As a direct result of his attack at the hands of Todd Bertuzzi almost two years ago, Steve Moore is at an increased risk of developing premature epilepsy, dementia or Alzheimer's disease.

That is one of a number of allegations made by Moore and his parents in their statement of claim, which was filed in Ontario Superior Court Tuesday and names as defendants Bertuzzi and Orca Bay Hockey Ltd., the company that owns the Vancouver Canucks. Moore and his parents, Jack and Anna, are listed as the plaintiffs.

The statement of claim also claims the Moores have had to sell their family business to take care of their son, that the part of Moore's brain with the ability to remember the 20 minutes prior to and after the assault appears to have been "permanently destroyed," and that Moore's parents have suffered long-term psychological damage from watching the event on television March 8, 2004.

"Jack and Anna watched in stunned disbelief and horror," the statement says. "Anna was screaming and crying hysterically. Jack was utterly frozen in shock and then became hysterical himself as collectively they realized that Steve might be dead or paralyzed."

The claim goes on to say that, "Bertuzzi knew or ought to have known that his conduct was reasonably capable of shocking and terrifying these plaintiffs ... which they did. Bertuzzi is therefore liable to Jack and Anna Moore in damages for negligent infliction of nervous shock and mental distress."

The claim also describes Bertuzzi as "the Canucks' team leader and self-appointed avenger of (Markus) Naslund," whom Moore hit in a game Feb. 16, 2004, that sparked the incident.

The lawsuit claims damages of $15 million, aggravated damages of $1 million and punitive damages of $2 million. In addition, Moore's parents claim damages of $1.5 million.

The timing of the lawsuit has been questioned and it was speculated that Moore and his lawyer, Tim Danson, filed the statement to directly coincide with Bertuzzi playing in the Olympics. Danson has argued that the assault actually started after the game Feb. 16 when Bertuzzi and other Canucks threatened revenge against Moore and that the claim had to be filed within a two-year statute of limitations period.

That reasoning was met with mixed reviews from legal experts.

"You think about a breach of contract case," said Dr. Stephen Pitel, an assistant law professor at the University of Western Ontario. "The time starts running from the time the contract is breached. But that contract got negotiated, it got formed, it got signed. That's not the time the limitation period starts, even though all of that is clearly going to be relevant evidence at trial. (Moore) is not alleging that some tortious act happened on Feb. 16, he's alleging the tortious act happened March 8."

"(Danson) didn't have to plead it that way, with all due respect," said civil litigation lawyer Leslie Dizgun, a former adjunct professor of civil procedures at the Osgoode Hall Law School. "I think he could have pled an assault that occurred in March or a duty of care that existed and the negligence didn't occur until March. I think it's arguable."

Another civil litigator said it is possible to argue that Feb. 16 is an appropriate date for the statute of limitations to expire, but even that could be a stretch.

"Assault and battery are often used together, but they are distinct," said Tony Wong, a civil litigation lawyer at Blake, Cassels and Graydon. "Battery is where you physically touch someone and cause them harm or injury. Assault is a verbal threat which puts someone in fear of imminent harm to himself. Those statements form the basis of claim for assault. I guess the question is What's the harm from the assault? The harm that Moore is complaining about is really the hit from behind. What did those threats do to harm him?"

Another area that will undoubtedly be vigorously opposed by Bertuzzi is the jurisdiction issue. After his claim was tossed out in Denver, Moore filed the lawsuit in Ontario despite the incident happening in Vancouver. The statement says Moore moved back to Thornhill in June, 2004, and "continues to suffer serious physical and mental disability in Ontario where he resides and where he is receiving medical treatment." It lists a Kitchener address for Bertuzzi and says he was "born and raised in Ontario and his principal off-season residence remains in the Province of Ontario."

Experts said Danson will have a difficult time proving that Ontario has jurisdiction, but probably can do so successfully because Moore continues to suffer from the injuries in Ontario. But they also said that civil law puts a heavy emphasis on where it would be most convenient to hold the proceedings and that would almost certainly be B.C.

"(The court) can decline that jurisdiction in favour of a more convenient forum," Pitel said. "Almost certainly, the defendants would argue that British Columbia is a more convenient forum. The court will say, 'Where did the incident happen? Where are the various parties based? Where is the evidence?'"

Moore has asked for the suit to be tried by jury in Toronto in the NHL off-season. Neither Danson nor Bertuzzi's agent, Pat Morris, returned calls.

© 2006 Torstar Corporation

Illustration:

• Ryan Remiorz cp Todd Bertuzzi, seen congratulating Jarome Iginla after the Flames sniper scored against Italy Wednesday, has been sued again by former Colorado Avalanche player Steve Moore. Moore claims he's at increased risk of several illnesses since he was attacked by Bertuzzi.

Edition: MET

Length: 871 words