and Ms. Griffiths, who are friends, was
generally consistent with that of Mr. Murchie and I found all three of those
witnesses to be credible. Also, all three were clear that the person inflicting
a beating on Mr. Reimer with the most effort was the “huge”, “tall”,
“blonde” security person with the “shaggy” haircut, who I am satisfied was Mr.
Turnau. These witnesses were not able to identify the other security personnel
inflicting the beating, but they were consistent that all were members of the
security staff employed by Rooster’s.

[38]        
Mr. Turnau stated at trial that he had four years’ experience as a
bouncer or security staff member before joining Rooster’s, where he had worked
for one and a half months before September 13, 2009. He stated that he
understood his role in dealing with drunks and others at a nightclub. He “used
only the force that was necessary to remove somebody from the bar if necessary”
and the security personnel’s main objective was “to keep the peace … and make
sure everybody was following the liquor laws.”

[39]        
He first encountered Mr. Reimer when the pat down security person called
him over as she was having difficulty with Mr. Reimer, who had refused to leave
without taking his can of beer which had previously been confiscated. He asked
Mr. Reimer to leave. He was joined by Jas and as “we had given him enough
chances to leave under his own free will … we [then] escalat[ed] to removing
him and using as much force as necessary to get him out of the bar.” He then
testified as to the scuffle between him, Jas and Mr. Reimer, which included
grabbing Mr. Reimer, and Mr. Reimer in turn grabbing his shirt. He
testified that there was some pushing and shoving in an attempt to get Mr.
Reimer out the door. He stated that Mr. Reimer punched him twice, once inside
and once out of the door, and when they had just gotten out of the door, Mr.
Reimer looked like he was going to throw another punch so Mr. Turnau punched
him. He noticed his shirt had been ripped. Mr. Turnau further testified
that Mr. Reimer’s friend, who I understand to have been Mr. Murchie, “told us
he was getting [Mr. Reimer] out of there … and they walked away”.

[40]        
Mr. Turnau then went inside the cabaret and went to alert the manager about
the event. He saw Mike Skulsky, the assistant manager of Rooster’s, who told
him to hold Mr. Reimer and get Cliff Barber to call the police. Mike instructed
Mr. Turnau to “go get” Mr. Reimer. Mr. Turnau had been made aware of a policy
of Rooster’s that if the Rooster’s staff believes someone has committed a
crime, the person should be detained until the police arrive. Mr. Turnau stated
that as he had already fought with Mr. Reimer, he would probably not be the
right guy to go out to detain him until the police arrived. He stated that he
“stayed back” and “Calvin, Adam and Vic went out”, towards the parking lot
where Mr. Reimer was believed to have gone. He stated that he exited from the
front door of Rooster’s, “went ten feet into the parking lot” and then went
around the outside of Rooster’s to the back patio where the smoking area was
and  where he hoped to find Cliff. Surveillance video shows Mr. Turnau walking
out the front door wearing his torn t-shirt, but does not indicate how far Mr.
Turnau may have continued out into the parking lot or whether he went around
the sidewalk towards the back of the building.

[41]        
Mr. Turnau could not find Cliff at the outside patio smoking area so
proceeded back around to the front entrance and went inside to see if Cliff was
there. He stated that he then saw Mr. Reimer being held on the ground not far
from the entrance to Rooster’s. In the process of re-entering Rooster’s, he
stated he passed approximately five feet from where Mr. Reimer was being held
on the ground.

[42]        
Mr. Turnau testified that after the first incident inside the foyer and
outside the front door of Rooster’s, he had no further dealings with Mr.
Reimer. He testified that he never went into the parking lot to the lamp post area,
that he did not punch or kick Mr. Reimer, and that his shirt did not rip any
more during any further incident in the parking lot. The video surveillance
clearly shows Mr. Turnau, who had been described as having blonde, “shaggy”
hair and whose blue t-shirt was clearly ripped, walking in the direction of the
parking lot. It also shows him returning a few moments later, after Mr. Reimer
was taken to an area near the front door and was being held down by other
security personnel. The video shows that Mr. Turnau was no longer wearing the
blue t-shirt, or any shirt at all, and appeared to be holding the torn t-shirt
in his left hand. He also appeared to have blood on his chest. Mr. Turnau
testified that he had further ripped his t-shirt when taking it off, and also
did not see any blood or injury on Mr. Reimer when he was lying on the ground.

