Court headnote

Non-Marine Underwriters, Lloyd's of London v. Scalera
Collection
Supreme Court Judgments
Date
2000-05-03
Neutral citation
2000 SCC 24
Report
[2000] 1 SCR 551
Case number
26695
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Insurance
Torts
Notes
SCC Case Information: 26695
Decision Content
Non-Marine Underwriters, Lloyd’s of London v. Scalera, [2000] 1 S.C.R. 551
Vincent Scalera Appellant
v.
M. J. Oppenheim in his quality as Attorney in Canada for the Non-Marine Underwriters, members of Lloyd’s of London Respondent
Indexed as: Non-Marine Underwriters, Lloyd’s of London v. Scalera
Neutral citation: 2000 SCC 24.
File No.: 26695.
1999: October 14; 2000: May 3.
Present: L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the british columbia court of appeal
Insurance -- Homeowner’s insurance -- Insurer’s duty to defend -- Plaintiff bringing action against insured alleging battery, negligent battery, negligent misrepresentation and breach of fiduciary duty -- Policy containing exclusion for intentional acts of insured -- Whether insurer has a duty to defend.
Torts -- Intentional torts -- Battery -- Evidence -- Burden of proof -- Consent -- Whether plaintiff must prove lack of consent.
In 1996, a plaintiff brought a civil action against five B.C. Transit bus drivers, including the appellant, arising out of various alleged sexual assaults between 1988 and 1992. The allegations included battery, negligent battery, negligent misrepresentation and breach of fiduciary duty. The appellant owned a homeowner’s insurance policy issued by the respondent insurer. The policy provided coverage for “compensatory damage because of bodily injury” arising from the insured’s personal actions, excepting “bodily injury or property damage caused by any intentional or criminal act”. The British Columbia Supreme Court dismissed the respondent’s request for a declaration that it not be required to defend the appellant against the plaintiff’s claims. The Court of Appeal allowed the respondent’s appeal.
Held: The appeal should be dismissed.
Per L’Heureux-Dubé, Gonthier, McLachlin and Binnie JJ.: The plaintiff’s claims could not trigger coverage under the policy. Accordingly, the respondent has no duty to defend. While there is substantial agreement with Iacobucci J.’s reasoning, his approach to the tort of battery in the sexual context is disagreed with. In the tort of sexual battery, consent operates as a defence and must be proven by the defendant. The plaintiff is not required to prove that the defendant either knew that she was not consenting or that a reasonable person in the defendant’s position would have known that she was not consenting.
The traditional rights-based approach to the law of battery that is now the law of Canada should not be set aside lightly. The tort of battery is a form of trespass against the person and is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems not from fault, but from violation of the right to personal autonomy. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, or raise some defence, such as the defence of consent. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff’s claim will fail. But it is not up to the plaintiff to prove that, in addition to directly interfering with her body, the defendant was also at fault. Unlike negligence, where the requirement of fault can be justified because the tortious sequence may be complicated, trespass to the person is confined to direct interferences. Where the trespass causes actual injury to the plaintiff, there is a direct connection between the defendant’s action and the plaintiff’s injury. The traditional approach to trespass is also practical, since, if the defendant is in a position to say what happened, it is both sensible and just to give him an incentive to do so by putting the burden of explanation on him. In addition, the close causal relationship between the defendant’s conduct and the violation of the plaintiff’s bodily integrity, the identification of the loss with the plaintiff’s personality and freedom, the infliction of the loss in isolated (as opposed to systemic) circumstances, and the perception of the defendant’s conduct as anti-social all support the legal position that once the direct interference with the plaintiff’s person is shown, the defendant may fairly be called upon to explain his behaviour if indeed it was innocent.
Therefore, while a plaintiff generally must prove all elements of the tort she alleges, the fact that contact must be harmful or offensive to constitute battery does not mean that the plaintiff must prove that she did not consent and that the defendant actually or constructively knew she did not consent to sexual contact. When it is accepted that the foundation of the tort of battery is a violation of personal autonomy, all contact outside the exceptional category of contact that is generally accepted or expected in the course of ordinary life is prima facie offensive. Since sexual contact is not generally accepted or expected in the course of ordinary activities, the plaintiff may establish an action for sexual battery without negativing actual or constructive consent. Nothing special about sexual battery justifies requiring the plaintiff to prove that she did not consent or that the defendant either knew or ought to have known that she did not consent.
The exclusion clause in the policy must be interpreted as requiring an intent to injure. Where there is an allegation of sexual battery, courts will conclude as a matter of legal inference that the defendant intended harm for the purpose of construing exemptions of insurance coverage for intentional injury.
It is unnecessary to comment on the relationship between battery and negligence.
Per Iacobucci, Major and Bastarache JJ.: The respondent has no duty to defend the appellant because the plaintiff’s statement of claim makes no allegation that could potentially give rise to indemnity under the insurance contract.
An insurer only has a duty to defend when a lawsuit against the insured raises a claim that could potentially fall within coverage. The insurer’s duty to defend is related to its duty to indemnify. Therefore if an insurance policy, like the one in this case, excludes liability arising from intentionally caused injuries, there will be no duty to defend actions based on such injuries.
A three-step process must be applied to determine whether a claim could trigger indemnity. First, a court should determine which of the plaintiff’s legal allegations are properly pleaded. In doing so, courts are not bound by the legal labels chosen by the plaintiff. A plaintiff cannot change an intentional tort into a negligent one simply by choice of words, or vice versa. Therefore, when ascertaining the scope of the duty to defend, a court must look beyond the choice of labels, and examine the substance of the allegations contained in the pleadings. This does not involve deciding whether the claims have any merit; all a court must do is decide, based on the pleadings, the true nature of the claims. At the second stage, the court should determine if any claims are entirely derivative in nature. The duty to defend will not be triggered simply because a claim can be cast in terms of both negligence and intentional tort. A claim for negligence will not be derivative if the underlying elements of the negligence and of the intentional tort are sufficiently disparate to render the two claims unrelated. However, if both the negligence and intentional tort claims arise from the same actions and cause the same harm, the negligence claim is derivative, and it will be subsumed into the intentional tort for the purposes of the exclusion clause analysis. If neither claim is derivative, the claim of negligence will survive and the duty to defend will apply. Finally, at the third stage, the court must decide whether any of the properly pleaded, non-derivative claims could potentially trigger the insurer’s duty to defend. This appeal’s holding with respect to the proper characterization of a plaintiff’s tort allegations should not be taken to affect any areas of law outside the insurance context presented by this appeal.
In this case, the exclusion clause must be read to require that the injuries be intentionally caused, in that they must be the product of an intentional tort and not of negligence. The plaintiff has stated three possible claims arising out of the alleged sexual assaults: sexual battery, negligent battery, and breach of fiduciary duty. Sexual battery requires the plaintiff to prove that a reasonable person should have known that the plaintiff did not validly consent to the sexual activity in question. Since non‑consensual sexual activity is inherently harmful, any injuries resulting therefrom are intentionally caused, and the exclusion clause would apply. If a reasonable person would not have known that the plaintiff did not validly consent, the plaintiff’s claim will fail, and there will be no duty to indemnify or duty to defend. The plaintiff’s claims of negligence and breach of fiduciary duty are either not properly pleaded or are subsumed into the sexual battery because these claims are based on the same facts and resulted in the same harm. Therefore the exclusion clause applies equally to them. There being no potentially indemnifiable claim, the respondent has no duty to defend.
Cases Cited
By McLachlin J.
Referred to: Collins v. Wilcock, [1984] 3 All E.R. 374; Cook v. Lewis, [1951] S.C.R. 830; Larin v. Goshen (1974), 56 D.L.R. (3d) 719; Walmsley v. Humenick, [1954] 2 D.L.R. 232; Tillander v. Gosselin (1966), 60 D.L.R. (2d) 18, aff’d (1967), 61 D.L.R. (2d) 192; Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319; Ellison v. Rogers (1967), 67 D.L.R. (2d) 21; Reibl v. Hughes, [1980] 2 S.C.R. 880; Norberg v. Wynrib, [1992] 2 S.C.R. 226; Scott v. Shepherd (1773), 2 Black. W. 892, 96 E.R. 525; Leame v. Bray (1803), 3 East 593, 102 E.R. 724; Fowler v. Lanning, [1959] 1 Q.B. 426; Letang v. Cooper, [1965] 1 Q.B. 232; Bell Canada v. COPE (Sarnia) Ltd. (1980), 11 C.C.L.T. 170, aff’d (1980), 31 O.R. (2d) 571; Cole v. Turner (1704), 6 Mod. 149, 87 E.R. 907; Stewart v. Stonehouse, [1926] 2 D.L.R. 683; In re F., [1990] 2 A.C. 1; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Freeman v. Home Office, [1983] 3 All E.R. 589, aff’d [1984] 1 All E.R. 1036; H. v. R., [1996] 1 N.Z.L.R. 299; Pursell v. Horn (1838), 8 AD. & E. 602, 112 E.R. 966; Green v. Goddard (1704), 2 Salkeld 641, 91 E.R. 540; Humphries v. Connor (1864), 17 Ir. Com. L. Rep. 1; Forde v. Skinner (1830), 4 Car. & P. 239, 172 E.R. 687; Schweizer v. Central Hospital (1974), 53 D.L.R. (3d) 494; Allan v. New Mount Sinai Hospital (1980), 109 D.L.R. (3d) 634, rev’d on other grounds (1981), 33 O.R. (2d) 603; Brushett v. Cowan (1990), 3 C.C.L.T. (2d) 195; O’Bonsawin v. Paradis (1993), 15 C.C.L.T. (2d) 188; State Farm Fire and Casualty Co. v. Williams, 355 N.W.2d 421 (1984).
