Qiao v. Owners, Strata Plan LMS 3863

2020 BCSC 818 Qiao v. Owners, Strata Plan LMS 3863

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Qiao v. Owners, Strata Plan LMS 3863, 2020 BCSC 818 Date: 20200602 Docket: S125576 Registry: Vancouver Between: Man Qiao, a.k.a. Caren Qiao Plaintiff And Owners, Strata Plan LMS 3863, Alltek Patrol Corp., Satvir Gill, Jacky Cheng Defendants Before: The Honourable Madam Justice Donegan Corrected Judgment: The front page of the judgment was corrected on June 5, 2020 Reasons for Judgment Counsel for the Plaintiff (appearing on April 8-12 and April 15-18, 2019): D.P. Davison Appearing on her own behalf (July 29-30, September 9-13, 2019 and January 6-8, 2020): M. Qiao Counsel for the Defendants: J.D. Fisher A. Peng, A/S Place and Date of Trial: Vancouver, B.C. April 8-12 and 15-18, July 29-30, September 9-13, 2019 and January 6-8, 2020 Place and Date of Judgment: Vancouver, B.C. June 2, 2020

INTRODUCTION [1] Crystal Mall (the "Mall") is a large and busy shopping mall in Burnaby, British Columbia. Man Qiao, the plaintiff, lives in a condominium beside the Mall and shops there frequently. On March 30, 2012, Ms. Qiao entered the Mall to look for someone and ended up in a physical altercation with a security guard, the defendant, Satvir Gill (the "Incident"). Ms. Qiao alleges that she was significantly injured in that altercation and that her injuries were caused by the wrongful and tortious acts of Mr. Gill. She claims his employer, the defendant, Alltek Patrol Corp. ("Alltek"), is vicariously liable for those acts. [2] Ms. Qiao brings claims for assault and battery, false arrest and imprisonment, intentional infliction of mental suffering, as well as defamation against Mr. Gill and Alltek. She claims general damages, damages for cost of future care, special damages, as well as punitive, exemplary and aggravated damages for a total in excess of $11,000,000.00. Alltek and Mr. Gill deny liability, but say that even if established, the plaintiff has failed to prove causation and most if not all of the damages she seeks. [3] In addition to her own testimony, which spanned the course of several days, the plaintiff called three witnesses - Dr. Lacresha Hall, a forensic psychiatrist; Lan Zhang, a traditional Chinese medicine practitioner and acupuncturist; and Raymond Fung,

a muscle-balance therapist. Ms. Qiao also relied upon portions of the examination for discovery evidence of three of the defendants' witnesses, various documents and video recordings that captured portions of the Incident at the Mall on March 30, 2012. [4] The defendants called five witnesses - Mr. Gill; Alan To, the owner of Alltek; Wing Tam, the operations manager of the Mall; Dr. Mark Riley, a forensic psychiatrist; and Dr. Daniel DeForge, a physiatrist. They also relied upon portions of Ms. Qiao's examination for discovery evidence, various documents and the video recordings from that day. [5] I will begin by introducing the parties, the location where the Incident occurred and other non-contentious background facts. I will then make findings of fact about the Incident that underpins this lawsuit before turning to the issue of liability.

FACTS Background Facts [6] Ms. Qiao is currently 60 years of age. She was in her early 50s at the time of the Incident. Originally from China, Ms. Qiao's first language is Mandarin. Having lived in Canada for over 25 years now, Ms. Qiao understands and speaks some English, but is more comfortable and proficient communicating in Mandarin. [7] Before moving to Canada, Ms. Qiao completed university as a pharmacist. Her vocational background since coming to Canada in 1993 is difficult to ascertain precisely as she testified about renovation projects, some interior design work, as well as buying, renting and selling homes in the Lower Mainland. [8] At the material times, Ms. Qiao lived in two residences she owned, one of which is a residential strata unit adjacent to the Mall, located at 6088 Willingdon Avenue (the "Mall Condo"). The other was a home in Maple Ridge (the "Maple Ridge Property"). She primarily lived in the Mall Condo. [9] The Mall is a large, two-level shopping mall centrally located in Burnaby, on the corner of Willingdon Avenue and Kingsway. It has several entrances, making it accessible from all four streets surrounding it - Willingdon Avenue, Kingsway, Kingsborough Street and McKay Avenue. The Mall has a circular design with 279 strata units and 250 stores. It has a public market, a food court and other services, including a bank and restaurants. It has an outdoor

corridor running north/south through it, with an open central court. This outdoor corridor and central court are located on Mall property. The public market units are located on the ground floor of the Mall and the food court is located on the upper floor. The Mall has security cameras in various locations throughout its interior and its outdoor corridor, but these cameras do not capture all areas or all angles. [10] Wing Tam has been the operations manager of the Mall since 2001. He explained that the Mall's customers are primarily Chinese. Ms. Qiao, a frequent customer, explained that many of the signs are in a Chinese language and the language predominantly spoken by shop owners, employees and patrons is either Mandarin or Cantonese. The goods that are sold are primarily Chinese products. Living for years in such close proximity to the Mall, Ms. Qiao attended there frequently, as often as three to four times per week, to purchase groceries and socialize with friends. She came to know some of the shop owners. Ms. Qiao described the Mall as very busy, very noisy and "full of energy". [11] Alltek is a security company. Incorporated in British Columbia in 2003, it continues to do business in the Lower Mainland to this day. Qwok Leung To, also known as Alan To, is the owner of Alltek. [12] Alltek provides security guard services to residential and commercial customers, as well as

security for special events and locations. In 2012, it employed approximately 20 to 25 employees and serviced about 30 contracts. [13] Alltek began to provide security services for the Mall on July 1, 2006 and continues to do so today. Its contract for services at the Mall is with the Owners, Strata Plan LMS 3863 (the "Owners"). Ms. Qiao's claim against the Owners was dismissed by consent prior to trial. Directions or instructions for security activities within the Mall are provided by Mall management, through Mr. Tam. [14] At the time of the Incident, Alltek was providing the Mall with 24-hour security services. Its services included providing security guards, performing opening and closing procedures at the Mall property, conducting random patrols after closing, providing customer service and tenant assistance as needed, providing emergency response as needed, communicating and reporting regularly with Mr. Tam, and conducting general security work, including responding to disturbances, vagrants, shoplifters, parking violations, injuries and other incidents on Mall property. [15] Guards employed by Alltek receive security training through an approved course and obtain licensing from the provincial authority. They also receive on-the-job training, including instructions and directions from their particular customers regarding their specific routines and protocols. Mr. To

explained that in addition to the Basic Security Training ('BST") Courses 1 and 2, courses required for government licencing, Alltek's guards receive on-the-job training and take instruction from the customer. The Mall provides a security manual for the guards' reference which provides instructions on a variety of topics, including their duties each shift, first aid instructions, bomb threat, robbery and banning procedures, as well as water, fire and electrical information and procedures. Additional instructions to Alltek's guards come from Mr. Tam, either by way of memorandum or verbally to Mr. To and/or the onsite supervisor. [16] Satvir Gill took and passed the required BST courses and obtained his license to work as a security guard in 2006. His first job in this field was with Alltek. Mr. To hired him in 2006/2007. At first, Mr. Gill worked as a mobile security guard, driving between various customer locations as required. In 2009, Alltek moved Mr. Gill to the Mall. He received on-the-job training about the Mall's routines, protocols and requirements from the security supervisor there at the time, David Lo. After his training, Mr. Gill continued working at the Mall and eventually obtained the weekday morning shift from 7:00 a.m. to 3:00 p.m. [17] In 2011, Alltek promoted Mr. Gill to site supervisor, replacing Mr. Lo. In addition to his regular guard duties, Mr. Gill was

now responsible for managing the other guards' shifts, as well as reporting and meeting daily with Mr. Tam. His regular guard duties included opening the Mall doors, patrolling the property, addressing calls and complaints, keeping the loading bay clear, removing vagrants from various areas, reporting to and receiving instructions from Mr. Tam, and relaying instructions to the other guards. He commonly dealt with complaints by merchants or strata council members about the loading bay being blocked, people smoking at entrances and loitering. He also attended to fire alarms or drills, assisted emergency personnel in medical emergencies and attended to various maintenance-type issues. [18] Mr. Gill wore a uniform while on duty that identified him as "Alltek Patrol Security". He also wore a clip-on tie, a hat, and an earpiece connected to his radio and clipped to his shirt, with the mouthpiece clipped to his collar. If there was a security issue, Mr. Gill could be paged, called on his cellular telephone or called on his radio. [19] Mr. Gill is 5' 8" tall. At the time of the Incident, he was 36 years old and weighed about 145 lbs to 150 lbs. Although not his first language, he is fluent in English. He does not speak or understand Mandarin. [20] Starting in about 2010, Mr. Gill also worked occasionally for another of Mr. To's companies, Master Hospitality Resources, as a concierge.

Mr. Gill continued working full-time for Alltek at the Mall until 2014, when injuries he suffered in a motor vehicle accident prevented him from continuing in that type of employment. Once his injuries had healed to the point he was able to return to some work, Mr. Gill returned to work for Master Hospitality Resources as a concierge. He gradually worked up to full-time hours and continues working there today. The Incident [21] The Incident began when Ms. Qiao entered the Mall shortly after 11:00 a.m. on March 30, 2012 and ended a short time later when RCMP arrived and placed her in handcuffs. The evidence about what occurred in that short timeframe comes primarily from three sources - Ms. Qiao, Mr. Gill, and the various video recordings. The evidence of Ms. Qiao and Mr. Gill differs in many key respects. While the video recordings provide some reliable evidence about what happened, central to my fact-finding process is my assessment of the credibility of Ms. Qiao and Mr. Gill, and the reliability of their evidence. [22] Before I begin with an overview of the evidence, I will say a brief word about the assessment of credibility and reliability. The court's fact-finding role requires an assessment of the credibility, which is the truthfulness and honesty of the witness, and the reliability, or accuracy, of the witness' evidence. This requires consideration of many factors, which

were summarized by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186: [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Farnya at para. 356). [23] To the above, I would add that a court may believe some, all, or none of the evidence of a witness, that

credibility determinations "may not be purely intellectual and may involve factors that are difficult to verbalize" (R. v. R.E.M., 2008 SCC 51 at para. 49) and that it is important not to base determinations of credibility on emotional evaluations, stereotypes, guesswork, or other impermissible reasoning. Credibility and reliability assessments have to be grounded in reason and made as objectively as possible. [24] I am also mindful to be cautious about placing too much reliance on the demeanour of a witness. I have no baseline upon which to assess the demeanour of a witness and I know that a courtroom can be an unfamiliar and intimidating place for most people. Everyone reacts to the courtroom environment differently. [25] I will now provide an overview of the evidence about the Incident. Ms. Qiao's Evidence [26] Ms. Qiao testified that on March 30, 2012, she was outside the Mall with her two small dogs when a man approached them carrying a large stick. He threatened her dogs and she intervened, yelling at him to stop. Ms. Qiao quickly took her dogs home before going back to speak with the man. She saw him walk into the Mall through a nearby entrance, so she walked into the Mall through that same entrance, intent on finding him. Ms. Qiao explained that she wanted to talk to the man because, as a long-time member of the SPCA, she felt it was her responsibility to make him

understand that he should not "take out his problems on the small and weak, especially not animals". Ms. Qiao denies being angry when she entered the Mall to find this man, but acknowledges that she was upset. [27] When Ms. Qiao entered the Mall, she began calling out for the man. She had to shout to be heard over the surrounding noise. She repeatedly shouted, in Mandarin, words to the effect of "would the man who hit the dogs outside come forward, I would like to talk to you", as she walked through the marketplace, up the escalator, through the food court on the upper level and then back down to the ground level. Once back to the ground level, Ms. Qiao testified that she was going to give up the search and was no longer yelling. As she was going to leave the Mall, a friend who owned and worked in a nearby store, called out to her. Ms. Qiao testified that she went over to speak with this friend and they had a three to five-minute conversation before the security guard, now known to her as Mr. Gill, confronted her. Ms. Qiao knew that Mr. Gill was a security guard by his uniform. [28] Ms. Qiao testified that the security guard told her, in English, that she cannot speak loudly in this area. She understood him and told him, in English, that she was leaving. She testified that she pointed to an exit door further into the Mall and asked Mr. Gill if she could leave through that door.

Ms. Qiao testified that Mr. Gill then said "fine, you can leave there". Ms. Qiao denied that Mr. Gill told her to leave the Mall. [29] Ms. Qiao says that she then walked further into the interior of the Mall, toward the exit door that she had pointed out to Mr. Gill. She testified that she was intending to go home, but wanted to continue looking for the man along her route. She was unaware that Mr. Gill was following her as she walked through the interior of the Mall and then along its outdoor corridor. [30] Ms. Qiao was shown a Mall security video recording that shows her walking along the outdoor corridor toward Willingdon Avenue. The video shows her stopping and turning in the direction of an open entrance door at 11:10:21 a.m. Her counsel asked her why she stopped. Ms. Qiao testified that she stopped because she had seen the owner of a computer store who had previously repaired her computer. Her computer was having problems, but she decided that it was not the time to go into the store. Mr. Gill then approached her from behind and she turned to face him. [31] Ms. Qiao testified that she said nothing to Mr. Gill. He stood very close to her and she felt intimidated. Mr. Gill told her she was not allowed to enter the Mall and she replied by telling him that she was walking home and was leaving. She testified that neither of them touched the other during this exchange. [32] Ms.

Qiao testified that as she turned to leave, Mr. Gill suddenly, and without warning, grabbed her from behind. She cannot recall if either of them said anything because it happened so fast. She could not remember if Mr. Gill told her she was under arrest because it happened so suddenly. She felt "dumbstruck". Ms. Qiao denied Mr. Gill's version of events, that she told Mr. Gill that she was going to "check there" and pointed toward the Mall. She explained that her arm movements, as seen on the video, were natural movements stemming from her background as a dancer. [33] Ms. Qiao testified that Mr. Gill then dragged her by her jacket through a Mall entrance door and back into the Mall. She thinks that she said to him "let me go". He did not tell her where he was taking her. Ms. Qiao testified that she felt a "little dizzy" and wanted to break free. She became very angry. She did not deny that Mr. Gill led her with his right hand on her back and his left hand on her left arm into the Mall, but felt that it was "too fast". [34] Ms. Qiao testified that once inside the Mall, she and Mr. Gill were face-to-face and they grabbed each other. She was trying to break free and they struggled a lot. She lost her shoe in the struggle. She told him "let me go" repeatedly. In cross-examination, Ms. Qiao admitted to grabbing Mr. Gill's collar and shirt and not letting go. She testified that she

kept holding him in that same position so that she could control him in order to break free. She could not recall if she pulled his earpiece off. She denied scratching Mr. Gill's face, pulling off his necktie, breaking his necklace and breaking the button on his shirt. [35] Ms. Qiao was shown a recording from a mall patron's cellular telephone that shows her up against a wall after their struggle down the interior corridor. Ms. Qiao estimates that the struggle in the corridor lasted about 20 minutes. She was shown a portion of the recording that shows Mr. Gill manoeuvering her to the ground. She testified that she had been resisting his efforts to do so "with all her strength". Once on the ground, Ms. Qiao testified that Mr. Gill put his whole body on top of hers, to press her down. She was asked how this made her feel. She testified that she felt that Mr. Gill was going to rape her. Her counsel put it to her that Mr. Gill did not sexually assault her or "anything like that" and Ms. Qiao replied that during the "whole process he touched all parts of my body", mostly down my "front chest". Later, she testified that at some point Mr. Gill touched her breast. Ms. Qiao described that at one point Mr. Gill held her down with his knees and legs and the full weight of his body. [36] Ms. Qiao testified that as Mr. Gill held her down, he called police. She heard him tell police that she

attacked him. She yelled repeatedly that Mr. Gill was a liar and that he had attacked her first. [37] When the RCMP officers arrived, Ms. Qiao was brought to her feet and handcuffed. She was confused by this. While one officer spoke with her, she saw another officer speaking with Mr. Gill. That officer then came over to her and asked her to sign a form that said she "would never enter the Mall again". She refused to sign the document. The officer told her that if she refused to sign he would take her to jail. She maintained her refusal and asked for a lawyer. The officer let her go. [38] Ms. Qiao testified that after the officer released her, she immediately left the Mall and walked to the nearby RCMP office (only about 30 metres away) to report what had occurred. She testified about her interactions with two officers there. Ms. Qiao described that the first officer would not allow her to report her complaint and asked her to leave. She felt extremely confused. She testified that she could not understand how this could occur in Canada and that "everybody would believe in a terrorist, a liar" (referring to Mr. Gill). Ms. Qiao refused to leave the police station. Eventually, a second officer spoke to her. According to Ms. Qiao, the officer told her that she was "dangerous today" and asked her if she had family here. He took her details and told her that he would call her. [39]

Ms. Qiao testified that she then went home to wait for his call. According to her evidence, the officer called her within about 20 minutes. The call confused her because she says the officer told her that he had watched the Mall security video and agreed that it was actually the security guard who "attacked" her, but he did not seek to have her pursue her complaint. [40] Ms. Qiao denied remaining in or going back to the Mall that day. She testified that she did not go back to the Mall for over two months. Mr. Gill's Evidence [41] Mr. Gill testified that on March 30, 2012, he was in the security office in the Mall when Flora, a woman he knew to be one of the owners of a shop in the marketplace, Loks Produce, knocked on his office window. She told him there was a female in the marketplace that was screaming and that he needed to "check it out". Mr. Gill testified that he responded right away. As he entered the marketplace, he heard the screaming, in a Chinese language that he could not understand. He approached the person who was screaming, now known to him as Ms. Qiao, and asked her what the problem was. She yelled at him that it was "my business". He told her that she cannot be causing a disturbance in a public place, cannot scream and yell and had to leave. Ms. Qiao replied "I'm leaving". This conversation was in English. Mr. Gill testified that he pointed to the closest exit

door, the Kingsborough Street exit door (the door that Ms. Qiao had entered and the door he was facing), but Ms. Qiao instead walked past Mr. Gill further into the Mall. [42] Mr. Gill testified that he followed Ms. Qiao from a distance as she walked through the interior part of the Mall and eventually out an exit door to the exterior corridor of the Mall. While he followed her along the exterior corridor, he saw her stop at a north entrance of the west mall. He approached her and asked her to move forward, to get off the property. He testified that Ms. Qiao refused and said she wanted to "check there", pointing toward a mall entrance door. Mr. Gill testified that they were having some communication issues and he did not understand some of the things that Ms. Qiao said, so he decided to "get a hold of her and take her into the management office" to have someone interpret, and then take her off the property via the loading bay. In portions of his examination for discovery evidence read in by the plaintiff, Mr. Gill gave evidence that he believed he was either arresting or detaining her at this point for trespassing. [43] Mr. Gill testified that he placed one hand on the arm of Ms. Qiao's jacket and his other hand behind her back and they walked through the north entrance door. He testified that Ms. Qiao was compliant for a short period of time, but this changed when he removed

his right hand from her back to retrieve his radio to call to the management office. This occurred when they were just past the third store from the door. As he went to use his radio, Ms. Qiao grabbed him by his collar and would not let go. Mr. Gill testified that he immediately let go of her arm, grabbed her hand and asked her to let go, but she refused. They then had a little struggle down the corridor and Mr. Gill testified that as they turned left around the corner, he "took her to the wall" across from the Fido store. Ms. Qiao had a good, strong hold on his collar and tie and he asked her to "please let go". While he had her up against the wall, he saw her hand coming at him, so he pushed her hand back to avoid his face. This happened a couple of times, so he bent her at the waist in an effort to have her release her grip on him, to no avail. [44] In order to free himself from her grip, Mr. Gill testified that he then put his right hand under her and used his hip to ease her down to the floor and onto her back. When she was in this position, he knelt next to her, pulled her hand off of his clothes, and crossed her arms over one another, locking them together. This allowed him to free one of his hands to use his cellular telephone to call 911. He called 911, explained what took place and asked for RCMP to attend his location as soon as possible. While he was on the

telephone asking for RCMP assistance, he heard Ms. Qiao repeatedly call him a liar. [45] When the RCMP arrived, he got up and picked up his tie and belongings. Mr. Tam and Mr. To were present and one of them pointed out a scratch on his face. He walked back to the security office and retrieved a banning notice that he wanted to give Ms. Qiao. He gave the notice to the RCMP officer. A short time later, the officer returned it to him, unsigned, so he decided not to pursue it. [46] Mr. Gill saw the police officer remove the handcuffs from Ms. Qiao's wrists and release her. He then saw her sitting in a "yoga pose" on the floor in the Fido store. Unsure what she was doing, he took a photograph of her in that position and then left the area. [47] Mr. Gill testified that he then went to the security office to clean up his face. He used a swab to clean a small amount of blood from the scratch that was apparent on his face and applied polysporin to it. Mr. To took a photograph of his face. It was at this time that Mr. Gill noticed the button on his collar and his necklace were both broken. [48] That same day, Mr. Gill prepared a report about what occurred and gave it to Mall management. A few weeks later, he prepared a supplemental report on the request of an insurance adjuster. Both of these reports are included in the joint book of documents before me. Counsel did not identify any

purpose that would support their admissibility. Other than for the very limited purpose that the statements were made, I will not consider their contents or rely upon them in any way. The Video Evidence [49] The video evidence comes from seven separate Mall security cameras and a Mall patron's cellular telephone. Of the seven Mall security recordings, two capture areas on the ground level of the Mall. These are identified as cameras 6 and 7. The other five mall security recordings capture areas on the exterior corridor of the Mall. They are identified as cameras 2, 4, 5, 6 and 7. To avoid any confusion arising from the overlap in numbering, I will refer to the recordings by location (interior or exterior) and number. [50] There is no issue about the authenticity of these recordings. There is also no issue that they are helpful to the court's fact-finding process, but I am mindful of their limitations. The Mall recordings lack audio and are mostly from a distance, making it difficult to see precisely what the parties are doing. Ms. Qiao and Mr. Gill identified themselves in the recordings and I accept their identifications are accurate. [51] Interior camera 6 shows a corridor of the public market area of the Mall. The entrance to this corridor is located on Kingsborough Street, but the recording does not show the entrance, as the camera is located it past it. Ms. Qiao comes into

camera view at 11:02:02 a.m. Given her location, I can reasonably infer that she entered the Mall only a few seconds before this. The corridor is lined with shops and the area is crowded. Ms. Qiao can be seen walking down the length of the corridor toward the interior of the Mall. Her back is facing the camera. It takes Ms. Qiao about 30 seconds to walk the length of the corridor before she walks out of view. [52] At 11:07:49 a.m., interior camera 6 shows Ms. Qiao coming back into view from the direction she left. It shows her walking down the same corridor, this time toward the camera and toward the Kingsborough Street door. Ms. Qiao stops partway down the corridor, turns back around, walks several paces back toward the inside of the Mall and stops in front of a shop for only a few seconds before turning back toward the camera again. Ms. Qiao then walks toward the camera a few paces before turning back and walking again toward the interior of the Mall. She goes off camera for a few seconds before returning to the corridor. She then walks a few paces past the same store she had stopped at previously before turning around again. It is there that she meets Mr. Gill. The time is 11:08:57 a.m. She has been in the Mall for about nine minutes at this point. [53] The recording shows Mr. Gill and Ms. Qiao standing face-to-face. Mr. Gill is facing toward the Kingsborough Street door and

