IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110119

Docket: S064469

Registry:
Vancouver

Between:

Kalev Kasendi

Plaintiff

And

Cecil Hotel Ltd.,
Shergar Investments Ltd.,
Sarfraz Holdings Inc., John Doe One,
Hooman Mihanyar, Chris Hawes, John Doe Four

Defendants

Before:
The Honourable Mr. Justice Davies

Reasons for Judgment

Introduction

[1]            
On January 6, 2006, Kalev Kasendi was ejected from the exotic show
lounge at the Cecil Hotel by Hooman Mihanyar, its lounge security manager, and
other security staff.

[2]            
Mr. Kasendi alleges that the ejection was without cause and in breach of
the Cecil Hotel’s obligations to him as an invitee/patron.

[3]            
He alleges that the wrongful ejection as well as an unwarranted manner
of ejection by its staff caused him serious personal injuries including a
traumatic brain injury, loss of teeth, a fractured wrist, and injuries to both
knees.

[4]            
The defendants dispute that the ejection of Mr. Kasendi was in any way
wrongful. They say Mr. Kasendi wrongfully interfered with the efforts of the
Cecil Hotel’s employees to remove another patron, Mr. Kasendi’s friend Fred
Warriner, from the premises for cause. They say that they were entitled to
remove Mr. Kasendi because of the nature of his interference as well as his
refusal to leave the hotel premises when directed to do so.

[5]            
The defendants also submit that the manner of the removal was not
tortious and either did not cause the injuries Mr. Kasendi alleges or,
alternatively, caused far less serious injuries.

Issues

[6]            
The Cecil Hotel admits that Mr. Mihanyar and its other employees were
acting in the course of their employment with the Cecil Hotel and that if any
of them are liable to Mr. Kasendi for damages for any injuries he suffered, the
corporate defendants are vicariously liable.

[7]            
These issues remain for determination:

1)    Were the Cecil
Hotel and its employees lawfully entitled to physically remove Mr. Kasendi from
its premises by reason of his conduct in interfering with the removal of Fred
Warriner and his own refusal to leave the premises when directed to do so?

2)    Did the
defendants breach any duty of care owed to Mr. Kasendi in the manner of their
ejection of him from the premises?

3)    Did the manner
of ejection cause any or all of the injuries alleged by Mr. Kasendi?

4)    If so, in what
amount are the defendants liable to pay Mr. Kasendi for his pain and suffering,
past wage loss, future loss of earning capacity, cost of future care, and
special damages?

Background

[8]            
On January 6, 2006, Mr. Kasendi was 51 years old. He was living with his
friend Mr. Warriner in a condominium near Cambie Street and 41st Avenue in
Vancouver, and doing some renovation work on the condominium in exchange for
rent and expenses.

[9]            
Mr. Kasendi’s living-for-work relationship with Mr. Warriner was not an
uncommon situation for Mr. Kasendi after 2002 when his employment as an
apartment manager was terminated, and he commenced living with various friends
for protracted lengths of time rather than maintaining his own residence.

[10]        
Mr. Kasendi also had an unsettled and sporadic work history after 2002
as well as in some earlier years doing many different jobs for varying lengths
of time, the income from many of which he did not declare for income tax
purposes.

Going to the Cecil Hotel on January 6, 2006

[11]        
On January 6, 2006, it had been arranged that Mr. Kasendi and Mr.
Warriner would spend time that night with Craig Lightheart, who was a friend
from their days in school together.

[12]        
After Mr. Warriner arrived home from work that evening, he poured
cocktails for himself and Mr. Kasendi and then prepared to get ready to go
out. Mr. Lightheart then arrived and the three friends decided to go to the
Cecil Hotel show lounge.

[13]        
Before leaving, Mr. Warriner and Mr. Kasendi each had at least two
“heavy handed” double cocktails poured by Mr. Warriner.

[14]        
Mr. Lightheart does not drink alcohol other than “near beer” and when
they left for the Cecil Hotel, he was the “designated driver.”

[15]        
None of the three ate any food before leaving for the hotel sometime
before 7:00 p.m.

[16]        
When they arrived at the hotel, they parked on a nearby street. They next
entered the Cecil Hotel lounge and Mr. Warriner paid the cover charge for
the three of them.

[17]        
Mr. Warriner testified that he then attended at the bar to buy drinks
for himself and Mr. Kasendi, and Mr. Lightheart testified that Mr. Warriner
also purchased a “near beer” for him. There is evidence in the form of an account
for Mr. Warriner’s credit card that he charged $52.00 at the Cecil Hotel that
evening.

[18]        
The evidence of Mr. Warriner, Mr. Lightheart, and Mr. Kasendi as to what
occurred after the three entered the Cecil Hotel lounge and Mr. Warriner
purchased the first drinks, as well as the length of time that elapsed before
Mr. Kasendi was ejected, is somewhat different.

[19]        
I do not find that to be surprising given: the length of time that has
passed since those events; the fact that the actions of all three were not taken
in concert; and, the relative lack of importance of the actions taken by each
before the events that led to the ejection.

[20]        
Mr. Warriner testified that after he purchased the first drinks, he next
spent some time talking to a dancer in the lounge he knew from previous
attendances.

[21]        
Mr. Lightheart testified that the three found a table near the bar and
sat there.

[22]        
Mr. Kasendi said that he talked to a number of people whom he knew or
thought he knew from previous attendances at the lounge. He also sat at the
table with his friends for awhile but later took his drink nearer to the stage
where he watched one or more shows. He also went to a smoking room to have a
cigarette.

[23]        
Evidence from surveillance cameras recorded on videotape confirms Mr. Kasendi’s
evidence about being away from the table while watching part or parts of two
shows before the events that subsequently led to his ejection from the lounge.

[24]        
That videotape evidence also assists in determining the sequence of
events that gave rise to Mr. Kasendi’s removal, and the manner of that removal,
up to a point immediately before he was ejected through the exit doors of the
lounge onto a landing outside.

[25]        
The videotape evidence does not, however, include an audio recording of
what transpired and there is also no videotape evidence of what occurred at the
exit doors or on the landing.