[43]        
Mr. Turnau also gave descriptions of the other security personnel who
were on duty at Rooster’s on the night in question. He said that two of the
security personnel had short blonde hair, presumably trying to describe who,
among the security personnel, may have gone out into the parking lot. One of
the persons he described was Calvin, who was the head person in security. Calvin
was Caucasian, an “inch or two taller” than Mr. Turnau, with a “medium build,
lighter than” Mr. Turnau was, and “he had short blonde hair”. He also described
Adam, who was Caucasian, between five feet ten inches to six feet tall, considerably
heavier than Mr. Turnau weighing about 260 to 270 pounds, and “he had short,
dirty blonde hair as well”. The other security personnel were all distinguished
as having darker skin, being shorter, and having black hair or being bald.

[44]        
As well as this video evidence, eye-witnesses described a large person
with shaggy blonde hair, which matches Mr. Turnau’s description, being involved
in the attack in the parking lot.

[45]        
I am satisfied on all of the evidence, in particular that of Mr.
Murchie, Ms. Griffiths and Ms. McGuire together with the surveillance video,
that Mr. Turnau was the large, blonde, security person who was involved in the
assault on Mr. Reimer near the lamp post in the parking lot. The evidence is
not clear as to which of the other security personnel were also involved in the
assault, either by holding, kicking or punching Mr. Reimer as described by the
witnesses. The witnesses’ testimony and the surveillance video make it
abundantly clear, however, that there were three other people involved in the
assault, and that all of the others involved were wearing the distinctive
Rooster’s security t-shirts.

[46]        
The final witness was Mr. Barber who described himself as the manager
and staff supervisor at Rooster’s. He testified that staff were directed to
retain people believed to have committed an offence and that people had been
detained on many occasions.

[47]        
Mr. Barber stated in evidence that after being advised by Vic, one of
the security personnel, of what had happened in the foyer and near the front
entrance to Rooster’s, he went out to the lamp post area where he witnessed at
least three security personnel holding onto Mr. Reimer, who was lying on his
back. He stated that “one security was holding one arm and another holding
another arm, and a third was grappling with a leg that [Mr. Reimer] was kicking
around.” He further stated that they should “get him up … to his feet and take
him over to the [sidewalk]” to wait for the police. He testified that he did
not see any of the security staff punch or kick Mr. Reimer. On
cross-examination he stated that “Calvin, Adam and Jas” were the security
people at the lamp post but thinks he also saw “Gerald”.

[48]        
Mr. Barber stated that Mr. Reimer continued “kicking and thrashing”, was
“never quiet and continued to swear”, and made strange sounds, which Mr. Barber
said sounded like “barking”. He acknowledged that Mr. Reimer had injuries when
he saw him out by the lamp post and stated that neither Mr. Spry nor Mr. Turnau
were among the security staff who were restraining Mr. Reimer in the parking
lot. He acknowledged that Mr. Spry took over holding Mr. Reimer at some point.

[49]        
Mr. Barber agreed on cross-examination that he often took written
statements from staff if there were assaults or altercations between staff and
customers but that he did not take any written statements on this occasion. He
also did not recall asking if any of his staff had struck Mr. Reimer and did
not investigate if Mr. Reimer had injuries.

[50]        
Soon, the police arrived at the scene. The first responding officer was
Cst. Sparks of the Ridge Meadows RCMP detachment. He stated that the RCMP
had received a call at 1:25 a.m. from a female who said that bouncers who were
employed by Rooster’s had been beating up a male.

