Intentional Torts: Volition: Conduct must be voluntary (Smith v Stone) and intentional. Intent: actor’s desire to bring about consequences. Motive not necessary for intention. Duress and provocation do not eliminate intent (Gilbert v Stone). Duress may eliminate consent, and is partial defence in torts. Provocation may be partial defence - but must be “heat of moment” act (Miska v Sivec). Provocation requirements: P gives insult that is severe (would cause an ordinary person in the circumstances of D to lose control).
Battery: Elements: (1) “Offensive” physical contact - contact outside that expected in real life. Doesn’t have to be significant. (2) Contact is intentional - don’t have to intend to be harmful. (3) "Reasonable Person" would consider it physically harmful or socially offensive.
Bettel v Yim, 1978: F: Kid throws matches into store. Shopkeeper shakes kid, accidentally hits nose + causes injury. R: If you intend to commit the tort you are fully responsible for the (worse than intended) consequences. Must show causal connection to damages when more significant than intended.Policy: Better to give P compensation for full damages even if not fully intended.
Non-Marine Underwriters, 2000 SCC: F: Sexual battery case. R: For sexual battery, onus still on D to prove consent (absence of consent is not an “element” of battery). Policy: Making P prove lack of consent would be step backwards, historical bias against victims. Not presumed consensual, personal autonomy is key.
Assault:Elements: (1) Intentional creation of the apprehension of imminent harmful or offensive contact. Once contact is made - becomes battery (2) must demonstrate P had fear of imminent harmful contact (3) Don’t have to show damages.
Krawczyk v Peter Kiewit Sons Co, 2008:F: Sea2Sky protestor, truck drives near her, slowly and with backup horns on.R: Must prove D likely had intention to create apprehension of imminent harm. Must also prove that P apprehended imminent harm. However it would not have been a defense that P was “there illegally.”
False Imprisonment: Elements: (1) Someone’s movement is restrained totally, even if only momentarily. (2) Restrain may be imposed by (a) barriers (b) other physical (c) implicit/explicit threat of force (d) implicit/explicit assertion of legal authority [False Arrest], (3) Must intend to restrain them.
False Arrest (Ward): Two ways police may ‘imprison:’ (1)Investigative Detention: Less than arrest; freezing the scene in order to investigate a potential crime. Requires Reasonable Suspicion of a specific offense (Mann). (2) Arrest: Requires Reasonable and probable grounds that the accused committed (or is about to commit) an offense. Hybrid subjective and objective requirements. Amount of time P can held under arrest determined by circumstances.
Bird v Jones (1845): ERF: Cops prevent P from walking the way he wanted to on street. R: A partial obstruction ≠ false imprisonment. False Imprisonment requires total obstruction and detention, not just losing the freedom to go wherever you please. Policy (Dissent): But what if the way P was forced to go (“escape route”) was more dangerous? Slippery slope: if there is just “some way out” should we not give people a remedy against those unjustly blocking them?
Campbell v SS Kresge (1976):F: Store Security thinks P shoplifted. Shows badge, tells her come inside to “avoid embarrassment.”R: If P lead to anticipate that D has legal authority to detain them (when they do not), and ‘goes along’ with confinement out of fear = false imprisonment (no volition).
Herd v Weardale SteelF: P wanted to leave coal mine early, company didn’t let him out.R: If person has consented to be in a place for a certain time, it is not imprisonment to not let them out until that time is up. But if they were holding him (not just “not letting him” use elevator) this would be imprisonment.
Ward v City of Vancouver – Charter torts: F: Pie threat PM. Ward detained, arrested, imprisoned, released long after PM gone.R: Imprisonment by law enforcement longer than is required by the nature of arrest is falsearrest.
Malicious Prosecution: Elements (Nelles v Ontario): (1) Proceedings must have been initiated by the defendant; (2) Proceedings must have terminated in favour of the plaintiff; (3) Show absence of reasonable and probable cause. (a) Reasonable and Probable Cause (RPC): honest belief in guilt of accused based on facts and circumstances, which if true, would lead a reasonable person in position of accuser to concluded accused was probably guilty) ; (b) The test for RPC objective & subjective: both actual belief on part of prosecutor and belief must be reasonable in circumstances. (4) Show malice or a primary purpose other than that of carrying the law into effect (a) Malice not just spite, malice = improper purpose.
