



COURT OF APPEAL FOR ONTARIO

CITATION: Dickerson v. 1610396 Ontario Inc. (Careys
    Pub & Grill),  2013 ONCA 653

DATE: 20131031

DOCKET: C56554

MacFarland, Watt and Epstein JJ.A.

BETWEEN

Phillip Daniel Dickerson
,
    Marilyn Sussan Dickerson, Phillip Hartley Dickerson and Melissa Marilyn
    Clampitt

Plaintiffs (
A
ppellant
)

and

1610396 Ontario Inc. C.O.B. as Careys Pub &
    Grill,
David William Radcliffe
, Mike Habash,
    Dwayne Hurley and Brandon Stewart

Defendants (
R
espondent
)

Rasha M. El-Tawil and Michael A. Polvere, for the appellant

David Radcliffe, acting in person

Heard:  June 26, 2013

On appeal from the order of Justice Johanne N. Morissette
    of the Superior Court of Justice, dated January 21, 2013, with reasons reported
    at 2013 ONSC 403.

MacFarland J.A.:

[1]

This is an appeal from the order of Morissette J. dated January 21, 2013,
    dismissing the appellants motion.

[2]

The appellant had moved for declaratory relief as follows:


i.

A Declaration that a subsection 69.39 of the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3, stay of proceedings does not operate
    with respect to enforcement of the judgment of Justice T.D. Little dated March
    24, 2009 in court file number 47580 against the Bankrupt;


ii.

A Declaration that the judgment of Justice T.D. Little and the damages
    awarded to Phillip Daniel Dickerson against David William Radcliffe is an
    award of damages in civil proceedings for bodily harm intentionally inflicted
    in accordance with s. 178(1)(a.1) of the
Bankruptcy and Insolvency Act
;


iii.

A Declaration, pursuant to s. 178(1)(a.1) of the
Bankruptcy and
    Insolvency Act
that the judgment dated March 24, 2009 and endorsement
    dated May 25, 2009 of Justice T.D. Little against the Bankrupt, survive the
    Bankruptcy and is not a debt released by an order of discharge; and


iv.

Costs of this motion on a substantial indemnity basis from any party
    opposing the motion.

THE FACTS

[3]

The respondent was convicted of aggravated assault against the
    appellant.  Contrary to the motion judges finding, the respondent did not plead
    guilty.

[4]

At the criminal proceedings conducted before the Getliffe J. on June 20,
    2006 at London, Ontario, the respondent conceded that the facts read in by the
    prosecutor at his trial would lead to a conviction of aggravated assault.  The
    trial judge convicted the respondent of aggravated assault on the basis of
    those facts,  of the concession of counsel, and of the evidence the judge had
    heard from the witness box.  The uncontested facts as read in by the Crown at the
    criminal trial were:

On April 19, 2005 the victim, Phillip Dan Dickerson and several
    friends had been drinking at Careys Bar on Oxford Street in London. At some
    point in the evening the group had become involved in an altercation with
    another group of males. This included David Radcliffe.  The initial disturbance
    ended when witness Trevor Stevens, who was a friend of the victim, discovered
    he had dropped his cell phone; called his cell phone number  oh sorry.  Dan
    Dickerson called the cell phone number, was told to meet them at Cheapside and
    Second Street, however, the victim and his group of friends ended up meeting
    with the accused and his group of friends on the grounds of Fanshawe College at
    1460 Oxford Street in London.  At this time, a number of people began fighting.
    The victim in the case was not involved in the fight. He had left the area,
    called the police on his cellular telephone. At this point, the accused ran up
    to the victim and punched him once in the head. This caused the victim to lose
    consciousness and fall to the ground, striking his head on the curb.  The
    victim was unconscious, unresponsive and transported to University Hospital
    where he was listed in critical condition. He suffered from bleeding to the
    brain.  The accused had run from the area and was later apprehended by police. 
    In addition to the facts read in this morning, those are the allegations.

THE COURT:        All right.

[DEFENCE COUNSEL]:   We concede that those allegations would
    lead to a conviction of aggravated assault.

THE COURT:        Thank you [Defence Counsel].  Well, on the
    basis of the facts that I heard from the witness box and the facts that have
    additionally been read in by the Crown, there will be a conviction registered
    in this matter.

[5]

In addition to the criminal proceedings, a civil suit was brought by the
    appellant against the respondent.  The trial in the civil matter proceeded
    before Little J. and a jury. The evidence in the civil trial was, in essence,
    the same as the evidence that had been before the Criminal Court.

