E.H. v. N.D.K. Date:, 2015 BCPC 413

Citation: E.H. v. N.D.K. Date: 20150901 2015 BCPC 0413 File No: S71833 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: E.H. CLAIMANT AND: N.D.K. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HAMILTON Counsel for the Claimant: S. Price Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey , B.C.

Dates of Hearing: April 29, May 11, and July 22, 2015 Date of Judgment: September 1, 2015 INTRODUCTION [ 1 ] This is a Small Claims court lawsuit arising out of a fist fight between these two parties on September 11, 2010. The fight occurred in a parking lot near a Tim Horton’s coffee shop at 188 th Street and Fraser Highway in Surrey, British Columbia. The Plaintiff, Mr. H. sues the Defendant, Mr. K., for the injuries Mr. H. sustained in this fight. This trial concerns only the question of whether Mr. K. is liable to Mr. H. for those injuries sustained in the fight. [ 2 ] In his defence, Mr.

K. says that the fight was a consensual fight, or in the alternative, that Mr. K. was defending himself from a physical assault by Mr. H. At the close of the Defendant’s case, Mr. K. conceded that there is insufficient evidence to support a conclusion that the fight was consensual, so Mr. K. defends this lawsuit on the basis that he was acting in self-defence. [ 3 ] For the reasons that follow I have concluded that Mr. H. instigated this physical altercation by angrily confronting Mr. K., and when Mr. K. pushed Mr. H. away, Mr. H. made the choice to continue to confront Mr. K. I further conclude that Mr.

K. was justified in defending himself from the violence, or threat of violence, posed by Mr. H. Accordingly, I dismiss Mr. H.’s claim. BACKGROUND [ 4 ] Mr. K. married A.C. in February, 2007 and they separated in November, 2007. This couple had one child together - A. I was not told A.’s date of birth, but from references in the evidence to his age at various points in these proceedings I infer that A. was born at some point in 2007. The Claimant, Mr. H., is a close personal friend of Ms. C. and he is A.’s godfather. [ 5 ] The separation between Ms. C. and Mr. K. was difficult.

I was told that the police and child protection social workers investigated allegations that Mr. K. had both physically and sexually abused A. following his parents’ separation. Nothing came of those investigations, however, Mr. K.’s contact or parenting time with A. was restricted for a time to only supervised access and for a time there was no access at all. [ 6 ] Mr. H. was formerly a police officer - or in some way affiliated with the police. At the relevant times in this case he was a child protection social worker. [ 7 ] It is clear that both Ms. C. and Mr.

K. were unable to put A.’s interests ahead of their own interests with the predictable result that their communication broke down. They argued and eventually orders were put in place restricting their communication. While none of those orders were entered into evidence (and that is not a criticism), I am told that eventually these parents were not permitted to both be present during the access exchanges of A. between them. [ 8 ] Mr. K. enlisted the assistance of his mother, S.P. and Ms. C. enlisted the assistance of her friend, Mr.

H., to facilitate the exchanges of A. between the two homes. [ 9 ] Another feature of these access exchanges was that Ms. C. and her supporters began to videotape the access exchanges presumably to record bad behaviour of Mr. K. to use against him in a family law case that flowed from their separation. Mr. K. and his supporters also began video recording the access exchanges and it fell to his mother - A.’s grandmother - to record the exchanges for Mr. K. [ 10 ] It was during one of A.’s access exchanges returning from Mr. K. to Ms. C., that the fist fight occurred between Mr. K. and Mr.

H. which lies at the heart of this lawsuit. THE SEPTEMBER 11, 2010 INCIDENT [ 11 ] On September 11, 2010, A. had spent the day with Mr. K. A. was to be returned to Ms. C. by 5:00 p.m. that day. Because of the high conflict nature of this family dispute, A.’s exchanges could not occur at either parent’s home. [ 12 ] The result was that A. was shepherded between his father’s care and his mother’s care with the assistance of Ms. P. and Mr. H. in a public parking lot near a Tim Horton’s coffee shop on Fraser Highway near 188 th Street in Surrey, British Columbia. [ 13 ] The practice was that Mr.

