BUSI 3005 Chapter 12

Occupier’s Liability

Liability was determined by classifying the visitor as a contractual entrant, invitee, licensee, or trespasser. Not used by most provinces

Occupier’s Liability Legislation

• Used by most provinces to simplify occupier’s liability.

• Sorts people into 2 categories:

  • tresspassor

  • everyone else

• Provides for a high duty of care to entrants on the property with express or implied permission

• Taking reasonable care to ensure visitor is safe while using the premises

• Occupier must not create deliberate harm or damage to trespassers

Defences to Slip and Falls (Occupier’s Liability)

That the defendant took reasonable care to ensure that persons on the premises were safe (eg. sweep logs, regular maintenance checks, etc)

Tort of Nuisance

• Attempts to address conflicts between neighbours stemming from land use

• Arises if an activity on an occupier’s property unreasonably and substantially interferes with the neighbour’s rights to enjoyment of their property

• Doesn’t arise where the intrusion is only temporary (house party one night)

Tort of Trespass

• Protects a person’s possession of land from “wrongful interference.”

• The act of coming onto another person’s property without the occupier’s express or implied consent

• Injunction to stop trespassing is often the remedy of choice

• Could be used in boundary disputes where one neighbour encroaches on another’s property (shed on neighbour’s property)

Tort of False Imprisonment

• Unlawful detention or physical restraint or coercion by psychological means

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

• Occurs most often in retail setting, arising when any person detains another without lawful justification

Tort of Deceit/Fraud/Misrepresentation

Misrepresentations that are made fraudulently or recklessly, causing loss

Tort of Passing Off

Presenting another’s goods or services as one’s own. 3 elements:

• Goodwill (good reputation)

• Confusion

• Damage

Commonly seen as an intellectual property claim, using signs or symbols that are confusingly similar to a recognized trademark

NOT THE SAME AS TRADEMARK ACT (not a tort)

Tort of Interference with Contractual Relations

Inciting someone to break the contractual obligations of another. Example: poaching someone

Tort of Defamation

The public utterance of a false statement of fact or opinion that harms another’s reputation

Defences to Defamation

• qualified privilege

• absolute privilege

• fair comment

• justification

• responsible communication on matters of public interest

qualified privilege

Defamatory statement being relevant, without malice, and communicated only to a party who has a relevant interest in receiving it (eg. A statement made in a reference about a former employee)

absolute privilege

Freedom of expression is so vital in some venues that no successful defamation action can be brought (court and parliament)

fair comment

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

• Has to be factully based (give reason)

• Has to be opinion honestly held by anyone based on those facts

justification

the statement was true

responsible communication on matters of public interest

New defence that may apply to media, bloggers, etc, as they report on developing stories of importance to the public. Must show diligence

Injurious Falsehood

• The utterance of a false statement about another’s goods or services that’s harmful to their reputation

• Requires plaintiff to establish that statements were false and published (uttered) with malice or improper motive