INTENTIONAL TORTS: VOLUNTARY (actions directed by conscious mind) + INTENTIONAL (desires result of action) Non-vol: reflex, convulsive mvmts, sleepwalking (Stokes v Carlson)Imputed (Constructive Intent):even if the outcome wasn’t subjectively intentional, if the outcome was “certain or substantially certain” then ∆ can be liable Transferred Intent: ∆ intends to commit tort but unintentionally commits diff tort towards same or other person. Proving Intent: get into subj mindset of ∆. Presume peeps intend natural consequences of actions. Direct ev (∆ admits it). Can use reasnble person standard to help figure out what they were thinking. PROOF Onus on ∏ to prove intentional tort on BoP + causal connect btwn act + harm. FH v McDougall—BoP no presump of innocence– clear, convincing +cogent ev –
BATTERYBettel v Yim: 1. Intentional 2. Application of force 3. Reasonable pers would find harmful/offensive (reflects social values – and specific situation Ex: Bus, hockey game) *Direct (touching) + indirect (throw something) *∆ resp for unintended consequences: Bettel v Yim (∆ intentionally shook boy caused nose bleed) Battery = actionable w/o proof of damage (Norberg) * ≠ have to be harmful, could just be unwanted: Non-Marine Underwriters P: to protect personal integrity/autonomy – serves vindicatory purpose (even if no damages)
ASSAULT1.Volition (intent to cause fear or threaten)*intent to follow thro not nece 2. Apprehension of imminent harmful actionKrawczyk: ∏ ≠ prove truck driver intended to scare her – factual finding he just driving normally P protect psych. Integ
FALSE IMP1.Intent’l restrnt of mvmt 2. Restrnt = TOTAL 3. Restrnt = phys/psych (implied/explicit threat of force)
Bird v Jones: ∏ blocked on HW ≠ FI b/c ≠ absolute restrnt BUT Lord D dissent: ability to “escape” ≠ negate FI, time ≠ matter
Campbell: Guard tells C to go inside = FI. C feared consequences of refusing power imbal vitiates consent
Herd v Weardale Steel: H left in mine for 8 hours: “volenti non fit injuria” H willingly assumed the risk – (Anal to metro)
Vancouver v Ward: Po detain W b/c suspect him of plan to pie PM. Initial detainment for Breach of Peace justified but FI when they ≠ release him POLICY- protect liberty of mvmt v power of authority to investigate crime
Def of LEGAL AUTHORITY–detain(reasnble suspicion) + arrest(reasnble+prob grounds person has/will commit) Obj. + Subj threshold
MALICIOUS PROSECUTION provides civ remedy for wrongly acc’d1. Proceedings initiated by ∆ 2. Terminated in favour of ∏ 3. Absence of reasonable + probable cause (Subj+Obj) 4. Malice / improper purpose (Nelles)
Nelles: ∏ (nurse) charged w/ murder of babies – charges dropped after long and publicized suit
Miazga v Kvello: Sex Ass allegations from 3 kids - Crt finds ≠ ev of Malice ≠ MP *honest but mistaken belief in of R+P grounds ≠ same as malice *≠ need subjective belief (just: could a reasnble prosecutor have believed)- ≠ prosecute for honest mistakes / inexperience
POLICY: protect from malicious abuse of power(≠ absolute immunity) v ability to prosecute w/o fear of being sued
INVASION of PRIVACYBC Privacy Act: 1. Voluntary + intentional invasion of P w/o claim of right 2. Degree of P based on reasonableness 3. Consider nature of act + context 4. Trespass ≠ required (could be eavesdrop) described in Hollingsworth v BCTV: Bald gone public ≠ intentional IP b/c Honest + reasonable but mistaken belief ∏ consented
Motherwell: sis harassing over the phone = IP b/c it interfered w/ ∏s reasonable enjoyment and use of property
Watts v Klaemt: ∆ recorded ∏’s calls – reported her and she was fired *Trespass ≠ essential to IP Def: Colour of right (≠ cover unporpo acts) ex turpi causa≠ claim ill-gotten gains. But must show connection btwn crim & injury (Hall v Hebert)
POLICY: Balance privacy w/ freedom of speech, mvmt and association- Developing technology!
