5 - Intentional Torts

Tort

A wrongful act in which a person has suffered a loss, injury or damage. The main objective is compensation

Tortfeasor

Perpetrator, defendant

Categories of Tort Law

Intentional torts or unintentional torts

Intentional Torts

Deliberate act/behaviour that results in a tort

Unintentional Torts

Non-intentional act/behaviour that results in a tort.

Damages

Amount of financial compensation

Special Damages

Covers expenses that have been incurred, or specific calculable pre-trial losses. Can prove with receipts

General Damages

Things that the court has to estimate since it is not possible to place value on the loss (looks at past precedent cases). This is where the big money comes from

Punitive Damages

Extra punishment damages because they did something really extreme

Trends in Tort Law

Fault, causation, compensable injury

Fault

Courts have broadened the requirement over time - can now sue for the accidental conduct as well as deliberate

Causation

Moved from a broad test to a narrow test, meaning a defendant is able to avoid liability of the injury was too remote to be foreseeable

Compensable Injury

Broadened the types of injuries deemed compensable

Balancing how much Compensation is Appropriate

Courts look at the desire to compensate innocent victims vs. the desire to avoid inhibiting beneficial conduct

Vicarious Liability

The responsibility that one person may have for the torts of another. The plaintiff has to show a particular relationship exists with the defendant. Common in employee and employer relationships

Trespass to the Person

Intentional physical interference with another, an intentional tort

Battery

Deliberate physical contact of another person without their consent

Assault

Deliberate threat of contact or harm that establishes real fear

Defences to Battery

Consent and self-defence

Consent

Must be informed, a complete defence

Self-Defence

Can use reasonable force to repel attack, must be proportionate to the force directed at you. A complete defence

Provokation

Provoked to do it, not a complete defence but can lessen liability

Medical Battery

Touching a patient without their consent

Emergency Doctrine

If a patient cannot consent and if immediate treatment is required to preserve life or preserve health then it is implied that the patient would consent if he could

Chattels

Personal property

Trespass to Chattels

Deliberate interference with personal property or possessions, without consent/lawful right

Conversion

Tort law equivalent to theft, someone asserting ownership of your property without consent. Includes trespass to chattels

Detinue

Wrongfully detaining someone’s property

Trespass to Land

Deliberately being on another property and is there without permission of lawful right, no damage is necessary. Must provide a reasonable opportunity to leave

Occupier’s Liability

Legal duty of care that a property owner or occupier owes to individuals entering their premises. Greater duty of care is owed towards minors

Private Nuisance

Unusual use of one’s property that causes interference with neighbour’s use of property and results in foreseeable injury or harm

Strict Liability

Defendant held responsible even if actions were not intended or not negligent. It results in automatic liability

False Imprisonment

Detaining or holding someone against their will, can be physical or mental

Citizens Arrest

Regular person can detain someone they have SEEN committing an indictable offence. They must have seen the crime being committed and the person must have committed an indictable offence

Defamation

Harm to someone’s reputation, includes written and spoken. Statements that contain insinuated meanings can be defamatory

3 Criteria for Defamation

Had to be a false statement, statement has to be communicated to a third party and the statement was derogatory to one’s reputation

Defences to Defamation

Truth (justification), absolute privilege, qualified privilege and fair comment

Truth (justification)

Statements a complete defence

Absolute Privilege

Statements made in forums where complete openness is necessary (eg. Parliament, Legislature, courtroom)

Qualified Privilege

Statements made out of a sense of duty, they are made to others who have a right to know and are without malice or knowledge of falsehood

Fair Comment

Often used by the press. Comments made regarding public figures, without malice or unjust motive

Does Tort Law Protect Privacy?

No tort called invasion of privacy, it is protected by statute law

Provincial Privacy Protections

Freedom of Information and Protection of Privacy and Personal Information Protection Act

FOIP

Protects us from provincial government from using and abusing private info

PIPA

Protects us from provincial non-government organizations from using and abusing private info

Federal Privacy Protections

Privacy Act and Personal Information Protection and Electronic Documentation Act

Privacy Act

Protects us from federal government from using and abusing private info

PIPEDA

Protects from non-government institutions that operate within a federal sphere from using and abusing private info

Examples of Business Torts

Inducing breach of contract, interference with economic relations, intimidation, deceit, conspiracy, malicious prosecution, passing off, breach of confidentiality, injurious falsehood

Inducing Breach of Contract

Persuade someone else to break their contract. A contract was breached, the defendant knew about the contract and deliberately inducted its breach and the plaintiff, a party to the contract, suffered as a result

Interference with Economic Relations

Interfering with the normal way the markets work.

Intimidation

Using a threat of violence or some other illegal activity to force a party to do something. Business equivalent of assault

Deceit (Fraudulent Misrepresentation)

Intentional fraudulent misleading of another, causing damage. The statements were made: knowing them to be false or, without belief in their truth or, recklessly, not caring whether they were true or not. Punative damages are often rewarded

Conspiracy to Injure

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

Malicious Prosecution

Plaintiff must establish that the defendant initiated prosecution out of malice, must be a lack of reasonable grounds supporting the prosecution

Passing Off

Misleading others as to whose product or service is being offered. Passing of your product as if it were anothers

Passing Off Criteria

Plaintiff must prove: the plaintiff’s goods, services or business enjoy a reputation that is worth protecting, the defendant misrepresented its goods, services or business as being those of the plaintiff, the public was misled or confusion is likely and the plaintiff suffered damage

Breach of Confidentiality

Wrongful disclosure of confidential information. The information must be of a confidential nature, given to someone in confidence and must have been misused by the person to whom it was given

Injurious Falsehood (Trade Defamation)

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