Ms. Qiao is facing toward the interior of the Mall. They stand this way for about 11 seconds, until 11:09:08 a.m., when Ms. Qiao moves past Mr. Gill and walks toward the interior of the Mall. Mr. Gill follows her. They are out of camera view by 11:09:18 a.m. What they said to one another in the 11 seconds they stood face-to-face is a source of controversy. The video recording's quality does not allow me to see their facial expressions or any hand gestures. Of course, there is no audio. [54] Interior camera 10 shows another corridor in the interior of the Mall. It is a short corridor, with three shops lining one of its sides. The recording shows Ms. Qiao entering the corridor at 11:09:27 a.m., about 19 seconds after she left Mr. Gill. She walks along the corridor on the side nearest to the shop entrances. Mr. Gill enters the camera view about four seconds later. He too walks the length of the short corridor and goes off screen at 11:09:41 a.m., several paces behind Ms. Qiao. [55] Exterior camera 6 shows an area of the open courtyard of the Mall. The recording shows Ms. Qiao entering the camera view at 11:09:45 a.m., walking through the courtyard. Mr. Gill enters the frame several seconds later, still following her. At 11:09:54 a.m., it shows Ms. Qiao stopping in the courtyard. She turns briefly in Mr. Gill's direction and then continues walking in the same direction as she had

been, toward a corridor captured by exterior camera 2. [56] Exterior camera 2 shows an exterior corridor leading to the corner of Willingdon Avenue and Kingsway. The corridor has entrances to the interior of the Mall on either side. This recording is different from the other Mall security recordings in that it is in colour and has better visual quality; however, I am still unable to see details, such as the parties' facial expressions and some of their finer movements. [57] The recording from exterior camera 2 shows Ms. Qiao entering the part of the walkway captured by this camera at 11:10:02 a.m., walking roughly in the centre of the corridor toward the corner of Willingdon Avenue and Kingsway. At 11:10:20 a.m., Ms. Qiao walks slightly toward an open Mall entrance door to her right, but remains moving in the direction of the street. As she walks by the open door, she appears to be looking toward it. She stops several feet across from the open door, with her body still facing the street and appears to look toward the open door. She then turns her head away from the door and begins to walk forward toward the street again. She takes two steps toward the street before turning around to face Mr. Gill, who was approaching her from behind. [58] At 11:10:28 a.m., the recording shows Ms. Qiao and Mr. Gill standing face-to-face, very close to one another. They stay in this position for

about ten seconds. What they say to one another during this short timeframe is a source of controversy. They are sideways to the camera, with Ms. Qiao's right side and Mr. Gill's left side closest to the camera. There is some movement of their arms, but it is difficult to tell if they touched one another. [59] At 11:10:37 a.m., the recording shows that Mr. Gill has a hold of the back left, upper part of Ms. Qiao's jacket with his right hand. Ms. Qiao turns away from Mr. Gill and tries to take a step in the direction of the street, but Mr. Gill pulls her back toward him by her jacket. He pulls her along with him a few feet toward the Mall entrance door. He then pulls her body in front of him and they walk through the door and off screen at 11:10:41 a.m. [60] What happened once they entered that door is not captured by any Mall security cameras, but a portion of their interactions were captured by a Mall patron's cellular telephone (the "Cell Phone Video"). The Cell Phone Video is broken into three separate recordings. The first is one minute and 44 seconds long, the second is 23 seconds and the third is eight minutes and seven seconds. All together, they capture about ten minutes of the parties' interactions. Although they are three separate video recordings, they appear to record the event continuously. [61] The Cell Phone Video has sound and its visual quality is better than

the Mall security videos; however, I am mindful of its limitations as well. The first portion of the first recording is oriented sideways. The audio and video from all three recordings are occasionally obstructed by Mall patrons and surrounding noise. Nearly all of what Mr. Gill said cannot be heard. [62] The first recording from the Cell Phone Video begins with Ms. Qiao standing with her back against a wall. Mr. Gill is in front of her. There is no evidence about how long they were standing in that position before the recording starts. They appear to be holding on to each other and speaking, but their voices cannot be heard. At one point, Ms. Qiao yells out "my shoes, my shoes", her hand comes up and the two grapple. Now 22 seconds into the recording, Mr. Gill bends Ms. Qiao's torso over, so that they are both bent at the waist, with their backs facing the camera. Locked in this position for approximately 32 seconds, Mr. Gill manoeuvers Ms. Qiao onto the ground. Precisely when he is doing this, a passerby obstructs the view (and the image is sideways). From what can be seen, Mr. Gill uses his body to manoeuver Ms. Qiao onto the ground, onto her back. I would not characterize his taking her to the ground as particularly aggressive or rough, nor would I describe it as particularly gentle. As they are both bent at the waist prior to going to the ground, the distance he brings her

down appears to be about three or four feet. Ms. Qiao cries out when she hits the ground. She bends her right leg and crosses her left leg over her right knee. [63] The recording shows Mr. Gill holding Ms. Qiao on the ground with his upper body and arms. While his upper body is over her upper body, his legs are on the ground to the left of her. At times, both of his legs are kneeling and at times, one leg is kneeling while the other foot is on the ground. [64] The recording shows Mr. Gill trying to break Ms. Qiao's grip from his collar and tie. When he finally does so at the one minute and 30 second mark of the first recording, one can see that Mr. Gill's tie comes off in her hand. Mr. Gill is kneeling beside Ms. Qiao, holding her arms pinned across her chest. The camera angle does not allow me to see all of Ms. Qiao, but she can be heard to yell "you're a liar", "you touched me first", "I have no shoes", "I did nothing wrong", "I never attacked you", "I won't let you go", "you attacked me first" a number of times. She yells other things too, including "I'm not yelling, I'm singing", "you touched my breast" and "you sexually harassed me". Mr. Gill can be seen speaking to her as he is over her holding her down, but his voice cannot be heard. [65] Mr. Gill can be seen on the telephone at one point. The video recording shows Mr. Gill crossing Ms. Qiao's arms over her chest and

holding them there with one hand as he speaks on the telephone. At about the six and a half-minute mark of the third recording, two RCMP officers arrive and Mr. Gill gets up off the ground. When he does so, the recording shows that both of his legs had been on the ground and not on Ms. Qiao's body. The officers bring Ms. Qiao to her feet and place her in handcuffs. All told, Mr. Gill held Ms. Qiao on the ground for about seven and a half minutes. Assessment and Findings of Fact [66] I will begin with the evidence of Mr. Gill. In short, I found him to be a credible witness and his evidence mostly reliable. Other than one area of his evidence that I found unreliable, which I will discuss, Mr. Gill's evidence was balanced, consistent and careful. [67] Balance exists when a witness shies away from exaggeration or minimization, admits memory frailties or other personally difficult facts or credibly acknowledges weaknesses in his evidence. A balanced witness does not answer questions strategically, in the sense that he does not avoid answering or attempt to unreasonably control the narrative. He answers the questions asked and does not appear to have an agenda. [68] Mr. Gill was such a witness. Although many serious allegations were levelled against him, he answered the questions asked in a direct, calm and careful manner. He answered without any appearance of an agenda and without

any unreasonable defensiveness. Other than in one particular area, Mr. Gill relayed what he did and why without exaggeration or minimization. Similar to how he appeared on the Cell Phone Video, Mr. Gill was quiet and calm when he testified. He was not evasive. He reasonably admitted some memory frailties about the precise words they used that day. He reasonably admitted language barriers between them caused communication difficulties that day. [69] I find that most of Mr. Gill's evidence is reliable. His memory of the significant details was not shaken. As his first and only "citizen's arrest", I accept this event is memorable for him. He was called upon to account for nearly every second of his brief interactions with Ms. Qiao nearly eight years ago. His evidence was nearly always internally consistent and mostly consistent with other evidence I accept, such as the observations of Mr. Tam and what the video recordings show. [70] Mr. Gill's evidence was less than reliable in one area - when he brought Ms. Qiao back into the Mall. Three points arise. [71] The first pertains to what he believed he was doing when he decided to bring Ms. Qiao back inside the Mall. Mr. Gill did not give any evidence at trial about whether he believed he was arresting or detaining Ms. Qiao, or at what point in their interactions he may have done either of these things. However, at his examination for

discovery, he gave evidence that he believed he had arrested Ms. Qiao for trespassing when he brought her back inside the Mall. Later on in the same discovery, he gave evidence that he had actually only detained her at that point. Later yet, Mr. Gill agreed that he had in fact arrested her. I think this inconsistency is not indicative of any attempt to mislead or fabricate; rather, it shows Mr. Gill's uncertainty about the powers he held as a security guard at the time. [72] The second pertains to his evidence that when they stood face-to-face on the exterior corridor, Ms. Qiao pointed toward the Mall and said "check there". His evidence that she was pointing conflicts with what the recording shows. It also conflicts with his examination for discovery evidence where he agreed that Ms. Qiao gave no additional physical indication, such as pointing to the Mall. On this point, I prefer the reliable evidence of what the recording shows over Mr. Gill's recollection. [73] The third pertains to the manner in which he brought Ms. Qiao back inside the Mall. Mr. Gill testified that when he brought Ms. Qiao back into the Mall, he placed his hand on the arm of her jacket and they walked together in the north entrance door. In cross-examination, Mr. Gill maintained that he did not pull Ms. Qiao into the Mall. [74] This conflicts with what the recording clearly shows. It shows that Mr. Gill

grabbed Ms. Qiao by the upper back portion of her jacket. It shows that as she tried to walk away from him in the direction of the street, he pulled her back toward him and then pulled her along with him for a few feet before pulling her in front of him and walking through the door together. While Mr. Gill may not have pulled Ms. Qiao across the threshold of the door, he did pull her for a few feet in order to get her there. On this point, I prefer the reliable evidence of what the recording shows over Mr. Gill's characterization of it. [75] Other than on these three points, I accept Mr. Gill's evidence about what occurred that day. Where the balance of his evidence conflicts with that of Ms. Qiao, I prefer and accept his evidence. [76] This brings me to Ms. Qiao's evidence. I will begin by saying that I find Ms. Qiao was a credible witness in the sense that I think she was doing her best to provide truthful evidence as she experienced and remembered it. The difficulty lies in the reliability of her evidence. [77] Ms. Qiao testified over the course of several days, not only about the Incident, but about many aspects of her life in the years before and since the Incident. She often struggled to stay focussed and pointedly told me that she is "a person with a very poor memory" and is "sometimes confused". Her evidence was sometimes difficult to follow because she often wandered

off topic, gave lengthy answers that were partly or wholly unresponsive to the question, sometimes refused to answer questions, gave exaggerated answers, fluctuated significantly emotionally and was often argumentative. As she acknowledged, her evidence also suffered from significant memory frailties. It was further undermined by internal inconsistencies, inconsistencies with independent evidence and it lacked balance in many respects. [78] I will provide a few examples to explain what I mean. There are others. [79] As one example, Ms. Qiao maintained throughout her evidence that she had stopped shouting for the unknown man who had attacked her dogs inside of the Mall for some three to five minutes (later she reduced this to a minute or two) before Mr. Gill approached her. She was adamant that she spoke to her friend during those minutes and was not yelling. Whether one, three or five minutes, Ms. Qiao's evidence on this point is clearly inconsistent with the Mall security video. The recording shows that Ms. Qiao paced up and down the marketplace corridor, stopped only for about seven seconds near the shop owned by her friend, and paced some more before Mr. Gill walked up to her. [80] Ms. Qiao's evidence on this point was also inconsistent with her examination for discovery evidence on February 11, 2014. At that time, she gave evidence that she called out for the unknown man

who attacked her dogs for "maybe less than two minutes" before the guard approached her. She gave no evidence about speaking to her friend for three to five minutes, or at all. [81] This aspect of Ms. Qiao's evidence also exemplifies her inability to answer questions directly and her attempts to unreasonably control the narrative. Counsel for the defendants, Ms. Fisher, had questioned Ms. Qiao on this topic at the end of the day. The following morning, she resumed her questioning and, while showing Ms. Qiao the relevant part of the recording that clearly contradicted her evidence, Ms. Qiao interrupted counsel and levelled several unmeritorious accusations that were clearly intended to stop the line of questioning. She accused Ms. Fisher of asking questions designed to "annoy and infuriate" her and suggested that counsel must have consulted an expert on how to do this. Ms. Qiao went on to accuse Ms. Fisher of repeatedly asking her the same questions and quite pointedly told her that if she persisted in asking them, she would refuse to answer. Ms. Fisher's questions were entirely appropriate and not objectionable in any way. [82] As another example, Ms. Qiao testified in examination-in-chief that when she first spoke to Mr. Gill in the marketplace, he only told her she was not allowed to speak loudly. She replied that she was leaving and pointed to an entrance further into the

Mall. She asked him if she could leave by that entrance and Mr. Gill said "fine, you can leave there". In cross-examination, Ms. Qiao denied the suggestion that Mr. Gill also asked her to leave the Mall and that he pointed to the exit closest to them. Ms. Qiao testified that such a scenario was "impossible" and was adamant that Mr. Gill never told her to leave the Mall. [83] Ms. Qiao said something different in her examination for discovery on February 11, 2014 when she gave evidence that Mr. Gill told her that she had to go. Ms. Qiao had been asked if Mr. Gill had directed her to the closest exit, the one she had come in, the Kingsborough Street exit. Ms. Qiao denied this and gave evidence that all Mr. Gill said to her was "you cannot do this, you have to go". This is clearly contrary to her very firm evidence at trial that Mr. Gill did not tell her to leave. [84] That Mr. Gill told her to leave is consistent with her evidence that she then negotiated with Mr. Gill about which exit she could take. If she was not asked to leave, why would she need to negotiate an exit? [85] Ms. Qiao was adamant that she pointed to an exit further into the Mall and that Mr. Gill gave her permission to leave through that exit. This evidence is inconsistent with the layout of the Mall. The site map shows that there is no identifiable exit further into the Mall in the area where Ms. Qiao and Mr.

Gill stood. [86] As a further example, Ms. Qiao testified in examination-in-chief about what happened when she stopped walking in the exterior corridor. She testified that she saw the owner of a computer store, had a thought that her computer needed repair, but decided that now was not the time. She testified that she turned to face Mr. Gill because she felt someone was calling her. She said nothing to him. Mr. Gill told her she was not allowed to enter the Mall and she said she was walking home. She turned to leave and he grabbed her suddenly. [87] In cross-examination, it was suggested to Ms. Qiao that she stopped where she did because she was considering going back inside the Mall to continue looking for the man who threatened her dogs. Ms. Qiao disagreed and maintained she stopped because she saw the computer repair person, but added that she decided against going in because she had "promised I would not enter and I am a person who keeps my promises". There are two difficulties with this answer. First, it is inconsistent with her evidence-in-chief about why she decided not to go back inside the Mall. Second, it is inconsistent with her trial evidence that Mr. Gill did not tell her to leave the Mall. If her evidence that Mr. Gill never told her to leave the Mall were true, why would she have promised him that she would not enter? [88] The reliability of Ms. Qiao's evidence

was also undermined by her memory frailties and by inconsistencies with other evidence I accept. The following examples demonstrate both of these difficulties. [89] Ms. Qiao was asked if she scratched Mr. Gill's face during their struggle. She was initially very firm that she did not touch Mr. Gill's skin, only his shirt. She later agreed that she did not know if she scratched his face. Later yet, she was adamant that she did not scratch his face. It was very clear that Ms. Qiao could not remember if she touched Mr. Gill's face during their interactions. Similarly, Ms. Qiao could not recall pulling off Mr. Gill's earpiece, denied breaking his necklace or button and denied pulling off his tie. In fact, she was firm that Mr. Gill's tie did not come off. However, the Cell Phone Video shows that Mr. Gill's tie clearly came off in Ms. Qiao's hand when her grip on it was broken. She dropped his tie to the floor. [90] Another stark example of Ms. Qiao's poor memory and an inconsistency in her evidence with independent evidence I accept is in relation to her activities after she was released by the RCMP at the scene. [91] Ms. Qiao testified that it was "impossible" that she went to meditate at the Fido store in the Mall after she was released. She was firm in her recollection that she immediately went to the RCMP office near the Mall. Mr. Gill took a photograph of Ms. Qiao that shows

her sitting cross-legged on the floor of the Fido store with her eyes closed. She is wearing the same clothing as shown on the various video recordings from that day. Even when counsel suggested that perhaps she went back to the Mall after the police station, Ms. Qiao was firm that it did not happen. [92] Rather than acknowledge the obvious answer that she does not remember, Ms. Qiao offered an illogical and unbelievable alternative explanation for the photograph. She testified that someone must have taken her photograph when she meditated at the police station that day, then cut her image from that photograph and pasted it on the Fido store background for some inexplicable use in this trial. Such a suggestion defies logic. The more logical answer is that Ms. Qiao did meditate in the Fido store that day after these events and she simply does not remember doing so. [93] Another example relates to her historical diagnosis of bipolar disorder. Ms. Qiao denied any prior diagnosis or discussions with her doctors about bipolar disorder, despite the medical opinion in her records and from her own expert as well. [94] Ms. Qiao's answers were often non-responsive, defensive or argumentative. I could see over the course of her testimony dramatic mood-changes, exaggerated anger, sadness, confusion and forgetfulness. There are many examples of this, but two will demonstrate the point. [95]

First, when shown an image of Mr. Gill's face purporting to show the scratch or scratches he suffered in the Incident, Ms. Fisher asked Ms. Qiao if she recognized the person in the photograph. Instead of answering the question, Ms. Qiao's only reply was the word "disgusting". Counsel suggested the photograph showed scratches on Mr. Gill's face caused by her. Ms. Qiao scoffed and offered that Mr. Gill's face has "uneven colour tones and is disgusting". [96] The second example relates to a number of Ms. Qiao's answers about entries in her medical records. Ms. Qiao was asked questions about entries, made by various medical professionals, in her records from 2004 until early 2012. These entries reflect her reporting many, if not all, of the symptoms she now asserts are as a result of the Incident. Ms. Qiao consistently denied the accuracy of the entries. She offered many explanations for those inaccuracies, including that the particular doctor(s) wrote it down wrong, misunderstood her because he/she spoke Cantonese and not Mandarin and that the translation of the records was wrong. She occasionally became visibly angry and said things like "doctors are not Gods", the medicine and medical system in Canada is very poor, the doctor would not give her any time, the doctor was a very "cold-hearted person", among other things. [97] This assessment of the reliability of Ms. Qiao's

evidence should not be taken as an assessment of her character. I believe Ms. Qiao is a person of integrity and kindness. As I will discuss later in these reasons, Ms. Qiao has unfortunately been suffering from psychiatric conditions that have been getting progressively worse for her over the years. She has likely also been suffering physical, mental and emotional side effects from her various prescribed and non-prescribed medications and self-help remedies. I think these things provide explanations for the many frailties in her evidence. [98] In the end, unless it is consistent with other evidence I accept, I must conclude that Ms. Qiao's evidence is unreliable. Where it conflicts with the evidence of Mr. Gill that I accept, I prefer and accept the evidence of Mr. Gill. [99] It is from this assessment that I make the following findings of fact. [100] At about 11:02 a.m. on March 30, 2012, Ms. Qiao entered the Mall to look for a man whom she believed had threatened her dogs. She was upset and wanted to talk to him about what he had done. She shouted loudly for the man as she walked through the marketplace, up the escalator, through the food court, back down the escalator and back into the marketplace. She did this over the course of several minutes. The Mall was busy that day. [101] The Mall security office is close to the area of the marketplace where Ms. Qiao was shouting.

