Assault & Battery

While many people think of assault as involving physical contact, the tort of assault actually deals with instances where there is no physical contact. Rather, there must be an intent to cause a reasonable apprehension of immediate or offensive contact. If the victim can establish that the assault caused harm - physical, mental, emotional - they may be entitled to damages.

It is important to understand that it is the action of the perpetrator that must be intentional - the perpetrator need not intend the harm. For example, if an individual raises their fist as if to punch someone and that person stumbles and falls because of the perceived threat, a claim could be made for the tort of assault. It doesn't matter whether the person raising their fist intended to harm the other individual - provided that the act of raising their fist was intentional.

Some common examples of an assault include threatening actions such as waving a fist or weapon, blocking a doorway, or aggressively lunging towards someone.

The tort of battery involves instances where the perpetrator intentionally makes physical contact with the victim without their consent. The contact can be direct or indirect (using a weapon, object, vehicle etc.). The perpetrator doesn't necessarily need to intend harm (physical, mental, emotional)- intentional contact without consent is what is required for this tort.

In an Ontario Court of Appeal case an employee sued her supervisor and employer for assault and battery, intentional and negligent infliction of emotional distress, and constructive dismissal.

The plaintiff was an account manager and described by others as nervous and sensitive. The Court described her supervisor as a "critical, demanding, loud and aggressive manager." At the time of the assault and battery incident complaint, the plaintiff's supervisor had given her a negative performance review and was in discussions with the Human Resources department about developing a Performance Improvement Plan (PIP).

During this same time the plaintiff's supervisor became angry with her for failing to arrange a meeting with a client, yelled and swore at her, and criticized her for failing to do her job. When the plaintiff attempted to show him her Blackberry to establish that she had tried to contact the client, the supervisor pushed her and told her to get away from him. She was pushed about a foot backwards, stopping up against a filing cabinet.

There was a number of meetings and communications that followed that are not material to the claim for assault and battery. The plaintiff ultimately took stress leave and did not return to work. She later sued her supervisor and her employer.

In response to the assault and battery claim, the plaintiff's supervisor claimed he pushed the plaintiff in a defensive reaction and was provoked by the plaintiff brandishing her Blackberry in his face. The trial judge rejected his claim and awarded her damages for battery and assault, together with damages for infliction of negligent and intentional infliction of mental suffering. On appeal, the damages for the assault and battery were broken out and fixed at $15,000. The supervisor and the employer were held jointly and severally liable for these damages.