2020 BCPC 142, 2020 BCPC 142

Citation: Gonzalez v. Dollar Tree Stores Canada, Inc. 2020 BCPC 142 Date: 20200318 File No: 1860569 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ROBERTO ORELLANA GONZALEZ CLAIMANT AND: DOLLAR TREE STORES CANADA, INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. BAKAN Appearing on his own behalf: R. Gonzalez Counsel for the Defendant: B. Black Place of Hearing: Vancouver , B.C. Dates of Hearing: September 24, 25, and November 13, 2019

Date of Judgment: March 18, 2020 INTRODUCTION [ 1 ] On the evening of March 9, 2016, the claimant, Roberto Gonzalez, attended a Dollar Tree Store located at 2606 Commercial Drive, in the City of Vancouver, Province of British Columbia. [ 2 ] Mr. Gonzalez is in his mid-sixties. He was a teacher in the country he was born in. English is his second language. He immigrated to Canada a number of years ago and worked as a roofer until he was injured in a work accident.

He has been unemployed since this time and has received disability benefits for a number of years. [ 3 ] The store was owned and operated by the defendant, Dollar Tree Stores Canada, Inc. (“Dollar Store”). In 2016, there were just under 200 Dollar Stores in Canada. [ 4 ] Mr. Gonzalez was hit in the face by a rubber ball while paying for items at a cash register. The ball was an item for sale at the Dollar Store. [ 5 ] Mr. Gonzalez submits the rubber ball was thrown by an employee of the defendant and hit the right side of his face, causing him injury.

He asserts the defendant is vicariously liable for the negligence or recklessness of the employee he alleges threw the ball that hit him. He submits the defendant did not act in good faith following this accident. He seeks $35,000 in damages, disbursements and pre- judgment interest. [ 6 ] The defendant denies liability to Mr. Gonzalez. It submits the claimant has failed to establish on a balance of probabilities, that an employee threw the ball or that it was negligent or in breach of any duty of care to Mr. Gonzalez.

It further submitted that the premises were reasonably safe for customers, that it did not create a danger or unreasonable risk of harm to the claimant. It denies acting in bad faith towards Mr. Gonzalez. It seeks dismissal of the action. In the alternative, it submits Mr. Gonzalez’s damages are nominal and that he has failed to mitigate same.

ISSUES [ 7 ] Whether or not the defendant breached its duty of care to the claimant under the Occupiers’ Liability Act ; [ 8 ] Whether or not the conduct of the parties impacts this analysis; [ 9 ] If the defendant was in breach of its duty of care to the claimant, whether the breach caused injury and damage to the claimant as alleged; and [ 10 ] If so, what injury and damage did the claimant suffer and what is the appropriate award? THE LAW [ 11 ] My determination will be made pursuant to the Occupiers’ Liability Act , RSBC 1996, c. 337 (“ OLA ”).

The defendant admits it is an occupier under this Act but submits it has met its duties as an occupier in this case. [ 12 ] An occupiers’ duty of care is defined in s. 3 of the OLA which states:

(1) An occupier of premises owes a duty to take that care that in all the circumstances or the case is reasonable to see that a person … on the premises … will be reasonable safe in using the premises.

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

a) condition of the premises, (

b) activities on the premises, or (

c) conduct of third parties on the premises. [ 13 ] As an occupier, Dollar Store owes a duty of care to customers on its premises. For liability to be imposed on, the claimant must establish on a balance of probabilities, that he suffered damages caused by the defendant’s breach of duty. [ 14 ] The duty or standard of care owed to one on an occupier’s premises is one of reasonableness not perfection.

The fact a person is injured on premises of which a defendant is an occupier, does not in itself create a presumption that the occupiers is in breach of its duty of care under the OLA . [ 15 ] For liability to follow a claimant’s injury, the claimant must establish, on a balance of probabilities, not only that the occupier breached its duty of care to the claimant, but that the breach caused the injury and damages claimed. PRE-TRIAL MATTERS [ 16 ] The claimant filed a Certificate of Readiness on April 3, 2018.

Attached with clinical notes regarding him from Care Point Medical Centre from March 11, 2016 to March 9, 2017. A Specialist Referral with fax notes from both July 22, 2016 and May 19, 2017, to Dr. MacIntosh, Ophthalmologist, correspondence from him dated June 5, 2017, and a July 7, 2017 report from Dr. D. Rossman, Ophthalmic Plastic Surgeon, to Dr. MacIntosh.

[ 17 ] At the mandatory settlement conference held August 22, 2018, an order was made requiring the parties to exchange a copy of all relevant documents within 60 days of that date. The parties were required to provide each other with the name, address, telephone number and a

summary of evidence of all witnesses each party intended to call at trial, including expert witnesses. [ 18 ] On December 6, 2018, a Notice of Trial was filed with the trial being set to commence on September 19, 2019. [ 19 ] By letter dated July 25, 2019, the claimant sent a letter to former defence counsel serving a copy of this list of documents. In this, letter he states he previously provided this list to defence counsel on August 22, 2018. The document list listed the medical records referenced above and the letter from the person he said witnessed the accident. [ 20 ] The new defence counsel wrote to Mr.

Gonzalez on August 6, 2019, further to the letter and a telephone call with Mr. Gonzalez on August 6, 2019. Defence counsel requested a witness list, ‘will say’ statements and witness contact information and documents. She advised she had assumed carriage of the file. [ 21 ] A letter of August 9, 2019, from defence counsel to the claimant referenced an in-person meeting with Mr. Gonzalez in her office on August 7, 2019. She confirmed he provided a second copy of his affidavit. Mr. Gonzalez testified it had already been provided to former defence counsel in August 2018.

She confirmed that the letter signed by Dathany Delorne (the person that the claimant states allegedly witnessed the accident) would be considered her ‘will say’ statement, the claimant’s advice he planned to call this woman as the sole witness at trial and her acknowledgement the claimant communicated that this witness had not been issued a Summons, and that he did not plan to call any witnesses at trial. [ 22 ] On September 12, 2019, Judge Galati heard the defendant’s application for an adjournment of the trial.