K. would drive his mother and A. to a parking spot determined to be a sufficient distance away from the entrance to the Tim Horton’s store. Ms. P. would then walk with A. across the parking lot where she would deliver A. to Mr. H. and Mr. H. would return A. to Ms. C. This process occurred at least twice each week. A. was three years old at the time of the September 11, 2010 incident. [ 14 ] On September 11, 2010 at about 5:00 p.m., Mr. K. drove and parked his truck a sufficient distance from Ms. C.’s vehicle in the parking lot. Ms. P. was then to walk A. over to Ms. C. As was their custom, Mr.

K. said goodbye to his son and A. and Ms. P. walked over to where Ms. P. turned A. over to Mr. H. At this point in the narrative, the evidence called on behalf of Mr. H. and Mr. K. differs. [ 15 ] Mr. H. testified that when he took A. from Ms. P. the child was sad. When Mr. H. asked A. what was wrong, A. allegedly said that his father had hit him. [ 16 ] Mr. H. testified that he and Ms. C. talked about what they should do and Mr. H. decided that he would go and speak to Mr. K. about having struck A. Both Mr. H. and Ms.

C. testified that while they were discussing what to do about A.’s complaint of being struck, Mr. K. raised his middle finger towards them in a rude gesture.

[ 17 ] Mr. H. testified that Ms. C. had been told by the police and child protection social workers that she was to tell Mr. K. to stop hitting their son. So with that in mind, Mr. H. walked over towards Mr. K. to, in effect, confront Mr. K. about A.’s complaint that he had been hit by his father and to tell Mr. K. to stop hitting the child. [ 18 ] Mr. H. said that when he got near to Mr. K., Mr. K. went into a boxing position and when Mr. H. told Mr. K. to stop hitting A., Mr. K. told Mr. H. that this was none of his business. Mr. H. testified that he then told Mr. K. that if he hits A. again, Mr.

K. would be punished. [ 19 ] With that, Mr. H. testified that Mr. K. pushed or shoved Mr. H. away using two hands. Mr. H. testified that he steadied himself and then Mr. K. punched Mr. H. twice. Mr. H. then tried to punch Mr. K. and he missed. Mr. K. then punched Mr. H. again and then these two men began punching and kicking each other. Mr. H. said that this donnybrook lasted about three minutes when a couple of other men intervened to stop the fight and then the police arrived. [ 20 ] Mr. H. denied that he was the aggressor in this altercation and claims that after he was struck by Mr. K., Mr.

H. was just defending himself against Mr. K. [ 21 ] Ms. C. testified as to the events of September 11, 2010 and confirmed the evidence that all parties agreed upon as to the events that led to A. being given over to Mr. H.’s care by Ms. P. [ 22 ] Ms. C. confirmed that A. mentioned that he had been hit by Mr. K. Ms. C. testified that she was told to have someone talk to Mr. K. about these abuse allegations and Mr. H. agreed to go and have a talk with Mr. K., “man to man.” [ 23 ] Ms. C. stayed at her car and watched the events unfold. She said she saw Mr. H. approach Mr. K. and Mr.

K. crouched down into a boxing position. She then testified that she saw Mr. K. push and then punch Mr. H. Ms. C. testified that she called 911 and that the fight between these two men lasted twenty to twenty-five minutes. I confirmed with Ms. C. that her evidence was that the fight lasted twenty to twenty-five minutes; however, later in her evidence she began to resile from this evidence choosing instead to say she did not know how long the fight lasted. [ 24 ] During cross-examination, Ms. C. confirmed that she heard A. tell Mr. H. that Mr. K. had hit him and she confirmed that she and Mr.

H. had a discussion and they agreed that Mr. H. would go and speak to Mr. K., “man to man.” Also during cross-examination, Ms. C. stated that once A. was back with her and Mr. H., she observed Mr. K. making a rude gesture toward them with his middle finger. [ 25 ] She testified that Mr. H. walked over and approached Mr. K. and then she observed Mr. K. crouch into a boxing stance and then he pushed and punched Mr. H. with no provocation. [ 26 ] During cross-examination Ms. C. was shown a copy of the transcript of her 911 call. When asked, Ms.

C. refused to agree that her call to 911 lasted approximately five minutes stating that she could not recall how long the call lasted. By the end of the 911 call the police had arrived at the scene of the altercation and the fight was over. [ 27 ] During the course of her call to 911, Ms. C. told the operator that Mr. K. had been sitting in his car, “flipping his finger at us” and that Mr. H. went to find out why Mr. K. was making that rude gesture. She confirmed that she told the 911 operator that Mr. H. went over to Mr. K. to stop Mr.