Nelles v Ontario [1989] 2 SCR 170: F: Nurse charged w murder of 4 babies, charges dropped b/c lack of evidence, sued AG for malicious prosecution. R: See elements .Policy: Absolute immunity of crown would negate private right of action and bar plaintiffs seeking remedy for violation of charter rights. “Chilling effect” argument for immunity of crown speculative, plus already built in deterrents for frivolous claims→ heavy burden of proof on plaintiff and potential awarding of costs.
Henry v BC, 2015:F: H convicted of 10 sexual offences. In 2010 all 10 counts quashed b/c misconduct of prosecution (no disclosure). Henry sued for damages, Court said wrongful non-disclosure sufficient to make case b/c of breach of charter rights, not necessary to prove malice. R: Threshold to prove wrongful non-disclosure on part of crown high, but lower than malice. Test for wrongful non-disclosure, plaintiff must prove on BoP:
(1) the prosecutor intentionally withheld information (SUBJECTIVE)
(2) the prosecutor knew or ought reasonably to have known that the information was material to defence and failure to disclose could impact ability to make full answer/defence (OBJECTIVE)
(3) withholding the information violated charter rights
(4) he or she suffered harm as a result. (must establish “but for” the wrongful non-disclosure the harm would not have occurred)
Policy: Threshold high to avoid to avoid continuous litigation against prosecutors; lower than malice b/c points to motive, which is important to necessitate judicial review of prosecutorial discretion but not relevant in considering whether obligation was performed (e.g., disclosure).
Invasion Privacy: Elements: (s.1 Privacy Act (RSBC 1996)): (1) Violates privacy of another wilfully and without claim of right (honest belief in facts which if true would be legal justification or excuse) (2) Nature/degree of privacy = reasonable in circumstances (regard to lawful interests of others) (3) Conduct: regard given to nature/incidence/occasion of act, relationship btwn parties (4) Eavesdropping/surveillance need not be accompanied by trespass (doesn't limit (1) or (3)). Defenses (s.2(2),(3) Privacy Act (RSBC 1996)): (2) Conduct = If consented to, incidental to defence of person/property, required by law or court, peace officer during duty, public officer during investigation (if not disproportionate) (3) Publication = publication, fair comment, privileged according to defamation law.
Hollinsworth v BCTV: Toupee graft filmed (for educational use only) by Look Int'l, BCTV used footage (news story), sued. R: Willfully = intent to do act they knew OR should have known violated privacy; W/o claim of right = honest belief of facts which if true -> legal justification = no breach of privacy.
Watts v KleamtF: D recorded person's phone for a year including P's conversation; told P's boss about P's misconduct discussed in conversation, P fired. R: Nature of act and circumstances (reasonable expectation of privacy) helps establish breach. Defenses don't apply when breach is disproportionate to defense. Doctrine of volenti non fit injuri precludes damages for loss of employment, she consensually took on risk of losing job.
Heckert v 5470 Investments Ltd. F: D video surveilled around P's door to 'protect building security R: Use context to find 'reasonable expectation of privacy', intrusiveness goes beyond landlord/employer rights. Extreme focus on P did not serve purpose of “defense of property,” breach was wilful b/c locked room.
Trespass2Land: Elements: Requires (1) direct and (2) intentional physical intrusion onto the land in the possession of another. For purpose of trespass action, land includes all fixtures. Trespass can be committed by entering P’s land in person, propelling an object or 3rd person onto property, or failing to leave once permission has been revoked.
Entick v Carrington (1765, england): F: Ds had a warrant, broke into P’s house and took papers. P sued Ds in trespass. R: Every invasion of private property is trespass, regardless of duration, unless there is a law excusing that invasion. Damage not necessary.Policy: B/C we’d have no defence against the gov’t messing with our stuff without this protection.
Turner v Thorne (1959, Canada):F: Defendant left a bunch of parcels in P’s garage when P was not home. P came home, walked through dark garage, tripped over packages and was seriously injured. Ratio: Trespass may be committed by the continued presence on the land of structure, chattel, or other thing wrongfully placed on property. Trespass by honest mistake does not relieve trespasser of liability; trespasser liable not only for injuries suffered as direct result of trespass, but also for indirect injury.
