Business Law - Chapter 3: Tort law Part 1 - The intentional torts

What do torts deal with?

Results of the actions or omissions of another person (the tortfeasor/defendant)

Tort

A behaviour that falls below a minimal social standard, and is an area of private law where the police don’t investigate

Tort (con’t)

No one goes to jail for committing a tort

The relationship between crimes and torts

A person can be charged with a crime and sued for a tort

Intentional torts

The person who caused the injury or harm intended to do

e.g. Assault, battery, defamation, and false imprisonment

Unintentional torts

When the person who caused the injury or harm did not intend to do so, but was still careless in their actions

e.g. Negligence, strict liability

Further examples of torts

• Injuries (mental/physical)

• Psychological

• Property damage

• Financial loss

Existence of torts

Some torts pre-exist the formation of Canada as they originally came from Britain

Tortfeasor

The party guilty of a tort

Liability

When someone is legally responsible for losses suffered as a result of a tort

Direct liability

A situation where an individual or organization is soley liable for their own actions

e.g. If a driver causes a car crash due to their own negligence

Vicarious liability

A situation where an individual or organization is held liable for the actions of another person

e.g. If a delivery driver for a company causes an accident while on the job, the employer may be held vicariously liable for damages

The two requirements for establishing vicarious liability

1. There must be a relationship of employment between the employer and the employee

2. The employee must have committed the tortious act within the scope of their employment. I.e. the act must have been committed in the course of the employee’s work duties or be otherwise closely related to acting on the employer’s behalf

Battery

When the plaintiff typically experiences actual unwanted physical contact as a result of the actions of the defendant

Legal Test for Battery

1. There was intentional physical contact.

2. The contact was non-trivial

3. The contact was offensive (meaning that the victim did not consent).

Non-trivial

Contact that’s not consented to (express or implied)

Assault (tort)

Protects individuals from gestures or words that cause fear of physical harm, even if no physical contact is made.

Legal test for assault

1. The tortfeasor created an intentional apprehension in the victim.

2. The tortfeasor threatened imminent contact

3. The contact threatened was offensive (meaning that the victim did not consent).

Intentional infliction of mental suffering/emotional distress

Seeking damages for severe emotional distress caused by the defendant’s intentional or reckless conduct

Legal test for intentional infliction of mental suffering/emotional distress

1. The tortfeasor’s conduct was flagrant and outrageous

2. The tortfeasor’s conduct was calculated to cause harm

3. The tortfeasor’s conduct resulted in a visible and provable illness or injury.

False imprisonment

When the defendant intentionally restricts the plaintiff’s freedom of movement through the restriction of physical freedom or threat or psychological pressure

e.g. When a person is wrongfully detained by the police or when a store employee wrongly accuses a shopper of shoplifting and detains them

Legal test for false imprisonment

1. The plaintiff was totally deprived of his or her liberty

2. The deprivation was against the plaintiff’s will

3. The deprivation was directly caused by the defendant

The guidelines for citizen’s arrest

Empowers any person to arrest another person whom they reasonably believe has committed a criminal offence if they witnessed a crime being committed or reasonably believed one was just committed

Malicious prosecution

When a person initiates a criminal legal proceeding against another person on malicious grounds

Legal test for malicious prosecution

1. Initiated by the defendant

2. Terminated in favour of the plaintiff

3. Undertaken without reasonable and probable cause

4. Motivated by malice or a primary purpose other than that of carrying the law into effect.

Statutory Tort of Invasion of Privacy

To violate the privacy of another. The nature/degree of privacy to which a person is entitled in a situation or in relation to a matter depends on the circumstances of the given situation.

