April 8, 2015

Personal injury award for intentionally inflicted bodily harm survives bankruptcy

Bankruptcy provides debtors with a fresh start.  A clean slate, free from previous financial obligations. The general rule is that all previous debts are extinguished, subject to a very narrow band of exceptions, where the onus is on the creditor to establish the survival of the debt obligation post-bankruptcy.

One of the exceptions is an "award of damages by a court in civil proceedings in respect of bodily harm intentionally inflicted".[1]

It is easy enough to establish whether there is an award of damages by a court in civil proceedings. So too whether that award was rendered in respect of a claim for bodily harm.  But what about the requirement that to survive a bankruptcy, the bodily harm must be intentionally inflicted?

The Court of Appeal for Ontario has confirmed that it is prepared to look at the circumstances of a case and infer an intention to cause bodily harm. The equivalent of a criminal finding – ie. a mens rea – is not a prerequisite.

In Leighton v. Best (2015 ONCA 180), a usually friendly recreational hockey game turned ugly. The Appellant's accidental high stick struck the Respondent in the face, causing bleeding and the loss of a tooth. The Appellant approached the Respondent to apologize, and a fight ensued during which the Respondent removed the Appellant's helmet and punched him in the face. The punch had such force that it broke the jaw of the Appellant (a big fellow, at 6'2 and 225 pounds) in three places as he fell to his knees.

At trial, the court found that the Respondent had committed a battery, which the trial judge defined as the intentional causing of harmful contact with another. The Respondent subsequently declared bankruptcy, and the trial judge heard a motion on whether the damage award should survive that bankruptcy. The motion judge concluded that there was no intent to inflict bodily harm and that the Respondent should not have to suffer "this lifelong penance for what was one punch".

The Court of Appeal, in a short endorsement, reversed that decision and allowed the appeal. The Court observed that the fact that the punch was intentional was not sufficient to bring the damage award within the BIA exception. The Respondent also had to have intended for the punch to cause bodily harm. The Court noted the Respondent had pulled off the Appellant's helmet and then delivered a punch with such force that it broke the Appellant's jaw. The fact that there was only a single punch did not preclude the finding that the Respondent had intended to, and did, cause bodily harm to the Appellant.

In so concluding, the Court affirmed its reasoning in the very similar case of Dickerson v. 1610396 Ontario Inc. (Carey's Pub & Grill) (2013 ONCA 63).

So, recreational sports players, be warned  The courts will infer an intention to inflict bodily harm from the circumstances of the case, and where such an intention is found, the award for damages arising will survive a bankruptcy.

- Research contributed by Laura Robinson, 2014/2015 articling student.

[1] Bankruptcy and Insolvency Act, section 178(1)(a.1)(i).