By Iacobucci J.
Referred to: Sansalone v. Wawanesa Mutual Insurance Co., [2000] 1 S.C.R. 627, 2000 SCC 25; Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; Wigle v. Allstate Insurance Co. of Canada (1984), 49 O.R. (2d) 101; Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; Indemnity Insurance Co. of North America v. Excel Cleaning Service, [1954] S.C.R. 169; Parsons v. Standard Fire Insurance Co. (1880), 5 S.C.R. 233; Scott v. Wawanesa Mutual Insurance Co., [1989] 1 S.C.R. 1445; Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801; Conner v. Transamerica Insurance Co., 496 P.2d 770 (1972); Modern Livestock Ltd. v. Kansa General Insurance Co. (1993), 11 Alta. L.R. (3d) 355; B.P. Canada Inc. v. Comco Service Station Construction & Maintenance Ltd. (1990), 73 O.R. (2d) 317; Kates v. Hall, [1990] 5 W.W.R. 569; Colorado Farm Bureau Mutual Insurance Co. v. Snowbarger, 934 P.2d 909 (1997); Aerojet-General Corp. v. Transport Indemnity Co., 948 P.2d 909 (1997); Lawyers Title Insurance Corp. v. Knopf, 674 A.2d 65 (1996); Allstate Insurance Co. v. Patterson, 904 F. Supp. 1270 (1995); Allstate Insurance Co. v. Brown, 834 F. Supp. 854 (1993); Gray v. Zurich Insurance Co., 419 P.2d 168 (1966); Bacon v. McBride (1984), 6 D.L.R. (4th) 96; Peerless Insurance Co. v. Viegas, 667 A.2d 785 (1995); Houg v. State Farm Fire and Casualty Co., 481 N.W.2d 393 (1992); Linebaugh v. Berdish, 376 N.W.2d 400 (1985); Horace Mann Insurance Co. v. Leeber, 376 S.E.2d 581 (1988); Allstate Insurance Co. v. Troelstrup, 789 P.2d 415 (1990); Nationwide Mutual Fire Insurance Co. v. Lajoie, 661 A.2d 85 (1995); M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Canadian Indemnity Co. v. Walkem Machinery & Equipment Ltd., [1976] 1 S.C.R. 309; Wilson v. Pringle, [1986] 2 All E.R. 440; Spivey v. Battaglia, 258 So.2d 815 (1972); Bettel v. Yim (1978), 20 O.R. (2d) 617; Long v. Gardner (1983), 144 D.L.R. (3d) 73; Veinot v. Veinot (1977), 81 D.L.R. (3d) 549; Rumsey v. The Queen (1984), 12 D.L.R. (4th) 44; Holt v. Verbruggen (1981), 20 C.C.L.T. 29; Garratt v. Dailey, 279 P.2d 1091 (1955); Vosburg v. Putney, 50 N.W. 403 (1891); Reibl v. Hughes, [1980] 2 S.C.R. 880; Clayton v. New Dreamland Roller Skating Rink, Inc., 82 A.2d 458 (1951); Kirkpatrick v. Crutchfield, 100 S.E. 602 (1919); Cook v. Lewis, [1951] S.C.R. 830; Norberg v. Wynrib, [1992] 2 S.C.R. 226; Hambley v. Shepley (1967), 63 D.L.R. (2d) 94; Mandel v. The Permanent (1985), 7 O.A.C. 365; Wiffin v. Kincard (1807), 2 Bos. & Pul. (N.R.) 471, 127 E.R. 713; Coward v. Baddeley (1859), 4 H. & N. 478, 157 E.R. 927; Freeman v. Home Office, [1983] 3 All E.R. 589, aff’d [1984] 1 All E.R. 1036; H. v. R., [1996] 1 N.Z.L.R. 299; State Farm Fire and Casualty Co. v. Williams, 355 N.W.2d 421 (1984); R. v. Mills, [1999] 3 S.C.R. 668; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Ewanchuck, [1999] 1 S.C.R. 330; M. (M.) v. K. (K.) (1989), 61 D.L.R. (4th) 392; Harder v. Brown (1989), 50 C.C.L.T. 85; Lyth v. Dagg (1988), 46 C.C.L.T. 25; R. v. McCraw, [1991] 3 S.C.R. 72; CNA Insurance Co. v. McGinnis, 666 S.W.2d 689 (1984); B.B. v. Continental Insurance Co., 8 F.3d 1288 (1993); J.C. Penney Casualty Insurance Co. v. M.K., 804 P.2d 689 (1991); State Farm Fire & Casualty Co. v. D.T.S., 867 S.W.2d 642 (1993); American States Insurance Co. v. Borbor, 826 F.2d 888 (1987); Troelstrup v. District Court, 712 P.2d 1010 (1986); Rodriguez v. Williams, 729 P.2d 627 (1986); Horace Mann Insurance Co. v. Independent School District No. 656, 355 N.W.2d 413 (1984); Altena v. United Fire and Casualty Co., 422 N.W.2d 485 (1988); Wilkieson-Valiente v. Wilkieson, [1996] I.L.R. ¶1-3551; Ellison v. Rogers (1967), 67 D.L.R. (2d) 21; Hatton v. Webb (1977), 81 D.L.R. (3d) 377; Co-operative Fire & Casualty Co. v. Saindon, [1976] 1 S.C.R. 735; Newcastle (Town) v. Mattatall (1988), 52 D.L.R. (4th) 356; Long Lake School Division No. 30 of Saskatchewan Board of Education v. Schatz (1986), 18 C.C.L.I. 232; Devlin v. Co-operative Fire & Casualty Co. (1978), 90 D.L.R. (3d) 444; Pistolesi v. Nationwide Mutual Fire Insurance Co., 644 N.Y.S.2d 819 (1996); M’Alister v. Stevenson, [1932] A.C. 562; Frame v. Smith, [1987] 2 S.C.R. 99; Rodriguez by Brennan v. Williams, 713 P.2d 135 (1986).
Statutes and Regulations Cited
Alberta Evidence Act, R.S.A. 1980, c. A-21, s. 12.
Criminal Code, R.S.C., 1985, c. C-46, s. 273.2 (b) [ad. 1992, c. 38, s. 1].
Evidence Act, R.S.N. 1990, c. E-16, s. 16.
Evidence Act, R.S.N.S. 1989, c. 154, s. 45.
Evidence Act, R.S.N.W.T. 1988, c. E-8, s. 17.
Evidence Act, R.S.O. 1990, c. E.23, s. 13.
Evidence Act, R.S.P.E.I. 1988, c. E-11, s. 11.
Evidence Act, R.S.Y. 1986, c. 57, s. 14.
Insurance Act, R.S.B.C. 1996, c. 226, s. 28.
Authors Cited
American Law Institute. Restatement of the Law, Second, Torts 2d, vol. 1. St. Paul, Minn.: American Law Institute Publishers, 1965.
Atrens, Jerome J. “International Interference with the Person”. In Allen M. Linden, ed., Studies in Canadian Tort Law. Toronto: Butterworths, 1968.
Bell, Robert. “Sexual Abuse and Institutions: Insurance Issues” (1996), 6 C.I.L.R. 53.
Brown, Craig. Insurance Law in Canada, 3rd Student ed. Scarborough: Carswell, 1997.
Brown, Craig. Insurance Law in Canada, vol. 1. Scarborough: Carswell, 1999 (loose-leaf).
Brown, Craig, and Julio Menezes. Insurance Law in Canada, 2nd ed. Scarborough: Carswell, 1991.
Canada. Federal/Provincial/Territorial Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System. Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action. Ottawa: The Group, 1992.
Feldthusen, Bruce. “The Canadian Experiment with the Civil Action for Sexual Battery”. In Nicholas J. Mullany, ed., Torts in the Nineties. Sydney: LBC Information Services, 1997, 274.
Feldthusen, Bruce. “The Civil Action for Sexual Battery: Therapeutic Jurisprudence?” (1993), 25 Ottawa L. Rev. 203.
Fischer, James M. “Broadening the Insurer’s Duty to Defend: How Gray v. Zurich Insurance Co. Transformed Liability Insurance Into Litigation Insurance” (1991), 25 U.C. Davis L. Rev. 141.
Fleming, John G. The Law of Torts, 9th ed. Sydney: Law Book Co., 1998.
Florig, David S. “Insurance Coverage for Sexual Abuse or Molestation” (1995), 30 Torts & Ins. L.J. 699.
Fridman, Gerald Henry Louis. The Law of Torts in Canada, vol. 1. Toronto: Carswell, 1989.