TRESPASS to LAND1. Direct + intentional physical intrusion onto another’s land * Don’t have to k you’re on smone else’s land*prop = sacred. Trespass only justified by positive law. Don’t need to prove D: Entick—∆ broke into house and stole papers, w/o warrant *
∆ liable for indirect consequences of T: Turner v Throne—boxes deliv’d to wrong garage. ∏ trips on boxes, sues for trespass.
Harrison v Carswell: Shopping mall–Right of Entry withdrawn. Trespass applied to semi private spaces. Dickson J reads law purposefully ≠ narrowly.Consider purpose of space—is trespass infringing on purpose?P: pers v state rights. Control uses of land (≠ tents in parks DTE)
CONSENT (FULL D) OR mistaken belief in consent Explicit(verbal/writing/bodylang) or Implicit(particip,behaviour)
Wright v McLean: mud fight, boys consented to ordinary risks of activity – no evidence of ill-will/ culpable carelessness
*Limits to immunity of C in sports where a definite resolve to cause injury: Agar v Canning - ∏ hooks, ∆ slashes in face during ≠ Def of C –provoc mitigates Ds by 1/3) *Sexual battery: burden on ∆ to prove C/mistaken but reasnble belief in C: Non-Marine Underwriters POLICY – should limits be placed on C? Sports? Fighting? Dangerous Activity? v personal autonomy
WHAT VITIATES CONSENT? 1. Fraud - ∆ must be aware/resp for ∏’s misapprehension + Fraud must relate to the nature and quality of the act (≠ collateral matters) * Must show causal link btwn knowing misrepresentation + consent ex. Cuerrier – misrep’d HIV status
2. C ≠ legally recognized:b/c of age, some activities you can’t consent to (ex. bodily harm?) 3. Power Imbalance – exercise of authority s.265 3(d) of the CC + Norberg (doc gave meds for limp hump – exploited situation, knew V was addicted) *consent is based on auton + free will – unequal power relations can affect that autonomy Issue: interpreting failure to withdraw/passivity as implied C?
MEDICAL SITUATIONS: HC profs must obtain informed C – understand procedures + risks. Competency to C = ability to understand risks ≠ make “reasnble” decision: C v Wren 16yr gets abortion–parents sue doc: b/c age + level of understndng girl able to give informed C
- Applies to minors (but some provs have statutory minimum age req’mt for consent) Exception to informed consent: unforeseen emerg situations = DOC instead of C: Marshall v Curry–doc remvd left testie during hernia removal to preserve patients health
- Doctrine of informed C ≠ extend to informed refusal: Malette – doc gave blood transfusions to unconscious JHW patient w/ a card saying she ≠ want blood – confirmed by daughter – card meant to speak for ∏ when unconscious, doc charged w/ Batt – high price on pers auton
- C forms ≠ conclusive of C – must show patient understood the form P: patient’s pers autonomy v society’s interest in preserving life
SELF-DEFENCE (FULL DEF) 1. Honest + reasnble belief ass was imminent 2. No reasnble alternative to using force 3. Force used was reasnble in the circs (Described in Ellis v Fallios) * blow for blow ≠ have to measure force w/ nicety: Wackett v Calder–brawl-∆ justified in punching 2x b/c 1st punched failed to stop attack * Subj perceived threat (as would a reasnble person would perceive in the circs) *Effects of force ≠ determinative of whether or not force was reasnble–but can be useful in assessing force: Pollard v Simon – ferry lineup–∆ reasnbly believed ∏ going to hit him, force was reasnble * ≠ have to wait for ∏ to strike first: White v Walker * person who makes BF mistake in fact can rely on self-def: White v Walker * ≠ C is you intend to AND cause bodily harm: Ellis v Fallios–∆ tried to argue fight was consensual–even if initial fight was consensual, ∆ went outside scope of C by biting ∏’s lip–even if biting = intentional–it was intentinl + caused bodily harm (non-transient inj)– subj belief ∏ was going to harm his fam rejected by reasnble obj test)
R v Lavallee – battered spouse kills partner in SD when his back is turned – SD still valid b/c he threatened to kill her
DEFAMATIONprotect personal rep from unjustified harm v freedom of expression + debate (WIC Radio Ltd v Simpson) 1. Statements were defamSim v Stretch Test: Would the comments tend to Object’y lower ∏’s reputation in eyes of reasnble community members?
