Torts CAN
(1) Read question quickly, (2) Read fact pattern carefully, (3) Identify the possible actions and defences > type these out, (4) set out elements of each
tort & tie in facts > discuss difficult proving some elements, (5) set out elements of each defence & tie in facts, (6) more time: talk about policy!
(floodgates argument; chill on press, activity, speech; need to protect judicial and quasi-judicial decision-makers from pressure); reliability v credibility.
VOLITION ..................................................................................................................................................... 4
INTENT ......................................................................................................................................................... 4
MOTIVE......................................................................................................................................................... 4
DURESS ....................................................................................................................................................... 4
PROVOCATION ............................................................................................................................................ 4
MISTAKE ...................................................................................................................................................... 5
BATTERY ..................................................................................................................................................... 5
Bettel v. Yim (1978) ........................................................................................................................................................ 5
Non-Marine Underwriters Lloyd’s of London v. Scalera (2000) .................................................................................... 5
ASSAULT ..................................................................................................................................................... 6
Krawczyk v. Peter Kiewit Sons (2009) ........................................................................................................................... 6
FALSE IMPRISONMENT .............................................................................................................................. 6
Bird v. Jones (1845) ....................................................................................................................................................... 6
Campbell v. SS Kresge Co (1976) ................................................................................................................................. 6
Herd v. Weardale Steel, Coal and Coke Co Ltd. (1915) ................................................................................................ 7
Ward v. City of Vancouver (2007) .................................................................................................................................. 7
MALICIOUS PROSECUTION........................................................................................................................ 8
Nelles v. Ontario (1989).................................................................................................................................................. 8
Roberts v Buster’s Auto Towing Service Ltd (1976) ...................................................................................................... 8
INVASION OF PRIVACY............................................................................................................................... 9
Motherwell v. Motherwell (1976) – Alberta SC ............................................................................................................. 10
Hollinsworth v. BCTV (1999) – BCCA .......................................................................................................................... 10
Watts v. Klaemt (2007) – BCSC ................................................................................................................................... 11
CONSENT ................................................................................................................................................... 11
Wright v. McLean (1956) .............................................................................................................................................. 12
Agar v. Canning (1965) ................................................................................................................................................ 12
Norberg v. Wynrib (1992) ............................................................................................................................................. 13
Marshall v Curry (1933) ................................................................................................................................................ 13
Malette v Shulman (1987) ............................................................................................................................................ 13
C(JS) v Wren (1986)..................................................................................................................................................... 13
Re Dueck (1999) .......................................................................................................................................................... 13
SELF-DEFENCE ......................................................................................................................................... 14
Cachay v Nemeth (1972).............................................................................................................................................. 14
Brown v Wilson (1975) ................................................................................................................................................. 14
R v Lavalle (1990) ........................................................................................................................................................ 14
Wackett v Calder (1965) ............................................................................................................................................... 14
Pollard v. Simon (2009) ................................................................................................................................................ 15
TRESPASS TO LAND ................................................................................................................................ 15
Basely v. Clarkson (1681) ............................................................................................................................................ 16
Entick v Carrington (1765) ............................................................................................................................................ 16
Turner v. Thorne (1960) ............................................................................................................................................... 16
Harrison v. Carswell (1975) .......................................................................................................................................... 16
DEFAMATION ............................................................................................................................................. 16
Sim v. Stretch (1936) .................................................................................................................................................... 17
Knupffer v. London Express Newspaper (1944) .......................................................................................................... 17
Crookes v. Newton (2011) ............................................................................................................................................ 17
DEFENCES FOR DEFAMATION ................................................................................................................ 17
Williams v. Reason (1983) ........................................................................................................................................... 19
Hung v. Gardiner (2003) ............................................................................................................................................... 19
Hill v. Church of Scientology (1995) ............................................................................................................................. 19
WIC Radio Ltd v. Simpson (2008) ................................................................................................................................ 20
Grant v. Torstar Group (2009) ...................................................................................................................................... 20
THE BURDEN OF PROOF.......................................................................................................................... 20
FH v. McDougall (2008)................................................................................................................................................ 20
1
There is a single standard of proof for all civil cases, which is proof on a balance of probabilities, per FH v McDougall.
In all civil cases, a judge must scrutinize all relevant evidence to determine if it is more likely than not that the alleged tort took place, per FH v McDougall.
TORT
Battery
ELEMENTS
*Actionable without proof of damage
- Consent
2. Harmful or offensive to a reasonable person
*Interference can be direct or indirect
- Self-Defence
3. [Non-consensual]
*Defendant liable for all consequences that occur during a single transaction, even if those
consequences were unintended (need only intend the tortious contact), per Bettel v Yim
*Onus of proving consent is on the defendant, even in cases of sexual battery, per NonMarine Underwriters v Scalera
- [Provocation] (not full, per
Miska v Siveci, road rage)
- [Mistake] (not full defence,
per Hodgkinson v Martin)
- [Duress] (not full defence,
per Gilbert v Stone)
*Actionable without proof of damage
- Consent
*Plaintiff need not be afraid; apprehension of offensive harmful contact sufficient
(rationale: tort protects both the fearful and the brave)
- Self-Defence
1. Apprehension of imminent physical interference that is
harmful or offensive to reasonable person
2. Defendant had subjective intent to create apprehension
*Tort of battery is concerned with protecting individual’s dignity and personal autonomy,
per McLachlin J in Non-Marine Underwriters v Scalera
*Threat of future violence is not sufficient (e.g. threat beat up tomorrow); must be imminent
- [Provocation] (not full, per
Miska v Siveci, road rage)
*Cite Krawczyk, Eagle Ridge construction, for assault (driver Riggs lacked requisite
subjective intent to create apprehension)
- [Mistake] (not full defence,
per Hodgkinson v Martin)
1. Intentional total restraint of the plaintiff’s movement
*Actionable without proof of damage
- Consent, Herd v Weardale
2. [Without lawful authority]
*Partial restraint does not amount to FI; must be “total restraint of the liberty of the person,
for however short a time, and not a partial obstruction of his will, whatever inconvenience it
may bring on him”, per Bird v Jones
- Lawful authority, Ward
*Did the defendant subjectively intend to create apprehension?
*Did the defendant have some motive to help prove intent?
*Was the interference imminent?
*Was the interference actually harmful or offensive?
*Was the defendant provoked?
False
Imprisonment
DEFENCES
1. Intentional physical interference with plaintiff
*Did the defendant subjectively intend to apply force?
*Did the defendant have some motive to help prove intent?
*Was the contact actually harmful or offensive?
*Was the defendant provoked?
Assault
KEY RULES
*Did defendant subjectively intend to restrain the plaintiff’s
movements?
*Was the restraint “total”?
*Did the defendant have legal authority to restrain?
- [Mistake] (not full defence,
per Hodgkinson v Martin)
*Imprisonment need not be direct physical confinement > can be brought about by threats
or intimidation, per Campbell v SS Kresge
*No false imprisonment if plaintiff consented to restraint (e.g. working in mine, flying on
plane), per Herd v Weardale
*Investigative detention must be brief and based on reasonable suspicion; police do not
have authority to detain plaintiff for more than brief time if they lack reasonable probable
grounds for full arrest, per Ward v City of Vancouver
Malicious
Prosecution
1. Charge initiated by defendant
2. Proceeding terminated in plaintiff’s favour
*Balancing freedom of individual citizens from groundless prosecutions and public interest
in effective, uninhibited prosecution of wrongdoers
3. Absence of reasonable and probable cause
*Plaintiff has very high burden of proof (no floodgates, pressure on quasi-judicial roles)
4. Malice
*Malice = acting for an improper purpose (e.g. taking a bribe, securing private collateral
benefit, coercing person into desired course of conduct, shifting blame for causing damage
to property to an innocent person), per Nelles v Ontario, case involving nurse charged with
1d murder of 4 children in a hospital where the charges were eventually dropped
5. Damage (financial, liberty, etc.)
*Did the defendant act maliciously, or for some other improper
purpose?
*Did the defendant have reasonable and probable cause?
Invasion of
Privacy
- Partial immunity for CPs
(b/c of malice requirement;
but CPs do not have full
immunity, per Nelles)
*Malice is not incompetence, lack of professionalism, laziness, recklessness, honest
mistake, negligence, per Miazga v Kvello Estate
1. Defendant violated plaintiff’s privacy wilfully and
without claim of right, per s. 1(1)
*Statutory tort set out in BC’s Privacy Act
- Consent, s. 2(2)(a)
*Balancing individual’s autonomy and other freedoms (speech, movement, association)
*wilfully = defendant did smthg intentionally which they knew or
ought to have known would violate the plaintiff’s privacy;
*without claim of right = defendant lacked reasonable, honest
in facts that if true would be legal justification)
2. Plaintiff had reasonable expectation of privacy, per
s.1(2), and whether defendant’s act is invasion of privacy
depends on nature, incidence and occasion of the act, per
s. 1(3) of Act
*Invasion of privacy via phone is new subset of tort of private nuisance, per Alberta SC (no
privacy statute) in Motherwell v Motherwell
- Claim of right,
Hollinsworth v BCTV
- Legal authority, s. 2(2)(b)
*Statutory tort to violate another person’s privacy wilfully or without claim of right, but
defendant is not liable if they have a claim of right (reasonable, honest but mistaken belief
plaintiff’s privacy would not be violated), per Hollinsworth v BCTV
*Persistent eavesdropping and recording of conversation = invasion of privacy; defence of
person, property (invasion of privacy “incidental to…”) has limited scope; ex turpi causa not
valid if plaintiff not trying to profit from their wrongdoing; per Watts v Klaemt
- Incidental to defence of
person, property, s. 2(2)(b)
Others: Reasonable police
investigation; publication in
public interest fair comment;
privileged communication
2
Trespass to
Land
1. Defendant intentionally and directly intruded onto the
land in possession of the plaintiff
- By either entering personally without permission
- By placing an object on plaintiff’s property w/o permission, or
- By not leaving the property when plaintiff revoked permission
*Did the defendant subjectively intend to intrude on land?