Klar, Lewis. Tort Law, 2nd ed. Scarborough: Carswell, 1996.
Linden, Allen M. Canadian Tort Law, 6th ed. Toronto: Butterworths, 1997.
Linden, Allen M., and Lewis N. Klar. Canadian Tort Law: Cases, Notes and Materials, 10th ed. Toronto: Butterworths, 1994.
McCormick on Evidence, vol. 2, 5th ed. By John W. Strong, General Editor. St. Paul, Minn.: West Group, 1999.
Pryor, Ellen S. “The Stories We Tell: Intentional Harm and the Quest for Insurance Funding” (1997), 75 Tex. L. Rev. 1721.
Pryor, Ellen S. “The Tort Liability Regime and the Duty to Defend” (1999), 58 Md. L. Rev. 1.
Reynolds, Osborne M. “Tortious Battery: Is ‘I Didn’t Mean Any Harm’ Relevant?” (1984), 37 Okla. L. Rev. 717.
Salmond and Heuston on the Law of Torts, 21st ed. By R. F. V. Heuston and R. A. Buckley. London: Sweet & Maxwell, 1996.
Sharp, Frederick L. “Negligent Trespass in Canada: A Persistent Source of Embarrassment” (1977-78), 1 Advocates’ Q. 311.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Street on Torts, 10th ed. By Margaret Brazier and John Murphy. London: Butterworths, 1999.
Sullivan, Ruth. “Trespass to the Person in Canada: A Defence of the Traditional Approach” (1987), 19 Ottawa L. Rev. 533.
Vail, Brian. “‘My Mistake, Your Problem’: The Duty to Defend Liability Claims in Canada” (1996), 6 C.I.L.R. 201.
APPEAL from a judgment of the British Columbia Court of Appeal (1998), 106 B.C.A.C. 268, 172 W.A.C. 268, 48 B.C.L.R. (3d) 143, 158 D.L.R. (4th) 385, 2 C.C.L.I. (3d) 1, [1998] I.L.R. ¶1-3568, [1998] 9 W.W.R. 209, [1998] B.C.J. No. 834 (QL), allowing an appeal from the British Columbia Supreme Court (1997), 47 B.C.L.R. (3d) 187, 49 C.C.L.I. (2d) 305, [1998] I.L.R. ¶1-3519, [1997] B.C.J. No. 2481 (QL). Appeal dismissed.
Bruce P. Cran and Murray G. Madryga, for the appellant.
Eric A. Dolden and Karen F. W. Liang, for the respondent.
The judgment of L’Heureux-Dubé, Gonthier, McLachlin and Binnie JJ. was delivered by
1 McLachlin J. -- I have read the reasons of Iacobucci J. and agree with the result he reaches and with much of his reasoning. I would respectfully disagree, however, from the view that in the tort of sexual battery, the onus rests on the plaintiff to prove that the defendant either knew that she was not consenting or that a reasonable person in the defendant’s position would have known that she was not consenting.
2 As Goff L.J. (as he then was) stated in Collins v. Wilcock, [1984] 3 All E.R. 374 (Q.B.), at p. 378, “[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate”. The law of battery protects this inviolability, and it is for those who violate the physical integrity of others to justify their actions. Accordingly, in my respectful view, the plaintiff who alleges sexual battery makes her case by tendering evidence of force applied directly to her. “Force”, in the context of an allegation of sexual battery, simply refers to physical contact of a sexual nature, and is neutral in the sense of not necessarily connoting a lack of consent. If the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented. My reasons for so concluding are the following.
I. Analysis
A. The Canadian Law of Battery Places the Onus of Proving Consent on the Defendant
3 As Iacobucci J. states (at para. 103) “for traditional batteries, consent is conceived of as an affirmative defence that must be raised by the defendant”.
4 This Court has long affirmed this proposition. In Cook v. Lewis, [1951] S.C.R. 830, at p. 839, Cartwright J. stated that “where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prove ‘that such trespass was utterly without his fault’.”
5 In Larin v. Goshen (1974), 56 D.L.R. (3d) 719 (N.S.C.A.), at p. 722, Macdonald J.A., citing numerous authorities, stated: “The law in Canada at present is this: In an action for damages in trespass where the plaintiff proves that he has been injured by the direct act of the defendant, the onus falls upon the defendant to prove that his act was both unintentional and without negligence on his part, in order for him to be entitled to a dismissal of the action.” (Emphasis in original.) See also Walmsley v. Humenick, [1954] 2 D.L.R. 232 (B.C.S.C.); Tillander v. Gosselin (1966), 60 D.L.R. (2d) 18 (Ont. H.C.), aff’d (1967), 61 D.L.R. (2d) 192 (Ont. C.A.); Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319 (Man. C.A.), and Ellison v. Rogers (1967), 67 D.L.R. (2d) 21 (Ont. H.C.). A number of academic commentators also agree that the burden of proving consent lies on the defence: see J. G. Fleming, The Law of Torts (9th ed. 1998), at p. 86; A. M. Linden and L. N. Klar, Canadian Tort Law: Cases, Notes and Materials (10th ed. 1994), at p. 102, note 2; and G. H. L. Fridman, The Law of Torts in Canada (1989), vol. 1, at p. 63.
6 This proposition holds for particular forms of battery like medical battery and sexual battery. In Reibl v. Hughes, [1980] 2 S.C.R. 880, at p. 890, dealing with medical battery, Laskin C.J. stated for the Court that:
The tort [of battery] is an intentional one, consisting of an unprivileged and unconsented to invasion of one’s bodily security. True enough, it has some advantages for a plaintiff over an action of negligence since it does not require proof of causation and it casts upon the defendant the burden of proving consent to what was done.
And in Norberg v. Wynrib, [1992] 2 S.C.R. 226, dealing with sexual battery, La Forest J., for the plurality, stated, at p. 246, that “[a] battery is the intentional infliction of unlawful force on another person. Consent, express or implied, is a defence to battery.” None of the members of the Court participating in the decision dissented from the view that the burden lies on the defendant to prove consent.
7 The question, then, is whether we should in this case depart from the settled rule that requires the plaintiff in a battery case to show only contact through a direct, intentional act of the defendant and places the onus on the defendant of showing consent or lawful excuse, including actual or constructive consent. For the reasons that follow, I am not convinced that we should alter the established rule.
A. The Traditional Approach to Trespass is Justified as a Rights-Based Tort
8 The traditional rule, as noted, is that the plaintiff in an action for trespass to the person (which includes battery) succeeds if she can prove direct interference with her person. Interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant: see Scott v. Shepherd (1773), 2 Black. W. 892, 96 E.R. 525 (K.B.); Leame v. Bray (1803), 3 East 593, 102 E.R. 724 (K.B.). The burden is then on the defendant to allege and prove his defence. Consent is one such defence.
9 Some critics have suggested that this rule should be altered. They suggest that tort must always be fault-based. This means the plaintiff must prove fault as part of her case, by showing either: (1) that the defendant intended to harm; (2) that the defendant failed to take reasonable care or was “negligent”; or (3) that the tort is one of strict liability, i.e. legally presumed fault. On a practical level, some, like F. L. Sharp, argue that the traditional approach confers an unfair advantage on the plaintiff by easing her burden of proof: “Negligent Trespass in Canada: A Persistent Source of Embarrassment” (1977-78), 1 Advocates’ Q. 311, at pp. 312-14 and 326. It is suggested that the law has moved in this direction in England: see Fowler v. Lanning, [1959] 1 Q.B. 426, approved in obiter in Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.). In the spirit of these comments, my colleague Iacobucci J. proposes to alter the traditional rule, at least for sexual battery, to require the plaintiff to prove fault, i.e. that the defendant either knew or ought to have known that she was not consenting.
10 I do not agree with these criticisms of the traditional rule. In my view the law of battery is based on protecting individuals’ right to personal autonomy. To base the law of battery purely on the principle of fault is to subordinate the plaintiff’s right to protection from invasions of her physical integrity to the defendant’s freedom to act: see R. Sullivan, “Trespass to the Person in Canada: A Defence of the Traditional Approach” (1987), 19 Ottawa L. Rev. 533, at p. 546. Although I do not necessarily accept all of Sullivan’s contentions, I agree with her characterization, at p. 551, of trespass to the person as a “violation of the plaintiff’s right to exclusive control of his person”. This right is not absolute, because a defendant who violates this right can nevertheless exonerate himself by proving a lack of intention or negligence: Cook, supra, at p. 839, per Cartwright J. Although liability in battery is based not on the defendant’s fault, but on the violation of the plaintiff’s right, the traditional approach will not impose liability without fault because the violation of another person’s right can be considered a form of fault. Basing the law of battery on protecting the plaintiff’s physical autonomy helps explain why the plaintiff in an action for battery need prove only a direct interference, at which point the onus shifts to the person who is alleged to have violated the right to justify the intrusion, excuse it or raise some other defence.
