Ruling dismisses suit against a defendant who acted in her brother’s defence
The New Brunswick Court of King’s Bench has refused to dismiss a claim alleging the intentional torts of assault and battery against two men, while discontinuing the case against a woman involved, who had acted in her brother’s defence.
Sullivan v. Gould, Cormier, and Cormier, 2025 NBKB 251, arose from an altercation outside a downtown Moncton bar in the early morning hours of Apr. 3, 2022.
The plaintiff brought an action alleging that the three defendants jointly committed the intentional torts of assault and battery and caused his left ankle fracture and other injuries. The plaintiff sought special, general, aggravated, and punitive damages.
The defendants – C. Gould, C.M. Cormier, and C. Cormier – denied liability and brought summary judgment motions to dismiss the plaintiff’s claim. They alleged that the action lacked merit and genuine issues requiring a trial.
The establishment where the fight occurred had video surveillance footage, which the court reviewed in arriving at its conclusions.
Genuine issues found
The Court of King’s Bench of New Brunswick dismissed C.M. Cormier’s and C. Gould’s summary judgment motions seeking the claim’s dismissal and ordered them to pay the plaintiff’s costs of $1,500 each.
However, the court granted C. Cormier’s summary judgment motion and dismissed the plaintiff’s action against her. The court saw no genuine issues requiring a trial for the claim against her.
The court did see genuine issues calling for a trial regarding the defendants’ arguments that:
- The plaintiff did not deem the defendants’ behaviour offensive
- C. Gould and C.M. Cormier were jointly liable for applying force
- The plaintiff consented to the altercation
- The defendants were acting in self-defence
First, the court rejected the argument that the physical contact could not be the basis of a tort because the plaintiff did not consider it offensive. The court saw a strong argument that the conduct was indeed offensive.
While the plaintiff did not describe the pushing and shoving as offensive, the court ruled that this did not mean he did not perceive the defendants’ conduct as such. The court explained that aggressive pushing and poking, coupled with heated language toward the plaintiff, was not trivial contact expected in the course of ordinary life.
Second, C. Gould’s argument – that he did not commit the tort because he did not directly make the plaintiff fall on the sidewalk – did not convince the court. The court stated that this argument overlooked the concept of joint liability.
Third, the court rejected the argument that the plaintiff agreed to the altercation with C. Gould and C.M. Cormier. The court found that the plaintiff only moved toward them and engaged with them after they had aggressively put their hands on him and pushed him.
The court noted that the plaintiff positioned himself near the bar door, allegedly with the intent of calling the bar staff, which was not something he would do if he wanted to participate in a consensual fight.
Fourth, the court held that C.M. Cormier or C. Gould did not act in self-defence. The court found that they:
- walked toward the plaintiff
- verbally attacked him
- put their hands on him at least five times, at which point he pushed C.M. Cormier back
- kept approaching him even when he backed away toward the bar entrance
- spaced themselves out to encircle him
- could have walked away, without anything impeding them
Finally, the court determined that C. Cormier successfully established the defence of a third party because she reasonably struck the plaintiff’s face while attempting to defend her brother, C.M. Cormier.