Defamation
*Actionable without proof of damage
*Continuing trespass = if object placed on land, new trespass accrues every day
*Mistake is not a defence to trespass, per Basely v Clarkson, case where defendant
mowed the plaintiff’s grass mistakenly believing it was his own
*State requires proper purpose to enter property (reasonable and probable grounds), per
Entick v Carrington, seditious papers
*Defendant liable for all consequences that flow from their trespass, whether or not those
consequences were foreseeable, per Turner v Thorne, boxes in garage
*Trespass recognized in modern shopping mall, Harrison v Carswell; but malls unique
- Consent (“license”)
- Legal authorization
- [Duress] (not full defence,
per Gilbert v Stone, chase)
- [Mistake] (not a full
defence, per Basely v
Clarkson, mowing lawn)
1. Impugned statement was defamatory
DEFENCES
*Words that would lower plaintiff in the estimation of rightthinking members of society generally, per Lord Atkins in Sim v
Stretch, housekeeper money
1. Defence of Justification (Williams v Reason, sting of shamateurism true b/c of boot money evidence)
- Defendant must prove sting of statement was true
- Applies even if statement made maliciously
*Three ways a statement can be defamatory: (1) literal
meaning, (2) legal/true innuendo, (3) false/popular innuendo
2. Made in reference to the plaintiff
2. Absolute Privilege (Hung v Gardiner, complaint to Law Society and CGA disciplinary body)
- Applies if statement made in context of judicial or quasi-judicial proceeding, also includes parliamentary privilege
- Applies even if statement made maliciously
*Two part test: (1) question of law: language objectively
regarded as referring to plaintiff?; (2) question of fact:
reasonable individuals how know plaintiff think it refers to the
plaintiff?, per Knupffer v London Express Newspaper, Young
Russia
3. Qualified Privilege (Hill v Church of Scientology, statement re contempt of court action lacked restraint, malicious)
- Defendant must show statement was made (1) in protection of their own interests, (2) in protection of another’s
interests where legal, moral or social duty to make statement, (3) where defendant had duty to give, and recipient had
reciprocal interest to receive, or (4) as part of fair and accurate reporting of judicial or legislative proceedings, per Hill
- Does not apply if statement made maliciously (published for improper reason or motive)
3. Published
4. Fair Comment on Matter of Public Interest (WIC Radio v Simpson, Mair’s comments re Simpson gay violence)
- Defendant must prove on BOP: (1) statement was a comment, not an allegation of fact; (2) based on true facts; (3)
related to a matter of public interest, and (4) which any person could honestly express based on facts, “objective
honest belief requirement” as set out in WIC Radio v Simpson
- Does not apply if statement made maliciously
*Published if communicated to third party who understands the
statement – cannot be to plaintiff alone; empty room; spouse;
third party who didn't understand; if statement read by
someone for whom it was not intended and the defendant had
no reason to believe it would be read by such a person
*Hyperlink is not publication (analogy to footnotes; neutral
references), per Crookes v Newton
*Balancing protection of reputation with freedom of
expression (freedom of speech, freedom of publication)
*Relatively easy for plaintiff to prove defamation prima
facie but numerous defences available to defendant
5. Responsible Communication on Matter of Public Interest (Grant v Torstar, article private golf course, reportage)
- Defendant must prove on BOP: (1) statement was related to a matter of public interest, “segment of public has
genuine interest in knowing the information”; and (2) publication was responsible [seriousness of allegation, public
importance, urgency, status and reliability of source, other side sought and accurately reported, inclusion
necessary/justifiable, reportage]
- Reportage: where public interest lies in fact that statement made, rather than its truth; defence of reportage applies if:
(1) report attributes statement to a person, (2) indicates truth has not been verified, (3) sets out both sides of dispute
fairly, (4) provides context in which statements were made
Defence of
Consent
*Consent is a full defence which can be express or implied but and must be genuine, and freely and voluntarily given (grounded in principle of protecting autonomy of individual).
- A person impliedly consents to the ordinary risks of the activity that they undertake; “Harm suffered by consent is […] not a cause of civil action.” per Wright v McLean, mud throwing boys
Consent is vitiated if:
- Outside the rules of a game + intent to injure malice > exceeding implied consent to ordinary risks of activity, per Agar v Canning
- Obtained through fraud (e.g. fraudulent represent. re STDs) > (1) defendant aware of/responsible for plaintiff’s misapprehension, (2) the fraudulent representation relates to quality and
nature of the act (not collateral amatter), (3) there is a causative relationship between the defendant’s fraud and the plaintiff’s consent (fraud = significant factor to plaintiff’s consent, reliance)
- Obtained through exercise of authority, per Norberg v Wynrib, sex for drugs, e.g. boss/employee, doctor/patient, teacher/student
- If given by someone legally incompetent, per C(JS) v Wren, 16yrdold abortion, and Re Dueck, young boy chemotherapy
- In context of medical procedures, if uninformed consent, per Marshall v Curry and Malette v Shulman (informed consent = full and frank disclosure of nature of intervention and risks); but
refusal of medical procedures need not be informed, per Malette v Shulman, Jehovah’s Witness blood transfusion
- Exceptions to requisite informed consent rule in medical context: (1) unforeseen medical emergency, per Marshall v Curry, left testicle; (2) general consent to course of treatment
Self-Defence
*Self-defence is a full defence that requires:
1. Defendant honestly and reasonably believed an assault by the plaintiff was imminent (and bona fide mistake of fact permitted), per Pollard v Simon, ferry (*objective + subjective standard)
2. Defendant must have honestly and reasonably thought they had no other alternative to defend themselves against the plaintiff but to apply force (*objective + subjective standard)
3. Amount of force defendant used to avert risk was reasonable in all the circumstances (proportional, though need not be measured with perfect nicety), per Wackett v Calder, DCreek pub
*Proportionality does not depend on the effect or the resultant injuries of the force used, per Brown v Wilson, bearhug
*No need to wait until first blow is struck; a single blow in anticipation (deterrent) is not excessive force, per Pollard v Simon, ferry
*If being attacked, do not have to take a passive defence (e.g. walk away) > entitled to return blow for blow, per Wackett v Calder, Dawson Creek pub brawl
3
**Defendant only liable for his/her conduct if it was voluntary, per Smith v Stone, and intentional (can be
imputed or transferred intent). Intent = subjective with reasonable person (objective) as evidentiary support.
VOLITION
Requisite element of volition: defendant’s action giving rise to tort must have been voluntary, meaning
directed by his or her conscious mind. Involuntary actions include reflex reactions, convulsions, movements
during sleep and unconsciousness (per Stokes v Carlson, 1951). *Law starts with a strong presumption that
people are in control of their actions; burden on defendant to rebut presumption if actions were involuntary.
Smith v Stone (1647) – England
NO TRESPASS IF DEFENDANT WAS CARRIED ONTO LAND BY FORCE OF OTHERS > INVOLUNTARY ACTION.
Smith brought an action in trespass against Stone. Stone’s defence was that he was carried onto Smith’s land
involuntarily, by the force and violence of others. Court found Stone’s trespass involuntary.
INTENT
Defendant’s action giving rise to tort must have been intentional. P must prove on BOP that D intended to
bring about consequences/results of his or her actions. Intent need not be blameworthy, hostile > can be
praiseworthy but still intentional (motive does not matter). Imputed Intent: intent extends to situations
where D may not have desired specific consequences but they were certain/substantially certain to result.
Transferred Intent: intent extends to situations where D intended to commit intentional tort against one
party, but unintentionally committed intentional tort against other party; transferring intent is limited to the
type of the tort that the defendant intended to commit.
MOTIVE
Motive is a defendant’s reason for wanting a result to occur. P must prove that D’s actions were intentional,
but need not establish that D’s actions were blameworthy. Praiseworthy motive is not on its own a defence,
but can be element of valid defence, e.g. defence of public necessity. *Motive is essential element of some
intentional torts, e.g. malicious prosecution where P must prove that D acted maliciously.
DURESS
Defendant acted intentionally but did so under extenuating circumstances (reasonable person test). Not a
full defence but may factor into damages.