11 I agree with Sullivan’s view that the traditional approach to trespass to the person remains appropriate in Canada’s modern context for a number of reasons. First, unlike negligence, where the requirement of fault can be justified because the tortious sequence may be complicated, trespass to the person is confined to direct interferences. Where the trespass causes actual injury to the plaintiff, there is a direct connection between the defendant’s action and the plaintiff’s injury. As Sullivan notes, at p. 562:
. . . where the injury complained of is an immediate consequence of the defendant’s act, it is intuitively sound to require compensation from the defendant unless he offers a defence. In cases of direct interference, the relationship between the defendant’s will, his decision to act, and the injury to the plaintiff is both simple and clear; there are no competing causal factors to obscure the defendant’s role or dilute his factual responsibility. The question of his moral and legal responsibility is thus posed with unusual sharpness: as between the defendant who caused the injury and the plaintiff who received it, other things being equal, who shall pay? . . . Once the plaintiff has shown that his right to personal autonomy has been violated by the defendant, prima facie the defendant should pay. [Emphasis added.]
12 Another factor supporting retaining the traditional approach to trespass and battery is that it makes practical sense. Linden J. in Bell Canada v. COPE (Sarnia) Ltd. (1980), 11 C.C.L.T. 170 (Ont. H.C.), aff’d (1980), 31 O.R. (2d) 571 (C.A.), after noting the attacks on the Canadian law of trespass, writes (at p. 180):
The trespass action still performs several functions, one of its most important being a mechanism for shifting the onus of proof of whether there has been intentional or negligent wrongdoing to the defendant, rather than requiring the plaintiff to prove fault. The trespass action, though perhaps somewhat anomalous, may thus help to smoke out evidence possessed by defendants, who cause direct injuries to plaintiffs, which should assist Courts to obtain a fuller picture of the facts, a most worthwhile objective. [Emphasis added.]
13 In cases of direct interference, the defendant is likely to know how and why the interference occurred. I agree with Sullivan’s suggestion, at p. 563, that “if the defendant is in a position to say what happened, it is both sensible and just to give him an incentive to do so by putting the burden of explanation on him”.
14 Finally, I share Sullivan’s concern with the fact that cases of direct interference with the person tend to produce high “demoralization costs” (p. 563). Victims and those who identify with them tend to feel resentment and insecurity if the wrong is not compensated. The close causal relationship between the defendant’s conduct and the violation of the plaintiff’s bodily integrity, the identification of the loss with the plaintiff’s personality and freedom, the infliction of the loss in isolated (as opposed to systemic) circumstances, and the perception of the defendant’s conduct as anti-social, all support the legal position that once the direct interference with the plaintiff’s person is shown, the defendant may fairly be called upon to explain his behaviour if indeed it was innocent.
15 These arguments persuade me that we should not lightly set aside the traditional rights-based approach to the law of battery that is now the law of Canada. The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff’s claim will fail. But it is not up to the plaintiff to prove that, in addition to directly interfering with her body, the defendant was also at fault.
16 Having stated that we should not set aside the traditional approach to battery, I do not wish to foreclose the possibility of future growth in this area of the law. References in definitions of the tort of battery to “injury”, or to contact being “unlawful” or “harmful or offensive” are different ways of expressing the idea that not every physical contact constitutes a battery. In other words, the tort requires contact “plus” something else. One view, as I discuss in the next section, is that the “plus” refers merely to non-trivial contact. The caselaw to date tends to support this view, and generally does not require actual physical or psychological injury: Cole v. Turner (1704), 6 Mod. 149, 87 E.R. 907; Stewart v. Stonehouse, [1926] 2 D.L.R. 683 (Sask. C.A.), at p. 684; Fleming, supra, at p. 29; Fridman, supra, at p. 45. In a future case, it may be necessary to consider whether the “plus” required in addition to contact should be extended beyond the minimum of non-trivial acts. However, the issue does not arise in this case, since the plaintiff pleads physical and psychological damage. This is sufficient to bring the case within the traditional view of battery, however the “plus” is defined. Therefore, for the purposes of this case, I proceed upon the traditional view.
B. The Argument that the Contact Must Be “Harmful or Offensive” Does Not Support Placing the Onus of Proving Non-Consent on the Plaintiff
17 The proposition that the law should require a plaintiff in an action for sexual battery to prove that she did not consent, is supported, it is suggested, by a requirement that the contact involved in battery must be harmful or offensive. The argument may be summarized as follows. The plaintiff must prove all the essential elements of the tort of battery. One of these is that the contact complained of was inherently harmful or offensive on an objective standard. Consensual sexual contact is neither harmful nor offensive. Therefore the plaintiff, in order to make out her case, must prove that she did not consent or that a reasonable person in the defendant’s position would not have thought she consented.
18 I do not dispute that a plaintiff generally must prove all elements of the tort she alleges. Nor do I dispute that contact must be “harmful or offensive” to constitute battery. However, I am not persuaded that plaintiffs in cases of sexual battery must prove that contact was “non-consensual” in order to prove that it was “harmful or offensive”. If one accepts that the foundation of the tort of battery is a violation of personal autonomy, it follows that all contact outside the exceptional category of contact that is generally accepted or expected in the course of ordinary life, is prima facie offensive. Sexual contact does not fall into the category of contact generally accepted or expected in the course of ordinary activities. Hence the plaintiff may establish an action for sexual battery without negativing actual or constructive consent.
19 The idea that battery is confined to conduct that is “harmful or offensive” finds root in the old cases involving trivial contacts. While the law of battery traditionally has held that the defendant, not the plaintiff, bears the onus of proving consent, it has also held that not every trivial contact suffices to establish battery. The classic example is being jostled in a crowd. A person who enters a crowd cannot sue for being jostled; such contact is not “offensive”. Two theories have been put forward to explain this wrinkle on the general rule that all a plaintiff in a battery action must prove is direct contact. The first is implied consent: Salmond and Heuston on the Law of Torts (21st ed. 1996), at p. 121. The second sees these cases as “a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life”: In re F., [1990] 2 A.C. 1 (H.L.), at p. 73, per Lord Goff.
20 Both these theories are consistent with the settled rule in Canadian law that a plaintiff in a battery action need not prove the absence of consent. On the implied consent theory, even if the plaintiff proves contact, the burden never shifts to the defendant to prove consent because consent is implied by law. On the “exception” theory, the plaintiff cannot succeed merely by proving contact if such contact falls within the exceptional category of conduct generally acceptable in ordinary life. It is not necessary in this appeal to choose between these approaches, but in my view both refer to the sort of everyday physical contact which one must be expected to tolerate, even if one does not actually consent to it.
21 The question then becomes whether sexual battery falls into the extraordinary category of cases where proving contact will not suffice to establish the plaintiff’s case. Is sexual activity the sort of activity where consent is implied? Clearly it is not. Alternatively, is it the sort of activity, like being jostled in a crowd, that is generally accepted and expected as a normal part of life? Again, I think not. The sort of conduct the cases envision is the inevitable contact that goes with ordinary human activity, like brushing someone’s hand in the course of exchanging a gift, a gratuitous handshake, or being jostled in a crowd. Sexual contact does not fall into this category. It is not the casual, accidental or inevitable consequence of general human activity and interaction. It involves singling out another person’s body in a deliberate, targeted act.
22 The assertion in some of the authorities that the contact must be harmful or offensive to constitute battery (see, e.g., La Forest J. in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, at p. 25), reflects the need to exclude from battery the casual contacts inevitable in ordinary life. It does not, however, require the conclusion that to make out a case of battery, a plaintiff must prove that the contact was physically or psychologically injurious or morally offensive. The law of battery protects the inviolability of the person. It starts from the presumption that apart from the usual and inevitable contacts of ordinary life, each person is entitled not to be touched, and not to have her person violated. The sexual touching itself, absent the defendant showing lawful excuse, constitutes the violation and is “offensive”. Sex is not an ordinary casual contact which must be accepted in everyday life, nor is it the sort of contact to which consent can be implied. To require a plaintiff in an action for sexual battery to prove that she did not consent or that a reasonable person in the defendant’s position would not have thought she consented, would be to deny the protection the law has traditionally afforded to the inviolability of the body in the situation where it is perhaps most needed and appropriate.
