Assault and Battery (Tort of)

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Date Retrieved:	2024-06-29
CLNP Page ID:	2061
Page Categories:	[Tort Law]
Citation:	Assault and Battery (Tort of), CLNP 2061, <https://rvt.link/2->, retrieved on 2024-06-29
Editor:	Sharvey
Last Updated:	2024/06/26

Deluca v. Bucciarelli, 2022 ONCA 774 (CanLII)

[16] The motion judge relied on Bruce v. Dyer, 1966 CanLII 191 (ON SC), [1966] 2 O.R. 705 (H.C.) aff’d 1967 CanLII 653 (ON CA), [1970] 1 O.R. 482 (C.A.), for a description of the elements of the tort of assault. The motion judge said, “[t]he [appellant] must prove on a balance of probabilities that she had reasonable grounds to believe that she was in danger of violence from [the respondent], that she feared imminent harmful or offensive contact (emphasis in the original).” The motion judge was not satisfied the appellant had adduced evidence that could meet this standard.

[17] The appellant submitted that, particularly when viewed in the context of an evolving understanding of domestic violence and controlling behaviour, in assessing her evidence, the motion judge took too narrow a view of “imminence” and of the scope of “an assault” as that term appears in s. 16(1)(h.2)(i) of the Act. The appellant pointed to Warman v. Grosvenor (2008), 2008 CanLII 57728 (ON SC), 92 O.R. (3d) 663 (S.C.) and Dunne v. Gauthier, 2000 BCSC 1603, as examples of cases that illustrate that imminence can mean different things in different contexts. The appellant also argued that the motion judge erred in failing to recognize that the term “assault”, as it appears in s. 16(1)(h.2)(i), can and should be interpreted broadly, so as to encompass threatening and harassing behaviour giving rise to fear of harm at some future unspecified point in time.

[18] We do not accept these submissions. Section 16(1)(h.2)(i) of the Act provides that there is no limitation period in respect of “a proceeding based on an assault” where at the time of the assault the parties “had an intimate relationship.” In our view, the appellant’s arguments are foreclosed by this court’s recent decision in Barker v. Barker, 2022 ONCA 567, [2022] O.J. No. 3526 (C.A.), in which this court considered the scope of the tort of assault. At paras. 137-138, this court explained that a tortious assault “involves intentionally causing another to fear imminent contact of a harmful or offensive nature (citations omitted, emphasis added).” At para. 171 of Barker, this court confirmed that “imminence is a critical component of the tort of assault.”

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[20] At para. 173 of Barker, this court described the conduct in Warman, which the trial judge found amounted to an assault, as involving a relentless, two-year campaign of harassment involving internet postings and email. The communications were homophobic and anti-Semitic. Among other things, the defendant’s internet posts referred to the victim as a “dead [] walking”, shared his address including a map of his residence, and urged readers to “pay him a visit” and let him “meet his fate – execution at the hands of a people’s government”. One post concluded, “I have a Ruger P-90 and its bullets have your name on them”.

[21] At para. 174 of Barker, this court emphasized that the Warman trial judge recognized that damages are recoverable for assault “by someone who is made apprehensive of immediate physical contact” (emphasis in the original). Significantly, the Warman trial judge stated: “Frightening or threatening someone, however, does not constitute an assault unless the event feared is imminent….”

[22] At para. 176 of Barker, this court described Dunne as a case that involved a conditional threat to cause harm if the plaintiff school bus driver ever drove on the defendant’s laneway again. Significantly, in Dunne, the conditional threat was made immediately after the defendant finished physically battering the school bus driver. Moreover, the victim was aware that the defendant drove a large tractor trailer unit that could “take out” the victim and his bus.

[23] At para. 176 of Barker, this court agreed with comments of the Saskatchewan Court of Appeal that “[b]oth Dunne and Warman are useful examples of how imminence might be understood, but they do not attenuate the fundamental requirements of the tort of civil assault.”

[24] Given this court’s decision in Barker, we see no error in the motion judge’s appreciation of the scope of s. 16(1)(h.2)(i) of the Act or in her articulation or application of the elements of the tort of assault. The motion judge’s articulation of the elements of assault is consistent with Barker. Based on the evidence adduced by the appellant, the motion judge concluded that the appellant had not adduced evidence capable of demonstrating a genuine issue for trial concerning whether the respondent’s alleged conduct met the threshold of “an assault”. In general, she assessed the appellant’s evidence as lacking in particulars and unpersuasive. Concerning the police occurrence reports on which the appellant relied, the motion judge noted that they contained a comment that the appellant did not fear for her safety. The facts of both Warman and Dunne are distinguishable from the facts of this case. The Warman trial judge was satisfied based on the specific facts of that case that the plaintiff was “reasonably apprehensive of imminent physical contact”. The physical battering that preceded the conditional threat in Dunne and the victim’s knowledge of the appellant’s capabilities were specific circumstances creating support for the finding of an assault. Here, the appellant’s allegations and evidence did not rise to a similar level. We see no basis on which to interfere with the motion judge’s findings and conclusions.