Gilbert v Stone (1648)
DURESS IS NOT A FULL DEFENCE. Gilbert brought an action in trespass and theft of gelding against Stone.
Stone’s defence was that twelve armed men threatened him; in fear of his life, Stone trespassed and took the
plaintiff Gilbert’s horse. Court found duress is not a full defence. [England]
PROVOCATION
Where in response to provocation, defendant experiences sudden loss of self control. Provocation must
occur shortly before or right at the time of defendant’s reaction. Provocation must also be such that ordinary
person (reasonable person) would lose self control. Not a full defence but may factor into damages.
Miska v Sivec (1958)
PROVOCATION MUST BE SUCH TO CAUSE REASONABLE PERSON TO LOSE POWER OF SELF-CONTROL, AND
MUST HAVE OCCURRED AT TIME OF OR SHORTLY BEFORE ASSAULT/BATTERY/OTHER TORT. Miska brought
claim against Sivec for injuries in road rage incident; evidence of bad blood between Miska and Sivec before.
Court found no evidence that Sivec was provoked by Miska. Court said incidents that occurred b/w parties the
night before could not be considered. [Ontario CA]
4
MISTAKE
When the defendant does something intentionally but their actions have factual (e.g. killed dog instead of
intended wolf) or legal (e.g. thought had authority to remove person from premises, per Hodgkinson v Martin)
consequences that were not contemplated.
Hodgkinson v Martin (1929)
MISTAKE OF LAW IS NOT A FULL DEFENCE. Martin (deputy minister of industries and industrial commissioner)
honestly believed he had the legal authority to remove plaintiff Hodgkinson from property. Court found
elements of tort met because Martin acted intentionally despite his mistake of fact. [BCCA]
BATTERY
Elements of Battery:
1. Intentional physical interference with another person
2. Harmful or offensive to a reasonable person
3. Non-Consensual
Possible Defences:
 Consent [volenti fit non injuria, “to a willing person, injury is not done”]
 Self-Defence
 Partial defences: provocation, mistake, duress
Battery involves intentional physical interference (actual or intangible) with the plaintiff, that a reasonable
person would consider harmful or offensive, and where the plaintiff did not consent. Deliberate interference
that is neither harmful nor offensive is not battery. The physical interference must be intentional, but injuries
caused need not be intentional, per Bettel v Yim. Concern is protecting individual’s dignity and personal
autonomy, per McLachlin J in Scalera. With battery, including sexual battery, plaintiff must establish elements
of tort on BOP, then onus shifts to defendant to establish defences like consent, per Scalera.
Bettel v. Yim (1978)
DEFENDANT IS LIABLE FOR ALL CONSEQUENCES OF INTENDED HARMFUL OR OFFENSIVE PHYSICAL
INTERFERENCE (EVEN UNINTENDED CONSEQUENCES, SO LONG AS PART OF SINGLE TRANSACTION).
SUBJECTIVE INTENT TO CAUSE BODILY HARM NOT NECESSARY. Defendant Yim grabbed 15yrold plaintiff
Bettel and intentionally shook him to extract a confession. Bettel suffered a broken nose in the process. Yim
argued that he did not intend to cause the main injury (broken nose). Court found defendant does not need to
intend actual bodily harm > to meet elements of tort, defendant need only intend physical interference that
reasonable person would consider harmful or offensive (shaking). Premium on autonomy of individual. *Thin
skull rule applies (still responsible for injuries even if the plaintiff is predisposed to physical injury). [ON Co Ct]
Non-Marine Underwriters Lloyd’s of London v. Scalera (2000)
DEFENDANT HAS BURDEN TO ESTABLISH DEFENCE OF CONSENT > LAW PRESUMES OBJECTIVELY HARMFUL
OR OFFENSIVE SEXUAL CONTACT = NON-CONSENSUAL (PLAINTIFF NEED NOT ESTABLISH LACK OF CONSENT).
Plaintiff brought sexual battery claim against bus driver. Bus driver’s insurance company did not want to
defend plaintiff against claim because his actions were intentional (policy exclusion clause said no coverage for
intentional acts). Court found in favour of the insurance company. McLachlin J emphasized tort of battery is
aimed at protecting autonomy of individual, and plaintiff does not have burden of establishing sexual act was
non-consensual > onus goes to defendant to explain their actions (in best position to put this evidence
forward). Policy arguments: placing onus on plaintiff would take steps backward in law re not trusting victims
(especially women and young children); no floodgates argument because no evidence that onus on defendant
would bring greater number of sexual assault cases than onus on plaintiff. [SCC]
5
ASSAULT
Elements of Assault:
1. Plaintiff must have apprehension of imminent physical contact that is harmful or offensive to
reasonable person (reasonable apprehension of an immediate battery)
2. Defendant must have subjective intent to create this apprehension
Possible Defences:
 Consent [volenti fit non injuria, “to a willing person, injury is not done”]
 Self-Defence
 Partial defences: provocation, mistake
Krawczyk v. Peter Kiewit Sons (2009)
ASSAULT REQUIRES THE INTENT TO CREATE APPREHENSION OF IMMINENT PHYSICAL CONTACT THAT IS
HARMFUL OR OFFENSIVE TO REASONABLE PERSON. Betty Krawczyk, 80yrold protesting construction on
highway through Eagle Ridge Bluffs. Betty claimed that truck driver Riggs backed his truck in her direction with
intent to threaten or injure her (assault). Court found that Betty was never in an actual danger from truck, and
Riggs did not have requisite intention for assault > needed to complete complicated maneuver to get out of
lot, backed up very slowly with beeping noise on. Video tape evidence (useful for gauging credibility, reliability
of conflict accounts of events). Volenti non fit injuria < as obiter, Court said this defence did not apply because
not reasonable that protestors going onto worksite in violation of injunction really consent to assault or
battery (placing premium on personal autonomy of individual). [BCSC]
FALSE IMPRISONMENT
Elements of False Imprisonment:
1. Intentional total restraint of the plaintiff’s movement
2. Without lawful authority
Possible Defences:
 Consent
 Lawful authority
 Partial defence: mistake
*Actionable without proof of damage
*Tort of false imprisonment protects a person’s individual liberty
*Imprisonment need not be in a room or building; can also be psychological
*Not false imprisonment if plaintiff has reasonable and safe means of escape
Bird v. Jones (1845)
PARTIAL RESTRAINT OF PLAINTIFF’S PHYSICAL LIBERTY DOES NOT AMOUNT TO FALSE IMPRISONMENT;
MUST BE COMPLETE OBSTRUCTION, TOTAL RESTRAINT OF PLAINTIFF’S MOVEMENT. Plaintiff travelling on a
public highway and stopped at obstruction that prevented him from crossing a bridge. Majority found that
there was no total restraint of the plaintiff’s movement (he could have by-passed the obstruction and
continued across the bridge). “…imprisonment is… a total restraint of the liberty of the person, for however
short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him.” Dissent
found preventing plaintiff from travelling in the direction he wished to go was false imprisonment. [England]
Campbell v. SS Kresge Co (1976)
IMPRISONMENT NEED NOT BE PHYSICAL CONFINEMENT > IMPRISONMENT CAN BE BROUGHT ABOUT BY
THREATS, INTIMIDATION BY SHOW OF LEGAL AUTHORITY > MUST SIMPLY RESTRAIN PLAINTIFF’S FREEDOM
6
OF MOVEMENT. Campbell was shopping in K-Mart store; off-duty police officer Williamson working as
security guard told by an informant that Campbell put something in her coat pocket. Williamson followed
Campbell outside, showed her his police badge, and requested that she return to the store to avoid
embarrassment. Campbell followed Williamson back into store, intimidated by his show of authority, fearful of
consequences of refusal > then freed. Court found Campbell was imprisoned by Williamson from time she was
confronted outside store and until time she was free to go. Williamson used the force of his position as police
officer to intentionally detain Campbell, preventing her from leaving the store. [Nova Scotia SC]
Herd v. Weardale Steel, Coal and Coke Co Ltd. (1915)
NO FALSE IMPRISONMENT IF PLAINTIFF CONSENTED TO RESTRAINT (E.G. WORKING IN MINE, FLYING ON
PLANE). Herd worked in mine owned by the Respondent. Herd claimed falsely imprisonment when employer
prevented him from using cage elevator to leave the mine before the end of his shift. Court found that Her
consented to restraint in mine until the end of his shift. [House of Lords]
Ward v. City of Vancouver (2007)
INVESTIGATIVE DETENTION MUST BE BRIEF. POLICE DO NOT HAVE LEGAL AUTHORITY TO DETAIN A
PLAINTIFF FOR MORE THAN A BRIEF TIME IF THEY LACK REASONABLE AND PROBABLE GROUNDS FOR FULL
ARREST. Cameron Ward, high-profile civil rights lawyer, attended visit by PM Chretien in Chinatown. Police
alerted of pie-thrower, and Ward somewhat matched description of the pie-throwing suspect. And officer
observed Ward moving quickly through the crowds > detained him. Ward started screaming to attract
attention of nearby media. Ward arrested for breach of peace, and placed under investigative detention for
assault/attempted assault with pie > taken to jail. Ward held in jail for approx 4 hours after PM left the area.