K. from “flipping his finger” at them. [ 28 ] Later in that same 911 call, Ms. C. tells the 911 operator that Mr. H. is a child protection social worker and that he was a former police officer. Ms. C. confirmed in her evidence that Mr. H. told her he was a former police officer. [ 29 ] Ms. C. repeated to the 911 operator that Mr. H.’s purpose in going over to Mr. K. was to find out why Mr. K. was “flipping his finger” at them. [ 30 ] At no point during this 911 call did Ms. C. tell the 911 operator that A. had disclosed that he had been hit by Mr. K. and that Mr. H. was going over to tell Mr.

K. to stop hitting his son. Ms. C. left out this important piece of information in her call to 911 to explain Mr. H.’s reason for going to speak with Mr. K., despite having told the 911 operator that Mr. H. was a child protection social worker. [ 31 ] Ms. C. also testified that she told the 911 operator that Mr. H. had told Mr. K. to “Bring it on” and “Come on hit me” or “You want to hit me? Bring it on.” [ 32 ] I find it difficult to accept that A. allegedly reported to his mother and Mr. H. that he had been hit by his father. It is hard for me to believe that A. said this and Ms.

C. failed to mention that to the police during her 911 call. Accordingly I find as a fact that A. did not report to his mother and Mr. H. that he was hit by his father. I further find that Mr. H. constructed that story as a means to legitimize his confrontation of Mr. K. who he felt was being rude or disrespectful towards Ms. C. and Mr. H. [ 33 ] Mr. H. and Ms. C. were the only two witnesses called in support of Mr. H.’s claim against Mr. K. [ 34 ] Mr. K. gave evidence in support of his defence to this claim and he called evidence from his mother, Ms.

P., and another witness to this altercation, Katelynn Bannon. [ 35 ] Katelynn Bannon is unconnected in any way to either of these litigants or their witnesses. She was an independent observer of this fight between Mr. K. and Mr. H. [ 36 ] Ms. Bannon testified that on September 11, 2010 she attended at the strip mall where the Tim Hortons is located, in order to go to her bank and get some groceries. She was stopped at a four-way intersection when she observed a male wearing a red shirt cross the road in front of her vehicle.

[ 37 ] She observed this male (Mr. H.) approach a black truck and then saw a woman (Ms. P.) get out of the truck with a video camera. Ms. Bannon thought Ms. P. was video recording the scene. [ 38 ] Ms. Bannon observed Mr. H. walk up to a man in a white shirt (Mr. K.) and come nose to nose with Mr. K. She observed Mr. K. in the white shirt push Mr. H. back and away from him. She then said she saw fists flying and the fight had begun. She did not observe who threw the first punch. [ 39 ] Mr. H., through counsel, emphasized in argument that the precise location in the parking lot where Mr. H. and Mr.

K. were nose to nose is significant. Ms. Bannon testified that the men were blocking the roadway in front of her vehicle, yet Mr. K. and Ms. P. testified that Mr. H. came nose to nose with Mr. K. at a point where Mr. K. was backed up against his truck. The argument is that this difference in the evidence between Mr. K. and Ms. Bannon is important in assessing Mr. K.’s credibility. [ 40 ] I am not satisfied that anything turns on this difference in the evidence between Mr. K., Ms. P., and Ms. Bannon. [ 41 ] The precise location within a parking lot where a violent physical altercation begins is of no moment.

This is particularly so when that fight is a fluid event with the combatants moving about the parking lot while striking or attempting to strike blows against their foe. [ 42 ] I am satisfied that Ms. Bannon tried to give a careful, accurate, and truthful account of what she observed. [ 43 ] As I will address shortly, I am satisfied that both Mr. K. and Ms. P. have also tried to give a careful, accurate, and truthful account of the parking lot fight between Mr. H. and Mr. K. on September 11, 2010. In short, I find that nothing material flows from Ms.