[6]

The appellant had been standing a distance away from where the fighting
    was taking place and had his back to it.  He was on his cell phone trying to
    call police when the respondent came up behind him. The respondent punched the
    appellant in the head with his closed fist with such force that the appellant
    lost consciousness and fell to the ground.

[7]

At the time of the assault, the appellant was about five feet nine
    inches tall and weighed one hundred and thirty-five pounds. The respondent was
    just shy of six feet and weighed between one hundred and eighty and two hundred
    pounds.

[8]

Three of that jurys responses to the questions posed to it are relevant
    for present purposes.  They are:

QUESTIONS FOR THE JURY

LIABILITY

1.       Were Daniel Dickersons
    injuries caused or contributed to by any deliberate or negligent or acts of
    David Radcliffe.

YES
√

2.       State fully the deliberate or
    negligent act or acts that caused or contributed to the injuries of Daniel
    Dickerson.

David Radcliffe deliberately punched Daniel Dickerson
    in the head directly causing the injury.

6.       Were Daniel Dickersons injuries caused or contributed
    to by his own negligent act or acts.

YES       NO
√

[9]

I should add that Careys Pub and Grill was also named as a defendant in
    the civil proceeding brought by the appellant but was exonerated of any
    liability by the jury. In separate proceedings, the finding of the jury (in
    relation to Careys Pub and Grill) was appealed to this court. The appeal was
    dismissed. This court noted in the opening paragraph of its reasons:

Mr. Radcliffe, unprovoked, punched Mr. Dickerson in the head
    with enough force to cause significant brain injury and permanent disability.

[10]

The
    civil jury awarded damages in the appellants favour against the respondent in
    excess of one million dollars.

[11]

As
    a result of the judgment, the respondent filed a proposal under s. 62(1) of the
Bankruptcy and Insolvency Act
(the BIA) on February 16, 2011.

THE ISSUE

[12]

The
    issue before the motion judge was whether the civil judgment obtained by the
    appellant fell within and met the requirements of s. 178(1)(a.1)(i).

[13]

The
    motion judge found that it did not and dismissed the appellants motion.

[14]

For
    the reasons that follow, I would allow the appeal.

ANALYSIS

[15]

Section
    178(1)(a.1) of the
BIA
provides:

178(1)          An order of discharge does not release the
    bankrupt from

(a.1)   any award of damages by a court in civil proceedings
    in respect of

(i)      bodily harm intentionally                               inflicted,
    or sexual assault or

(ii)      wrongful death resulting                                therefrom.

[16]

In
    paragraph 12 of her reasons, the motion judge correctly stated the issue before
    her:

In order for this section to apply, I must be satisfied that
    the award imposed by the jury is in respect to bodily harm intentionally
    inflicted.

And she concluded at paras. 34-36:

The questions and answers from the jury do not provide a
    judicial analytical framework to assess whether it was an intentional
    infliction of bodily harm.  The jury found that indeed Mr. Radcliffe
    deliberately punched the plaintiff in the head.  And as a result of that punch,
    the injuries were sustained. There is a causal link for the tort claim and
    award.

Parliament could not have intended in legislating the
    exceptions in s. 178 to include the unfortunate and tragic consequences to mean
    that Mr. Radcliffe would have this lifelong penance for what was one punch.

I cannot find on the facts of this case that Mr. Radcliffe set
    out to intentionally injure Mr. Dickerson.

[17]

In
    considering s. 178 of the
BIA
it is appropriate to begin with a
    consideration of the words of Blair J. (now J.A.) in
Simone v. Daley
(1999), 43 O.R. (3d) 511 (C.A.), at p. 522:

In
Jerrard v. Peacock
[(1985), 57 C.B.R. (N.S.) 54 (Alta.
    Q.B.)], Master Funduk  an experienced official in matters of this nature 
    subjected s. 178 to the following analysis, which in my opinion is an accurate
    one.  At pp. 62-63 he said:

Considering the new start object ingrained in the Act, the
    logical interpretation of the two subsections in question is that subs. (2)
    creates the general principle (being a release of all debts) with subs. (1)
    being an exception to the general principle.  Subsection (2) [
sic
]
    establishes exceptions, not the principle, and must be viewed in that light.

It is as if the section literally reads that the order of
    discharge releases the bankrupt from all claims provable in bankruptcy except
    the following: and then lists the seven (now six) categories in subs. (1).

