Intentional Tort Notes (Ch. 2–4) and Intro to Tort Liability
Overview of the intentional torts course (Part 2)
Part one of the course is about thought and habit formation; within that, three major parts are identified:
Chapter 1: Understanding and defining thought (thought for you) so that it can be mastered.
Chapters 2–4: Focus on intentional torts; these chapters are grouped because of the common topic: intention.
Chapters 5–7: Focus on negligence (something wrong, but not intentional).
Chapter 8: Conclusion that ties together responsibility and liability, including absolute, strict liability, and carrier liability.
The instructor emphasizes a progression: you must understand Chapter 1 (definitions/principles) before moving on to Chapters 2–4 (intentional tort) and then to the broader liability concepts in Chapter 8. Skipping Chapter 1 makes later chapters harder to grasp.
The course structure is reinforced as: Introduction/definition → intentional torts (2–4) → negligence (5–7) → liability frameworks (8).
There is a strong emphasis on real texts and the evolution of tort law through case law, illustrating that tort law is a living common-law system, not a static set of rules.
The instructor asks students to review pages and highlights certain topics for emphasis, including assault, battery, abuse of process, false imprisonment, malicious prosecution, intentional infliction of mental suffering, and intrusion upon seclusion.
Core concepts and terminology
Intentional torts require one central element: intention. The civil standard is not “beyond a reasonable doubt” (that is for criminal law) but a more flexible, probability-based standard where intent to commit the tort is key.
Key terms frequently highlighted in class:
Assault
Battery
False imprisonment
Malicious prosecution
Abuse of process
Intentional infliction of mental suffering (IIEMS) / intentional infliction of mental distress
Intrusion upon seclusion
The course stresses that many intentional torts overlap with criminal law (e.g., assault can be both a criminal charge and a civil tort). The criminal standard uses proof beyond a reasonable doubt, while civil torts focus on the plaintiff proving the elements by a balance of probabilities.
The instructor uses a mix of hypotheticals and famous cases to illustrate elements and defenses, and points out that many tort doctrines originated in nineteenth-century or earlier cases but have continued to develop with modern technology and social norms (e.g., intrusion upon seclusion in the digital age).
Chapter 2–Chapter 4: Intentional torts against the person
Chapter 2–4 organization and focus
Chapter 2 focuses on intentional torts against the person and property; Chapter 3 focuses on torts related to business (and is described as relatively easy to understand, given its business tort focus); Chapter 4 teaches defenses to intentional torts (notably, the defense position in civil litigation and its overlap with criminal defense mechanics).
The instructor emphasizes that these chapters build a framework for understanding both civil liability and the overlap with criminal law. The defence concepts (Chapter 4) are tied to earlier criminal law concepts discussed in the course.
Chapter 2–4 collectively center on the topic of intention (intentional harm or interference) and its various manifestations.
Assault
Definition (civil): The intentional creation of reasonable apprehension of imminent harmful or offensive contact in another person. Importantly, no physical contact is required for assault in tort law; the threat or imminent contact suffices if perceived as real by a reasonable person.
Key elements for civil assault (as highlighted in the class):
Intent to create imminent apprehension of harmful/offensive contact.
Plaintiff apprehends that contact is going to occur.
The apprehension is reasonable.
The contact would be imminent (no significant delay that would allow the plaintiff to avoid it).
Classroom example used: a person in a nightclub reads as the attacker swinging a clenched fist toward the plaintiff; the plaintiff ducks away before contact occurs. This illustrates that assault can be established even if no contact actually happens, provided there is an imminent threat and reasonable apprehension.
Overlaps with criminal law: criminal assault is defined in the Criminal Code, and the crown must prove guilt beyond a reasonable doubt; civil assault uses a lower standard and focuses on proof of the three core elements above and the plaintiff’s perception of imminence.
Battery
Definition (civil): The intentional and unlawful contact of one person with another; contact can be direct or indirect and can be socially offensive (not merely harmful) physical contact.
Distinction from assault: Battery requires actual contact, whereas assault can be established without contact if there is imminent threat of contact and reasonable apprehension.
Key elements for civil battery:
Intentional act to bring about contact (the act itself is intentional).
The contact occurs (unlawful physical contact).
The contact is unlawful (the contact was not consented to, and the conduct exceeded any consent given).
