SUPERIOR COURT OF JUSTICE – ONTARIO
Court File No.: 47580
Date: 2013/01/21
RE: Philip Daniel Dickerson, Marilyn Susan Dickerson, Phillip Hartley Dickerson and Melissa Marilyn Clampitt (Plaintiffs)
- and -
1610396 Ontario Inc. c.o.b. as Carey’s Pub & Grill, David William Radcliffe, Mike Habash, Dwayne Hurley and Brandon Stewart (Defendants)
Before: Justice J. N. Morissette
Counsel:
Michael A. Polvere for the Moving Party/Plaintiff, Phillip Daniel Dickerson
David William Radcliffe, self represented
Heard: December 11th, 2012
ENDORSEMENT
[1] This is a motion brought by the plaintiff for the following relief:
(a) a declaration that subsection 69.3 of the Bankruptcy and Insolvency Act (“BIA”) does not operate with respect to enforcement of the Judgment of Justice T. D. Little dated March 24, 2009 in court file number 47580 against the Bankrupt; and
(b) a declaration that the Judgment of Justice T. D. Little and the damages awarded to Dickerson against David William Radcliffe (hereafter referred to as “Radcliffe”) is “an award of damages in civil proceedings for bodily harm intentionally inflicted” in accordance with section 178(1)(a.1) of the BIA;
The Facts:
[2] In the late evening hours of April 18th, 2005, stretching into the early morning hours of April 19th, 2005, the plaintiff, Mr. Dickerson and the defendant, Mr. Radcliffe were both drinking, not together at a college pub in London, Ontario. After leaving the pub, Mr. Radcliffe, as part of one group of young males, and Mr. Dickerson, as part of the other group of young males, became entangled in a melee which ended up with Radcliffe punching the plaintiff once in the head resulting in Mr. Dickerson falling to the ground and hitting his head on the curb sustaining serious head injuries.
[3] Mr. Radcliffe plead guilty to the charge of aggravated assault. As viewed by the sentencing judge, the facts here are “unusual because of the damage that was caused because of one single blow.” The sentencing judge further found that “it is not clear on the evidence before me, as to whether the damage to Mr. Dickerson was caused as a result of the blow, or as a result of the contact between his head and the curb.” Nonetheless, the punch and ensuing injuries formed the elements of aggravated assault.
[4] Further, the sentencing judge accepted the “honest expression of remorse” by Mr. Radcliffe who was a first-time offender. In his reasons for sentencing, the judge found that “it is clear that Mr. Dickerson (plaintiff here) had been consuming alcohol and that likely there was enough lack of maturity and ill considerate behaviour to go around among all of the parties to this matter… I find …there was somewhat of a mob mentality at the time that this occurred.”
[5] Finally, the sentencing judge found that “what is unusual in this type of case is that Mr. Radcliffe comes before the court as a first offender with an outstanding background and which continues to be improved upon, as a result of his employment. The character evidence that has been provided to me, again, is without qualification, very, very impressive.”
[6] Ultimately, the sentencing judge sentenced him to a conditional sentence of 18 months to be served in the community.
[7] On July 15th, 2005, Mr. Dickerson commenced an action against the pub and Mr. Radcliffe in the Superior Court of Justice in London for damages for personal injuries arising from the assault. A jury trial took place in March 2009. At the civil trial, Mr. Radcliffe was not represented by counsel. The jury dismissed liability against the pub and the following questions posed to the jury were answered as follows:
- Were Daniel Dickerson’s injuries caused or contributed to by any deliberate or negligent act or acts of David Radcliffe?
A. “Yes”
- State fully the deliberate or negligent act or acts that caused or contributed to the injuries of Daniel Dickerson.
A. “David Radcliff deliberately punched Daniel Dickerson in the head directly causing the injury.”
[8] Mr. Dickerson was granted a Judgment in the amount of $1,053,523.53 plus post-judgment interest. Costs were subsequently awarded in the amount of $168,000.00.
[9] The plaintiff launched an appeal to the Court of Appeal of Ontario with respect to the dismissal of liability against the pub and the Court dismissed the appeal. As a result, Mr. Radcliffe is the sole party responsible for the judgment granted in favour of Mr. Dickerson.
[10] As a result of the judgment, Mr. Radcliffe filed a proposal under section 62 (1) of the Bankruptcy and Insolvency Act (BIA) on or about February 16th, 2011.