The basis for the application was that defence counsel anticipated receiving further medical documents from the claimant and would not have sufficient time to review them prior to trial. [ 23 ] At trial, a recording of this proceeding was listened to. Mr. Gonzalez said he was not be producing further documents. He further advised he had been unable to contact his witness and had not subpoenaed her. Judge Galati ordered that the claimant could not rely on any further documents at trial.

The adjournment application was denied. [ 24 ] The fact that the defendant had not produced a number relevant documents at this time, was not before Judge Galati. [ 25 ] The Order did not relieve either party of its obligation to produce relevant documents to the other party on an ongoing basis if relevant documents were received or found by either party. WITNESSES [ 26 ] Mr. Gonzalez was the only witness that testified on his behalf. He testified that he was unable to locate the woman that had been standing behind him in line and whose written ‘will say’ statement he provided to defence counsel.

He stated he had wanted to call her as a witness based on his understanding she saw an employee throw the ball that hit him. I did not allow him to put in the alleged written statement from this witness as she was not testifying and could not therefore be cross-examined. I would be unable to assess her reliability or credibility without her testifying in person. [ 27 ] The defendant called the Assistant Store Manager of the Dollar Store, Jack Valentine aka Valentine Lovegood, as a witness. He was the Acting Store Manager at the time in question. The Store Manager, Lusine Bagdasaryan, also testified.

She was not present at the time in question. [ 28 ] Apart from Mr. Valentine, the defendant did not call any employees working on the day or evening in question. It did submit documents entitled “Timesheet detail-Wednesday, March 9, 2016” for employees Jack Valentine, Josephine Almeda, Samantha Dawson and Erron Mader. Separate computer printouts for each of these employees were in evidence that included their names, addresses, phone numbers and dates of birth. The computer print outs have a print date of June 13, 2019. All the employees stated above had Vancouver addresses. Their employee number is also given.

Mr. Valentine testified that Ms. Almeda and Ms. Dawson no longer worked for Dollar Store and he did not know their current addresses. [ 29 ] Ms. Bagdasaryan testified she texted former employees Ms. Almeda and Ms. Dawson after this matter had been set for trial but received no response from them. There was no evidence what, if any, other steps had been taken to contact them or to secure their attendance at trial. EVIDENCE March 9, 2016 [ 30 ] It is not in dispute the claimant was buying items at cash register #2, operated by Mr. Valentine, when he was hit on the face by a rubber ball sold at Dollar Store.

He and Mr. Valentine were facing each other at the time. Mr. Valentine was at the front of the register on one side of the counter and Mr. Gonzalez was on the other side of the counter. [ 31 ] Mr. Gonzalez testified that he was in the store between 7:00 and 8:00 pm. He stated the accident occurred at approximately 7:45 pm. He said he was in line to pay for cleaning supplies at the register operated by Mr. Valentine. It was his evidence that Mr. Valentine was talking and joking with a female employee. He said she was making a purchase. He testified he heard Mr.

Valentine ask her to get him a plastic bag and she went towards the employee room. The employee room would not have been visible to Mr. Valentine as he was ringing up sales at cash register #2. [ 32 ] Mr. Valentine testified the accident occurred at approximately 6:30 pm. He produced shift sheets to indicate what shifts employees were working. From these sheets, he infers he had just relieved Ms. Dawson for her break that started at 6:31 pm. He testified Ms. Dawson signed out for her break at 6:30 pm. She had been at register #1 which is next to register #2. Mr. Valentine testified Ms.

Almeda had just completed her break and was taking merchandise to put back where it belonged. He later qualified this by saying he did not know where she was. At one point in his evidence he said recalled she was approximately 1 foot from the entrance. He said that Mr. Mader, the store greeter was by the entrance. Mr. Valentine working at electronic register #2. [ 33 ] Ms. Bagdasaryan reviewed Ms. Dawson’s time sheet. She stated it indicated Ms. Dawson was scheduled to work the 4:00 pm to 9:00 pm shift but that Ms. Dawson finished work at 8:03 pm. [ 34 ] Mr. Valentine acknowledged he was speaking to Ms.

Dawson before he entered Mr. Gonzalez’s transaction. He said he told Ms. Dawson she could go on a break. He acknowledged he was joking with her prior to the transaction with Mr. Gonzalez. [ 35 ] Mr. Gonzalez said Mr. Valentine started their transaction. He said they were facing each other, when he was hit with a red rubber ball on the right side of the face including under his right eye. [ 36 ] Mr. Gonzalez agreed that he did not see who threw the ball. He believed the thrower was the female employee identified at trial as Ms. Dawson. He testified he had seen a female store employee and Mr.

Valentine before his transaction was processed engaged in horseplay. He then was focussed on his purchase and did not see the ball thrown. His understanding that it was the person Mr. Valentine identified as Ms. Dawson, is based on what he saw before he was hit and what a female customer next to him at the time told him. He testified he heard a customer behind him say that it was an employee that threw the ball, and that it was intended to hit Mr. Valentine. He said this person gave him her phone number and address. He said she provided him with two letters but was unable to find her.

This evidence goes only to his understanding of what happened and not to the truth. [ 37 ] Mr. Gonzalez said he was stunned after he was hit with the ball. He said his face became red, hot and painful especially under the right orbital area. He testified that he immediately lost the vision in his right eye. He said he asked Mr. Valentine to take a photo of him (the claimant) with his phone. He also said Mr. Valentine took of photo of him on Mr. Valentine’s phone but did not give him a copy of it. [ 38 ] Mr. Valentine does not deny taking a photo of Mr. Gonzalez with his phone camera and/or Mr.