The Prior Incident at the Cecil Hotel in October of 2006

[26]        
Before discussing the evidence of Mr. Kasendi and Mr. Mihanyar and other
observers as to what each says happened on January 6, 2006, I will first
discuss the events that occurred one night in October of 2005, which gave rise
to the disputes of January 6, 2006.

[27]        
On that October night, Mr. Warriner attended the Cecil Hotel lounge and
became very intoxicated.

[28]        
According to Brett Austin, the bartender on duty that night, when Mr.
Warriner was about to leave he became extremely agitated and began swearing at
Mr. Austin, and eventually became so difficult that Mr. Austin called upon Mr. Mihanyar
for assistance.

[29]        
Mr. Mihanyar and Mr. Austin both testified that when Mr. Mihanyar came
to the bar to talk to intervene, Mr. Warriner said, “how would you like me to
stick (or poke) this fucking pen in your eye?”

[30]        
Fortuitously, as was often the case on busy nights on Granville Street, some
police officers were in the Cecil Hotel lounge at the time.

[31]        
When Mr. Mihanyar told those officers what had happened and what Mr. Warriner
had said, the police removed Mr. Warriner from the premises.

[32]        
Mr. Mihanyar testified that during that removal he told Mr.
Warriner that he was barred from returning to the Cecil Hotel lounge, and later
also told Mr. Austin that Mr. Warriner had been barred.

[33]        
In his testimony, Mr. Warriner did not dispute that he had been intoxicated
or agitated or that he had made the statement about sticking the pen in Mr.
Mihanyar’s eye. He did not, however, agree that he had been told that he was
barred from the Cecil Hotel lounge.

[34]        
Counsel for the defendants submitted that Mr. Kasendi and Mr. Lightheart
knew that Mr. Warriner had been barred from the lounge before they all decided
to go to the lounge that night.

[35]        
After considering the totality of the evidence, I am satisfied that before
going to the Cecil Hotel on January 6, 2006, both Mr. Kasendi and Mr.
Lightheart knew that Mr. Warriner had previously been ejected from the
lounge, but I am not convinced that either knew that he had been banned from
future attendances.

The Ejection of the Plaintiff from the Cecil Hotel Lounge

[36]        
Determination of the circumstances of the ejection of Mr. Kasendi from
the Cecil Hotel, as well as the manner of that ejection, is primarily dependent
upon an assessment of the credibility and reliability of the testimony of Mr.
Kasendi and Mr. Mihanyar. It also requires consideration of the evidence
of others who observed some of the events and examination of the available videotape
evidence.

[37]        
I will make those findings of credibility and reliability later in these
reasons, but will now briefly record what each of Mr. Kasendi and Mr. Mihanyar
testified happened when Mr. Kasendi approached the table at which Mr. Warriner
and Mr. Lightheart were seated and a discussion was ongoing between Mr.
Warriner and Mr. Mihanyar, who was then standing beside Mr. Warriner.

[38]        
In short, Mr. Kasendi testified that:

1)    When he saw what
was happening, he approached the table and simply asked Mr. Mihanyar if something
was wrong.

2)    He did nothing
to provoke Mr. Mihanyar, who immediately and for no reason became angry and
aggressive in confronting him and said, “you have to go.”

3)    Mr. Mihanyar then,
violently, together with another bouncer, Mr. Hawes, ejected him without reason
or justification using a “choke hold” that caused him to lose consciousness
before he was removed from the lounge.

4)    He “came to” on
the landing outside the lounge when Mr. Warriner was administering CPR to
him.

[39]        
In short, Mr. Mihanyar testified that:

1)    While he was
telling Mr. Warriner that he had to finish his drink and leave, Mr. Kasendi belligerently
interfered in the discussion.

2)    When he told him
to stand back, Mr Kasendi sat down in a chair, held onto its arms and said,
“fucking move me.”

3)    He then decided
that Mr. Kasendi would have to be removed to prevent further escalation of the
incident.

4)    He did not exert
pressure on Mr. Kasendi’s neck while removing him, and Mr. Kasendi was fully
conscious when he was removed backwards from the lounge through the double exit
doors to an outside landing.

5)    He did not
strike Mr. Kasendi until Mr. Kasendi punched him in the back of the head when
Mr. Mihanyar was returning to the lounge.

6)    When he was
struck from behind, he punched Mr. Kasendi once in the face in self-defence.

The Aftermath of the Ejection

[40]        
Mr. Kasendi remained on the landing outside the exit door to the lounge
until ambulance paramedics and the police arrived shortly after the ejection.

[41]        
The evidence concerning Mr. Kasendi’s state of health during that period
of time and the manner by which the police and ambulance were summoned is somewhat
confusing and complex.

[42]        
In summary, Mr. Lightheart testified that:

1)    Mr. Mihanyar
directed him from the lounge through the same exit from which Mr. Kasendi had
been ejected.

2)    He observed Mr.
Kasendi on the landing “groaning” and watched him for about five minutes until
the groaning stopped.

3)    He became
concerned that Mr. Kasendi was not breathing, checked for a pulse and could
find none, and asked Mr. Warriner to perform CPR.

4)    When he did that,
Mr. Warriner handed him his cell phone (by which Mr. Warriner was then
connected to an ambulance dispatcher) and he told the operator that Mr. Kasendi
was not breathing.

5)    The dispatcher told
Mr. Lightheart to keep the line open and Mr. Warriner performed CPR on Mr.
Kasendi, which revived him after a very few compressions.

[43]        
In summary, Mr. Warriner testified:

1)    He did not
immediately leave the lounge because he spent some time inside with an employee
whom he thought was more reasonable than Mr. Mihanyar.

2)    When he left the
lounge, he saw Mr. Kasendi lying on the landing and then checked his pulse at
the wrist and carotid artery, but could find none.

3)    He proceeded to
administer CPR chest compressions and that after three compressions Mr. Kasendi
“came to.”

[44]        
Mr. Lightheart and Mr. Warriner, as well as Mr. Kasendi, all testified
that two ambulances attended at the Cecil Hotel and provided aid to Mr.
Kasendi.

[45]        
Mr. Robert Barbosa, the ambulance attendant who primarily attended to
Mr. Kasendi, interviewed and examined him at the hotel, completed a crew report
that makes no mention of CPR or of Mr. Kasendi having suffered any stoppage
of breathing, loss of pulse, or possible cardiac arrest. He also testified that
he was not told of any of those things.

