2013 QCCQ 11834, 2013 QCCQ 11834

Rezapoor c. Cochrane 2013 QCCQ 11834 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-124410-103 DATE: September 18, 2013 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ SIAVOOSH REZAPOOR […], Montreal, Quebec, […] v.

CHRISTOPHER COCHRANE […], Montreal, Quebec, […] ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr Siavoosh Rezapoor, a tenant in the building where the Defendant Christopher Cochrane lives and works as janitor, sues Mr Cochrane, claiming $ 7,000 damages for bodily injuries sustained on July 6, 2010 during an altercation. [ 2 ] The injuries consist in a broken nose and other more minor injuries. [ 3 ] Mr Cochrane does not deny having punched Mr Rezapoor in the face, during an altercation that occurred on July 6, 2010, but defends the claim on the basis that he did so in self-defence.

He brings a cross-demand against Mr Rezapoor claiming $ 7,000 representing pain and suffering over the three years following the event, resulting from the assault allegedly committed against him by Mr Rezapoor. [ 4 ] Mr Rezapoor denies having assaulted Mr Cochrane. [ 5 ] The Court must decide whether either of the parties is responsible for having inflicted injuries on the other during the event of July 6, 2010 and if so, determine the amount of damages associated with the prejudice resulting from these injuries. [ 6 ] Mr Rezapoor testifies that on July 6, 2010, Mr Cochrane followed him as he was leaving the building where he resides at 48, rue de Port Royal , in Montreal.

There had been a conflict about Mr Rezapoor’s assertion that he wasn’t receiving his mail. He called the police and the episode ended without any charges being laid. [ 7 ] Mr Rezapoor testifies that he was on Clark Street, on the corner of Saint-Laurent, when Mr Cochrane, who had followed him by bicycle, punched him in the face two to three times, threatening to kill him.

The report from the Chum Hotel Dieu indicates the time of the accident as July 6, 2010 at 21:15 p.m., and Mr Rezapoor’s arrival at the hospital as the same day at 22:11 p.m., transported by ambulance. [ 8 ] The medical report confirms that Mr Rezapoor was a victim of a physical aggression with a broken nose, a bruise to the left shoulder blade and multiple abrasions of his knees, left elbow and left fist.

The broken nose was not so serious as to require surgery. [ 9 ] Photographs taken by Mr Rezapoor show that the skin under his eyes was black and the nose swollen. [ 10 ] Mr Rezapoor no doubt suffered a certain amount of pain after these events but no severe medical complication. [ 11 ] Mr Cochrane’s version of the events is fundamentally different. He testifies that he left 48, de Port Royal, to go up Clark Street to purchase cigarettes at a corner store on the corner of Clark and Sauvé. The store was closed and he turned to go up Saint-Laurent Boulevard.

As he headed up Saint-Laurent, Mr Rezapoor came out from an alley, behind a large truck, and kicked the front tire of his bicycle, causing Mr Cochrane to fall on the ground, suffering some minor injuries to his leg. He was in pain. He states that Mr Rezapoor came toward him in a threatening manner and Mr Cochrane pushed him back, wanting to leave the situation. [ 12 ] Then Mr Rezapoor grabbed him from behind Mr Cochrane responded by punching him twice in defense, then he got on his bike and rode home.

Mr Cochrane informed the Court that he had an old injury from a fall approximately ten years before which resulted in a plate being screwed into his ankle. Before these events, the injury had consolidated well but afterward, he suffered a great deal of pain from this previous injury as aggravated from his fall from the bicycle.

[ 13 ] In the absence of any third-party witness, the outcome of this case depends chiefly on the credibility of these two witnesses. If, as Mr Rezapoor testifies, he was attacked by Mr Cochrane unprovoked, then he is surely entitled to substantial damages for moderately serious injuries to his face and the other minor injuries of which he complains.

According to his testimony he required three to four months to heal from these injuries. [ 14 ] Mr Rezapoor must establish the probability of his version of the facts through credible testimony. [ 15 ] If, on the other hand, the Court accepts Mr Cochrane’s testimony as being credible, then his allegation of self-defence is acceptable. Given the events as he describes them, he was attacked three times: First with Mr Rezapoor causing him to crash as he was riding his bicycle, then by being grabbed and a third time by being approached from behind.

In these circumstances Mr Cochrane was shocked, in a dangerous situation on a busy road and unable to gauge what Mr Rezapoor’s next step would be. He was in pain and could not run. In those circumstances punching Mr Rezapoor in the face was not an unreasonable response and it was something that occurred spontaneously.

Unfortunately he caused injury to Mr Rezapoor, but it was what Mr Cochrane could do to protect himself from further aggression. [ 16 ] In determining which of the parties is credible, the Court considered their demeanour in Court, as well as the objective credibility of their versions from the point of view of their coherence.

