A recent Ontario court case considered whether damages for an injury from a hockey fight would survive the bankruptcy of the defendant. The court ruled that the damages did survive a bankruptcy discharge for a number of reasons.
The plaintiff and the defendant were involved in a fight in a “gentlemen’s” hockey tournament in February 2004. In this case, it may actually be difficult to call it a “fight” because it involved the defendant pulling off the plaintiffs full cage helmet and delivering one punch that dropped the plaintiff to the ice with a broken jaw.
Hockey Fight not by consent
What led to the fight was a seemingly unintentional high stick that knocked out the tooth of the defendant causing him to attack the plaintiff. The court highlighted the fact that the plaintiff did not expect to be in a fight nor consent to engage in a fight since he did not willingly remove his helmet.
The question was whether the damages fell with those debts that survive bankruptcy. Section 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act provides that “[a]n order of discharge does not release the bankrupt from … any award of damages by a court in civil proceedings in respect of … bodily harm intentionally inflicted”.
As noted in the case… ” the judge began by considering the purpose of bankruptcy, which is to give a debtor a fresh start free from former financial obligations, and observed that the onus is on the creditor to establish that the debt survived bankruptcy. He noted that recklessness or negligence were not sufficient to establish that bodily harm was intentionally inflicted. There must be actual intent to cause bodily injury, not simply intent to do the act that causes the bodily injury.”
Intent to cause bodily harm was “Inescapable”
It was stated that the fact that the punch was intentional does not, on its own, bring the damage award into section 178(1)(a.1)(I) of the BIA. The defendant must have also intended for the punch to cause bodily harm rather than being due solely to recklessness. The court found that this finding was “inescapable” given the facts. “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.”
Some key points from this case:
- There are some types of debts that do survive bankruptcy.
- Damage awards for bodily harm do not automatically fall into this category, there must be intent to do the harm.
- Hockey fights may be common in Canada but are they not always by “consent”. Therefore they may involve damage claims for bodily harm that can survive bankruptcy.
If you are considering a bankruptcy or proposal to your creditors to deal with a damage claim, it is always a good idea to seek advice from and licenced insolvency trustee. Call us today.