[51]        
Cst. Sparks testified that near the front entrance to Rooster’s he found
a bunch of bar staff, a young male on the ground face-down with a security
person on top with his knee placed in the center of the young man’s back. The
young male was vocal, and upset. Cst. Sparks spoke to the young male, noticed
he was intoxicated, injured, bloodied, and complaining about his shoulder. Cst.
Sparks eventually calmed the young man down and told staff to get off of the
young man. Cst. Sparks checked the young man, who he identified as Mr. Reimer,
for injuries, and noted that Mr. Reimer had “lots of abrasions…, his lip was
bashed up, he had a gash on the top of his head, … he was complaining a lot
about his arm, and he had blood and a lot of abrasions on his knees. His lip
was actually the bad one, and I found out later he had lost a tooth.” He did
not note any injuries to any of the security personnel. There were six or eight
security staff nearby. Cst. Sparks stated that although the young man was
intoxicated, he was coherent.

[52]        
Paramedics arrived and took Mr. Reimer to the hospital in an ambulance.

[53]        
Cst. Sparks stayed and spoke to Mr. Murchie, who Cst. Sparks stated was
“not as drunk as his friend” and was “coherent”. Eventually after
investigations he and the other RCMP officers who had arrived arrested Mr. Spry
and Mr. Turnau who had been identified as being among the assailants.

[54]        
Cst. Sparks later checked on Mr. Reimer at the hospital and took a
statement and some photographs of his injuries. He interviewed Mr. Reimer again
a few days later.

[55]        
Cst. Sparks stated that in two and a half years, Rooster’s staff had
never called them regarding retaining a patron at the bar after an altercation.

IV.           
Discussion and Analysis

A.             
Liability for Assault and Battery

[56]        
The plaintiff alleges that he was assaulted and battered by the security
personnel at Rooster’s, including Mr. Spry and Mr. Turnau, and seeks damages
for these torts from the Rooster’s security personnel and from Rooster’s. The
claim against Rooster’s is twofold. First, Mr. Reimer claims that Rooster’s is
vicariously liable for the actions of the security staff. Second, Mr. Reimer alleges
that Rooster’s is directly negligent as a result of its policy of detaining
persons for the police following fights or other incidents.

[57]        
The altercation in the foyer of Rooster’s ultimately led to the incident
in the parking lot; however, the plaintiff’s claim relates only to the incident
in the parking lot.

[58]        
By trying to take a can of beer into Rooster’s, Mr. Reimer was in breach
of the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267,
and the security personnel were entitled to require Mr. Reimer to leave the
premises. Mr. Reimer did not leave when requested to do so, and the security
personnel were entitled to use reasonable force to have him leave the premises.
After the altercation in the foyer, which temporarily spilled out the front
door of Rooster’s, Mr. Reimer was taken by his friend, Mr. Murchie, out into
the parking lot to cool off. For all intents and purposes, Mr. Reimer had left
the premises of Rooster’s.

[59]        
There was a period of time when Mr. Reimer and Mr. Murchie had gone out
into the parking lot when the security staff who had been involved in the first
incident walked back into Rooster’s and spoke to Mr. Skulsky. The evidence on
the timing between the two altercations is not clear, but it appears to have
been a matter of a few minutes before members of the security staff went back
out to find and detain Mr. Reimer as instructed by Mr. Skulsky.

[60]        
I find that even if the Rooster’s security staff’s intent in going out
to the parking lot was simply to detain Mr. Reimer until the RCMP arrived,
which I do not accept, the security personnel were fully capable of restraining
Mr. Reimer without inflicting the beating he eventually received. There were
four or five large, strong security staff at the incident in the parking lot.
In those circumstances it would have been very easy for all of them to restrain
Mr. Reimer in a way that prevented him from punching or kicking in retaliation.
It was also apparent from Mr. Murchie’s evidence in particular that the
security personnel approached Mr. Reimer in the parking lot with the intention
of inflicting further harm. Mr. Murchie described how all of the security
personnel in the parking lot were punching and kicking Mr. Reimer  while one or
two of the others were holding Mr. Reimer in a headlock or otherwise.

[61]        
To summarize, I find that Mr. Turnau and others among the Rooster’s security
personnel on the night in question used force far in excess of what would have
been required or reasonable to subdue Mr. Reimer and they deliberately set out
to inflict serious harm on Mr. Reimer. Thus, the torts of assault and battery
are made out.