. . . .

All of the exceptions in the section are based on what might
    be classed as an overriding social policy. In other words, they are the kinds
    of claims which society (through legislators) considers to be of a quality
    which outweighs any possible benefit to society in the bankrupt being released
    of these obligations.

Paragraph (a) is essentially an administration of justice
    concept. The liabilities caught by it will be in relation to criminal or
    quasi-criminal matters.

Paragraphs (b) and (c), regardless of the language used, are
    nothing other than societys vested interest in ensuring that a person
    supports a dependent spouse and children. Obligations incurred for that
    cannot be shucked by the bankruptcy.

Paragraphs (d) and (e) are morality concepts which look at
    conduct. Those kinds of conduct are unacceptable to society and a bankrupt will
    not be rewarded for such conduct by a release of liability. [Footnote omitted.]

[18]

We
    are here, of course, concerned with paragraph (a.1).  It is not disputed that
    any claim falling within s. 178(1)(a.1) must arise from an act done with
    specific intent to injure (as opposed to an intentional act that incidentally
    results in injury).

[19]

In
    determining whether the respondent possessed the requisite intent when he
    punched the appellant in the head, it is of some assistance to review some
    recent cases in which specific intent to injure has been found.

[20]

In
Martin v. Martin
, 2005 NBCA 32, 9 C.B.R. (5th)

235, the
    court was concerned with the liability of joint tortfeasors.  In that case the
    victim Martin was assaulted by one Zoel Martin.  Three of Zoel Martins
    brothers were present at the time of the attack and stood by while their
    brother beat the victim, Martin.  In a civil action against all four Martin
    brothers, the victim Martin recovered damages exceeding $350,000 for injuries
    sustained as a result of the intentional tort of battery.  The three brothers
    of Zoel Martin were found liable as joint tortfeasors. Subsequent to the
    judgment they filed assignments in bankruptcy and were discharged with respect
    to their bankruptcies pursuant to s. 178(2) of the
BIA
and released of
    all debts except those matters referred to in ss. 178(1) [of the Act].

[21]

The
    victim Martin (the plaintiff in the action for damages) applied for a
    declaratory order that the three were not released from liability on the
    judgment despite the discharge in bankruptcy obtained pursuant to the Act.

[22]

The
    court quoted with approval this courts decision in
Simone v. Daley
,
supra
,
    and that  the logical interpretation of ss. 178(1) and (2) is that the latter
    creates a general principle (being a release of all debts) with subsection (1)
    being an exception to the general principle.  And then went on to say at paras.
    11-12:

But even viewed as an exception to the general principle, and
    thus as a legislative provision to be interpreted restrictively, the object and
    clear purpose of the exceptions set out in s. 178 must be respected.  The
    exceptions, as mentioned in
Simone
, are based on an overriding social
    policy that certain claims should be protected against the general discharge
    obtained by a bankrupt because of the class of claimants involved, in the
    present case, the victim of an assault causing bodily harm, and because of the
    reprehensible nature of the bankrupts conduct. As mentioned in
Simone
,
    for example, the types of debt which survive bankruptcy are debts arising out
    of fraud, dishonesty or misconduct while acting in a fiduciary capacity.
    Parliament has clearly made a policy decision that a bankrupt should not be
    allowed to raise the shield of his or her general discharge against judgment
    creditors who hold judgments grounded on such reprehensible conduct.  As the
    court in
Simone
stated, those kinds of conduct are unacceptable to
    society and a bankrupt will not be rewarded for such conduct by a release of
    liability.

In my view, the same can be said with respect to claims or
    awards of damages in respect of bodily harm intentionally inflicted, or sexual
    assault, or wrongful death resulting therefrom mentioned in s. 178 of the Act.
    What must be examined is the type of claimant involved and the conduct of the
    bankrupt which gave rise to the award of damages.

[23]

The
    court concluded that the victim Martin had been singled out for a beating and that
    each respondent was acting in furtherance of a common design.  The court
    stated, at para. 16:

Thus, the decision as to whether the respondents are entitled
    to benefit from the discharge in bankruptcy must be decided on the basis that
    each of the respondents participated in a tort in furtherance of a common
    design to subject Lucien Martin to a beating.

The intention to inflict bodily harm upon the victim
    could be imputed to all of the respondents. The bankrupts were not released
    from liability.