Issues:
[11] At issue is whether this case falls within the parameters of subsection 178 (a.1) of the BIA, which allows the following matters to survive discharge. The section states:
178.(1) An order of discharge does not release the bankrupt from
(a) any fine, penalty, restitution order or other order similar in nature to a fine, penalty or restitution order, imposed by a court in respect of an offence, or any debt arising out of a recognizance of bail;
(a.1) any award of damages by a court in civil proceedings in respect of
(i) bodily harm intentionally inflicted, or sexual assault, or
(ii) wrongful death resulting therefrom;
[12] In order for this section to apply, I must be satisfied that the award imposed by the jury is in respect to “bodily harm intentionally inflicted”.
[13] As in all jury cases, the jury’s answers, do not provide the analytical framework to properly assess whether the jury found that there was indeed “the intentional infliction of bodily harm.
The Case Law:
[14] The following four cases relate to damages awards which also involved criminal convictions: Martin v. Martin, 2005 NBCA 32, 251 D.L.R. (4th) 304, Winfield v. Lomas, 2008 BCSC 1636, [2008] B.C.J. No. 2314 and Thiessen v. Antifaev, 2003 BCSC 197, [2003] B.C.J. No. 519 and Matthew v. Tattrie, 2009 CarswellBC 481, (B.C.S.C.) 263. In each of those cases, the tortfeasor had committed a socially undesirable act.
[15] In the first of those cases, Martin, although the accused did not directly inflict the injuries for which the award had been made, it was clear through the reasons for the judgment written by Deschêne J.A. that the accused were perceived as equally culpable. In that case, the accused were all part of a group which repeatedly engaged in violent clashes with the victim and his associates. It would seem from the judgment in that case there was a feeling of inevitability about the outcome. Each of the accused had resolved to engage in dangerous and violent activity on repeated occasions, and did nothing to contain or diminish the conduct of Zoel Martin on the day of the subject assault. For that reason, the judge held that all the accused should remain jointly liable to the victim, even after declaring bankruptcy, pursuant to s. 178(1)(1.a) of the Bankruptcy and Insolvency Act. [Emphasis added.]
[16] The New Brunswick Court of Appeal in Martin stated at paras. 8, 10-12, 18 the following:
[8] After referring to some Canadian and American authorities and to the definition of the word ‘intent’ in several authoritative dictionaries, the application judge summarized the issue before him in paras. 21 and 23:
[21] The pivotal question in the present case then as I see it is whether the plaintiff [the appellant Lucien Martin] has established that there should be an exception to discharge in bankruptcy because an award of damages against Donat Martin [one of the respondents] is in respect of bodily harm ‘intentionally inflicted’ upon him.
[23] Does the term "bodily harm intentionally inflicted" extend to include acts done intentionally that inflict bodily harm or is it confined to acts done intentionally to inflict bodily harm. The decision of the United States Supreme Court in Kawaauhau, decided that negligent or reckless acts do not suffice to establish that a resulting injury is "wilful and malicious". Similarly, reckless or negligent acts alone would not suffice to establish that bodily harm was intentionally inflicted.
[10] I agree with the general proposition espoused in Simone v. Daley referred to by the application judge in para. 18 of his decision to the effect that, considering the "new start" object ingrained in the Act, (the discharge provides the "new start" to the bankrupt) the logical interpretation of sections 178(1) and (2) is that the latter creates the general principle (being a release of all debts) with subsection (1) being an exception to that general principle. I also agree that section 178(1) must be viewed in that light.
[11] But even viewed as an exception to the general principle, and thus as a legislative provision to be interpreted restrictively, the object and clear purpose of the exceptions set out in s. 178 must be respected. The exceptions, as mentioned in Simone, are based on an overriding social policy that certain claims should be protected against the general discharge obtained by a bankrupt because of the class of claimants involved, in the present case, the victim of an assault causing bodily harm, and because of the reprehensible nature of the bankrupt's conduct.
[12] In my view, the same can be said with respect to claims or awards of damages in respect of "bodily harm intentionally inflicted, or sexual assault, or wrongful death resulting therefrom" mentioned in s. 178 of the Act. What must be examined is the type of claimant involved and the conduct of the bankrupt which gave rise to the award of damages. On that point, the application judge was entitled to, and he did, "have regard to the preamble to the judgment and the evidence on which the judgment is based" to determine whether the claim or the award of damages came within the exceptions covered by section 178(1)(a.1)(i) of the Act.
[18] In my view, the policy underlying the exception which was applied in Simone come into play where the exception with respect to bodily harm intentionally inflicted is raised: “those kinds of conduct are unacceptable to society and a bankrupt will not be rewarded for such conduct by a release of liability.”