One of the marketplace shop owners went to the Mall security office to complain about Ms. Qiao's shouting. Mr. Gill immediately left the security office and walked to the location of the complaint. Shortly before 11:09 a.m., Mr. Gill heard Ms. Qiao screaming something in Mandarin and walked up to her. They had a brief conversation in English. Mr. Gill asked her what the problem was. Mr. Qiao replied "my business". Mr. Gill told her that she could not be causing a disturbance in a public place, could not scream and yell and had to leave the Mall. Ms. Qiao told him that she was leaving. Mr. Gill pointed to the nearest exit door, the one leading to Kingsborough Street where Ms. Qiao had originally entered. [102] Ms. Qiao did not follow Mr. Gill's direction about where to exit. Instead, she decided to take a longer route to get off of the Mall property, one that took her further into the Mall. She did this so that she could continue to look for the man as she walked. [103] Ms. Qiao then walked past Mr. Gill, further into the Mall. Mr. Gill followed her from a distance as she walked through the interior part of the Mall until she eventually walked out a door to the Mall's exterior corridor area. Ms. Qiao continued to look for the man who threatened her dogs as she walked, but was not shouting. [104] Mr. Gill continued to follow her as she walked along the exterior corridor, through

the open courtyard to the exterior corridor leading to the corner of Willingdon Avenue and Kingsway and off Mall property. At 11:10:20 a.m., roughly eight minutes after she had entered the Mall that day and roughly a minute and a half after Mr. Gill told her to leave, Ms. Qiao walked slightly toward an open Mall entrance door and looked toward it. She stopped several feet across from the open door, still facing the street, and again looked briefly toward the open door. For a moment, Ms. Qiao contemplated entering the interior of the Mall. She then turned her head away from the door and began to walk forward toward the street again. As her evidence is consistent with what the video shows, I accept that she decided against entering the Mall. She took two steps in the direction of the street before turning around to face Mr. Gill, who was approaching from behind her. Mr. Gill stood very close to her. He told her to move forward, to get off the property. Ms. Qiao said "check there" and other words in Mandarin that Mr. Gill could not understand. She did not point or gesture toward the Mall when she said this. [105] Mr. Gill grabbed the upper back left part of Ms. Qiao's jacket with his right hand. He believed Ms. Qiao was intending to go back inside the Mall, so he planned to take her to the management office to have someone interpret and communicate with her and then escort her off

the property through the loading bay. He did not tell Ms. Qiao he was arresting or detaining her, nor did he tell her what he was intending to do or where he was taking her. Ms. Qiao turned toward the direction of the street and tried to take a step forward, but Mr. Gill pulled her by her jacket toward him. He pulled her along with him a few feet as he moved toward the Mall entrance door. He then pulled her body in front of him and they walked through the Mall door. [106] As they entered the door, Mr. Gill had one hand on her arm and his other hand on her back as they walked down the interior corridor. He had still not told her where he was taking her and why. They were about halfway down the short corridor when Mr. Gill removed his right hand from Ms. Qiao in order to retrieve his radio to call the management office. Ms. Qiao turned to face him and grabbed him by the neck and collar area. Mr. Gill grabbed her hand and asked her to let go, but she refused. The two struggled down the corridor a short distance and around the corner. Ms. Qiao lost one of her shoes during the struggle. [107] Mr. Gill held her up against a wall across from the Fido store, continually asking her to let him go. Ms. Qiao had a good, strong hold on his collar and tie and would not release her grip. She wanted to control him so that she could break free. While Mr. Gill had her up against the wall, he saw

her hand coming up, so he pushed her hand back. This happened a couple of times. Ms. Qiao maintained her grip on his collar and tie, so Mr. Gill bent her at the waist in an effort to have her release her grip on him. Locked in this position for about half a minute, Mr. Gill put his right hand under her and used his hip to manoeuver her body down to the floor and onto her back. He brought her down about three or four feet and she cried out when she hit the ground. [108] While on her back, Mr. Gill knelt next to her and held her upper body down with his upper body and arms. He managed to pull her hand off of his clothes. His necktie came off in her hand. Mr. Gill crossed Ms. Qiao's arms over one another and pinned them there with one hand, freeing his other hand to call the RCMP. While he was on the telephone asking for RCMP assistance, he continued to hold Ms. Qiao down on the ground with her arms crossed and pinned over her chest. Mr. Gill told the 911 operator what happened. Ms. Qiao knew he was talking to the RCMP and could hear what he was saying, so she shouted out such things as "you're a liar", "you touched me first", "I have no shoes", "I did nothing wrong", "I never attacked you", "I won't let you go", and "you attacked me first" a number of times. She also yelled such things as "I'm not yelling, I'm singing", "you touched my breast" and "you sexually harassed me".

Several Mall patrons, including one of her neighbours and other persons known to her, looked on as these things occurred. [109] Mr. Gill did not place his legs or kneel on Ms. Qiao's chest as she believes he did. Rather, he used his upper body and arms to hold her down to the ground in the fashion I have described. Any contact he may have made with her breast was not intentional and was not for a sexual purpose. He did not sexually harass her as alleged or at all. [110] RCMP officers arrived quickly, within a few minutes of Mr. Gill's call. Mr. Gill got off Ms. Qiao and the officers brought her to her feet and handcuffed her. All told, Mr. Gill held Ms. Qiao on the ground for about seven and a half minutes. [111] During their interactions, Ms. Qiao scratched Mr. Gill's face, pulled his earpiece and wire out, broke the chain on his neck, removed his necktie and broke one of his shirt buttons. Ms. Qiao refused to sign a Mall banning notice. When released by the RCMP, she did not immediately leave the Mall. She sat on the floor of the Fido store and meditated for a period of time. Liability [112] I turn now to the question of liability. The plaintiff brings claims for assault and battery, false arrest and imprisonment, intentional infliction of mental suffering, as well as defamation against Mr. Gill and Alltek. [113] I will begin with the claims for assault, battery, false arrest

and imprisonment, as they engage consideration of the same central issues. Assault, Battery, False Arrest and Imprisonment Elements [114] The parties spent very little time on the elements of these torts. [115] Justice Verhoeven summarized the elements of assault and battery in Kearns v. Marples, 2009 BCSC 802 as follows: [67] Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. Battery consists of intentionally causing a harmful or offensive contact with another person. Assault should be distinguished from battery, although the two are often blurred together and called "assault": Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (LexisNexis Butterworths, 2006) at 46. In this case, as in most cases, blurring of the terms does not matter very much as the assault and the battery occurred in rapid succession, and for the purposes of assessment of damages, the assault is insignificant. [116] The elements of false arrest involve, quite simply, an arrest and the lack of reasonable grounds for doing so. False imprisonment is the intentional and total confinement of a person against her will without lawful justification. It is a form of trespass against the person: Hanisch v. Canada, 2003 BCSC 1000 at para. 88; Russell v. British Columbia (Public Safety & Solicitor General), 2018 BCSC 1757 at para.

30. The plaintiff must establish she was totally deprived of liberty, the deprivation was against her will, and it was caused by the defendant. The onus then shifts to the defendant to justify his detention, based on legal authority under the common law or statute: Kovacs v. Ontario Jockey Club, 1995 CarswellOnt 1231 at para.

45. Positions of the Parties [117] The plaintiff submits that Mr. Gill falsely arrested or detained her, falsely imprisoned her and committed assault and battery, when he grabbed her, pulled her into the Mall, struggled down the corridor, held her against the wall, took her to the ground and held her there until police arrived. As Mr. Gill had no lawful authority under the common law or any statute to arrest and/or detain her during any of this time, his arrest or detention, confinement, assault and battery of her were all without any legal justification. She takes the position that she did not cause a disturbance in the Mall and Mr. Gill did not tell her to leave. She chose to leave. When she was on her way off the Mall property, Mr. Gill unlawfully detained her and the ensuing assault, battery, and false imprisonment occurred. She did not assault Mr. Gill when she resisted his unlawful actions. She was defending herself and trying to escape. [118] The defendants submit that they have established Mr. Gill's conduct was justified, as he was acting with legal authority. They argue that Ms. Qiao was causing a disturbance in the Mall by yelling and screaming and Mr. Gill was entitled, as an authorized representative of the owner/occupier, to ask her to leave the premises. By failing to leave the Mall property in a reasonable time after being directed to do so, Ms. Qiao was

trespassing and Mr. Gill was entitled to use reasonable force to remove her from the Mall property. While lawfully detaining her in order to remove her from the property, Ms. Qiao assaulted him. The defendants submit that Mr. Gill was justified in using reasonable force to repel her assault upon him and detain her until RCMP arrived. [119] If liability is found against Mr. Gill, Alltek accepts that it is vicariously liable for the actions of its guards. Issues [120] I am satisfied that Mr. Gill created the apprehension of imminent harm against Ms. Qiao and did in fact harm her. I am also satisfied that Mr. Gill detained Ms. Qiao against her will and confined her, holding her to the ground until RCMP arrived. Mr. Gill's acts were intentional. However, the question remains whether Mr. Gill was acting with legal authority. In this regard, the following issues require determination: 1. Did Ms. Qiao cause a disturbance by shouting in the Mall?

2. Was her licence to be in the Mall terminated?

3. Did Ms. Qiao commit a trespass?

4. If so, was Mr. Gill justified in using force to remove her? Was that force reasonable?

5. If so, was Ms. Qiao's resistance to her removal an assault on Mr. Gill?

6. If so, was Mr. Gill justified in using force to detain her until RCMP arrived? Was that force reasonable? Analysis 1. Did Ms. Qiao cause a disturbance by shouting in the Mall? [121] I am satisfied that she did. [122] Section 175(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 [Code] provides, in part, that every one who causes a disturbance in or near a public place by screaming or shouting is guilty of any offence punishable on summary conviction. Ms. Qiao was shouting loudly for several minutes in a public place to find the man who threatened her dogs. She was upset and determined to find him. The areas where she yelled were busy with Mall patrons, shop owners and employees. Her shouting caused more than annoyance or emotional upset. It caused one shop owner to walk over to the nearby security office to complain to the guard and ask him to intervene. Mr. Gill heard her yelling when he approached her. There were many people in the immediate area. [123] In these circumstances, I am satisfied that Ms. Qiao's conduct caused an overtly manifested disturbance which constituted an interference with the ordinary and customary use of the premises by the public.

2. Was Ms. Qiao's licence to be in the Mall terminated? [124] I am satisfied that it was. [125] Mr. Gill witnessed Ms. Qiao causing a disturbance by shouting in a public place, an offence under s. 175(1)(a) of the Code. The Mall is a one-off property owned by the Owners. It does not operate with extensive, written manuals or policies but prefers face-to-face, verbal instructions and reporting with the operations manager. The Owners contracted with Alltek and authorized Alltek and its employees to respond to and deal with complaints like these on Mall property. The Owners did not have their own written guidelines on detention and arrest for their security contractor nor did they impose any restrictions or limitations on security activities conducted on their behalf. They left security matters to Alltek to perform. Mr. Gill was an employee of Alltek, authorized to attend to security matters at the Mall. As such, Alltek and Mr. Gill were clearly authorized to revoke the licence of Mall patrons causing a disturbance and to remove trespassers. [126] Mr. Gill told Ms. Qiao she had to leave and why. He directed her to the closest exit. In these circumstances, I am satisfied that Ms. Qiao had been lawfully present on Mall property, but her license to be there was properly terminated when Mr. Gill told her to leave. Put another way, Ms. Qiao initially had the Owner's consent to be in the Mall, but that consent was revoked when Mr. Gill told her to leave.

3. Did Ms. Qiao commit a trespass? [127] I am not satisfied that she did. [128] At common law, a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased. If, after requested to leave by the occupier/owner of that land or its agents, and after the lapse of a reasonable time to do so, he fails to leave the premises, he may be ejected as a trespasser: R.F.V. Heuston, Salmond on the Law of Torts, 17th ed. (London: Sweet & Maxwell) at 41; Cullen v. Rice, 1981 ABCA 3 at para. 4; Jia v. Toronto Standard Condominium Corp. No. 1479, 2010 ONSC 3433 at para. 15. [129] The right to terminate a licence to enter private property extends to a right of a shopping centre to remove the right of entry granted to the general public. Therefore, if the defendants can establish that Mr. Gill properly revoked Ms. Qiao's licence to enter the Mall property and that after a reasonable time she remained or refused to leave, they will have established her trespass: Chopra v. T. Eaton Co. Ltd., 1999 ABQB 201 at para. 85. [130] Under the Trespass Act, R.S.B.C. 1996, c. 462, as it then was, a person who has been directed by an occupier of premises or an authorized person to leave the premises commits the offence of trespass if the person does not leave the premises as soon as practicable after receiving the direction (s.

4). [131] I have found that Ms. Qiao's licence to remain on the Mall property was properly revoked, so if she did not leave within a "reasonable time" (common law) or "as soon as practicable" (Trespass Act) after receiving this direction, she committed a trespass. [132] In this context, I see no material difference between these two phrases. The phrase "as soon as practicable" is not defined in the legislation. As a result, the court must turn to the modern approach to statutory interpretation to determine its meaning. As set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, the words of a statute must be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". [133] "Practicable" implies that other considerations may be at play. Black's Law Dictionary defines "practicable" as "reasonably capable of being accomplished; feasible in a particular situation". It is meant to impose a sense of haste, while taking into account the circumstances. [134] The phrases "as soon as practicable" and "as soon as is practicable" have been considered by the court in the context of other legislation. In particular, the phrases have been considered with respect to various provisions of the Code. While the statutory context differs from the case at bar, the case law

still provides some guidance in interpreting the meaning of the phrase. [135] For example, in R. v. Flintroy, 2019 BCSC 110, at issue was whether a peace officer filed a report regarding items seized "as soon as is practicable" as per s. 489.1 of the Code. In determining whether the report was filed within the appropriate time frame, Justice Williams stated at paras. 45 and 47: [45] "As soon as is practicable" means without unreasonable delay: R v. Kift, 2016 ONCA 374 at para.

10. It does not mean "as soon as possible": Eddy, at paras. 52-54; R v. Wichert, 2015 ONCJ 700 at paras. 154-155, 157. [47] With respect to the standard to be applied, there must be a reasonable measure of consideration given to the realities of the circumstances. No hard and fast number of days should be set by the court, but the evidence should establish that the officer moved with all reasonable dispatch to file the report in a timely way, given that the authorities make clear that the obligation is an important element of judicial oversight over items that have been items that seized and are being detained by the state. Matters such as the complexity of the investigation, the workload and schedule of the police officer, and the number and nature of items seized may well be relevant to the enquiry. [136] Even taking into account the importance of the requirement, Williams J. found that "as soon as is practicable" does not mean that the report must be filed immediately. Rather, whether the report was filed within the mandated timeframe depends on the circumstances. [137] A similar interpretation is found in the context of the requirement that breathalyzer tests be administered "as soon as practicable" after the time of an alleged impaired driving offence (s. 258(1) of the Code). In R. v. Stevens, 2010 BCSC 1573, Associate Chief Justice MacKenzie, as she then was, stated: [16]

In addressing whether the breath tests were taken as soon as practicable, the courts in British Columbia have endorsed Mr. Justice Rosenberg's view of the law in R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489, 208 O.A.C. 379 (C.A.) where he said, at paras. 12-13: 12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances [citations omitted]. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably [citations omitted]. 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody

[citations omitted]. [Emphasis added.] [138] Again, the phrase "as soon as practicable" is interpreted to mean that the circumstances must be taken into account in determining the timeframe. [139] Consistent with the common law and the object and purpose of the legislation, I conclude that the phrase "as soon as practicable" in the Trespass Act means that a person asked to leave a premises must do so within a reasonable amount of time, taking into account the circumstances. [140] I find that Ms. Qiao would have left the Mall property within a reasonable amount of time, had Mr. Gill not detained her. [141] Ms. Qiao stopped shouting when Mr. Gill told her to do so. She also agreed to leave when Mr. Gill told her to do so. Although she did not walk to the exit Mr. Gill pointed to, Mr. Gill was prepared to give her a reasonable amount of time to leave the Mall property. He followed her to ensure that she did so. [142] When told to leave, Ms. Qiao immediately walked from where she and Mr. Gill stood. The time was 11:09:08 a.m. Ms. Qiao walked past a couple of marketplace stores and, at 11:09:27 a.m., turned right down a short interior corridor. She walked down the corridor and past its three stores without stopping and to an exit door leading to the exterior corridor. She walked through the exit door at 11:09:38 a.m., about 30 seconds after she was told to leave. Once in the

exterior corridor, which is still Mall property, Ms. Qiao turned right and walked through the inner courtyard, only stopping once very briefly to glance back in the direction of Mr. Gill. She continued walking along the exterior corridor leading to Kingsway and Willingdon Avenue. She stopped for a very brief time and looked toward an open Mall door. She was not far from the street. She briefly contemplated going back into the Mall, but decided against it. She took a couple of steps toward the street when Mr. Gill stopped her at 11:10:26 a.m. Language difficulties impeded their communication. Ms. Qiao took a step in the direction of the street, but Mr. Gill pulled her back toward him and the Incident occurred. [143] Throughout her walk and until the time Mr. Gill approached her, Ms. Qiao spoke to no one. She did not shout or otherwise make any noise. She only stopped twice, very briefly, to glance back and then to glance toward an open Mall door. After their very brief exchange in the exterior corridor, I am convinced that had Mr. Gill not pulled her back toward him, Ms. Qiao would have continued walking the short distance down the exterior corridor to the street and off Mall property. I find that she was attempting to leave within a reasonable time when she was detained by Mr. Gill. [144] From the time Mr. Gill directed her to leave until the time he approached her in the

exterior corridor, only one minute and 18 seconds had elapsed. Had Ms. Qiao not been stopped, I am satisfied that she would have been off Mall property in under two minutes. This is a reasonable time in the circumstances. Therefore, I find that at the time Mr. Gill stopped Ms. Qiao she was not trespassing. [145] With this conclusion, it is unnecessary to consider the other questions. As she was not trespassing, Mr. Gill had no authority to forcibly remove her from the premises. He had no authority to detain her. Mr. Gill is liable for unlawful detention, false imprisonment, assault and battery. [146] At all material times, Mr. Gill was acting within the scope and course of his employment with Alltek. Alltek concedes it is vicariously liable for Mr. Gill's actions and I so find. Defamation [147] Ms. Qiao claims that Mr. Gill defamed her when he told the 911 operator, Mr. Tam, Mr. To and an RCMP officer that she had attacked him. The defendants deny that Mr. Gill defamed Ms. Qiao; however, if Mr. Gill's words are found to be defamatory, the defendants submit that the statements were true or made on occasions of qualified privilege. Defamation Generally [148] The plaintiff is required to establish the three elements of defamation: (1) the impugned words are defamatory; (2) the words refer to the plaintiff; and (3) the words were published, meaning the words were communicated to at

least one person other than the plaintiff. If the elements are established on a balance of probabilities, falsity and damage are presumed: Grant v. Torstar, 2009 SCC 61 at para. 28. [149] The test for whether the words are defamatory is objective. A statement is defamatory if it would tend to lower the reputation of the person to whom it refers in the eyes of a reasonable person generally, or to expose a person to hatred, contempt or ridicule: Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067 at 1079. Several authorities have recognized that expressions alleging, even by implication or insinuation, criminal conduct are "extremely serious and damaging to a person's reputation" and are defamatory: Mann v. International Association of Machinists and Aerospace Workers et al., 2012 BCSC 181 at para. 73. [150] In Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 156 D.L.R. (4th) 27 (O.N.C.A.), Justice Abella, as she then was, provided guidance on what the lowering of reputation means and the standard of an ordinary and reasonable person in defamation cases: [14] I take as my starting point the following definition of defamation: A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in

particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one ... (Salmond on the Law of Torts, 21st ed., by R.F.V. Heuston and R.A. Buckley (London: Sweet & Maxwell, 1996) at 140 citing Sim v. Stretch (1936), 52 T.L.R. 669 at 671, and Vander Zalm v. Times Publishers (1980), 109 D.L.R. (3d) (B.C. C.A.) at 531, 535, 543). [15] The standard of what constitutes a reasonable or ordinary member of the public is difficult to articulate. It should not be so low as to stifle free expression unduly, nor so high as to imperil the ability to protect the integrity of a person's reputation. The impressions about the content of any broadcast -- or written statement - should be assessed from the perspective of someone reasonable, that is, a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers. [151] Once the elements are established, the defamatory words are presumed to be false and the burden is on the defendant to either show that the statements were true or that some other defence, such as qualified privilege, applies: Grant at paras. 29-34. Relevant Defences Justification (Truth) [152] The defence of justification (truth) requires a defendant to adduce evidence to establish that the statement was substantially true: Grant at para.

33. The burden of proving the truth of the statement rests on the defendant, as falsity is presumed once the elements of defamation are established. [153] What is required to be proven is not the truth of each and every word or the literal truth of the statement, but rather the truth of the substance of the allegation or the sting of the charge. Minor inaccuracies do not defeat the defence of justification: Cimolai v. Hall et al., 2005 BCSC 31, aff'd 2007 BCCA 225 at para.

172. But, if the overall impression of the statement is false, the defence fails even if some or even all of the literal words are proven to be true. Half-truths can be just as damaging as outright falsehoods: Cimolai at para.

173. Qualified Privilege [154] Where it applies, qualified privilege provides a complete defence to a claim in defamation. A defendant who establishes that his statement was made on an occasion of qualified privilege is protected from liability for communicating defamatory and untrue statements about the plaintiff: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 144. [155] The British Columbia Court of Appeal recently discussed the defence of qualified privilege in the context of a police complaint in Caron v. A., 2015 BCCA 47: [15] Qualified privilege applies when there is a "duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it": Pressler v. Lethbridge (2000), 86 B.C.L.R. (3d) 257 at 296 (C.A). The legal effect of the defence of qualified privilege is to "rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. . . . However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice": Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para.

