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This was NOT self-defence. Fist Fight Brings Victim $55,000.00 in Damages.

Judge Rules that Defendant did not react in self-defence.

The Toronto Star posted a great article here a few days ago about a Moses Mahilal  who came home to find someone in his mother’s house.  He made a beeline for the kitchen, grabbed a large knife and ran upstairs, where he confronted the intruder hiding behind a door and seriously wounded him. Hours later Mahilal was under arrest and charged with aggravated assault. A preliminary hearing is set for Sept. 11.

I often get this questions from a civil perspective. What if someone breaks into my house and I hurt them, can they sue me? What if someone claims assaults me – how far can I go to defend myself?

The case below is a good example of our Courts’ analysis on how far the argument of self-defence can really take you.

In the case of Ellis v. Fallios-Guthierrez the plaintiff Ellis sued the defendant for battery claiming that he suffered significant physical and emotional injuries in a fist fight.  The fight between the two men took place in the defendant’s basement apartment in the early morning hours of January 20, 2006.

About the plaintiff and defendant

scales of jucticeAt the time of the assault, the plaintiff was 21 years old.  He was living at home with his parents and siblings.  He had a full time job.  He enjoyed sports and socializing.  He essentially lived a life that any man his age would live.  The case tells us that the plaintiff was romantically interested in a young woman named Melissa DeLuca.  They were friends for quite some time and the plaintiff always wanted to take the relationship the next level.  Another interesting thing about the plaintiff was that he a knife collection, together with his brothers.  When he was approximately 12 years old he started collecting different types of knives.  Once in a while he carried one of these knives in his pocket for his protection.  He never threatened or hurt anybody throughout his life and he denied ever taking them out to a movie theatre or a bar.

The defendant was 35 years of age at the time that the events happened.  He lived with his sister in the basement apartment of the home that she owned with her family.  He had a criminal record, specifically, having convictions for impaired driving, assault, mischief and possession of a weapon.

The Facts

The plaintiff and the defendant became friends approximately one year before the event in question.  They lived in the same area.  They began to hang out once in a while and talk about cars, their families, problems and women.  They would often go out for dinner or have drinks together.

At one point the defendant met Ms. DeLuca, the plaintiff’s romantic interest.  Notwithstanding the difference in their age (and the fact that she was the love of his friend’s eye) the defendant began to pursue her romantically.  He sent her flowers, sent her presents and wrote her poetry.  These feelings were not reciprocated by Ms. DeLuca.  He persisted nevertheless but she made it clear on numerous occasions that she wanted him to stop contacting her.  It got to the point where he would attend her place of work.  She had to eventually get a restraining order to prevent the defendant from pursuing her.  The plaintiff was clearly upset and angry with the defendant about his conduct and relation to Ms. DeLuca.  The plaintiff eventually cut off the defendant from friendship and stopped talking to him.  At one point the plaintiff forgave the defendant, but they did not return to their previous level of friendship.

On the evening on January 19, 2006, the plaintiff met up with some friends at a barbeque.  He had a couple of beers.  He eventually went to the Moose and Firkin at approximately 10:00 p.m. they had some more drinks and played pool.  The defendant was there.  The plaintiff and the defendant talked and all seemed well.  The plaintiff and his friends decided to leave the bar to go to another sports bar.  The defendant tagged along.  On the way to the second bar, the parties argued.  The arguments continued when they got out of the truck and were in the parking lot of the bar.  At one point, according to the plaintiff, the defendant stuck a lit cigarette in his mouth, chewed it and then spat in all over the plaintiff’s chest.  A pushing match began but eventually one of the plaintiff’s friends intervened, stopped the altercation and achieved peace between the parties by suggesting that they go have another drink.  The manager of the second bar had witnessed what happened in the parking lot and prohibited everyone from entering.  According to the plaintiff they all agreed that they wanted another drink and the defendant invited them back to his basement apartment.  The plaintiff was still frustrated with the defendant for spitting on him.

What occurred at the plaintiff’s apartment was divergent among the parties.