2. Statements referred to ∏Knuppfer v London Express Newspaper (“young Russians”): 1. Can article be capable of referring to ∏?
2. Does article lead a reasnble person who knew the ∏ to believe it referred to him? (≠ a Def to say they didn’t intend to identify the ∏)
3. Statmnts published (to smone ≠ the ∏) *Repetition = defam * Hyperlinks ≠ publication comuncting diff from communicating where it exists ≠ control over orig content P: limitng hyprlinks would flow of info: Crookes v Newton
DEFENCESJustification (Truth) Full D: Broad definition of truth. As long as it covers “sting” Williams v Reason (Shamateur)
Absolute Privilege Full D 1. Statmnts by executive officers in relation to state 2. Parlia proceedings 3. Judiciary/quasi-J proceedings Hung v Gardiner: complaints to Law Society = protected b/c quasi-judicial. principled anal – you want peeps to be able to raise concerns about professionals. Purpose of immunity undermined if only applied to complaints that led to proceedings.
Qualified Privilege(scope of QP exceeded in Hill v Church) judicial proceedings = public K but lawyer made public accusation w/o confirming allegations 1. Full def where there’s a reciprocal duty to make statmnts + duty for someone to receive them 2. Must take steps to confirm allegations3. No Def if you knew statements were false or were reckless as to whether they were true 4. ≠ apply if you go outside scopeFair CommentWIC Radio(radio host Rafe Mair compares π to Hitler ) Test: Preconditions: 1. Comment must be based on fact 2. Statmnt related to matter of public interest 3. Words & defam meaning more likely to be interp’d as comment or fact in the context? 4. Facts must be stated/known to listeners Test: Did ∆ satisfy honest belief requirement? can rely on obj test: Could any person honestly express that opinion on the proved fact? (could be interp’d broadly) Malice defeats D of fair comment Responsible comm on matters of pubic interest*new def from Grant v Torstar (TorStar pub’d article saying G was using political influence to dev’ golf course) TEST: 1. Was it a matter of public interest? 2. Was publication responsible?Must show resp attempt to verify / try + get ∏ side of story- degree of dil w/ degree of seriousness of allegation-but not unduly delay the news * Reportage – repetition rule ≠ apply – if report: 1. attributes statements to original author 2. indicates T not verified 3. sets out both sides fairly 4. provides context in which statements were madePOLICY – don’t want to “chill” public debate on important issues
*Evidence of Motive help infer intention *Duress = partial def in tort law (factor to asses D – Gilbert v Stone - ∆ trespassed + stole gelding but claimed he was threatened into doing it) *Provocation must be immediate (Miska v Sivec≠ provo b/c ∆ ≠ show sudden passion/lack of self control) P: against provoc as def violence should ≠ be allowed even if provoked (dom abuse) * Intent sometimes ≠ by mistake of fact
NEGLIGENCEMust hold peeps responsible for careless conduct – most injury ≠ intentionally caused
DOC: RF that neg would cause harm + Proximate relationship (little policy) Any Big negating policy considerations?
SOC: Based on “Reasonable person in the circumstances” but ≠ personal traits - can increase w/ special training
Causation: Did ’s neg conduct cause π’s injury? Create alternate universe where neg ≠ happen–would injury still occur?
Remoteness of Ds: πmust show D (physical/emotional) + D must ≠ be so remote that should ≠ be legally responsible
Actual Loss: π must est. legally recognized injury/loss & nature + extent of the loss (Could be phys/psych – or econ)
1. DOC: (Anns/Cooper Test) RF + Proximity = prima facieDOC, then onus shifts to to bring up PP to negate the DoC
Dunsmore v Desheild: “Hardex”-touch FB. DOC: Manurf/supplier/indiv. SOC: ≠ test lenses. Causa: π must show blow ≠ have broken Hardex–or broken safer. Risk RF even if ≠ know π play touch FB. Opt= indemnified by manuf
Cooper: suspended Eron’s license. Eron owed $ to Π, sued stating if he acted quicker she would have suff’d less loss.