144. In short, where there is a public or shared interest in support of the statement both being made and received, a defendant cannot be held to have defamed a plaintiff unless the plaintiff can show that the defendant made the alleged publication for a malicious purpose. [156] The privilege arises from the occasion on which a communication is made, not the communication itself. The "interest" which gives rise to the privilege "should not be viewed technically or narrowly"; it may be "personal, social, business, financial or legal" and should be assessed with reference to the context in which the statements are made: Popat v. MacLennan, 2014 BCSC 1601 at para. 27. [157] The standard for establishing an interest or a duty is an objective one. The court asks whether "persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published: Popat at para. 28. [158] In Popat, Justice Melnick reviewed authorities where courts have discussed qualified privilege in various contexts, including two relevant to the case at bar - employment settings and reports to police. With respect to the former, Melnick J. wrote: [29] In Woods, the plaintiff claimed that the defendants, all of whom were university employees, libelled her by writing and distributing a document

containing defamatory statements directed at the plaintiff. The Court discussed qualified privilege in an employment setting: 53 Courts in this province have held that communications regarding employment are, generally speaking, made on occasions of qualified privilege. In M.D.A. Marine Design Associates Ltd. v. British Columbia Ferry Services Inc., 2008 BCSC 1432 at para. 25, the court affirmed that communications between "appropriate company personnel, involving the ordinary business affairs of the company" are protected by the privilege. See also Dawydiuk v. Insurance Corporation of British Columbia, 2009 BCSC 1259, rev'd on another point, 2010 BCCA 353. 54 The defence of qualified privilege is meant to promote the giving and receiving of uninhibited communications in circumstances where the public interest requires a free exchange of information: Cimolai v. Hall et al, 2005 BCSC 31 at para. 77, aff'd 2007 BCCA 225. That protection is necessary in the workplace, as candid communication between company personnel is necessary for effective business operations. Employees and employers alike have an interest and duty in exchanging information that touches on the proper functioning of the business, including relations between employees. [30] In Woods, the Court found that the statements were made by an employee to his supervisors to deal with workplace issues, which was a

situation requiring free and candid exchange of information, and both parties had a legitimate interest in making and receiving the statements. The Court found that the statements did not exceed the limits of the duty to communicate, nor was it motivated by express or actual malice. [159] With respect to the latter, the court held: [34] With regards to statements made to a police officer, though those statements are not protected by absolute privilege, they do fall under within the scope of a qualified privilege. In Mullins the Court stated: 6 Counsel for the plaintiff has referred the court to Gatley on Libel and Slander (Seventh Edition). The author in chapter 13 under the heading "Qualified Privilege" at paragraphs 480 and 481 states that if a charge is made honestly and to the proper authorities, the mere fact that it is found to be groundless or that proceedings in respect of it are subsequently abandoned will not destroy the privilege. The key word for our purposes is that the charge is made honestly. Counsel for the plaintiff also referred to the following cases to support this proposition: Dijkstra v. Westerink, 401 A.R. (2d) 1118 (168 NJ. Super. 128; Heggy v. Grutzner, 456 N.W. (2d) 845 (Wis-App. 1990). These decisions are of the New Jersey Superior Court and the Wisconsin Court of Appeal. The two cases clearly stand for the proposition that a statement to a police

officer is subject to a qualified and not an absolute privilege. In my opinion Gatley and the two American decisions clearly reflect the law with regard to a statement to a police officer. [160] If the defendant establishes the statements were made on an occasion of qualified privilege, then the onus is on the plaintiff to demonstrate that the privilege has been defeated by either showing malice on the part of the defendant or that the limits of the privilege were exceeded: Smith v. Cross, 2009 BCCA 529 at para. 30. [161] In this case, only malice has been argued. [162] '"Malice" in this context means much more than having negative feelings or animosity toward a person. Our Court of Appeal discussed the elements of malice in this context in Smith: [30] The defence of qualified privilege can be defeated by a finding of malice on the part of the defendant or by a finding that the limits of the privilege were exceeded. Malice in this sense is also called "express malice" or "malice in fact" to differentiate it from the legal malice assumed by the very publication of defamatory comments (Brown, The Law of Defamation in Canada, looseleaf, 2nd ed. (Toronto: Carswell, 1999 at 16.2(1))). [32] The term "malice" is more expansive than the everyday meaning of a desire to harm another. Brown at 16.3(2) suggests the alternate language of "bad faith". This Court summarized the definition in

Creative Salmon at para. 37: In Botiuk at para. 79, malice was defined to include "ill will" and "any indirect motive which conflicts with the sense of duty created by the occasion [in the case of qualified privilege]". The definition of malice stated by Mr. Justice Dickson in Cherneskey at 1099, and adopted by Mr. Justice LeBel in WIC Radio at para. 102, includes "spite or ill will" and "any indirect motive or ulterior purpose". [33] The Supreme Court of Canada summarized the law of malice and qualified privilege in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129 at para. 145: Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at p. 1099, "any indirect motive or ulterior purpose" that conflicts with the sense of duty or the mutual interest which the occasion created. See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.). Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. See McLoughlin, supra, at pp. 323-24, and Netupsky v. Craig, [1973] S.C.R. 55, at pp. 61-62. [34] In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at 299, R.D. McConchie and D.A. Potts reduce this statement to a helpful framework for the categories under

which a finding of malice can be made. A defendant is actuated by malice if he or she publishes the comment: i) Knowing it was false; or ii) With reckless indifference whether it is true or false; or iii) For the dominant purpose of injuring the plaintiff because of spite or animosity; or iv For some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion. More than one finding can be present in a given case (McConchie and Potts at 299). [163] Evidence of malice may be extrinsic (evidence other than the statements from which improper motive can be inferred) or intrinsic (found within the defamatory expressions themselves). [164] For intrinsic evidence, the words may be "so violent, outrageous, or disproportionate to the facts" that malice is suggested: Korach v. Moore (1991), 1 O.R. (3d) 275 at 282 (O.N.C.A.), per Houlden J.A. (dissenting, but not on this point). When considering extrinsic evidence said to relate to malice, the court may look at conduct of the defendant throughout the course of events both before and after the defamatory publication, including: a) his or her relationship with the plaintiff; b) personal motivation; c) the emotional state in which the publication was made; d) any repetition or republication of the same or comparable defamatory remarks; e) the circumstances

surrounding the investigation into or verification of the accuracy of the charges; f) the conduct of the defence to the action; and g) whether there has been a correction of charges that have later been found to be false. Wang v. British Columbia Medical Association, 2011 BCSC 1658 at para. 32, citing Raymond E. Brown, Brown on Defamation, Canada, United Kingdom, Australia, New Zealand, United States, 2d ed. (Toronto: Thomson Reuters Canada Limited, 1999), ch.16 at 86 to 89. Positions of the Parties [165] The plaintiff submits that Mr. Gill, while holding her to the ground, told the 911 operator over the telephone, that Ms. Qiao had "attacked" him. Used in its natural and ordinary meaning, the word communicated that Ms. Qiao was the aggressor and had assaulted Mr. Gill. She asserts this was not true, as she was only defending herself and trying to get away from Mr. Gill. He was the aggressor. [166] Ms. Qiao submits that Mr. Gill repeated that she attacked him to Mr. Tam, Mr. To and an RCMP officer at the scene, in front of a crowd of bystanders loud enough so that he could be heard. She says those words lowered her reputation in the eyes of the community. Although not explicitly addressing the defences of justification or qualified privilege, I can infer from her submissions that she submits that the defendants have failed to establish that the statements were true. I can also

infer that, in the event the defendants have established the statements were communicated on occasions of qualified privilege, Ms. Qiao argues that the privilege is defeated because Mr. Gill spoke them out of malice. She takes the position that Mr. Gill told others that she attacked him in order to justify his very public wrongful acts and to make it seem that she "deserved to be forced to the ground, held down and handcuffed by the RCMP". [167] The defendants submit that the words spoken do not amount to defamation, but in the event they do, what Mr. Gill said was true and/or made on occasions of qualified privilege. Mr. Gill had duties to call police and report what happened to his employer (Mr. To) and the Owners (represented by Mr. Tam). All recipients were under duties to receive the information. The defendants say that when Mr. Gill told these people that Ms. Qiao attacked or assaulted him, he had an honest belief in the truth of the statements. He had no malicious purpose or other improper motivation. Analysis [168] The plaintiff has established that Mr. Gill communicated words to the effect that Ms. Qiao had "attacked" him to the 911 operator. While there is no doubt that bystanders could hear Ms. Qiao's verbal reactions to what Mr. Gill was saying as she continually shouted that Mr. Gill was a "liar" and had "attacked" her first, I am not satisfied that the bystanders

could overhear what Mr. Gill was telling the 911 operator. No bystander has testified to overhearing his words and the recording shows that Mr. Gill was not speaking loudly. [169] The plaintiff has also established that Mr. Gill repeated the words to both Mr. Tam and Mr. To at the scene, but she has not established that he repeated them to the RCMP officer at the scene because there is simply no evidence on the point. There is similarly an absence of evidence about how loudly Mr. Gill spoke to Mr. Tam and Mr. To and whether any bystanders overheard what he said to them. [170] In any event, the plaintiff has established that the words Mr. Gill communicated to the 911 operator, Mr. Tam and Mr. To referred to Ms. Qiao and that the words are defamatory. Saying that Ms. Qiao attacked or assaulted him would have a tendency to lower Ms. Qiao's reputation in the estimation of right-thinking members of society generally and would, in particular, cause her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. [171] Satisfied the plaintiff has established the elements of defamation, I turn now to consider the central defence argued, qualified privilege. [172] I am satisfied the defendants have established that Mr. Gill's statements were made on occasions of qualified privilege. [173] In the circumstances of the moment, where Ms. Qiao would not let go of

him and he had her pinned to the ground, Mr. Gill had a duty to report what occurred to police and seek their attendance at the scene. The police were under a duty to receive the report and to attend. Mr. Gill was also under a duty to report what occurred to his employer and the owner of the Mall, as requested. The owner of Alltek, Mr. To, and the authorized representative of the Owners, Mr. Tam, had corresponding duties to receive the reports. Although not specifically argued by the plaintiff, I find this qualified privilege extends to the written reports Mr. Gill was required to provide to these parties and their representatives as well. [174] The plaintiff says she has established that the privilege is defeated by malice. I disagree. I am satisfied that Mr. Gill did not say or write these things for a malicious purpose. His account was not knowingly false, was not made with reckless indifference as to whether it was true or false, was not for the dominant purpose of injuring Ms. Qiao because of spite or animosity or for some other improper dominant purpose. He was reporting what he honestly believed to be the truth. [175] Mr. Gill and Ms. Qiao had not met before this day. Mr. Gill had no pre-existing animus toward her. Ms. Qiao had been causing a disturbance in the Mall. He properly asked her to leave the Mall and followed her to ensure she left in a reasonable time. When

she took a different route out and appeared to him, albeit mistakenly, to be intent on re-entering the interior of the Mall, he initiated what he believed to be a lawful removal of a trespasser. He intended to get some interpretation assistance and then escort her off the property. Ms. Qiao resisted her detention and defended herself by grabbing Mr. Gill's clothing and not letting go. Mr. Gill used what he believed to be reasonable force to stop what he believed to be her "attacking" or assaulting him. He detained her until RCMP arrived a short time later. [176] All of this happened in a very short period of time. While I have now found, eight years later and after nearly 20 days of trial, that Ms. Qiao was not trespassing when Mr. Gill took steps to remove her, thereby rendering him liable for assault, battery, unlawful detention and false imprisonment, I am satisfied that at the time these events were occurring, Mr. Gill had the best of intentions and thought he was doing the correct thing. He communicated what occurred to the 911 operator, Mr. Tam and Mr. To, as he honestly believed at the time. He was not "lying to cover up his mistake" or to "justify his illegal actions" as the plaintiff argues. [177] The plaintiff's claim in defamation is dismissed. Intentional Infliction of Mental Suffering [178] The plaintiff also claims that Mr. Gill intentionally inflicted mental

suffering when he said that she "attacked" him. [179] In order for the plaintiff to establish intentional infliction of mental suffering (also known as the intentional infliction of nervous shock), the defendant's conduct must constitute an independent and actionable wrong and must: (a) must be flagrant and extreme; (b) must be plainly calculated to produce some effect of the kind that was produced; and (c) must have caused actual physical harm, a "visible and provable illness". Topgro Greenhouses Ltd. v. Houweling, 2006 BCCA 183 at para. 62. [180] The plaintiff identifies Mr. Gill's repeated utterance that she had "attacked" him as the flagrant and extreme conduct that caused her actual physical harm. She submits the evidence establishes that he said this to intentionally inflict embarrassment, humiliation and mental suffering upon her and in order to protect himself from prosecution or reprimand. She argues that Mr. Gill knew that "he had attacked Ms. Qiao without authorization and, rather than admitting his mistake, he escalated matters and then concocted an unrealistic tale to cover-up for his mistakes." [181] The evidence falls far short of establishing this claim. Mr. Gill's words were not false words uttered with the knowledge that they were likely to cause, or reckless disregard as to whether they would cause, nervous shock and physical injury. At the time, Mr. Gill

believed, albeit mistakenly, that he had the authority to do what he did. He communicated what he honestly believed to be an accurate characterization of Ms. Qiao's behaviour to the 911 operator, Mr. Tam and Mr. To. His conduct was not flagrant or extreme, nor was it motivated by malice, calculated to produce any harm to Ms. Qiao or to escape criminal or negative employment consequences. [182] The plaintiff's claim for intentional infliction of mental suffering is dismissed. [183] Having determined the liability issues, I turn now to the issue of causation. [184] Ms. Qiao has a significant, complex and unfortunate medical history. Her various afflictions, various traditional and non-traditional treatments, medications and self-help remedies compound the complexity of determining whether and to what extent Ms. Qiao's claimed losses were caused by the defendants' tortious conduct. Causation [185] A central issue in this case is whether the plaintiff's ongoing physical and psychological symptoms and conditions were caused by the Incident or whether they are a continuation of pre-existing conditions or unrelated new illnesses. [186] The burden is on the plaintiff to prove causation on a balance of probabilities. She must establish that the defendants' wrongful acts caused both her injuries and the resulting losses: White v. Wang, 2014 BCSC 2416 at para.

69. The "former is concerned with establishing the existence of liability and the latter with the extent of that liability": White, citing Blackwater v. Plint, 2001 BCSC 997 at para. 363. [187] Any losses or injuries sustained by Ms. Qiao are not compensable unless they were caused in fact and in law by the defendants' tortious conduct. In order to establish causation, she must demonstrate: 1. First, that the damage was caused in fact by the conduct of the defendants (causation in fact); and 2. Second, that the conduct of the defendants was a proximate cause of the loss, or in other words, that the damage was not too remote from the factual causation (causation in law). The remoteness inquiry assumes that but for the defendant's wrongful act, the plaintiff's loss would not have occurred, but places legal limits on the defendant's liability: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 at para. 54 [188] Cause in fact requires Ms. Qiao to establish on a balance of probabilities that the defendants' conduct caused or materially contributed to her injury or injuries. The defendants' tortious conduct need not be the sole cause of the injury so long as it is part of the cause beyond the de minimus range. Causation need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin, 2011 BCCA 336 at para. 9. [189] The

primary test for causation asks: but for the defendants' wrongful act or omission, would the plaintiff have suffered the injury? The "but for" test recognizes that compensation for tortious conduct should only be made where a substantial connection between the injury and the defendant's conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23. [190] Causation must be established on a balance of probabilities before damages are assessed. As Chief Justice McLachlin stated in Blackwater v. Plint, 2005 SCC 58 at para. 78: Even though there may be several tortious and non-tortious causes of injury, so long as the defendant's act is a cause of the plaintiff's damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. [191] As Justice Marzari explained in Szostakiwskyj v. Launay, 2020 BCSC 653: [40] The plaintiff must be placed in the position that he would have been in if not for the defendant's negligence, no better or worse. Tortfeasors must take their victims as they find them, even if the plaintiff's injuries are more severe than they would be for the average

person (also known as the "thin skull" rule). However, the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition which he would have experienced anyway (also known as the "crumbling skull" rule): Athey at paras. 32-35.The Supreme Court of Canada articulated the "crumbling skull" rule in Athey, at para. 35 as follows: The so-called "crumbling skull" rule simply recognizes that the pre-existing condition was inherent in the plaintiff's "original position". The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this can be taken into account in reducing the overall award This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendants risks and shortcomings, and not a better position. [Emphasis in original.] [41] The "crumbling skull"

factor may be addressed in a number of ways, including as a percentage reduction on damages awards, which reflects the likelihood that a pre-existing injury or condition would result in similar losses: see, for example, Booth v. Gartner, 2010 BCSC 471 and Beardwood v. Sheppard, 2016 BCSC 100. Positions of the Parties [192] Ms. Qiao acknowledges "some ongoing issues at the time of the Incident", but takes the position that all of her current suffering was caused by the Incident, or, at the very least, has "exasperated her conditions and more likely caused her new and ongoing injuries unrelated to her history". She claims that the defendants' tortious conduct caused her severe personal injuries, including physical, mental, emotional and spiritual injuries that she collectively describes as "great mental and physical torture". [193] Mentally, emotionally and spiritually, Ms. Qiao identifies the following injuries, symptoms and conditions: great nerve shock, great anger, complete loss of spirit, stubborn anxiety, stubborn depression, poor memory, drowsy, forgetfulness, sleep disturbances, exhaustion, shortness of breath and difficulty breathing, great humiliation and embarrassment, loss of self-esteem and loss of reputation. She also identifies what she refers to as "several symptoms of schizophrenia", including illusion, self-talk, nonsense, failure to acknowledge what has been

said or done, a marked decline in judgment, an inability to control emotions, extreme irritability, resentment and an "outbreak of anger at any time". [194] Physically, the plaintiff identifies the following injuries, symptoms and conditions: brain abnormalities that include generalized cerebral volume loss, left temporal small haemorrhages and deep white matter loss, facial edema, heart issues, liver and gall bladder cysts, breast hyperplasia, nasal polyps, hearing loss, muscle tightness, intractable headaches and a retinal tear in one of her eyes. Overall, Ms. Qiao believes that "people who are chronically stressed and sleep deprived experience major changes in their bodies". She believes that her chronic stress and sleep deprivation, caused by the Incident, has caused significant problems to her endocrine, immune, nervous, digestive, circulatory, and respiratory systems, some of her senses and, fundamentally, her brain. She believes that something has "gone terribly wrong" with her brain, to the point where she fears she may hurt someone or break the law. She attributes all of her suffering to the Incident and demands "the defendants give me my brain back". [195] The defendants submit that the plaintiff has failed to prove factual causation between the brief Incident and the catastrophic symptoms and conditions that have arisen since the Incident. They emphasize the complete

absence of any expert medical opinion to support her belief that her current conditions stem from the Incident. At best, they say the evidence supports a finding that any physical injury to the plaintiff was temporary and superficial and any aggravation of her significant and ongoing pre-existing psychological conditions was minor, fleeting or temporary. [196] The defendants argue that Ms. Qiao's symptoms and conditions since the Incident are all related to a number of factors unrelated to the Incident, including: (a) her pre-existing and continuing psychiatric conditions of anxiety, depression, bipolar disorder, anger, agitation, insomnia, poor memory and her progressive neurological deterioration for which she has been referred to the UBC Dementia Clinic; (b) adverse reactions or withdrawal from long-term medication use either medically prescribed or inappropriately self-managed; (c) past neck and back injuries from motor vehicle accidents in 2004 and 2008; (d) facial and head trauma from a 2015 motor vehicle accident; (e) nasal and liver cysts and other unrelated medical issues arising in the eight years since the Incident; (f) self-directed, unconventional treatments in China; and (g) other stressful events in her life, such as incidents with TD Bank and Canada Post that caused her to initiate lawsuits seeking damages for "spiritual damage", "mental injury", "life

destroyed" and "hurt mind". [197] The defendants further submit that the plaintiff's belief of injury or worsening health is disproportionate to the severity of the Incident and that there is no independent, strong or convincing evidence to corroborate her claims. In addition to her failure to establish factual causation, they argue that she has failed to establish causation in law. Her significant symptoms and conditions were not a reasonably foreseeable consequence of the defendants' tortious actions. [198] I will start by outlining Ms. Qiao's pre-Incident medical conditions and symptoms. Plaintiff's Pre-Incident Medical Conditions and Symptoms [199] Ms. Qiao testified at length about her perceptions of her various medical conditions, the effects of her various medications, her self-directed treatments and theories and the many physical and mental symptoms she has experienced in the years before and after the Incident. Volumes of her medical records are before me. Two forensic psychiatrists and one physiatrist reviewed and summarized her medical history and provided expert opinion evidence. Another psychiatrist provided a report detailing the results of Ms. Qiao's recent MRI. [200] Ms. Qiao also discussed her perceptions of her medical treatments over the years. While she has frequently accessed the Canadian medical system, she has also accessed traditional Chinese medicine

options, with no consultation or integration between the two. In this area of her evidence, two of Ms. Qiao's firmly held beliefs emerged, both of which impacted her medical decision-making over the years. The first relates to Ms. Qiao's belief that "western" medicine is very poor, causing her to lack confidence in what western doctors tell her. The second relates to her belief that she can judge best what treatments she requires. While Ms. Qiao has regularly availed herself of both western and traditional Chinese medicines and treatments over many years, she believes that her experience as a pharmacist and her own common sense (aided by internet research) allow her to self-adjust medication doses, try non-conventional therapies, and decide what treatments are best for the conditions she believes she has. [201] I will review Ms. Qiao's evidence pertaining to her pre-Incident medical conditions and symptoms but, as with the rest of her evidence, Ms. Qiao struggled to stay focussed, acknowledged her very poor memory and expressed occasional confusion. I must approach her reporting of her complex medical history with caution. Where it conflicts with the medical evidence that I accept, I prefer the medical evidence. [202] I reach this conclusion with considerable sympathy for Ms. Qiao and intend no disrespect. She strikes me as a very kind-hearted person who has lived a life of

compassion. Ms. Qiao told me that she now believes she has "begun the journey of Alzheimer's". Although there is no definitive evidence before me of such a diagnosis, Ms. Qiao derives this belief from her recent conversation with psychiatrist Dr. Liang, who reviewed her recent MRI. In light of the whole of the medical evidence and all I have seen and heard from Ms. Qiao over the course of this protracted trial, her belief does not seem unreasonable. [203] I will do my best to summarize the main features of her evidence on this topic, before turning to the details of the medical evidence that I accept. [204] Ms. Qiao acknowledged that she suffered from depression, anxiety, panic attacks, insomnia, poor memory, heart palpitations, shortness of breath, dizziness, muscle tightness, muscle tension, temper changes, nightmares, hand shaking and sweating for many years prior to the Incident. She initially denied a diagnosis of bipolar disorder, but later seemed to acknowledge it. [205] Ms. Qiao recognized that her anxiety caused physical symptoms for which she sought treatment before the Incident. She admitted to frequent quarrelling and anger before the Incident as well. She denied that the physical or other conditions she has been experiencing in recent years were a problem before the Incident and that if there were any similar symptoms or complaints before the Incident, they were

