Barnes v Wilson, 2021 ABQB 806

Court of Queen’s Bench of Alberta Citation: Barnes v Wilson, 2021 ABQB 806 Date: 20211008 Docket: 1803 20461 Registry: Edmonton Between: Bradley Manfred Barnes Plaintiff/Respondent - and - Derek Richard Wilson Defendant/Applicant _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] The defendant seeks

summary dismissal of the plaintiff’s claim for damages caused by an alleged assault outside a nightclub in downtown Edmonton. [ 2 ] I find that

summary dismissal is not warranted here.

B. Background [ 3 ] The backdrop is the series of events described by various witnesses in a preliminary inquiry before Cochard PCJ in January 2018 into the alleged assault of Mr. Barnes by Mr. Wilson. [ 4 ] In a nutshell, various groups of friends and acquaintances ended up at the Central Social Hall on the evening of November 15, 2016. [ 5 ] One group consisted of witnesses MZ and SG. Two of their friends who were there, EB and NA, arrived separately -- EB on her own, NA with other people. [ 6 ] According to MZ and SG, NA arrived in a white truck with those other people, with NA at the wheel.

One of her passengers was a male I will call “X.” [ 7 ] Another group of friends at the club was MA and a female friend, plus the plaintiff (BB), a friend of MA’s who came to the club later in the evening. [ 8 ] Throughout the evening at the club, NA moved between her group of friends, on the one hand, and X and his friends. [ 9 ] Per MZ and SG, at some point in the evening, NA and X were arguing, apparently about NA having X’s keys and wallet. [ 10 ] MZ and SG became alarmed at the escalating tenor of that argument and decided to leave the club. [ 11 ] As they were leaving, they encountered BB, who knew SG through a common acquaintance. [ 12 ] Around this time, NA and X ended up outside the club, still arguing as they walked into the parking lot just south of the club. [ 13 ] SG was concerned about NA’s safety and started to walk along with or towards NA and X.

BB, in turn, was concerned about X’s apparent aggressiveness (angry words, cursing) towards NA and also walked along with this moving cohort. [ 14 ] X ended up standing next to a white truck. BB walked up to X and called him out on his apparent aggression towards NA. Per BB, X’s reaction was to turn and strike him forcefully in the head (left ear), with an open hand. [ 15 ] Per BB, he asked X why he hit him, and X responded (effectively) “because she took my keys.” [ 16 ] Aiming in part to obtain identifying information about X, BB asked him if the truck they were standing next to was his.

X answered yes. [ 17 ] Shortly after this, another man (

Y) stepped in and, without warning or provocation, punched BB squarely in the face, crumpling him to the ground. [ 18 ] BB struggled to his feet and, almost immediately, caught the attention of a group of police officers not far away, who arrived on scene and began assisting BB. [ 19 ] By this point, X and Y had disappeared from view. [ 20 ] BB reported to one officer that the assault had happened right beside the white truck noted earlier and that X had acknowledged ownership of it to him. [ 21 ] The police determined that the truck was registered to Wilson (W). [ 22 ] W was eventually charged with aggravated assault of BB. [ 23 ] At the conclusion of the preliminary inquiry, Cochard PCJ ruled that the Crown had laid out a sufficient case for the matter to proceed to trial.

However, the Crown later withdrew charges against W. [ 24 ] BB commenced the present damages action against W in fall 2018. C. Test for

summary dismissal [ 25 ] Both parties invoked Weir-Jones Technical Services Inc v Purolator Courier Ltd , 2019 ABCA 49 , where Slatter JA outlined these key principles: The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial ?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application

will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial . [para 47] [emphasis added] D. Analysis [ 26 ] The defendant’s argument is that, even accepting all of the plaintiff’s evidence as laid out at the preliminary inquiry, the plaintiff has not proved, and cannot prove, identity i.e. that Wilson was X in the above synopsis. [ 27 ] Per the defendant, the possible inference that Wilson was X is outweighed or at least neutralized by another possible inference, namely, that an unknown person ended up standing beside Wilson’s truck, assaulted BB (for whatever reason or cause), told BB that someone had taken his (the unknown person’

s) keys and (falsely) that he owned the white truck, and then accepted BB’s offer to try to retrieve the keys for him. [ 28 ] Here are the critical pieces of evidence on identification: • MZ’s evidence of being outside the club “for a breather” and seeing NA driving and then parking a “very big truck”; • MZ’s evidence of X arguing with NA and later starting to swear at her, coupled with SG’s evidence of a man arguing with NA and yelling “bitch” and “cunt”; • MZ’s evidence that BB tried to calm X down, confirmed by SG’s evidence to the same effect and of seeing “BB “holding [X] off”; • MZ’s evidence of seeing X “beating up [B] … [by] throwing punches” in the parking lot (albeit for “about a couple of minutes … maybe even a minute”); • SG’s evidence of turning away from seeing BB “hold [X] off”, shortly afterwards hearing a “cracking” or “slapping” sound, and then turning back shortly after to see “Brad holding his face and kind of like – like he was in pain” and holding the side of his head (albeit not actually seeing X or anyone strike BB); • SG’s selection of Wilson from a police photo line-up as the person looking like the person who had been arguing with NA, including cursing at her in the parking lot; • BB’s detailed description of X’s truck as (in part) “… with probably a little bit of a lift kit and oversized tires” and “a taller, bigger truck than what you would normally buy at a dealership”, making it extremely unlikely he was mistaken in pointing out to the police, just minutes after the assault, the truck he had been close to when attacked, coupled with his evidence that there were no “even remotely” similar trucks anywhere close by; • BB’s evidence that, after hearing X say that the girl he (

