COURT OF APPEAL FOR ONTARIO

CITATION: Leighton v. Best, 2015 ONCA 180

DATE: 20150318

DOCKET: C59426

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Randy Leighton and Denise Leighton

Plaintiffs (Appellants)

and

Matthew Best

Defendant (Respondent)

Lisa D. Belcourt, for the appellants

Robert Kerr, for the respondent

Heard: March 4, 2015

On appeal from the order of Justice James A.S. Wilcox of the Superior Court of Justice, dated September 13, 2013.

ENDORSEMENT

[1] The respondent Matthew Best punched the appellant Randy Leighton in the jaw during a recreational hockey game. The force of the blow sent the appellant to the ice and broke his jaw in three places. Following a trial, Riopelle J. found the respondent liable in damages for battery on the basis that the punch exceeded the scope of the appellant’s consent to the application of force. The respondent went bankrupt before satisfying the damage award he owed to the appellants. The appellants brought a motion for a declaration that under s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3,the respondent was not released from his obligation to pay the damage award granted by the trial judge. The appellants challenge the decision of the motion judge that the damage award did not survive the respondent’s bankruptcy.

Statutory provision

[2] Section 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act provides that “[a]n order of discharge does not release the bankrupt from … any award of damages by a court in civil proceedings in respect of … bodily harm intentionally inflicted”.

Motion judge’s decision

[3] The motion judge’s decision turned on the interpretation of and inferences drawn from Riopelle J.’s (the trial judge) judgment awarding damages to the appellants. Neither party takes issue with the motion judge’s summary of that decision:

The Plaintiff and Defendant participated in a gentlemen’s hockey tournament in February, 2004.

During the game, the Plaintiff’s stick came up and struck the Defendant in the face, knocking out a tooth and causing bleeding.

The referee saw the whole incident.

The play continued, with the referee signaling his intention to call a minor penalty on the Plaintiff for high sticking, which applied even if the high stick was inadvertent, as soon as someone from the Plaintiff’s team touched the puck.

However, the referee blew the whistle to stop the play when he saw the Defendant go to his knees and blood on the Defendant’s face.

The Plaintiff continued to play, not aware he had injured the Defendant until the play was stopped.

Then, the Plaintiff circled back to where the Defendant was standing, to apologize.

The Plaintiff and Defendant began yelling at each other, and grabbed each other’s sweaters. There was much jostling.

Gentlemen’s hockey is recreational hockey for players of various skill levels who enjoy playing but expect to go back to their daily lives after the game. Fighting is unusual in it.

The rules in this tournament called for an automatic ejection from the tournament for fighting.

This incident occurred near the end of the game with the Plaintiff’s team ahead and the Defendant’s team facing imminent elimination. A fighting penalty was of no consequence to the Defendant.

The Plaintiff was aged 34, six feet two inches, 225 pounds and had played in thousands of games without a fight. He was wearing a full cage helmet for facial protection. He did not remove it, negating implied consent to facial injury, something which should have been obvious to the Defendant. The implied consent was to jostle and wrestle, and maybe land a few harmless punches over protective gear.

The Defendant was aged 23 and an elite hockey player who had played at least four years of junior hockey. He wore a helmet but no face guard nor mouth guard because he did not think that they were needed in gentlemen’s hockey.

The game had gone smoothly without any animosity between teams or players.

Others present at the game testified that they did not expect a punch to be thrown, or a fight.

The Plaintiff was not expecting a punch. A soldier trained in hand to hand combat, he took no defensive steps to fend it off.

The Defendant removed the Plaintiff’s helmet and punched the Plaintiff with such force that it broke his jaw in three places and caused him to fall to his knees.

This blow was in retaliation for the high stick.

The Defendant’s conduct exceeded the scope of any implied consent by the Plaintiff to some form of assault.

The Defendant did not satisfy the onus of proving that the high stick was intentional.

[4] The motion turned on whether the damage award was for “bodily harm intentionally inflicted”. The appellants relied on the trial judge’s finding that the respondent had committed a battery, which the trial judge defined as the intentional causing of harmful contact with another. For his part, the respondent pointed to the trial judge’s finding that “there must have been an intention [on the respondent’s part] to injure or at least recklessness as to the consequences of such a hard blow” to argue that it was not clear that the trial judge found there was an intention to injure. He argued the trial judge found his conduct may have merely been reckless, and therefore the damage award did not survive bankruptcy under s. 178(1)(a.1)(i).