"not as bad". [206] From her Canadian doctors, Ms. Qiao acknowledged receiving prescriptions for various medications to treat her psychiatric illnesses over the years, including Effexor, clonazepam and Ativan. She acknowledged taking Effexor regularly in high doses both before and after the Incident. She admitted to increasing her dose of Effexor without consulting a doctor, including in the few months before the Incident. [207] Ms. Qiao acknowledged that she randomly took clonazepam and Ativan as well. Even though she admitted self-directing her medications sometimes without consulting her treating doctors, she would not allow for the possibility that some of her symptoms before and/or after the Incident could have been caused by side effects or withdrawal from her medications. Ms. Qiao preferred, and continues to prefer, to rely upon what her pharmacist tells her over her doctor's advice. She denied that her doctors told her about side effects and withdrawal symptoms, denied that they warned her about taking a higher dosage than prescribed and denied that they told her she should reduce the dose due to side effects. [208] Ms. Qiao's family doctor for the last dozen or so years has been Dr. Leong. Previously she had seen Dr. Gu. [209] Ms. Qiao testified about a motor vehicle accident in 2004 (the "2004 MVA") where she suffered an injury to her shoulder and knee, a soft tissue

injury to her neck and back which included a disc herniation, and an aggravation of her anxiety disorder and depression symptoms. As a result of these injuries, she started attending for regular acupuncture treatments in 2006; however, by 2008 (the time of her trial in relation to the 2004 MVA), she was attending them for her own health and wellness upkeep purposes. Her acupuncturist is Lan Zhang. She also attended for other treatments to support her own general health and wellness, including deep pressure treatment, massage therapy, cupping and chiropractic treatments. [210] Ms. Qiao had a second motor vehicle accident in October 2008 (the "2008 MVA") where she suffered neck and back pain. She continued acupuncture two to three times a week for injuries she sustained, but claimed these were only "light issues". She was attending for more acupuncture treatments at the end of 2011 and into 2012, but denied such a volume would have continued but for the Incident. [211] Two forensic psychiatrists provided expert opinion evidence in this trial. The plaintiff called Dr. Lacresha Hall and the defendants called Dr. Mark Riley. They are both well-qualified in their fields and I accept their opinions. I will discuss their opinions later in these reasons. [212] Both doctors extensively reviewed Ms. Qiao's medical history, both with her and by reviewing her medical records since 2001.

Their reviews of her history were consistent and I accept their evidence. Their reviews revealed that Ms. Qiao suffered nearly all of the same symptoms that she now attributes to the Incident, including depression, heart palpations, digestive problems and anemia since childhood, poor sleep, poor memory, panic attacks, anxiety, neck and back pain, dizziness, inability to work, suicidal thoughts, stress, fainting, tremors, anger and temper problems, blurred vision, sweating, facial swelling, mania and hypomania. [213] I will now highlight some of the main features of Ms. Qiao's medical history since 2001. As the chronology unfolds, I will also add facts relating to other relevant events in Ms. Qiao's life. [214] In 2001, Ms. Qiao had complaints of anger, anxiety, and worsening back pain. In 2003, she complained of anxiety. [215] In 2004, Ms. Qiao had complaints of poor concentration, depressed mood, mania, hypomania, increased shopping, temper change, irritability and difficulty sleeping. Her family doctor started her on anti-depressant medication, first Paxil, and then in March 2004, Effexor, at a dosage of 75 mg daily. A psychiatric referral was initiated in June 2004. [216] In July 2004, Ms. Qiao reported that she had been "repeatedly shopping". Her daily dose of Effexor was increased to 112.5 mgs that month and, by September, it was increased to 150 mg. In August, she

reported a "temper change". She was also involved in the 2004 MVA that month. She reported headaches, neck pain, dizziness and a tender spine. [217] Also in 2004, Ms. Qiao began to suffer from multiple physical complaints, some of which coincided with the initiation of Effexor. She suffered from headaches, violent dreams, difficulty sleeping, blurred vision, nausea, dizziness, anxiety, decreased appetite, rashes, facial swelling, memory loss, suicidal thoughts, feeling uncomfortable, blurred vision, changes in blood work, restlessness, muscle tension, poor sleep, nightmares, sweating, "noises in her body", heart palpitations, and increased blood pressure. She reported being unable to work for two years due to mood changes and an inability to sleep. She also reported having suffered from many of the above symptoms over the past ten years. [218] In February 2005, Ms. Qiao saw a psychiatrist, Dr. Raymond Liang, for treatment of anxiety and probable depression. She reported tremors, palpitations, breathing problems and a previous diagnosis of bipolar disorder. That year she had more complaints of memory issues and continued anxiety. Her daily dose of Effexor was increased in May to 187.5 mg, in July to 225 mg and then in August to 262.5 mg. Her mood was reported to be stable in September. [219] In 2006, Ms. Qiao's daily dose of Effexor was 525 mg, well over the maximum recommended

dose of 375 mg. In May, her doctor recommended a planned and tapered decreasing of her dose to bring it back to the maximum recommended dose. That summer, Ms. Qiao reported having received treatment in China that helped her feel better. She also reported that she had increased her dose of Effexor while there to 450 mg daily and reduced it again to 300 mg when she returned, all without consulting a doctor. She continued to have anxiety, panic attacks and sleep difficulties. She began acupuncture treatments with Lan Zhang. [220] That same year, Ms. Qiao was referred to another psychiatrist, Dr. Marc Sienicki. At the time, she was taking Effexor, lorazepam and clonazepam. Dr. Sienicki diagnosed her with panic disorder (with agoraphobia) and generalized anxiety disorder. He also found her to have endorsed long-standing obsessive compulsive disorder ("OCD") spectrum symptoms. He recommended that Ms. Qiao engage in cognitive behavioural therapy and referred her to group therapy. He recommended a gradual decrease in her medications. Ms. Qiao did not engage in the therapy he recommended. [221] In 2007, Ms. Qiao reported being unable to control herself, increased anger and agitation leading to altercations with others, including a "quarrel with a neighbour". She felt she would never fully recover from the 2004 MVA in terms of her social functioning. [222] In January 2008, Ms. Qiao saw

Dr. Sienicki again. She told him that she was experiencing discomfort in her legs, stress, insomnia and anxiety beyond control. That same month, another psychiatrist, Dr. Schweigel, recommended that she continue to receive psychiatric care for anxiety and panic disorders and that she participate in the group psychotherapy sessions recommended by Dr. Sienicki to assist her in overcoming her fear of interacting with other people. Ms. Qiao did not engage in the therapy he recommended. [223] That same month, her family doctor, Dr. Leong, found that Ms. Qiao was in "mental distress" and was partially disabled as she had not returned to work since the 2004 MVA. Dr. Leong also noted her ten-year history of depression, anxiety and panic disorders. [224] In February 2008, Ms. Qiao reported poor memory, feeling anxious and feeling depressed. Her dose of Effexor was 350 mg at the time. [225] In April and May 2008, Ms. Qiao's trial in relation to the 2004 MVA was held. [226] In July 2008, Ms. Qiao refused to continue seeing Dr. Sienicki. [227] On October 17, 2008, Ms. Qiao was involved in the 2008 MVA. She reported symptoms of headaches, perspiration, dizziness and back pain. She continued to have symptoms of back pain, depression and anxiety through 2009. [228] In 2010, Ms. Qiao continued to see her family doctor. She continued to experience symptoms of anxiety and depression, panic

attacks and poor memory. In March, she was taking Ativan (1 mg) and Effexor (187.5 mg in the morning and 150 mg at night). That spring, Ms. Qiao spent a month in China. She reported knee and back pain, anxiety and a dog bite. In June, clonazepam (2 mg at night) was added to her medication regimen. In December, her dose of Effexor was increased to 225 mg in the morning and 150 mg at night. [229] In 2011, Ms. Qiao variously reported neck and back pain, anxiety and depression, forgetfulness, tremors, and leg pain. In February, she reported "not fainting anymore". On December 1, she reported to her family doctor that she was experiencing neck and back pain, sleep problems, tremors, very poor memory, being worried about the future and that she was "getting dates mixed up". [230] In 2011 and into early 2012, Ms. Qiao was experiencing other stressful events in her life. She commenced three different lawsuits in the span of several weeks. [231] On November 28, 2011, Ms. Qiao commenced an action against Canada Post in the Provincial Court of British Columbia. She claimed losses for "personal credit in North America was destroyed", "my life was destroyed" and "my mind was hurt" for Canada Post's alleged failure to forward her mail from April to July of 2011. [232] On January 4, 2012, Ms. Qiao commenced an action against the TD Bank in the Provincial Court of British Columbia. She claimed

losses for "spiritual damage, against my right" and "mental injury" for the bank allegedly taking nearly $300,000.00 from one of her accounts with another bank. [233] On January 12, 2012, Ms. Qiao commenced another action against Canada Post in the Provincial Court of British Columbia. Here, she claimed losses for "damage the quality of my life" and "spiritual damage" for Canada Post's alleged failed to deliver her mail for the previous three years. [234] On January 7, 2012, Ms. Qiao told her family doctor that she felt very anxious. On January 9, 2012, she told her that she was experiencing shortness of breath and difficulty breathing, felt very tired, had poor memory and felt very angry. She continued to take Effexor and took Ativan when stressed and clonazepam to sleep. [235] On February 1, 2012, Ms. Qiao told her family doctor that she felt very tired, had a poor memory, felt very angry and had been experiencing racial discrimination in Canada. Dr. Leong suggested she try group therapy. Ms. Qiao did not do so. She saw her family doctor again on February 6 and reported feeling "smarter and wiser than other people". Her dose of Effexor was decreased to a total of 337.5 mg daily. [236] On March 5, 2012, Ms. Qiao told Dr. Leong that she felt worse after decreasing her Effexor. She felt increased stress and agitation and wanted to be able to control her temper. Her dose of

Effexor was increased back to 350 mg daily. She received a refill for Ativan and clonazepam. [237] The Incident occurred on March 30, 2012. Plaintiff's Post-Incident Medical Conditions and Symptoms [238] Ms. Qiao feels strongly that Mr. Gill, the RCMP officers at the scene and the RCMP officers at the detachment office all mistreated her that day. Ms. Qiao testified that before the Incident, she was a confident person, "bringing people happiness, sunshine and positive energy", but that is now gone. She now believes that Canada is not ruled by law and is a "horrible" place to live. It was about two months before she went back into the Mall because of her embarrassment and humiliation. She feels that her mood and health changed in significant and negative ways since that day, to the point that she wanted to die. [239] Ms. Qiao detailed her feelings, treatments, symptoms, impressions and experiences from March 2012 to the present over the course of several court days. In short, she attributes all of her current health conditions to the Incident. She believes the stress the Incident caused her has impacted every system in her body, including the damage to her brain. [240] As before, I will now highlight some of the main features of Ms. Qiao's medical history from the time of the Incident to the present. As the chronology unfolds, I will also add facts relating to other relevant

events that occurred in Ms. Qiao's life. [241] Ms. Qiao testified that when she returned home from the Mall that day, she felt mentally and physically exhausted and weak. She could not sleep that night. The next day, she experienced dizziness, breathlessness, a racing heart, perspiration, headaches and shaking hands. Those symptoms persisted for more than a month and got progressively worse. She believes that she went to see her family doctor several days after the Incident. [242] On April 2, 2012, Ms. Qiao saw her family doctor, Dr. Leong, and reported that she had been experiencing left arm and right low back pain for the last two days. On April 14, Dr. Leong noted her depression and anxiety and sent her for a 24-hour holter monitor test for her heart, which came back normal. [243] On July 30, 2012, Dr. Leong noted worsening facial swelling. [244] On August 13, 2012, Ms. Qiao amended her first Notice of Claim against Canada Post. That same day, she amended her Notice of Claim against the TD Bank. [245] In September 2012, Ms. Qiao complained of headaches, dizziness from physical work, decreased appetite, poor sleep, chest pain, poor energy, as well as neck and back pain. She remained on 375 mg of Effexor daily and Elavil 10 mg was added at night. Cardiology investigations were negative and her chest discomfort was thought to be associated with anxiety. [246] In 2013, Ms. Qiao

received another psychiatry referral. She saw Dr. Dajiang Zhang, who remained her treating psychiatrist for years thereafter. Dr. Zhang diagnosed her with bipolar affective disorder and anxiety disorder. His impression was that she had a long history of mood instability and most likely suffers from a bipolar illness, though her symptom profile did not meet the criterial of Type 1 and Type 2. He noted various stressors in Ms. Qiao's life, including the Incident, a long history of depression, her decades-long use of anti-depressant and anti-anxiety medications, car accidents and several legal processes, including the small claims actions I have discussed. Dr. Zhang also noted that she had developed a dependence on benzodiazepines. [247] In 2013, Ms. Qiao told her doctor about memory difficulties, frequent mood changes, facial swelling, a rash on her face and torso, anxiety and depression. [248] In February 2014, Ms. Qiao told her family doctor that she was dissatisfied with the medical profession. Upset that her doctors were telling her that her "heart was perfect" when she felt it was not, she sought out other treatment options on her own and started attending "muscle balancing" therapy with Raymond Fung that same month. Mr. Fung testified. Not regulated by any professional body, Mr. Fung explained the purpose of his treatment is to help people "relax tightness along their

spines". He likened it to a combination of chiropractic, massage and physiotherapy. She continues to see him. [249] In the summer and fall of 2014, Ms. Qiao experienced poor sleep, blurred vision, claustrophobia, headaches and what Dr. Leong called "cognitive decline". A CT scan of her brain revealed the presence of a large nasal polyp that later required surgical intervention. [250] On April 27, 2015, Ms. Qiao either fell asleep or otherwise lost consciousness while driving. Her vehicle collided with three parked cars (the "2015 MVA"). She was injured and taken to hospital by ambulance. Ms. Qiao has little memory of these events, so she was unsure about the extent of her injuries. The records reflect that she suffered head and facial trauma. Ms. Qiao had been taking trazodone 300 mg (an anti-depressant medication with sedative effects) during the night prior to the 2015 MVA. Her medications at the time, in addition to the trazodone, were Effexor 225 mg daily and gabapentin 600 mg twice daily. [251] Dr. Lee, her treating physician at the time, recommended that Ms. Qiao attend for massage and physiotherapy to treat symptoms from the injuries she suffered in the 2015 MVA. Ms. Qiao attended for massage therapy, but chose acupuncture over physiotherapy. [252] In June 2015, Ms. Qiao received a ticket for driving without due care and attention. [253] In December 2015, an ophthalmic

surgeon found a retinal tear in Ms. Qiao's eye. This was later repaired by laser surgery. [254] In 2016 and 2017, Ms. Qiao continued to see her family doctor and psychiatrist Dr. Zhang. She experienced dizziness, insomnia and increased blood pressure from time to time. In November 2017, she was started on methotrimeprazine, a drug used to treat mental/mood disorders. [255] In February and March 2018, Ms. Qiao experienced two events that were frightening for her. The first occurred when she withdrew $1,000 from her bank account through an ATM machine at the Royal Bank of Canada ("RBC"). She left the bank and travelled to the New Westminster courthouse where she planned to use the money to make a payment of some kind. Once at the courthouse, she discovered that she did not have the $1,000 and could not remember what had happened. She contacted RBC and some sort of dispute with RBC ensued. The second occurred when she misplaced her passport and engaged in what she referred to as a "six-hour argument with Air Canada" at the airport. [256] These two events caused Ms. Qiao to panic. She consulted Dr. Leong and Dr. Zhang. According to Ms. Qiao, Dr. Zhang told her that he could not treat her condition, which he likened to when "your consciousness drifts out of your body". Also according to Ms. Qiao, Dr. Leong also told her she was unable to help her. Ms. Qiao decided to take matters

into her own hands. She did not call Dr. Leong or Dr. Zhang as a witness. [257] Ms. Qiao decided she needed to have her brain examined to see what was wrong, so she searched online for options. She found stem cell therapy and came to believe that this was the only therapy that could repair the "damaged cells" in her brain. She did not consult any medical professional in deciding to take this course of action. The treatment centre for what she felt she needed was located in China. [258] In July 2018, Ms. Qiao was started on Cymbalta. [259] In September 2018, Ms. Qiao travelled to Shenzhen Jingtian Hospital in China where she received various tests that uncovered multiple cysts in her liver and multiple gallstones. She received one session of stem cell therapy treatment at a cost of approximately $100,000.00. She was only able to do this one session because she ran out of money. She found that after feeling extremely unwell for 20 days after this therapy, she began to experience better sleep and vision. [260] Back in Canada in October 2018, Dr. Zhang increased her dosage of Cymbalta. She was also assessed by an ear, nose and throat specialist who found hearing loss and tinnitus. She received an ultrasound that revealed gallstones as well as hepatic and left renal cysts. [261] Ms. Qiao borrowed money and went back to China in November 2018 to undergo further testing that she felt

was necessary. The evidence about this testing was unclear, but from the documents she provided, it is called "Routine Inspection of Russian Outer Space Cosmonauts" administered through the Institute of Practical Psychophysics Asia Pacific Research and Education Center. [262] Ms. Qiao experienced a decline in her cognitive functioning in recent years. She suffered some "blackout spells" where she did not recall what she had done moments ago, took items from stores without realizing she had not paid for them and, in the summer of 2019, caused three car accidents in a 20-day period. Her family doctor sent her for an MRI of her brain. She saw a neurologist and another psychiatrist in the fall. I will discuss this later in these reasons. The Medical Experts Dr. Daniel DeForge - Physiatrist [263] Dr. DeForge is a medical doctor qualified to give expert opinion evidence in the area of physical medicine and rehabilitation. In addition to his interview and assessment of Ms. Qiao on August 4, 2015, Dr. DeForge reviewed a number of her medical records and ultimately provided two reports - his initial report of November 29, 2015 and an addendum report dated April 10, 2019. Dr. DeForge ultimately opined that Ms. Qiao suffered no physical injuries or sequelae from the Incident. [264] Ms. Qiao told Dr. DeForge during the interview that she could not recall much about any symptoms on the day

of the Incident, but recalled feeling "pain everywhere" and "complete emotional exhaustion" the following day. From his discussion with her, Dr. DeForge came to understand that Ms. Qiao's complaints were not of physical injuries, but rather related to a "loss of spirit", an injury to her "heart" and a "total loss of internal energy and drive". She told him that she was unable to work or perform any recreational activities because her "energy and psyche have been completely drained". Dr. DeForge interpreted this to refer and relate to psychological injury, which is outside the scope of his expertise. His physical examination of her revealed no evidence of pain, discomfort, swelling or tenderness on any part of her body. [265] After the completion of the interview and examination, Dr. DeForge asked Ms. Qiao if there were any other points that she would like to make. Of concern, she expressed, in English (an interpreter had been involved), that she was having obsessive thoughts about revenge. As she had no specific plans targeting who and how she would exact this revenge, Dr. DeForge opted to contact her psychiatrist, Dr. Zhang, rather than take her to the emergency department. [266] Ms. Qiao did not relate all of her relevant medical history to Dr. DeForge. From the medical records he was given, Dr. DeForge noted prior musculoskeletal pain related to the 2004 MVA and an inability

to return to work in 2008 as a result of those accident injuries. He also noted Ms. Qiao's numerous past psychiatric complaints resulting in diagnoses of anxiety and depression in 2005, anxiety, panic disorder and depression in 2006 and affective disorder, anxiety disorder and panic disorder with personality traits from before the Incident to date. [267] At the time of his first report, Dr. DeForge found it difficult to compare Ms. Qiao's pre and post-Incident conditions due to a lack of documentation. However, he found that his examination was consistent with Ms. Qiao's view that she did not suffer any physical injury or physical sequelae from the Incident. He strongly recommended that Ms. Qiao have an independent psychiatric evaluation. [268] In 2019, Dr. DeForge was provided with additional documentation, including the report of psychiatrist Dr. Hall. He reviewed the additional material and confirmed his original opinion that Ms. Qiao suffered no physical injuries from the Incident. [269] Dr. DeForge also provided his opinion on the medical reasonableness and necessity of the plaintiff's various self-directed treatments, medical devices and therapies, including stem cell therapy, massage therapy, acupuncture, electrical stimulators, deep muscle stimulators, foot massagers, electromagnetic field therapy, micronutrients and a "magic lamp". He opined that these things either

had no proven use or provided only short-term use benefits in treating chronic pain, neurological disorders and/or musculoskeletal soft tissue disorders. Dr. Mark Riley, Forensic Psychiatrist [270] Dr. Riley is a forensic psychiatrist qualified to give expert opinion evidence in his field. He evaluated Ms. Qiao in February 2016 and prepared a report dated February 24, 2016. Later, he provided an addendum report of April 11, 2019. He testified as well. [271] Dr. Riley was asked to provide his opinion about psychiatric injuries Ms. Qiao was alleged to have sustained in the Incident. He was asked to address issues concerning her psychiatric diagnoses, causation, the existence of any conditions prior to or since the Incident, prognosis, disability, ability to work, and further treatment recommendations. [272] Dr. Riley reviewed much of what I have outlined above in terms of her medical history. He summarized her history as including: a) difficulties with anxiety, including episodic panic symptoms involving brief periods of difficulty breathing, heart palpitations and increased anxiety, dating back at least ten years, and possibly as long as 20 years; b) depressive episodes triggered by significant events in her life, probably going back to the mid-1990s, that have been less persistent than her anxiety problems; c) an exacerbation of her mental health symptoms at some point between