The lecturer emphasizes that battery can involve socially offensive contact (e.g., touching or touching in a way that would be offensive socially, not just physically harmful). Indirect contact (e.g., using an object to touch someone) can also support battery liability.
Illustrative examples discussed:
A doctor telling or performing an invasive procedure without consent can raise battery concerns (with nuance in medical emergencies and consent exceptions).
Socially offensive touch (e.g., touching someone inappropriately) qualifies as battery regardless of intent to harm.
Non-consensual touching of body parts (even if not harmful) can qualify as battery when it violates personal autonomy and dignity.
The section underscores that the court’s view of battery is rooted in protecting personal autonomy and bodily integrity, with relevant cases cited (e.g., Wilkinson case for IIEMS and the general aim of protecting personal autonomy).
False imprisonment
Definition (civil): The intentional confinement or restraint of a person’s liberty of movement without consent and without legal justification.
Three essential requirements (as highlighted in the class):
Total or substantial confinement of the plaintiff's freedom to leave a place (no reasonable means of escape; e.g., front door locked with no exit or a window that requires an unsafe escape).
The confinement is against the plaintiff’s will (deprivation of free will or autonomy).
The confinement is caused by the defendant's actions or their authorization.
Illustrative classroom scenarios:
A professor locks classroom doors, preventing students from leaving. The question is whether this constitutes false imprisonment, considering whether there was an alternative exit or whether the confinement was intentional and caused by the defendant.
Private security or security guards in shopping malls detaining suspected shoplifters can create false imprisonment questions; the law recognizes private individuals can make detentions in certain circumstances (e.g., detaining in the process of committing an indictable offense), but the rights and limits vary from police powers.
Distinction between police powers and private citizen powers:
Police use formal authority and have the right to detain under statutory powers, subject to rights and due process.
Private citizens can detain someone only in the process of a crime being committed (indictable offense) and must be reasonable and proportionate; excessive detention or unlawful arrest can give rise to liability for false imprisonment.
The section notes the overlap with criminal law and practical implications in real-life settings (e.g., shoplifting scenarios, domestic violence, and security detentions).
Additional example discussed: a classroom scenario where the teacher’s action prevents exit and is scrutinized for false imprisonment; the existence of alternative exits and the defendant’s intent are key in determining liability.
Malicious prosecution
Definition (civil): A civil tort where a person maliciously initiates a criminal proceeding without reasonable grounds and with malice, causing damage to the plaintiff.
Key prerequisites/elements:
The defendant initiated or continued a criminal proceeding against the plaintiff (the plaintiff was the target of the criminal process).
The proceedings were terminated in the plaintiff’s favor (i.e., the criminal case ended without conviction or was found not guilty, or the charges were dropped due to lack of evidence or proof of malice).
The defendant acted with malice or improper purpose (revenge or improper motive).
The proceedings caused damage to the plaintiff (in the civil sense, e.g., reputational harm, financial losses).
Walkthrough of a classic scenario used in class:
A neighbor (Charlie) falsely reports theft to police; charges are filed; later, charges are dropped as the truth comes out. The question is whether Charlie committed malicious prosecution.
Important sequencing: in many jurisdictions, a civil claim for malicious prosecution requires that the criminal proceedings have been terminated in the plaintiff’s favor (i.e., not guilty). If the criminal case ends in a not guilty verdict, the plaintiff may pursue a civil claim for malicious prosecution if there was malice and lack of reasonable grounds.
The instructor emphasizes that in some cases the plaintiff’s attorney must ensure that the criminal process has run its course and resulted in a termination in the plaintiff’s favor before pursuing the civil claim.
The section also notes that there can be overlap with abuse of process (a broader concept) and that the two have different prerequisites and aims.
Abuse of process
Definition (civil): The use of a court process for an improper purpose, beyond the proper use of legal procedures. It’s a broader concept than malicious prosecution and focuses on the improper use of civil or judicial procedures rather than criminal proceedings.
Distinction from malicious prosecution:
Malicious prosecution centers on improper motive and the initiation of criminal proceedings that end in a plaintiff’s favor; it requires a criminal process and termination in favor of the plaintiff.
Abuse of process concerns the improper or excessive use of civil legal processes (e.g., a civil lawsuit launched with an improper motive or to coerce or harass, regardless of criminal process).
Four elements to prove abuse of process (as discussed on page 21):
The plaintiff is a party to a legal process initiated by the defendant.
The defendant’s predominant purpose for initiating the legal process was to achieve an improper purpose.