Valentine’s phone camera after the incident but cannot recall this. Mr. Gonzalez produced a photo of his face taken at the store which he states Mr. Valentine took on Mr. Gonzalez’s phone. [ 39 ] The claimant states Mr. Valentine was shocked the ball hit him and said something to the effect of “that shouldn’t have happened to you.” Mr. Valentine testified he was surprised but not shocked when the ball hit Mr. Gonzalez. He said the ball “came out of nowhere.” [ 40 ] Mr. Valentine testified that he asked Mr. Gonzalez if he was okay. Mr. Valentine testified that after Mr.

Gonzalez was hit with the ball, he had a “look of wonder” and “he looked startled.” He said Mr. Gonzalez did not stumble and did not look to be in distress or pain. He also said when Mr. Gonzalez left the store, he looked shocked and bewildered. [ 41 ] During his direct evidence, Mr. Valentine described that the ball came from behind him at a height of 10 feet and hit Mr. Gonzalez on the left cheek with a light force. He said when he first saw the ball, it was by his “upper right hand”, that he saw it in his peripheral vision and it was a few feet over his head. He later back-tracked on this.

On cross-examination he agreed that the ball could have hit Mr. Gonzalez’s right cheek. He stated lots of time had elapsed since this incident. He agreed that the photo taken following the accident at the store indicated his right cheek. [ 42 ] Mr. Valentine testified that 1.5 seconds after Mr. Gonzalez was hit with the ball, he turned around to see where the ball came from. He testified Ms. Dawson was on her way to the staff room. This was opposite to where Mr. Valentine was facing when the ball hit Mr. Gonzalez. [ 43 ] He testified that there were very few customers in the store at the time and it was quiet.

There was a security guard on duty. He was not called as a witness at trial. He could not recall if there were any customers behind Mr. Gonzalez. He said he spoke to Mr. Gonzalez “for a bit” after the accident as there were no other customers. [ 44 ] In his direct evidence, Mr. Valentine said Mr. Gonzalez did not know what had happened. Mr. Valentine said he apologized and at the completion of the sales transaction, said he would find out what happened, and stated that “we did.” (This was in reference to an investigation he states was conducted by the defendant following the incident). He said he told Mr.

Gonzalez that the Manager and he would review the store’s video footage. [ 45 ] The claimant testified that Mr. Valentine picked the ball off the floor. He agreed it was about the size of a white ball that defence counsel showed him but that it was not as soft. The ball defence counsel showed to him at trial was approximately the size of a hardball. [ 46 ] Mr. Valentine testified that the ball that hit Mr. Valentine was not sold in a package. The ball defence counsel produced at trial was in a mesh packaging. At some unknown time after this incident, the balls sold were in mesh packaging.

To his knowledge, no customer had ever been hit with a ball in the store prior to this incident. He said perhaps kids just used them in the aisles. [ 47 ] Mr. Valentine kept the ball in question following the incident. He said he kept it as you “never know when something might come up.” He said he kept it with “random stuff” and does not know what happened to it. He said he could have lost it when he moved. In his direct evidence, he said that he kept it for a time in case it was needed, but after three years, it got lost. [ 48 ] Mr. Valentine’s testimony was clear that the ball came from behind and above him.

He described it as coming over his shoulder at a 45 degree angle and when he first saw it, it was by his upper right hand. He testified he was looking at Mr. Gonzalez rather than behind him or around the store, when Mr. Gonzalez was hit. [ 49 ] He denied knowing who threw the ball that hit Mr. Gonzalez, although he said that he knew the only one that had not was Ms.

Dawson. He acknowledged he was not looking at her when Mr. Gonzalez was hit as he was looking at Mr. Gonzalez and ringing up his purchase. Post Incident [ 50 ] After Mr. Gonzalez left the store, he went home and put warm water and a heating pad on the right side of his face. [ 51 ] Mr. Gonzalez testified that Mr. Valentine telephoned later in the evening of March 9, 2016. He said Mr. Valentine asked how he was and Mr. Gonzalez said he was “not okay.” He denied Mr. Valentine had given him his phone number. He said he obtained it from his phone screen when Mr. Valentine phoned him. [ 52 ] Mr.

Valentine denies he called Mr. Gonzalez. He stated he had given Mr. Gonzalez his phone number although it was contrary to store policy to do so. [ 53 ] He claims Mr. Gonzalez did not call the store until after two weeks after the incident and by then, the video had been recorded over. [ 54 ] Mr. Valentine said that Mr. Gonzalez contacted him by phone multiple times starting two weeks after the accident informing him he needed to file a claim. Mr. Valentine said he told him to contact the company, hung up on him and blocked his number. He never contacted head office to advise Mr.

Gonzalez wished to speak to someone there. He said he was not sure whether the head office contact information was on the Dollar Store website, but he had been told if people wanted to contact the company or employees, they should contact the head office online. He acknowledged he could have found this information online for Mr. Gonzalez but did not. [ 55 ] Ms. Bagdasaryan testified she told the claimant he could find the defendant’s head office phone number and address on the internet. She said she gave him the head office website address.

She said it was contrary to company policy to give out the contact information directly. No written policy to this effect was in evidence. [ 56 ] Mr. Gonzalez testified he next visited the Dollar Store and spoke to Mr. Valentine on March 11, 2016 after he was assessed by a doctor for his injury. He stated he asked Mr. Valentine for the phone number of the store manager but Mr. Valentine replied the manager would come to the store on March 18, 2016 at 4:00 pm. He said he asked Mr. Valentine for a copy of the video but was refused. [ 57 ] Mr. Valentine denies Mr.

Gonzalez came into the store or phone until two weeks after the accident. He testified he could not recall if Mr. Gonzalez contacted them or if he and Ms. Bagdasaryan told him they had confirmed it was not Ms. Dawson that threw the ball. Store Video Footage for March 9, 2016 [ 58 ] Both Mr. Valentine and the store manager, Ms. Bagdasaryan, testified there are video cameras at the store in question. They testified that the video remains for 14 days and is then automatically recorded over and that the videos could not be retained or copied without a direction from the defendant’s head office.

