SGMA 395 Modules 1-3

Tort of Negligence

• Breach of a legal duty to take care causing some recoverable damage to the injured party

Negligent Act

• Conduct that falls below the standard of care required by society and causes harm

Reasonable Care

• Type of defense

• Defendant will not be liable if they took all the reasonable steps to avoid damage causing event

Elements of a Cause of Action in Negligence

1. Defendant owed the plaintiff a DUTY OF CARE recognized at law

1. Defendant’s conduct breached a STANDARD OF CARE set by the law

2. Defendant’s breach CAUSED the plaintiff’s damages

3. Damages caused are not TOO REMOTE

1) Duty of Care

• Legal obligation placed on a person to take reasonable care when performing a particular activity

• Established duties of care: relationships have already been established

• Neighbour test: Novelty? Reasonably foreseeable? Policy Considerations?

2) Standard of Care Breach

• Degree of care an ordinary and reasonable person would exercise in the circumstances

• Reasonable person: normal temperament and level of self-control

3) CAUSal connection

• Plaintifff must prove that the negligent conduct did cause the accident

• “But for” Test: “but for” the conduct of the defendant, no injury would have resulted

4) Remoteness of Damage

• Whether the defendant could have foreseen that its breach of the standard of care would cause the kind of damage that the plaintiff experienced

Voluntary Assumption of Risk

• Where the plaintiff has expressly or impliedly agreed to assume a risk, they absolve the defendant from responsibility

• Must be shown plaintiff voluntarily assumed both the physical and legal risk of injury from defendant’s negligence

Contributory Negligence (Partial Defense)

• Failure to meet the standard of care to which he is required to conform for his own protection and which is a legally contributing cause

• Defendants’ liability will be reduced by the proportion of the plaintiff’s own contributing negligence

Inevitable Accident

• Accident is purely inevitable and not caused by the fault of either party

• Defendant must show that something happened over which he or she had no control and the effect could not have been prevented

Illegality

• Plaintiff and defendant were jointly involved in an illegal enterprise

• Courts will not hear lawsuit if brought by a party engaged in unlawful activity

• Only justification is preservation of the integrity of the legal system

Intentional Torts

• Trespass: trespassers are liable for all losses they cause while trespassing (even if accidental)

  • Direct interference that causes damage to chattels — court can award damages as compensation

• Conversion: wrongful taking of personal property

  • Wrongful act by the defendant involving the goods of the plaintiff, act must consist of handling, disposing, or destroying the goods, defendants’ actions must have either the effect or intention of interfering with the plaintiff’s right or title to the goods

    • Detinue

• Assault & Battery

  • Battery: Direct harmful or offensive contact with another person w/o consent

  • Assault: Intentionally creating in another person an apprehension of imminent harmful or offensive contact

    • Tortfeasor’s threat of imminent harm is the assault

• False Imprisonment

Defenses to civil battery claim

• Self-Defense: Response to threat must be proportional and reasonable

  • May only be used to repel or prevent an attack, not to punish an aggressor

• Consent: Must be genuine not obtained by force or threat of force or be given under the influence of drugs

False Imprisonment

• Complete deprivation of liberty for any period of time without lawful cause and against a person’s will

• Actively causing the confinement of the person or preventing the person from exercising the privilege of leaving a place

Defamation

• Words that tend to lower a person in the estimation of others or cause a person to be shunned or avoided or exposed to hatred, contempt, or ridicule

• Protect reputation from false statement

• Impugned words must be defamatory and must have referred to the plaintiff and published (at least one other person than the plaintiff heard)

Defenses to Defamation

1. Truth

2. Fair Comment

3. Absolute Privilege

4. Qualified Privilege

Injurious Falsehood (Product Defamation)

• Protects interest in one’s property, products, or business

• Defendant published to third parties words that are false

• Words refer to the plaintiff or his or her property / business

• Words were published maliciously

• Special damage followed

Inducing Breach of Contract

• Induce another to not perform contractual obligations with a third party

Requires:

• Existence of a contract

• Knowledge or awareness by the defendant of the contract

• Breach of the contract by contracting party

• Defendant induced the breach

• Defendant intended to cause the breach

• Defendant acted without justification

• Plaintiff suffered damages

Interference with Economic Relations

• Aims to give redress in the context of deliberate wrongdoing that causes commercial harm