[24]

In
Sangha (Re)
, 2004 BCSC 799, 4 C.B.R. (5th) 275, the bankrupt
    intentionally drove his car into his daughter and her boyfriend. He pleaded
    guilty to aggravated assault.  The court noted that it was clear the bankrupts
    actions were intentional.

[25]

The
    bankrupts automobile insurer, a provincial government insurer, paid the
    daughter and her boyfriend in excess of $300,000 under the provincial statutory
    scheme. The insurer then brought action against the bankrupt to recover the
    money it had paid to the victims on the bankrupts behalf. The insurer alleged
    that the accident was the result of an intentional act of violence and that the
    bankrupt had thereby forfeited his right to indemnity. The insurer succeeded
    and was awarded judgment against the bankrupt in excess of $350,000. Shortly
    thereafter the bankrupt made his assignment in bankruptcy.  The insurer brought
    an application for a declaration pursuant to s. 178(1) that the judgment
    against the bankrupt was not released by the order of discharge. The
    application was granted.

[26]

The
    court found the bankrupts actions were intentional and that they fell within
    the parameters of s. 178(1)(a.1) of the
BIA
.  Master Groves accepted
    the insurers submission that the daughter and her boyfriends claims were
    exactly the kind of claim that Parliament had in mind when creating the
    exceptions to the discharge (at para. 18).

[27]

In
Winfield v. Lomas
, 2008 BCSC 1636, 48 C.B.R. (5th) 37, the bankrupt
    husband assaulted his wife on two occasions, he struck her with both fists,
    shaking her head and neck, pushing her, putting a pillow over her face and
    pushing down. The wife obtained a judgment for damages for assault in the sum
    of $75,000 against the husband.  Immediately thereafter the husband made an
    assignment in bankruptcy.  Dickson J. had no difficulty concluding, at para.
    14, that this intentional assault fell with the s. 178 exemption as it concerns
    an award of damages for intentionally inflicted bodily harm.

[28]

Similarly
    in
Thiessen v. Antifaev
, 2003 BCSC 197, 41 C.B.R. (4th) 266, the
    bankrupt violently assaulted the victim with his motor vehicle and plead guilty
    to assault with a weapon.  Hood J. held that such a claim would not be released
    by a discharge order by virtue of s. 178 of the
BIA
.

[29]

In
Matthew v. Tattrie
,
2009 BCSC 263, the bankrupt struck the victim in the head with a baseball bat
    at a New Years Eve party. He pleaded guilty to aggravated assault. The damages
    awarded at the subsequent civil trial were found to arise from the intentional
    infliction of bodily harm and hence within s. 178(1)(a.1) of the
BIA
.

[30]

Today
    there is only one principle or approach to statutory interpretation.  According
    to the Supreme Court of Canada in
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, at para. 21:the words of an Act are to be read in their
    entire context and in their grammatical and ordinary sense harmoniously with
    the Scheme of the Act, and the intention of Parliament (citation omitted).

[31]

I
    repeat for convenience the relevant section of the
BIA
:

178(1)          An order of discharge does not release the
    bankrupt from

(a.1)   an award of damages by a court in      civil
    proceedings in respect of

(i)      bodily harm intentionally                               inflicted.

[32]

The
    intentional infliction of bodily harm falls within the requirement of the
    provision.  In my view, the requisite intention can be proved directly or it
    can be reasonably inferred from the facts.

[33]

The
    cases in which courts have concluded that s. 178(1)(a.1)(i) does not apply are
    distinguishable from the present appeal.  Those cases were characterized by the
    absence of the intent required by the provision.

[34]

For
    example, in
Floros v. Mueller
, 2003 SKQB 513, 244 Sask.R. 164, a
    judgment creditor had successfully brought a claim for malicious prosecution
    against the bankrupt. The malicious prosecution had caused the judgment
    creditor mental suffering that had manifested itself in physical symptoms.  The
    creditor brought an application for a declaration that his judgment should
    survive the bankruptcy.  Justice Kyle dismissed the application, holding, at
    para. 5, that to fall within s. 178(1)(a.1) the action giving rise to the harm
    must have had the harm itself as its goal.

[35]

Similarly
    in
Marshall (Re)
(2001), 32 C.B.R. (4th) 74 (Ont. S.C.)  the bankrupt
    was sued for defamation. The victim suffered dizziness and vertigo as a result
    of the defamation. Deputy Registrar Stevens held that the court had not found
    that the bankrupt had intentionally inflicted bodily harm on the victim.

[36]

In
    neither
Floros
nor
Marshall
were civil actions for damages
    for assault or for the direct and deliberate (intentional) infliction of bodily
    harm.