The defendant performed a definite act in furtherance of that improper purpose.
Special damages resulted from that improper purpose or the process.
The instructor gives practical examples and notes about the difference between abuse of process and malicious prosecution, including a hypothetical involving a small-claims matter or defamation to illustrate improper use of civil processes for revenge or coercion.
A brief celebrity parallel is used (Amber Heard vs Johnny Depp in media contexts) to explain how abuses of process may occur in civil litigation and how the plaintiff and defendant roles can shift across stages of litigation.
The concept of “style of cause” and party naming (e.g., R vs Judy; later Judy v Charlie) is discussed as a practical note for court documents and to understand who is the plaintiff and who is the defendant in different stages and contexts of litigation.
Intrusion upon seclusion
Definition and emergence: A relatively newer tort in Canadian law (with inspiration from U.S. doctrine) addressing invasions of privacy where someone intrudes into a private aspect of a person’s life without consent in a manner highly offensive to a reasonable person.
Foundational case and principle discussed:
Johns v Siegle (Jones v Siego) and related Ontario case law are used to discuss intrusion upon seclusion. The key idea is intrusion into personal privacy, such as access to banking records, where sensitive information reveals life history and finances.
Core elements typically argued (as highlighted in the transcript):
An unauthorized intrusion into a private space or information.
The intrusion would be highly offensive to a reasonable person.
The intrusion would be considered as an invasion of privacy by a reasonable person.
The Walmart case and the use of new privacy torts: The instructor references the Johns v Siegle line of cases to discuss intrusion upon seclusion and highlights its relevance to modern technology (e.g., digital data access, banking records, social media, etc.).
Practical significance: This tort reflects the modern era’s privacy concerns and provides a civil remedy for privacy invasions that do not fit neatly into traditional torts (battery, trespass, or false imprisonment).
Intentional infliction of mental suffering (IIEMS) / intentional infliction of mental distress
Definition and origin: A tort historically developed through common-law doctrine, focused on outrageous or flagrant conduct that causes severe emotional distress. The class discusses Wilkinson v Downton as a landmark (1987) that helped shape IIEMS by defining actionable outrageous conduct and the resulting emotional distress.
Three major conduct requirements (as summarized in the lecture):
Be flagrant, outrageous, and extreme in nature (outrageous conduct).
Be calculated to produce the harm (the defendant must have intended to or known that the conduct was likely to cause the distress).
Result in a visible and probable injury (the plaintiff suffered actual harm, e.g., vomiting, medical issues, or other tangible distress).
The Wilkinson v Downton case: A classic example used to illustrate the concept of “violent shock” to the nervous system as a result of outrageous conduct.
Walmart case (emotional distress): A high-profile example in which emotional distress and mental anguish were recognized as compensable injuries, with significant damages (e.g., 100000 in the case cited). The case demonstrates the link between sustained abuse or harassment and emotional/psychological injury.
Practical implications: IIEMS covers more than mere hurt feelings; it requires a plaintiff to show severe emotional distress and a causal link to the defendant’s outrageous conduct. It is impacted by evolving social norms and modern communication technologies.
Other notes on the course and practical guidance
The lecturer frequently emphasizes the interplay between tort law and criminal law and notes that many tort questions involve evaluating intent, the nature of contact, and the reasonableness of the plaintiff’s expectations.
The course uses real-world hypotheticals to help students identify which torts apply and how to structure a civil claim, including the elements, potential defenses, and relevant statutory or case-law references.
Students are urged to review specific pages (e.g., page 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 31) for definitions, cases, and nuances that will be critical for quizzes and assignments.
The instructor mentions that Chapter 8 will connect and summarize the liability landscape (including absolute liability, strict liability, and carrier liability) and that understanding these chapters is essential for the logic of the entire course.
The course highlights the importance of reading case law and using the table of cases (Table of Cases on page 347) to navigate authorities, as tort law heavily relies on judge-made law and evolving standards.
Key cases and authorities referenced
Wilkinson v Downton (classic IIEMS case): Outrageous conduct causing severe emotional distress.
Donovan v Stevenson (Donoghue v. Stevenson): Foundational doom/duty of care principles; the living-tree nature of constitutional/legal theory; emphasizes evolution of tort and privacy doctrines.
Wilkinson v Downton (reiterated as a landmark for IIEMS): Three-part conceptual framework for IIEMS (outrageous, intended to produce harm, and resulting injury).