Bannon’s evidence that the nose to nose confrontation between Mr. H. and Mr. K. occurred on the roadway just prior to the punches being thrown, whereas Mr. K. and Ms. P. testified that the same confrontation occurred when Mr. K. was backed up against his truck. I reach that conclusion because, as I will discuss shortly, I have concluded that nothing turns on who threw the first punch. That being the case, it is not necessary for me to assess Mr. K.’s or Mr.

H.’s credibility as to their conflicting accounts of who threw the first punch or where precisely in the parking lot they were standing when the fight began. [ 44 ] In any event, I am satisfied that Ms. Bannon’s evidence is truthful and accurate as best she can recall the events that happened four and a half years before she testified at this trial. [ 45 ] Ms. Bannon testified that she observed Mr. H. put the two men in the nose to nose position, that Mr. H. was backing up Mr. K., and that Mr. K. was backing off from Mr. H. [ 46 ] Ms.

Bannon testified that she had her windows up in her car and she could not hear what these two men were saying to each other. [ 47 ] In cross-examination, Ms. Bannon confirmed the essence of her evidence which was that she observed Mr. K. push Mr. H. and the fight erupted. [ 48 ] S.P. testified that after she dropped A. off with Mr. H. she walked back towards her son’s truck. As she approached her son’s truck she looked back to see Mr. H. walking quickly towards them. [ 49 ] She testified that Mr. H. came close to Mr. K. and asked Mr. K. why he had hit A. She said that Mr. H. was close to Mr. K.’s face.

She said Mr. K. then pushed Mr. H. and that Mr. H. threw the first punch. She observed the two men swinging punches at each other. Ms. P. captured the tail end of this fight on her video camera. [ 50 ] In cross-examination, Ms. P. was confronted on her evidence that Mr. H. threw the first punch, but she maintained that Mr. H. threw the first punch after Mr. K. pushed Mr. H. away from him. [ 51 ] Mr. K. testified that after he said goodbye to A., his mother took A. back to Mr. H. and Ms. C. Mr. K. testified that he waved his hand towards his son as A. returned to Mr. H. Mr.

K. denied that he made the rude finger gesture as alleged by Mr. H. and Ms. C. [ 52 ] He testified that he was standing outside of his truck when he observed Mr. H. walking towards his truck. Mr. K. testified that he was feeling scared or anxious - his heart rate was rising - but he remained by his truck. He testified that Mr. H. was storming towards him. [ 53 ] Mr. K. testified that Mr. H. said in a threatening manner, “If you hit your son again you will be punished.” He said that Mr. H. came face to face with Mr. K. and was presenting as hostile and threatening. Mr.

K. stated that he was backed up against his truck and he pushed Mr. H. away. [ 54 ] Mr. K. testified that Mr. H. then threw a right handed punch at Mr. K., but he ducked and Mr. H.’s punch missed. Mr. K. then punched Mr. H. with his left fist and the fight was on. Throughout the fight, Mr. K. said that Mr. H. was coming at him and Mr. K. confirmed Ms. C.’s evidence that Mr. H. said, “Come hit me” or words to that effect. Mr. K. testified that the fight ended when another male intervened. [ 55 ] Mr. K. is a skilled fighter - he has been boxing, kick boxing, and learning self-defence since he was sixteen years old.

He said that in the result, he was able to avoid being struck by Mr. H. and he was able to land most of his punches during the fight. From the photos taken of Mr. H. after this fight it is apparent that Mr. H. sustained injuries to his mouth and nose and above his right eye. [ 56 ] Mr. K. denied that he threw the first punch. He insisted that after he pushed Mr. H. away from his face Mr. H. threw the first punch. DISCUSSION

[ 57 ] Has the Plaintiff met his burden of establishing on a balance of probabilities, Mr. K.’s liability for the injuries Mr. H. sustained in this fight? My answer to this question is No. [ 58 ] Before I proceed with my analysis of the evidence in this case and deliver my factual findings, I think it is important to consider the law of tortious assault. In his learned text Canadian Tort Law , Allen Linden says the following with respect to the tort of assault: Assault is the intentional creation of the apprehension of imminent harmful or offensive contact.

The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. The underlying policy thrust of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law.

Assault should be distinguished from battery, although the two are often blurred together and called “assault.” This does not usually matter because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small… Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault. [ 59 ] Based upon the foregoing statement of the law, my view is that Mr. H.’s claim against Mr.