Costantini v. Constantini, 2013 ONSC 1626 (CanLII)

57. I have no difficulty concluding the Applicant’s claim in tort should succeed. The Respondent’s aggressive and intimidating behaviour was outrageous. He chose to say and do things with the specific intention of causing physical pain and injury, and significant emotional upset. The Applicant suffered physical and emotional injuries, precisely as the Respondent intended.

58. As stated, the Applicant did not pursue a claim for punitive damages. There was no wage loss or out of pocket expense claim.

59. In assessing general damages, I have considered:

a. The Respondent’s physically aggressive behaviour on August 4, 2011 in the context of the earlier verbal abuse on February 15, 2011.

b. These two incidents were relatively isolated (although there had been lesser problems earlier in the relationship).

c. The most egregious event on August 4, 2011 was not a spontaneous event, or a sudden lapse of judgment. The parties had already been separated for about six months. The Respondent telephoned and appeared to be in the vicinity of the Applicant’s residence early in the evening. Three or four hours later he entered the Applicant’s home in the middle of the night, when he would have known she was alone and likely asleep. He certainly knew he no longer lived there, was not wanted, and shouldn’t be there. It was a pre-meditated break-in.

d. The Respondent’s behaviour when he entered the home (and set off the alarm) was needlessly aggressive. The Applicant did nothing wrong; nothing to provoke or aggravate the situation.

e. The assault entailed more than a single physical action. The Respondent engaged in a terrifying, aggressive application of force which included grabbing, squeezing by the neck, pulling away from a door, banging the Applicant’s head against a wall, and then slamming her face against a ceramic floor. He took advantage of his physical superiority. He took advantage of the Applicant’s vulnerability. He violated her right to a sense of safety, while asleep in her own home, in the middle of the night.

f. He tormented her with threats and degrading insults.

g. The Respondent has not behaved inappropriately toward the Applicant since then. Apart from two e-mails (dealt with through the criminal courts) he has had no further contact with her since the assault.

h. The Applicant suffered painful injuries. Fortunately none were permanent, or long-lasting.

i. The Applicant has suffered pervasive and continuing emotional upset as a result of the Respondent’s intentionally hurtful behaviour. Her fear, even within her own home, is understandable given the manner in which she was targeted and victimized – in her own home. Her life – her world – has changed.

j. Her stress has been compounded by dealing with the fallout on her teenage daughter, also a victim of the Respondent’s abuse.

60. I have a significant amount of sympathy for the Applicant – a blameless victim of a serious assault within a relationship of trust. I have no difficulty concluding she is entitled to compensation. The perplexing issue is quantum.

61. The Applicant’s request for $50,000.00 general damages would equate her situation to some of the aforementioned “high award” cases like Shaw v. Shaw, Bird v. Kohl, Megeval v. Megeval, and N.C. v. W.R.B. - cases which involved significantly more egregious (and protracted or repeated) misconduct, with more serious (permanent) injuries.

62. While no two cases (or victims) are identical, I find that the Applicant’s experiences and injuries are more similar to those described in cases like Rezel v. Rezel and Valenti v. Valenti.

63. As a result, attempting to maintain some consistency with other domestic assault cases – and taking into account the aggravating factors -- I find that $15,000.00 is an appropriate general damages award.

THE ORDER

64. A Divorce order shall issue.

65. The Respondent shall pay to the Applicant general and aggravated damages in relation to assault fixed in the sum of $15,000.00.

66. Applicant’s counsel may provide written submissions regarding costs, to be filed within 30 days.

Warman v. Grosvenor, 2008 CanLII 57728 (ON SC)

Torts -- Assault -- Plaintiff involved in human rights work relating to hate propaganda on Internet -- Defendant posting plaintiff's address and telephone number on Internet, inviting people to visit him and making death threats -- Defendant's conduct making plaintiff apprehensive of imminent physical harm -- Elements of tort of assault made out.

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[58] Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that conduct never actually occurs: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis, 2006), at p. 46.

[59] Conduct that intentionally arouses apprehension of an imminent battery (physical contact) constitutes an assault. Frightening or threatening someone, however, does not constitute an assault unless the event feared is imminent: Canadian Tort Law, supra, at p. 47.

[60] I am satisfied that the plaintiff is reasonably apprehensive of imminent physical contact as a result of the postings and the e-mails.