Neither of them made a request for such a direction. [ 59 ] Ms. Bagdasaryan said the store had 5-6 video cameras at the time. She described them as ‘very old’ and ‘not that clear’. [ 60 ] Former defence counsel took photos of the store approximately a year prior to trial but did not photograph the video cameras. Mr. Valentine’s evidence was that the camera nearest to the register #2, is nearest to the store exit. He testified it was above the store exit. [ 61 ] He further testified he watched the video approximately 12 times at different speeds, in the presence of Ms. Bagdasaryan.

He said it showed the ball “flying out of view” of the camera but he could not determine who had thrown the ball from the video. He testified that he viewed the video to “rule out" employee Ms. Dawson being the thrower. He said if it had been determined she had done so, there would have been a consequence ranging from being “written up” to termination. [ 62 ] He said he could not see any person in the video. He described the store as “like a ghost town”. He testified there were very few people in the store at the time of the accident. The security camera did not show Register 2.

While he acknowledged the video did not show any person, let alone any person throwing the ball, based on his investigation, he concluded Ms. Dawson had not thrown the ball. He appears to have inferred this to where she was standing when he first saw her after the ball hit Mr. Gonzalez. [ 63 ] No notes of Mr. Valentine or Ms. Bagdasaryan from any investigation of this accident were produced at trial. Mr. Valentine testified he did not make notes and did not have access to the video until Ms. Bagdasaryan attended to view it. He said the video was automatically over-taped in 14 days.

For the video to be secured and not taped over, he testified head office would need to make a decision to secure it. He did not request this and neither did Ms. Bagdasaryan. He said it was not his job to keep the video. He does not know who made the decision not to retain it. [ 64 ] Mr. Valentine states he did not make a video of the security camera video on the phone as this would have been against company policy. [ 65 ] Despite his decision to keep the ball, which was subsequently lost, he said he did not consider he had an obligation to secure the video as the “incident was so small.” [ 66 ] Ms.

Bagdasaryan testified she was not at the store on March 9, 2016. Mr. Valentine was acting as Assistant Manager on the shift in question. She said when the Manager is not present, the Assistant Manager has authority as a Manager and “can do anything.” [ 67 ] She said she first heard of the incident on March 10, 2016 when Mr. Valentine phoned her and told her what happened. He told her he had been serving a customer on register #2 when a small rubber ball hit the customer in the face.

[ 68 ] Ms. Bagdasaryan said she would had had to call the District Manager to preserve the video but Mr. Valentine told her “nothing really happened” and she did not call the District Manager or anyone else to request the video be preserved. [ 69 ] She said prior to this incident, she would only request a video be preserved if evidence was required. She gave an example of police or firemen requesting video be kept. She did not think this incident was major. [ 70 ] To her knowledge, the ball in question was from the toy aisle. She understood the ball had not been retained and testified that Mr.

Valentine told her it had been sold. [ 71 ] Ms. Bagdasaryan testified she was on holiday the week following the accident. She attended the store approximately a week later. This is consistent with Mr. Valentine’s evidence that they watched the video approximately a week after the incident. She could not recall the date she went into the store. When she did, she said she spoke to staff that were “involved with the accident” and looked at the video. [ 72 ] Ms. Bagdasaryan stated that she spoke to Mr. Gonzalez in the store after she returned from her one week vacation.

She believes it was the week she returned or a week later. He said he came to speak to her and asked what the defendant could do in regards to his case. She said she gave him the company website address as company policy is that employee information is not given out and he could email head office online. [ 73 ] She said she said “sorry a 100 times” to Mr. Gonzalez as the accident happened in her store. She disagreed her staff had done anything wrong. Accident/Incident Reports [ 74 ] Mr. Valentine testified that after the transaction with Mr. Gonzalez was completed, he filled out a report in the presence of Mr.

Gonzalez. He said wrote down Mr. Gonzalez’s name, recorded what happened, and his injuries. He said Mr. Gonzalez’s cheek was “maybe” slightly pink. He cannot recall if Mr. Gonzalez signed the report. In cross-examination, he described the ball hitting Mr. Gonzalez’s face as a tap on the face. He said he had seen people walk into shelves harder. [ 75 ] Mr. Valentine said he would have written the report before Mr. Gonzalez left the store as the defendant’s policy was that reports be written at the time of the accident.

The written policy was not in evidence. [ 76 ] To the contrary, at one point he testified the reports were not required to be written for minor incidents but in this case one was done “out of common courtesy” as “it was an odd case.” He then testified Incident Reports were made “about everything.” He testified “random small stuff happens all the time.” [ 77 ] He also said that if a customer is injured and if a customer says they are fine, an Incident Report is usually not done. [ 78 ] The evidence of both Mr. Gonzalez and Mr.

Valentine is that the claimant did indicate he was injured before he left the store. [ 79 ] He testified that Mr. Gonzalez did not request a copy of the report. He said he filled it out on a pre-prepared Incident Report form. [ 80 ] Mr. Valentine testified he put the completed report in an envelope. He does not know if it was sent to the defendant’s head office. On cross-examination, Mr. Valentine said he did not know what happens to the reports after they are placed in an envelope. This was not part of his job. On direct, he said reports were kept with monthly receipts and sales for each month. [ 81 ] Ms.

Bagdasaryan’s evidence is that after Mr. Valentine told her about the accident the following day, she asked him to prepare an Accident Report and send it to head office. She said that when there is an accident involving a customer, the employee preparing it is to ask questions about the customer, record who was in the store and record what happened. [ 82 ] Ms. Bagdasaryan testified she was not 100% certain an Accident Report was prepared but recalled one was done and sent to head office. On cross-examination, she stated Mr. Valentine told her what had happened and they did the report.

She said there are forms required to be sent to head office if there is an accident. She states Assistant Managers and Cashiers are aware accidents need to be reported. [ 83 ] She testified there was a corporate policy and procedure to be followed if there is an injury in the store. The policy was not in evidence. [ 84 ] She testified that she looked at all 2016 papers and could not find a report for this incident. Ms. Bagdasaryan as they kept so much paper.