[5] The motion judge began by considering the purpose of bankruptcy, which is to give a debtor a fresh start free from former financial obligations, and observed that the onus is on the creditor to establish that the debt survived bankruptcy. He noted that recklessness or negligence were not sufficient to establish that bodily harm was intentionally inflicted. There must be actual intent to cause bodily injury, not simply intent to do the act that causes the bodily injury.

[6] The motion judge relied heavily on Dickerson v. 1610396 Ontario Inc., 2013 ONSC 403, 98 C.B.R. (5th) 40, and adopted the view expressed there that:

“Parliament could not have intended in legislating the exceptions in s. 178 to include the unfortunate and tragic consequences to mean that (the Defendant) would have this life long penance for what was one punch.” I find the Dickerson case and the present case to be similar in important aspects. Both involve situations that appear to have arisen out of the heat of the moment. Both involve single punches with resulting injuries and civil damage awards, although the damages and presumably, the injuries in Dickerson were much greater. In both, the punches were intentional. As in Dickerson, I find that it has not been proven that there was intent to inflict bodily harm. (Paras. 19-21)

[7] The Dickerson decision was reversed by the Court of Appeal shortly after the motion judge delivered his decision in the present case.

[8] InDickerson v. 1610396 Ontario Inc. (Carey’s Pub & Grill),2013 ONCA 653, 369 D.L.R. (4th) 738,this court summarized the facts of the case and concluded, at para. 44, that the motion judge had erred:

The evidence in this case established that the appellant was not involved in the fight that broke out between the two groups. He had left the vicinity of the fight and called for police assistance on his cell phone. The respondent, who was physically much bigger than the appellant, ran up to him at this point, and punched him with a closed fist once in the head with sufficient force to cause the appellant to lose consciousness and fall to the ground. In my view, it does not matter whether the appellant’s permanent brain damage resulted from the punch or from the impact of his head against the curb when he fell unconscious to the ground. When one person hits another with a closed fist with sufficient force to cause the unsuspecting recipient of the punch to lose consciousness and fall to the ground, it cannot be seriously doubted that the person intended to inflict bodily harm.

Analysis

[9] Physical contact is inherent in some sports, such as hockey. Players can be taken to consent to a certain level of contact and to accept the risks of that contact, unless the conduct falls outside the scope of such presumed consent. As observed by Cunningham J. in Dunn v. University of Ottawa,[1995] O.J. No. 2856 (C.J.), at para. 14, “Even if contact is made outside the rules of the game, there can be no liability unless the player can establish that the Defendant knew he was breaking the rules, and had formed a deliberate resolve to injure or that he was reckless as to the consequences of his actions.”

[10] The trial judge clearly concluded the punch by the respondent exceeded the scope of the appellant’s consent. The reference to recklessness in the trial judge’s reasons was intended to address the issue of the scope of implied consent to physical contact. The trial judge also concluded that the punch was intentionally thrown, not accidentally or negligently.

[11] Admittedly, the fact that the punch was intentional does not bring the damage award within s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act; the respondent must also have intended for the punch to cause bodily harm. Nonetheless, in this case, as in Dickerson, the inference that the respondent intended to cause significant bodily harm is inescapable. The respondent pulled off the appellant’s helmet during a recreational hockey game. The force of the punch sent a six feet and two inch tall, 225 pound man to his knees and broke his jaw in three places. These circumstances are substantially similar to the facts in Dickerson.The punch was delivered in retaliation for a high stick by the appellant, which the trial judge found was not deliberate.

[12] Here, as in Dickerson, the motion judge erred in concluding that there was no intent to inflict bodily harm and that the respondent should not have to suffer “this life long penance for what was one punch” and that damages for a single punch in the heat of the moment should not survive bankruptcy. The fact that there was only a single punch does not preclude the finding that the respondent intended to, and did, cause bodily harm to the appellant. An intention to cause significant bodily harm is sufficient to bring the damage award related to that conduct within the exception in s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act.

Disposition

[13] The respondent abandoned his cross-appeal, which is dismissed as abandoned.

[14] For these reasons, the appeal is allowed, and a declaration will issue that the damages, interest and costs awarded to the appellants by Riopelle J. survive the respondent’s bankruptcy pursuant to s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act. Costs are awarded to the successful appellants in the agreed amount of $7500, all inclusive.

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”