A former Surrey hotel manager has been awarded $65,000 in damages after a judge ruled police violated his Charter rights when they wrongfully arrested and detained him, in addition to assaulting him.
The decision was handed down by Justice Murray Blok in New Westminster Supreme Court on March 1.
The plaintiff, Michael Fong who was the manager of the Oasis Hotel (formerly known as the Dell) at the time of the incident, had sought roughly $1.3 million.
Blok found as a result of a “hard takedown” by police at the hotel in 2006, Fong suffered injuries to his shoulders, neck, back and arms, and other superficial injuries.
However, Blok determined Fong “over-reported and exaggerated matters helpful to his claim” and “minimized” things that did not support his claim or “otherwise put him in a bad light.”
“I am satisfied, as well, that the violent nature of the incident, together with the physical injuries suffered by Mr. Fong, caused him some degree of anxiety and stress,” wrote Blok in his decision. “The most difficult aspect is assessing Mr. Fong’s claim that the incident, and the injuries he suffered in the incident, have led to chronic pain, depression and complete or near-complete disability. This assessment is difficult because Mr. Fong’s claims rest, ultimately, on his own reports, including – most importantly – his reports to his physicians, with whom he has been less than forthright, to put it mildly.”
Further, Blok noted Fong’s recollection of altercation was “highly elaborate and detailed, improbably so, to the point that it lost most of its believability.”
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“I conclude that Mr. Fong’s compensatory damages are limited to those physical injuries and reasonably-associated symptoms that he suffered by reason of the police assault,” the judge determined.
According to court documents, the incident happened at the hotel on March 11, 2006 around 1 a.m. There was a “physical interaction” between Fong and police officers who attended the bar and Fong was injured. It happened after officers asked to see the establishment’s liquor license.
While Fong says he was co-operative, police dispute that.
In court documents, Fong described officers using racial slurs against him, being bumped from behind and someone hitting him “with a solid item of some sort, a tap on top of my head.” He was bleeding badly, with blood on his hair, face and shirt, court documents state. Fong also said he was punched in the right temple area, kicked him in the rib cage and said someone held his neck tightly to the ground, kneeled on his back, when officers subsequently handcuffed him and put him in the back of a police car.
Fong was taken to hospital and called 911 to report he had been “beaten up by officers.” Fong eventually grew tired of waiting for treatment and took a taxi back to the hospital.
Constable Ward told the court when he told Fong he was under arrest for not co-operating, Fong entered the building and “pulled the doors shut, holding them closed.” Ward said he forced the doors open and told Fong he was under arrest for obstruction, which is when the “struggle” took place.
Ward said Fong attempted to punch him in the face but that he blocked the blow and then “dived into” Fong, tackling him into a second set of doors, bringing him to the ground. Ward said Fong continued to resist and began to kick and punch at Ward. Ward then struck him on the side of the head with a closed fist and Fong stopped fighting, at which point Ward flipped handcuffed him with help from another officer.
Ward told the court he believed Fong’s injuries happened on the “initial takedown” and that Fong “struck his head on the aluminum sill at the first set of doors,” noting Fong appeared to be intoxicated.
Another officer who was there that night, Constable Dosange, said the Dell Hotel was “the most dangerous bar in Whalley” and there were calls for service there on a daily basis. He said the rooms were “frequent locations of illicit drug activity, stabbings and prostitution.”
Dosange said he was concerned on the night in question of “what appeared to be gross over-serving of patrons” and he spotted a male that looked underage who was unable to produce identification. This is when he requested the liquor license that he says was not produced.
A “use of force expert” was consulted in the case. John McKay determined the steps taken by officers was “nothing done outside of RCMP police, practice or training.”
Justice Blok determined the officers didn’t use racial slurs, as asserted by Fong, noting it would have been “outrageous,” if true. Blok was also satisfied that Fong refused to produce the liquor licence to officers, but that none of the officers actually checked the bar area even though “some of them knew it was usually posted there.”
While the defendant argued Fong was obstructing police, Blok disagreed, saying Fong did not obstruct police’s efforts to complete a Licensed Premises Check, nor did he have a duty to identify himself.
Ultimately, Blok ruled Fong’s arrest was unlawful, and police are liable for the “assault and battery of the plaintiff and for his brief unlawful imprisonment.”
After the incident, Fong reported feeling dizzy and had a headache. He reported neck, shoulder as well as upper and lower arm pain to his family doctor the following month, also reporting headaches, and pain in his lower back and left ankle and knee caps, in addition to his neck and shoulders. Fong told his doctor he was using crack cocaine to deal the pain, and said he used it up until mid-September of 2006 and has not used it since, nor before.
Fong regained employment after being suspended from the Oasis Hotel, but only for a period of several months, noting his muscle pain and symptoms in his lower back and shoulder “affected him when standing for long periods or work requiring him to reach up.”
He attended physiotherapy and acupuncture to treat his physical pain, and attended retraining programs for other industries.
In his decision, Blok addressed the physical and psychological ailments Fong and his medical professionals said he suffered as a result of the assault. Blok found that Fong suffered from a major depressive disorder and chronic pain syndrome, but not PTSD, as had been suggested in testimony.
Blok ruled that Fong had a “somewhat reduced (future) income-earning capacity associated with occasional problems with his left shoulder. The most likely scenario would be Mr. Fong’s avoidance of jobs that might aggravate his shoulder.”
Blok found “no reliable evidence” to conclude his psychological problems stem from the incident, but that instead, were more likely a result of setbacks in his life, noting several, including Fong losing $90,000 in cash and liquor after they were allegedly “appropriated by the hotel owner” while working at the Byrd pub in 2002, Fong’s crack cocaine binge that lasted “well over a year” despite having “legitimate, prescribed medications for that purpose.”
During the illegal drug use, Blok noted Fong experienced related physical ailments and had “persistent paranoid thoughts that pervaded his life to such an extent that he slept in a different hotel room each night, fearful that strangers were entering his room and injecting him with needles, or even raping him.”
Blok found that Fong had suffered some degree of stress and anxiety as a result of the assault “although it is very hard to assess this accurately in light of his crack cocaine use.”
Further, Blok noted that in or around 2010 Fong lost $800,000 in family money he had been responsible for investing. He added that Fong attempted suicide shortly after losing a lengthy solicitor’s negligence trial over the loss of that money, and lost an appeal of that case in February of 2016.
The Oasis Hotel has since been torn down.
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