Scalera V Non-Marine Underwriters Summary

The Scalera V Non-Marine Underwriters, Lloyd’s of London (2000) was a case held in the Supreme Court of Canada, which created great public interest due to the different perspectives of minority and majority judges involved in the case. The case itself revolves around an insurance policy and exclusion clauses, however the underlying legal policies, principles and rules are the main interest of the judges and affect their reasoning in regards to where the onus of proof lies in relation to consent between the plaintiff and the defendant.
In her respective judgement, McLachlin J states in the case report that ‘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.’

However she was unsure if she should ‘depart from the settled rule’ yet later adds ‘I am not convinced that we should alter the established rule’ . McLachlin J outlines that ‘some critics have suggested that this rule should be altered. They suggest that torts must always be fault-based.’ . However, Iacobucci J wished to deviate from this rule for sexual battery by arguing that, ‘to require the plaintiff to prove fault ie that the defendant either knew or ought to have known that she was not consenting.’ In contrast, McLachlin J then rebutted to this statement saying ‘I do not agree with these criticisms of the traditional rule.’ Throughout her ruling, McLachlin J considered whether to stand by the traditional approach in relation to this tort, or to introduce a new standing. Although Iacobucci J wished to abandon from this traditional rule, it was held by the majority that the onus of proof should remain with the plaintiff in regards to sexual battery and like torts. ‘
Various principles have been applied to the rules in the judgements of McLachlin C.J and Iacobucci J.

This includes the principle of physical integrity as present in the case Collins v Wilcock (1984) and the principle of and personal autonomy as mentioned in paragraph 10 of Scalera v Non-marine underwriters, Lloyd’s of London (2000) . It is stated by Goff L.J. in Collins v Wilcock that “the fundamental principle, plain and incontestable, is that every person’s body is inviolate” . This principle is supported by the ideology of personal autonomy, as mentioned by McLachlin C.J in Scalera v Non-marine Underwriters, Lloyd’s of London (2000) . In his judgement, Iacobucci J noted that “not all intentional touchings are presumptively instances of battery”. Iacobucci J used Mandel v The Permanent (1985) as an example to show that the context of a situation must be viewed to fully understand the extent of the consent involved. It was noted in Mandel v The Permanent (1985) that “a man’s placing of his hand on the plaintiff’s arm to guide her to the door was ‘merely a polite gesture and an accepted usage in daily life in a civilised, whether or not she was consenting to

it.’”
McLachlin J drew on various policies in the case report when establishing where the onus of proof should lie, with the defendant or the plaintiff. In paragraph 4, McLachlin includes the principle found in Cook v Lewis (1951) 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’”. All policies used by the majority and minority judges in this case somehow relate to the onus of proof and where it should lie. Iacobucci J states in paragraph 53 that ‘to prove a claim for sexual battery, the plaintiff will have to establish that the defendant intentionally inflicted a harmful or offensive touching on her”.

In conclusion, it is clear that both the minority and majority judges facilitated various legal rules, principles and policies to explain their judgement in relation to Scalera V Non-Marine Underwriters, Lloyds of London (2000) . In their respective reasoning, it is clear that although both the minority and majority shared varied views on some aspects of the case, particularly where the onus of proof should lie, their legal argument and decisions influenced their ruling. It can be inferred that McLachlin J’s traditional approach in regards to the rules, principles and policies effectively aided in finding Scalera to be guilty.