Should Damages Resulting From a Single Punch Thrown in the Heat of the Moment Survive Bankruptcy?

By Sarah D. Pinsonnault

The act of discharging debts under the Bankruptcy and Insolvency Act (“BIA”) is based on the premise that
honest and unfortunate debtors deserve a fresh start in life and to be freed
from former financial obligations (a.k.a. the “fresh start” principle). Section
178(1) BIA stands however as an exception to the “fresh start” principle, in
that a creditor may seek a declaration whereby one of the pre-bankruptcy debts listed
in this section survives the bankrupt’s discharge. One such debt would be an
award for damages in a civil proceeding in respect of “bodily harm
intentionally inflicted” by the bankrupt (s. 178(1)(a.1)(i) BIA). In Leighton v. Best, 2015 ONCA 180, we learn that the creditor must prove the
actual intent on behalf of the bankrupt to cause bodily harm, and not his mere
intent to commit an act that could lead to bodily harm. However, in instances
where there may lack direct proof of intentional infliction of harm, such
intent can be reasonably inferred from the facts surrounded the act.

Context

Both parties were participating in a gentlemen’s hockey tournament that
called for automatic ejection from the tournament for fighting. In retaliation for
an accidental high stick, the Respondent (i.e. the “bankrupt”) removed the helmet
worn by the Appellant Randy Leighton (i.e. his “creditor”) and punched him
with such force that it broke his jaw in three places.

As result, the Respondent was found liable in damages for battery on the
basis that the punch exceeded the scope of the Appellant’s consent to the
application of force. Before satisfying the court judgement and paying the damages
that he owed to the Appellant and his spouse (the “Appellants”), the Respondent
went bankrupt.

The Appellants therefore brought a motion under s.178(1)(a.1)(i) BIA but
the trial judge did not allow the awarding of these damages to survive the Respondent’s
bankruptcy. He relied heavily on the decision of Dickerson v. 1610396 Ontario
Inc., 2013 ONSC 403 (“Dickerson”)
and concluded that, similarly to Dickerson,
it was simply one punch that arose “out of the heat of the moment” and that the Respondent
should not “have this life long penance” because of it. This, he declared,
would run contrary to what the Legislator clearly intended when it adopted s.
178 BIA. Although the single punches in both cases were intentional, the intent
to inflict bodily harm was not proven.

Shortly after the trial judge’s decision, the Dickerson decision was however reversed by the Court of Appeal for Ontario and it was concluded that certain
circumstances surrounding the blow could lead one to reasonably infer an intent
to cause bodily harm: “[…] 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.” (para. 44)

Decision

As a result, the Court of Appeal
for Ontario followed suit in the appeal at bar:

“[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.”

To read this decision in its entirety, click here.