[62]        
Mr. Murchie’s evidence in this respect is corroborated by that of Ms.
McGuire and Ms. Griffiths. The assault is even more disturbing when considering
the evidence that Mr. Reimer, Ms. Griffiths, Ms. McGuire and possibly others
witnessing the attack were pleading for the security personnel to stop beating
and kicking Mr. Reimer. This evidence is inconsistent with the defendants’
contention that the security personnel were acting with a reasonable amount of
force to protect themselves. If the security personnel had been merely
protecting themselves from attacks by Mr. Reimer it would be very unlikely that
those witnessing the event would be pleading with the assailants to stop the
beating. It is even less likely that between three and five large, strong men charged
with keeping the staff and patrons safe would have any difficulty restraining
Mr. Reimer. I do not believe the security personnel were restraining Mr. Reimer
for any purpose other than administering a significant beating.

[63]        
At one point, the security personnel dragged Mr. Reimer across the
parking lot to an area near the front door of Rooster’s. The evidence is that
Mr. Reimer continued to scream and ask them to stop and let him go, but that they
did not release him. I find, on a balance of probabilities, that Mr. Reimer
received injuries as a result of being dragged unnecessarily across the parking
lot in addition to the injuries suffered in the assault near the lamp post.

[64]        
I also find that Mr. Skulsky was negligent in sending his staff out to
find Mr. Reimer after the first altercation for the purpose of detaining him
for the RCMP. The first incident in the foyer had ended. There was no
justifiable reason to send out the security personnel to restrain Mr. Reimer.

[65]        
Mr. Barber testified that he went out into the parking lot near the lamp
post and witnessed his security staff attempting to restrain Mr. Reimer, who
was kicking and punching them. I do not accept that evidence and prefer the
evidence of Mr. Murchie, Ms. McGuire and Ms. Griffiths as to the beating that
was being inflicted on Mr. Reimer by the security staff. I find on a balance of
probabilities that Mr. Barber witnessed the beating of Mr. Reimer and did
nothing to end the violence. Furthermore, I find that Mr. Barber was aware that
one of the security staff beating Mr. Reimer was Mr. Turnau, and I do not
accept the evidence of Mr. Turnau and Mr. Barber that Mr. Turnau was not among
the security personnel involved in the incident in the parking lot. Mr.
Barber’s failure to obtain statements from his staff after a patron had been
seriously injured is also contrary to his stated policy and unexplainable.

[66]        
I have no hesitation in finding that Mr. Turnau was engaged in the
beating of Mr. Reimer in the parking lot; however, I am not able to identify on
a balance of probabilities who the other security staff involved in this
assault were. Nevertheless, I am satisfied those persons were employees of
Rooster’s acting in the course of their employment. Based upon all of the
evidence I accept, none of those security personnel made any attempt to calm
the situation or end the continuing assault on Mr. Reimer. Likewise, Mr. Barber
made no effort to instruct his staff to end the beating of Mr. Reimer.To make
out a successful claim for vicarious liability, plaintiffs must demonstrate two
things: first, that the relationship between the tortfeasor and the person
against whom liability is sought is sufficiently close; and second, 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: K.B.L.
v. British Columbia, [2003] 2 S.C.R. 403. Cole v. California
Entertainment Ltd., [1989] B.C.J. No. 2162 (B.C.C.A.), is
particularly relevant to the facts of this case. In that decision the Court of
Appeal dismissed the appeal from Mr. Justice Gow’s trial. In doing so, they
reproduced the following words from Gow J.’s decision:

The circumstances here are very different. The employer
Lalli, because he had complete control of the staff, the hired staff of
California Entertainment Ltd., including the bouncers, having unleashed the
dogs of war, retreated to his office and left it to them to carry out his
express instructions that evening to clear the doorway. They applied themselves
to that task and such was their zeal that the whole of that part of Broad
Street shown in the photographs to which I have referred became, in the words
of Cst. Smith, a chaotic scene. I should say, of course, that the creating of
that scene was not wholly that of the bouncers, that Cole’s group had not an
unimportant part to play in what happened that night.

