Law 193 – Torts
Table of Contents
Introduction ................................................................................................................................................ 3
Lecture – Sep 9th....................................................................................................................................................................................................... 3
Basic Court Structure ................................................................................................................................................................................................... 3
Force of “Weight” of Precedent ............................................................................................................................................................................... 3
Reported Decisions ........................................................................................................................................................................................................ 4
Introduction to Tort Law ..................................................................................................................................................................................... 5
Factors Affecting Tort Liability ............................................................................................................................................................................... 5
Lecture – Sep 13th .................................................................................................................................................................................................... 6
Mustapha v. Culligan of Canada Ltd., [2008] S.C.C. 27 ................................................................................................................................. 6
Tort Law Introduction ................................................................................................................................................................................................. 7
Functions of Tort Law .................................................................................................................................................................................................. 7
Introduction to Remedies ............................................................................................................................ 9
Proof of Causation ................................................................................................................................................................................................... 9
(a) Damage................................................................................................................................................................................................................... 9
(b) Limitation Periods ............................................................................................................................................................................................. 9
Lecture – Sep 16th ..................................................................................................................................................................................................10
Battery ...................................................................................................................................................... 14
Cole v. Turner, Nisi Prius. (1705), 6 Mod. 149, 87 E.R. 907 .................................................................................................................14
Bettel Et Al. v. Yim, Ontario County Court. (1978), 20 O.R. (2d) 617, 88 D.L.R. (3d) 543, 5 C.C.L.T. 66 ............................14
Sexual Wrongdoing ................................................................................................................................... 15
Norberg v. Wynrib, [1992] 2 S.C.R. 226.........................................................................................................................................................15
M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 ...................................................................................................................................................................15
F.H. v. McDougall, [2008] S.C.J. No. 54, 2008 SCC 53 (S.C.C.) ...............................................................................................................15
Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961) ........................................................................................................................15
Lajoie v. Kelly (1997), 32 C.C.L.T. (2d) 115 (Man. Q.B.) .........................................................................................................................16
Mandel v. The Permanent, [1985] O.J. No. 1068.......................................................................................................................................16
Lecture – Sep 20th ..................................................................................................................................................................................................17
Intentional Infliction of Mental Suffering ................................................................................................... 19
Wilkinson v. Downton [1897] 2 Q.B. 57 .......................................................................................................................................................19
Bielitski v. Obadiak (1922), 15 Sask. L.R. 153 (C.A.) ...............................................................................................................................20
Tort of Intentional Infliction of Mental Distress/Shock ........................................................................................................................20
Clark v. Canada (1994), 20 C.C.L.T. (2d) 241 (Fed. Ct.) .........................................................................................................................21
Prinzo v. Baycrest [2002] O.J. No. 2712 ONCA ..........................................................................................................................................21
Lecture – Sep 23rd..................................................................................................................................................................................................21
Intentional Infliction of Mental Suffering (or IINS) .....................................................................................................................................21
False Imprisonment ................................................................................................................................... 23
Bird v. Jones (1845) ...............................................................................................................................................................................................23
Chaytor et al. v. London, New York and Paris Association of Fashion Ltd. And Price, Supreme Court of Newfoundland.