23 Only two cases, one in England concerning therapeutic administration of drugs and one in New Zealand concerning sexual assault, are cited in favour of the proposition that the plaintiff must show harm by proving a lack of consent as an element of the tort of battery: see Freeman v. Home Office, [1983] 3 All E.R. 589 (Q.B.), aff’d [1984] 1 All E.R. 1036 (C.A.), H. v. R., [1996] 1 N.Z.L.R. 299 (H.C.). The proposition that the plaintiff must prove a lack of consent, on the basis that she must prove that the impugned contact was harmful, is not supported by the law of battery, which has traditionally been confined to acts which are inherently harmful, like hitting, shooting or stabbing someone. Rather, its focus is on the protection of one’s bodily integrity from any unwanted contact. Many of the older cases concern contacts devoid of any real harm apart from the violation of bodily integrity: Pursell v. Horn (1838), 8 AD. & E. 602, 112 E.R. 966 (pouring water on a person); Green v. Goddard (1704), 2 Salkeld 641, 91 E.R. 540 (forcibly taking an object held by another); Humphries v. Connor (1864), 17 Ir. Com. L. Rep. 1 (Q.B.) (taking flower w

Court headnote

Non-Marine Underwriters, Lloyd's of London v. Scalera Collection Supreme Court Judgments Date 2000-05-03 Neutral citation 2000 SCC 24 Report [2000] 1 SCR 551 Case number 26695 Judges L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil On appeal from British Columbia Subjects Insurance Torts Notes SCC Case Information: 26695 Decision Content Non-Marine Underwriters, Lloyd’s of London v. Scalera, [2000] 1 S.C.R. 551 Vincent Scalera Appellant v. M. J. Oppenheim in his quality as Attorney in Canada for the Non-Marine Underwriters, members of Lloyd’s of London Respondent Indexed as: Non-Marine Underwriters, Lloyd’s of London v. Scalera Neutral citation: 2000 SCC 24. File No.: 26695. 1999: October 14; 2000: May 3. Present: L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ. on appeal from the british columbia court of appeal Insurance -- Homeowner’s insurance -- Insurer’s duty to defend -- Plaintiff bringing action against insured alleging battery, negligent battery, negligent misrepresentation and breach of fiduciary duty -- Policy containing exclusion for intentional acts of insured -- Whether insurer has a duty to defend. Torts -- Intentional torts -- Battery -- Evidence -- Burden of proof -- Consent -- Whether plaintiff must prove lack of consent. In 1996, a plaintiff brought a civil action against five B.C. Transit bus drivers, including the appellant, arising out of various alleged sexual assaults between 1988 and 1992. The allegations included battery, negligent battery, negligent misrepresentation and breach of fiduciary duty. The appellant owned a homeowner’s insurance policy issued by the respondent insurer. The policy provided coverage for “compensatory damage because of bodily injury” arising from the insured’s personal actions, excepting “bodily injury or property damage caused by any intentional or criminal act”. The British Columbia Supreme Court dismissed the respondent’s request for a declaration that it not be required to defend the appellant against the plaintiff’s claims. The Court of Appeal allowed the respondent’s appeal. Held: The appeal should be dismissed. Per L’Heureux-Dubé, Gonthier, McLachlin and Binnie JJ.: The plaintiff’s claims could not trigger coverage under the policy. Accordingly, the respondent has no duty to defend. While there is substantial agreement with Iacobucci J.’s reasoning, his approach to the tort of battery in the sexual context is disagreed with. In the tort of sexual battery, consent operates as a defence and must be proven by the defendant. The plaintiff is not required to prove that the defendant either knew that she was not consenting or that a reasonable person in the defendant’s position would have known that she was not consenting. The traditional rights-based approach to the law of battery that is now the law of Canada should not be set aside lightly. The tort of battery is a form of trespass against the person and is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems not from fault, but from violation of the right to personal autonomy. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, or raise some defence, such as the defence of consent. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff’s claim will fail. But it is not up to the plaintiff to prove that, in addition to directly interfering with her body, the defendant was also at fault. Unlike negligence, where the requirement of fault can be justified because the tortious sequence may be complicated, trespass to the person is confined to direct interferences. Where the trespass causes actual injury to the plaintiff, there is a direct connection between the defendant’s action and the plaintiff’s injury. The traditional approach to trespass is also practical, since, if the defendant is in a position to say what happened, it is both sensible and just to give him an incentive to do so by putting the burden of explanation on him. In addition, the close causal relationship between the defendant’s conduct and the violation of the plaintiff’s bodily integrity, the identification of the loss with the plaintiff’s personality and freedom, the infliction of the loss in isolated (as opposed to systemic) circumstances, and the perception of the defendant’s conduct as anti-social all support the legal position that once the direct interference with the plaintiff’s person is shown, the defendant may fairly be called upon to explain his behaviour if indeed it was innocent. Therefore, while a plaintiff generally must prove all elements of the tort she alleges, the fact that contact must be harmful or offensive to constitute battery does not mean that the plaintiff must prove that she did not consent and that the defendant actually or constructively knew she did not consent to sexual contact. When it is accepted that the foundation of the tort of battery is a violation of personal autonomy, all contact outside the exceptional category of contact that is generally accepted or expected in the course of ordinary life is prima facie offensive. Since sexual contact is not generally accepted or expected in the course of ordinary activities, the plaintiff may establish an action for sexual battery without negativing actual or constructive consent. Nothing special about sexual battery justifies requiring the plaintiff to prove that she did not consent or that the defendant either knew or ought to have known that she did not consent. The exclusion clause in the policy must be interpreted as requiring an intent to injure. Where there is an allegation of sexual battery, courts will conclude as a matter of legal inference that the defendant intended harm for the purpose of construing exemptions of insurance coverage for intentional injury. It is unnecessary to comment on the relationship between battery and negligence. Per Iacobucci, Major and Bastarache JJ.: The respondent has no duty to defend the appellant because the plaintiff’s statement of claim makes no allegation that could potentially give rise to indemnity under the insurance contract. An insurer only has a duty to defend when a lawsuit against the insured raises a claim that could potentially fall within coverage. The insurer’s duty to defend is related to its duty to indemnify. Therefore if an insurance policy, like the one in this case, excludes liability arising from intentionally caused injuries, there will be no duty to defend actions based on such injuries. A three-step process must be applied to determine whether a claim could trigger indemnity. First, a court should determine which of the plaintiff’s legal allegations are properly pleaded. In doing so, courts are not bound by the legal labels chosen by the plaintiff. A plaintiff cannot change an intentional tort into a negligent one simply by choice of words, or vice versa. Therefore, when ascertaining the scope of the duty to defend, a court must look beyond the choice of labels, and examine the substance of the allegations contained in the pleadings. This does not involve deciding whether the claims have any merit; all a court must do is decide, based on the pleadings, the true nature of the claims. At the second stage, the court should determine if any claims are entirely derivative in nature. The duty to defend will not be triggered simply because a claim can be cast in terms of both negligence and intentional tort. A claim for negligence will not be derivative if the underlying elements of the negligence and of the intentional tort are sufficiently disparate to render the two claims unrelated. However, if both the negligence and intentional tort claims arise from the same actions and cause the same harm, the negligence claim is derivative, and it will be subsumed into the intentional tort for the purposes of the exclusion clause analysis. If neither claim is derivative, the claim of negligence will survive and the duty to defend will apply. Finally, at the third stage, the court must decide whether any of the properly pleaded, non-derivative claims could potentially trigger the insurer’s duty to defend. This appeal’s holding with respect to the proper characterization of a plaintiff’s tort allegations should not be taken to affect any areas of law outside the insurance context presented by this appeal. In this case, the exclusion clause must be read to require that the injuries be intentionally caused, in that they must be the product of an intentional tort and not of negligence. The plaintiff has stated three possible claims arising out of the alleged sexual assaults: sexual battery, negligent battery, and breach of fiduciary duty. Sexual battery requires the plaintiff to prove that a reasonable person should have known that the plaintiff did not validly consent to the sexual