[46]        
Mr. Barbosa and Jeremy Kroeker, the other ambulance attendant that
attended upon Mr. Kasendi, each also testified that only their ambulance
attended, but Mr. Kroeker further testified that if a second ambulance had been
dispatched, dispatch logs should be available to confirm or deny that dispatch.

[47]        
That evidence led to a mid-trial inquiry by Mr. Kasendi’s counsel that
resulted in the location of an audio recording of a dispatch by the British
Columbia Ambulance Service of an additional ambulance, either before or after
the one that actually attended upon Mr. Kasendi at the Cecil Hotel.

[48]        
I allowed the entry of that audio recording as well as a transcript of
it in rebuttal evidence by Mr. Kasendi.

[49]        
It is difficult to rationalize the lack of communication between the two
ambulance crews that evening, but the audiotape evidence confirms that Mr. Lightheart
and Mr. Warriner did talk to a dispatcher for an ambulance other than the one
that attended the scene.

[50]        
In the end, although I am unable to say with certainty that only one
ambulance crew did actually attend at the hotel, the evidence of Mr. Barbosa
and Mr. Kroeker which I accept and the fact that no incident report was filed
by a second crew leads me to conclude that a second crew was dispatched, but took
no part in any dealings directly with Mr. Kasendi.

[51]        
I have also concluded that the only logical explanation as to why Mr.
Barbosa made no mention of any administration of CPR or cardiac arrest is that Mr.
Warriner and Mr. Lightheart did not mention it because they assumed Mr. Barbosa
and Mr. Kroeker already knew of the circumstances through the dispatch
communications, and Mr. Kasendi was either sufficiently confused from his
general state of distress or from his lack of sobriety (which I will later
discuss) that he also did not volunteer the CPR information.

[52]        
In that regard, it is also noteworthy that in addition to not advising
the ambulance attendants about the application of CPR, Mr. Warriner,
Mr. Lightheart, and Mr. Kasendi also did not advise the police
officers who attended at the scene of those events.

[53]        
The information about the administration of CPR could have been
important for the attending ambulance crew to know since it may have altered
their course of conduct by making them more insistent that Mr. Kasendi receive
further medical attention.

[54]        
Although Mr. Barbosa’s crew report states that Mr. Kasendi suffered a
large contusion on his forehead, it also states that he did not suffer any loss
of consciousness and was alert and oriented when he was examined and
interviewed. Mr. Barbosa testified that he observed no loss of teeth or
blood and concluded that Mr. Kasendi had not suffered a concussion. His crew
report also states that Mr. Kasendi refused the ambulance attendants’
offer to take him to the hospital and that Mr. Kasendi stated that he was “OK.”

[55]        
In cross-examination, Mr. Barbosa testified that he made the
determination that Mr. Kasendi had not lost consciousness because of his own
assessments and Mr. Kasendi’s statements to him at the scene.

[56]        
Mr. Barbosa’s crew report also states that Mr. Kasendi’s head had
contacted a hand rail, but the source of that information is unclear. That is
so because:

1)    The advice about
the hitting of the rail could have come from Mr. Kasendi himself in his
discussions with the ambulance attendants, but more likely emanated from Mr.
Warriner or from the police officers who interviewed witnesses at the scene.

2)    One of those
officers, Constable So, testified that Mr. Warriner told him that Mr. Kasendi
had fallen and hit his head on a rail, but in cross-examination stated he may
have heard that from Constable Sandhu. Constable Sandhu testified that he may
have heard the information either from Mr. Warriner or the Caucasian bouncer
whom he interviewed.

3)    There is no
evidence as to whether that bouncer was Mr. Mihanyar, but it is doubtful that
would be the case because Mr. Mihanyar has relatively dark skin.

The Events after Leaving the Cecil Hotel

[57]        
After refusing the paramedics’ offer to take him to the hospital, Mr.
Kasendi walked to the car in which he, Mr. Lightheart, and Mr. Warriner had
come to the hotel, and Mr. Lightheart drove back to Mr. Warriner’s apartment.

[58]        
They may have stopped on the way so that Mr. Warriner could purchase
liquor. Although Mr. Warriner denied doing so, his Visa records do establish a
purchase of liquor made by him that day but the time of that purchase is unknown.

[59]        
After they arrived at Mr. Warriner’s apartment, Mr. Warriner and
Mr. Kasendi each had at least one more double cocktail poured by Mr. Warriner.

[60]        
Mr. Warriner then went to bed.

[61]        
Mr. Kasendi testified that some time after they returned to the
condominium he undertook a “self-examination” to determine the extent of his
injuries. He said he determined that he had lost a number of teeth and decided
to go to the emergency ward of the Vancouver General Hospital.

[62]        
Mr. Lightheart drove Mr. Kasendi to the hospital where he was eventually
seen by emergency room nurses as well as by an attending physician, Dr. Prusell,
who interviewed and examined him.

[63]        
Dr. Prusell also ordered a CT Scan of Mr. Kasendi’s head.

[64]        
Concerning that hospital visit, the nurses’ notes, other hospital
records including the CT Scan, Dr. Prusell’s notes, as well as Dr. Prusell’s testimony
at trial, establish that:

1)    Mr. Kasendi
initially complained of a sore wrist and hematoma to his head.

2)    He later
reported to nurses that he had been “laid out for 20 minutes” and had lost four
molars due to the confrontation, but denied jaw pain.

3)    He advised Dr.
Prusell that he did not know if he had been “punched, kicked, or hit with an
object.” He also stated that he thought he had been knocked unconscious for
five or six minutes.

4)    Dr. Prusell noted
that Mr. Kasendi did not have a “clear amnestic period although he was
certainly vague to the events around the episode.”

5)    Mr. Kasendi did
not complain of numbness or weakness and reported no drowsiness or vomiting. He
also told Dr. Prusell he had several teeth knocked out and was complaining
of pain in his jaw as well as in both legs.

6)    Dr. Prusell
considered Mr. Kasendi to be alert and oriented and observed that, among other
things, “his neck range of motion is entirely normal”, “his heart sounds normal”,
and “on neurological exam, motor, sensory and reflexes are within normal
limits.”

7)    The CT Scan did
not reveal any abnormalities other than a subgaleal hematoma.