2000 and 2002 involving an inability to work for two years; d) the 2004 MVA, where she stopped working; e) psychiatric assessments in 2005 and 2006, but no regular contact with a psychiatrist until Dr. Zhang in 2013, with all three psychiatrists noting a history of a depressive disorder, with episodes of anxiety symptoms; f) outbursts of anger being the most significant emotional disturbance reported by Ms. Qiao at the time of assessment, with such problems noted in the records prior to the Incident; and g) the 2015 MVA, which may have been associated with sedative medication at the time. [273] Dr. Riley found that Ms. Qiao's past medical history since 2004 and before the Incident included depression, palpitations, diarrhea and anemia since childhood, poor sleep, poor memory, panic, headaches, neck pain and dizziness, anxiety, inability to work due to MVA injuries, suicidal thoughts, fainting, tremors, stress, shortness of breath and back pain. Her history also included anger and temper problems which lead to an increase in her anti-depressant and anti-anxiety medications on March 2, 2012. [274] During his assessment, Dr. Riley noted no objective signs of mental disorder anxiety, depression or cognitive impairment. He found that Ms. Qiao was vague about some timelines and details of her past problems and that while she did not deny having problems prior to the Incident, she

seemed to under-estimate them. For example, Ms. Qiao assured Dr. Riley that depression had not been a problem in the past, but her records show that it clearly was. [275] With respect to her medications, Dr. Riley found that Ms. Qiao's medications had changed very little over the years. He noted that Effexor has been the most consistently prescribed medication since 2004 and that she was also prescribed benzodiazepine medications (clonazepam and lorazepam/Ativan) on an almost continuous basis. He opined that these medications can cause memory difficulties and, if taken regularly for several weeks or months and then stopped, can cause withdrawal symptoms that are similar to anxiety symptoms. [276] In terms of her condition at the time of his assessment, Dr. Riley found that Ms. Qiao did not present with any objective signs of mental disorder, but did subjectively report anxiety symptoms suggestive of a panic disorder. She also reported outbursts of anger, which Dr. Riley found to be atypical for an anxiety disorder. In cross-examination, he offered that he thought he was seeing Ms. Qiao on a good day. [277] Dr. Riley opined that anger as a primary presenting concern can be associated with two general categories of disorders. It can be associated with irritability, such as mood disorders, including depressive disorders. He found no evidence to suggest a mood or depressive

disorder at the time of assessment, but noted that Ms. Qiao had been diagnosed with a depressive disorder in the past. Anger can also be associated with personality disorders, particularly anti-social personality disorder and borderline personality disorder, but Dr. Riley found insufficient evidence to suggest the presence of either of these disorders. [278] On the issue of causation, Dr. Riley opined that the Incident: may have exacerbated Ms. Qiao's pre-existing mental health concerns, but there is insufficient evidence to establish that her mental condition would not have developed as it has over recent years but for that incident. [279] He noted that she has experienced problems that are very similar to the problems she had over the decade prior to the Incident and that her problems with anger and anxiety were "clearly a focus of concern over the months prior to" the Incident. [280] Dr. Riley noted that a significant part of Ms. Qiao's reported problems since the Incident has been her "strong sense of injustice as a result of being falsely accused of assaulting a person and the humiliation of being handcuffed by the police and feeling pressured into agreeing to no longer access the Crystal Mall." I pause here to observe that this strong sense of injustice continued to be front and centre throughout Ms. Qiao's evidence and submissions at trial. Dr. Riley opined that holding

onto a grievance for such a long period of time is suggestive of a personality disorder, but as he previously noted, he found no other convincing evidence to support such a diagnosis at the time of his assessment. He found himself unable to link Ms. Qiao's anger to any identifiable psychiatric disorder. [281] In cross-examination, Dr. Riley was shown portions of the recordings from that day at the Mall, evidence he had not seen before. He agreed that such an event would be a negative experience and disturbing to a person who has never had experience with police. He agreed with the suggestion that it was possible that any trauma effects Ms. Qiao experienced as a result of the Incident could still be lingering at the time he assessed her. He also agreed that it would be "reasonable to say that it could aggravate her situation", but would not go so far as to agree with counsel's suggestion that it is "likely what happened". [282] In terms of prognosis, Dr. Riley found he was unable to opine on the degree to which Ms. Qiao is or is not disabled due to psychological injuries that may have been caused by the Incident. He found that he was unable to determine the extent to which Ms. Qiao was suffering from a mental disorder and the extent to which she was disabled by such a disorder before the Incident as compared to after and that further information would be required. He explained

that while he found nothing in the medical records to substantiate that her pre-existing conditions were worse after the Incident, it is unrealistic to see consequences right away. Psychological problems can take time to evolve. One needs a "big window" of records before and after the Incident and, in Ms. Qiao's case, there was a lack of information regarding her functioning before and after and her self-reporting contradicted aspects of what her medical records revealed. Further information would be required. From the information he did have, Dr. Riley opined that Ms. Qiao's: current difficulties appear to have persisted for a long time and, regardless of the issue of causation with respect to the incident in March 2012, she will likely continue to experience episodic anxiety and anger. [283] Dr. Riley recommended that Ms. Qiao pursue the cognitive-behavioural therapy recommended by Dr. Liang in 2005 and Dr. Sienicki in 2006. He opined that this treatment, aimed at anxiety and anger management, would "be most appropriate, but in view of the chronicity of Ms. Qiao's symptoms, the prospects of a full recovery may be limited". [284] Dr. Riley was asked to review Dr. Hall's report and a number of additional records served on the defendants just before trial. He did so and provided an addendum report of April 11, 2019. His original opinion was not altered. [285] Dr. Riley found

that the additional medical records confirmed his previous findings that "prior to 2012, Ms. Qiao had a long history of anxiety and depressive symptoms, as well as difficulties coping with stress". He also noted, with respect to Ms. Qiao's various self-directed treatments since the Incident, that: Although none of the interventions appear to fall within the scope of my expertise, there is no reference to the medical indications for any of these interventions. Furthermore, there no reference in these records that link her expenses to any recognizable medical diagnosis, and no reference to how her problems were causally related to the incident in 2012. [286] In cross-examination, Dr. Riley agreed that if traditional Chinese medicine gives Ms. Qiao comfort or decreases her anxiety, he would be in favour of it. In re-examination, he explained that a report from Ms. Qiao's family doctor and her traditional Chinese medicine practitioners would prompt more questions from him. Dr. Lacresha Hall - Forensic Psychiatrist [287] Dr. Hall is a forensic psychiatrist qualified to give expert opinion evidence in her field. She has extensive experience in dealing with people, primarily women, who have experienced trauma. She evaluated Ms. Qiao in September 2018. Her report of October 12, 2018 is before me. She testified as well. [288] Dr. Hall thoroughly reviewed Ms. Qiao's medical and

medication history since 2001 and provided her opinions on five questions. [289] First, Dr. Hall was asked to provide her opinion on Ms. Qiao's complete medical history. [290] Dr. Hall reviewed all that I have outlined above and more. She also explained the various side effects one may experience from the medications Ms. Qiao used over the years. Ultimately, she opined that it is more likely than not that Ms. Qiao has been experiencing side effects from her medications for years. In providing this opinion, Dr. Hall noted and relied upon a number of things. [291] Among other things, Dr. Hall noted that Ms. Qiao reported physical complaints that coincided with the initiation of Effexor and that many of those complaints are consistent with its known side effects. She opined that when a drug like Effexor is used in high doses and/or in combination with other medications used by Ms. Qiao, a person may experience significant side effects that may mimic psychiatric symptoms. [292] Dr. Hall also noted that many of Ms. Qiao's symptoms temporarily improved with the use of a benzodiazepine, such as Ativan or clonazepam. From this, she opined that it is possible Ms. Qiao suffers from akithisia, a movement disorder that consists of subjective feelings of restlessness and a desire to move, which is often mistaken for agitated depression or anxiety. She also suggested another possibility -

excessive serotonin, secondary to the use of serotonergic drugs such as Effexor, Cymbalta and Trazodone. Dr. Hall was clear that the presence of these side effects makes it difficult to provide accurate psychiatric diagnoses. She explained that it is difficult to determine if Ms. Qiao's symptoms (which appear worse than in 2001 to early 2004) are biological, or whether they are secondary to medication side effects, given there is no psychiatric history available prior to the start of Effexor. [293] Dr. Hall discussed another factor related to Ms. Qiao's medications and her symptoms of anger and irritability - her use of benzodiazepines, the anti-anxiety medications Ativan (lorazepam) and clonazepam. She opined that these medications, while helpful in temporarily decreasing anxiety and some side effects from other medications, can also produce unwanted side effects on their own, such as increased anxiety (when the dose wears off) and disinhibition. Although it is impossible to determine what effect Ms. Qiao's use of benzodiazepines has had, Dr. Hall suggested that it may be a contributing factor to Ms. Qiao's anger and irritability. [294] With all of this in mind, Dr. Hall opined that is was more likely than not that Mr. Qiao is and has been experiencing side effects from her medications for years. It was also her opinion that it is difficult to determine an accurate psychiatric

history and any diagnoses without a period of medication abstinence and/or psychiatric records pre-dating 2001. She recommended that Ms. Qiao undergo a tapering of her medications, so that her baseline symptoms could be then assessed and medication trials could begin. [295] Second, Dr. Hall was asked to provide her opinion on the treatment administered in respect of injuries from the Incident. [296] Here, Dr. Hall noted that shortly before the Incident, Ms. Qiao's dose of Effexor had been decreased to 337.5 mg daily. She complained of feeling worse and wanting to better control her anger, so on March 5, 2012, her doctor increased her dose back to 350 mg daily. In these circumstances, Dr. Hall opined that it is likely that the worsening of her symptoms were not as a result of the re-emergence of depression or anxiety, but discontinuation symptoms that result from the decrease in medication, similar to the concept of withdrawal. [297] Dr. Hall also noted there was no documented change in Ms. Qiao's treatment following the Incident until September 11, 2012, when her family doctor added sleep medication. Ms. Qiao had seen her family doctor in April 2012, but no change in treatment occurred at that time, other than a referral for a 24-hour holter monitor. After September 11, 2012, Dr. Hall found that the next documented treatment change occurred on March 4, 2013, when Ms. Qiao was

started on Seroquel, a neuroleptic medication prescribed by her psychiatrist, Dr. Zhang, for mood stabilization due to suspicion of bipolar affective disorder. The next documented medication change was May 7, 2015 when Trazodone was added for sleep. [298] Third, Dr. Hall was asked for her opinion on Ms. Qiao's current complaints and present condition in relation to the Incident. [299] Dr. Hall described Ms. Qiao as significantly distressed because she felt she may physically harm someone and that her symptoms were unmanageable. Ms. Qiao told Dr. Hall that her health condition was "perfect" before the Incident compared to now. She also told her that she believes that the Incident caused something to incurably "go wrong in her brain", that she can no longer contribute to the world and that she is "costing more than she is worth". She expressed a desire to be euthanized at the hands of the government. [300] Dr. Hall opined that Ms. Qiao's physical altercation with the security guard, combined with her worsening symptoms of anger and irritability, led her to believe that she is out of control and in danger of harming others and possibly being jailed; thereby requiring that she be killed in order to protect others. She opined that but for the Incident, Ms. Qiao may not have come to the conclusion that she is both a potential danger and burden to society. Dr. Hall further explained

at trial that the Incident was traumatic for Ms. Qiao, creating a crisis of her person. She explained that when people go through a trauma, they may revert to a comfortable place in their history, which may explain why Ms. Qiao turned to traditional Chinese and/ or alternative medicines and therapies. [301] Fourth, Dr. Hall was asked to opine on what, if any, injuries or effects were caused by the Incident. [302] Here, Dr. Hall reiterated that she was unable to provide a definitive psychiatric diagnosis. As a result of Ms. Qiao's psychiatric symptoms before and after the Incident, combined with the medication side effects, Dr. Hall found it impossible to say. She explained that the medications and their side effects make it difficult to determine precisely how the Incident affected her. Until those side effects are treated and/or information regarding her psychiatric history pre-dating 2001 becomes available, Dr. Hall is unable to offer a definitive diagnosis. However, based upon her evaluation of Ms. Qiao in September 2018, Dr. Hall opined that she presented with symptoms of mania, generalized anxiety and compulsive behaviours. She identified evidence of impulsivity, irritability, decreased sleep, grandiosity, racing thoughts, increased energy, increased speech, distractibility, generalized anxiety, compulsive behaviour and agoraphobia since about 2004 to the present

day. [303] Dr. Hall provided the same explanation for her inability to provide an opinion on whether Ms. Qiao is permanently or partially disabled due to injuries suffered in the Incident and whether she will suffer cognitive, emotional or psychological effects in the future due to injuries suffered in the Incident. [304] With respect to the question of whether Ms. Qiao will suffer discomfort or pain in the future as a result of the injuries caused by the Incident, Dr. Hall opined that her level of disability and future suffering cannot be determined until her medication side effects are treated and a baseline level of symptoms can be established. Once her baseline symptoms are adequately treated, Ms. Qiao can be re-evaluated to determine what, if any, limitations she may have. [305] With respect to the question about anticipated future treatment for any problems caused by the Incident, Dr. Hall repeated her recommendation that Ms. Qiao be slowly tapered off of all of her medications and, once medication free, undergo a thorough psychiatric assessment to determine her baseline symptoms. Then, if it is determined that Ms. Qiao's symptoms warrant treatment with psychiatric medications for anxiety or depression, Dr. Hall recommended that she be first trialed on a selective serotonin reuptake inhibitor and that she be treated with the least amount of medication, at the lowest dose

necessary to achieve the desired effect. [306] Dr. Hall also recommended that once Ms. Qiao is medication free and psychiatrically re-evaluated, therapeutic options be considered, such as individual and/or group psychotherapy to help her learn skills to better function interpersonally. [307] Ms. Qiao did not follow any of these recommendations. Dr. Liang - Psychiatrist [308] Dr. Liang was the psychiatrist that Ms. Qiao first saw in 2005. He was not called as a witness. After the close of the evidentiary phase of the trial, Ms. Qiao asked to tender a report she had recently received from Dr. Liang dated November 1, 2019. Given its currency and its relevance to Ms. Qiao's conditions, I granted her application. Although it does not stand on the same footing as the evidence from the other experts who prepared reports for the court and testified, it is helpful to understand recent developments in Ms. Qiao's health and functioning. [309] In the summer of 2019, Ms. Qiao had an MRI of her brain. She had been seen by a neurologist, following which her family doctor referred her to see Dr. Liang. Ms. Qiao told Dr. Liang that she had been experiencing some "blackout spells" where she did not recall what she had done moments ago. She gave him an example of a recent time where she left a store without paying for the items she selected. Ms. Qiao also expressed concern about her involvement

in three motor vehicle accidents in the summer of 2019. They occurred over the span of 20 days and were all her fault. Ms. Qiao testified about all of these incidents as well. [310] Dr. Liang described the results of Ms. Qiao's MRI in his report. He found that it shows that Ms. Qiao suffers from cerebral abnormalities, such as a "generalized cerebral volume loss, left temporal small hemorrhages and deep white matter loss". Dr. Liang wrote that he suspects that this is a progressive neurological problem, noting her long-standing symptomology over several years and the recent deterioration in her executive function. Dr. Liang diagnosed her with depression and "query dementia". He recommended that Ms. Qiao's family doctor refer her to the UBC Dementia Clinic for further neuropsychological testing. [311] Ms. Qiao told me, and I accept, that Dr. Liang advised her to no longer drive a car, have someone do her banking and shopping, and have someone to supervise her. She believes this supervisor could serve to remind her "not to break the law and hurt others". Based on her discussion with Dr. Liang, Ms. Qiao believes she has now begun the "journey of Alzheimer's". Determination on Causation [312] The plaintiff submits that she has met her burden of establishing that the defendants' tortious conduct caused or materially contributed to all of her current psychological and physical

symptoms and conditions. Except in two areas, I am not satisfied that she has. [313] The evidence is quite overwhelming that Ms. Qiao has suffered, both before and after the Incident, from the same psychological, and associated physical, symptoms. Whether those symptoms were and are biological and related to her diagnoses of bipolar affective disorder, generalized anxiety disorder, depressive disorder, panic disorder (with agoraphobia) and, perhaps, dementia, or whether they were and are secondary side effects from her medications is not something that can be resolved on the evidence. Ms. Qiao would have to follow Dr. Hall's advice to wean herself off all of her medications so that a proper assessment could occur. What has been established on the evidence is that Ms. Qiao's long-standing and continuing psychological symptoms, and related physical complaints, were not caused or materially contributed to by the defendants' tortious conduct. [314] Ms. Qiao also claims that the Incident caused her pre-existing psychological symptoms and conditions to worsen, creating chronic stress and sleep deprivation. She believes this caused major changes to her body, resulting in general problems with nearly every system in her body and specific problems with her heart, liver, kidneys, gallbladder, eyes, ears and brain. I understand Ms. Qiao's desire to find someone to blame for all that she

has experienced over the years, but I must respectfully conclude that Ms. Qiao's firmly held beliefs do not rise to the level of discharging her burden of proof. There is simply no evidence to support any causal link between Ms. Qiao's current psychological symptoms and health conditions and the Incident. There is no corroborative or convincing evidence, particularly no medical opinion evidence, to support her subjective belief in such a casual link. [315] Ms. Qiao has chosen not to tender any medical opinion evidence from her long-term treating family doctor, Dr. Leong, nor from her treating psychiatrist since 2013, Dr. Zhang, nor from any treating practitioner from China to provide any medical foundation or support for her subjective feelings that the Incident caused or contributed to the multitude of multi-system problems of her mind and body. In fact, Ms. Qiao readily admitted that Dr. Leong would not support her claims in this regard. The defendants ask that I draw an adverse inference for her failure to call these highly relevant medical practitioners and, in these circumstances, I do. I infer that, if called, they would not provide medical opinions or corroborative evidence to support Ms. Qiao's claims of injury, harm and ongoing worsening health arising from the Incident. [316] I accept the opinions of all three experts that testified. They were all properly qualified

experts in their fields. They were aware of their duties to provide fair, objective and non-partisan assistance to the court within the scope of their area of expertise. I am satisfied that they all provided that type of evidence. [317] Dr. DeForge opined that Ms. Qiao suffered no physical injury in the Incident. Drs. Hall and Riley were not able to attribute any psychiatric diagnosis to the Incident. When Dr. Hall evaluated Ms. Qiao in September 2018, she found that Ms. Qiao exhibited symptoms of mania and generalized anxiety, as well as compulsive behaviours. She considered the common side effects of her medications and her history of worsening mood instability and physical complaints since she began taking them. Dr. Hall ultimately opined that it was more likely than not that Ms. Qiao is experiencing, and has experienced, side effects from her medications. [318] As the defendants argue, with respect to the vast number of injuries she claims were caused by the defendants' conduct, Ms. Qiao is really seeking to have the defendants compensate her for the debilitating effects of psychological pre-existing symptoms and conditions which she would have experienced anyway and for the various unrelated physical conditions that arose after the Incident. She has not established causation in fact or in law. [319] This is not the end of the matter, however. I am satisfied that Ms. Qiao

has met the burden upon her in two respects. [320] First, in terms of her physical injuries, Ms. Qiao has established that she suffered left arm and lower back pain for a short period of time as a result of the Incident. She reported these complaints to her family doctor when she first saw her after the Incident and I accept, given the nature of the physical interactions she had with Mr. Gill, that she did experience pain in those areas for a short period of time. Such an injury is reasonably foreseeable. [321] Second, in terms of any mental injury, Ms. Qiao has established that the Incident was very traumatic for her and that it caused her significant emotional distress, over and above the distress she experienced because of her continuing pre-existing and/or new medical conditions unrelated to the Incident. Her emotional distress has been long-lasting and involves feelings of humiliation, embarrassment, anger and loss of hope and confidence in both the rule of law and her self-worth. To determine whether this emotional distress is any injury caused by the defendants' tortious conduct, I must answer three questions: (1) Does this emotional distress rise to level of a compensable injury? (2) Did the defendants' conduct cause this injury in fact? (3) Was this injury reasonably foreseeable? [322] I am satisfied that the answer to all three questions is yes. [323] In considering

the first question, it is well-established that the law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. To be a compensable injury, it must be "serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept": Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 9. [324] While this means that a legally compensable mental injury must be more than mere psychological upset, such a finding need not rest, in whole or in part, on the plaintiff proving a recognized psychiatric illness. Expert evidence can assist in determining whether or not a mental injury has been established, but where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find, on other evidence adduced by a plaintiff, that she has proven on a balance of probabilities the occurrence of mental injury: Saadati v. Moorhead, 2017 SCC 28 at paras. 35-38. [325] I am satisfied that Ms. Qiao has established that she suffered trauma in the Incident and that this trauma resulted in more than mere psychological upset. Dr. Hall opined, and I accept, that Ms. Qiao's physical altercation with Mr. Gill was traumatic and, combined with her worsening symptoms of anger and irritability at the time, caused a "crisis of the person" for Ms. Qiao, in which she

came to believe that she was out of control and in danger of harming others and possibly being jailed; thereby requiring that she be killed in order to protect others. Ms. Qiao repeated such things at trial, including one particularly distressing outburst where she implored the court to enable her euthanasia. [326] Ms. Qiao's emotional distress from the Incident has been long-lasting and involves feelings of humiliation, embarrassment, anger and loss of hope and confidence in both the rule of law and her self-worth. I am satisfied this qualifies as a serious and prolonged psychological disturbance that rises above the ordinary annoyances described by the Court in Mustapha and Saadati. It is a compensable mental injury. [327] I am further satisfied the plaintiff has proven causation of this mental injury in fact. Ms. Qiao's evidence, supported by Dr. Hall's opinion in this area, supports a determination that the defendants' tortious conduct was a material contributing cause of this injury. [328] I am also satisfied Ms. Qiao has established this mental injury was reasonably foreseeable. [329] To demonstrate that the injury she suffered is not too remote to be viewed as legally caused by the defendants' tortious conduct, Ms. Qiao must show that it was foreseeable that a person of ordinary fortitude would suffer the injury she did: Mustapha at paras. 12,18. It is not necessary for

