The Torts Assault and Battery in Canada – The Basics [video]

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This lecture explains the fundamental elements of the torts of assault and battery.  It also clarifies a common misconception about the tort of assault.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

Show Notes:


Lecture Slides:

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Machine Transcription:

Welcome everyone! This is Amer Mushtaq from You Counsel. Today we’ll talk about the torts of assault and battery in Canada and we’ll explain to you the fundamental concepts. These are two separate torts and we have lumped the two together in today’s lecture because there are often misconceptions of about which tort is which one and oftentimes people are confused whether the tort of battery is in fact a tort of assault. So, we’ll explain the two torts together and also explain the differences, so, you are clear about which tort is which and in specific circumstances.

We begin with a disclaimer that this course is not legal advice, if you’ve any specific questions you must contact a lawyer or a paralegal or contact the law side of Upper Canada in Ontario, if you require a referral.

We’ll explain tort of assault and we’ll explain the tort of battery we’lll explain to you the difference between the two torts, if it’s not clear by the time we get there... and then we’ll explain how the damages are awarded with respect to these torts. There are three elements of the tort of assault there has to be an intent to cause a reasonable apprehension... often immediate offense of contact, unconsented contact which results in harm. So, let’s take each element one by one the intention to cause is the intent to commit the act not to commit the harm. So, let’s take an example, if you wave your fist in someone’s face, but you never intend to actually punch that person... that is immaterial. The act of committing to whaling that fist is the intention that that this element is looking for. So not the intention to cause the harm. Now, with respect to second element, which is very important to understand it is a reasonable apprehension, underline the word apprehension…. so, it’s a reasonable apprehension of an immediate harmful or offensive contact. So, keep in mind, that in assault there is no actual contact... no physical touching actually occurs in an assault, it’s simply an apprehension that an offensive contact and unconsented contact may occur and it’s the apprehension of the victim. not the apprehension on part of the perpetrator... not the person who’s committing the assault... so, if the victim believes that a physical contact and offensive contact is likely to occur then that’s the apprehension that is considered. So, an example could be when someone threatens another with a toy gun, the person who is threatening with a toy gun knows that it’s a toy gun and no harm can occur from that, but the person who is the victim if he or she does not know that it’s a toy gun... it’s his or her apprehension that matters with respect to tort of assault.

The third element is harm and the requirement of this third element is if you’re seeking damages... so, if you want damages for that tort of assault, then there has to be some physical, mental, or emotional harm caused by that assault and if you qualify for those damages... if you can prove that there was some sort of harm. With respect to emotional or mental harm, if you have medical evidence establish that, that’s fine... but, you know, the harm that mental emotional harm could range... could occur in a variety of ways you may you may start living in fear, you may have sleeplessness, you may have a stomach disorder, or other things that may occur and if you can show that or establish that to a court, you may be able to get damages. There are other damages that you can get as well, which we’ll talk about in the damages section.

Now, we have given you some examples of assault but, you know, waving a fist in someone’s face where the other person feels that you may come in contact with that person that unconsented contact, offensive contact... that will meet the elements of the tort of assault. For example, another example could be blocking an exit... if you’re standing in the door, in such a way, that the person, the other person believes or apprehends that they will not be able to leave the room and if they try to do that you will come in physical contact with that person and that will be sufficient to show that an assault occurred.

Now, tort of battery the elements are similar but there’s a major difference that we’ll explain... first of all, there has to be an intent, then there must be a contact without consent with another person, and there must be some and ensuing harm for you to get damages. So, again, the intent is simply to commit the act not necessarily to cause the harm or the injury so it’s the act that matters of committing, not necessarily the intention... the intention is not necessarily that you were intending to actually cause harm. So, let’s say if you touched some person in their face, it’s not the intention that is being question... it’s really that you intended to touch the person. The intention that is being questioned is not that, with that touching, you know, you intended to go break someone’s tooth or something like that, so, it’s the intention of committing the act.

Now, with respect to the second element in battery, there is actually a contact which is without consent. The contact could be of two kinds could be a direct contact, could be an indirect contact. So, an example of direct contact is really punching someone in the face, so, that’s a very direct contact. Your face and the person’s face that’s a direct conduct, that’s battery. An indirect contact, is for example, hitting someone with a car, throwing a stone at someone... so those are examples of an indirect contact... or even touching a person’s clothing and that could be considered an indirect contact and could still amount to battery. With respect to harm again, the harm could be physical, could be mental, could be emotional, and you can demonstrate that a trial and get damages.

So, essentially, the difference between assault and battery is contact. In assault, there is actually no physical contact between the parties and in battery, there has to be some sort of contact between the parties. So, that is the fundamental difference between the two... with respect to damages, the damages the court will decide damages based on the seriousness of the harm, whether it’s physical emotional or mental. The court can award nominal damages, court can award compensatory damages, and compensentory damages are really to compensate the harm. In other words, if you have suffered a broken leg, then whatever the cost of having the medical treatment done or any other damages flowing from that... for example, if you’re not able to earn income during that time, while you are recovering from that injury, so, those will will be sort of compensatory damages... and then the court may award punitive damages which are based upon really not based upon the harm but essentially sending out a message that this kind of conduct or behavior is unacceptable and so the court can award punitive damages. So, hopefully, you get a good sense of at least the fundamental concepts of what is assault and battery in civil cases. This lecture is not about criminal assault or battery... it is simply about the civil matters, the definitions of assault and battery, and in criminal matters can be found in the criminal code... and so obviously different slightly different principles apply... even though the concept is fundamentally the same but of course you’re not seeking monetary damages in a criminal matter, so it’s likely different. If you have any questions or comments please feel free to contact us and thank you for watching!

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