A broken jaw and a broke defendant added up to an unusual ruling from Ontario’s Court of Appeal this week.
An on-ice assault case — Leighton v. Best — provides plenty of legal food for thought when it comes to consensual assault and bankruptcy protection.
Lest that sound like a strange connection — hockey fights leads to bankruptcy ruling — read on. All will become clear.
In 2004, Randy Leighton and Matthew Best took the ice in a Gentlemen’s Hockey Tournament, a decidedly ironic name.
Things got considerably less gentlemanly when Best punched Leighton in the face, breaking his jaw in retaliation for a high-stick.
Leighton sued Best in a case hinging on consensual assault. Yes, as strange as it sounds, the law allows for consenting to be assaulted.
The Criminal Code says assault occurs when someone intentionally applies force to another person without their consent.
So how and why would you consent to being assaulted?
A hockey game is one example. When you step on the ice, you’re consenting to a degree of physical violence expected in the sport and consistent with the rules. Bodychecking or tripping wouldn’t count as assault. A punch in the face is another story.
Besides, “Gentlemen’s Hockey” games are so called because they’ve got a no-contact rule. In this case, fighting gets you kicked out of the whole tournament.
The original assault case raised interesting questions about implied consent. For example, does Best dropping his gloves signal intent to fight?
Ultimately, the judge found Leighton didn’t consent to getting socked in the jaw and badly injured. Best was ordered to pay $38,000 in damages.
Leighton garnished Best’s salary for almost a year, but the garnishment stopped when Best went bankrupt in 2011.
Leighton brought a motion to court saying Best should have to continue paying despite going bankrupt.
Declaring bankruptcy gives you protection from creditors and absolves debts… but not all debts.
Section 178 of the Bankruptcy and Insolvency Act says that declaring bankruptcy “does not release the bankrupt from any award of damages by a court in civil proceedings in respect of bodily harm intentionally inflicted, or sexual assault.”
Best argued that the 2009 decision didn’t necessarily find intention, but only recklessness. And since the Bankruptcy Act doesn’t say you have to keep paying for damages from recklessness, he should be released from payment.
A judge agreed. That 2013 ruling relied heavily on another Ontario case, Dickerson v. 1610396 Ontario Inc. and, based on that case, the judge said the law clearly didn’t intend for Best to pay “this life long penance for what was one punch.”
However, that was overturned soon after. So the whole legal precedent for ruling in Best’s favour just disappeared.
Which brings us to March 2015. Ontario’s Court of Appeal said it’s clear that Best aimed to cause harm and the fact that it was just one punch doesn’t make it any less intentional. And since it’s intentional harm, Best has to pay up the original $38,000 plus $7,500 more in court costs.
Should’ve been a little more gentlemanly.