Ms. Qiao to show that the precise injury or the full extent of the injury was reasonably foreseeable. What she must show is that the type or kind of injury was reasonably foreseeable: Hussack at para. 71. [330] Here, although Ms. Qiao is particularly vulnerable to mental injury, I am satisfied that it is reasonably foreseeable that a person of ordinary fortitude would suffer the type of mental injury Ms. Qiao did. A person of ordinary fortitude would experience trauma resulting in emotional distress and creating feelings of humiliation, embarrassment, anger and loss of hope and confidence in both the rule of law and one's self-worth in the circumstances of the Incident. Perhaps not to the same extent Ms. Qiao has, but certainly the type or kind of injury she suffered was reasonably foreseeable. [331] In the end result, the plaintiff's compensatory damages are limited to this narrow mental injury and the minor physical injury I described earlier. [332] I turn now to my assessment of damages. Assessment of Damages Non-Pecuniary Losses [333] Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair to all parties, and fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide. Each case depends on its own

unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189. [334] In Stapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be considered when assessing non-pecuniary damages at para. 46: [46] The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes: (a) age of the plaintiff; (b) nature of the injury; (c) severity and duration of pain; (d) disability; (e) emotional suffering; and (f) loss or impairment of life; I would add the following factors, although they may arguably be subsumed in the above list: (g) impairment of family, marital and social relationships; (h) impairment of physical and mental abilities; (i) loss of lifestyle; and (j)the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54). [335] The assessment of non-pecuniary damages is necessarily influenced by the individual plaintiff's personal experience in dealing with his or her injuries and their consequences and the plaintiff's ability to articulate that experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25. [336] Ms. Qiao submits that a total award of $60,000.00 is appropriate for the tortious conduct I have found ($35,000.00 for the assault and battery and $25,000.00 for the false arrest and imprisonment). The defendants submit

that an award in the range of $15,000.00 to $25,000.00 would more appropriately reflect the circumstances of this case. [337] The parties rely on a number of authorities to support their respective positions. While the facts of each case are all unique, I find the authorities provided by the plaintiff more closely align with the facts of this case. [338] In Berketa v. Niagara Police Services Board, 2008 CanLII 2147 (ONSC), the 66-year-old plaintiff suffered physical injury to her hands and emotional distress as a result of being assaulted by a police officer as he attempted to arrest her. The bruises and cuts to her hands healed in about three months, but Ms. Berketa continued to have sporadic nightmares, symptoms of depression that required medication and suffered from anxiety when she saw police officers. Her attitude toward law enforcement changed. The court awarded general damages for assault and battery in the amount of $25,000.00. [339] In Provencher v. St. Paul's Hospital, 2015 BCSC 916, the 58-year-old plaintiff suffered physical injuries that were largely resolved within three years and psychological injury (post-traumatic stress disorder, anxiety and acute emotional distress) arising from an assault and battery by hospital security guards. The plaintiff suffered from pre-existing chronic pain and attended the emergency room one day. While there, he was approached by a

guard and an altercation ensued that saw the guard grab the plaintiff, lift him out of his chair, carry him out the doors and eject him from the hospital. Mr. Provencher fell backwards and struck his head on the pavement. He called police and, while waiting for them, was assaulted again by two security guards. [340] Physically, Mr. Provencher suffered a laceration to the back of his head that caused him bouts of dizziness for several weeks and aggravation of his pre-existing cervical, back and hip pain. Psychologically, he suffered post-traumatic stress disorder, causing symptoms of acute emotional distress, the recurrence of significant anxiety and panic response when recalling the incident, a marked level of hypervigilance, as well as fear and feelings of vulnerability in public situations. His psychological injuries persisted until the time of trial, roughly eight years. In these circumstances, the court concluded a fair and reasonable award for general damages was $35,000.00, which included an element of aggravated damages, for assault and battery. [341] In Walkey v. Canada (AG), 1997 CanLII 631 (BCSC), the plaintiffs, three pre-teenage girls, sued police for unlawful arrest and confinement. The girls were walking home from shopping when they were stopped by police on suspicion of shoplifting a teddy bear. They denied the theft and were thought to be lying, so were

arrested, handcuffed and taken to the police station for interrogation. They continued to deny any involvement and were called thieves and liars. No teddy bear was found and the court concluded they had not been involved. [342] Justice Vickers concluded that their false arrest and imprisonment was an extremely traumatic experience for all three girls. They were treated as common criminals and spoken to with disrespect, leading to their continuing mistrust and fear of police. Characterizing it as "extreme emotional abuse which was entirely unnecessary", the court awarded each plaintiff $10,000.00 in general damages. [343] In Chopra v. T Eaton Co. Ltd.,1999 ABQB 201, a case referred to by both parties, security guards arrested the plaintiff in a retail store for causing a disturbance and assault. They put him in a chokehold, then a headlock and then dragged him to the service elevator, handcuffed him and detained him in the security office for over four hours. He was refused permission to make a telephone call and refused a request for water. He was charged with causing a disturbance and assault and acquitted after a trial. He then commenced an action claiming damages for wrongful arrest, false imprisonment, defamation and other things. [344] The court found that Mr. Chopra was not trespassing at the time of his arrest and that the guard had trespassed upon his person and

committed the torts of battery and false imprisonment. The plaintiff suffered injuries to his neck (a hematoma in his larynx leading to permanent voice alteration), arms, wrists and lip that healed relatively quickly, and depression and difficulty sleeping that resolved within a year. The court awarded him $23,000.00 in general and aggravated damages. [345] In the present case, Ms. Qiao's physical pain from the Incident resolved fairly quickly. Her emotional distress from the Incident is ongoing and has impacted her life in a number of ways. Broadly speaking, it has negatively impacted her view of the world, her view of the rule of law, and ultimately her view of herself. As Dr. Hall put it, the trauma she suffered in the Incident created in her a "crisis of the person". [346] Specifically, it negatively impacted her relationships with others. Ms. Qiao was 52 years old at the time of the Incident. She lived alone. She enjoyed walking and caring for her dogs. She did not have any close relationships with friends or family, but would socialize occasionally with neighbours and people working in the Mall. She attended to the Mall a few times a week, for years. A number of people, some known to Ms. Qiao, saw what happened. She was profoundly humiliated and embarrassed. She felt shame, feeling that her community now viewed her as a criminal. She did not return to the Mall for over

two months as a result of these feelings. Ms. Qiao was moved to tears when she testified about an acquaintance who never spoke to her again after the Incident. [347] While I am satisfied that Ms. Qiao would have suffered significant emotional distress as a result of the combination of issues unrelated to the Incident, such as her various long-standing psychological symptoms and conditions, the side effects from her medications, her progressive neurological decline and her recent physical ailments, I am also satisfied that the emotional distress she suffered from the trauma of the Incident continues to impact her to the present day. [348] The defendants are liable for committing the torts of assault, battery and false arrest and imprisonment. In considering the impact upon Ms. Qiao, all of the factors discussed in Stapely and the jurisprudence, I assess the award under this head of damage at $40,000.00. Pecuniary Losses [349] As I understand her submissions, as read in conjunction with her pleadings, Ms. Qiao seeks millions of dollars for past and future loss of income earning capacity, cost of future care and special expenses. Loss of Income Earning Capacity [350] Both past and future income loss are properly considered on the basis of loss of income earning capacity: Ibbitson v. Cooper, 2012 BCCA 249 at para. 19. [351] In Midgley v. Nguyen, 2013 BCSC 693, Justice Dardi explained the general legal framework as follows: [235] The legal principle that governs the assessment for loss of earning capacity is that, insofar as is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendants' negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para.

185. It is well-settled that an award for future loss of earning capacity represents compensation for a pecuniary loss: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para.

32. Compensation must be made for the loss of earning capacity and not for the loss of earnings: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; X. v. Y, 2011 BCSC 944 at para. 188. [236] The recent jurisprudence of the Court of Appeal has affirmed that the plaintiff must demonstrate both an impairment to his or her earning capacity and that there is a real and substantial possibility that the diminishment in earning capacity will result in a pecuniary loss. If the plaintiff discharges that requirement, he or she may prove the quantification of that loss of earning capacity either on an earnings approach or a "capital asset" approach: Perren v. Lalari, 2010 BCCA 140 at para.

32. Regardless of the approach, the court must endeavour to quantify the financial harm accruing to the plaintiff over the course of his or her working career: Pett v. Pett, 2009 BCCA 232 at para. 19; X. v. Y at para. 183. [237] As enumerated by the court in Falati v. Smith, 2010 BCSC 465 at para. 41, aff'd 2011 BCCA 45, the principles which inform the assessment of loss of earning capacity include the following: (i) The standard of proof in relation to hypothetical or future events is simple probability, not the balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para.

101. Hypothetical events are to be given weight according to their relative likelihood: Athey at para. 27. (ii) The court must make allowances for the possibility that the assumptions upon which an award is based may prove to be wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff'd (1987), 49 B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency must show a "realistic as opposed to a speculative possibility": Graham v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.). (iii) The court must assess damages for loss of earning capacity, rather than calculating those damages with mathematical precision: Mulholland (Guardian ad litem of) v. Riley Estate (1995),12 B.C.L.R. (3d) 248 at para.

43. The assessment is based on the evidence, taking into account all positive and negative contingencies. The overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11. [238] Although a claim for "past loss of income" is often characterized as a separate head of damages, it is properly characterized as a component of loss of earning capacity: Falati at para.

39. It is compensation for the impairment to the plaintiff's past earning capacity that was occasioned by his or her injuries: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at paras. 31-32; X. v. Y at para. 185. [239] While the burden of proof relating to actual past events is a balance of probabilities, a past hypothetical event will be considered as long as it was a real and substantial possibility and not mere speculation: Athey at para. 27. [240] This court in Falati at para. 40 summarized the pertinent legal principles governing the assessment of post-accident, pre-trial loss of earning capacity and concluded that: [40] ... the determination of a plaintiff's prospective post-accident, pre-trial losses can involve considering many of the same contingencies as govern the assessment of a loss of future earning capacity. ... As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613 at para. 29: "What would have happened in the past but for the injury is no more 'knowable' than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events." [352] It is with these principles in mind that I approach my assessment. [353] Ms. Qiao claims that her income earning capacity, both

in the pre-trial period and in the future, has been impaired by the injuries she suffered in the Incident and that the impairment resulted in a pecuniary loss. [354] As I understand her claim for loss of earning capacity in the pre-trial period, Ms. Qiao seeks compensation for two things - lost rental income from the Mall Condo and lost profits from buying and selling properties. Neither claim was well developed in the evidence or in submissions, but I will attempt to summarize what she is seeking. [355] The claim for lost rental income involves the Mall Condo. Ms. Qiao bought the Mall Condo in about 2002. In 2008, she purchased a property in Maple Ridge that required renovations. In about 2009, Ms. Qiao decided to move back to China "to work full-time rescuing stray animals". Whether she expected this to be remunerative work, she did not say. In order to move to China, she felt she needed to complete some of her "Canadian projects", one of which was the Maple Ridge property renovations. She did not elaborate on her other projects. [356] Ms. Qiao's evidence was inconsistent on what her precise plan was when the Maple Ridge property renovations were completed (either move into it, or sell it and move to China), but whatever course she chose, she planned to move out of the Mall Condo and rent it out for $2,200.00 per month. [357] There is very little evidence about this

renovation project and its timelines, other than that the work started in 2009 and that by March 2012, Ms. Qiao believed there was only about "30% of it left to be done". Despite the fact that it had taken three years to complete 70% of the project, she testified that she expected to finish the remaining 30% in one month and be in a position to rent the Mall Condo in May 2012. [358] Ms. Qiao says that because of the Incident, she was unable to finish the renovations to the Maple Ridge property and was forced to put her plan to rent the Mall Condo on hold. Unaware of a strata bylaw limiting the number of rentals that had been in place since she bought it, she was surprised to find a sign posted in the elevator in May 2012 advising owners that the rental limit of 33 units had been reached. She believes that because of the Incident, she missed a narrow window of opportunity to rent the Mall Condo and that the rent she would have charged from May 2012 until the present time, an amount exceeding $200,000.00, should be the defendants' responsibility. [359] There are a number of problems with this claim. [360] Ms. Qiao has not presented any evidence about when the rental limit may have been reached. She admitted that the number of allowable rental units could have been filled at any time. She was uncertain whether she attended a strata meeting where the rental restriction bylaw was

amended in October 2013. She admitted that it was not until three years after the Incident that she asked the building superintendent how to deal with the rental restriction. He told her to write the strata to get on the waiting list. Ms. Qiao was vague on when she got on the waiting list and where she is on the list. She alluded to having taken some legal action with no result, but offered no other details. [361] Ms. Qiao has not presented any admissible evidence about whether the rent she would have charged was reasonable. She referred only to consultation with "neighbours". As well, she has not presented any evidence about any expenses that would be associated with rental income, such as property taxes, strata fees, maintenance and repair costs, and insurance costs which would have to be accounted for if any award were to be considered. [362] Ms. Qiao's claim for loss of profits from buying and selling homes was not developed at all. Ms. Qiao says that she earned significant income from buying, renting out, and selling properties before the Incident. She claims to have been unable to work, in any capacity, since the Incident, thereby incurring a loss in the pre-trial period and into the future. [363] Ms. Qiao has chosen not to produce or disclose any financial records that would provide evidence about her earnings before and after Incident from property holdings, rentals or

any other source. Even now, after multiple days of a protracted trial and hundreds of documents, I have no sense of Ms. Qiao's income at any time. She was unable to give dates or details about any properties she purchased since the Incident or any profits she made from selling at least one of them. She admitted she had not produced any documentation in support of her claim. To add to the confusion, even though she claims to have been incapable of working since the Incident, she told her expert, Dr. Hall, that she was doing very well financially from ongoing property holdings, rentals, and sales. [364] As well, in 2008, Ms. Qiao claimed, and the court accepted, that she had been unable to work since at least the late 1990s. The court also accepted her claim that since the 2004 MVA, Ms. Qiao's: new physical injuries combined with the worsening of her psychological symptoms have rendered her return to the workforce unlikely. As a consequence of her chronic pain, she has lost the ability to concentrate: Qiao v. Buckley, 2008 BCSC 1782 at para. 24. [365] Rather than presenting any evidence to support of her claim for loss of earning capacity, Ms. Qiao asks me to rely upon four documents found in the Joint Book of Documents that "illustrate" her financial position before and after the Incident. [366] The first is a buyer's statement of adjustments that shows Ms. Qiao purchased a

property in Vancouver in 2006 for $352,000.00. The second is another buyer's statement of adjustments that shows Ms. Qiao purchased a property in Burnaby in 2007 for $339,500.00. The third shows her selling a different property in Burnaby in 2010 for $460,000.00. The fourth is a single-page document entitled "Fixed Credit - Disclosure Statement" dated August 1, 2017. It seems to show Ms. Qiao borrowing $445,000.00 against another property in Burnaby. None of this is helpful to any analysis of Ms. Qiao's claim here. [367] First and foremost, Ms. Qiao has failed to demonstrate an impairment to her earning capacity arising from the Incident. As I have found, Ms. Qiao suffered left arm and lower back pain for a short period of time as a result of the Incident. Her emotional distress has been long-lasting, but it has not been established that this caused any impairment to her earning capacity. Rather, the evidence overwhelmingly shows that if Ms. Qiao has suffered any impairment to her earning capacity (which I am not satisfied it has), any such impairment would be as a consequence of the constellation of her significant pre-existing and continuing psychological symptoms and conditions and/or her new health conditions unrelated to the Incident. [368] Second, even if Ms. Qiao had demonstrated that her emotional distress from the Incident had impaired her earning capacity in some

fashion, I would find that she has failed to establish there is a real and substantial possibility that the diminishment resulted in a pecuniary loss. Even if she had discharged both of those requirements, I would find that she has failed to provide evidence sufficient to assess that loss, either on an earnings approach or a capital asset approach. [369] The plaintiff's claims for loss of earning capacity, both past and future, are dismissed. Cost of Future Care [370] Ms. Qiao is entitled to compensation for the cost of future care based on what is reasonably necessary to restore her to her pre-Incident condition insofar as that is possible. When full restoration cannot be achieved, the court must strive to assure full compensation through the provision of adequate future care. The award is to be based on what is reasonably necessary on the medical evidence to preserve and promote the plaintiff's mental and physical health: Milina v. Bartsch, 1985 CanLII 179 (B.C.S.C.), aff'd (1987), 49 B.C.L.R. (2d) 99 (B.C.C.A.); Williams v. Lowe, 2000 BCSC 345; Spehar et al v. Beazley et al, 2002 BCSC 1104 and Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351 at paras. 29-30. [371] The test for determining the appropriate award for cost of future care is an objective one based on medical evidence. For an award of future care, there must be a medical justification for claims

for cost of future care and the claims must be reasonable: Tsalamandris v. McLeod, 2012 BCCA 239 at paras. 62-63, citing Milina at 78. [372] Future care costs are "justified" if they are both medically necessary and likely to be incurred by the plaintiff. The award of damages is thus a matter of prediction as to what will happen in the future. If a plaintiff has not used a particular item or service in the past, it may be inappropriate to include its cost in a future care award. However, if the evidence shows that previously rejected services will not be (able to be) rejected in the future, the plaintiff can recover for such services: Izony v. Weidlich, 2006 BCSC 1315 at para. 74 and O'Connell v. Yung, 2012 BCCA 57 at paras. 55, 60 and 68-70. [373] The extent, if any, to which a future care costs award should be adjusted for contingencies depends on the specific care needs of the plaintiff. In some cases, negative contingencies are offset by positive contingencies and, therefore, a contingency adjustment is not required. In other cases, the award is reduced based on the prospect of improvement in the plaintiff's condition or increased based on the prospect that additional care will be required. Each case falls to be determined on its particular facts: Gilbert v. Bottle, 2011 BCSC 1389 at para. 253. [374] It is difficult to determine the precise breakdown of Ms. Qiao's claim

here, but she appears to claim $4.5 million for "cost of living" for the next 30 years as well as over $6 million for future stem cell therapy costs. The defendants take the position that Ms. Qiao's claim is unspecified, unsupported by any medical evidence, unnecessary and wholly unreasonable. [375] I agree with the position of the defendants. [376] Ms. Qiao's claim for cost of living expenses finds no support in the evidence and seems to simply be her own general estimate, offered in submissions, that it will cost her $150,000.00 annually to live and that the defendants should pay. Ms. Qiao's claim for stem cell therapy treatments is similarly unsupported by any evidence, medical or otherwise. Stem cell therapy is a treatment Ms. Qiao researched on the internet and decided to embark upon of her own accord. The cost, per session, is over $100,000.00, plus travel expenses. There is no medical justification for such a course of treatment and the claim is unreasonable. [377] In short, there is no evidence to suggest that Ms. Qiao suffers from any ongoing physical injury arising from the Incident that requires any care. There is also no evidence to support a finding that Ms. Qiao suffers from an ongoing psychological injury that would not have arisen or continued in any event, and is not otherwise caused by the side effects and/or withdrawal symptoms from her medications, which Ms.