. . . . .

. . . I find that what [the
defendant] did to [the plaintiff] was an act so closely connected with and
consequential upon the instructions which he and his fellow doormen had
received from their employer that night, that it was an act done in the course
of his employment, and for it and the consequences thereof California
Entertainment Ltd. is vicariously liable.

[67]        
Rooster’s is vicariously liable for the negligence of their staff and,
as they admitted at trial, for the assault and battery inflicted by Mr. Turnau
and the other security staff. The security personnel were doing the type of
task they were hired to do and with instructions from Mr. Skulsky. The security
staff were clearly working in the course of their employment of Rooster’s and
the assault was sufficiently connected to the job description of the security
staff so as to find Rooster’s liable under the tests set out in K.B.L.

[68]        
Furthermore, in this case, the policy put in place by Mr. Barber and his
failure to take steps to end the assault being carried out by his staff clearly
implicates Rooster’s in the assault upon Mr. Reimer, for which I find Rooster’s
to be directly liable in negligence.

[69]        
I also find that Mr. Reimer was not contributorily negligent for the
injuries inflicted upon him. Following the first altercation, Mr. Reimer and
Mr. Murchie had left the area near the entrance to Rooster’s and had walked
approximately 100 feet away to the area of the lamp post. The first altercation
was over and both Mr. Reimer and Mr. Murchie had “left the building”. There was
no reasonable justification for the security staff to hunt down Mr. Reimer in
the parking lot, nor was there a justification for the assault they inflicted
upon Mr. Reimer.

B.             
Injuries Suffered by the Plaintiff

[70]        
Mr. Reimer testified that prior to the events of September 13, 2009, he
was generally healthy. He regularly participated in hiking, community rugby and
soccer, running and other activities.

[71]        
Several photographs of Mr. Reimer are in evidence which clearly depict
injuries he suffered as a result of the assault. One group of the photographs was
taken by Cst. Sparks when he attended at the hospital during the early morning
hours after leaving Rooster’s. A second set of photographs was taken by Mr.
Reimer’s mother later in the daytime hours after the assault.

[72]        
The injuries apparent from the photographs include:

[73]        
Head injuries, including a lump on the back of his head, scrapes and
lacerations in many locations including his scalp, a bruise and laceration near
his left temple, a cut over his right eye which required stitches, and
substantial bruising and swelling of the left eye such that the eye was closed.
There were also extensive lacerations, scrapes and bruising to his forehead and
to his nose, lacerations to his lip and chin, and a cut inside his lower lip
which later developed a cyst. He lost an upper tooth and had a sore jaw.

a)       Injuries
to both knees including several lacerations, scrapes and bruising.

b)       Lacerations
to his left elbow and forearm.

c)       A “bone
bruise” on his left shin.

d)       Significant
bruises on the left side of his neck.

e)       In
the photographs taken by Mr. Reimer’s mother several hours after the first
photographs taken by Cst. Sparks, additional bruising to several of the injured
areas had become apparent.

[74]        
As a result of the injuries, Mr. Reimer was obviously in substantial pain.
He suffered headaches and was later advised by his family doctor that he had
suffered a concussion. Mr. Reimer felt pain and dizziness for at least three
weeks. He testified that the headaches were intense for three weeks, that after
three or four weeks they gradually began to lessen, and that at the time of
trial, the headaches had “for the most part gone”.

[75]        
Mr. Reimer testified that in the weeks following the assault he was
embarrassed to be seen in public and so rarely ventured outside. He also stated
he had a black eye for over one month and the scar from the cut remained
visible for a long time. The stitches were removed from his eye lid after four
or five weeks. He also described his mood as poor during the weeks and first
few months after the incident, and says he was “down in the dumps”. Once he returned
to work after the incident, he felt better but also stated that he “cannot say
he has not been depressed since the fight”. A few months before the trial, Mr.
Reimer visited his family doctor regarding his depression and sought
anti-depressant medication. His father testified that his son has not been the
same person since the incident and at times was “down and sad”.