Court found Ward was falsely imprisoned by police from the time PM left area to the time he was released
from jail > the police had lawful authority to arrest Ward for breach of peace and detain him until PM left, but
the police did not have authority to detain him for 4 hrs after PM left because they lacked reasonable and
probable grounds for full arrest (investigative detention for assault was not brief, therefore unlawful). [BCSC]
Lawful Detainment (Full Arrest & Investigative Detention)
Full power of arrest requires reasonable and probable grounds that person committed an offence > the
police officer must subjectively believe that it was probable the person committed the offence, and reasonable
police officer in the same circumstances must find it was probable the person committed the offence (a
suspicion, even a strong suspicion, is not sufficient)
Investigative detention requires a reasonable suspicion that person committed an offence > police officer
must subjectively believe there is a reasonable suspicion to detain, and a police officer in same circumstances
must objectively believe there was reasonable suspicion to detain. Other requirements for investigative
detention: (a) must be brief; (b) cannot involve full search, only patting down allowed to check for weapons,
(c) more than a hunch. Gives police officer opportunity to “freeze the scene” and determine if there are
reasonable and probable grounds for arrest.
7
MALICIOUS PROSECUTION
Elements of Malicious Prosecution:
(1) Charge must be initiated by the defendant (e.g. Crown Prosecutor)
(2) Proceeding must have been terminated in favour of the plaintiff (e.g. stay of proceeding > charges
dropped a few weeks in, right before trial; acquittal; or conviction overturned by appellant court)
(3) Absence of reasonable and probable cause (e.g. Crown Prosecutor subjectively believed the
accused was probably guilty, and reasonable CP would objectively believe the accused probably
guilty > honest belief in probable guilt of accused, and reasonable belief in probable guilty of the
accused > “substantial likelihood of conviction”)
(4) Malice > defendant acted for an improper purpose (including but not limited to spite, ill will,
vengeance > e.g. securing private collateral benefit, coercing person into desired course of conduct,
shifting blame for causing damage to property to an innocent person)
(5) Damage (e.g. loss of reputation, loss of liberty, financial loss)
Possible Defences:
 Partial immunity (lack of malice)
*Tort of malicious prosecution reflects delicate balance between freedom of individual citizens from
groundless prosecutions (damage to reputation, loss of liberty, financial loss), and public interest in effective,
uninhibited prosecution of wrongdoers > tort strongly favours public interest (scope of liability is very limited)
*Plaintiff has a very high burden of proof > such a high burden acts as barrier for bringing frivolous lawsuits
*Malicious prosecution is not actionable per se > malicious prosecution requires proof of damages
*Malicious prosecution is generally limited to criminal prosecution and special instances of abuse in civil
proceedings > House of Lords in Gregory v Portsmouth City Council (2000) found malicious prosecution not
applicable to disciplinary proceedings b/c other torts like defamation provided sufficient protection to victims
of wrongful initiation of disciplinary hearings
*To be responsible for initiating proceedings, defendant must be driving force behind initiation or prosecution
of action (this requirement generally met with laying of criminal charge by CP); but defendant could be
responsible for initiating proceedings if they lied to police, wrongfully pressured them into laying charges
Nelles v. Ontario (1989)
CROWN PROSECUTORS DO NOT HAVE FULL IMMUNITY FROM MALICIOUS PROSECUTION CLAIMS > BUT
CROWN PROSECUTORS HAVE PARTIAL IMMUNITY > SCC ADDED MALICE CRITERIA TO THE TORT. Nurse
charged with 1d murder of 4 children in hospital. Charge approved by Crown Prosecutor, and case brought.
But then CP realized there was not enough evidence. Issue was whether CP should have full immunity. SCC
decided CPs cannot have full immunity but can have limited immunity with addition of requisite malice. SCC
rejected full immunity because: (1) undermines the rule of law, (2) risks decreasing public confidence in CPs,
(3) a victim who has suffered severe damages should be compensated, (4) high burden of proof on plaintiff so
no floodgates scenario, (5) it would be wrong to bar someone whose Charter rights have been violated from
seeking a remedy. Policy rationale for partial immunity/addition of malice: if you are not acting in good faith,
you do not deserve immunity. [SCC]
Roberts v Buster’s Auto Towing Service Ltd (1976)
MALICIOUS PROSECUTION REQUIRES PROOF ON BOP OF AN ABSENCE OF REASONABLE AND PROBABLE
CAUSE, AS WELL AS MALICE. Roberts’ rental car was towed by Busters. Roberts went to go retrieve his car >
while driving it off the lot, a Busters employee raised an automatic gate > the gate and car were both
damaged. The Busters employee then swore an information for police alleging that Roberts had wilfully
damaged the gate > in this case, the employee had neither an honest or reasonable belief in Roberts’ guilt,
and also acted maliciously by shifting blame for damage to innocent person. This case also involved false
8
imprisonment > when the employee told the police about the incident, police detained Roberts and took him
to police station < this initial detention was false imprisonment by the Busters employee because she directed
the police to apprehend the plaintiff and they acted on her behalf (also false imprisonment by police, but they
could use defence of legal authority > reasonable suspicion). [BCSC]
Protection for Crown Prosecutors
- Policy arguments for full immunity/not relaxing elements of malicious prosecution: (1) need to
protect independence of CP from political and judicial interference, (2) CP’s difficult discretionary and
quasi-judicial decisions, (3) possibility of flood of litigation, (4) chilling effect on CP’s work
- Policy arguments against full immunity/for partial immunity, per SCC in Nelles: (1) full immunity
undermines rule of law, (2) full immunity risks decreasing public confidence in CPs and justice system,
(3) victim who has suffered damages should have way of getting compensation, (4) burden on accused
high enough to prevent floodgates, (5) need to allow remedies for Charter violations
- SCC in Miazga v Kvello Estate (2009), after Nelles (1989): SCC held that malice still a central element
of the tort, and said malice only found in exceptional cases (the following are not sufficient to impose
liability: incompetence, lack of professionalism, laziness, recklessness, honest mistake, negligence) <
narrowed the scope of malicious prosecution
INVASION OF PRIVACY
Elements of Invasion of Privacy (set out in Privacy Act):
(1) Defendant violated plaintiff’s privacy wilfully and without claim of right
a. Wilfully = defendant must have done something intentionally that they knew or ought to
have known would violate the plaintiff’s privacy
b. Without claim of right = defendant did not act on a reasonable and honest but mistaken
belief
(2) Must be reasonable expectation of privacy, and whether privacy invaded determined based on
nature, incidence, occasion of act
Possible Defences:
 Consent, s. 2(2)(a)
 Claim of right (reasonable, honest but mistaken belief)
 Lawful defence of person or property (“incidental to the exercise of a lawful right of defence of
person or property”), s. 2(2)(c)
 Legal authorization, s. 2(2)(b)
 Reasonable police investigation, s. 2(2)(d)
 Publication of information in public interest or fair comment, s. 2(3)(a)
 Privileged communication “in accordance with the rules of law relating to defamation”, s. 2(3)(b)
*Invasion of privacy is a statutory tort (BC’s Privacy Act)
*Common law tort of privacy is not well-defined, but developing > privacy is a relatively modern idea and an
elusive concept dependent on personal attitudes and expectations
*Protection of privacy requires delicate balancing between individual’s right to privacy and public’s right to
information (e.g. to make informed political decisions)
*Courts and legislators have generally recognized that privacy of individuals is worth protection, but only a
reasonable expectation of privacy (not a plaintiff’s subjective interpretation of privacy)
*Courts have imposed liability for invasion of privacy in the following instances:
9

unauthorized taping of private telephone conversation and subsequent publication of private
conversation at municipal council meeting; Saccone v Orr (1981), Ontario Court
 aiming of surveillance camera into neighbour’s yard; Lipiec v Borsa (1996), Ontario Court
 harassment
o Roth v Roth (1991), Ontario Court > defendants locked gate on access road, interfering with
plaintiffs’ use of road to access their cottage, and also shut off electricity at plaintiffs’ cottage)
o Tran v Financial Debt Recovery Ltd (2000), Ontario Court > plaintiff had outstanding student
loans and defendant debt collection agency began calling plaintiff several times an hour at their
work, despite plaintiff’s request to call at home
o Palad v Pantaleon (1989), Ontario Court > harassment of borrower in attempt to collect debt
 disclosure of sexual assault to an undercover police officer; R(L) v Nyp (1995), Ontario Court
 employer obtain consumer report containing employee’s credit card information without employee’s
permission; Somwar v McDonald’s Restaurants of Canada Ltd (2006), Ontario Court
 non-consensual disclosure to family member of plaintiff that plaintiff was HIV-positive; Caltagirone v
Scozzari-Clouthier (2007), Ontario Court (found that in absence of consent, legitimate public interest >
acquisition or disclosure of private information = actionable)
Privacy Act, RSBC 1996, c 373
 s. 1(1): “It is a tort, actionable without proof of damage, for a person, wilfully and without claim of
right, to violate the privacy of another.” > plaintiff need not prove damage, but must prove that the
defendant’s violation of privacy was intentional (that they violated the plaintiff’s privacy wilfully);
accidental violations of privacy are not actionable; defendant can raise defence of mistake (honest and
reasonable mistake “claim of right”)
 s. 1(2): “The nature and degree of privacy to which a person is entitled in a situation or in relation to a
matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of
others.” > plaintiff entitled to a reasonable expectation of privacy given the circumstances
 s. 1(3): “In determining whether the act or conduct of a person is a violation of another’s privacy,
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.” > circumstances depend on nature, incidence, occasion
 s. 1(4): Without limiting the above subsections, “privacy may be violated by eavesdropping or
surveillance, whether or not accomplished by trespass” > “may” means that violations of privacy
include but are not limited to eavesdropping and surveillance (example to help court interpret statute)
Motherwell v. Motherwell (1976) – Alberta SC
INVASION OF PRIVACY VIA TELEPHONE IS A NEW SUBSET OF TORT OF PRIVATE NUISANCE. Defendant
continually harassed her brother, sister-in-law and father via telephone and mail. Plaintiffs brought action
against defendant for invasion of privacy and nuisance. Court determined that invasion of privacy through the
abuse of telephone system = a new category of privacy nuisance b/c it involves substantial and reasonable
interference with plaintiffs’ use and enjoyment of property (before call display > to use and enjoy your phone,
you needed to answer it. Note: no statutory tort of privacy in Alberta, so this is a common law approach to
invasion of privacy.