Walmart case (emotional distress damages): Notable for recognizing emotional distress/mental anguish as compensable injuries, with substantial damages (e.g., 100000).
Johns v Siegle (Intrusion upon seclusion line of cases): Early understandings of privacy invasion leading to the intrusion upon seclusion tort in Canada.
Jones vs Siege (Jones v. Sigue): Discussion of intrusion upon seclusion in the Ontario context and adaptation of U.S. privacy doctrine.
Donohue v. Stevenson (often cited as Donoghue v. Stevenson in various jurisdictions): Foundational for duty of care and product liability in the common law tradition.
Donahue (Nurse/Nels case) references: Ontario context and privacy/medical-labor issues as it relates to IIEMS and related torts.
Arising case-law references: Various hypothetical and classroom cases used to illustrate the application of the tort concepts (e.g., the professor locking a classroom, shoplifting scenarios, false imprisonment in security settings).
Practical implications and study tips
Treat tort law as a “living tree”: Be prepared to connect traditional common-law principles with modern scenarios (e.g., surveillance, digital privacy, workplace harassment).
Distinguish the elements for each tort:
Assault: Intent + imminent apprehension + reasonable perception + imminent threat (no actual contact required).
Battery: Intent + actual contact + unlawful/unauthorized contact.
False imprisonment: Total confinement + lack of consent + causation by the defendant.
Malicious prosecution: Criminal process initiation + termination in plaintiff’s favor + malice/improper purpose.
Abuse of process: Improper use of civil processes for an improper purpose + resulting damages.
IIEMS: Outrageous conduct + intent or calculated harm + damages (emotional/psychological injury).
Intrusion upon seclusion: Unauthorized intrusion into private life or information + highly offensive impact on a reasonable person.
Understand overlaps with criminal law and the importance of accurate party designations in pleadings (e.g., R. vs. Charlie; Judy vs. Charlie) and how the style of cause affects who is plaintiff/defendant in different stages.
Use the table of cases (Table of Cases, p. 347) to locate authoritative cases and avoid outdated authorities; note that updated case-law can be essential for practice; the instructor mentions recent 2024 cases as reference material.
Homework focus: Review Chapter 2 in depth (intentional torts) and preview Chapter 3–4; be prepared for a quiz and for the first assignment; reading the first part of Chapter 2 is essential for building understanding before proceeding to the later sections.
Quick reference: key terms and their canonical elements
Assault (civil):
Intent to cause imminent harmful or offensive contact
Plaintiff’s reasonable apprehension of such contact
Imminence of the contact
Battery (civil):
Intentional act to cause contact
Actual contact occurred
The contact was unlawful or non-consented
False imprisonment (civil):
Total confinement of liberty to leave
Confinement was against the plaintiff’s will
Confinement caused by the defendant
Malicious prosecution (civil):
Initiation/continuation of criminal proceedings by the defendant
Proceedings terminated in plaintiff’s favor
Malice or improper purpose
Damages resulting from the improper proceedings
Abuse of process (civil):
Plaintiff party to a legal process initiated by the defendant
Predominant improper purpose by defendant
Definite act in furtherance of improper purpose
Special damages resulting from improper purpose
Intrusion upon seclusion (civil):
Unauthorized intrusion into private life/information
Highly offensive to a reasonable person
Intentional infliction of mental suffering (IIEMS):
Outrageous or flagrant conduct
Intent to produce harm or knowledge that such harm was likely
Actual injury (visible or probable), e.g., medical symptoms, emotional distress
Homework and next steps
Read Chapter 2 (intentional torts) in depth; prepare for Chapter 3 (business torts) and Chapter 4 (defenses).
Review the cases mentioned: Wilkinson v Downton; Jones v Siegle; Donoghue v Stevenson; Walmart case; Johns v Siegle; Dernier cases referenced in class.
Use the Table of Cases (p. 347) to familiarize yourself with authorities and note updated cases from 2024 as references.
Prepare for the first quiz by understanding: the differences between assault and battery, the elements of false imprisonment, and the concept of malicious prosecution and abuse of process; and be ready to discuss IIEMS and intrusion upon seclusion in modern contexts.
If you have questions, bring them to the next session to clarify the distinctions and the nuances in each tort and their overlaps with criminal law.
Title
Intentional Tort Notes: Chapters 2–4 (Torts against the Person) and Early Context for Chapter 8