[17] In Simone v. Daley (1999), 1999 3208 (ON CA), 43 O.R. (3d) 511 (C.A.), the Ontario Court of Appeal made the following remarks regarding the underlying purpose of s. 178 of the BIA, at para. 30:
In Jerrard v. Peacock [(1985), 1985 1148 (AB KB), 57 C.B.R. (N.S.) 54 (Alta. Q.B.)], Master Funduk - an experienced official in matters of this nature - subjected section 178 to the following analysis, which in my opinion is an accurate one. At pp. 62-63 he said:
All of the exceptions in the section are based on what might be classed as an overriding social policy. In other words, they are the kinds of claims which society (through the legislators) considers to be of a quality which outweighs any possible benefit to society in the bankrupt being released of these obligations.
Paragraph (a) is essentially an administration of justice concept. The liabilities caught by it will be in relation to criminal or quasi-criminal matters.
Paragraphs (d) and (e) are morality concepts which look at conduct. Those kinds of conduct are unacceptable to society and a bankrupt will not be rewarded for such conduct by a release of liability. [Emphasis added.]
[18] The same underlying notion of enduring culpability for socially injurious conduct was present in the Winfield and Thiessen decisions. In each of those cases, the claimant was severely injured by the violent and socially repugnant actions of the tortfeasors (domestic abuse and assault with a weapon during the course of employment, respectively). In Thiessen, the reasons for judgment make it clear that the tortfeasor caused the victim/claimant “serious physical injuries to his neck, back and knee, including a fracture of the L3 vertebrae at its transverse process.” This apparently occurred as a result of Mr. Thiessen driving into the victim while the victim attempted to serve the tortfeasor with papers to repossess his vehicle.
[19] In Winfield, the tortfeasor assaulted the victim while in a common-law relationship by “striking her on the arm with both fists, by shaking her head with his hands, and by placing a pillow over her face and pushing down for approximately one minute, while uttering threats to her” and “pouring dishwashing liquid over her head, grabbing her neck and shaking her by the neck, pushing her several times and finally pushing her to the floor, and while on the floor punching her in the arm and elbow, and pushing her face and neck into the carpet” on two separate occasions.
[20] In Matthew, the tortfeasor, Tattrie, struck the plaintiff’s head with a baseball bat. Tattrie did not attend the civil trial but did plead guilty to aggravated assault and received a sentence of one year incarceration and two years’ probation. The judge at the civil trial, Ross J. of the BCSC awarded the plaintiff a judgment of $785,000. In that judgment, Justice Ross found at para. 64:
In this case, the damage award is very substantial. The size of the damage award is of particular significance in this case since it arises from the intentional infliction of bodily harm, this falling within s. 178 (1) (a.1) of the BIA.
[21] One case from the United States reviewed the principles of what is intended by the Act: Kawaauhau v. Geiger (1998), 118 S. Ct. 974 (U.S).
[22] In Kawaauhau, the United States Supreme Court was asked to interpret the language of s. 523 (a) (b) of the Bankruptcy Code. That provision – which is the equivalent to s. 178 (1) (a.1) of the BIA – sets out that a debt “for wilful and malicious injury by the debtor to another” is not dischargeable by declaration of bankruptcy.
[23] In Kawaauhau, the claimant, M.K., successfully sued the respondent doctor, G. for malpractice. The claimant had sought treatment for a foot injury which became infected. When the doctor prematurely discontinued antibiotic treatment, believing the infection had subsided, the claimant’s condition worsened resulting in the eventual amputation of her right leg below the knee. The claimant was awarded approximately $355,000 in damages and the respondent doctor applied for bankruptcy.
[24] The claimant requested the Bankruptcy Court hold that the malpractice award was non-dischargeable as a debt for “wilful and malicious injury” pursuant to the Bankruptcy Code. The U.S. Supreme Court rephrased the issue to be decided, at para. 12, as determining “the scope of the ‘willful and malicious injury’ exception: Does s. 523(a)(6)'s compass cover acts, done intentionally, that cause injury (as the Kawaauhaus urge), or only acts done with the actual intent to cause injury (as the Eighth Circuit ruled)?”
