Introduction to Tort Law -intentional torts and business torts

What is tort law?

Tort law involves people suing each other (usually for negligence), in hopes of being compensated for it.

What does the term 'tort' mean?

Tort means wrongdoing.

true or false: torts are nothing like crimes

false

• there are some overlap with torts and crimes

• a wrongful act can be both a tort and crime

  however:

• torts aim to compensate the plaintiff

• crimes aim to punish the wrongdoer (defendant)

• Ex. person 1 was driving impaired on purpose and hit person 2 car, crime of impaired driving plus a tort

What are the two main categories of torts?

Intentional torts and non-intentional torts.

What constitutes intentional torts?

Intentional torts are actions that are deliberately done to harm others.

What is meant by non intentional torts?

Non intentional torts are actions that are not deliberate and result from accidents.

what is a tortfeasor?

the defendant in a tort case

what does damages mean in tort law?

• Legal definition: financial compensation

• Double meaning: threat of liability (being sued), compensation

What damages can a person sue for?

A person can sue for physical injury, mental damage, emotional distress, defamation, financial loss, and damage to property.

What are the three categories of damages in tort law?

1. Special damages 2. General damages 3. Punitive damages.

What are special damages?

Special damages are measurable monetary losses proven with receipts.

What are general damages?

General damages refer to intangible aspects you can not put a monetary value on such as pain and suffering.

what are punitive damages?

Punitive damages are rare. They aim to punish the main offender which is not the main role of tort law, and deter future misconduct, can be used to compensate intangible injuries (distress or humiliation)

what are trends in tort law?

• Very traditional, we still use the past rules, even the UK old stuff

• Compared to charter of rights etc which could change in a couple of years

what are the 3 requirements of tort law?

• fault

• causation

• compensable injury

How does causation play a role in tort law?

Causation determines whether the injuries were foreseeable in the chain of events.

How much compensation is appropriate?

courts must balance 2 things:

• desire to compensate innocent victims

• desire to avoid inhibiting beneficial conduct

  to avoid excessive awards, the SCC placed a max for pain, suffering and loss of enjoyment of life (now about $450,000), unless its a permanent injury

What is vicarious liability and a common example?

Vicarious liability is when one party is held liable for the wrongful actions of another.

common example: employer and employee, employee is liable and employer also takes the loss, employer can sue the employee but that rarely happens

what are the types of intentional torts?

1. assault and battery

   next 3 are interrelated → all involve chattels (movable items of a persons property)

2. trespass to chattels

3. conversion

4. dentinue

5. trespass to land

6. occupiers liability

7. private nuisance

8. strict liabiity

9. false imprisonment

10. defamation

What constitutes battery in tort law?

Battery is intentional physical contact that is harmful or offensive.

true or false: there is a crime in the canadian criminal law called battery

false:

no crime in the canadian criminal law called battery, we call it assault

What is the definition of assault in tort law?

• Assault is the threat of intentional physical contact that creates fear of harm.

• Tort assault is different from criminal assault

what are the defences to battery?

1. Consent… but must be an informed consent

   • Sport context (physical contact sports ex. football, rugby, hockey etc) but you voluntarily consented to participate in the activity knowing the risk. However, it has to be normal and expected, ex. Hockey players push others into a wall and get into a little brawl, and not beyond normal which is totally unexpected, unnecessary and excessive, ex. A hockey player takes a hockey stick and beat the other person's head up with it

   • If someone were to initiate a fight, then that someone is deemed to take on the risk that you can hit back, ex. Throwing the first punch at a bar

2. Self-defence: can use reasonable force to repel attack

3. Does Not resolves but just mitigates: provocation: court believes you are still liable but it is a mitigating factor of the amount of damages you might have to pay

What is 'trespass to chattels'?

1. Deliberate interference with plaintiffs personal property or possessions without their consent

2. Without plaintiffs permission or consent and lawful right. “Dont touch my stuff!”

What constitutes 'conversion' in tort law?

Conversion is the intentional appropriation of someone else's property.

tort law equivalent of theft

Stealing another's property, wrongfully selling it, obtaining it through fraud

Treating anothers poetry as if one owned it. May also involve a trespass to chattels

• ex. person 1 needs a lawnmower and sees person 2 lawnmower in their yard and takes it and use it then gave it back without person 2 being there and their consent

what is detinue in tort law?

• Wrongfully detention of the property of another after being asked to return it

• Tortfeasor may have come into possession with the owners permission, but now refuses to delivered the property

• The longer the item is retained, the greater the damage reward

which of the 3 is lesser of the chattel intentional torts?

trespass to chattels

What does 'trespass to land' mean?

Trespass to land is entering someone's property without permission.

damage is not necessary

if person is initially invited but then asked to leave and refuses, then they become a trespasser

• You don't have to own the property to sue for trespassing, ex. Renting an apartment 

What is occupiers liability?

Occupiers liability refers to the responsibility of property owners to keep their premises safe.

Can a trespasser who gets hurt on your land sue you?​

• If someone gets injured while trespassing, most likely the owner does not have any liability

• Yes, in some instances.​

• At common law:  only a minimal duty is owed to trespassers ….no traps ….no deliberate harm.​ exceptions: minors and mentally incapable of being aware

What is meant by private nuisance?