• Courts will not permit one party to illegally interfere with the business affairs of a third party

Elements:

• Defendant must have intended to injure the plaintiff’s economic interests

• Interferences must have been by illegal or unlawful means

• Plaintiff must have suffered economic harm or loss as a result

Breach of Confidence

• Unauthorized use of confidential information

  • Information that is not generally known and public knowledge

1. Information that the defendant used was of a confidential quality

2. Imparted in confidential circumstances

3. Detriment was suffered due to unauthorized use

Contracts

• Deliberate agreement between two or more competent persons:

  • Supported by mutual consideration

  • To perform some act voluntarily

  • Which agreement is enforceable in a court of law

  • Not necessarily in writing

• Allows participants to create their own rights and duties within a framework of rules enforceable by a judge, if needed

Must contain:

1. Intention to create a legal relationship

2. Offer & Acceptance

3. Mutual Consideration

4. Contract must conform to the law

Advantages of Contracts

• Parties can rely on the terms & plan business affairs

• Creates binding promises that can be enforced in court

• Various options for dispute resolution

• Written contracts: ensures that each receive what they bargained for, reduced risks of misunderstandings & uncertainty, addresses potentially contentious issues early

Termination of Offer

• Revocation: Offer no longer on the table

• Lapse: Expiration of an offer

• Rejection: Refusal to accept an offer

• Counteroffer: Turning down and proposing a new one

• Death or insanity

Separation of Powers

• Executive: power to put law into action

• Judiciary: power to make judgements on law

• Parliament: power to make and change law

1867 Constitution Act (BNA)

• Outlines system of government, election process, powers of the executive branch, and the division of powers b/w the federal government and provincial

1982 Constitution Act (Canadian Charter of Rights & Freedoms)

• Civil rights of each Canadian citizen

• Only applies where there is an element of government activity

Rule of Precedent

• Similar fact situation bound by a decision in law of a higher court within that jurisdiction

• Binding authority: Court’s above the court being used have a binding decision on lower level courts

• Persuasive Authority: Not bound by law to follow decisions in different districts

Analogical Reasoning

1. Identify analogous features b/w old + new case

2. Assess whether analogous features are relevant to legal conclusion

3. Identify distinguishing characteristics

4. Assess whether they are relevant to the legal conclusion

5. Decide which factors predominate in the comparison

6. Evaluate the strength of the analogical argument based on balance of the relevant similarities + differences

7. Consider the weight of the legal precedent + applicability to the new case

8. Analyze whether any changes in law / policy may affect the relevance of the analogous features or distinguishing characteristics

9. Determine the overall persuasiveness of the analogical argument

Alternative Dispute Resolution

• Negotiation: process of deliberation and discussion intended to reach a mutually acceptable resolution to a dispute

• Mediation: mediator assists the parties in reaching a settlement of their dispute

• Arbitration: arbitrator appointed by the parties make a decision

• Litigation: legal action brought against another party

Stages of a lawsuit

1. Pleadings (statement of claim, statement of defense, counterclaim, third party claim)

2. Discovery

3. Trial

4. Enforcement

Tort & Tort Law

Tort: wrongful act that results in injury to person, property, dignity, or reputation and for which the law provides a remedy

Purpose of Tort Law: Compensate an injured party when they have been harmed by someone else’s blameworthy conduct

1. Compensation for victims of wrongs

2. Shifting loss from victim to wrongdoer

3. Deterrence

4. Punishment?

Direct Liability

• Arises because of one’s own personal wrongdoing

Vicarious Liability

• Arises due to the relationship that someone has to the person who commits the tort

Joint Tort Feasor

• Common act by multiple parties produces or causes harm to another

Concurrent Tort Feasor

• Separate acts by unrelated or independent tortfeasors combine to produce or cause harm to another

• Jointly or severally liable

Contributory negligence

• Plaintiff has contributed to their own misfortune by their own negligence

• Failure to take reasonable care for one’s own safety

General Damages (Non-pecuniary)

Difficulty of computing their values w/ exactness

Special damages (pecuniary)

• Precisely calculable expenses or losses incurred, exact computation @ a definite sum of money