8)    In addition to
the CT Scan, Dr. Prusell sent Mr. Kasendi for routine blood work which established
that at the time of testing at 2:40 a.m. on January 7, 2006, Mr. Kasendi
had a blood alcohol content of 204 mg. of alcohol in one hundred ml. of blood.

9)    After being seen
by Dr. Prusell, the nurses recorded that Mr. Kasendi was aware and did not complain
of headaches, but was kept overnight because of his alcohol levels.

10)  Mr. Kasendi was released the next
morning.

[65]        
Although Mr. Kasendi did not recall receiving a head injury precaution
form when he was released, I find that the hospital staff did provide him with
a form that advised him to return to the hospital if the symptoms described in
that form developed. I reach that conclusion because Dr. Prusell specifically
advised that Mr. Kasendi was to be released “with head injury precautions”
and it is standard procedure to provide a head injury precaution form to
patients who report a head injury.

Medical Attendances between January 7, 2006, and July 2006

[66]        
Mr. Kasendi testified that he became sick in the weeks following the events
of January 6, 2006, to the extent that he was bedridden with headaches and
vomiting. He testified that he became so incapacitated and his balance was so
compromised that he could not successfully complete the work on Mr. Warriner’s
condominium or any other remunerative work.

[67]        
He did not, however, return to the emergency ward of the Vancouver
General Hospital to complain of his symptoms because he thought it was then too
late to do so.

[68]        
He  further testified that although he intended to have all of his medical
issues looked at he could not, until July of 2006, find any doctor who was
willing to take him on as a patient for all of his needs and he therefore only
concentrated on the most pressing of his concerns as they arose.

April of 2006 to July of 2006

[69]        
I will refer now to Mr. Kasendi’s medical attendances over the six
months between the incident and July of 2006 at this time because of what Mr.
Kasendi reported to the physicians who saw him about the events of January 6,
2006, and the impact of those statements on the credibility and liability issues
that I must decide.

[70]        
The first record of Mr. Kasendi receiving any medical attention after
January 7, 2006, was a visit to Colwood Medical Treatment Centre in April
of 2006 at a time when he was staying with his sister in Victoria after leaving
Mr. Warriner’s apartment.

[71]        
At the Colwood clinic he reported having been “kicked in the head” and
said he was suffering from insomnia and balance issues. His primary complaint
was, however, a dental abscess for which he was given medication. Concerning
possible “post concussion syndrome,” the clinical record indicates he was to
“follow up with family MD.” There is also a notation that Mr. Kasendi was
“counselled at length.”

[72]        
Mr. Kasendi next visited Dr. Gayle Klammer in Kelowna in May of 2006 while
staying there with friends and when he needed a doctor’s assessment of his work
capacity before he could receive social assistance without looking for work. Mr. Kasendi
complained to Dr. Klammer about the after-effects of having been “beaten by two
men” in January of 2006. Mr. Kasendi also told Dr. Klammer that the “case is
currently before a lawyer” for a “lawsuit against the hotel where the assault
occurred.”

[73]        
Dr. Klammer provided Mr. Kasendi with a certificate stating that he required
“further investigation of his head injury before a determination of his ability
to work can be made,” and also referred him to Dr. Ruthnum, an ophthalmologist,
for vision issues of which Mr. Kasendi was then complaining.

[74]        
Mr. Kasendi saw Dr. Ruthnum on May 29, 2006, and reported that he had
been “kicked in the left side of the skull.” Dr. Ruthnum wanted to review an “MRI”
which Mr. Kasendi said had been taken in Vancouver “to get a better idea of his
head injury” but there is no record of any follow-up visits or diagnosis.

[75]        
In July of 2006 Mr. Kasendi was referred to Dr. Steven Broughton, who
was then a clinician at the Vancouver Health Authority’s Ravensong Community
Health Centre. Thereafter, Dr. Broughton and those clinicians who cared for Mr.
Kasendi after Dr. Broughton left Ravensong, undertook supervision of Mr.
Kasendi’s medical conditions and complaints.

[76]        
Concerning the events of January 6, 2006, Mr. Kasendi reported to Dr. Broughton
in July of 2006 that he had been “assaulted by Cecil Hotel staff banging his head
on the door.” He also reported that he “can’t remember after that but woke with
severe bruises on his face and head with a large hematoma on his forehead.”

Discussion and Analysis: Liability

[77]        
The two liability issues in this case are whether the defendants
lawfully ejected Mr. Kasendi from the Cecil Hotel lounge on January 6, 2006,
and if so, did Mr. Mihanyar breach a duty of care owed to Mr. Kasendi in
the manner of that ejection.

[78]        
The question of whether the defendants lawfully ejected Mr. Kasendi must
be answered by reference to s. 46 of the Liquor Control and Licensing
Act, R.S.B.C. 1996, c. 267 [Act], the applicable provisions of which
provide:

Request to leave licensed establishment

46(1)    A licensee or the licensee’s employee may

(a)        request a person to leave, or

(b)        forbid a person to enter

a licensed establishment if for any reason he or she
believes the presence of that person in the licensed establishment is
undesirable or that person is intoxicated.

(3)        A person must not

(a)        remain in a licensed
establishment after he or she is requested to leave by the licensee or the
licensee’s employee

[79]        
If Mr. Mihanyar did not ask Mr. Kasendi to leave the premises and if Mr. Kasendi
did not refuse to leave before being ejected, the defendants cannot rely on the
provisions of the Act to sanction the removal of Mr. Kasendi.

[80]        
If Mr. Mihanyar did ask Mr. Kasendi to leave and Mr. Kasendi did refuse,
the issue then becomes whether in all of the circumstances the defendants
breached their duty of care owed to Mr. Kasendi in the manner of that ejection.

[81]        
 As I will later discuss, the respective burdens of proof upon Mr.
Kasendi and the defendants at the varying stages of his removal from the
premises depend upon the circumstances extant at any given time and more
specifically: inside the lounge; at the exit door; and, on the landing outside
the lounge.

[82]        
Before turning to the determination of those issues of liability, I must
first discuss the serious issues of credibility that arise in this case that
inform the determination of the liability issues.