[61] By way of example, in the first posting, the defendant invited readers to let the plaintiff "meet his just fate -- execution at the hands of a people's government". In the second posting through to the fourteenth posting and continuing to the present time, the defendant urged readers to "pay him a visit" and included the plaintiff's residence address and phone numbers. The sixth posting encouraged the readers "to email the co-op and complain about their resident (he may get kicked out if they get enough complaints)". The plaintiff testified that the management of his co-operative where he lived did receive calls. As a consequence, he moved to a different address at the end of October 2007. The seventh posting referred to the plaintiff as "a dead Jew walkin'". The fourteenth posting concluded its message with, "I AM GOD AND I HAVE A RUGER P-90 AND IT'S BULLETS HAVE YOUR NAME ON THEM FAGBOY WARMAN". One of the e-mails in March 2008 said, "Your day of reckoning is coming, you little homo creep!"

[62] The postings and the e-mails have continued for over two years. They have persistently expressed hatred and anger and have called on others to act against the plaintiff, to try to get him evicted and to make him a target of violence. They are not general threats. They are threatening and intimidating and by virtue of their repetitiveness, their detail regarding the plaintiff's whereabouts and their level of malevolence, they are more than mere empty threats and insults. They are vicious and serious and [page678] are to be taken seriously. They have made the plaintiff apprehensive of imminent physical harm and reasonably so, particularly in the context of the wide publication of the postings on the Internet and the very real possibility that someone will, as they have in the past by contacts with the management of the plaintiff's residence, act on the defendant's repeated invitations to others to find the plaintiff and inflict serious physical harm on him.

[63] It is for these reasons that I find the plaintiff is entitled to recover damages for the defendant's assault against him.

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[73] I find the plaintiff is entitled to general damages for defamation and assault by the defendant. He also claims aggravated and punitive damages.

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[88] I accept that a total amount of $175,000 would be the appropriate quantum of general and aggravated damages to the plaintiff for defamation and assault. I would award this level of damages more than, for example, was awarded in Warman v. Fromm, because of the increased seriousness of the allegations in the present case, the frightening threats that have been made, the danger they have created and the extreme malice that has been demonstrated.

[89] With the plaintiff's waiver of the excess over $175,000, I award damages to the plaintiff in the total amount of $50,000, comprised of $20,000 as general damages for defamation, $10,000 as aggravated damages for defamation, $15,000 as general damages for assault and $5,000 as aggravated damages for assault. Injunctive Relief

Zafran v Niagara Fallsview Casino Resort, 2018 CanLII 14343 (ON SCSM)

[61] Mainland Sawmills Ltd. v U.S.W.., Local -3567, 2007 BCSC 1433 is cited for its review of principles relating to assault:

“[98] All plaintiffs frame their causes of action in the tort of assault or assault and battery. Claims of assault only are unusual, since there is no physical injury. The tort of assault, which is a trespass to the person, involves a threat by the defendant to apply some degree of force to the plaintiff. It has been described as intentionally causing another person to fear or apprehend imminent contact of a harmful or oppressive nature: see Gerald H.L. Fridman, The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002) at p. 71. The plaintiffs’ fear or apprehension of imminent harm must be reasonable. It is described as follows in Lewis N. Klar’s Tort Law, 3rd ed. (Toronto: Carswell, 2003) at pp. 41 to 42:

The defendant’s conduct must have caused a reasonable apprehension of imminent harm. It does not matter if the defendant did not have the actual ability to cause harm as long as a reasonable person would have felt threatened. The plaintiff need not have been in fear, as long as the harm was apprehended.

[99] The underlying policy of the tort of assault is the reduction of violence. A threat to do harm at some future time does not constitute an assault because such a threat is not as likely to spur retaliation. Allen M. Linden in Canadian Tort Law, 8th ed. (Markham: Lexis Butterworths, 2006), gives examples where threats lack the required immediacy for assault liability:

…shaking one’s fist at someone who is out of reach, making a threat over the telephone, or reaching for someone who is standing safely behind a counter…” (p. 47).

Linden also provides some useful examples of conduct that constitutes an assault:

Shaking a fist at another person, lunging at someone in an effort to attack, and swinging an axe at another person are actionable assaults. An assault may also be committed if a person is surrounded by a group of people in a hostile manner. … Blocking another person’s progress has also been said to amount to an assault, but this is questionable. (p. 47)”

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[130] The general tenor of the damages need not be restated. The principal injury was to the left wrist. I accept there is some continuing damage to the date of trial. The possible scope of the long term damage was not allowed into evidence. Symptoms nevertheless continue three and a half years post-incident. More time spent outlining the suggested damages would have been helpful. The January 30, 2018 report of Dr Chiu provides an overview of the medical complaints, the symptoms and medication. Each case has to be decided on its own facts. I would award general damages of $14,000.00.