She said she was not sure what box it was in or had been in. [ 85 ] No copies of correspondence either in paper or electronic form were provided from Dollar Store’s head office dealing with this matter. [ 86 ] This witness described the purpose of these reports was so the defendant could understand what happened in the store and for “nothing else.” [ 87 ] No receipts or sales records for the month were produced by the defendant despite testimony that the cash registers were electronically operated. Mr.

Valentine testified that one could electronically review sales on a single register for each day. [ 88 ] No report was produced at trial nor was the blank report form. [ 89 ] At trial, the defendant provided its Code of Ethics. Ms. Bagdasaryan said it is currently on the defendant’s website but she does not know if it was in place at the material time.

[ 90 ] Mr. Valentine testified that there was an employee policy binder in the staff room. Ms. Bagdasaryan testified there was also a Manager’s Policy Manual. Neither were produced at trial nor were any of the policies relating to reporting of accidents produced. [ 91 ] Both Mr. Valentine and Ms. Bagdasaryan testified it was the defendant’s corporate policy that head office information, including the address of head office, and employee information are not provided to customers. Rather, customers were to be referred to the corporate website for information. Mr.

Valentine testified he provided his phone number to Mr. Gonzalez the evening of the accident contrary to this policy. He also stated he did not retain or copy the video, or provide Mr. Gonzales with head office contact information as this would have been contrary to company policy. Investigation by Defendant [ 92 ] Ms. Bagdasaryan could not recall the exact date she conducted the investigation but it was after her week of vacation. She testified she spoke to Mr. Valentine, Ms. Almeda and Ms. Dawson that day. Only Mr. Valentine was called to testify at trial.

She testified she also looked at the store video at the relevant time in question. She testified she took no notes regarding the video or during the investigation. [ 93 ] Mr. Valentine testified he took no notes while watching the video. No investigation report or any documents were produced arising from staff interviews or on the video contents. [ 94 ] Mr. Valentine testified he and Ms. Bagdasaryan viewed the video “a week or two” after the incident. He cannot recall if he ever told Mr. Gonzalez that the investigation ruled out Ms. Dawson, who threw the ball. I note he said during the transaction with Mr.

Gonzalez before he was hit, he was looking at Mr. Gonzalez who was across from him rather than around the store. Evidence on time of accident [ 95 ] Mr. Valentine estimates the accident occurred at approximately 6:30 pm from looking at the work records for the day in question. He did not profess he had an independent recollection of the time. There is a document indicating Ms. Dawson signed out for her break at 6:30 pm. Her time sheet indicates she worked until approximately 8:03 pm, although she was scheduled to work until 9:00 pm.

He said she had been at register #1 (next to register #2) prior to her going on her break. He believed she went to the staff room but acknowledged he did not see her going there. He said he was unable to find any register receipts for the month of March 2016. The time sheets indicated Ms. Almeda was back from her break at 6:30 pm. He was equivocal on where she was at the time of the incident. She was scheduled to work until 9:00 pm and left at 9:34 pm. According to the time and

schedule sheets, Mr. Mader, the door greeter, was scheduled to work until 9:00 pm and left at 8:58 pm. [ 96 ] Mr. Gonzalez testified the accident happened at about 7:45 pm. Dollar Store Receipt dated March 9, 2016 with time of 19:48 produced by claimant during cross-examination of Mr. Valentine (Exhibit 6) [ 97 ] Mr. Valentine testified the accident occurred at approximately 6:30 pm. During the claimant’s cross-examination of Mr. Valentine, he produced a receipt dated 7:48 pm from the store in question with Mr. Valentine’s first name listed at the bottom as the sales associate.

It was electronically generated from register #2. The receipt indicates and Mr. Valentine confirmed, that the items listed in the receipt were paid for by a Visa credit card as indicated on the receipt. This receipt had not previously been produced to the defendant by the claimant although it is clearly a document that should have been produced by the defendant within 60 days of the settlement conference order. [ 98 ] There was no evidence that the defendant requested information from credit card companies for the evening of March 9, 2016.

Such information likely would have identified potential witnesses. [ 99 ] The trial was adjourned pending submissions by the parties on whether or not the receipt should be allowed as evidence at trial. The defence wanted it excluded due to late production and prejudice. The claimant wanted it admitted. He submitted he just it the night before when looking for some documents I had queried. He said he had not realized it was relevant until he heard Mr. Valentine’s evidence the accident occurred at 6:30 pm. [ 100 ] After hearing submissions on admissibility of the receipt, I ruled it admissible.

As stated, the document in question should have been produced by the defendant. It was originated from register #2 while Mr. Valentine was operating it. [ 101 ] Mr. Gonzalez was cross-examined on the receipt at the resumption of trial. He said it had been given to him by the female customer whose letters he had provided to defence in September 2017, and used as a ‘will say’ statement. He said he again looked for her address and contact information at my request, on September 24, 2019, the night before Mr. Valentine’s cross-examination.

He said he found it in a book in a drawer that evening. [ 102 ] The receipt was put to Mr. Valentine when his cross-examination resumed on November 13, 2019. He acknowledged the receipt had his name on it, that it represented a Visa rather than cash sale, and that he was the cashier on at 7:48 pm at register #2 on March 9, 2016. [ 103 ] I find neither party complied fully with their disclosure obligations. The claimant did not produce the aforementioned receipt until Mr. Valentine was in cross-examination.

He alleged he did not find it until the night before and stated that he did not realize it was relevant until he heard Mr. Valentine’s evidence regarding the time of the incident. He failed however, to produce it to defence counsel the morning before trial commenced for Mr. Valentine’s cross-examination despite knowing he would try to enter it into evidence. I allowed the defendant to cross-examine Mr. Gonzalez on the document including the reason for his delay in production. [ 104 ] The defendant failed to produce a number of relevant documents and was late in providing others.