Hollinsworth v. BCTV (1999) – BCCA
IN BC IT IS A STATUTORY TORT TO VIOLATE THE PRIVACY OF ANOTHER PERSON WILFULLY OR WITHOUT
CLAIM OF RIGHT. DEFENDANT NOT LIABLE IF THEY HAVE A CLAIM OF RIGHT (A REASONABLE, HONEST BUT
MISTAKEN BELIEF THAT PLAINTIFF’S PRIVACY WOULD NOT BE VIOLATED). “WILLFULLY” = DEFENDANT DID
SOMETHING INTENTIONALLY THAT THEY KNEW OR OUGHT TO HAVE KNOWN WOULD VIOLATE PRIVACY.
Hollinsworth underwent tunnel graft surgery with Look International to correct his baldness > consented to
having this surgery filmed for instructional purposes only. 7 yrs later, BCTV did a feature on baldness and
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obtained the tape of Hollinsworth’s surgery > BCTV followed up re confidentiality but was told whereabouts of
patient unknown. BCTV aired their piece on baldness, and a clip showed Hollinsworth’s face. Hollinsworth
sued BCTV, Look International and surgeon for breach of privacy under BC’s Privacy Act. Trial judge dismissed
the claim against BCTV, but awarded damages against Look International and surgeon. BCCA agreed with trial
judge that BCTV not liable for invasion of privacy because BCTV had a “claim of right” (a reasonable, honest
but mistaken belief that their actions would not violate Hollinsworth’s privacy) > they made a reasonable and
honest mistake in airing the clip having followed up re confidentiality issues.
Watts v. Klaemt (2007) – BCSC
PERSISTENTLY EAVESDROPPING AND RECORDING ANOTHER PERSON’S TELEPHONE CONVERSATIONS
CONSTITUTES AN INVASION OF PRIVACY IF DONE WILFULLY AND WITHOUT CLAIM OF RIGHT. DEFENCE OF
EX TURPI CAUSA NOT VALID B/C DEFENDANT WAS NOT TRYING TO PROFIT FROM HER WRONGDOING.
Klaemt persistently recorded her neighbor Watts’ telephone conversations, and on one occasion picked up a
conversation wherein Watts advised her daughter on how to cheat the welfare system. Klaemt reported
contents of this conversation to Watts’ employer, Ministry of Social Services > as a result, Watts was fired
from the Ministry for breach of trust. Watts brought action against Klaemt for invasion of privacy under s. 1
Privacy Act. Court found that Klaemt intentionally eavesdropped and recorded Watts’ telephone
conversations in circumstances whether he knew or ought to have known he was violating her privacy. Court
also found that Klaemt had no claim of right, and that Watts had a reasonable expectation of privacy in the
telephone conversations with her daughter. Klaemt’s defence of ex turpi causa not valid because Watts’ claim
not designed to reward her for her wrongdoing (cheating the welfare system).
*Defence of ex turpi causa: based on the principle that no action in tort is permitted if it would undermine
legal system’s integrity; can sometimes absolve a defendant of liability where the plaintiff sustained injury but
was engaged in illegal activity > defence only applies where it is clear plaintiff is not trying to profit from their
wrongdoing; requirements for this defence: (1) plaintiff must be involved in some serious misconduct [Watts’
breach of trust], (2) there must be a causal connection between serious misconduct [Watts’ breach of trust]
and loss/injury [Klaemt’s invasion of Watts’ privacy], (3) loss/injury [invasion of privacy] must be sufficiently
reprehensible compared to the misconduct [breach of trust].
CONSENT
*Law recognizes individual’s right to consent to intentional interference of their person, e.g. medical care
(battery), flying on airplane (imprisonment), elite athlete agreeing to drug test (invasion of privacy)
*Consent may be express or implied
*Consent must be such that reasonable person would believe that the plaintiff consented to interference
*Consent must be freely and voluntarily given > cannot be given under influence of draws, violence, threats
*Consent must be GENUINE
Consent in context of battery:



Interpersonal violence: if people consent to fight, they waive their right to bodily security; but courts
will carefully assess whether consent was exceeded
Contact sports: implied consent of all participants to physical interference that is integral part of the
sport; implied consent may be exceeded where interference is not an expected part of the game
Medical treatment: medical treatment is battery unless the attending physician secured the patient’s
consent (and consent must be INFORMED > to give informed consent, patient needs to understand the
procedure and all its risks); implied consent to basic medical procedures (e.g. opening mouth for dental
examination); exception to requirement of informed consent in emergency situations (DR “immunity”)
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
o Allan v New Mount Sinai Hospital (1980): surgical patient warned anesthetist not to insert
needle in her left arm; anesthetist ignored the patient’s request an inserted IV in left arm;
during course of surgery, needle slipped out of patient’s vein and she suffered a severe allergic
reaction; defendant anesthetist found liable for battery for ignoring patient’s prohibition re left
arm
Sexual contact: sexual or intimate physical contact is battery unless there is free and voluntary
consent; consent is not valid if secured by force, threats, or where there is gross power inequality
between two person and the stronger person has exploited the vulnerability of the weaker person to
secure consent to intimate acts; Norberg v Wynrib (1992)
Consent is vitiated if:




Outside the rules of a game + intention to injure/malice
o Exceeding the ordinary risks of the activity to which the plaintiff impliedly consented; Agar v
Canning (1965)
Consent vitiated if obtained through fraud
o Plaintiff must prove on BOP that defendant’s fraud is what caused the plaintiff to consent to
engage in an act; and must show that the fraud relates to the nature and quality of the act
o E.g. fraudulent representation about sexually transmitted diseases (HIV-positive, venereal
disease) > concealment of a disease may be actionable on basis that plaintiff would not have
consented had they known about the defendant’s health
Consent vitiated if obtained through exercise of authority
o Plaintiff must prove on BOP that there was a power imbalance between themselves and the
defendant > a hierarchy in the relationship, e.g. boss/employee, doctor/patient,
teacher/student; Norberg v Wynrib (1992)
Consent vitiated if given by someone legally incompetent
Legal Competence to Consent




Common law test for legal competency = patient’s ability to understand nature of procedure and risks
No recognized age of consent at common law for competency > a mature minor is legally competent if
they have the intelligence and capacity to understand nature of proposed med treatment and risks
Law generally starts with a presumption of competence (except where patient is very young)
To refuse treatment you do not need to be informed, per Malette v Shulman, you only need to be
competent > a decision does not need to be in a person’s best interest so long as they are competent
Wright v. McLean (1956)
PEOPLE IMPLIEDLY CONSENT TO THE ORDINARY RISKS OF THE ACTIVITY IN WHICH THEY ENGAGE, WITHIN
CERTAIN LIMITS (FAIR PLAY, NO ANGER OR MALICE). Group of boys playing and tossing mud balls at
excavation site. McLean joined the “fight” and threw a mudball at plaintiff Wright, causing minor injury. All
boys agreed there was fairplay, no ill-will. McLean not looking at the handfuls of mud he threw > could have
been a rock or stone that hit Wright (even though outside “rules of the game”, rock was a mistake of fact so
fell within the scope of the activity). Court found that Wright consented to the ordinary risks of play fighting.
[BCSC]
Agar v. Canning (1965)
IMPLIED CONSENT TO THE ORDINARY RISKS OF AN ACTIVITY IS VITIATED IF THERE IS RESOLVE ON THE PART
OF ANOTHER PARTY TO CAUSE SERIOUS INJURY (MALICE) < LIMIT OF CONSENT TO ORDINARY RISKS RULE.