Credibility

[83]        
The credibility of Mr. Kasendi and Mr. Mihanyar and my determination of
the extent that I can safely rely upon the evidence of either is obviously of foremost
concern to the liability issues that must be decided.

[84]        
Videotape evidence assists to some extent in assessing their evidence
concerning what happened inside the lounge, as does the evidence of other less-interested
witnesses. The events outside the lounge on the landing were, however, not seen
by anyone other than the protagonists and were not video-recorded.

[85]        
Mr. Mihanyar was obviously an interested witness to the extent that he is
a party. He was, however, not involved as a named party until very recently since
this litigation was commenced against him as a “John Doe.” Mr. Mihanyar is also
no longer an employee of the Cecil Hotel or otherwise engaged in the lounge
security business.

[86]        
There are some inconsistencies between statements that Mr. Mihanyar made
in his initial report of the event to his employer as compared to his evidence
at an examination for discovery many years later, as well as at trial.

[87]        
I agree with Mr. Henshall’s submissions on behalf of Mr. Kasendi that
some of those inconsistencies tend to the conclusion that Mr. Mihanyar was
seeking to portray Mr. Kasendi at trial as being more aggressive that evening
than his evidence at discovery and also that his evidence at trial was far more
detailed than his statement to his employer or his discovery evidence.

[88]        
Those inconsistencies and the provision at trial of new details
advantageous to his position are obviously of concern.

[89]        
On the other hand, Mr. Mihanyar was a calm witness who responded fully
to questions by counsel both in direct and in cross-examination. His evidence
was not greatly contradicted by either Mr. Warriner or Mr. Lightheart in
material respects and was also not contrary to the videotape evidence.

[90]        
Most particularly, his evidence about the method he used to remove Mr. Kasendi
from the premises as not being a debilitating “choke hold” as described by Mr.
Kasendi is supported by the videotape evidence. It is also supported by the
evidence of Mr. James Hogenson, the Cecil Hotel’s manager, as well as by Mr. Bill
Bajai, another doorman. Mr Bajai observed the hold that Mr. Mihanyar used
to eject Mr. Kasendi that night. He described the hold as a “shoulder lock”
which both he and Mr. Hogenson testified is a hold that is generally used to
remove unwilling patrons.

[91]        
It is also noteworthy that Mr. Hogenson, Mr. Bajai, and Mr. Austin (the
bartender with whom Mr. Warriner had the conflict in October of 2005) had never
observed Mr. Mihanyar lose his temper in dealing with clients.

[92]        
They described him as being even-handed, laid back, and professional in
his dealings with unruly patrons. Those observations were not challenged in
cross-examination and offer some insight into Mr. Mihanyar’s character against
which to assess the allegations made against him by Mr. Kasendi as they relate
to the likelihood of his alleged loss of temper and aggressiveness.

[93]        
The extent to which I can rely upon Mr. Kasendi’s evidence is a far more
difficult question.

[94]        
Mr. Kasendi presented as a polite and likeable witness who believed in
the truth of what he was saying.

[95]        
Mr. Kasendi has also obviously suffered since the events of January 6,
2006, from which he has not recovered and which has resulted in him now being
heavily (and perhaps over-) medicated for the various conditions he has
described to his doctors. He also now has genuine mobility as well as emotional
issues, all of which he attributes to the effects of a brain injury that he is
convinced he suffered on January 6, 2006.

[96]        
Mr. Kasendi was, however, at all times, an advocate for his cause and
sought to deflect questioning that probed too deeply into obvious discrepancies
in his testimony from discovery or his statements to various doctors that conflict
with and do not support his present testimony and conclusions about what
occurred on January 6, 2006.

[97]        
Most importantly, his account at trial about being unconscious before
leaving the lounge after “his feet were dropped” by Mr. Hawes, because Mr.
Mihanyar had him in a choke hold inside the lounge, is fundamental to his
present assertions about his lack of recall of events. It is, however, for the
most part irreconcilable with the many previous versions of the events he has
given to his doctors, some of which I have alluded to above.

[98]        
I say “for the most part irreconcilable with the many previous versions
of the events he has given to his doctors” because it may be possible that what
he told his doctors was adopted by him as his own memory from that which was
told to him by Mr. Warriner and Mr. Lightheart. That possibility, however, not
only gives rise to concerns about the contamination of his memory but also does
not fully explain how the various and differing versions of the events that
allegedly caused his injuries that he has given over time could be so
substantially different.

[99]        
More specifically, I note that while there may have been some
speculation that his head hit the door as he was being removed from the
premises, Mr. Lightheart admitted at trial that he did not see that occur.
There is also no evidence that anyone ever kicked Mr. Kasendi in the left side
of his skull, or at all.

[100]     I also
cannot ignore the extent to which Mr. Kasendi’s consumption of alcohol on
January 6, 2006, may have impaired his ability to accurately recall what
occurred.

[101]     In
addition, I find that either intentionally or otherwise, Mr. Kasendi has been
in the past, and was in his testimony at trial, prone to: exaggeration to
maximize both his present medical complaints as well as his past
accomplishments; the blaming of others for his own actions; and, at times
resorting to the telling of half-truths or falsehoods to achieve his purposes.

[102]     More
specifically, I refer to an episode of an assault in 1997 on Granville Street
in Vancouver about which Mr. Kasendi told some of his doctors. Mr. Kasendi
reported to those doctors that he had been beaten and rendered unconscious
until he woke up in the hospital.

[103]     Mr.
Kasendi also testified at trial about that assault. He said that he was beaten
up by two men when he became involved in a dispute between them and over their
aggression towards Mr. Warriner when his assailants were asking Mr. Warriner
to take them somewhere in the vehicle in which Mr. Warriner was seated.

[104]     The police
report of that incident records that Mr. Kasendi was very intoxicated and
obnoxious at the time of the fight, that his behaviour had escalated the
confrontation, that he suffered only a broken nose, and that while he may have
suffered a minor concussion, he was conscious and alert when transported by
ambulance to the hospital.

[105]     The
ambulance attendant’s crew report of the incident states that Mr. Kasendi was
standing when the ambulance attended the scene and reported no loss of
consciousness.

[106]     The
defendants did not, however, seek to have those reports admitted into evidence
as records kept in the ordinary course of business and did not call the authors
or any police officer or ambulance attendant who observed the events to give
evidence. The two reports are accordingly inadmissible hearsay concerning what
happened and concerning Mr. Kasendi’s condition.