DOCStage1:1. RF: Would a reasnble pers (in circs) foresee that if recklss, they would cause harm (phys/psych) to a person in the class of π? 2. Is relationship prox?*PP: close + direct Factors: expectations, reps, reliance, prop + other interests Stage 2:Despite prox + RF, Are there PP reasons to ≠ DOC? Effect of recog DOC on legal system, on society. No pf DOC New DOC? Yes to RF. NO to proximity-Statute ≠ impose a duty to investors – Regstrar = quasi-judic role + must blance public+private interests. Duty to investors conflict w/ gen duty to pub, + give rise to indeterminate liabil. UKe: Caparo Industries: Is it “fair, just + reasonable” to impose a DOC in light of PP?
NEGLIGENT INVESTIGATIONLimits powers of Popo to respect the law (Charter + Tort) & diff of claiming under MP
Hill v Hamilton-Wentworth Police: H arrested + imprisoned. Exculpatory ev ≠ brought. T of NI: DOC: RF + Prox NI clearly adversely affect falsely acc’d *False arrest/MP ≠ provide adqute remedy for neg acts *Invest ≠ unrestrained—must respect law (Charter/tort) *Reasonable care = beneficial outcomes PP ≠ DOC: *Quasi-judic? Po concerned w/ gathering ev, distanced from judic *Discretion hunches+intuition= imp BUT ≠ disposed b/c board SOC *Chilling Effect? No ev + maybe good for Po to be careful *Floodgates? ≠ apparent (Qb+Ont) SOC: Reasnble Po in circs, Po Services Act = instructive, High SOC b/c Power, ≠ perfection≠ hindsight A:standards of time(1995) ≠ neg (R+prob grounds for arrest) P: Balance avoided NI wrongful convict v. over-reg Po lead =slow invest (fear of liabil)
SPECIAL DUTIES OF CARE: Affirmative Action– hist’ly positive obligations = intrusive. More peeps die trying to rescue
CC 129(b)Indivs (unless reasonable excuse) must comply w/ officer’s request assist in making arrest 252requires drivers involved in accident to stop +assist if person injured. Good Samaritan ActProtects GS from liab(unless gross neg)
DUTY to Rescue≠ gen, but once you start rescue you have a duty ≠ to conduct a negligent rescue: MacLaren
Osterlind: ≠ duty not to rent canoe intox person. This case prob decided diff’y today!
MacLaren: M fell-H dove. H = cardiac failure. DOC: Carrier=Quasi-K duty to pssngrs in perilextends guests. Vol assump of duty b/c started rescue. SOC: Reas’ble boat op: reversed, ≠ turn off engine. C: ≠ cause M’s fall, no ev M alive after fall.
Somene creates + encourages particip in dangerous/risky situation over which they have a degree of control, they should bear some resp: Crocker v Sundance: Π intox, ≠ read waiver. 1st race π eye cut, drank more. Manger suggestd π stop. Π insisted. hit mogul quad. TJ: 75% liable, π 25% CN. DOC: Jordan House: tavern owner DOC to take reasnble steps to prevent patrons from injuring 3rd party. SOC: mild suggestions ≠ enough, should have disqualfd. C: argued tub = inherntly dang ≠ diff π was drunk.
Social hosts ≠ owe DOC to person injured by guest at their party: Childs v Desormeaux: Post BYOB party D caused accident (Childsparaplegic). D-12 beers/2.5h. DOC? Distinguishd DOC of Com hosts who have capa to monitor alc, must cut off, incentive to overserve b/c motivated by $. should be held legally respnsble (liq licenses, duties, regs). AUTONOMY!