Harrison v Carswell (1976, SCR):F: Respondent peacefully picketing employer at mall, charged with trespass by mall under Manitoba Petty Trespass Act.R: Quasi-public spaces under significant control by owner still fall under common law protection of private property, unless there is an overriding statute. Policy: How do we fairly weigh individual property rights of an owner against the statutory right of an individual to lawfully and peacefully picket? PRE CHARTER
Consent: (1) Must be given to specific allegedly tortious act (2) Can be implicit/explicit (3) Onus on D to prove (4) P’s failure to physically resist ≠ consent
Wright v McLean (1956)F: Boys throwing mud in consensual game. No malice. P gets hurt. R: Implied Consent - You are presumed to have agreed to ordinary risks of the sport where no malice/ill will/anger.
Agar v Canning (1965)F: P hooked D. D hit P in face with stick. Direct retaliation. Prior to this case ratio of C. 1 applies to hockey. Does implied consent apply to all game conduct? R: Need Limit. Where resolve to injure seriously, even if provoked, should not fall within “implied consent”. Provocation is partial defence.
Norberg v Wynrib (1992) SCCF: P gets drugs from rape doctor in exchange for sex. Suable as sexual battery? (D argues P conduct immoral and she consented). R: C must be genuine. Imbalance of power may affect choosing freely. Abuse of authority can invalidate c. D knew P acting out of addiction.
Vitiating Factors: Fraud (causally connected to the decision to consent), Mistake (P consents based on misapprehension which D caused), Authority, Duress
Medical consent: where not an emergency, must get consent to procedure. Consent must be informed.
Marshall v. Curry (1933) F: P goes in for hernia, comes out minus 1 testicle. R:1) to save life or preserve health of patient Dr. may go beyond the consent (must be near emergency) 2) must be issue that could not have reasonably been foreseen – couldn’t have got prior C.
Malette v. Shulman F: Dr. knows P is JW. Card says NO BLOOD under ANY circ. R: Dr. was honestly mistaken in belief card didn’t apply to life/death emergency but NOT rational belief based on evidence.P: Refusal of consent does not have to be informed – right to treatment is not founded on understanding risk of refusal.
C v. Wren F: 16yr seeks abortion. Parents do NOT agree. Can child ‘fully’ understand treatment and implications to give C? R: Need sufficient intelligence and understanding to consent (assess capacity, consistency, character).
Self Defense: Element: (1) Honestly/reasonably believed they were about to be struck (2) force is proportional (right to invoke defence ends once danger has passed).
Wackett v Calder (1965)F: Bar fight, D walks away, P hits him, D hits back, breaks P's face.R: No need to measure self-defence w/ exact nicety; entitled to reject force w/ force. Proportionality is flexible. P: if someone is being threatening their “patheticalness” doesn’t matter.
Pollard v Simon (2009):F: Ferry terminal, D had apprehension of blow and knocked P down.R: Act can be self-defence before being hit if there's a reasonable apprehension of harm, if force used is not excessive.P: People should be able to defend themselves before it's too late.
CONSENT + SELF-DEFENSE:
Ellis v Fallios-Guthierrez (2012) F: P threatens D if D doesn't fight, D refuses but eventually fights, D BITES P'S LIPS OFFR: Consent to fight is not a defense if (1) violence is beyond what can be legally consented to; (2) actions disproportionate to perceived threat. Violence is in SD only if subj/obj in response to threat. P: Self-defence not to be used as method to seriously injure others, only as protection/deterrence.
Key Precedent: R v Jobidon – Consent is not a defence to intentionally causing severe bodily harm. Typically then no one can be said to have consented to a fist-fight. General exception for sports context where such bodily harm is necessarily intentional (boxing, UFC).
Defamation & Defenses: Elements: (1) must lower P’s reputation (Stretch) (2) must refer to the plaintiff (Knupffer) (3) must be published to a third party (Stretch) - do not need to know it is untrue.
Sim v StretchF: house maid; telegram; lending money to prior employerR: would the words ACTUALLY tend to lower the P in the estimation of right thinking members of society generally?
Knupffer v London Express Newspaper LTDF: D says that some member of young russia to become puppet fuehrerR: (1) must refer to the plaintiff - does not need to be explicit
JUSTIFICATION: (1)Justification is a full defence (2) court assumes the defamatory statements are false and so it falls on the D to prove they were true (3) even statements made maliciously are protected if they are truthful (4) must prove that the sting of the defamatory matter is substantially true (5) it is not sufficient for the D to show they believed the statements to be true or relied on information provided by a third party. Williams v ReasonF: amateur rugby player; accused of shameteurism; new evidence – “boot money”; truth defence applies. R: truth defence must apply to sting of defamatory comments.
