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FOR TORTS - Affecting the person - Assault

Monday, April 08, 2019 @ 10:51 AM  

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Action by Fong for damages for assault and battery, false arrest, and false imprisonment. In March 2006, Fong was the manager of the Oasis Hotel, located in Surrey, B.C. The primary feature of the Oasis Hotel was its large bar. The police viewed the Oasis Hotel as a problem establishment. The bar patrons were generally hostile to the police, as were members of the staff. In the early hours of March 11, 2006, police officers attended the premises. According to Fong, an officer asked to see the liquor licence and then used a racial slur. Fong claimed that he was then beaten by the police. The police stated that Fong came out of the bar, yelling profanities and behaving in an agitated manner. When the police tried to arrest Fong for obstruction, he resisted arrest. The defendant took the position that as a result of Fong’s refusal to produce the liquor licence and his failure to provide the necessary information to complete a ticket, the police believed Fong had committed the offence of obstruction and therefore had proper grounds to arrest him. The defendant further submitted that the police used the force necessary in the circumstances, given that Fong actively resisted arrest. Fong took the position that there was no basis for the police to demand that he produce the bar’s liquor licence and no basis for them to allege that his refusal to produce it constituted an obstruction of the police. He submitted that his arrest was unlawful, and the force used by the police constituted assault and battery. Fong further submitted that he now had chronic pain, major depressive disorder and post-traumatic stress disorder because of the interaction with the police. He was seeking $1,315,359 in damages, which included $200,000 in non-pecuniary damages, $475,010 for past income loss and $20,000 in Charter damages.

HELD: Action allowed in part. The court did not accept that the police officers used a racial slur but did accept that Fong was in an agitated state when he exited the bar. However, the arresting officer did not have an objective basis for believing Fong had a duty to produce the liquor licence to the police. Moreover, there were no proper steps taken to ascertain whether the licence was displayed. There was no duty on Fong to identify himself. There were no objective grounds for believing Fong was obstructing the police in their lawful duties. Fong’s arrest was unlawful. The defendant was liable for the assault and battery of Fong and for his brief unlawful imprisonment. Problems with Fong’s credibility affected the assessment of damages. The court was satisfied that he suffered injuries to his shoulders, neck, back and arms as a result of the hard takedown by the police. He also suffered from a major depressive disorder and chronic pain syndrome. He did not have post-traumatic stress disorder. Fong had several significant stressors in his life, and the court was not satisfied that the police takedown was the event that caused Fong to develop major depressive disorder and chronic pain syndrome. Fong was awarded $65,000, comprised of $35,000 in non-pecuniary damages, $5,000 for past loss of income, $15,000 for past loss of earning capacity, $8,000 for future loss of earning capacity and $2,000 in Charter damages. Fong was also entitled to recover special damages.

Fong v. British Columbia (Minister of Justice), [2019] B.C.J. No. 306, British Columbia Supreme Court, M.B. Blok J., March 1, 2019. Digest No. TLD-April82019001