X) had been chasing (i.e. “[SG’s] friend” i.e. NA) had his keys, he (BB) told him that he knew “those girls” and offered to check with them to see if he could get X’s keys back, and that X told him he would like him to do that; • evidence of X’s “tall” height: per MZ – “definitely 6 foot [tall] or more … definitely taller than 5’11”, … taller [than “Sam’s friend” i.e.

BB] by a head”; per SG -- X being “taller than 5’11” and “around 6 feet”; and per an attending police officer -- BB’s description of X to him (in part, about 6 foot, 4 inches tall and about 36 years old) corresponding to Motor Vehicle Registry information for Wilson, matching “height and … approximate age”; • evidence of X’s build: per MZ – “definitely looks like he works out … he’s athletic … more of a body builder [than “skinny marathon runner”]; and per BB – “looked like he went to the gym … had a pretty good build and physique”; • as for BB’s photo-lineup identification of another individual as one of the parking-lot attackers, when the lineup included Wilson’s (not selected) picture, BB’s preliminary-inquiry evidence that he was working from “facial features”, height and general build, that the lighting was subpar, and that he was not entirely positive about his identification of the selected individual; and • the selected individual and Wilson, per the line-up photos, share some basic features: short hair on top; closely-cut hair on the sides; no facial hair; somewhat squarish head; flat cheeks; and thick neck. [ 29 ] We have a “chain of evidence” here, starting with MZ’s evidence of NA arriving with a particular man (who later became the “arguing man”), linked with SG’s “NA and arguing man” evidence, followed by BB’s evidence of meeting SG and, in turn, coming into contact with their friend (NA) and the same arguing man and also of the “BB and arguing-man” encounter, coupled with that man’s truck-ownership acknowledgement, and finally the evidence confirming Wilson’s ownership of the truck.

[ 30 ] Taking the plaintiff’s evidence at face value, and putting two and two together, Wilson is X i.e. the man who assaulted Barnes. [ 31 ] The defendant’s core theory – that another man ended up arguing with NA about keys, following her out into the parking lot, stopping close to the truck in question, striking Barnes for some reason, falsely claiming the truck as his, and then accepting Barnes’ offer to try to retrieve the keys – does not make sense. [ 32 ] His emphasis on “X” not accessing the truck in question in the critical sequence (as potential confirmation of his ownership) is neutralized by “X” apparently not having his keys. [ 33 ] Finally, his theory that a non-Wilson X might have been trying to show off to BB i.e. by claiming ownership of this “nicer”, “newer”, and “more expensive” truck (compared to other trucks in the parking lot) makes no sense: why would X (whoever he was) feel any impulse to try to impress someone he had just assaulted?

Plus, that theory does not square with BB’s evidence of X accepting BB’s offer to try to retrieve the keys for him. [ 34 ] As for the defendant’s own evidence, he tendered transcripts of his interview by police and his examination by the plaintiff’s counsel. [ 35 ] Those transcripts do not bolster the defendant’s case, instead potentially raising questions about his credibility i.e. about his denial of being X. [ 36 ] His different accounts of how he travelled to the nightclub and with whom, of his alcohol consumption that evening, and who he knew at the club that evening may be potential bases for challenging that denial.

E. Conclusion [ 37 ] Far from being a candidate for

summary dismissal, the plaintiff’s action, to the extent it turns on identification, and based on the record provided on the application, is actually strong. [ 38 ] Any potential deficiencies in the plaintiff’s identification evidence -- e.g. arising from MZ’s evidence of a one- or two-minute beating administered by a single assailant; SG’s “auditory only” evidence of the actual strike; or BB’s photo line-up identification of another person as X -- require a trial to explore. [ 39 ] Same for exploration of Wilson’s credibility i.e. of his evidence denying his role as X here. [ 40 ] In Weir-Jones terms, the defendant has not succeeded in showing that this action – viewed through the prism of “identification or not” – has no merit. [ 41 ] Expressly differently, identification (at minimum) is a genuine issue requiring a trial to resolve.

F. Costs [ 42 ] The plaintiff is entitled to costs of the application. Heard via Webex on the 24 th day of September, 2021. Dated at the City of Edmonton, Alberta this 8 th day of October, 2021. M. J. Lema J.C.Q.B.A. Appearances: James Raworth Northcott Edgerton for the Plaintiff/Respondent

Heather Jordan Jenkins & Jenkins for the Defendant/Applicant