Defendant body-checked the plaintiff; plaintiff hooked the defendant with his stick; then defendant brought
stick down with both hands on plaintiff’s face > plaintiff fell to ice unconscious. Court says hockey players
impliedly consent to unintentional, accidental injury caused by other players, but where injury inflicted
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maliciously/with resolve to cause harm, consent is vitiated. BREACH OF RULES + INTENTION TO INJURE =
EXCEEDS IMPLIED CONSENT. [Manitoba QB]
*Policy justifications for “implied consent to ordinary risks of game/sport” rule (pro-defendant): courts
want to avoid chilling effect that more extensive liability might have on amateur sports, and are also
reluctant to expose young uninsured people to large damage awards.
Norberg v. Wynrib (1992)
CONSENT IS VITIATED IF OBTAINED THROUGH DEFENDANT’S EXERCISE OF AUTHORITY, IF PLAINTIFF COULD
NOT FULLY EXERCISE THEIR FREEDOM TO CHOOSE. Dr. Wynrib had knowledge of Norberg’s addiction to
painkillers > offered her drugs in exchange for sex. At first Norberg refused, but eventually she complied. Trial
judge and CA both found Norberg had consented to sexual activity because Dr. Wynrib used no force, threats
of force, and her capacity to consent was not impaired by intoxication. But SCC found that Norberg’s consent
to sexual activity was vitiated by Dr. Wynrib’s authority > “the unequal power between the parties and the
exploitative nature of the relationship removed the possibility of… meaningful consent to the sexual contact”
[SCC]
Marshall v Curry (1933)
DOCTORS HAVE LIMITED DISCRETION TO UNDERTAKE A FURTHER PROCEDURE IN ABSENCE OF PATIENT’S
CONSENT IF: (A) IT WAS UNFORESEEABLE, (B) IT IS A MENACE TO THE PATIENT’S HEALTH OR LIFE AND
WOULD UNREASONABLE TO POSTPONE DEALING WITH IT *SUBJECTIVE + OBJECTIVE STANDARD. Marshall
consented to undergo surgery to treat hernia. In the process of hernia surgery, Curry discovered that it was
necessary for health of patient to remove his left testicle > Curry removed Marshall’s left testicle without his
express (or possibly even implied) consent. Marshall sued Curry. Court agreed with Curry that removing the
testicle was medically necessary and not foreseeable prior to surgery. Once surgery began, Marshall impliedly
consented to any further objectively necessary medical procedures. [Nova Scotia SC]
Malette v Shulman (1987)
CONSENT TO MEDICAL PROCEDURES MUST BE INFORMED, BUT REFUSAL OF MEDICAL PROCEDURES NEED
NOT BE INFORMED. Jehovah’s witness Malette seriously injured in car accident. At the hospital, card
discovered in Malette’s that refused blood transfusions under all circumstances. Dr. Shulman determined
blood transfusions were medically necessary so chose to ignore the card, not certain if represented Malette’s
current intent, if her refusal applied to life-threatening circumstances, and if at the time of signing the card
Mallete was fully informed of the risks of refusing treatment (in her case, likely death). Malette brought claim
of battery against Dr. Shulman. Court decided that the doctrine of informed consent did not also apply to
informed refusal, and found that card was clear, unequivocal, and limited in scope > Dr. Shulman held liable
for battery even though he acted in good faith and the treatment saved her life (only if doctor has reasonable
grounds to believe card is invalid – e.g. old, unclear instructions, unknown sect/cult – may they then provide
treatment to preserve health/life of patient). *Emphasizes the importance that common law places on
personal autonomy. [Ontario CA]
C(JS) v Wren (1986)
MATURE MINORS ARE LEGALLY COMPETENT AND THEREFORE ABLE TO CONSENT TO MEDICAL TREATMENT
IF INFORMED. Parents of 16yrold girl sought injunction to prevent their daughter from terminating her
pregnancy. Court found the girl was a mature minor > had sufficient intelligence and understanding of the
treatment to make up her own mind and consent to the abortion without parental restraint. [Alta CA]
Re Dueck (1999)
MINORS WHO ARE NOT MATURE ARE NOT LEGALLY COMPETENT TO CONSENT TO OR REFUSE TREATMENT.
13yrold boy refused chemotherapy and surgery based on his father’s belief that God would heal him and
another not medically recognized treatment would help him. Court found that father was a dominating
authority figure, and boy was less mature than the average 13yrold > not able to understand the relevant
13
medical information and appreciate consequences of proposed treatment. State granted authority to make
medical decisions on the boy’s behalf. [Saskatchewan]
SELF-DEFENCE
Elements of Self-defence (onus on defendant):
(1) Defendant honestly and reasonably believed an assault by the plaintiff was imminent
o e.g. battery, apprehension of imminent physical contact (assault)
o Reasonable bona fide mistake of fact permitted > e.g. person running with fist raised
(2) Defendant must have honestly and reasonably thought they had no other alternative to defend
themselves against the plaintiff
(3) The amount of force the defendant used to avert the risk was reasonable in all circumstances >
proportional
o No need to measure force with perfect nicety
o Proportionality does not depend on the effect of force used (defendant can cause serious
injury to plaintiff in self-defence but application of force still reasonably proportional)
*Self-defence = a full defence
*Difference between credibility and reliability > credibility depends on the truthfulness of a witness’ portrayal,
whereas reliability depends on the accurateness of a witness’ portrayal
*Defendant need not wait for plaintiff to strike the first blow > apprehension of imminent assault by plaintiff is
sufficient to invoke self-defence, Pollard v Simon
*Defendant who makes reasonable and bona fide mistake of fact acting in self-defence can still rely on that
defence (so plaintiff may not have intended assault or battery, but if defendant had reasonable and honest
but mistaken apprehension, self-defence may still be invoked), Pollard v Simon
Cachay v Nemeth (1972)
FORCE EMPLOYED IN SELF-DEFENCE MUST BE PROPORTIONAL TO APPARENT URGENCY OF THE SITUATION.
BURDEN OF PROOF IS ON DEFENDANT TO ESTABLISH THEIR USE OF FORCE WAS NOT EXCESSIVE. Plaintiff
tried to playfully kiss the defendant’s wife at house-warming party. Defendant struck plaintiff violently on side
of head. Court found defendant’s use of force was excessive, and violence was unnecessary to prevent further
flirtation by plaintiff with wife. [Saskatchewan]
Brown v Wilson (1975)
THE AMOUNT OF FORCE THE DEFENDANT USES IN SELF-DEFENCE MUST BE REASONABLE AND
PROPORTIONAL, CANNOT BE EXCESSIVE, BUT THE RESULTANT INJURIES OF THAT FORCE DO NOT FACTOR IN.
Wilson picked up Brown, who was about to hit him, and carried him outside in a bearhug. Wilson then slipped
and Brown fell, hitting his head on concrete and then died. Court found that bearhug was reasonable use of
force in the circumstances > self-defence complete defence for Wilson. [BCSC]
R v Lavalle (1990)
VALID SELF-DEFENCE WHERE DEFENDANT KILLS PLAINTIFF TO END ONGOING RELATIONSHIP OF VIOLENCE.
Battered wife believed that shooting her husband was the only way to save her own life (imminent fear >
thought he would follow-through and finally kill her that night). SCC found that given wife’s experience of
abuse, her reaction was reasonable > she could not see the reasonable alternatives that others might have
(e.g. go to police) because she had suffered so many assaults. [SCC]
Wackett v Calder (1965)
FORCE APPLIED IN SELF-DEFENCE MUST BE REASONABLE AND PROPORTIONAL, NOT EXCESSIVE, BUT
WEIGHT OF BLOWS NEED NOT BE MEASURED “WITH EXACTITUDE OR NICETEY”. Outside beer parlour in
14
Dawson Creek, intoxicated Wackett attempted to strike both Calder and his brother unsuccessfully. In
response, Calder punched the plaintiff and knocked him to the ground (two blows total). Trial judge found
Calder’s use of force was excessive so self-defence did not apply. Majority CA disagreed and found Calder’s
use of force was reasonable and proportionate > Calder was “entitled to reject force with force”, not required
to take a passive defence, “entitled to return blow for blow”. Self-defence valid because Wackett struck
Calder when he and his brother were turning away to re-enter the hotel/beer parlour [though CA dissent
disagreed and said Calder could have walked away (had reasonable alternatives), and used excessive force].
[BCCA]
Pollard v. Simon (2009)
REASONABLY ANTICIPATED FORCE MAY BE REPELLED BY EQUIVALENT FORCE THAT NEED NOT BE
MEASURED PRECISELY. TO ACT IN SELF-DEFENCE, THE DEFENDANT NEED NOT WAIT FOR PLAINTIFF TO
STRIKE THE FIRST BLOW. SUFFICIENT FOR DEFENDANT TO REASONABLY BELIEF PLAINTIFF WILL ATTACK,
EVEN IF THIS IS HONEST AND REASONABLE MISTAKE OF FACT. In line-up to Bowen Island ferry, an enraged
Pollard approached Simon > Simon used force to preempt Pollard’s assault. Conflicting accounts of this event.