[107]     Counsel for
the defendants did, however, confront Mr. Kasendi with the inconsistencies
between his testimony and reports to his doctors as compared to the two reports,
and Mr. Kasendi denied the contents of both reports for the most part.

[108]      Since Mr.
Kasendi did not adopt the contents of the reports, those contents remain
inadmissible as proof of the facts stated therein and do not establish either
that Mr. Kasendi was intoxicated or that he was not unconscious until he woke
up in the hospital.

[109]      On the
other hand, when also confronted with the issues raised by the reports, Mr.
Warriner (who witnessed the 1997 assault) testified that although he did not
believe Mr. Kasendi was obnoxious or that he escalated the fight, he did
agree that Mr. Kasendi was intoxicated.

[110]      More
important to my assessment of Mr. Kasendi’s credibility and the
reliability of his evidence at trial, however, is that Mr. Warriner testified
that although Mr. Kasendi did receive a bleeding or broken nose in the
altercation, he did not lose consciousness.

[111]     I accept
that evidence and find that Mr. Kasendi exaggerated the circumstance of an
alleged earlier loss of consciousness to his perceived advantage in his reports
to doctors and his testimony at trial.

[112]     Other
concerns with Mr. Kasendi’s propensity to exaggerate or otherwise distort the
truth to his advantage include the following:

1)    He exaggerated
to the doctors and the court the number of teeth he claimed to have lost in the
assault and failed to disclose that most if not all of the teeth that he did
claim were lost were either lost to decay before January 6, 2006, or could not
be saved because of decay. He perpetuated this exaggeration and half-truth in
all of his dealings with the practitioners who referred him for dental work and
only reluctantly acknowledged the state of decay his teeth were actually in on
January 6, 2006, when he was confronted with dental records in
cross-examination.

2)    Although Mr.
Kasendi admitted to not filing income tax returns for taxable income, he sought
to justify that conduct on the basis that he thought he did not have sufficient
income to require filing. When shown that his claims for past and future income
loss were based upon his evidence that he had earned up to $30,000 per year in some
years in which he did not file income tax returns, he had no explanation for
his failure to file.

3)    To the extent he
based his alleged past income loss and future income loss claims on work done
for cash that some of his employers verified in part, their more independent evidence
never fully verified the income losses he claimed and analysis of the
contradictions between his claims and his employers’ evidence establishes that
all times he exaggerated his income in seeking to establish greater income
losses as a consequence of his injuries.

4)    Mr. Kasendi
criticized the ambulance attendants, Mr. Barbosa and Mr. Kroeker, for
their assessment of his condition on January 6, 2006, and specifically
questioned why they had not immediately taken him to the emergency ward of the
hospital. The totality of the independent, reliable evidence establishes that Mr.
Kasendi refused the attendants’ suggestions that he be taken to the hospital
and instead chose to go with Mr. Warriner and Mr. Lightheart, rather than seek
immediate medical treatment.

[113]     All of
those credibility concerns when considered in relation to: the relatively minor
injuries observed by medical personnel on January 6 and 7, 2006; the many and
progressively more significant complaints made by Mr. Kasendi to his doctors
months later after his research into head injury causes and symptoms; Mr.
Kasendi’s fixation on these medical and litigation issues for more than four
years which has been observed by his friends and relatives; his investment of
time and energy into this litigation; and the influence upon his testimony of
versions of events given by Mr. Warriner and Mr. Lightheart over the years,
all cause me to seriously doubt the reliability of any of Mr. Kasendi’s
testimony that is not independently verified.

[114]     With those
observations in mind, I turn now to my determination of the issue of whether
the defendants lawfully ejected Mr. Kasendi from the Cecil Hotel lounge.

Did the Defendants Lawfully Eject the Plaintiff from the Cecil Hotel
Lounge?

[115]     The
determination of this question requires an assessment of whether the actions of
the defendants, from the time that Mr. Austin pointed out that Mr. Warriner was
in the lounge until Mr. Kasendi was removed through the exit doors, were
reasonable and in compliance with the provisions of s. 46 of the Act.

[116]     That in
turn is dependent upon my findings of fact as to what occurred in that short
period of time.

[117]     The
totality of the evidence that I accept as reliable, including the videotape of
the incident, satisfies me that:

1)        
When Mr. Austin observed Mr. Warriner in the lounge that evening, he
told Mr. Mihanyar that Mr. Warriner was there. I accept Mr. Austin’s testimony
that had not seen Mr. Warriner earlier and more specifically accept his
evidence that he had not served Mr. Warriner any drinks.

2)        
Mr. Austin told Mr. Mihanyar about Mr. Warriner’s unwanted presence because
of the prior conflict episode in October of 2005 and his belief that Mr. Warriner
had been banned.

3)        
Mr. Mihanyar went to the table near the bar where only Mr. Warriner and
Mr. Lightheart were then sitting, and placed his right hand on Mr. Warriner’s
shoulder. He said, “it’s you again,” and told him that he had to finish his
drink and leave.

4)        
Mr. Lightheart asked what was going on, and Mr. Mihanyar told him to
stay out of it. Mr. Lightheart did so.

5)        
Mr. Kasendi then came to the table, stood between Mr. Lightheart’s chair
very near Mr. Mihanyar, and said, “what the fuck is going on?” Mr. Mihanyar
replied, “he [Mr. Warriner] has to leave,” and told Mr. Kasendi to stand
back.

6)        
I cannot accept Mr. Kasendi’s evidence that when he approached the table
he was non-confrontational and only said, “What’s going on here.” His reference
to Mr. Hawes and Mr. Mihanyar as “thugs” and his acknowledgment that
he said words to the effect that “these [Mr. Warriner and Mr. Lightheart] are
my brothers” belies his evidence that he was neither belligerent nor
confrontational.

7)        
Mr. Kasendi said words to the effect “if you have a problem with them
[my ‘brothers’] you have a problem with me.”

8)        
When he said that, Mr. Mihanyar again told Mr. Kasendi to stand back or
he, too, would have to leave the lounge.

9)        
Mr. Kasendi then sat down in a chair, gripped its arms, and said, “fucking
move me.”