[25] In holding that the Code requires an intentional tort, going beyond a merely negligent or reckless act, the U.S. Supreme Court in Kawaauhau made the following comments:
The word "willful'' in (a)(6) modifies the word "injury,'' indicating that non discharge-ability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead "willful acts that cause injury.'' Or, Congress might have selected an additional word or words, i.e., "reckless'' or "negligent,'' to modify "injury.'' Moreover, as the Eighth Circuit observed, the (a)(6) formulation triggers in the lawyer's mind the category "intentional torts,'' as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend "the consequences of an act,'' not simply "the act itself.''…
[26] The Kawaauhaus' more encompassing interpretation could place within the excepted category a wide range of situations in which an act is intentional, but injury is unintended, i.e., neither desired nor in fact anticipated by the debtor.
[27] The Quebec Superior Court relied on Kawaauhaus’ decision in Dalcourt c. Zéphir, [2003] J.Q. No. 9144, in which Hélène Langlois J. considers the conflicting definitions of “harm intentionally inflicted” and holds that the meaning from Kawaauhau should be preferred in the context of s. 178 of the Bankruptcy and Insolvency Act.
[28] In Bélair v Gottschlich (2008), 2008 ABQB 47, 438 A.R. 315 (Q.B.), the uninsured applicant was involved in a motor vehicle accident which resulted in injuries to three separate plaintiffs. Shortly after being served with the three statements of claim, the applicant declared bankruptcy. The applicant subsequently failed to appear on the civil claims, leaving the Administrator of the Motor Vehicle Accident Claims to defend each action and pay consent judgments totalling $200,000 to the various plaintiffs.
[29] The Administrator sought to recover the debts incurred in settling the damages claims from the applicant. In so doing, the Administrator argued that s. 178 of the BIA, should not release the applicant from liability for the motor vehicle accident claims.
[30] The court in Bélair held that the Administrator’s claim did not fall within the terms of s. 178 (1) (a). In finding that “the exceptions listed in s. 178 (1) do not include any debt assigned or assignable to the Administrator, but also found that this type of debt fit within one of the listed exceptions”. The Court adopted the holding from Kawaauhau in briefly noting the meaning of the word “intentional” as used is subsection (a.1) (i) of the Act, at para. 25:
The word "intentional" in the exception described in s. 178(1)(a.1) has been interpreted to mean the intent to cause bodily harm, not cause the act that resulted in bodily harm: Kawaauhau v. Geiger (1998), S. Ct. 974.
[31] In Re: Sangha, 2004 BCSC 799, 4 C.B.R. (5th) 275, Master Groves considered the applicability of s. 178 (1) (a.1) of the BIA, to the intentional striking of pedestrians with a vehicle. In that case, the applicant for bankruptcy drove his car into two pedestrians: the applicant’s daughter and her boyfriend. The applicant pled guilty to aggravated assault, but subsequently told his probation officer that he felt he was justified in running down his daughter based on his cultural beliefs and her need to be ‘disciplined’. The applicant’s insurer settled the civil claims of the two victims for a combined total of approximately $365,000 and then proceeded to recover the costs of the awards from the applicant on the basis that intentional acts of violence were not covered under the applicant’s insurance policy. The applicant filed for bankruptcy.
[32] Master Groves considered the clearly intentional nature of the applicant’s attack on the two victims and refused to release the applicant from liability for the damages award, finding instead that the awards fell within the scope of s. 178 (1) (a.1). In doing so, the Master made the following comments at para. 18:
In I.C.B.C.'s submissions, the order it seeks against the bankrupt is exactly the kind of claim that parliament had in mind when creating the exceptions to discharge. They argue that there can be no doubt that society's interest in punishing such behaviour far outweighs any benefits that might be gained from releasing the bankrupt from his obligations.
Analysis and Conclusion:
[33] The guilty plea to aggravated assault provides the element of intentional application of force that is the punch. However, the elements of assault or aggravated assault does not require an intention to injure. Put another way, is there a concerted effort to inflict bodily harm in this case to import the abhorrent conduct that the legislation intended?
[34] The questions and answers from the jury do not provide a judicial analytical framework to assess whether it was an ‘intentional infliction of bodily harm’. The jury found that indeed Mr. Radcliffe ‘deliberately punched the plaintiff in the head’. And as a result of that punch, the injuries were sustained. There is a causal link for the tort claim and award.
[35] Parliament could not have intended in legislating the exceptions in s. 178 to include the unfortunate and tragic consequences to mean that Mr. Radcliffe would have this life long penance for what was one punch.
[36] I cannot find on the facts of this case that Mr. Radcliffe set out to intentionally injure Mr. Dickerson.
[37] For those reasons, I dismiss the motion to lift the stay according to s. 178 of the BIA.
Justice J.N. Morissette
Justice J. N. Morissette
Date: January 21, 2013