K. is a claim in tort for battery not assault, but nothing turns on that distinction given my findings which I set out below. [ 60 ] I am faced with evidence from Mr. H. and Ms. C. that cannot be reconciled with the evidence of Mr. K., Ms. P., and Ms. Bannon. The crux of the dispute between these parties is whether Mr. H. or Mr. K. threw the first punch in this fight. [ 61 ] However my view is that this case does not turn on simply weighing the evidence to determine who threw the first punch.

As with most fist fights there is not a process which the combatants go through prior to the fight whereupon they reach an agreement to start punching each other. [ 62 ] In the circumstances of this case, Mr. H. clearly went over to Mr. K. to confront him. Mr. H. knew that there was a highly conflicted relationship between Mr. K. and Ms. C. Mr. H. knew that there had been child protection and police investigations into allegations that Mr. K. had physically and sexually assaulted A. Mr. H. knew those investigations had not substantiated the abuse allegations. [ 63 ] Indeed given the level of conflict between Ms.

C. and Mr. K. over A., I find Mr. H.’s decision to go and confront Mr. K. with a new child abuse allegation during this public access exchange to be completely devoid of any reasonable judgment. He had to know that such a confrontation was likely to provoke an angry response from Mr. K., yet Mr. H. still chose to walk over and confront Mr. K. I am of the view that Mr. H. should be expected to accept the natural and reasonably foreseeable consequences flowing from his decision to confront Mr. K. [ 64 ] Next, I must consider the manner in which Mr. H. chose to confront Mr. K.

He chose to walk right up to the point that he was nose to nose with Mr. K. There is a dispute in the evidence as to where precisely Mr. K. was in relation to his truck at the start of this confrontation. I accept the evidence of Ms. Bannon on this point and I find that at the start of this confrontation Mr. K. was not backed up against his truck, but that he was more out in the roadway of the parking lot although he was in the vicinity of his truck. However, I also accept Ms. Bannon’s evidence that Mr. K. was backing away from Mr. H. who was aggressively approaching Mr. K. At some point Mr.

K. felt he had nowhere to go to avoid this confrontation with Mr. H. because he was backed up against his truck. Again, I find that all of the witnesses tried their best to testify accurately as to the fluid dynamics of this fight. But I also find that all of the witnesses would be more focussed on the violent physical altercation unfolding in this parking lot rather than the precise location of the combatants at the start of the fight. [ 65 ] My view is that choosing to confront Mr. K. with a new child abuse allegation in the manner Mr.

H. did, was most certainly going to provoke an angry and likely physical response from Mr. K. and I further find that Mr. H. knew that was likely going to be Mr. K.’s response. In fact, I am of the view that Mr. H. not only knew that Mr. K. would react angrily and likely physically as a result of being confronted with a new child abuse allegation, I find that Mr. H. intended his confrontation to extract an angry and likely physical reaction from Mr. K. [ 66 ] Mr. K.’s response to this confrontation was to push Mr. H. away to create some space between them. I find that under the circumstances Mr.

K.’s response was measured and reasonable. He was confronted by an aggressive Mr. H., who was nose to nose with him. Mr. H. was alleging, again, that Mr. K. was physically abusing his son. Mr. H. should have expected to be pushed away. [ 67 ] Following Mr. K.’s shove to back up Mr. H., a reasonable person would have backed off and walked away. However, Mr. H. did not disengage - he stayed facing and confronting Mr. K. Mr. H. was, according to Ms. C., inviting Mr.

K. to punch him. [ 68 ] I am of the view that at that point the physical fight had already started and I do not need to determine who, in fact, threw the first punch. I find that Mr. H.’s manner of confronting Mr. K. falls within the legal definition of a tortious assault of Mr. K. based upon the excerpt from Canadian Tort Law set out above. It is my view that by this point both men knew or ought reasonably to have known that if neither walked away from this confrontation the physical fight would continue.

I accept that these events happened quickly and I must make my findings keeping in mind that these events happened quickly in an environment of confrontation, emotion, anger, and threatening behaviour initiated by Mr. H. and reciprocated by Mr. K. I find that this was a consensual fight. [ 69 ] However, if I am wrong about that conclusion and it is necessary for me to determine who threw the first punch, then I reject Mr. H.’s evidence where it conflicts with Mr. K.’s evidence and the evidence of his witnesses and I accept the evidence called by the defence. [ 70 ] During his evidence Mr.