[76]        
Dr. Peet Du Toit, Mr. Reimer’s family doctor, testified at the trial,
and two medical-legal reports were filed as part of Exhibit 2 at trial. In his
first report, Dr. Du Toit stated that Mr. Reimer “made a spontaneous
recovery from the multiple injuries as described including the concussion”, and
further that “I don’t foresee any probable or possible disability due to the
injuries sustained, as described.” The injuries referred to in his reports were
generally as described earlier in these reasons.

[77]        
In his most recent report dated June 4, 2012, Dr. Du Toit added “anxiety
and depression symptoms” as an injury but stated that symptoms of the same were
“now settled” and he had no further recommendations for treatment.

[78]        
Mr. Reimer attended upon Dr. Preet Bhatti, a dentist practicing in Pitt
Meadows. Dr. Bhatti established that “tooth #11 (upper right central incisor)
had been completely avulsed [that is, removed]” and stated that Mr. Reimer “also
had a laceration to the left upper and a large swelling of the left lower lip.”
Dr. Bhatti referred Mr. Reimer to Dr. Michael Henry, who on September 24, 2009,
inserted a “root form dental implant”. Eventually in April 2010, an abutment
and a ceramic crown were placed in the area of the missing incisor.

[79]        
Dr. Bhatti stated, in his letter of July 19, 2011, that “there is the
possibility of future complications with implant supported prosthetic
treatment. Dental implants have a success rate of over 90% and offered the most
predictable and conservative treatment in Jacob’s case.” However, he also
stated that “[t]here is a reasonable possibility that the crown on the implant
may require replacement in the future due to esthetic concerns”. In
cross-examination, Dr. Bhatti explained further, stating that since Mr. Reimer
is young and natural teeth will change colour over time, if he were to make “an
educated guess… is would not be unreasonable to think that the crown on this
implant may not look natural and [Mr. Reimer] may want to consider having it
replaced.”

[80]        
I conclude from the evidence of Dr. Bhatti that it is unlikely but not
unrealistic to assume that Jacob may require replacement of his crown.

[81]        
Within four weeks of the assault, Mr. Reimer had resumed playing
community rugby. Over the months that followed, he returned to his normal
activities. From my observation of the photographs of Mr. Reimer’s injuries and
the descriptions of the assault on September 13, 2009, Mr. Reimer has been
fortunate that he did not suffer greater and longer-lasting injuries.

C.             
Assessment of Damages

1.              
Non-Pecuniary Damages

[82]        
The plaintiff seeks non-pecuniary damages for pain and suffering in an
amount of $15,000, whereas the defence submits that $2,500 is sufficient in
light of what the defence describes as the “minor injuries” suffered by Mr.
Reimer.

[83]        
The defendants in this case are most fortunate that Mr. Reimer did not
suffer more serious injuries considering the extent of the assault upon him.
However, the fortune of the defendants is not a factor in assessing damages.

[84]        
In light of the prompt recovery from his injuries, which at most was
after approximately two months excluding the completion of dental work, the
amount of damages is admittedly not large; however, is clearly not as
insignificant as submitted by the defendants. I agree with the submissions made
by counsel for the plaintiff that an award of non-pecuniary damages of $15,000
is reasonable in these circumstances. In support of this award, I have reviewed
the decisions referred to by counsel for the plaintiff, all of which are
appropriate comparisons: see De Leon v. Harold, 2010 BCSC 1802; Fiessel
v. Fiessel, 2006 BCSC 1113; Thatcher v. Schell, 2005 BCSC 1121; Wade
v. McLeish, 2006 BCSC 1056; and Wong v. City of Vancouver, 2001 BCSC
693.

2.              
Special Damages

[85]        
Mr. Reimer claims $3,693 in special damages. This is the cost of dental
surgery to replace his upper tooth, all of which is clearly recoverable. I therefore
award special costs as claimed by Mr. Reimer.

