Class 5/6 Business Entity Law 3 - Tort Law

What is a Tort?

Wrongdoing in private law

Tort Law

Compensate victims for harm caused by others, focuses on providing remedies

• continues to evolve

Intentional Torts

Deliberate acts (battery), but doesnt always have to have causeed harm

Unintentional Torts (Negligent)

“Careless” behaviour emphasizing public policy that promotes responsibility

Vicarious Liability

Holding one party liable for anothers tort

Vicarious Liability - Rationale

• employers often have control over employees actions and are more likely to have insurance coverage

• if employers benefit from their employees actions, thjey should also bear the risks of loss

• based on public policy considerations

Remedies for Torts - Damages

Focused on compensating the victim and restoring them financially to the position theyu would have been in if the tort had not occurred

• Compensatory

• Punitive

• Injunctions

Compensatory Damages

Most common

• aimed at covering losses

Punitive Damages

Rare

• awarded in cases of reckless disregard, vindictiveness or malice

Injunctions

A court order to stop/start a particular act or behaviour

Alternative Systems

Workers compensation schemes, no ability to sue an employer for workplace accidents

No-fault insurance in some provinces

Negligence

The failure to exercise reasonable care, leading to harm

Negligence - General

• involves a breach of duty to take care

• Required level of care increases with the danger of the situation

• negligence is a legal conclusion based on acts of omission or commission

• It is not absolute but relative to the circmstances

• Negligence claims may arise from both contractual and non-contractual relationships

Negligence - Thought Process

Must prove beyond a reasonable doubt

1. Duty of Care

2. Duty was breached

3. Suffered Damages

4. Direct Cause of Damages

Negligence - Duty of Care

• reasonable foreseeable harm

• proximity

• no public policy

Negligence - Breach of Duty

• Base it on a reasonable person

• Look at how the law affects it

  • breaching the law doesn’t automatically lead ot liability

Negligence - Damages

• Thin Skull rule: there is no reasonable person, it is related to the individual plaintiff

  • take them as they are

Negligence - Breach is the Direct Cause

• Factual evidence

• Legal evidence

Defenses to Negligence - Voluntary Assumption of Risk

Volentif Non Fit Injuria

• plaintiff cannot claim damages for harm they willingly assumed

• Requires plaintiff voluntarily accepted physical and legal risks associated w activity

Defenses to Negligence - Contributory Negligence

• parital defence wher plaintiffs own lack of care contributed to their injury

  • look at even and quantum of damages

• court apportions damages based on the relative responsibility of both parties

Donoghue v. Stevenson (1932)

Duty of Care: Manufactureres owe a duty of care to the end consumers or useres of their products.

Breach of Duty: Issues can arise due to design problems, production defects, or inadequate labeling (duty to warn)

Damages and Causation: These elements must also be established.

Occupiers’ Liability (in Ontario)

• Occupiers’ Liability Act

• Helps shift risk

• A lower standard of care applies to trespassers under the Trespass to Property Act AND TO individuals entering rurla or certain other properties for rec. activities without paying a fee

• EXCEPTIONS: if injured person willingly assumed the risks or was engaged in criminal activity OR when one enters the rec. property without paying entrance fee, are also all deemed to be accepting inherent risks

Professional Negligence

• Contractual duties

• Fiduciary duties

• Tort duties (e.g. negligence)

Professional Negligence - Duty of Care

• owed to client or foreseeable third party

• arises from professional-client relationship or “special relationship” as recognized by law

Professional Negligence - Breach of Duty (Standard of Care)

• failed to meet standard of care expected of a “prudent practitioner” in their field

• Relevant factors for standard:

  • exercise reasonable care, skill, and judgment consistent with their training and experience

  • stay informed about current standards and practices in their field

  • Recognize the limits of their expertise and seek additional assistance when necessary

  • Follow all legla , ethical and professional guidelines relevant to their profession

  • Professionals are not held to a standrd of perfection but are expected to act with the competence/diligence of an average practitioner in their profession

  • Specialists and Experts: those holding themselves out as specialists are held to a higher standard, reflecting the advanced knowledge and skill expected in their specific area of expertise

  • Inexperience or Exaggerated Credentials: inexperience does not excuse a failure to meet standard

Professional Negligence - Damages

The plaintiff must show they suffered quantifiable damages, such as financial loss, injury, or other harm, as a result of professional’s negligence

Professional Negligence - Causation

• plaintiff must demonstrate breach of duty directly casued their harm

• factual and legal causation

Breach of Fiduciary Duties

when fiduciary acts contrary to these obligations, causing harm to the beneficiary