2. SOC based on the standard of an ordinarily prudent person in the circs: Ryan v Victoria
SOC move depending on facts: Likelihood of F harm, Prob + Severity of Risk, Cost of Risk Avoidance: Ryan v Vic
Arland: SOC ≠ superhuman ≠ genius ≠ foresight ≠ perfect ≠ particular traits ≠ overly apprehensive/confident
Ryan v Vic: MC+flangeways. RF- Yes, tracks run thro’ busy centre. Prox? Road users. ≠ negating PP. External indicators of SOC: Custom, industry practice, reg standardsCompliance w/ stat standards ≠ nece cover CL of neg. Discretion – range
3. (Factual) Causation TEST: “But for” your negligent action, the injury would not have occurred: Clements ≠ need scientific ev
Apply Mat’l Con Test where a) π has est’d loss would ≠ have occurred “but for” neg of 2+ TFs, each possibly in fact responsible for loss & (b) π, thro’ no fault of her own, is ≠ able to show any 1 of possible TFs in fact was the necessary of “but for” cause of injury, defeating a finding of causation on BoP against anyone: Clements. Cook v Lewis(Two shots), UK Asbestos cases (factories = neg but ≠ determine which caused sickness) Both must = neg’t + signif’ly contrib’d to injury or risk of injury. Apply BUT FOR globally to joint neg.
Kauffman v TorontoTransit: Allegd neg design of handrail. ≠ ev π tried to grasp rail. No ev π ≠ have fallen if holding on.
Barnett v Chelsea&Kensington Hosp: Tea/Vomit/Arsenic.Doc ≠ examine, breach’d SOC. ≠ CausaEE: π saved in time.
Walker Estate: HIV-tainted blood. Π Claimed neg screening. Action failed on causa b/c Donor ≠ deterred from donating blood when (non-neg) pamphlet in force. “But for” unworkable where multple indep causes bring about single harm.
NEG MISREP Statmnts durability + portability than actions concern for Inderterm Liability + also Freedom of Speech!
NM causing Pure Econ Loss: Hercules: Π shareholders, claimed s accountants carelessly prepard sttmntsecon loss. DOC?Prox + RF + RR: a) ought R’bly F π will rely on his reps. b) Reliance by π = reasonable (in the circs). FACTORS ( ≠ strict test, but guidelines to narrow scope of the DOC) 1. had direct/indirect financial interest in transaction where rep was made 2. = professional w/ special skill + judgment 3. Advice provided as part of ’s business 4.Ad given delib, ≠ social 5. Advice given in respnse to specif inquiry PP: insurance - costs passed to clients? BUT econ+social benefits of holding auditors accountable. liabil = incentive to produce accurate reports. * Where IL ≠ concern on facts = pf DOC. A: pf DOC shareholders will rely on audited financial statements + that reliance = reasonable – BUT DOC negated by PP IL -s would owe DOC to any known class of indivs. Shareholders used sttmnts for own $$, ≠ mngmnt of company. K of ID of pers RR on statements + K of use of info for the specific purpose the info was given.
R v Imp Tob IT claimed gov’t neg misrep’d health attributes of low tar cigs to IT + consumers. Crt finds reps = matter of gov policy essentially expanding scope of POLICY in Just to include smaller decisions made pursuant to a broader policy.
NEGLIGENT LIABILITY OF PUBLIC AUTHORITIESelected Offs, marketing/licensing boards, Po, ≠ Judicial/Quasi-Judic
Policy v Op: Just – Policy decision must be bona fide, If gov undertakes project, must follow appropriate SOC
Just: π sued BC for neg’tly inspect rocks on HW. Success of a claim against PA depends on whether decision = POLICY based or OP. DOC: RF + prox? Stat duty OR exemption? POLICY or OP decision? SOC: Manner + quality of inspecion in light of circs, budget, personnel, availability of equip *gives gov’t flexibility!* TJ said Policy-BUT it was Op – so new trial.
KLB v BC: kids-foster-gov SOC: standard at time. H: gov liable direct N but ≠ VL (Foster Ps = own home, sig resp + indep from gov which is essential to PP of creating home envir’t for foster children. Distinguished Bazleywhere children’s foundation employees = abusive.