Statutory Tort of Invasion of Privacy (con’t)

Regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties

Privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

Legal test for invasion of privacy in BC

1. The defendant wilfully invaded the privacy of the plaintiff

2. The plaintiff had a reasonable expectation of privacy in the circumstances.

Trespass to Land

When an individual enters onto or remains on someone else’s land without consent or lawful authority

e.g. Sneaking onto private land, staying on someone’s property after being asked to leave, blocking someone’s driveway

Legal test for trespass to land

1. The defendant entered onto the plaintiff’s land

2. There was no lawful justification for entering the land.

Nuisance

Any unreasonable interference with the use and enjoyment of someone’s property; its purpose is to protect an individual’s right to exclusive possession and control over their land

Intrusion of seclusion/invasion of privacy

When one’s privacy is wilfully invaded without good reason in a situation where they have a reasonable expectation of privacy

Legal test for nuisance

1. The defendant interfered with the plaintiff’s use and enjoyment of land

2. The interference was unreasonable

The 4 factors for determining unreasonable interference

1. The character of the neighbourhood in question

2. The severity of the interference

3. The utility of the defendant’s conduct

4. The sensitivity of the plaintiff

Examples of a nuisance claim

• Excessive or loud noise

• Smoke drifting onto the neighbour’s property (cigarettes, vaping, burning leaves, etc)

• Pets coming onto the neighbour’s property

• Trees, bushes, roots, growing onto the neighbour’s property

• Neglected or unkept property that draws animals

Chattel torts

A group of torts that deal with the unauthorized or wrongful use of another’s personal property

e.g. Furniture, vehicles, electronic devices, clothing, and other personal objects

Conversion

When someone intentionally or negligently interferes with another person’s right to possession of their chattel

e.g. If someone takes another person’s car without their permission and uses it for their own purposes

Trespass to chattles

When someone intentionally interferes with another person’s right to possession of their chattel (property), but without actually taking possession of it

e.g. If someone intentionally damages another person’s computer without taking it

Detinue

When someone is in lawful possession of another person’s chattel, but refuses to return it when the rightful owner demands it

e.g. If a person borrows another person’s lawn mower and refuses to return it

Replevin

Is a legal action to recover personal property that is wrongfully taken or detained

Defamation

Provides a legal remedy to individuals who have suffered harm to their reputation

Libel

Written defamation

Slander

Spoken defamation

The legal test for defamation

1. The statement was defamatory.

2. The statement referred to the plaintiff

3. The statement was published by the defendant to at least one other person

Civil conspiracy

A legal cause of action that allows individuals to seek damages when two or more parties conspire to commit an unlawful act resulting in harm

Legal test for civil conspiracy

1. The defendants must act in combination by agreement or with a common design

2. Each of the defendant’s conduct must be unlawful and in furtherance of the conspiracy

3. The defendants’ acts must be directed towards the plaintiff;
   The defendants should have known that, in the circumstances, injury to the plaintiff would likely result

4. Each defendant’s conduct causes injury to the plaintiff.

Intimidation

When one person threatens to cause injury or loss to another person in order to influence their actions or decisions

e.g. Physical threats, threats to one’s reputation, threats to one’s economic well-being

Legal test for intimidation

1. Coercion of another to do or refrain from doing an act

2. The use of a threat as a means of compulsion

3. The threat must be to use unlawful means

Legal test for intimidation (con’t)

4. The person threatened must comply with the demand

5. Intention to injure the person threatened

6. The person threatened must suffer damage

Inducing breach of conduct

When one person intentionally persuades another to breach a contract with a third party

Legal test for inducing breach of contract

1. The existence of a contract;

2. The defendant was or can be assumed to have been aware of the existence of the contract

3. The defendant intended to cause the breach

4. The defendant caused or induced a breach

5. The plaintiff suffered damage as a result.

Tort action

A court case involving a tort

Liability insurance

Protects businesses from the financial costs and losses of liability

Joint and several liability

When there’s more than one tortfeasor who committed a tort against the victim. The tortfeasors may be sued together (joint) or individually (several)

Apportion liability and contributory negligence

When the victim contributes to their own harm

e.g. Jaywalking

Elements

Pieces which make up a reason for suing; they all must be proven in order for cause of action to take place

Defamation vs free speech