The Dollar Store’s failure to produce relevant documents in a timely manner or at all is more egregious than the claimant’s very late disclosure of a receipt which was

a document the defendant should have produced pursuant to the order of the settlement conference judge. Late document production at trial [ 105 ] The defendant made late disclosure of certain documents during trial including portions of its policy applicable to employees and a Google print out relating to the defendant dated September 24, 2019. This included a listing of where to find the Dollar Tree Code of Ethics. There was nothing specifically in the hand out that provided contact information about where customers could contact the company regarding complaints or concerns.

Summary of documents and items not produced by the defendant [ 106 ] These include: 1. The incident report prepared by the defendant employees; 2. A copy of the notes or actual investigation report including any notes or reports relating the defendant’s interviews of employees following the incident to ascertain who threw the ball; 3. The security video running at the time in question; 4. The store management manual; 5. Receipts from the electronic till and/or credit card statements for the plaintiff’s purchase and any other customers for March 9, 2016; 6.

Written communications, including electronic transmissions to and from defendant employees and the defendants head office regarding the incident and employee investigation that followed; 7. The store’s security log; 8. The ball that hit the claimant. It was initially kept by an employee; and 9. Relevant policies and manuals. Evidence of witnesses regarding Mr. Gonzalez injuries and reporting of same [ 107 ] Mr. Gonzalez states the right side of his face was red, hot and painful immediately after being hit with the ball.

He said the tissue under his right orbital area hurt and he lost the vision in his right eye immediately. He is not alleging this was permanent. He put into evidence photos taken at the store after the injury. [ 108 ] He said that after he got home, Mr. Valentine phoned him and asked how he was. He said he told him he was not okay. Mr. Valentine denies making this call. [ 109 ] Mr. Valentine said Mr. Gonzalez did not know what happened. Mr. Valentine testified he apologized to Mr. Gonzalez and said that he and the Manager would review video footage in the store to determine what happened.

He said he did not observe any injuries. In his direct evidence, he said Mr. Gonzalez looked shocked and bewildered, but did not stumble. First Medical Attendance [ 110 ] Mr. Gonzalez testified he first saw a doctor for his injuries from this incident on March 11, 2016. He said he could not get an appointment on March 10, 2016. He said he spoke to Mr. Valentine after he saw the doctor. He said he requested the Store Manager’s number but was told the Store Manager would come to the store. He said he was told she would be there on March 18, 2016 and did attend to speak to her that day.

Subsequent communications regarding injury [ 111 ] Mr. Valentine testified he had no contact with Mr. Gonzalez for 14 days after the accident. He did say he had given him his number after the incident happened on March 9, 2016. Mr. Gonzalez said he got Mr. Valentine’s number from his phone when he called the evening of the incident after Mr. Gonzalez got home. [ 112 ] Mr. Valentine said Mr. Gonzalez came into the store 3-4 weeks after the incident, advised he had gone to the doctor to get x- rays, had a fractured cheek and wanted the store to pay $3500 for the x-rays. Mr. Valentine said he told Mr.

Gonzalez he had to call head office. He took no notes of this conversation. [ 113 ] Mr. Gonzalez denies he said the x-rays cost this much. He said he showed Mr. Valentine an x-ray referral. He denied telling Mr. Valentine the store was “obligated” to pay for them. ANALYSIS [ 114 ] An occupier has a duty of care to make reasonable efforts to keep those on its premises reasonably safe in regards to activities on its premises. The circumstances of each case must be analyzed.

In this case, an assessment of the reliability and credibility of key witnesses is crucial to this analysis. [ 115 ] The sale of the ball does not constitute a breach of the OLA . While such balls were subsequently sold in netting, there was no evidence of anyone being hit with a ball at Dollar Store prior Mr. Gonzalez.

[ 116 ] The issue is whether or not a store employee threw the ball that hit Mr. Gonzalez and the defendant is liable and/or vicariously liable for the consequences. [ 117 ] The defence evidence lacked reliability and credibility on key issues and was internally inconsistent and on some point inconsistent between the defence witnesses. While the claimant was clearly angry and frustrated at his perception he was intentionally stonewalled by the defendant following the incident, I found him reliable and credible on the circumstances of its occurrence and communications with the defendant employees following.

He was honest in stating he did not see who threw the ball. I do find the claimant’s anger and frustration coupled with his personality, caused him to be overly dramatic about the injuries he sustained. [ 118 ] Mr. Gonzalez could be described as persistent, stubborn and even obstinate. Given his personality, I accept his evidence he requested information about the accident from the defendant including its investigation, and requesting to view or get a copy of the store video from at least March 11, 2016. The video still would have been in existence at this time. I reject the defence evidence that Mr.

Gonzalez did not contact the defendant until over two weeks after the accident. Both defence witnesses testified the video would have been recorded over after two weeks. [ 119 ] I do not accept Mr. Valentine’s evidence on the trajectory of the ball or where it was thrown from. He was not clear what side of Mr. Gonzalez’s face was hit. It was clear the ball came from behind him and that at the time Mr. Gonzalez was hit, he was looking straight at Mr. Gonzalez. He infers that Ms.

Dawson was in a position inconsistent with throwing the ball but given he was not paying attention, he cannot say where she was at the time. [ 120 ] Mr. Valentine gave inconsistent evidence about what transpired. On one hand, he trivialized the incident. He said he did not believe the claimant showed sign of injury. He noted that Mr. Gonzalez did not stumble. He cannot recall if he took a photo of the claimant. If he did prepare a report, it would make sense to attach a photo of the area of injury Mr. Gonzalez reported. [ 121 ] He denied he phoned Mr.