The plaintiff said that eventually they had a drink, frustrations heightened to new levels and a fight broke out.  The story of how that fight broke out differed between the plaintiff and defendant.  You can read more about the factual circumstances about how the fight broke out by clicking here. What was agreed to was that the plaintiff and the defendant began fight, the defendant got on top of the plaintiff, straddled him with his knees on the ground on each side of the plaintiff.  He repeatedly punched him in his head and face.  The plaintiff eventually threw some punches too but kept taking shots.  At one point the defendant grabbed the plaintiff’s hands and held them down.  He crossed the plaintiff’s arms at the wrist and held them together with his left hand.  The defendant’s evidence was that he was trying to control and subdue the plaintiff, who he believed catalyzed the assault.  The plaintiff began punching up at the defendant in an effort to get him off.  The defendant again tried to grab the plaintiff’s hands and at that point it is alleged that he bit the plaintiff’s right wrist.  The plaintiff attempted to strike the defendant with his left hand and the defendant bit him on his left bicep.  When the plaintiff was trying to get him off, the defendant, surprisingly, bit the plaintiff’s face and tore off a portion of his upper and lower lip on the right side of his mouth.  The defendant’s evidence was that the defendant swallowed a portion of the plaintiff’s lip that he had bitten off.  He testified that he saw the plaintiff with a big smile on his face, reach down towards his pants or pocket.  His first thought was that he was going for his knives.  At that point he tried to head butt the plaintiff but the plaintiff turned and the defendant bit him on the face instead.  At that point everyone got up.  The defendant grabbed the knife and began chasing the plaintiff.  Eventually the plaintiff and his friends got away.

The Court’s Decision – was this self-defence?

The Judge analyzed the tort of battery and also a defence put forth was that the defendant, which he believed that he was using self-defence.  The law states that an individual is legally justified in employing intentional force against another, if such force is used as a preventative measure to defend themselves or their family.  The law tells us that the force used by the defendant must be reasonable and proportionate to the harm that is threatened.  It cannot be excessive.  It must not be used a vehicle for opportunistic revenge or disproportional counter-attack.  What is reasonable depends on the facts of each case.  Assessing the general proportionality of the force used by the defendant, there must be some flexibility or leeway accorded.  Also, in contrast to criminal law, the onus of proving that the use of force by the defendant was in self-defence is cast upon the defendant who invokes the defence.  The defendant must prove not only that the occasion warranted defensive action, but must also show that the force was not excessive.

The Judge had no doubt in concluding that the fight took place between the parties because of comments started by the defendant.  He told the defendant at one point he did not like him or did not like his family. The judge found that it was the plaintiff indeed that challenged the defendant to a fight.  The plaintiff was still angry at the defendant’s conduct in relation to Ms. DeLuca.  The plaintiff challenged the defendant to a fight and affectively provoked a fight that ensued among them.  The Judge also looked at other issues such as the provocative language used by the plaintiff, and that the fight was initially consensual and that the Judge was satisfied that both the plaintiff and the defendant initially embarked upon their physical confrontation by impliedly agreeing to fight.

With respect to the self-defence, the judge did not accept the defendant’s evidence as to his true purpose of embarking on this physical confrontation with the plaintiff.  Essentially the judge found that the defendant agreed to fight the plaintiff because the plaintiff was threatening him.  The plaintiff admitted during his testimony that he was not acting out of fear but acting out of rage due to the words uttered by the defendant.  The defence was rejected given that the defendant did not establish that his conduct was reasonable and proportionate to the harm threatened.  The conduct of the defendant was clearly excessive.  After the plaintiff was under his control, he serious injured the plaintiff physically and psychologically by biting off a portion of his face.


Doctors testified that the plaintiff lost more than 25% of his lip tissue.  Even after cosmetic surgery he had permanent scarring around his lips and did not have a normal facial smile expression.  He suffered decreased sensation and motor function of his lips.  The damage had a big impact on the plaintiff’s life.  He continues to suffer social embarrassment, diminished self-esteem, an undercurrent of despondency, depression and anxiety.  He cut himself off from his friends and family and suffers from social phobia stemming from his embarrassment over his facial scarring.  His psychological impairments greatly hampered his future career goals and social relationships.  The Judge awarded the plaintiff $50,000.00 in compensatory damages for pain and suffering and loss of enjoyment of life, the plaintiff was also awarded $1,000.00 in special damages to pay for additional reconstructive surgery.

Whether or not he can collect the awarded compensation is obviously another story.

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