H. was very defensive, combative, argumentative, and uncooperative. His demeanour or his approach

to answering Mr. Ferbey’s questions was not warranted. Mr. Ferbey’s questions were clear and precise, but Mr. H. stated often he did not understand the question he was asked. [ 71 ] Mr. H.’s evidence conflicted with the evidence he tendered from Ms. C. Mr. H. was clear that he had never told anyone that he was formerly a police officer. Ms. C. testified that she told the 911 operator that Mr. H. was a former police officer based upon what Mr. H. had told her. [ 72 ] Mr. H. attempted to portray himself as a neutral peacekeeper in the ongoing conflict between Ms. C. and Mr. K. I find that the manner in which Mr.

H. conducted himself on September 11, 2010 was anything but a neutral peacekeeper. I infer that having been employed as a child protection social worker Mr. H. received some training on how to properly handle a child abuse disclosure from a young child. It would surprise me if within that training Mr. H. learned that what he did on September 11, 2010 fell in the range of acceptable ways to proceed following a child abuse disclosure. [ 73 ] In any event, I reject Mr. H.’s evidence as to who threw the first punch and I accept the evidence of Mr. K. and Ms. P. Neither was shaken on cross-examination.

Both witnesses struck me as open, honest, and trying to recall the events from four and a half years ago as accurately as possible. Their evidence is consistent with Ms. Bannon’s evidence that Mr. H. was the aggressor at the start of this fight. I find that it is of no moment that Ms. P. could not recall with certainty precisely where in relation to the side or rear of the truck Mr. K. was standing when he was confronted by Mr. H. Accordingly I find that after Mr. H. committed his tortious assault of Mr. K., and Mr. K. responded reasonably by pushing Mr. H. away, Mr. H. threw the first punch which Mr.

K. was able to avoid. At that point this confrontation became a pugilistic battle until it was stopped by onlookers. I find that Mr. H. was the aggressor throughout this confrontation. CONCLUSION [ 74 ] So, in conclusion I find that the fight between Mr. H. and Mr. K. started with Mr. H.’s tortious assault of Mr. K. over a new child abuse allegation and that from there this fight was consensual. On that basis I would dismiss Mr. H.’s claim. If, however, it is necessary for me to determine who in this fight threw the first punch, I prefer the evidence of Mr. K. and Ms. P. and I find that Mr.

H. threw the first punch. I am of the view that my conclusion in this regard supports Mr. K.’s defence that either this was a consensual fight or that Mr. K. was acting in self-defence. [ 75 ] Accordingly I dismiss Mr. H.’s claim. [ 76 ] In his written argument, Mr. K. has applied for a ten percent penalty to be assessed against Mr. H. which I infer is brought pursuant to Rule 20(5) of the Small Claims Rules . Mr. H. did not address this application in his written argument or in his oral argument that followed the exchange of the written arguments.

I am not sure if that was an oversight or if he has nothing further to say on this point. [ 77 ] Rule 20(5) of the Small Claims Rules authorizes a judge to impose a penalty of up to ten percent of the amount claimed or the value of the claim or counterclaim if a party made a claim, counterclaim, or reply and proceeded through trial with no reasonable basis for success. [ 78 ] I have found in these reasons that Mr. H. instigated the fight during which he sustained the injuries that lie at the heart of this case. I have found that he was the aggressor in this fight. I have further found that Mr.

H. made up the story about A. telling Mr. H. and Ms. C. that A. had been hit by Mr. K., and that he made up that story so he would have a legitimate reason to go and confront Mr. K. in a manner that I have found amounted to a tortious assault. I have also found that this was a consensual fight or in the alternative I have rejected Mr. H.’s evidence as to who threw the first punch and that Mr. K. was acting in self-defence. [ 79 ] In all of those circumstances I am of the view that Mr. H. has pursued this claim against Mr. K. with no reasonable basis for success. [ 80 ] Accordingly I award Mr.

K. judgment against Mr. H. in the amount of $2,500.00 which is ten percent of Mr. H.’s claim. Mr. K. is also entitled to his costs and expenses as determined by the Registrar. The Honourable Judge R.N. Hamilton Provincial Court of British Columbia