Gonzalez to see how he was the night of the incident but states he gave Mr. Gonzalez his phone number although it was contrary to company policy to do so. He characterized the incident as minor or trivial. His evidence on the preparation of an accident report was inconsistent. He testified he prepared a report in the presence of the claimant right after the incident. To the contrary, he also testified that he did not complete and was not required to complete, a report. He further said such reports were done for ‘everything’ and said he in fact did fill out an incident report ‘out of common courtesy’ while Mr.

Gonzalez was still in the store. He testified the report he filled in disappeared or was lost. Not even a blank the incident/accident form was produced at trial. This is unfortunate, as it may have had names of witnesses, their contact information and contemporaneous observations. [ 122 ] Ms. Bagdasaryan testified that when Mr. Valentine reported the incident to her on March 10, 2016, she requested an accident report be prepared and believed they prepared it together. She stated it was the defendant’s policy that such reports be prepared and forwarded to head office.

She testified she looked for the report but could not locate it. [ 123 ] Mr. Valentine could not recall whether or not he took a photo of Mr. Gonazlez’s face but did not deny it. I find he probably did as this would or could be evidence. [ 124 ] Mr. Valentine also retained the ball that hit Mr. Gonzalez for over a year in the event ‘something came of it.’ He stated he lost the ball. [ 125 ] Based on his own evidence, I find that Mr. Valentine was concerned Mr. Gonzalez had been injured or would make a claim, due to an employee he supervised throwing the ball. He agreed he had been joking with Ms.

Dawson prior to the incident. There is the most likely and reasonable explanation why he informed his direct supervisor, Ms. Bagdasaryan, of the incident on March 10, 2016, retained the ball, viewed the tape approximately 12 times, and stopped responding to the claimant. [ 126 ] I accept Mr. Gonzalez’s evidence that after the incident, he provided his phone number to Mr. Valentine and that Mr. Valentine did phone to see how he was. It is more reasonable than not that Mr. Valentine took information regarding the incident down that night. He was aware that Mr. Gonzalez was very upset and acknowledged he and Ms.

Bagdasaryan conducted an investigation that included interviewing staff, including Ms. Dawson, and viewing the video. Mr. Valentine states he viewed it 12 times. He acknowledged no one could be seen in the video. Ms. Bagdasaryan noted the quality of camera recording was not that clear. Defence evidence was that no notes were made during the investigation nor were any reports following the investigation made. Given Mr. Valentine’s inability to recall some matters due to passage of time, I cannot place any weight on his memory of what he viewed being reliable.

It is not capable of cross-examination as it was not retained. [ 127 ] Unfortunately, it was not part of the defendant’s investigation to review and retain cash and credit card receipts from the material time. [ 128 ] The disappearance of the defence evidence previously mentioned created obstacles and stress for the claimant.

The defendant should have kept the video, secured the ball, secured the accident report, made notes of the investigation of what happened, retained and produced the electronic receipts kept frim register #2, which showed the time of every transaction and the credit card slips that showed the names of persons that purchased items with credit cards and the times of purchase. Times of purchase would have assisted in whether or not Mr. Gonzalez was correct that Ms. Dawson had made a purchase prior to the incident and who else may have witnessed the accident. [ 129 ] Dollar Store operates stores throughout Canada.

It was clear that the defence witnesses were aware of claims potential from customers alleging injury but were at best negligent in failing to secure evidence, including the video, ball, reports, electronic cash receipts and store policies. [ 130 ] I reject Mr. Valentine’s evidence that his next communication with Mr. Gonzalez was two weeks after the incident. While it accords with the fact that the video would have been recorded over if not secured, it is inconsistent with Mr. Valentine’s evidence that Mr. Gonzalez was continuously contacting him for information and to report he needed x-rays.

I have no doubt that Mr. Gonzalez would have been persistent in pursuing information including the results of Mr. Valentine’s investigation and would have been persistent in his

efforts to obtain same. Mr. Valentine states he eventually blocked Mr. Gonzalez’s calls. [ 131 ] From the defence evidence, I conclude Mr. Valentine and Ms. Bagdasaryan viewed the video approximately a week after the incident when she was back from holidays. I find that if the video indicated no employee threw the ball, they would have shown it to Mr. Gonzalez. [ 132 ] Mr. Valentine stated the purpose of the investigation which included staff interviews and viewing of the video was to ‘rule out’ Ms. Dawson as the thrower of the ball. It was clear to Mr.

Valentine that she was a suspected thrower of the ball given her interaction with Mr. Valentine prior to the incident. I find the defendant did not conduct an independent or unbiased investigation. [ 133 ] With the exception of Mr. Valentine, none of the employees working at the time of the incident testified. Ms. Bagdasaryan said they did not respond to her text.

There was no evidence that they could not be located. [ 134 ] There was no adequate explanation why relevant documents were produced late or not at all. [ 135 ] While the loss of one document might be explainable, the defendants evidence discrepancies, failure to retain the video when it was viewed by both the assistant manager and manager within a week, failure to call employees as witnesses, failure to produce relevant documents in a timely manner or at all, and failure to involve the head office, are all matters that lead me to conclude that the defendant breached its duty of care to Mr.

Gonzalez under the Occupiers’ Liability Act . In all the circumstances, I conclude the defendant’s failure to produce relevant documents was more likely than not to prevent any negative consequences from befalling employees of the defendants. [ 136 ] Based on the evidence as a whole, I find that at least on a balance of probabilities, the claimant has established that an employee of the defendant threw the ball that hit Mr. Gonzalez. [ 137 ] I will know turn to assessment of Mr. Gonzalez’s damages. INJURIES [ 138 ] Mr. Gonzalez seeks $35,000 plus disbursements.

In his oral submission, he claimed aggravated damages due to the conduct towards him of the defence employees that testified. He was hung up on, not provided with contact information for the head office, not shown a copy of the video or offered a viewing. [ 139 ] He did not file an expert report in support of his personal injury claim. He gave evidence of the injuries he alleges he sustained from being hit on the right side of the face by the rubber ball and filed clinical notes from March 11, 2016 to the summer of 2017.

