Does a "kick in the butt" excuse a punch in the mouth?
That was the question facing the Court in the recent case of Li
v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.).
Peng Li and Winston Furguson worked in the shipping and
receiving department of a furniture company. Li and Furguson's
coexistence was initially uneventful; however, their relationship
had begun to disintegrate following allegations by Li that Furguson
was stealing from the company.
On April 19, 2011, things between Li and Furguson reached a
boiling point. After searching for Furguson throughout the
warehouse, Li finally found his target and confronted him. What
happened next was a source of disagreement between the parties,
although the judge adopted the following facts. Li began speaking
very closely to Furguson; so close that spit was transferred to
Furguson's face, albeit unintentionally. As Furguson tried to
break free, Li kicked Furguson in the "butt" with his
steel-toe boots. Furguson then wheeled and punched Li twice –
one blow was inconsequential, the other was not as it resulted in
Li incurring over $7,000.00 in costs for restorative dental
At trial, Li argued that he was entitled to damages from
Furguson for the tort of battery. However, in the judge's view,
Li's actions amounted to implied consent to the battery:
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 with the scope
of what they had implicitly consented to.
In addition, the judge held that Li had provoked Furguson by
kicking him. Although provocation was not a complete answer to
Li's claim of battery, it nonetheless operated to mitigate the
damages that Li had in turn claimed.
In light of these facts, the judge dismissed Li's claim in
It is important to note that while Li had originally brought an
action against his employer in which he made a number of claims,
including one for "wrongful dismissal", this action was
discontinued before trial. Regardless, apart from the civil
liability above, the altercation between Li and Furguson would
certainly attract the attention of any employer's workplace
violence policy and potentially lead to discipline.
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