10)      Mr.
Mihanyar then moved behind Mr. Kasendi’s chair, placed his right arm under Mr.
Kasendi’s right armpit and his left arm across Mr. Kasendi’s upper chest
at the base of his neck, and grasped his own right hand while leaning and
moving backwards to remove Mr. Kasendi from the chair.

11)      When
Mr. Mihanyar moved to control Mr. Kasendi, Mr. Hawes took hold of Mr. Kasendi’s
legs and feet, and together they began to carry him towards the nearest exit.

12)      I must
reject Mr. Kasendi’s evidence that Mr. Mihanyar used a “choke-hold” in removing
him. That evidence is contradicted by the videotape evidence and is also
entirely inconsistent with his examination for discovery evidence in which he
described that he had been put in a “head-lock” or “full Nelson” with Mr.
Mihanyar’s arms under his shoulders and behind his neck.

13)      When
told by Mr. Mihanyar to do so, Mr. Hawes dropped Mr. Kasendi’s legs after
having helped to carry him a short distance. Mr. Hawes then turned his
attention on Mr. Warriner to prevent Mr. Warriner from interfering in the
removal of Mr. Kasendi.

14)      Mr.
Mihanyar dragged Mr. Kasendi backwards to the double exit door as Mr. Kasendi
continued to struggle. The double exit door was closed, and Mr. Mihanyar opened
the left side by using his hip on the bar while still moving backwards with Mr.
Kasendi still struggling. He then moved Mr. Kasendi, who was still
conscious and struggling, backwards through the door, and dropped him on the
outside landing at exit door level.

15)      I cannot
accept Mr Kasendi’s evidence that he lost consciousness when Mr. Hawes
“dropped his feet.” The videotape evidence shows that Mr. Kasendi was
holding his white hat in his hand in different positions well after his feet
were dropped, indicating consciousness. In reaching that conclusion I refer
also to various accounts he gave on discovery and to his doctors about what happened
during the ejection process that he could not have recalled if he had been
unconscious.

16)      I must
also reject as speculative Mr. Kasendi’s evidence that in exiting the lounge he
hit his head on the exit door, as well as his assertion to a victim’s surcharge
adjudicator that his head was “used as a battering ram.”

17)      I
also cannot accept Mr. Warriner’s evidence to that effect because it is refuted
by Mr. Lightheart’s testimony that he heard the bar of the door hit when it opened.
I find Mr. Lightheart’s testimony more reliable and in accord with the positioning
of Mr. Mihanyar shown on the videotape as he approached the door while dragging
Mr. Kasendi with him.

[118]     I find
that in all of those circumstances the defendants were entitled to require Mr.
Kasendi to leave the premises and that he refused to do so. I find that the
actions of Mr. Mihanyar and Mr. Hawes in effecting that removal were not
unreasonable, and that in the circumstances they used no more force than was
necessary.

[119]     The next
question to be determined is whether Mr. Mihanyar breached any duty of care
owed to Mr. Kasendi in the manner by which they ejected him from the premises.

Did the Defendants Breach any Duty of Care Owed to the Plaintiff in the Manner
of the Ejection from the Cecil Hotel?

[120]     Given my
finding that the defendants were entitled to require Mr. Kasendi to leave the
premises and that he refused to do so, as well as my finding that the actions
of Mr. Mihanyar and Mr. Hawes in effecting that removal up to the point of his
removal through the exit doors were not unreasonable, the determination of this
issue is limited to an inquiry into the manner of the ejection as it relates to
the period after Mr. Mihanyar removed Mr. Kasendi through the exit doors.

[121]     As I have
previously noted, Mr. Mihanyar testified that Mr. Kasendi was fully conscious
when he removed him from the lounge and that he did not strike Mr. Kasendi
until Mr. Kasendi punched him in the back of the head on the landing when Mr.
Mihanyar was returning to the lounge. He testified that he then punched Mr.
Kasendi one time in the face in self-defence and that the punch caused Mr. Kasendi
to hit the ground. He did not know whether Mr. Kasendi’s head came in contact
with a guard rail.

[122]     The
parties agree that in determining whether Mr. Mihanyar unlawfully assaulted and
battered Mr. Kasendi, the initial burden is on Mr. Kasendi to prove that the
alleged assault and battery occurred and that he suffered an injury by reason
of it. If he meets that burden, the onus is then upon Mr. Mihanyar to establish
that the assault was justified and that he did not use unreasonable force. See:
Mann v. Balaban, [1970] 1 S.C.R. 74 at 87.

[123]     Mr.
Kasendi has met the initial burden of establishing that Mr. Mihanyar assaulted
him and that some injury occurred. Mr. Mihanyar admitted hitting Mr. Kasendi
in the face with a punch, and there is medical evidence that establishes that
Mr. Kasendi suffered bruising to his face.

[124]     In
determining whether Mr. Mihanyar has met the onus of establishing that his
striking of Mr. Kasendi was justified, his evidence must be weighed and
considered against evidence other than the testimony of Mr. Kasendi, since Mr.
Kasendi insisted that he had no recollection of what occurred until he awoke
after CPR was administered because he was unconscious after Mr. Hawes
dropped his feet.

[125]     No witness
other than Mr. Mihanyar testified about what happened between him and Mr.
Kasendi after they left the hotel premises. Mr. Warriner and Mr. Lightheart
each testified that before they left through the exit doors, Mr. Kasendi was
already lying on the ground. The evidence of both, as well as the videotape
evidence, satisfied me that very little time – perhaps seconds – elapsed before
they were outside with Mr. Kasendi on the ground.

[126]     Mr.
Henshall submitted on behalf of Mr. Kasendi that I should not accept Mr. Mihanyar’s
evidence of self-defence because of inconsistencies between an incident report
filed with his employers in the days after the incident when compared to his
evidence on discovery and at trial.

[127]    
Specifically, Mr. Kasendi relies on the fact that in the incident report
Mr. Mihanyar stated:

As I walked #2 person [Mr.
Kasendi] out, I went to let him go, he turned around and punched me on the left
side of my head. That’s when I swung one punch and he fell to the ground

[128]      However,
on examination for discovery and at trial, Mr. Mihanyar testified that Mr.
Kasendi was off balance as he released him, and fell to the ground, and that
when he looked back to find Mr. Warriner, Mr. Kasendi got up off the ground and
punched him in the back (not the left side) of the head, and was about to punch
him again, so Mr. Mihanyar punched him in the head or mouth, knocking him to
the ground.