Qiao refuses to address. The only recommendations made by the medical experts in this case relate to psychiatric management to taper her medications and psychotherapy (group therapy, cognitive behavioural therapy and/or anxiety and anger management therapy) in relation to her pre-existing and continuing conditions. These recommendations do not relate to the emotional distress Ms. Qiao suffered from the Incident, but even if they did relate to them in part, Ms. Qiao has made it clear that she has no intention of proceeding with any of the recommended treatments. None of Ms. Qiao's claims are medically justified or reasonable. [378] The plaintiff's claim for cost of future care is dismissed. Special Damages [379] Ms. Qiao advances a claim for special damages which is extraordinary in its size and scope. The total amount of her claim is nearly $600,000.00. Although difficult to pin down precisely, I would characterize her claim as falling into two general categories. [380] The first, and most substantial, category relates to treatment-related expenses. Included in this category are things such as: a. drug expenses - western medicine; b. transportation and automobile depreciation; c. acupuncture; d. muscle balancing therapy; e. massage therapy; f. various medical devices; g. traditional Chinese medicines; h. testing and treatment in China, including stem cell therapy and "Russian

Outer Space Cosmonaut testing", as well as all travel costs; i. advance payment for the UBC Dementia clinic; and j. interest on loans taken to pay for these expenses. [381] The second category relates to "event-related" expenses. As I understand it, Ms. Qiao believes that the emotional distress caused by the Incident is the source of her years-long progressive neurological decline. This has not been established on the evidence, but nevertheless, Ms. Qiao believes that the costs resulting from a number of unfortunate events in her life related to her declining cognition should lie at the feet of the defendants. These events and their related costs include: a. The 2015 MVA: ambulance charges, fines, and rental car expenses; b. Strata Bylaw Infractions: fines, late fees and other costs; c. Traffic tickets for failing to drive with due care and attention; d. Banking issues: overdraft charges; e. Three MVAs in 2019: deductible charges, increased premiums; g. Missed property tax payments: fines and penalties; h. Missed medical appointments: fines; i. Missed flight: fine; and j. Various misplaced items: replacement costs [382] The defendants take the position that none of these expenses should be allowed as they have no relationship to any Incident-related injuries, have no medical support in the evidence and are wholly unreasonable. With two small exceptions, for the reasons I will

now explain, I agree with the position taken by the defendants. [383] An injured person is entitled to recover reasonable out-of-pocket expenses she incurred as a result of the tortious conduct of another causing her injury. This is grounded in the fundamental governing principle that an injured person is to be restored to the position she would have been in had the incident not occurred: X. v. Y, 2011 BCSC 944 at para. 281; Milina at 78. [384] When assessing special damages, the standard is the reasonableness of the expense in the context of the injuries suffered. Medical justification for the expense is a factor to be considered in determining reasonableness. Subjective factors can also be considered including whether the plaintiff believed the treatments were reasonably necessary: Redl v. Sellin, 2013 BCSC 581 at para. 55; Reynolds v. M. Sanghera & Sons Trucking Ltd., 2014 BCSC 212 at para. 175. [385] It has been recognized that a person may be in the best position to assess her or his subjective need for palliative therapy and that it may be possible for a plaintiff to establish that reasonable care equates with a very high standard of care. However, a plaintiff is not given carte blanche to undertake any and all therapies which they believe will make them feel good: Redl at para. 55. [386] It is with these principles in mind that I consider the claims advanced by Ms.

Qiao. First Category: Treatment Related Expenses [387] Ms. Qiao undertook an extraordinarily wide variety of treatments, therapies and testing in the last eight years, nearly all without medical advice, and some less conventional than others. To say that she did so at considerable expense is an understatement. She has left no stone unturned in her quest to find out what is wrong with her. Although the news is not good, she now has a clear path to follow, starting at the UBC Dementia Clinic. It is human nature to want to find an explanation, someone to blame, when bad things happen. However, as we all know, often there is no explanation and there is no one to blame. [388] There is no medical evidence to support that any of treatments, testing, and therapies she has undertaken (other than short-term acupuncture and massage, which I will come to) are connected to or would have any effect on her injuries from the Incident. In fact, the medical evidence points to the opposite. There is no reasonable medical basis for any of them. Ultimately, the evidence does not persuade me on a balance of probabilities that Ms. Qiao's physical or mental well-being is or could reasonably have been expected to be any greater as a result of her undertaking these self-directed treatments, therapies and devices. There is no reasonable medical basis for any of them. I am not satisfied that any of what

she claims is reasonable. [389] The testing, treatments and devices the plaintiff claims as special damages were not recommended or supervised by any of her treating doctors. There is no evidence supporting their value toward treating her Incident-related injuries and have produced no benefit or improvement in Ms. Qiao's various conditions. Instead, they are self-directed and either form part of her long-standing usual routine related to injuries from two motor vehicle accidents in 2004 and 2008 (and later a third in 2015), things she pursued for her overall personal care and well-being or formed part of her self-directed efforts to manage her multitude of health issues unrelated to the Incident. The plaintiff has failed to prove that such treatments and devices are medically beneficial or related to treating any injury arising from the Incident. [390] As well, even if such treatments, testing and devices could be seen as related to any injury arising from the Incident, there would need to be some convincing evidence that the sheer number over such an extended period of time was not only reasonable, but effective in treating those injuries. There is no such evidence. To the contrary, Dr. DeForge opines that there is no proven evidence for stem cell therapy in treating chronic pain or musculoskeletal soft tissue disorder, that massage therapy has a time limited benefit for short

term pain relief after soft tissue injury, that acupuncture has short term analgesic effects on regional neuropathic and musculoskeletal pain, and that there is no "scientific proven role" or "proven medical value" for the various costly devices Ms. Qiao purchased. Dr. Riley opined that there is "no reference to the medical indication for any of these interventions" and that there is "no reference in these records that link her expenses to any recognizable diagnoses and no reference to how her problems were causally related to the incident in 2012". [391] The more recent expenses for unconventional treatments and testing in China, which include stem cell therapy at $100,000.00 per session and Russian Outer Space Cosmonaut testing, have no relationship to the injuries Ms. Qiao suffered in the Incident. Although the evidence about this therapy and the testing she received is very sparse, they appear to relate to gallstones, liver cysts and some blood impurity complaint. In any event, such testing and treatments were not medically recommended and have no proven benefit. They are wholly unreasonable. [392] Muscle balancing therapy is also treatment Ms. Qiao sought out on her own. She started seeing Raymond Fung for treatment in 2014. Since then, she has paid him over $30,000.00. Ms. Qiao believes that Mr. Fung "saved her life". She plans to continue seeing him. [393] "Muscle

balancing therapy" is a therapy that Mr. Fung created. It was not prescribed or recommended by any of her treating doctors. Mr. Fung identifies himself as a "registered holistic nutritionist" and "founder of muscle balancing therapy", but his treatments are not regulated in Canada and he does not belong to a professional organization here. He described that his treatments are for "tight spines". [394] Mr. Fung's evidence was entirely unhelpful in determining the reasonableness of these treatments in the context of the injuries Ms. Qiao suffered in the Incident. He does not keep detailed records or notes of his client's progress. He does not consider a person's medical conditions, records, or health history. He testified that most people see benefits after three to five treatments. From his global February 2019 invoice of about $30,000.00, he has clearly seen Ms. Qiao many, many more times than that, all without any improvement in her health conditions. Mr. Fung made it clear that as long as Ms. Qiao keeps paying him, he will keep treating her. The plaintiff has not established that these treatments have any connection to treatment of her Incident-related injuries. They are unreasonable. [395] Ms. Qiao claims expenses for "western medicines", traditional Chinese medicines, liver, eye and heart protecting medications, "Amway", Ganoderma Lucidum powder, and Ganoderma Lucidum

capsules. These claims are also not related to the treatment of her Incident-related injuries and are unreasonable. [396] With respect to "western medicines", I infer Ms. Qiao is seeking reimbursement for her prescribed medications. There is no evidence, medical or otherwise, to suggest that she was prescribed additional medications following the Incident or that her doses were increased as a result of the injuries she suffered. She would have incurred these costs in any event. [397] With respect to traditional Chinese medicines and the other supplements she has taken (at a cost of several thousand dollars or more), Ms. Qiao acknowledges that these were all self-directed. She simply relied on her own judgment and research to take such products. She did not consult any of her treating physicians or discuss potential side effects or interactions with other medications with them. Ms. Qiao did not call any traditional Chinese medicine practitioners that may have suggested some of these medicines (she alluded to such practitioners, but was unable to name them) to testify about their usefulness in treating the injuries Ms. Qiao sustained in the Incident. As with the other aspects of her claims, the plaintiff has not established that these medicines have any connection to treatment of her Incident-related injuries. They are unreasonable. [398] Ms. Qiao's claims for acupuncture and

massage therapy stand on a different footing, at least in part. [399] Ms. Qiao started attending for acupuncture treatments in 2006 in relation to injuries she suffered in the 2004 MVA. Lan Zhang took over her treatments in 2007. [400] Lan Zhang is a member of the College of Traditional Chinese Medicine Practitioners and Acupuncturists in British Columbia and has been since 2005. She testified, but not as an expert witness, and confirmed that she has provided acupuncture and cupping treatments to Ms. Qiao since 2007. Although her record-keeping is deficient and incomplete, her records show that Ms. Qiao attended for an extraordinary number of treatments from 2006 until 2014. She attended for ten treatments in the second half of 2006 and 25 treatments in 2007. She continued acupuncture treatments in 2008 as a result of the neck and back pain she suffered from the 2008 MVA. Ms. Qiao continued treatments throughout 2009 and 2010, attended 36 treatments in 2011, and 24 treatments in the first three months of 2012 before the Incident. She admitted that regardless of the Incident she would have continued attending for acupuncture treatments as part of her regular "health" and "maintenance". [401] None of Ms. Qiao's treating doctors recommended acupuncture following the Incident. Ms. Qiao admitted that her family doctor, Dr. Leong, did not find anything wrong with her after the

Incident and made no treatment recommendations, so she decided on her own to see her acupuncturist. Ms. Qiao told Ms. Zhang at some point that she "felt like she was dying" and, according to Ms. Qiao, Ms. Zhang confirmed her feeling and told her she was indeed dying. This fed into Ms. Qiao's belief that western medicine is very poor and that her family doctor is "cold-hearted", so she dramatically increased her acupuncture treatments. Ms. Zhang's records show that for the last nine months of 2012, Ms. Qiao attended for another 67 sessions. In 2013, she attended for an incredible total of 81 sessions. In 2014, her attendance dropped to only nine sessions. In 2015, 2016 and 2017, there are no records of any treatments. In 2018 and 2019, she attended a few, but the number is unclear. [402] As with all other aspects of her health care, Ms. Qiao chose to engage in these treatments. When confronted with the fact that such treatments, given their volume, were clearly not helping resolve her complaints, Ms. Qiao replied that acupuncture "saved my life". She felt that her deteriorating condition required her to take more "intense" treatments. She could not explain why the number of appointments dropped so dramatically in 2014. [403] Ms. Zhang's evidence was entirely unhelpful in determining the reasonableness of these treatments in the context of the injuries Ms. Qiao suffered in the

Incident. [404] Ms. Zhang was disciplined by the College in 2011 as a result of a 2010 complaint pertaining to improper billing practices, failure to maintain full clinical records of a patient's health history, failure to obtain informed patient consent, failure to record details of treatments, condition and progress of a patient and engaging in the improper use of the "Doctor" title. She agreed to a consent order with nine terms, including a reprimand, a fine, a 30-day suspension of her clinical practice and undertakings related to rectifying the matters identified in the complaint. [405] Ms. Zhang's treatment of Ms. Qiao occurred before this disciplinary action and continued afterward. Nothing seemed to change in the sense that her record-keeping remained poor, she failed to take a complete health history, did not know or record the medications Ms. Qiao was taking, and did not know about Ms. Qiao's medical conditions. According to Ms. Zhang, there is no end in sight for her treatment of the plaintiff. As long as Ms. Qiao keeps coming, she will keep treating her. The records we have show that since April 2012, Ms. Qiao has paid Ms. Zhang about $14,000.00. [406] While I am satisfied that the vast majority of her acupuncture treatments have been unrelated to treatment of her Incident-related injuries, I find there is some evidentiary support for the reasonableness of some

additional acupuncture treatments, over and above her usual routine, immediately after the Incident. Ms. Qiao suffered left arm and lower back pain for a short period of time as a result of the Incident. She also suffered emotional distress. For physical symptoms, Dr. DeForge opined that acupuncture has short-term analgesic effects in regional neuropathic pain and musculoskeletal pain. For her emotional symptoms, Dr. Riley offered that if it gives Ms. Qiao comfort or decreases her anxiety, he would be in favour of it. [407] Ms. Zhang testified that, in her experience, most people "see results" after about ten sessions. In these circumstances, I am satisfied the plaintiff has established that ten additional acupuncture treatments immediately after the Incident are related to the Incident injuries she suffered and are reasonable. In 2012, Ms. Zhang was charging Ms. Qiao $65.00 per session. Ms. Qiao is entitled to $650.00. [408] With respect to her massage therapy claims, Ms. Qiao has tendered various invoices from several practitioners, including Xiaofei Tan ($2,880.00 for 36 treatments between May 20, 2012 and June 12, 2014), Glernd Huang ($1,040.00 for treatments in 2015 and 2016), Daniel Feng ($200.00 for treatments in 2018), Zen Wellness ($555.00 for treatments in 2018) and Bonalife Acupuncture and Herbal Medicine Clinic ($3,000.00 for 30 treatments in 2019). [409] None of

Ms. Qiao's treating physicians recommended massage therapy to treat her Incident-related injuries. Ms. Qiao chose to go, and continues to go, because it helps to "relax her body". While it is clear the vast majority of her massage therapy treatments are unrelated to treatment of her Incident-related injuries (at least some are related to the 2015 MVA where massage was recommended by her doctor), I find there is some evidentiary support for the reasonableness of some of the treatments in the immediate aftermath of the Incident. [410] For her physical injuries, Dr. Riley opined that massage therapy has a time limited, short-term benefit for pain relief, but no proven long-term benefit after a few weeks to months post-injury. For her emotional injuries, I accept that Ms. Qiao found these treatments helped relax her body and provided some benefit to her symptoms of emotional distress. [411] In these circumstances, I am satisfied the plaintiff has established that ten massage therapy treatments immediately after the Incident are related to her Incident injuries and are reasonable. For the treatments she received from Shaolin Qigong Healing Centre after the Incident, she was charged $80.00 per session. She is entitled to $800.00. [412] In the end, I am allowing, as special damages, the cost of Ms. Qiao's first ten acupuncture sessions ($650.00) and the cost of her first ten massage

therapy sessions ($800.00) following the Incident, as such would have been reasonable during the acute phase of Ms. Qiao's recovery. I am disallowing the balance of the treatment-related claims as not having any relationship to the injuries she sustained in the Incident and as not having been demonstrated as reasonable. Second Category: "Event-Related" Expenses [413] Ms. Qiao has not established that any of these claims have any relationship to the injuries she sustained in the Incident, nor has she demonstrated that they are reasonable. Again, while I understand her desire to find someone to blame for the frightening and confusing events caused by her progressive neurological decline over the last several years, the defendants' tortious conduct did not cause this decline. The expert evidence establishes that the much more likely cause(s) of the neurological decline that has created these distressing events has been either the side effects from her medications, the symptoms from her long-standing psychological conditions and/or as a result of the biological changes seen recently in her MRI suggestive of the onset of dementia. [414] In the result, Ms. Qiao's claims for costs secondary to these various events are not related to the Incident and are not reasonable. They are not allowed. Aggravated and Punitive Damages [415] The plaintiff seeks an award of punitive damages against

the defendants. I am unclear if she also seeks an award for aggravated damages because at times she used the terms together and/or interchangeably. For completeness, I will address both claims. [416] It is important to understand that there is a distinction between punitive and aggravated damages. Punitive damages are designed to punish and are, therefore, an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer. Aggravated damages remain compensatory and, as the name implies, are awarded to compensate for aggravated damage. They take account of intangible injuries and will generally augment damages assessed under the general rules relating to the assessment of damages: Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1099 (S.C.C.) at para. 16. [417] Courts are to consider aggravated damages before considering punitive damages: Huff v. Price, [1990] B.C.J. No. 2692 (B.C.C.A.). [418] With respect to aggravated damages, I am satisfied that the issue of intangible injuries was completely addressed in the large award of non-pecuniary damages. I decline to make such an additional award. [419] Ms. Qiao claims punitive damages against the defendants in the amount of $15,000.00. She asserts that Mr. Gill engaged in an unnecessary and violent arrest disproportionate to what was necessary, taken in bad

faith, deceitful, pre-meditated, and high-handed. She submits that general damages do not adequately denounce such aggressive conduct from security professionals that are hired to protect both property and visitors. [420] Punitive damages apply when a defendant's conduct was especially malicious. In Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, the Court explained: [196] Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high‑handed that it offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence. [421] In Rycroft v. Rego, 2017 BCSC 373, Justice Williams summarized the principles that should inform the court's consideration of such an award: [160] In Bowen Contracting Ltd. v. B.C. Log Spill

Recovery Co-operative Association, 2009 BCCA 457 at para. 23, the BC Court of Appeal summarized the following ten principles which the Supreme Court of Canada found, in Whiten v. Pilot Insurance Co., 2002 SCC 18, to apply when considering punitive damages: 1. Punitive damages are not limited to particular "categories" of wrongs, although by their nature they will "largely be restricted to intentional torts"; 2. The general objectives of punitive damages are punishment, deterrence of the wrongdoer and others, and denunciation; 3. Since the primary vehicle of punishment is criminal law, punitive damages should be resorted to only in "exceptional cases and with restraint"; 4. The use of pejoratives such as "high-handed" or "oppressive" does not provide useful guidance (or discipline) to judges or juries and a more principled approach is desirable. (Notwithstanding this, the Court said at para. 94 that punitive damages are to be imposed only if there has been "high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour."); 5. In setting punitive damages, the court should ask itself "in particular" how an award would further one or other of the objectives of the law and what is the lowest award that would serve the purpose; 6. It is "rational" to use punitive damages to relieve a wrongdoer of its

profits where compensatory damages would amount to "nothing more than a licence fee to earn greater profits through outrageous disregard of the legal or equitable rights of others." 7. A "formulaic" approach should be avoided. The court should focus not on the plaintiff's loss but on the defendant's misconduct; 8. The overall award should be rationally related to the objectives for which punitive damages are awarded; 9. Juries should receive more help from judges concerning the function of punitive damages and factors governing such awards and the assessment of a proper amount; 10. Punitive damages are not "at large" and an appellate court may intervene if an award exceeds the outer boundaries of a rational and measured response to the facts of the case. [161] In addition, as outlined in Home Equity Development Inc. v. Crow, 2004 BCSC 124 at para. 179, the proper award of punitive damages must be proportionate to the following factors: 1. The blameworthiness of the defendant's conduct; including (i) whether the misconduct was planned and deliberate (ii) the intent and motive of the defendant 2. The degree of vulnerability of the plaintiff.

3. The harm or potential harm specifically directed at the plaintiff.

4. The need for deterrence.

5. Taking into account the other penalties, both civil and criminal, which have been or which are likely to be inflicted on the defendant for the same misconduct.

6. The advantage wrongfully gained by the defendant from the misconduct. [422] Applying these principles, I decline to make an award for punitive damages. [423] Although Mr. Gill's conduct that day was intentional, it was not planned and deliberate. It does not rise to the level of high-handedness such that punishment is required. Mr. Gill's intention was to remove a person who he thought was trespassing. He grabbed Ms. Qiao's jacket to control her movements in order to bring her back inside the Mall to get an interpreter and then escort her off the property. His motive was not to harm her or to break the law. When Ms. Qiao resisted and defended herself against what I have now determined to be an unlawful detention and assault by Mr. Gill, he was confronted with a new and unusual situation. He reacted in the heat of the moment and not with any malice or bias toward Ms. Qiao. With the benefit of hindsight and considerable reflection, Mr. Gill recognizes that there were other options open to him, but in that moment, he made what he thought were reasonable decisions. There is no need for deterrence or denunciation in this case. Failure to Mitigate [424] The defendants submit that Ms. Qiao has failed to mitigate her damages by deliberately not seeking out treatments or therapies that could actually help her with the injury she suffered in the Incident. Rather, she continued unproven and unconventional treatments that were not medically recommended or supervised and provided no ongoing benefit or improvement. [425] A plaintiff has an obligation to take all reasonable measures to reduce her damages, including undergoing treatment to alleviate or cure injuries: Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para.

234. However, once a plaintiff has established a defendant is liable for her injuries, in order for the defendant to succeed in a mitigation defence, the defendant must prove that the plaintiff acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question that involves consideration of all of the circumstances, including the information possessed by the plaintiff at the relevant time: Gilbert at para. 202 and Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 56. [426] In Chiu v. Chiu, 2002 BCCA 618, the Court of Appeal set out the test for failure to mitigate by not pursuing recommended treatment at para. 57: [57] The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R.

146. Also see Wahl v. Sidhu, 2012 BCCA 111 at para. 32 and Morgan v. Galbraith, 2013 BCCA 305 at para. 78. [427] Ms. Qiao suffered a mental injury in the Incident. On the evidence adduced, I find there are two key recommendations made to her by doctors that would have provided some improvement to her symptoms of emotional distress arising from the Incident. In February 2016, Dr. Riley recommended that Ms. Qiao pursue psychotherapy options, aimed at anxiety and anger management. In October 2018, Dr. Hall recommended a slow tapering of her medications and thorough psychiatric assessment to follow. She also recommended, like Dr. Riley, psychotherapy options to help Ms. Qiao learn the skills necessary to better function interpersonally. Ms. Qiao declined to follow these recommendations, preferring to pursue self-directed treatments and therapies. [428] Considering the evidence as a whole, I am satisfied the defendants have established that Ms. Qiao acted unreasonably in not following these recommendations and that there would have been some improvement in her symptoms, albeit limited improvement, in light of the time that had passed between the Incident and these recommendations. In this case, a reduction of 10% in the award of non-pecuniary damages for the plaintiff's failure to mitigate is appropriate. Conclusion [429] In summary, I have determined that the plaintiff has

succeeded in establishing her claims for assault, battery, false arrest and imprisonment. The defendants are liable to her for the injuries I have found she suffered as a result. [430] I have assessed the plaintiff's award of damages as follows: a) Non-pecuniary damages: $36,000.00; b) Special damages: $1,450.00. Costs [431] The plaintiff will have her costs at Scale B. If there are factors I am not aware of which the parties believe ought to affect entitlement to costs, they may provide written submissions through the Court Registry within 60 days of today's date. "S.A. Donegan J." DONEGAN J.