These clinical records were attached to the claimant’s certificate of readiness filed on April 3, 2018. He did not produce any further clinical records or reports. The clinical notes provide a chronology of Mr. Gonzalez’s complaints and treatment during this time. I accepted their being filed as factual evidence. Mr. Gonzalez in on disability. In this case, to require him to provide an expert medical report would cause him financial hardship.

There was no evidence before me that the defendant offered to reimburse him for the cost of obtaining a report or sent him for an independent medical examination. [ 140 ] The clinic and names of doctors that treated him were mostly ascertainable from the records. Had further information been required, the defendant could have requested or made application for an MSP printout. The defendant chose not to call Mr. Gonzalez’s treating medical professionals for cross-examination. [ 141 ] Mr.

Gonzalez testified that he was hit hard in the right side of his face and while in the store, lost vision for a time in his right eye. He said the area around right eye was swollen when he got home and he was not feeling well. [ 142 ] He testified he was first able to get a doctor’s appointment at Care Point Medical Centre at 1623 Commercial Drive, Vancouver, B.C. on March 11, 2016. The clinical notes indicate he complained of pain on the right side of his face from being accidently hit two days prior. It was noted he had a swollen eye with pain and discomfort but ‘vision is ok’.

Observations made by the doctor were swelling to the right lower eyelid. Assessment was noted to be injury to the right side of the face and the treatment plan recorded was to order an x-ray of his facial bones to rule out a fracture. [ 143 ] Mr. Gonzalez testified that he did not have an x-ray as he had had cancer and was concerned about the radiation. [ 144 ] He next attended Care Point Medical on March 17, 2016. The doctor recorded that he had decided not to go for x-ray and recorded Mr. Gonzalez comment that his eye was still ‘bugging’ him. Some tenderness was noted.

He had normal eye movement. [ 145 ] On April 18, 2016, the Care Point Medical clinical note records the claimant’s reported complaint of right facial pain with shock like pain. The assessment indicates possible orbital injury. [ 146 ] On April 19, 2016, Dr. Vale recorded that Mr. Gonzalez did not have the facial bone x-ray he was advised to. Mr. Gonzalez complained of occasional ‘electric shock’ in the area. Dr.

Vale recorded the need to rule out an orbital fracture and to consider a CT scan of the orbital area. [ 147 ] He continued to complain of pain and an electric shock sensation under the right eye through 2016 and early 2017. He was referred to an ophthalmologist to assess whether or not he had nerve entrapment due to orbital fracture and to consider a CT of the orbit. [ 148 ] The consult letter of Dr. MacIntosh, opthamologist, states no abnormality in the right eye was found. He requested a visual field test with review by an oculoplastic/orbital specialist, Dr. D. Rossman. Dr. D.

Rossman’s report of July 5, 2017 indicates normal left and right eye examination. His assessment was ‘Normal’ orbital exam. Possible neuroma of right infraorbital nerve causing intermittent discomfort’. CT was not recommended as ‘…the pain is happening intermittently.’ The plan was to ‘Follow up prn if the pain gets worse.’ (I have interpreted PRN as an abbreviation for ‘as needed’).

[ 149 ] No further medical records or reports were provided after July 2017. At the time of trial, Mr. Gonzalez testified he still got a feeling ‘like an electric shot’, that felt like ‘two wires’ under his right eye once or twice a week. He described the feeling as lasting for 30 seconds. He said this is the same way his right eye felt in April 2016. [ 150 ] There was no evidence of further medical assessment or treatment after Dr. D. Rossman saw him in July 2017. [ 151 ] Mr. Gonzalez has not established on a balance of probabilities that he sustained an orbital fracture or entrapped nerve in the orbital area.

He refused x-ray and a CT was not recommended as his pain was intermittent only. Had he wished to pursue these diagnoses, he should have had an x-ray or returned to request a CT. [ 152 ] I find Mr. Gonzalez did suffer redness, swelling and pain in his right orbital area on an acute basis for 2-3 months. After this, I find he experienced occasional pain under his right eye. He did not follow up on any further investigations after July 2017. I find that is because the pain he states he experiences is occasional and of very short duration.

It does not interfere with any of his activities of daily living or leisure activities. [ 153 ] Mr. Gonzalez was very angry at the way he was treated by the defendant when he sought information he requested to pursue his claim. I find he experienced a legitimate heightened sense of injustice from the manner in he was treated by the defendant. Given his character traits, he experienced more distress than a more stoic person would. I find that he told Mr.

Valentine he required x-rays and suggested payment or requested payment for same, was a means in his mind, of getting justice. [ 154 ] After considering the evidence of Mr. Gonzalez, the medical records, and the evidence at trial, I award Mr. Gonzalez general damages for personal injury in the amount of $6000.00 for general damages, also known as pain and suffering. In making this award, I have included the extra distress caused to Mr. Gonzalez from the defendant’s actions following the incident.

Interest is not awarded on general damages for personal injury as it is made based on the date of judgment, not the date of injury. [ 155 ] Mr. Gonzalez has established he is entitled to reimbursement of the following disbursements he incurred: Copies of Medical Records from Care Point $35.00 Corporate Search $30.45 Filing of Notice of Claim $156.00 Service Fees $80.00 Total: $301.45 [ 156 ] Mr. Gonzalez is awarded pre-judgment interest on the $301.45 from April 1, 2018. [ 157 ] I was not provided with receipts regarding the other disbursements claimed and only the above disbursements are awarded. [ 158 ] In

summary, I award judgment to Mr. Gonzalez in the amount of $6000.00 general damages plus $301.45 in disbursements ($6301.45) with pre-judgment interest on the disbursements calculated from April 1, 2018 to the date of this judgment, in the form of a payment order. The pre-judgment interest will be calculated by the Provincial Court Registry. [ 159 ] The judgment shall be paid in full to Mr. Gonzalez by or on behalf of the defendant within 40 days of today. ______________________________ The Honourable Judge L. Bakan Provincial Court of British Columbia