Pollard claimed Simon struck him unexpectedly. Simon claimed he believed Pollard was going to attack him
based on body language and how he was approaching Simon’s car. Court had to weigh Simon and Pollard’s
credibility > ended up finding Simon’s evidence more credible because of corroboration from son, and
Pollard’s rage. Simon had reasonable belief that Pollard was going to attack him, and used reasonably
proportionate force preemptively in valid self-defence. [BC Provincial Court]
TRESPASS TO LAND
Elements of Trespass to Land:
(1) Defendant intentionally and directly intruded onto the land in possession of the plaintiff
a. Defendant personally enters onto land in possession of plaintiff without permission
(e.g. entering through door that says “no admission”)
b. Defendant places an object on the plaintiff’s property without their permissions
(e.g. delivery of parcel to wrong address, dumping garbage on plaintiff’s land)
c. Defendant does not leave property when the plaintiff has revoked permission
(e.g. disorderly patron or fan ejected from bar or sporting event)
Possible Defences:



Consent (“license” to enter; implied or explicit)
Necessity (committing trespass to prevent harm to public, trespasser, possessor, or third party; e.g.
trespassing to prevent spread of fire or to prevent damage, to save life of stranger drowning in the
possessor’s property) > but not settled if necessity is a full or partial defence
Legal authorization
*Actionable without proof of damage
*Continuing trespass = if object placed on plaintiff’s land, new trespass accrues every day
*Mistake is not a defence
*Need to balance the individual’s right to be left alone with State’s ability to invade privacy/property in the
public interest > State must meet high threshold of societal interest to warrant invading right to privacy
*Trespass to land does not protect land ownership or someone who only has a licence to be on the property
(e.g. guest in hotel room) > only the possessor of land (e.g. tenant occupying land under lease)
15
Basely v. Clarkson (1681)
MISTAKE IS NOT A DEFENCE TO THE TORT OF TRESPASS. Defendant mowed the plaintiff’s grass, innocently
believing that it was his own grass. Court found defendant was liable in trespass to land.
Entick v Carrington (1765)
BEFORE THE STATE CAN ENTER PRIVATE PROPERTY IT MUST HAVE A PROPER PURPOSE > MODERN
INCARNATION = POLICE MUST HAVE REASONABLE AND PROBABLE GROUNDS THEY WILL FIND EVIDENCE OF
OFFENCE. Entick had seditious material on his property. Carrington, acting on authority of Secretary of State,
broke into Entick’s property to get papers. Court found Carrington liable for trespass > actionable w/o proof of
damage where defendant did not have “some positive law” (e.g. taxes) that “empowered or excused him”.
Turner v. Thorne (1960)
TRESPASSER IS LIABLE FOR ALL CONSEQUENCES THAT FLOW FROM THEIR TRESPASS, WHETHER OR NOT
THOSE CONSEQUENCES ARE FORESEEABLE. Plaintiff sustained serious injuries in garage when he tripped over
boxes mistakenly left there by defendant Thorne, a courier delivery driver, several hours earlier. Court found
Thorne liable for Turner’s injuries because he trespassed onto property and it was a trespass to leave the
packages in the garage (wrong delivery location).
Harrison v. Carswell (1975)
TRESPASS RECOGNIZED IN MODERN SHOPPING MALLS. BUT LASKIN CJC IN DISSENT DISAGREED > NEED TO
BALANCE SOCIAL IMPORTANCE OF LAWFUL PICKETING AND NATURE OF MODERN SHOPPING MALL, WITH
RIGHTS OF THE MALL OWNER. Carswell picketing on sidewalk outside her employer, a tenant in the shopping
mall, charged with trespass under Manitoba’s Petty Trespass Act. Majority found Carswell was liable for
trespass and upheld mall owner’s right to exclude people from his property (treating shopping mall like a
house). But Laskin CJC in dissent said Carswell should not be liable for trespass because her conduct not
disorderly, did not interfere with peaceable operation of the mall > the common law has flexibility and should
reflect modern values (shopping mall different from a home > very public aspect of private shopping mall
space; also social importance of lawful labour strikes). Note: pre-Charter. [SCC]
Shopping malls unique spaces: privately owned; quasi-public character > unrestricted invitation extended to
public to enter the mall; different from private nature of personal residence, office where no broad invitation
DEFAMATION
Elements of Defamation:
(1) Defamatory
 Words that would lower the plaintiff in the estimation of right-thinking members of society
generally, per Lord Atkins in Sim v Stretch (1936) [*objective test]
 Need to identify the statement’s “sting” > can be found in: (a) Literal (plain and ordinary)
meaning of statement; (b) Legal or true innuendo > based on extraneous facts, circumstances;
(c) False innuendo or popular innuendo > ordinary person would infer defamatory meaning
(2) Made in reference to the plaintiff
 Two part test from Knupffer v London Express Newspaper (1944): (1) Question of law: can
language of statement be objectively regarded as capable of referring to plaintiff? (2) Question
of fact: would reasonable individuals who know the plaintiff think the statement refers to the
plaintiff?
(3) Published
 Defamatory statement must be communicated to a third party who understands the statement
*Balancing protection of reputation with freedom of expression (freedom of speech, freedom of publication)
*Chattels can be replaced, physical injuries can heal, but damage to reputation is often irremediable
16
*Relatively easy for plaintiff to prove defamation prima facie but numerous defences available
*Every repetition of defamatory statement considered a new publication and is independently actionable.
Sim v. Stretch (1936)
ELEMENT #1: PLAINTIFF MUST PROVE THAT THE DEFENDANT’S STATEMENT WAS DEFAMATORY. Stretch
sent telegram to Sim, asking Sim to return the “money borrowed” and past wages owing to his former
housekeeper. Sim claimed that Stretch’s statement was defamatory because people would infer he was facing
financial difficulties and had bad credit. Lord Atkins said a statement is defamatory if it lowers the plaintiff in
the estimation of right-thinking members of society generally (*not an elevated test). Court concluded that
the only reasonable inference from Stretch’s statement was “borrowing”, not “you’re broke” > even though
some negativity associated with borrowing, it did not reach defamatory level. [House of Lords]
Knupffer v. London Express Newspaper (1944)
ELEMENT #2: PLAINTIFF MUST PROVE THAT STATEMENT ACTUALLY MADE IN REFERENCE TO PLAINTIFF.
TWO PART TEST: (1) LEGAL TEST, (2) FACTUAL TEST. GENERAL RULE = INDIVIDUAL MEMBER OF LARGE
GROUP CANNOT SUCCEED IN DEFAMATION ACTION UNLESS STATEMENT OBJECTIVELY IDENTIFIES THEM.
Newspaper published about Young Russia group, allegedly controlled by the Nazi dictatorship. Knupffer was
the leader of the British branch of Young Russia, though not named in the article. Knupffer sued the
newspaper in defamation, and had people testify that they thought of him when they read the article (Part 2
factual test met). But Court says the newspaper article did not actually refer to the plaintiff, directly or
indirectly. The article mentioned Young Russia presence in France and US; no mention of British branch. Court
concluded that Part 1 legal test not met > the article could not objectively be regarded as capable of referring
to the plaintiff. [House of Lords]
Crookes v. Newton (2011)
ELEMENT #3: PLAINTIFF MUST PROVE THAT STATEMENT WAS PUBLISHED. HYPERLINK = NOT A PUBLISHED
STATEMENT THEREFORE HYPERLINKER HAS NO LIABLE FOR DEFAMATION IF NO COMMENT ON CONTENT.
Newton operated website about free speech and the Internet > on one page, included two hyperlinks to
allegedly defamatory material about Crookes. Crookes sued Newton. Abella J compared hyperlinks to
footnotes in a book = content neutral references. Court noted that hyperlinkers cannot control the content of
hyperlinks, and need to balance public and private interests. Hyperlinks essential to functioning of Internet,
and facilitating communication and innovation online (need to avoid possible chilling effect). [SCC]
DEFENCES FOR DEFAMATION
Defence of Justification
(Williams v Reason, shamateurism)
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Complete defence
Applies if defendant can prove that the “sting” of the statement was true > that “the whole of the
defamatory statement was substantially true”
Applies even if statement was made maliciously
Rationale: “what is true cannot be defamatory” (Courchene v Marlborough Hotel Co)
Deterrent to arguing defence of justification: if defence fails, defendant liable for additional, separate
instance of defamation because considered re-publication of statements
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Defence of Absolute Privilege (Hung v Gardiner, complaint Law Society and CGA disciplinary body)
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Complete defence
Applies if defendant can show that statement made in context of judicial or quasi-judicial (e.g. Law
Society, Human Rights Tribunal, Securities Commission) proceeding
Rationale: pressure of potential liability for defamatory statements should not be placed on judicial or
quasi-judicial decision-makers (like limited immunity in malicious prosecution); need to avoid chilling
effect on people raising confidential complaints if they have fear of reprisal
Applies even if statement made maliciously
Defence of Qualified Privilege
(Hill v Church of Scientology, statement re contempt of court action)
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Complete defence
Applies if defendant can show that statements were made:
o in protection of the defendant’s own interests (e.g. attack on character > but statements must
not be excessive or irrelevant to original attack)
o in protection of another person’s interests > legal, social, moral duty to make statement (e.g.