ABSOLUTE PRIVILEGE: (1) Complete Immunity. (2) applies to Parliamentary, judicial, and quasi-judicial proceedings. Hung v GardinerF: complaint to law society; P argued defamation. R: complaints to quasi-judicial bodies protected by AP, but not to regular administrative bodies. Quasi-Judicial if it has power to determine legal rights and affect status of members. P: Purpose of AP undermined if it only applies where complaint actually leads to proceedings.
QUALIFIED PRIVILEGE: (1)Moral, legal and social reciprocal duty (2) (a) Has to come within the scope of the duty (b) cannot be malicious (Hill). Malicious publication when: (1) knowledge or (2) recklessness as to falsity (3) for dominant purpose or injuring P because of spite or animosity (4) for some other dominant purpose that’s improper, indirect, unrelated to privileged occasion. Hill v Tom CruiseF: press conference; scientology lawyer went beyond QP; verging on malice.R: comments must not go outside the scope of the duty to be protected by QP. P: AP/Truth Defense protect malicious comments, QP does not
FAIR COMMENT: (1) matter of public interest (2) based on fact (3) recognizable as comment (4) reasonable person (any prejudice) could honestly make this comment based on the facts (5) absence of malice WIC Radio LTD v Simpson: F: radio commentator; homophobic woman R: #4 is not subjective, D need not believe in comment. #3: What is comment/fact determined by “reasonable viewer/listener”
RESPONSIBLE COMMUNICATIONS ON MATTERS OF PUBLIC INTEREST: Address gap in defamation law to protect journalists. Using sources means unable to prove truth. QP does not apply b/c too broad to claim a duty to publish to the world at large. FC does not apply b/c statements are of alleged fact, not comment. Elements: (1) is it in the public interest? 2) was it responsible? (the more serious the allegation the more careful journalists should be) (a) importance/urgency of the matter (b) status/reliability of source. Grant v Torstar Corp.:F: Toronto Star reports political influence to secure new golf courseR: in order to invoke this defense, level of diligence (responsibility) must be in proportion to seriousness of allegation/urgency of issue. Reportage is exempt from the “repetition rule” P: RC to give more protection to journalists. Need to strike a balance between freedom of expression and protection of reputation.
Crookes v NewtonF: hyperlink connected to defamatory materialR: hyperlink is defamatory if the text that includes the hyperlink constitutes adoption, endorsement, restatement of specific content it links to. No control of content = not published.P: definition of publication must evolve in concert with technology
Poppat v MacLennan 2014 F: defamatory email sent to some board members of company. All were named as D.R: For publication, material must be sent to/seen by more than just Ds. P: is it publishing if to named defendant on another cause of action in same suit?
Burden of Proof : FH v Macdougall F: Residential school sexual assault. R: There is 1 civil standard of proof in Canada: balance of probabilities. Always applies. Po: Crim standard not applicable in civil - based on presumption of innocence. Intermediate standard impractical to apply. Requiring corroboration for P’s evidence raises standard above criminal. In order to overturn TJ on consideration of evidence must show palpable overriding error (Would have to show TJ did not consider/forgot evidence).
Duty of Care:
Dunsmere v Deshield F: Hardex glasses R: Standard of Care: “reasonable optometrist.” Causation: (1)he would not have played if they were labeled as regular glasses (2) they would not have broken, or would have caused less damage if hardex. Remoteness: That he would engage in activity that would break them would have reasonably foreseeable.
Donaghue v Stevenson F: Snails R: duty not to harm your neighbour - anyone you should have in reasonable contemplation.
ELEMENTS
Donaldson v John Doe– If duty between classes of people in facts already recognized, Cooper/Anns analysis not necessary.
Cooper v Hobart sF: Did registrar have duty to Enron stockholders? R:Anns Test to be used in determining whether duty of care should be imposed in novel situation: (1) Reasonable Foreseeability (i) Was the harm reasonably foreseeable consequence of D’s act? (ii) Was there sufficient proximity between the class of person the D fell into and the class the P fell into? (a) MINI POLICY Looking to the expectations, representations, reliance, and property and other interests, is it just and fair to impose duty on D (b) Is this relationship analogous to a category of relationships wherein proximity has been found? (2) Policy: are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? P: The persons that the registrar should have in mind = the public, NEVER narrowed to small enough group to establish a duty of care. The spectre of unlimited liability is a danger in applying a duty here.