Date: Thu, 23 Mar 2006 11:54:53 -0700

From: Lewis Klar

Subject: A Question on Consent -- a relevant Canadian case

Hello:

There is a Canadian case, cited in my text, Klar, Tort Law, 3rd ed., at 120, n. 40, which discusses this issue in some depth. The case is Abbott (Next Friend of) v Jarocki (1997), 208 A.R. 133 (Alta. Prov. Ct.) You can find it in Quick Law. The court allowed an action brought by a 17 year old high school student against a 15 year old student for injuries incurred in a fight. It was a "mutual" fight. The court held, among other things, that "a person cannot consent to bodily harm during a fight". It cites an Ontario Court of Appeal case Loney v Butch [1989] O.J. No. 1072 which held that the criminal law and tort law were the same in this respect and applied the Jobidon case to civil law. If consent is illegal for criminal law purposes, the court held that it cannot be valid for civil law purposes. You might find the discussion in these cases helpful.

Lewis Klar
Professor of Law
University of Alberta

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