Law ch 12 (intentional torts)

Occupier

Any person with a legal right to occupy premises or has some degree of control over land or buildings on that land

Property-related torts an occupier may be liable for (common law)

• Occupiers liability

• Nuisance

• Trespass

Occupiers liability legislation

Attempts to simplify occupiers liability law

Includes:

• Invitee

• Licensee

• Trespasser

Contractural entrant

Any person who has paid (contracted) for the right to enter the premisis

• Ex: buying a ticket at disney

Invitee

Any person who comes onto the property to provide the occupier with a benefit

• Doesnt pay to get in, but occupier cares if they are there

• Ex: grocery store

Licensee

Any person whose presence is not a benefit to the occupier but to which the occupier has no objection

• Dont pay to get in, occupier doesnt care if you are there

• Ex: city park

Tresspasser

Any person who is not invited and whose presence is either unknown to the occupier or is objected to by the occupier

Who follows occupiers liability legislation

Alberta, B.C, Manitoba, Nova Scotia, Ontario, and P.E.I

• NL does not follow it

Categories of visitors in NL

• Trespasser

• Everyone else

NL follows common law in occupiers liability instead of the legislation

Occupiers liability

• Provides for a high duty of care, equivalent to the negligence standard

• Duty owed to entrants who are on the property with express or implied permission

• The standard of care is to take such care as is reasonable in all the circumstances to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there or is permitted by the law to be there

Occupiers liability legislation and trespassers

Occupier must not create deliberate or reckless harm or damage to trespassers, increased responsibility if the trespassers are children

• Deliberate harm ex: digging a hole so people will fall in it

• Reckless harm ex: turning a blind eye that something could cause harm

Even for trespassers you have the responsibility to avoid harm if you know there could be harm

Slip and fall strategies

Businesses usually have posters up for staff that outline how often they clean and review the conditions of the floors. This shows that they are taking reasonable steps to keep the floors clean.

• Businesses that fail to take reasonable care to reduce risk will be found liable

• It is difficult to win a slip and fall case in NL, especially in the winter if it is slippery outside. It is expected that people would wear boots

• Most of this is covered by your insurance

Defences to occupiers liability

• That the defendant took reasonable care to ensure that the people on the premises were safe (sweep logs, regular maintenance checks, snow clearing plans)

• Exclusion of liability clauses (such as park at your own risk signs) - these are good but not great, better than nothing but can still be found liable (Baly Haly case)

• Contributory negligence (not wearing boots in the winter outside)

Tort of nuisance

Attempts to address conflicts between neighbors stemming from land use

• Arises if an activity on an occupiers property unreasonably and substantially interferes with the neighbors right to enjoyment of their property (have to meet both unreasonability and substantiality standards)

• Frequency and duration of nuisance is necessary (cant be temporary)

• Ex: Loud music from a bar if it happens regularly, oil tank leaking onto neighbors property, business producing a bad smell

• Must consider what you are getting yourself into (cant open a business on george street and complain of the bars being loud)

• If the harm caused is significant and outweighs the benefits or usefulness of the activity, the conduct is more likely to be found unreasonable = nuisance. (Harm caused vs utility of conduct)

Tort of trespass

Protects a persons possession of land from “wrongful interference)

• Coming onto another persons property without the occupiers express or implied consent (can have implied consent)

• Ex: If people continuously use the golf course to walk on regardless of the signs, there could be implied consent if the owners knew and didnt do anything (signs wont be much help here)

• You dont usually sue someone in trespassing for damages, it is usually for liability (you just want them to stop trespassing), so injunction is typically used

• Ex: Overlapping your shed onto your neighbors property

Other torts involving customers

• False imprisonment

• Assault and battery

• Deceit/fraud

Other torts between businesses

• Passing off

• Interference with contractual relations

• Defamation

• Injurious or malicious falsehood/product defamation

Tort of false imprisonment

Unlawful detention or physical restraint or coercion by psychological means of someone

• Victim must have been prevented from going where they have a lawful right to be

• Occurs most often in a retail setting, such as with security guards

Citizens arrest rules

Section 494 of the criminal code states:

It is lawful to detain someone without a warrant (any citizen, such as a security guard) if you:

• Walk in on the crime being committed

• Reasonably believe they already did the crime and are trying to escape

Unless you meet this test for a citizens arrest, the person can sue you for false imprisonment

Assault

Threat of imminent physical harm by disturbing someones sense of security

Battery

Actual physical contact or violation of bodily security (have to suffer sufficient damages)

• Common for people to sue for battery against bouncers at bars for carrying them out if they were drunk or if they had to break up a fight (in most cases, they will not win)

Tort of deceit/fraud/misrepresentation

Misrepresentations that are made fraudulently or recklessly, causing a loss

Tort of passing off

Presenting another’s goods or services as your own

• Trading on someone elses reputation or goodwill

• Ex: Opening a burger restaurant and naming it McDonalds. You will get a letter saying you are passing off your burger restaurant as a McDonalds

Test for passing off

Must show:

1. Goodwill (good reputation involved): You need to show there is a good reputation associated with your product

2. That there is a misrepresentation by the defendant that leads the public into thinking their product is yours (confusion)

3. That you have suffered damage (as with all torts)

Trademark infringement

Not a tort, under the Trademarks Act in Canada

• The Trademarks Act allows businesses to register names and logos for statutory benefits

• When suing for trademark infringement you do not need to prove goodwill like in passing off

Note: Passing off and trademarks are not the same thing (test)

Tort of interference with contractual relations

Inciting someone to break the contractual obligations of another (interfering with contracts)

• Ex: One business poaching another businesses employees or clients

• Do not need to know the legal test for this tort

Tort of defamation

The public utterance of a false statement of fact or opinion that harms anothers reputation

Includes:

Libel: written

Slander: oral

• Lawsuits around defamation are the most common torts behind negligence

Test for defamation

Must show:

1. The defendant has made an untrue statement to at least one other person about the plaintiff (cant be uttering to themselves)

2. The statement presents the plaintiff in an uncomplimentary light

3. The statement would have had the effect of lowering the plaintiffs reputation in the mind of a reasonable person hearing it

Defences to defamation

There are 5 different defences to defamation:

1. Truth (justification)

2. Fair comment

3. Responsible communication on matters of public interest

4. Qualified privilege

5. Absolute privilege

Truth (justification) in defending defamation

The statement the defendant made was true

Fair comment in defending defamation

Permits people to offer commentary on “matters of public interest”, despite the commentary being defamatory

• Often happens online as reviews (restaurants, etc)

If you are going to rely on this defence, it must be:

• Factually based (facts should back opinion)

• An opinion honestly held by anyone based on those facts (have to prove that it is an opinion that could be held by anyone based on the correct facts)

Responsible communication on matters of public interest in defending defamation

A new defence that may apply to media, bloggers, journalists, etc. As they report on developing stories of importance to the public.

• This defence allows you to show due diligence to the reporters

• A lot of the time these people are doing work very quickly, and they dont have time to be 100% accurate in what they are doing, so if someone sues them they can rely on this defence

Qualified privilege in defending defamation

Telling something that you believe to be true to someone else that is necessary to hear it

The defamatory statement must be:

• Relevant

• Without malice (the intention to cause harm)

• Communicated only to a party who has a relevant interest in receiving it (such as a statement made in reference about a former employee)

If you have these, you cant be sued

Absolute privilege in defending defamation

Applied in very limited contexts where freedom of expression is vital, such as:

• Parliamentary proceedings and court proceedings

• Some communications by high government officials

Ex: a lawyers statement made in court (even if defamatory), cannot be sued over

No successful defamation action can be won in these cases

E-torts: defamation on the internet

• Ex: Defamation by email, Defamation on websites

• Electronic defamation can be established by the discovery or tracing of electronic words to their author

• A business can protect its reputation from attack on the internet by not allowing anonymous posts

Injurious falsehood

Uttering false statements about anothers goods or services that is harmful to the reputation of those goods or services

• Directed at specific products

• Plaintiff must establish that statements were false and published (uttered) with malice (the intent to cause harm) or an improper motive