Dentons

International Top 30 position: 4

Not quite an eye for an eye — judge rules that employee’s ‘kick in the butt’ excuses co-worker’s punch in the mouth

By Andy Pushalik

Does a ‘kick in the butt’ excuse a punch in the mouth? That was the question facing the court in the recent case of Li v Furguson 2013 CanLII 91746 (Ont. Sm. Cl. Ct.).

Peng Li and Winston Furguson worked in the shipping and receiving department of a furniture company. Li and Furguson’s co-existence was initially uneventful; however, their relationship had begun to disintegrate following allegations by Li that Furguson was stealing from the company.

On 19 April 2011, things between Li and Furguson reached a boiling point. After searching for Furguson throughout the warehouse, Li finally found his target and confronted him. What happened next was a source of disagreement between the parties, although the judge adopted the following facts. Li began speaking very closely to Furguson, so close that spit was transferred to Furguson’s face, albeit unintentionally. As Furguson tried to break free, Li kicked Furguson in the ‘butt’ with his steel-toe boots. Furguson then wheeled and punched Li twice — one blow was inconsequential; the other was not as it resulted in Li incurring more than $7,000 in costs for restorative dental services…

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