activity in question. Since non‑consensual sexual activity is inherently harmful, any injuries resulting therefrom are intentionally caused, and the exclusion clause would apply. If a reasonable person would not have known that the plaintiff did not validly consent, the plaintiff’s claim will fail, and there will be no duty to indemnify or duty to defend. The plaintiff’s claims of negligence and breach of fiduciary duty are either not properly pleaded or are subsumed into the sexual battery because these claims are based on the same facts and resulted in the same harm. Therefore the exclusion clause applies equally to them. There being no potentially indemnifiable claim, the respondent has no duty to defend. Cases Cited By McLachlin J. Referred to: Collins v. Wilcock, [1984] 3 All E.R. 374; Cook v. Lewis, [1951] S.C.R. 830; Larin v. Goshen (1974), 56 D.L.R. (3d) 719; Walmsley v. Humenick, [1954] 2 D.L.R. 232; Tillander v. Gosselin (1966), 60 D.L.R. (2d) 18, aff’d (1967), 61 D.L.R. (2d) 192; Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319; Ellison v. Rogers (1967), 67 D.L.R. (2d) 21; Reibl v. Hughes, [1980] 2 S.C.R. 880; Norberg v. Wynrib, [1992] 2 S.C.R. 226; Scott v. Shepherd (1773), 2 Black. W. 892, 96 E.R. 525; Leame v. Bray (1803), 3 East 593, 102 E.R. 724; Fowler v. Lanning, [1959] 1 Q.B. 426; Letang v. Cooper, [1965] 1 Q.B. 232; Bell Canada v. COPE (Sarnia) Ltd. (1980), 11 C.C.L.T. 170, aff’d (1980), 31 O.R. (2d) 571; Cole v. Turner (1704), 6 Mod. 149, 87 E.R. 907; Stewart v. Stonehouse, [1926] 2 D.L.R. 683; In re F., [1990] 2 A.C. 1; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Freeman v. Home Office, [1983] 3 All E.R. 589, aff’d [1984] 1 All E.R. 1036; H. v. R., [1996] 1 N.Z.L.R. 299; Pursell v. Horn (1838), 8 AD. & E. 602, 112 E.R. 966; Green v. Goddard (1704), 2 Salkeld 641, 91 E.R. 540; Humphries v. Connor (1864), 17 Ir. Com. L. Rep. 1; Forde v. Skinner (1830), 4 Car. & P. 239, 172 E.R. 687; Schweizer v. Central Hospital (1974), 53 D.L.R. (3d) 494; Allan v. New Mount Sinai Hospital (1980), 109 D.L.R. (3d) 634, rev’d on other grounds (1981), 33 O.R. (2d) 603; Brushett v. Cowan (1990), 3 C.C.L.T. (2d) 195; O’Bonsawin v. Paradis (1993), 15 C.C.L.T. (2d) 188; State Farm Fire and Casualty Co. v. Williams, 355 N.W.2d 421 (1984). By Iacobucci J. Referred to: Sansalone v. Wawanesa Mutual Insurance Co., [2000] 1 S.C.R. 627, 2000 SCC 25; Brissette Estate v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; Wigle v. Allstate Insurance Co. of Canada (1984), 49 O.R. (2d) 101; Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252; Indemnity Insurance Co. of North America v. Excel Cleaning Service, [1954] S.C.R. 169; Parsons v. Standard Fire Insurance Co. (1880), 5 S.C.R. 233; Scott v. Wawanesa Mutual Insurance Co., [1989] 1 S.C.R. 1445; Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801; Conner v. Transamerica Insurance Co., 496 P.2d 770 (1972); Modern Livestock Ltd. v. Kansa General Insurance Co. (1993), 11 Alta. L.R. (3d) 355; B.P. Canada Inc. v. Comco Service Station Construction & Maintenance Ltd. (1990), 73 O.R. (2d) 317; Kates v. Hall, [1990] 5 W.W.R. 569; Colorado Farm Bureau Mutual Insurance Co. v. Snowbarger, 934 P.2d 909 (1997); Aerojet-General Corp. v. Transport Indemnity Co., 948 P.2d 909 (1997); Lawyers Title Insurance Corp. v. Knopf, 674 A.2d 65 (1996); Allstate Insurance Co. v. Patterson, 904 F. Supp. 1270 (1995); Allstate Insurance Co. v. Brown, 834 F. Supp. 854 (1993); Gray v. Zurich Insurance Co., 419 P.2d 168 (1966); Bacon v. McBride (1984), 6 D.L.R. (4th) 96; Peerless Insurance Co. v. Viegas, 667 A.2d 785 (1995); Houg v. State Farm Fire and Casualty Co., 481 N.W.2d 393 (1992); Linebaugh v. Berdish, 376 N.W.2d 400 (1985); Horace Mann Insurance Co. v. Leeber, 376 S.E.2d 581 (1988); Allstate Insurance Co. v. Troelstrup, 789 P.2d 415 (1990); Nationwide Mutual Fire Insurance Co. v. Lajoie, 661 A.2d 85 (1995); M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Canadian Indemnity Co. v. Walkem Machinery & Equipment Ltd., [1976] 1 S.C.R. 309; Wilson v. Pringle, [1986] 2 All E.R. 440; Spivey v. Battaglia, 258 So.2d 815 (1972); Bettel v. Yim (1978), 20 O.R. (2d) 617; Long v. Gardner (1983), 144 D.L.R. (3d) 73; Veinot v. Veinot (1977), 81 D.L.R. (3d) 549; Rumsey v. The Queen (1984), 12 D.L.R. (4th) 44; Holt v. Verbruggen (1981), 20 C.C.L.T. 29; Garratt v. Dailey, 279 P.2d 1091 (1955); Vosburg v. Putney, 50 N.W. 403 (1891); Reibl v. Hughes, [1980] 2 S.C.R. 880; Clayton v. New Dreamland Roller Skating Rink, Inc., 82 A.2d 458 (1951); Kirkpatrick v. Crutchfield, 100 S.E. 602 (1919); Cook v. Lewis, [1951] S.C.R. 830; Norberg v. Wynrib, [1992] 2 S.C.R. 226; Hambley v. Shepley (1967), 63 D.L.R. (2d) 94; Mandel v. The Permanent (1985), 7 O.A.C. 365; Wiffin v. Kincard (1807), 2 Bos. & Pul. (N.R.) 471, 127 E.R. 713; Coward v. Baddeley (1859), 4 H. & N. 478, 157 E.R. 927; Freeman v. Home Office, [1983] 3 All E.R. 589, aff’d [1984] 1 All E.R. 1036; H. v. R., [1996] 1 N.Z.L.R. 299; State Farm Fire and Casualty Co. v. Williams, 355 N.W.2d 421 (1984); R. v. Mills, [1999] 3 S.C.R. 668; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Ewanchuck, [1999] 1 S.C.R. 330; M. (M.) v. K. (K.) (1989), 61 D.L.R. (4th) 392; Harder v. Brown (1989), 50 C.C.L.T. 85; Lyth v. Dagg (1988), 46 C.C.L.T. 25; R. v. McCraw, [1991] 3 S.C.R. 72; CNA Insurance Co. v. McGinnis, 666 S.W.2d 689 (1984); B.B. v. Continental Insurance Co., 8 F.3d 1288 (1993); J.C. Penney Casualty Insurance Co. v. M.K., 804 P.2d 689 (1991); State Farm Fire & Casualty Co. v. D.T.S., 867 S.W.2d 642 (1993); American States Insurance Co. v. Borbor, 826 F.2d 888 (1987); Troelstrup v. District Court, 712 P.2d 1010 (1986); Rodriguez v. Williams, 729 P.2d 627 (1986); Horace Mann Insurance Co. v. Independent School District No. 656, 355 N.W.2d 413 (1984); Altena v. United Fire and Casualty Co., 422 N.W.2d 485 (1988); Wilkieson-Valiente v. Wilkieson, [1996] I.L.R. ¶1-3551; Ellison v. Rogers (1967), 67 D.L.R. (2d) 21; Hatton v. Webb (1977), 81 D.L.R. (3d) 377; Co-operative Fire & Casualty Co. v. Saindon, [1976] 1 S.C.R. 735; Newcastle (Town) v. Mattatall (1988), 52 D.L.R. (4th) 356; Long Lake School Division No. 30 of Saskatchewan Board of Education v. Schatz (1986), 18 C.C.L.I. 232; Devlin v. Co-operative Fire & Casualty Co. (1978), 90 D.L.R. (3d) 444; Pistolesi v. Nationwide Mutual Fire Insurance Co., 644 N.Y.S.2d 819 (1996); M’Alister v. Stevenson, [1932] A.C. 562; Frame v. Smith, [1987] 2 S.C.R. 99; Rodriguez by Brennan v. Williams, 713 P.2d 135 (1986). Statutes and Regulations Cited Alberta Evidence Act, R.S.A. 1980, c. A-21, s. 12. Criminal Code, R.S.C., 1985, c. C-46, s. 273.2 (b) [ad. 1992, c. 38, s. 1]. Evidence Act, R.S.N. 1990, c. E-16, s. 16. Evidence Act, R.S.N.S. 1989, c. 154, s. 45. Evidence Act, R.S.N.W.T. 1988, c. E-8, s. 17. Evidence Act, R.S.O. 1990, c. E.23, s. 13. Evidence Act, R.S.P.E.I. 1988, c. E-11, s. 11. Evidence Act, R.S.Y. 1986, c. 57, s. 14. Insurance Act, R.S.B.C. 1996, c. 226, s. 28. Authors Cited American Law Institute. Restatement of the Law, Second, Torts 2d, vol. 1. St. Paul, Minn.: American Law Institute Publishers, 1965. Atrens, Jerome J. “International Interference with the Person”. In Allen M. Linden, ed., Studies in Canadian Tort Law. Toronto: Butterworths, 1968. Bell, Robert. “Sexual Abuse and Institutions: Insurance Issues” (1996), 6 C.I.L.R. 53. Brown, Craig. Insurance Law in Canada, 3rd Student ed. Scarborough: Carswell, 1997. Brown, Craig. Insurance Law in Canada, vol. 1. Scarborough: Carswell, 1999 (loose-leaf). Brown, Craig, and Julio Menezes. Insurance Law in Canada, 2nd ed. Scarborough: Carswell, 1991. Canada. Federal/Provincial/Territorial Working Group of Attorneys General Officials on Gender Equality in the Canadian Justice System. Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action. Ottawa: The Group, 1992. Feldthusen, Bruce. “The Canadian Experiment with the Civil Action for Sexual Battery”. In Nicholas J. Mullany, ed., Torts in the Nineties. Sydney: LBC Information Services, 1997, 274. Feldthusen, Bruce. “The Civil Action for Sexual Battery: Therapeutic Jurisprudence?” (1993), 25 Ottawa L. Rev. 203. Fischer, James M. “Broadening the Insurer’s Duty to Defend: How Gray v. Zurich Insurance Co. Transformed Liability Insurance Into Litigation Insurance” (1991), 25 U.C. Davis L. Rev. 141. Fleming, John G. The Law of Torts, 9th ed. Sydney: Law Book Co., 1998. Florig, David S. “Insurance Coverage for Sexual Abuse or Molestation” (1995), 30 Torts & Ins. L.J. 699. Fridman, Gerald Henry Louis. The Law of Torts in Canada, vol. 1. Toronto: Carswell, 1989. Klar, Lewis. Tort Law, 2nd ed. Scarborough: Carswell, 1996. Linden, Allen M. Canadian Tort Law, 6th ed. Toronto: Butterworths, 1997. Linden, Allen M., and Lewis N. Klar. Canadian Tort Law: Cases, Notes and Materials, 10th ed. Toronto: Butterworths, 1994. McCormick on Evidence, vol. 2, 5th ed. By John W. Strong, General Editor. St. Paul, Minn.: West Group, 1999. Pryor, Ellen S. “The Stories We Tell: Intentional Harm and the Quest for Insurance Funding” (1997), 75 Tex. L. Rev. 1721. Pryor, Ellen S. “The Tort Liability Regime and the Duty to Defend” (1999), 58 Md. L. Rev. 1. Reynolds, Osborne M. “Tortious Battery: Is ‘I Didn’t Mean Any Harm’ Relevant?” (1984), 37 Okla. L. Rev. 717. Salmond and Heuston on the Law of Torts, 21st ed. By R. F. V. Heuston and R. A. Buckley. London: Sweet & Maxwell, 1996. Sharp, Frederick L. “Negligent Trespass in Canada: A Persistent Source of Embarrassment” (1977-78), 1 Advocates’ Q. 311. Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999. Street on Torts, 10th ed. By Margaret Brazier and John Murphy. London: Butterworths, 1999. Sullivan, Ruth. “Trespass to the Person in Canada: A Defence of the Traditional Approach” (1987), 19 Ottawa L. Rev. 533. Vail, Brian. “‘My Mistake, Your Problem’: The Duty to Defend Liability Claims in Canada” (1996), 6 C.I.L.R. 201. APPEAL from a judgment of the British Columbia Court of Appeal (1998), 106 B.C.A.C. 268, 172 W.A.C. 268, 48 B.C.L.R. (3d) 143, 158 D.L.R. (4th) 385, 2 C.C.L.I. (3d) 1, [1998] I.L.R. ¶1-3568, [1998] 9 W.W.R. 209, [1998] B.C.J. No. 834 (QL), allowing an appeal from the British Columbia Supreme Court (1997), 47 B.C.L.R. (3d) 187, 49 C.C.L.I. (2d) 305, [1998] I.L.R. ¶1-3519, [1997] B.C.J. No. 2481 (QL). Appeal dismissed. Bruce P. Cran and Murray G. Madryga, for the appellant. Eric A. Dolden and Karen F. W. Liang, for the respondent. The judgment of L’Heureux-Dubé, Gonthier, McLachlin and Binnie JJ. was delivered by 1 McLachlin J. -- I have read the reasons of Iacobucci J. and agree with the result he reaches and with much of his reasoning. I would respectfully disagree, however, from the view that in the tort of sexual battery, the onus rests on the plaintiff to prove that the defendant either knew that she was not consenting or that a reasonable person in the defendant’s position would have known that she was not consenting. 2 As Goff L.J. (as he then was) stated in Collins v. Wilcock, [1984] 3 All E.R. 374 (Q.B.), at p. 378, “[t]he fundamental principle, plain and incontestable, is that every person’s body is inviolate”. The law of battery protects this inviolability, and it is for those who violate the physical integrity of others to justify their actions. Accordingly, in my respectful view, the plaintiff who alleges sexual battery makes her case by tendering evidence of force applied directly to her. “Force”, in the context of an allegation of sexual battery, simply refers to physical contact of a sexual nature, and is neutral in the sense of not necessarily connoting a lack of consent. If the defendant does not dispute that the contact took place, he bears the burden of proving that the plaintiff consented or that a reasonable person in his position would have thought that she consented. My reasons for so concluding are the following. I. Analysis A. The Canadian Law of Battery Places the Onus of Proving Consent on the Defendant 3 As Iacobucci J. states (at para. 103) “for traditional batteries, consent is conceived of as an affirmative defence that must be raised by the defendant”. 4 This Court has long affirmed this proposition. In Cook v. Lewis, [1951] S.C.R. 830, at p. 839, Cartwright J. stated that “where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus falls upon the defendant to prove ‘that such trespass was utterly without his fault’.” 5 In Larin v. Goshen (1974), 56 D.L.R. (3d) 719 (N.S.C.A.), at p. 722, Macdonald J.A., citing numerous authorities, stated: “The law in Canada at present is this: In an action for damages in trespass where the plaintiff proves that he has been injured by the direct act of the defendant, the onus falls upon the defendant to prove that his act was both unintentional and without negligence on his part, in order for him to be entitled to a dismissal of the action.” (Emphasis in original.) See also Walmsley v. Humenick, [1954] 2 D.L.R. 232 (B.C.S.C.); Tillander v. Gosselin (1966), 60 D.L.R. (2d) 18 (Ont. H.C.), aff’d (1967), 61 D.L.R. (2d) 192 (Ont. C.A.); Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319 (Man. C.A.), and Ellison v. Rogers (1967), 67 D.L.R. (2d) 21 (Ont. H.C.). A number of academic commentators also agree that the burden of proving consent lies on the defence: see J. G. Fleming, The Law of Torts (9th ed. 1998), at p. 86; A. M. Linden and L. N. Klar, Canadian Tort Law: Cases, Notes and Materials (10th ed. 1994), at p. 102, note 2; and G. H. L. Fridman, The Law of Torts in Canada (1989), vol. 1, at p. 63. 6 This proposition holds for particular forms of battery like medical battery and sexual battery. In Reibl v. Hughes, [1980] 2 S.C.R. 880, at p. 890, dealing with medical battery, Laskin C.J. stated for the Court that: The tort [of battery] is an intentional one, consisting of an unprivileged and unconsented to invasion of one’s bodily security. True enough, it has some advantages for a plaintiff over an action of negligence since it does not require proof of causation and it casts upon the defendant the burden of proving consent to what was done. And in Norberg v. Wynrib, [1992] 2 S.C.R. 226, dealing with sexual battery, La Forest J., for the plurality, stated, at p. 246, that “[a] battery is the intentional infliction of unlawful force on another person. Consent, express or implied, is a defence to battery.” None of the members of the Court participating in the decision dissented from the view that the burden lies on the defendant to prove consent. 7 The question, then, is whether we should in this case depart from the settled rule that requires the plaintiff in a battery case to show only contact through a direct, intentional act of the defendant and places the onus on the defendant of showing consent or lawful excuse, including actual or constructive consent. For the reasons that follow, I am not convinced that we should alter the established rule. A. The Traditional Approach to Trespass is Justified as a Rights-Based Tort 8 The traditional rule, as noted, is that the plaintiff in an action for trespass to the person (which includes battery) succeeds if she can prove direct interference with her person. Interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant: see Scott v. Shepherd (1773), 2 Black. W. 892, 96 E.R. 525 (K.B.); Leame v. Bray (1803), 3 East 593, 102 E.R. 724 (K.B.). The burden is then on the defendant to allege and prove his defence. Consent is one such defence. 9 Some critics have suggested that this rule should be altered. They suggest that tort must always be fault-based. This means the plaintiff must prove fault as part of her case, by showing either: (1) that the defendant intended to harm; (2) that the defendant failed to take reasonable care or was “negligent”; or (3) that the tort is one of strict liability, i.e. legally presumed fault. On a practical level, some, like F. L. Sharp, argue that the traditional approach confers an unfair advantage on the plaintiff by easing her burden of proof: “Negligent Trespass in Canada: A Persistent Source of Embarrassment” (1977-78), 1 Advocates’ Q. 311, at pp. 312-14 and 326. It is suggested that the law has moved in this direction in England: see Fowler v. Lanning, [1959] 1 Q.B. 426, approved in obiter in Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.). In the spirit of these comments, my colleague Iacobucci J. proposes to alter the traditional rule, at least for sexual battery, to require the plaintiff to prove fault, i.e. that the defendant either knew or ought to have known that she was not consenting. 10 I do not agree with these criticisms of the traditional rule. In my view the law of battery is based on protecting individuals’ right to personal autonomy. To base the law of battery purely on the principle of fault is to subordinate the plaintiff’s right to protection from invasions of her physical integrity to the defendant’s freedom to act: see R. Sullivan, “Trespass to the Person in Canada: A Defence of the Traditional Approach” (1987), 19 Ottawa L. Rev. 533, at p. 546. Although I do not necessarily accept all of Sullivan’s contentions, I agree with her characterization, at p. 551, of trespass to the person as a “violation of the plaintiff’s right to exclusive control of his person”. This right is not absolute, because a defendant who violates this right can nevertheless exonerate himself by proving a lack of intention or negligence: Cook, supra, at p. 839, per Cartwright J. Although liability in battery is based not on the defendant’s fault, but on the violation of the plaintiff’s right, the traditional approach will not impose liability without fault because the violation of another person’s right can be considered a form of fault. Basing the law of battery on protecting the plaintiff’s physical autonomy helps explain why the plaintiff in an action for battery need prove only a direct interference, at which point the onus shifts to the person who is alleged to have violated the right to justify the intrusion, excuse it or raise some other defence. 11 I agree with Sullivan’s view that the traditional approach to trespass to the person remains appropriate in Canada’s modern context for a number of reasons. First, unlike negligence, where the requirement of fault can be justified because the tortious sequence may be complicated, trespass to the person is confined to direct interferences. Where the trespass causes actual injury to the plaintiff, there is a direct connection between the defendant’s action and the plaintiff’s injury. As Sullivan notes, at p. 562: . . . where the injury complained of is an immediate consequence of the defendant’s act, it is intuitively sound to require compensation from the defendant unless he offers a defence. In cases of direct interference, the relationship between the defendant’s will, his decision to act, and the injury to the plaintiff is both simple and clear; there are no competing causal factors to obscure the defendant’s role or dilute his factual responsibility. The question of his moral and legal responsibility is thus posed with unusual sharpness: as between the defendant who caused the injury and the plaintiff who received it, other things being equal, who shall pay? . . . Once the plaintiff has shown that his right to personal autonomy has been violated by the defendant, prima facie the defendant should pay. [Emphasis added.] 12 Another factor supporting retaining the traditional approach to trespass and battery is that it makes practical sense. Linden J. in Bell Canada v. COPE (Sarnia) Ltd. (1980), 11 C.C.L.T. 170 (Ont. H.C.), aff’d (1980), 31 O.R. (2d) 571 (C.A.), after noting the attacks on the Canadian law of trespass, writes (at p. 180): The trespass action still performs several functions, one of its most important being a mechanism for shifting the onus of proof of whether there has been intentional or negligent wrongdoing to the defendant, rather than requiring the plaintiff to prove fault. The trespass action, though perhaps somewhat anomalous, may thus help to smoke out evidence possessed by defendants, who cause direct injuries to plaintiffs, which should assist Courts to obtain a fuller picture of the facts, a most worthwhile objective. [Emphasis added.] 