Private nuisance involves actions on one's property that interfere with a neighbor's enjoyment.

1. Unusual use of property

2. causing interference with neighbour’s use of their property​

• interference is usually ongoing and continuous​

3. results in foreseeable injury or harm​

What does strict liability entail?

Strict liability means being responsible(automatic liability) for damages regardless of fault or intent. usually a company

• Ex. pollution offences, oil spills, business releases dangerous chemicals into the environment

• Ex. if one brings dangerous items onto the property and they escape causing others harms, like leaking tank that is known to leak, pet that is known to be aggressive

What is false imprisonment?

False imprisonment is the unlawful restraint of an individual's freedom.

• Does not have to be physically restrained but they feel like they have no choice but to remain put (plaintiff felt compelled to stay)

when can you do a citizens arrest?

• Under the criminal code, if you saw someone commit an indictable offense (serious, ex. Murder, robbery, not stealing a candy bar), you have the right to make a citizen's arrest (playing hero) (very dangerous for you)

What is defamation in tort law?

Defamation is an injury to a person's reputation.

What must be proven for a defamation case?

1. A false statement

2. Publication to a third party (communicated, not just in papers)

3. Detrimental to reputation.

can statements that contain an innuendo be defamatory?

yes

• Statements that can contain innuendo (a hidden meaning) can be defamatory

Can a company sue for defamation?

Yes, companies can sue for defamation if false statements harm their reputation.

What is the difference between libel and slander?

Libel refers to written defamation, while slander refers to spoken defamation.

What defenses exist against defamation claims?

1. Truth - a complete defence

2. Absolute privilege - complete openness is necessary (courtroom, parliament, legislature). Absolute privilege barely applies to common people like us

3. Qualified privilege - a sense of duty, Statement made because you believed that somebody has a right to know, without malice

4. Fair comment - no malice, or unjust motive, comments made on public figures, usually used by the press (political cartoons, late night talk shows etc)

does tort law protect privacy?

• No, no tort called breach of privacy

• But your privacy is still protected by legislation and statute law, there are 4 statutes (two provincial and two federal)

what are the 4 statutes law to protect privacy?

• FOIP (provincial): protects us from our own provincial government from potentially abusing the information

• PIPA (provincial): protects us from non government agencies and organizations and companies within the province from potentially using and abusing our private information, ex. A car dealer used your information for stuff they shouldn't when purchasing a car

• Privacy act (federal): protects us from the federal government from abusing or using our private information, ex. Employment insurance

• PIPEDA (federal): protects us from non government organizations and businesses operating from the federal scope from potentially abusing our private information, ex. Canada post can not rip open mail

what are the business torts?

1. inducing breach of contract

2. interference with economic relations

3. intimidation

4. deceit

5. conspiracy to injure

6. malicious prosecution

7. passing off

8. breach of confidentiality

9. injurious falsehood

what is inducing breach of contract?

• Does not mean breaching your own contract, but you are persuading or inducing someone else to breach their contract

What criteria must be proven for the tort of inducing breach of contract?

1. A contract was breached

2. The defendant knew about the contract and deliberately induced its breach

3. The plaintiff, a party to the contract, suffered as a result

what is interference with economic relations?

• Doing something unlawful (bribery, defamation or paying kickbacks) that interferes with the economic relations (discourage customers from dealing with ones competitor)

what is intimidation?

• business tort equivalent of assault (threat)

• The threat of violence or some other illegal activity to force a party to do something

What is deceit in tort law?

Deceit is intentionally misleading another person, causing damage.

punitive damages awarded if serious

what are the 3 cases of deceit? what is the worst and the least serious scenario?

• (a) knowing them to be false; or

• (b) without belief in their truth; or

• (c) recklessly, not caring whether they were true or not

• (a) is worse case scenario, (c) is the least serious

what is conspiracy to injure?

• Conspire to injure another business

• Parties acting together and using unlawful means to injure the business interest of another

what is malicious prosecution?

• Malicious prosecution involves wrongful initiation of legal proceedings against someone.

what is passing off?

• Not exact copy of anything but passing off and making something very similar as if the products/services was from a more successful business for promotion

• Misleading others to promote capitalism of your own business

what must the plaintiff prove in a passing off case

1. The plaintiff’s goods, services or business enjoy a reputation that is worth protecting.​

2. The defendant misrepresented its goods, services or business as being those of the plaintiff.​

3. The public was misled (actual confusion) or confusion is likely.​

4. The plaintiff suffered damage (loss of business, loss of reputation)​

what is breach of confidentiality?

• Wrongful disclosures of confidential information like trade secrets, customer lists and future plans

• Usually employee and employer situations where employee disclose the information for personal gain

• Can be anyone associated with a company

• They may have signed an NDA (non disclosure agreement)

• Only valid if the person was made known and was told that this is confidential information that can not be disclosed

What is a non-disclosure agreement (NDA)?

An NDA is a contract that requires individuals to keep certain information confidential.

what is injurious falsehood (trade defamation)?

• Making statements that are untrue and unfounded about the goods or products of another

• That causes consumers to view their products/services less favorable

• Damages suffered by plaintiff