3.              
Cost of Future Care

[86]        
Mr. Reimer claims future dental costs, should he require replacement of
his crown and possibly the supporting abutment. Dr. Bhatti’s evidence as to the
likelihood of a replacement being required was summarized above, and I am not
convinced that a replacement of the crown and abutment will be required in the
future. The claim does not meet the test of “a real and substantial possibility
and not mere speculation” as set out in Athey v. Leonati, [1996] 3 S.C.R.
458 at para. 27. While Mr. Reimer may make an aesthetic decision to undergo
this replacement in the future, the likelihood of a crown and abutment
replacement is remote and closer to “mere speculation” than a “real and
substantial possibility”. Accordingly this claim is dismissed.

4.              
Claim for Health Care Costs under the Health Care Costs Recovery Act

[87]        
Section 16 of the Health Care Costs Recovery Act provides for a
certificate to be issued by or on behalf of the Minister of Health that amounts
to a claim for the health care costs incurred by the Minister for personal
injuries suffered by a “beneficiary” as defined in that Act. Section 16 further
provides that such certificates are conclusive proof of the services provided
in relation to the negligence or wrongdoing.

[88]        
In this matter a certificate was issued on March 5, 2013,  claiming
health care costs for the personal injuries suffered by Mr. Reimer “as a result
of the negligence or wrongful act or omission of a wrongdoer on or about
2009/09/13”. The amount claimed in the Certificate is $3,103.33 and attached as
an appendix to the Certificate is a record of the services claimed by Mr.
Reimer including ambulance, hospital, and medical costs.

[89]        
The defence has not taken exception to these claims. Therefore, I
designate, under s. 20 of the Act, that the amount of $3,103.33 is applicable
to the claim for health care services.

5.              
Aggravated Damages

[90]        
In Thomson v. Friedmann, 2008 BCSC 703, aff’d 2010 BCCA 277,
Madam Justice Gerow discussed aggravated damages and the distinction between
aggravated damages and punitive damages:

[29]      Ms. Thomson is seeking both aggravated and punitive
damages. Aggravated damages are a compensatory award that takes account of the
intangible injuries such as distress and humiliation caused by a defendant’s
insulting behaviour. Aggravated damages are often claimed as compensation for
mental distress caused by a defendant’s behaviour. Aggravated damages will
frequently cover conduct which would also be subject to punitive damages, but
their role is compensatory. They are designed to compensate a plaintiff and are
measured by the plaintiff’s suffering such as pain, anguish, grief, humiliation,
wounded pride, damaged self-confidence or self-esteem, and similar matters
caused by the conduct of a defendant: Vorvis v. Insurance Corp. of British
Columbia, [1989] 1 S.C.R. 1085.

[30]      There is a close relationship between aggravated
and punitive damages. The harshness of a defendant’s conduct may give rise to
both types of damages. However, it is important that a plaintiff not be
compensated twice for the same harm or a defendant punished twice for the same
type of moral culpability: Huff v. Price (1990), 51 B.C.L.R. (2d) 282
(C.A.).

[31]      In my view, the conduct of Mr. Friedmann in
striking Ms. Thomson with a baseball bat when she had her hands up and had
indicated that she was going to leave the premises showed a wilful or reckless
indifference to Ms. Thomson’s rights. Although Mr. Friedmann argues that a
landlord has the right to protect his property, it was obvious from Ms.
Thomson’s conduct prior to the assault that she presented no threat and was
going to leave the property on her own accord. Even though Ms. Thomson was
defenceless and trying to leave, Mr. Friedmann struck her at least three times
with a baseball bat, fracturing her arm.

[32]      The evidence is that
Mr. Friedmann’s behaviour caused mental distress for Ms. Thomson. Ms. Thomson
testified that the assault will always be with her. She suffered from anxiety
and sleeplessness after the incident. Her evidence is that she still
occasionally has flashbacks to the incident when someone makes a movement
around her head. In the circumstances, it is my view that an award of $2,500 is
appropriate for aggravated damages.

[91]        
The assault by the security staff of Rooster’s has caused Mr. Reimer
distress and humiliation. He was attacked in front of several patrons of
Rooster’s and stayed home due to embarrassment over his appearance after the
beating. He also postponed seeking work and he was “down in the dumps” for a
period of time.

