Turn the Other Cheek, Or Kick Butt?

Photo: Aussiegall

Photo: Aussiegall

A workplace relationship deteriorated into a physical altercation, followed by a small claims suit for the tort of battery, in a recent case that was dismissed.

Two men, who worked in a Richmond Hill shipping and receiving department, had a strained relationship. It came to a head in April 2011. Court heard that Peng Li kicked Winston Ferguson in the butt, and was then punched twice in the face by Ferguson.

Li had sought compensation for $7,000 in dental work he needed after the kick in the teeth. An original claim against the employer was discontinued the day before the trial.

A Battery of Defences

Justice Pikkov applied three possible defences to the tort of battery: Self-Defence, Consent and Provocation.

Court found no evidence of self-defence, did find evidence of “implied consent” in Li’s conduct, and found that provocation mitigated Li’s damages.

“I find that Li initiated the incident by aggressively and intentionally encroaching upon Ferguson’s personal space, knowing that such encroachment was unpleasant and
unwelcome,” Justice Pikkov wrote.

Paralegal Jiping Wang represented Li. No costs were awarded.

Case Law Considered

Justice Pikkov applied the guidance in R. v. Jobidon, [1991] 2 S.C.R. 714 and Abbott (Next friend of) v. Jarocki, [1998] 3 W.W.R. 653.

The decision in Ellis v. Fallios – Guthierrez [2012] O.J. No. 1088 (OSCJ) sets out the current law in Ontario, Justice Pikkov notes. In that case, the plaintiff provoked a consensual fist fight, which ended with the defendant biting off and swallowing chunks of the plaintiff’s upper and lower lips.

Justice Pikkov found: “Having insulted, berated and confined a person at close quarters, then scuffled with them and kicked them I cannot see how a reasonable person could maintain that a punch or two in return was beyond their reasonable contemplation as being within the scope of what they had implicitly consented to.”

Read the case at CanLII:
Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.)

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