13 In cases of direct interference, the defendant is likely to know how and why the interference occurred. I agree with Sullivan’s suggestion, at p. 563, that “if the defendant is in a position to say what happened, it is both sensible and just to give him an incentive to do so by putting the burden of explanation on him”. 14 Finally, I share Sullivan’s concern with the fact that cases of direct interference with the person tend to produce high “demoralization costs” (p. 563). Victims and those who identify with them tend to feel resentment and insecurity if the wrong is not compensated. The close causal relationship between the defendant’s conduct and the violation of the plaintiff’s bodily integrity, the identification of the loss with the plaintiff’s personality and freedom, the infliction of the loss in isolated (as opposed to systemic) circumstances, and the perception of the defendant’s conduct as anti-social, all support the legal position that once the direct interference with the plaintiff’s person is shown, the defendant may fairly be called upon to explain his behaviour if indeed it was innocent. 15 These arguments persuade me that we should not lightly set aside the traditional rights-based approach to the law of battery that is now the law of Canada. The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff’s claim will fail. But it is not up to the plaintiff to prove that, in addition to directly interfering with her body, the defendant was also at fault. 16 Having stated that we should not set aside the traditional approach to battery, I do not wish to foreclose the possibility of future growth in this area of the law. References in definitions of the tort of battery to “injury”, or to contact being “unlawful” or “harmful or offensive” are different ways of expressing the idea that not every physical contact constitutes a battery. In other words, the tort requires contact “plus” something else. One view, as I discuss in the next section, is that the “plus” refers merely to non-trivial contact. The caselaw to date tends to support this view, and generally does not require actual physical or psychological injury: Cole v. Turner (1704), 6 Mod. 149, 87 E.R. 907; Stewart v. Stonehouse, [1926] 2 D.L.R. 683 (Sask. C.A.), at p. 684; Fleming, supra, at p. 29; Fridman, supra, at p. 45. In a future case, it may be necessary to consider whether the “plus” required in addition to contact should be extended beyond the minimum of non-trivial acts. However, the issue does not arise in this case, since the plaintiff pleads physical and psychological damage. This is sufficient to bring the case within the traditional view of battery, however the “plus” is defined. Therefore, for the purposes of this case, I proceed upon the traditional view. B. The Argument that the Contact Must Be “Harmful or Offensive” Does Not Support Placing the Onus of Proving Non-Consent on the Plaintiff 17 The proposition that the law should require a plaintiff in an action for sexual battery to prove that she did not consent, is supported, it is suggested, by a requirement that the contact involved in battery must be harmful or offensive. The argument may be summarized as follows. The plaintiff must prove all the essential elements of the tort of battery. One of these is that the contact complained of was inherently harmful or offensive on an objective standard. Consensual sexual contact is neither harmful nor offensive. Therefore the plaintiff, in order to make out her case, must prove that she did not consent or that a reasonable person in the defendant’s position would not have thought she consented. 18 I do not dispute that a plaintiff generally must prove all elements of the tort she alleges. Nor do I dispute that contact must be “harmful or offensive” to constitute battery. However, I am not persuaded that plaintiffs in cases of sexual battery must prove that contact was “non-consensual” in order to prove that it was “harmful or offensive”. If one accepts that the foundation of the tort of battery is a violation of personal autonomy, it follows that all contact outside the exceptional category of contact that is generally accepted or expected in the course of ordinary life, is prima facie offensive. Sexual contact does not fall into the category of contact generally accepted or expected in the course of ordinary activities. Hence the plaintiff may establish an action for sexual battery without negativing actual or constructive consent. 19 The idea that battery is confined to conduct that is “harmful or offensive” finds root in the old cases involving trivial contacts. While the law of battery traditionally has held that the defendant, not the plaintiff, bears the onus of proving consent, it has also held that not every trivial contact suffices to establish battery. The classic example is being jostled in a crowd. A person who enters a crowd cannot sue for being jostled; such contact is not “offensive”. Two theories have been put forward to explain this wrinkle on the general rule that all a plaintiff in a battery action must prove is direct contact. The first is implied consent: Salmond and Heuston on the Law of Torts (21st ed. 1996), at p. 121. The second sees these cases as “a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life”: In re F., [1990] 2 A.C. 1 (H.L.), at p. 73, per Lord Goff. 20 Both these theories are consistent with the settled rule in Canadian law that a plaintiff in a battery action need not prove the absence of consent. On the implied consent theory, even if the plaintiff proves contact, the burden never shifts to the defendant to prove consent because consent is implied by law. On the “exception” theory, the plaintiff cannot succeed merely by proving contact if such contact falls within the exceptional category of conduct generally acceptable in ordinary life. It is not necessary in this appeal to choose between these approaches, but in my view both refer to the sort of everyday physical contact which one must be expected to tolerate, even if one does not actually consent to it. 21 The question then becomes whether sexual battery falls into the extraordinary category of cases where proving contact will not suffice to establish the plaintiff’s case. Is sexual activity the sort of activity where consent is implied? Clearly it is not. Alternatively, is it the sort of activity, like being jostled in a crowd, that is generally accepted and expected as a normal part of life? Again, I think not. The sort of conduct the cases envision is the inevitable contact that goes with ordinary human activity, like brushing someone’s hand in the course of exchanging a gift, a gratuitous handshake, or being jostled in a crowd. Sexual contact does not fall into this category. It is not the casual, accidental or inevitable consequence of general human activity and interaction. It involves singling out another person’s body in a deliberate, targeted act. 22 The assertion in some of the authorities that the contact must be harmful or offensive to constitute battery (see, e.g., La Forest J. in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, at p. 25), reflects the need to exclude from battery the casual contacts inevitable in ordinary life. It does not, however, require the conclusion that to make out a case of battery, a plaintiff must prove that the contact was physically or psychologically injurious or morally offensive. The law of battery protects the inviolability of the person. It starts from the presumption that apart from the usual and inevitable contacts of ordinary life, each person is entitled not to be touched, and not to have her person violated. The sexual touching itself, absent the defendant showing lawful excuse, constitutes the violation and is “offensive”. Sex is not an ordinary casual contact which must be accepted in everyday life, nor is it the sort of contact to which consent can be implied. To require a plaintiff in an action for sexual battery to prove that she did not consent or that a reasonable person in the defendant’s position would not have thought she consented, would be to deny the protection the law has traditionally afforded to the inviolability of the body in the situation where it is perhaps most needed and appropriate. 23 Only two cases, one in England concerning therapeutic administration of drugs and one in New Zealand concerning sexual assault, are cited in favour of the proposition that the plaintiff must show harm by proving a lack of consent as an element of the tort of battery: see Freeman v. Home Office, [1983] 3 All E.R. 589 (Q.B.), aff’d [1984] 1 All E.R. 1036 (C.A.), H. v. R., [1996] 1 N.Z.L.R. 299 (H.C.). The proposition that the plaintiff must prove a lack of consent, on the basis that she must prove that the impugned contact was harmful, is not supported by the law of battery, which has traditionally been confined to acts which are inherently harmful, like hitting, shooting or stabbing someone. Rather, its focus is on the protection of one’s bodily integrity from any unwanted contact. Many of the older cases concern contacts devoid of any real harm apart from the violation of bodily integrity: Pursell v. Horn (1838), 8 AD. & E. 602, 112 E.R. 966 (pouring water on a person); Green v. Goddard (1704), 2 Salkeld 641, 91 E.R. 540 (forcibly taking an object held by another); Humphries v. Connor (1864), 17 Ir. Com. L. Rep. 1 (Q.B.) (taking flower w

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