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Can I sue if I am hurt in a fight?

The short answer is: absolutely.

If you’ve been assaulted, you can press criminal charges and sue your antagonist for any injuries you’ve suffered. Personal injury lawsuits can win damages for loss of income, pain and suffering, medical expenses and punitive damages, among others.

However, it’s not always as simple as someone hurts you, so you can sue them.

The Criminal Code says an assault occurs when someone applies force to another - either directly or indirectly - without that other person’s consent. Given that, consent has been a hotly debated question in Canadian law.

Courts have heard cases stemming from consensual fights that have resulted in serious injuries and even death, raising the question: if you consent to a fight, are you off the hook for criminal charges or lawsuits?

For the most part, no. Consent is a not a defence against assault.

You can consent to potentially suffer some harm in reasonable circumstances. For example, someone playing hockey has consented to a degree of physical violence that’s consistent with the rules and expected in the sport. So you can’t sue another player who injures you with a body check, but you haven’t consented to be intentionally hit in the face with a hockey stick or attacked with a skate blade.

Consent is invalid when it results in “non-trivial” harm that you might suffer in a fist fight.

The Supreme Court of Canada decided that in a 1991 ruling (R. v. Jobidon) in a case where a man was convicted of manslaughter for killing someone in a consensual fight outside a bar. Although the victim consented to the fight, the court said a person cannot consent to death or such a extreme degree of physical harm.

The court also said it would be contrary to public policy to accept such a defence, because bar fights have no “social value” and cannot be seen to be condoned by law.

Other activities where you may suffer harm –- sports, medical procedures or stunts performed by trained professionals – have a genuine social value, the court said.

Alcohol tends to be a factor in fights, but drunkenness is also not a legal defence against assault. Courts once accepted it, but a controversial 1994 Supreme Court of Canada decision (R. v. Daviault), where a man was acquitted of sexual assault due to extreme drunkenness, led the government to change the Criminal Code. The ensuing section 33.1 says that self-induced intoxication does not mean a person lacked intent or voluntariness.

Self-defence can also lead to charges and lawsuits if it’s too vigorous. If someone tries to punch you, you can punch them back and stop the attack. But if you continue striking them after they’ve given up, or you shoot them, you’re no longer just defending yourself.

Read more:

Criminal Code of Canada Assault 

Civil Cases: Suing and Being Sued in the Superior Court of Justice Ontario