Ontario court rules bankrupt defendant sued over hockey fight not released from civil damages

A man who was successfully sued after punching another player in a hockey game is still required to pay damages for battery, even though the defendant is bankrupt, the Court of Appeal for Ontario ruled this week.

Section 178 of the federal Bankruptcy and Insolvency Act stipulates several circumstances under which a person who is discharged from bankruptcy is not released from financial obligations. One of those – Section 178 (1) (a.1)(i) – is for “any award of damages by a court in civil proceedings in respect of … bodily harm intentionally inflicted.”

Court records indicate that Matthew Best and Randy Leighton were playing a game of gentlemen’s hockey in February, 2004. During the game, Leighton’s stick came up and struck Best in the face, knocking out a tooth.

Later, Best and Leighton “began yelling at each other, and grabbed each other’s sweaters,” wrote Mr. Justice James Wilcox of the Ontario Superior Court of Justice, in a ruling published Sept. 13, 2013. “There was much jostling.”

Then, Justice Wilcox wrote, Best removed Leighton’s helmet and punched Leighton “with such force that it broke his jaw in three places.”

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Justice Wilcox found Best “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 Court of Appeal wrote in a decision released March 18, 2015.

But Justice Wilcox also ruled, in 2013, that the damage award did not survive Best’s bankruptcy. That ruling was overturned Wednesday by Mr. Justice Peter Lauwers, William Hourigan and Madam Justice Gladys I. Pardu of the Court of Appeal for Ontario.

Justice Wilcox “noted that recklessness or negligence were not sufficient to establish that bodily harm was intentionally inflicted,” the appeal court wrote. “There must be actual intent to cause bodily injury, not simply intent to do the act that causes the bodily injury.”

In contact sports, “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,” the appeal court wrote. They ruled that in the case of Best vs Leighton, Justice Wilcox “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.”

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Justice Wilcox’s decision had been released before the appeal court – in a decision published Oct. 31, 2013 – reversed a ruling related to a different lawsuit.

Phillip Dickerson has sued David Radcliffe after Radcliffe punched him in the head in London, Ont. in 2005. Dickerson lost consciousness, fell to the ground, struck his head on the curb and suffered from bleeding to the brain.

An Ontario court ruled that a civil judgment obtained by Dickerson against Radclife did not meet the requirements of the section of BIA (Section 178 (1) (a.1)(i) ) stipulating that a bankrupt person must still pay damages from civil proceedings in respect of bodily harm intentionally inflicted.

Ontario’s appeal court had previously ruled that Carey’s Pub & Grill – which Dickerson also sued because Radcliffe had been drinking there – was not liable for his injuries. The appeal court, in 2010, had upheld a jury’s decision that found Carey’s was not liable for Dickerson’ injuries under Section 39 of Ontario’s Liquor Licence Act, which apply “if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person.”

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In finding, in 2013, that Radcliffe was still responsible for civil damages from Dickerson’s lawsuit, the appeal court ruled that section 178(1)(a.1)(i) of BIA “will apply where there is direct proof of intentional infliction of harm or where such intent can be reasonably inferred on the facts.”

Last Wednesday, in the case of Leighton vs Best, the appeal court wrote: “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.”

The fact that the punch was intentional “does not bring the damage award within s. 178(1)(a.1)(i)” of BIA, the judges wrote. “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.”