[92]        
Such a reaction by Mr. Reimer could have been expected.

[93]        
The circumstances in this case are comparable to the facts in Thomson
in that Mr. Reimer was not a threat to the security staff after he and Mr.
Murchie had gone out in the parking lot and were planning to leave.

[94]        
I award aggravated damages in an amount of $3,000 in these
circumstances.

6.              
Punitive Damages

[95]        
Mr. Reimer seeks punitive damages in an amount of $12,000. Counsel for
the defence did not address the claim for punitive damages in his written or
oral submissions.

[96]        
In Thomson, Gerow J. also reviewed factors to consider for
determining whether punitive damages are appropriate:

[33]      In Whiten v. Pilot Insurance Co., [2002] 1
S.C.R. 595, the Supreme Court of Canada stated at ¶94 that the following points
are important in determining whether an award of punitive damages is
appropriate:

(1)        Punitive damages are
very much the exception rather than the rule, (2) imposed only if there
has been high-handed, malicious, arbitrary or highly reprehensible misconduct
that departs to a marked degree from ordinary standards of decent behaviour.
(3) Where they are awarded, punitive damages should be assessed in an amount
reasonably proportionate to such factors as the harm caused, the degree of the
misconduct, the relative vulnerability of the plaintiff and any advantage or profit
gained by the defendant, (4) having regard to any other fines or penalties
suffered by the defendant for the misconduct in question. (5) Punitive damages
are generally given only where the misconduct would otherwise be unpunished or
where other penalties are or are likely to be inadequate to achieve the
objectives of retribution, deterrence and denunciation. (6) Their purpose is
not to compensate the plaintiff, but (7) to give a defendant his or her just
desert (retribution), to deter the defendant and others from similar misconduct
in the future (deterrence), and to mark the community’s collective condemnation
(denunciation) of what has happened. (8) Punitive damages are awarded only
where compensatory damages, which to some extent are punitive, are insufficient
to accomplish these objectives, and (9) they are given in an amount that is no
greater than necessary to rationally accomplish their purpose. (10) While
normally the state would be the recipient of any fine or penalty for
misconduct, the plaintiff will keep punitive damages as a "windfall"
in addition to compensatory damages. (11) Judges and juries in our system have
usually found that moderate awards of punitive damages, which inevitably carry
a stigma in the broader community, are generally sufficient.

[34]      The court went on to
note at ¶95 that what is essential in determining whether an award of punitive
damages should be made, and the amount of the award are the particular
circumstances of the case, the fact that the remedy is exceptional, and fairness
to both sides. In determining if punitive damages should be awarded, the court
is to consider whether the conduct of a defendant should be punished over and
above the requirement that he pay non-pecuniary, pecuniary, and aggravated
damages: Huff.

[97]        
The conduct of Mr. Turnau and Mr. Barber in particular, and to a
slightly lesser extent the other security staff who either participated in the
beating or stood idly by while the beating continued, was unnecessary, totally unacceptable,
“high-handed, malicious, arbitrary and reprehensible” to a major degree. Further,
compensatory damages in this case are inadequate to compensate Mr. Reimer. They
would not provide the defendants with, as Gerow J. put it, their “just deserts”,
nor would they serve the objectives of “retribution, deterrence and
denunciation” of the defendants’ actions.

[98]        
The assault in the parking lot was unprovoked and the entire episode
should have ended with Mr. Reimer and Mr. Murchie walking out through the
parking lot. It is also particularly objectionable that the beating was carried
out in front of several of the patrons of Rooster’s who had proceeded outside
and into the parking lot, where, as completely independent witnesses, they were
exposed to incredible brutality.

[99]        
Considering all of the authorities referred to me on the issue of
quantum, I award a sum of $20,000 as punitive damages.

[100]     The award
of punitive damages is made against both Mr. Turnau and Rooster’s, as I have
found the latter directly liable in addition to being vicariously liable.

V.             
Costs

[101]    
Costs will follow the event, subject to any information to which I am
not currently privy. The parties may speak to entitlement on costs and the
appropriate scale of costs to be awarded.

“Jenkins J.”