[37]

Similarly,
    where a bankrupt is sued for negligence arising out of a motor vehicle
    collision, the resulting judgment for damages in favour of the victim is not
    excluded by the provisions of s. 178(1)(a.1).  See
Bélair v. Gottschlich
,
    2008 ABQB 47, 42 C.B.R. (5th) 280.

[38]

I
    conclude from this review of reported cases that s. 178(1)(a.1)(i) will apply where
    there is direct proof of intentional infliction of harm or where such intent  can
    be reasonably inferred on the facts.

[39]

Without
    the intentional infliction of harm as the basis for the judgment the section
    does not apply, as in
Floros
.

[40]

In
    all the reported cases of assault, the section was found to apply.

[41]

As
    this court noted in
Simone
at p.
    522
:

Paragraph (a) is essentially an administration of justice
    concept. The liabilities caught by it will be in relation to criminal or
quasi
-criminal
    matter. [Emphasis added.]

[42]

The
    respondent here was convicted of aggravated assault and the civil judgment
    against him is based on that same assault.

[43]

In
    my view, it matters not whether there was one punch or ten.  The requirements
    of the statute will be satisfied if the respondent intended to inflict bodily
    harm.  Similarly, it is immaterial whether the bodily injury is inflicted with
    a fist or a weapon, provided there is direct or circumstantial evidence of an
    intention to inflict bodily harm.

[44]

The
    evidence in this case established that the appellant was not involved in the
    fight that broke out between the two groups. He had left the vicinity of the
    fight and called for police assistance on his cell phone. The respondent, who
    was physically much bigger than the appellant, ran up to him at this point, and
    punched him with a closed fist once in the head with sufficient force to cause
    the appellant to lose consciousness and fall to the ground. In my view, it does
    not matter whether the appellants permanent brain damage resulted from the
    punch or from the impact of his head against the curb when he fell unconscious
    to the ground. When one person hits another with a closed fist with sufficient
    force to cause the unsuspecting recipient of the punch to lose consciousness
    and fall to the ground, it cannot be seriously doubted that the person intended
    to inflict bodily harm.

[45]

The
    motion judge erred when she stated, at para. 33 of her endorsement:

Put another way, is there a concerted effort to inflict bodily
    harm in this case to import the abhorrent conduct that the legislation
    intended?

[46]

On
    the plain language of the statute, the appellant is only required to
    demonstrate bodily harm intentionally inflicted  nothing more.  In
    particular, he is not required to prove that the circumstances in which the
    bodily harm was intentionally inflicted were sufficiently offensive to social
    mores to justify withholding the protection of bankruptcy. The statute does not
    require the appellant to demonstrate a concerted effort, show particularly
    abhorrent conduct, or take account of sympathetic factors that might apply to
    the bankrupt.  Had that been the Legislatures intention, the language of the
    statute would have been different.

[47]

Were
    a court required to take account of such factors, the statute would have
    contained language directing such considerations.  The text could have provided,
    for example, bodily harm intentionally inflicted in egregious circumstances
    or bodily harm intentionally inflicted in circumstances that require social
    condemnation or where, in the courts discretion, an order of discharge
    should not be released.  However, there is no such language in the statute.

[48]

There
    is no doubt that the consequences of the events of April 19, 2005 are tragic.
    The respondent is left with a crushing debt, and the appellant is left with
    permanent brain damage.  Nevertheless, it is not for the court to weigh the
    relative blameworthiness of the respondents conduct in relation to the quantum
    of the debt he must bear.

[49]

The
    language of the statute is clear.  Where a civil damage award is in respect of
    bodily harm intentionally inflicted, the bankrupt is not released from such
    judgment by an order of discharge.

[50]

The
    motion judge committed a palpable and overriding error in concluding, on the
    facts of this case, that the respondent did not intentionally injure the
    appellant.

[51]

I
    would allow the appeal, set aside the motion judges order and substitute an
    order granting the appellant the relief sought in paragraphs one through three
    of the Notice of Motion.

[52]

The
    appellant is entitled to his costs in this court fixed in the sum of $7,500
    inclusive of disbursements and HST as well as his costs below.

[53]

If
    counsel are unable to agree on what those costs should be the appellant may
    proceed to have those costs assessed.

Released: October 31, 2013 JMacF.

J.
    MacFarland J.A.

I
    agree David Watt J.A.

I
    agree Gloria Epstein J.A.