where defendant required to provide credit or character reference re plaintiff)
o in furtherance of common interest where the recipient has a reciprocal interest to receive the
statement (e.g. doctor had duty to report mental health of worker on public construction
project, and govt had reciprocal duty to receive doctor’s evaluation)
o in protection of public interest (e.g. communication by public officials on matter of public
health, safety), OR
o as fair and accurate reporting of judicial or legislative proceedings, Hill v Church of Scientology
Applies even if statements untrue
Does not apply if plaintiff shows that defendant’s statement was made maliciously (published for
improper reason or motive)
Does not apply if defendant “over-publicized” information > published more information than was
necessary, or published information to parties who had no reciprocal duty or interest to receive
information (e.g. defence usually fails if statement published “to the world”)
Defence of Fair Comment
(WIC Radio Ltd v Simpson, comments by Mair re Simpson violence against gays)
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Complete defence
Four elements that defendant must prove on BOP:
(1) A comment, not an allegation of fact
(2) Based on true facts
(3) Related to matter of public interest
(4) Which any person could honestly express based on proven facts [“objective honest belief
requirement”] < before WIC Radio, needed to prove subjective honest belief
Defendant need not prove comment itself was true > simply that underlying facts were true
Does not apply if plaintiff shows defendant’s comment was made maliciously (improper purpose)
Rationale: opinions = lifeblood of s. 2(b) Charter freedom of expression
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Responsible communication on matter of public interest
(Grant v Torstar, article reporting community opinions about Grant’s private golf course development)
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Complete defence
First created by SCC in Grant v Torstar (2009)
Two elements that defendant must prove on BOP:
(1) Related to matter of public interest (per SCC in Grant: a statement qualifies as matter of
public interest if segment of public has genuine interest in knowing the information)
(2) Publication was responsible > that the defendant was diligent in trying to verify the
allegations, having regard to all relevant circumstances:
 Seriousness of allegation (more serious, more verification required)
 Public importance and urgency of matter
 Status and reliability of source (less reliable, more need to verify, corroborate)
 Whether plaintiff’s side of story sought and accurately reported (acceptable if
defendant sought plaintiff’s opinion but plaintiff refused/did not respond)
 Whether inclusion of defamatory statement justifiable/necessary
 Reportage (secondary reporting > “so and so said X”)
Rationale: in media context, defence of justification may be difficult to prove, defence of qualified
privilege does not generally apply b/c media has no duty to report to public in general, and defence of
fair comment only applies to comments (not reporting on facts); new defence created to address gap
in defences to protect media reporting on facts
Williams v. Reason (1983)
DEFENCE OF JUSTIFICATION: VALID DEFENCE IF DEFENDANT CAN SHOW THAT THE “STING” OF DEFAMATION
WAS TRUE ON BOP (VIABILITY OF THIS DEFENCE DEPENDS ON THE “STING” IDENTIFIED > NARROW, BROAD).
Defendant Reason published articled alleging that the plaintiff Williams, an amateur rugby player, was guilty of
shamateurism in relation to a book deal (getting paid for amateur sporting activities). Williams was successful
at trial. After trial, new evidence emerged that Williams was paid “boot money”. Court of Appeal considered
this fresh evidence. Court identified sting of defamation = allegation that Williams was a hypocrite, a
shamateur. Court found boot money was critical evidence related to shamateurism. [England CA]
Hung v. Gardiner (2003)
DEFENCE OF ABSOLUTE PRIVILEGE: VALID DEFENCE IF DEFENDANT CAN SHOW STATEMENT MADE IN
RELATION TO JUDICIAL/QUASI-JUDICIAL PROCEEDING. NO LIABILITY IN MAKING A CONFIDENTIAL
COMPLAINT re PLAINTIFF TO A JUDICIAL/QUASI-JUDICIAL BODY. Documents from investigation that
mentioned the plaintiff Hung forwarded by Gardiner to the BC Law Society and disciplinary board of Certified
General Accountants. Neither bodies pursued further investigation or discipline. Hung sued Gardiner for
defamation. Court found Law Society and CGA disciplinary board were quasi-judicial bodies (duty to
investigate complaints and hold disciplinary proceedings), so the defence of absolute privilege applied (even
though complaint did not result in further investigation > Court said complaint was necessary first-step in
quasi-judicial proceedings). People should be able to raise confidential concerns without fear of reprisal; need
to avoid chilling effect. *Balancing public and private interests > raising confidential concerns/complains
necessary to uphold rules of professional bodies. [BCCA]
Hill v. Church of Scientology (1995)
DEFENCE OF QUALIFIED PRIVILEGE: VALID DEFENCE IF DEFENDANT CAN SHOW THEY HAD AN INTEREST OR
DUTY (LEGAL, SOCIAL, MORAL) TO MAKE THE STATEMENT, AND THE RECIPIENT(S) HAD RECIPROCAL
INTEREST OR DUTY TO RECEIVE THE STATEMENT. NO VALID DEFENCE IF STATEMENT MADE MALICIOUSLY.
Church of Scientology and their counsel Manning brought claim of contempt of court proceedings against Hill.
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Manning published the notice of motion for this claim at press conference prior to filing, and this notice of
motion included allegations of Hill’s misconduct. Hill was exonerated but then sued Manning and Church in
defamation. Manning and Church argued defence of qualified privilege b/c press conference statement
reporting on judicial proceeding. Court found Manning and Church’s statements exceeded the “legitimate
purposes of the occasion”, lacked restraint, were “the widest possible dissemination of grievous allegations” =
made maliciously > therefore defence did not apply. [SCC]
WIC Radio Ltd v. Simpson (2008)
DEFENCE OF FAIR COMMENT: VALID DEFENCE IF DEFENDANT CAN SHOW IMPUGNED STATEMENT WAS
(1) OBJECTIVELY RECOGNIZABLE AS COMMENT, NOT AN ALLEGATION OF FACT, (2) BASED ON TRUE FACTS,
(3) RELATED TO A MATTER OF PUBLIC INTEREST, and (4) WHICH ANY PERSON COULD HONESTLY EXPRESS.
Host of radio talk show Rafe Mair made statements about Simpson who was vocally against the introduction
of homosexual material in public school classrooms. All 3 elements of defamation easily proven by plaintiff
Simpson. Court inferred that “sting” of Mair’s statement was that Simpson would condone violence against
homosexuals. Court concluded that the defence of fair comment applied because: (1) Mair’s statement
objectively recognizable of comment given his reputation as opinionated radio host, (2) Mair’s statement
based on facts generally known to people, especially Mair’s listeners, (3) a matter of public interest, and (4)
even though Mair testified he did not believe imputed “sting” that Simpson would condone violence, some
person could honestly believe this given Simpson’s charged language. [SCC]
Grant v. Torstar Group (2009)
DEFENCE OF RESPONSIBLE COMMUNICATION ON MATTERS OF PUBLIC INTEREST: VALID DEFENCE IF
DEFENDANT CAN SHOW IMPUGNED STATEMENT WAS (1) RELATED TO MATTER OF PUBLIC INTEREST, and
(2) ITS PUBLICATION WAS RESPONSIBLE. Newspaper published story about community opinions re Grant’s
private golf course development. Court created new defence of responsible communication on matters of
public interest. Court found that article was related to a matter of public interest, and that its publication was
responsible b/c journalist tried to get Grant’s opinion to represent other side but he did not respond, and that
this qualified as reportage (secondary reporting). Court said to be matter of public interest, some segment of
popln must have genuine interest in knowing. [SCC]
THE BURDEN OF PROOF
FH v. McDougall (2008)
THERE IS ONE STANDARD OF PROOF FOR ALL CIVIL CASES = PROOF ON BALANCE OF PROBABILITIES. IN A
CLAIM FOR SEXUAL BATTERY, THE PLAINTIFF NEED NOT PRESENT CORROBORATIVE EVIDENCE. CREDIBILITY
ASSESSMENT DEPENDS ON WEIGHING ALL THE EVIDENCE AND DECIDING WHO TO BELIEVE MORE.
FH brought claim of sexual battery against McDougall related to abuse that took place 30 years ago at
residential school. FH’s testimony had some inconsistencies but trial judge found overall credible. McDougall
denied the allegations of abuse. Trial judge chose to believe the plaintiff and found elements of sexual battery
established. Court of Appeal then overturned trial judge’s finding on basis that sexual battery required higher
standard of proof (“balance of probabilities PLUS”) because of high stigma. SCC overturned Court of Appeal’s
judgment. SCC said there was only one standard of proof for all civil cases, and that BOP standard was still a
significant burden for the plaintiff to meet (proof “more likely than not”). SCC said no requirement for plaintiff
to adduce corroborative evidence > sexual abuse often takes place many decades ago, and in private. SCC said
W(D) formula established for criminal cases does not apply in civil context > okay in civil context to weigh all of
the evidence and then decide who you believe more. Finally, SCC said judge’s written reasons need to be
responsive (dealing with all essential elements of the case) but need not explain every little detail. [SCC]
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