[131] Based on my finding Zafran was not arrested in the course of the trespass, no damages are awarded for false arrest. None are actually sought in the Plaintiff’s Claim. That he was handcuffed and turned over to the NRPD—circumstances normally associated with an arrest-- was the result, not cause, of events.

J.N. v. Horton, 2010 ABQB 767 (CanLII)

[86] In Breland v. Abbott, 2005 ABQB 903, 390 A.R. 51, Macklin J. awarded punitive damages against an officer for excessive use of force. The police officer had applied blows to the Plaintiff’s rib cage in order to subdue him, resulting in fractured ribs, and a kidney injury which resolved itself. The Plaintiff had been 60 years old at the time of the incident. Macklin J. held, at paras. 76-78:

The excessive force used by Abbott was highly reprehensible misconduct that departed to a marked degree from the ordinary standards of decent behaviour.

There is one further factor, however, that I consider in awarding punitive damages to the Plaintiff. Knowing the Plaintiff was in pain and having trouble breathing on the ride to the police station, Abbott should have ensured he received full and proper medical treatment. The Plaintiff was in custody for three days, but was seen by only a couple of nurses at the Remand Centre. This was not sufficient.

In my view, the actions and behaviour of Abbott warrant punitive damages in the sum of $5,000.00.

[87] In the current case, I find the officer’s behaviour reprehensible. The use of a strike to the groin where no use of physical force at all was called for, in the context of an unlawful investigative detention, is behaviour that calls out for punishment, denunciation and deterrence. The assault was contrary to Calgary Police Service policy on the use of force, and contrary to Horton’s training. The situation was further aggravated by the behaviour of Horton after the strike. Horton knew Nathan was in serious pain, even if he did not know the extent of the injury. Yet, he did not offer Nathan medical attention, or even transportation to a safer location, leaving Nathan vulnerable and without help in a dangerous area. In order to connect the award of punitive damages to the objectives of punishment, deterrence, and denunciation, I award punitive damages only against Horton personally. I am mindful of the Supreme Court’s admonition in Whiten to award the lowest amount that will achieve the desired objectives, and therefore I set punitive damages at $5,000.00.

J. (L.A.) v. J. (H.), 1993 CanLII 8657 (ON SC)

The plaintiff, 20 years old at the time of trial, brought this action against the man she grew up believing was her father and who was, for all practical purposes, in loco parentis to her, having lived with the plaintiff's mother in a "common law" relationship since the plaintiff was born. In fact, the defendant H.J. is the uncle of the plaintiff, but in view of his having played the role of father during the plaintiff's growing-up years, I will refer to him as the "father". The action is against the plaintiff's mother too. The plaintiff claimed damages from both for psychological trauma, shock, humiliation, physical injury and loss of enjoyment of life as a consequence of repeated sexual assaults during the period 1984-1990 by the defendant father and consequent as well upon her mother's actions and omissions, negligent or otherwise, in breach of her duty to protect the plaintiff, her daughter, from the sexual assaults of the defendant father. The plaintiff also sought punitive damages as against her mother.

In addition to these claims against the defendants in tort, the plaintiff claims damages from both defendants on the basis of their having breached their fiduciary duties to her.

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The questions put to the jury in connection with the claims based in tort, and the jury's answers, are as follows.

1. Q. Did the defendant mother know or ought she reasonably to have known about the sexual abuse of her daughter by the defendant father?

A. Yes.

2. Q. If the answer to question 1 is yes, did the defendant mother take reasonable steps to protect her daughter from the abuse about which she knew or ought reasonably to have known?

A. No.

3. Q. In what amount do you assess the general damages of the plaintiff?

A. $60,000.

4. Q. In what amount do you assess any future care expenses for the plaintiff?

A. $30,700.

5. Q. Do you assess any punitive damages against the defendant mother? If so, what amount?

A. Yes, $45,000.

As a result of these answers being given by the jury, judgment for the plaintiff was entered against the defendants for $90,700 and for an additional $45,000 against the defendant mother, being the punitive damage award.

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see no reason to assess damages in any way differently from those awarded by the jury in this case. It would, perhaps, be possible to place greater emphasis on the broken relationship between the plaintiff and the defendant mother and father, but I am in no better position to address with damages or compensation that loss, than was the jury. They had the whole affair before them and while the measure of damages for sexual assault and battery and for breach of a duty of care may not necessarily coincide with that arising from a breach of fiduciary obligations, I see no reason in this case and have no evidentiary basis on which to differentiate.

Therefore, the plaintiff's claims against the defendants for breach of fiduciary duty must succeed and judgment is given for the plaintiff, concurrently with that granted on the basis of the jury's award except that the plaintiff may include in her bill of costs an appropriate amount for the written brief submitted in support of the equitable claim.