Breach of Fiduciary Duties - Existence of a Fiduciary Relationship

• Discretion: has discretion or power ot act on behalf of teh other party

• Vulnerability: the beneficiaruy is dependent on the fiduciary due to trust, reliance, or unqueal power

• Turst and Confidence: the relationship is based on a legitimate expectation of loyalty, good faith, and care

Breach of Fiduciary Duties - Breach of Duty

• Loyatlt: acting in the best interests of the beneficirary and avoiding conflicts of interest

• Good Faith: acting with honesty and integrity

• Accountability: properly handling the beneficiary’s property, assets, or information

• Avoidance of Self-Dealing/conflict of Interest: not profiting personally at the expense of the beneficiary

Breach of Fiduciary Duties - Harm or Damages

• breach caused harm or loss to the beneficiary

• financial or non-financial

Breach of Fiduciary Duties - Causation

• plaintiff must establiosh a causal connection between the fiduciary’s breach and the harm suffered

Negligent Misrepresentation (fraudulent misrepresentation)

person provides false, inaccurate, or misleading information, causing another party to suffer a loss due to reasonable reliance on that information

Negligent Misrepresentation - Duty of Care

• owed plaintiff a duty of care based on a special relationship

• A multi-part test to determine whether a duty of care exists in negligent misrepresentation cases

Negligent Misrepresentation - Duty of Care: Foreseeability and Proximity

• defendant must reasonably foresee that plaintiff would rely on the represtnation w:

  • financial interst in transaction

  • special skills, judgment, or knowlege

  • deliberateness of advice given in a business setting

• “special relationship” between the parties, such as trust, reliance, or a professional-client context

Negligent Misrepresentation - Duty of Care: Used for Intended Purpose?

• used statement for different purpose than intended, no duty of care exists

Negligent Misrepresentation - Duty of Care: Residual Policy Considerations

• even if foreseability and proximity exist, court considers broader policys within reason that may impose duty of care

Negligent Misrepresentation - Breach of Duty

Representation must be untrue, inaccurate, or misleading, and belwo the required standard of care

Negligent Misrepresentation - Damages and Causation

Suffered a loss, and loss was casued by plaintiff’s reliance on misrepresentation

Negligent Misrepresentation - Fraudulent Misrepresentation/Deceit

Includes the above elements plus intent to deceive

Strict Liabilty

• duty to prevent harm, even without fault

• applies incircumstances w inherent dangerous activities or usese property in a wayu that poses unusual risks to others

• Rylands v. Fletcher: accumulating something, uses is non-natural, substance escapes to someone else

Nuisance Torts

Unsreasonable interefernece w enjoymant of land:

• nature of neighbourhood: residential, industrial, or mixed-use?

• Duration and Intensity: a temporaryy or occasional interference is less likely to be considered a nuisance than a constant or severe disturbance

• Sensitivity of the plaintiff: the intereference must be unreasonable to ordinary person

REMEDY: injunctions are common; damages

Assualt Tort

Threatening

• intentionaly creating reasonable delief of imminent offensive contact

• meant to discourage threats keep peace

Battery Tort

• intentional creation of offensive bodily contact (even without harm)

• CONSIDER: intent, unlawful, contact, lack of consent

• meant to discourage violence and keep peace

• Medical Context: avoid icarious libaility. train employed security personnel to use rasonable force

Flase Imprisonment

Unjsutifited confinement within a fixed area

• Unjustified: no consent

• Confinement: includes phsyical andpsychological, in a fixed area w no easy escape

  • Without authority: to confine, or make an arrest

Malicions Prosecution Tort

• imporperly causing the plaintiff to be prosecuted wihtou reasonable grounds or malice

• avoide misues of system

  • prove defendant started proceedings out of malice/improper purpose w no

Defamation Tort

• protects persons reputation from false and harmful statements

• Slander: spoken

• Libel: written/permanent

• Defenses include truth, absolute privilege, responsible communication

Privacy Tort

• wish to support freedom fo expression and information

• desire to strick fair balance

Privacy Tort - Intrustion Upon Seclusion

• intentional/reckless

• invaded priv, affaris/concerns without justification

• reaonsable to see it as highly offensive and causing distress/humiliation or anguish

Privacy Tort - Public Disclosure of Embarrassing Private Facts About the Plaintiff

• where published somethign embarrasing

• 1. defendant puiblicized an aspect of private life

• 2. plaintiff didn’t consent to it

• 3. it was highly offense to reasonable person

• 5. not of legitimate ooncern to public

Trespass to Land Tort

Intentionally enters/remains on land that is in the possession of another wihtout lawful justification

Trespass to Chattels Tort

intentional interference with another person’s personal proferty, including damaging or depriving the owner of its use