Not every case involving the world of employment deals with employers. A recent violent assault that took place in a parking lot ended up with the victim suing his attacker for lost wages, among other damages.
In the early morning hours of Jan. 22, 2018, Clayton Giesbrecht was sitting in his car in the parking lot of Castaways, a store in Tofino, B.C.
He had an arrangement with Castaways that he could use their Internet in exchange for helping out at the store. At around 5 a.m., he backed his car into a parking spot near the home of Ole Hansen. It was a cold morning, and when Giesbrecht went to leave, the car wouldn’t move.
He thought it might be because the engine was cold, so he started revving it in an effort to warm it up.
That woke Hansen up. He clambered out of bed, “not happy,” and got dressed and went outside to confront Giesbrecht. He grabbed a piece of wood similar to a 2×4.
Wielding it like a bat, he repeatedly struck Giesbrecht’s car — smashing the front and rear windows and denting the window frames. He then struck the driver’s side window, breaking it and hitting Giesbrecht’s arm – injuring him.
The victim’s credibility
Hansen argued that Giesbrecht was not a credible witness, stating he had unrealistic ideas or ideals.
But the court found him trustworthy, though it did say his ideas were “not mainstream.”
“He lives a simple life. He is not driven by money but rather by his passions. For example, he testified to the allure of a surfing lifestyle, which means if there are waves, everything else takes a back seat to surfing,” wrote Justice Murray of the Supreme Court of British Columbia.
“He has told employers and prospective employers that if there were waves he would not be at work. While Mr. Giesbrecht’s ideals might not be financially savvy or even perhaps realistic, there was nothing disingenuous about his evidence. He struck me as a sensitive, unsophisticated man.”
Giesbrecht’s injury was caused by the blow from the piece of wood to his arm as it shattered the driver-side window.
The glass cut his skin, and he felt a sharp pain in his wrist — he told Hansen he thought he had broken his elbow. He drove away and went to a hospital, and records showed the area was bruised, swollen and abraded, the court said.
Hansen admitted to the acts, and said he lost his temper.
He was ashamed of his actions that morning, and did not deny hitting Giesbrecht’s arm during the rampage.
Giesbrecht reported being in constant pain since the attack, and was no longer to do things he enjoyed including cycling and off-road biking. He became fearful of Hansen, and continues to experience anxiety, the court said.
His main source of income was fixing bikes, and when he could no longer do so he felt he had lost his purpose, he said.
The court noted that Giesbrecht had no issues with his elbow before being assaulted. Now, he has issues including constant pain he described as a pinching feeling along with numbness in his fingers and swelling in his elbow. Four years after the attack, there is no remedy in sight, the court said.
Non-pecuniary damages: Giesbrecht asked the court for $80,000 in non-pecuniary damages; Hansen asked for it to be set at $6,000.
Taking into account the constant pain, the loss of enjoyment from activities he can no longer do, the nightmares he has about Hansen chasing him and the fact he moved out of Tofino as a result, the court settled on $60,000 in damages.
Hansen argued that should be reduced by 25 per cent because Giesbrecht allegedly didn’t take recommended treatment. The court rejected that request.
Aggravated damages: Hansen argued this was not a case for aggravated damages, because the attack happened in the dark – meaning no one else witnessed it. And the injuries didn’t mar or disfigure Giesbrecht. Hansen also pled guilty to criminal charge of mischief and was sentenced to a term of probation.
The court rejected Hansen’s argument, partially because his guilty plea was only to an attack on the car, not on Giesbrecht.
To compensate for mental distress – nightmares, self-esteem issues and confidence – the court tacked on $3,000.
Punitive damages: Hansen argued that punitive damages were not justified because the attack was not malicious nor did it depart from the ordinary standards of decent behaviour.
Again, the court poked holes in his logic.
“Mr. Hansen’s behaviour was unprovoked, malicious, and uncontrolled. It was definitely a marked departure from the ordinary standards of decent behaviour,” the court said.
“While I can appreciate Mr. Hansen’s annoyance at being woken by Mr. Giesbrecht revving his engine, his actions in taking a 2×4 and smashing Mr. Giesbrecht’s car over and over again without any regard to the damage or injury he was causing or could cause is highly reprehensible.”
The conduct was so egregious, it had to be punished. The court added $8,000 in punitive damages.
Past-wage loss: Giesbrecht asked for nearly $46,000 in lost wages from the time of the attack in 2018 to the time of trial.
On this front, he wasn’t successful. The court simply didn’t have enough evidence about his income leading up to the attack.
His evidence on income was vague, and nothing was reported on his income tax returns. He didn’t testify how his other sources of income, including picking mushrooms and selling things on eBay, was impacted.
No damages were awarded.
Loss of earning capacity: This is where Giesbrecht sought the biggest award – $200,000.
He said he had to move out of Tofino and lives in a community where a bike business is not feasible.
But, as with past wage loss, the court called the evidence about his inability to work “unclear.”
“While I accept that he suffered an injury to his elbow that continues to cause him pain and may impact some of his ability to perform manual labour (although this is unclear), there is insufficient evidence to show how his earning capacity is impacted,” the court said.
Special damages: The court awarded $355.01 to Giesbrecht for a prescription cream he was using to get pain relief.
It also ordered Hansen to pay $2,197.55 to the Ministry of Health for costs related to health care; and $2,252.69 for costs under the Crime Victims Assistance Program (CVAP). That was to cover moving costs for Giesbrecht as Hansen’s actions made him feel unsafe in Tofino.
“The harassment included threats by local mechanics who worked with Mr. Hansen. It also includes Mr. Hansen driving his excavator to Mr. Giesbrecht’s bike shop and waving at him — something Mr. Hansen never did before the assault,” the court said.
Total damages came to $75,805.82.
For more information, see Giesbrecht v Hansen, 2022 BCSC 1673 (CanLII)
But it reduced that amount by 25 per cent because Giesbrecht