Aggravated damages

• Compensation aggravation of intangible injuries by high-handed and culpable conduct

Punitive Damages

• Designed to punish due to harsh, vindictive, reprehensive, and malicious nature

• Conduct must be extreme

• May be exemplified by malice, fraud or cruelty as well as other abusive and insolent acts towards the victim

VOID Contract

• Didn’t ever become a valid and enforceable agreement at any time

VOIDABLE Contract

• Formulated in a way that fell short in a way

• Binding unless rescinded

  • Treated if it never existed

• Ratified will be treated like it’s been existing

Recission

• Exercise of a valid right

• Proper and lawful reason to treat the contract as never being entered into

  • Valid legal reason — court will not penalize them for it

Repudiation

• Puts you in the wrong

• No valid proper legal reason

  • Might think they have one but they don’t

• Committed a breach of contract — could be sued

Legal Capacity

• Individual’s ability to make decisions that create binding legal contracts

• Lack of capacity can impair a person’s ability to enter binding legal contracts

• Legal capacity can fluctuate from time to time — whether the person was able to understand the nature, the consequence of the decision they’re making

• Age of majority: assumed to have legal capacity to form binding contracts

• Minors and mental incapacities have extra legal protections

  • Contracts may be void or voidable

Legal Capacity: Minors

• Common law surrounding contractual capacity of minors

• Contracts detrimental to the interests of a minor are void

• Once reaches age of majority, contracts are enforceable unless person adopts or ratifies agreement

• Minors are bound by contracts for necessaries and beneficial contracts of employment

Duress

• Threat of physical harm will render a contract voidable

• Economic duress: threat of economic harm that coerces the will of the other party to enter a contract

• Contract may be voidable

• THREAT TO SUE is typically NOT duress

Undue Influence

• Compromises someone’s free will or choice

  • Manipulation, coercion, abusive power

Unconscionability

• Unfair contract formed when one party takes advantage of the weakness of another

• Contract will be VOID

1. Inequality of bargaining power

2. Results in an improvident bargain

• Protect those that are vulnerable in the process

Misrepresentation

• Misstated fact that persuades or induces party to enter into a contract

• Buyer beware — negotiating process party is not required to volunteer ALL the information to the other party

Fraudulent misrepresent

• Representation must be untrue in fact, known to be untrue by the defendant, intended to induce the plaintiff to act upon it, which the plaintiff acts upon and suffers damage

• Recission in contract, damages in tort

Negligent misrepresentation

• Makes an untrue relationship carelessly without knowing if the facts they’re referencing are true or untrue

• Special relationship between the parties giving rise to a duty of care, reasonable reliance on the representation and damages caused by the reliance

• Recission in contract, damages in tort

Innocent misrepresentation

• Inadvertent misrepresented a fact

• No right to claim damages for an innocent misrepresentation

• Recission in contract and recover any deposits made

Mistake

• One or both enter into a contract based on a mistake or belief of a set of facts that turn out to not be true

  • Mistake doesn’t arise from misinformation given from one party to another

• “Meetings of the minds” where it is clear to the objective reasonable bystander that the parties intended to contract with each other and the essential terms of the contract can be determined with a reasonable degree of certainty

Common Mistake

• Both parties make the same mistake regarding the subject matter, contract will be void or voidable

Mutual Mistake

• Both parties have a diff subject matter in mind, contract will be void

Unilateral Mistake

• Error made by one party to a contact that is known to the other, and the knowing party makes no attempt to fix this error

• Usually no resolution

Rectification

• Remedy available where parties have made a mistake in recording their agreement

• Identify the specific terms actually agreed to them and substitute them

• Gives effect the parties’ true intentions, rather than to erroneous transcription of those true intentions

Illegality

• Illegal purpose for contracts will be VOID

Statutory Illegality

• Agreement that is expressly prohibited by statue is void and therefore unenforceable

Common Law Illegality

• Contract to do anything that amounts to a crime or a tort or other breach of civil law duty is illegal and void

• No person can lawfully do that which has a tendency to be injurious to the public or against public good

Statue of Frauds

• Some contracts need to be in writing to be enforceable

• Contracts dealing with land (leases, sales, etc)

  • Exception for “part performance”

• Contracts of Guarantee

  • Promise to pay the debt of someone else if they default