As well, the Court heard testimony from other occupants of the building and obtained material evidence such as photographs offered by Mr Cochrane in support of his view that Mr Rezapoor showed on many occasions erratic, aggressive and insulting behaviour toward Mr Cochrane, his companion, and other tenants. [ 17 ] On balance, the Court found Mr Cochrane’s version of the story to be more plausible than that of Mr Rezapoor. Mr Rezapoor’s demeanour in Court was very poor and his ability to answer questions and speak in a clear manner was seriously impaired.

Mr Cochrane’s testimony was spontaneous and his descriptions of the events more detailed. Mr Rezapoor gave very little explanation of the events and essentially pointed the Court in the direction of secondary evidence such as the police report and the hospital report. [ 18 ] The police report speaks of one blow to the nose and after Mr Rezapoor fell two kicks to his body before Mr Cochrane left the scene on bicycle. [ 19 ] The file contains a series of declarations given by various individuals that live in the building. All of them concur in describing Mr Rezapoor’s conduct as aggressive and inappropriate.

The Court heard the testimony of Mr Jorge Antonio Farfan Solares. He described an event occurring on June 18, 2010. He was walking on Sauvé Street and Mr Rezapoor, who was on the other side of the street, called and waived him over. When Mr Farfan crossed the street Mr Rezapoor attacked him with a “ tape gun ” Mr Farfan held out his arm to shield his face from the sharp surface of this instrument and his arm was injured. [ 20 ] Mr Farfan decided to drop the charges initially taken against Mr Rezapoor. The Court also heard from Linda Bourgon, Mr Cochrane’s companion.

She produced several written statements into the file on various incidents involving Mr Rezapoor. [ 21 ] Many of the events are completely different from the altercation described in the proceedings but, as a general rule, they portray Mr Rezapoor as often making very vulgar insults towards Linda Bourgon and others.

Mrs Bourgon speaks of an altercation between Chris Cochrane and Mr Rezapoor where Mr Rezapoor was violent and then falsely accused Mr Cochrane towards the police of having punched him in the face. [ 22 ] Generally, this evidence concerns events that are not directly related to the case, involving Mr Rezapoor’s life style and his erratic and unexplainably aggressive conduct towards various tenants in the building. [ 23 ] Courts must be cautious in referring to evidence of facts if they are not directly relevant to a case. They may have a bearing on a witness credibility.

In the circumstances described by Mr Solares, there is a certain similarity in that he describes an unprovoked aggression on the part of Mr Rezapoor in the vicinity of the building in a public place. Mr Rezapoor, in his own allegations, tried to impune the character of Mr Cochrane. Much of the conflicts between the two men relate to the fact that Mr Cochrane is the janitor of the building and Mr Rezapoor complains about the way he is treated as a tenant. The conflicts led not only to proceedings in the Rental Board but also numerous police interventions requested by Mr Rezapoor.

On none of these occasions was any charge placed against Mr Cochrane. Mr Rezapoor is no longer a tenant of the building. [ 24 ] On balance, the Court’s appreciation of Mr Rezapoor’s testimony is that it was insufficient to establish his allegation that he was the victim of an unprovoked attack. It seems somewhat implausible that Mr Cochrane would go out of his way to attack Mr Rezapoor in a public place.

The evidence of Mr Rezapoor’s bad character, presented by other witnesses who appeared to be sincere, confirms the Court’s impression that Mr Rezapoor’s testimony cannot be relied upon. [ 25 ] Mr Cochrane’s testimony did not present any flaw from which the Court could be caused to doubt his sincerity or the accuracy of his recollections. He admits very candidly having punched his aggressor in the face.

There was no witness to the event and, if Mr Cochrane was insincere, he could have simply denied having been involved in the altercation with Mr Rezapoor and there would have been no objective source of his identification other than the testimony of Mr Rezapoor. [ 26 ] The Court therefore felt that Mr Cochrane’s testimony was reliable and sincere. [ 27 ] Mr Rezapoor’s action will therefore be dismissed. [ 28 ] As for Mr Cochrane’s action, while he does establish that he was the victim of an assault, his evidence of the aggravation of a previous injury was not objectively reliable to prove that he suffered any significant prejudice as a result of his fall from the bicycle. [ 29 ] No medical evidence was offered and there is not a sufficient basis from which the Court can conclude a significant prejudice that can be translated into monetary terms.

In such circumstances, the Court accepts Mr Cochrane’s testimony that he suffered pain as a result of the events and arbitrates an amount of $ 500 to compensate Mr Cochrane for the pain and suffering he describes;

FOR THESE REASONS, THE COURT: DISMISSES the action of Siavoosh Rezapoor; and CONDEMNS Siavoosh Rezapoor to pay Christopher Cochrane the sum of $ 500 plus interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of the institution of the cross demand, November 16, 2010; CONDEMNS Siavoosh Rezapoor to pay Christopher Cochrane individual costs of $ 77. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: May 21, 2013; January 15; 2013