[129]     Mr.
Kasendi submits that those inconsistencies should lead me to conclude that
there was no punch and that Mr. Mihanyar acted unreasonably in the manner of
the ejection by throwing Mr. Kasendi onto the ground or into a guard rail.

[130]     I am not
prepared to find that Mr. Mihanyar was not telling the truth about being
punched by Mr. Kasendi after he was removed from the hotel onto the landing. The
inconsistencies identified by Mr. Henshall are relatively minor when considered
in the context of the length of time between the making of the incident report
and the giving of evidence at examination for discovery and later at trial. On
the central issue of whether Mr. Kasendi attacked Mr. Mihanyar, the versions of
events are consistent.

[131]    
In reaching that conclusion I have also considered the audio recording
of the 911 call by Mr. Warriner to the ambulance dispatch office. Of
particular relevance to this issue is the following exchange between the caller
(Mr. Warriner) and the dispatcher:

DISPATCH:  What’s happening?

CALLER:  I don’t know. The bouncer is beating this guy up.

DISPATCH: Do you know this fellow?

CALLER: Do I know him? I’m standing beside him right now.

DISPATCH:  Okay. Now is he awake and talking?

CALLER: He’s not up but he’s talking.

[132]     Although
the recording does include Mr. Warriner’s assertion that “the bouncer is
beating this guy up,” that is contradicted by Mr. Warriner’s sworn testimony
that he did not see the events on the landing, and there is no explanation for
that serious discrepancy.

[133]     I can only
assume that Mr. Warriner forgot what he had observed or chose not to disclose
it for some reason. The recording does not, however, cast doubt on Mr. Mihanyar’s
testimony because it does not address whether he was acting in response to Mr.
Kasendi having punched him.

[134]     Significantly
also, the recording also includes Mr. Warriner’s assertion that Mr. Kasendi
was talking at the time of the call, leading to the obvious conclusion that Mr.
Kasendi was not then unconscious.

[135]     That
evidence, when considered in the context of the general lack of reliability of
Mr. Kasendi’s testimony that I have addressed in detail, his assertions of no
recall of the events due to being unconscious which I have rejected, and his
belligerence that gave rise to the ejection, all lead me to conclude that Mr.
Kasendi did punch Mr. Mihanyar in the head after being removed from the
Cecil Hotel premises, and that Mr. Mihanyar then responded in self-defence.

[136]     The
question of whether Mr. Mihanyar’s response to Mr. Kasendi’s punch was
reasonable in all of the circumstances must, however, also be considered and
determined.

[137]    
In considering the defence of self-defence in Buchy v. Villars, 2008
BCSC 385, a case also involving the ejection of a patron from a drinking
establishment, Bauman J. (as he then was) made the observation at para. 112:

[112]  While
the parties cited a number of cases on the issue of self-defence, I believe an
accurate summary of the law is contained in Linda D. Rinaldi, ed., Remedies
in Tort, looseleaf (Toronto: Carswell, 1987) vol. 1 at 2-30 to 2-31
(footnotes omitted):

1. Self-Defence

§19      “The law gives every
one the right to defend himself against either a threatened or an actual attack
from another. The right of self-defence proceeds from and is limited by the
necessity to ward off the danger of such an attack. Therefore the right of
self-defence commences when the necessity for such defence begins and it
terminates when the necessity for such self-defence comes to an end. The law,
however, requires that the force used in defending oneself must not [b]e out of
proportion to the severity of the attack. An attack by fists may be answered by
fists but not with deadly weapons such as knives and guns. In exercising the
right of self-defence one must use only such force as on reasonable grounds the
person attacked believes to be necessary for his own defence. In short,
self-defence means defence, not counter-attack.”

§20      Self-defence is
usually pleaded as a defence to a battery action where the defendant has struck
the plaintiff in response to an attack or perceived attack by the plaintiff. It
is a complete defence. If the defendant reasonably perceives an attack to be
imminent, he may still be entitled to rely on self- defence although he has
struck the first blow. However, force may only be used to repel or prevent an
attack, not to punish an aggressor for past actions or as a guise for a
counter-attack.

§21      In preventing or
repelling an attack, no more than reasonable force may [b]e used. What is
reasonable depends on the facts and circumstances of the case, including the
nature and seriousness of the attack or threatened attack, the relative size
and strength of the combatants, and whether the acts complained of took place
after the threat was averted. The seriousness of the resulting injury is not
necessarily indicative of the use of unreasonable force, as even acts which
cause serious injury may be justified as self- defence: “it has long been held
that an attacked person defending himself and confronted with a provoking
situation is not held down to measure with exactitude or nicety the weight or
power of his blows.” Where a person uses more than reasonable force, he himself
may [b]e liable for battery.

[138]     Applying
those considerations relating to the prohibition against the use of any more
than reasonable force in repelling or preventing an attack, I find that in all
the circumstances Mr. Mihanyar did not use more than reasonable force in
responding to Mr. Kasendi’s punch with one return punch to Mr. Kasendi’s head.

[139]     The
situation was volatile and had required Mr. Mihanyar to use force to remove Mr. Kasendi,
who was both belligerent and intoxicated. Also, Mr. Kasendi was a large man and
only one of three potential sources of harm to Mr. Mihanyar and other hotel security
staff that night.

[140]     In
reaching all of these conclusions, I have also considered and not accepted
Mr. Kasendi’s submissions that Mr. Mihanyar failed to follow industry
standards in the handling of the problems created by Mr. Warriner and Mr.
Kasendi that night.

Conclusion

[141]     I find
that Mr. Mihanyar and other hotel security staff acted appropriately and
reasonably in their dealings with Mr. Kasendi, who was unfortunately the author
of his own misfortune in acting as he did.

[142]     Given
those findings, it is not necessary to consider Mr. Kasendi’s damages claims.

[143]     Mr.
Kasendi’s claims are accordingly dismissed against all defendants.

Costs

[144]     Unless
there are matters of which I am unaware, the defendants will have one set of
costs against Mr. Kasendi based on Scale B.

“Davies
J.”