(1961) ........................................................................................................................................................................................................................24
Martin v. Houck, 141 N.C. 317...........................................................................................................................................................................24
Valderhauq v. Libin (1954), 13 W.W.R. 383 (Alta. C.A.) -------- Otto v. J. Grant Wallave (1988), 47 D.L.R. (4th) 439
(Alta. Q.B.).................................................................................................................................................................................................................24
Nelles v. Ontario, [1989] 2 S.C.R. 170 (S.C.C.) .............................................................................................................................................25
Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, [2007] S.C.J. No. 41..........................................25
Radovici v. Toronto Police Services Board et al., 86 O.R. (3d) 691......................................................................................................25
Lecture – Sep 27th ..................................................................................................................................................................................................27
Lebel v. Roe [1994] Y.J. No. 62 ..........................................................................................................................................................................27
Ketchum v. Hislop [1984] B.C.J. No. 3185 .....................................................................................................................................................27
False Imprisonment ....................................................................................................................................................................................................27
Consent: Imprisonment by Agreement...............................................................................................................................................................28
Directness Requirement ............................................................................................................................................................................................28
Privacy ...................................................................................................................................................... 28
Jones v. Tsige [2012] O.J. No. 148 ....................................................................................................................................................................28
Tort of Intrusion upon Seclusion ..........................................................................................................................................................................30
Hopkins v. Kay [2014] O.J. No. 485..................................................................................................................................................................30
Vertolli v. YouTube, LLC .......................................................................................................................................................................................31
Lecture – Sep 30th ..................................................................................................................................................................................................31
Jane Doe 464533 v. N.D., 2016 ONSC 541 .....................................................................................................................................................33
Lecture – Oct 4th .....................................................................................................................................................................................................33
Tort of Public Disclosure of Private Facts ...................................................................................................................................................34
Discrimination ........................................................................................................................................... 34
Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181 ......................................................................36
Lecture – Oct 7th .....................................................................................................................................................................................................37
Defence of Consent ................................................................................................................................... 38
1. The Nature of Consent ....................................................................................................................................................................................38
O’Brien v. Cunard S.S. Co. ..........................................................................................................................................................................................38
Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] S.C.J. No. 26.....................................................39
Norberg v. Wynrib, [1992] 2 S.C.R. 226 .............................................................................................................................................................40
2. Consent in the Sporting Context .................................................................................................................................................................43
Charland v. Cloverdale Minor Baseball Association and Wheeler, 2013 BCSC 488, [2013] B.C.J. No. 551 ..........................43
Consent in the Medical Context ................................................................................................................. 44
Malette v. Shulman (1990), 2 C.C.L.T. (2d) 1 (ONCA)..............................................................................................................................44
Nagy v. Canada (Trial), [2005] A.J. No. 36 – Nagy v. Canada (appeal by Phillips and Kirk), [2006] A.J. No. 1020 ..........46
Capacity to Consent ................................................................................................................................... 49
C. (J.S.) v. Wren (Alta. C.A.), [1986] A.J. No. 1166 .......................................................................................................................................49
C.A.S. of Metropolitan Toronto v. L.D.K., [1985] O.J. No. 803 .................................................................................................................50
Lecture – Oct 18th ..................................................................................................................................................................................................50
Consent to Sexual Contact ......................................................................................................................... 50
P.P. v. D.D., 2016 ONSC 258................................................................................................................................................................................50
Rajiv v. Kumar, 2006 BCSC 439 ........................................................................................................................................................................51
Sharma v. Raval, 2016 A.J. 755 .........................................................................................................................................................................51
Substitute Consent .................................................................................................................................... 52
Hamilton Health Sciences Corp. v. D.H., [2014] O.J. No. 5419 ...............................................................................................................52
Self-Defence and Defence of Third Parties ................................................................................................. 53
Self-Defence .............................................................................................................................................................................................................53
Cockcroft v. Smith, Queen’s Bench. (1705), 11 Mod. 43, 88 E.R. 872 ....................................................................................................54
R. v. Smith (1837), 8 C. & P. 160 ............................................................................................................................................................................54
R. v. Hussey (1924), 18 Cr. App. R. 160 ...............................................................................................................................................................54
Wackett v. Calder, [1965] B.C.J. No. 129 (BCCA) .......................................................................................................................................54
Defence of Third Persons ...................................................................................................................................................................................56
Gambriell v. Caparelli, [1974] O.J. No. 2243 (Ont Ct. Crt.) ........................................................................................................................56
Defence of Property..............................................................................................................................................................................................58
Bird v. Holbrook (1828) ............................................................................................................................................................................................58
MacDonald v. Hees, [1974] N.S.J. No. 356 (NSSC Trial Division)............................................................................................................58
Introduction to Negligence ........................................................................................................................ 60
A. Introduction........................................................................................................................................................................................................60
Six-Part Division of Negligence .............................................................................................................................................................................60
B. The Standard of Care and Its Breach ........................................................................................................................................................61
Duty of Care .............................................................................................................................................................................................................62
Introduction
Lecture – Sep 9th
Basic Court Structure
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Trial Level Courts
o Also called courts of first instance
o Trial judge hears evidence and decides BOTH facts and law
 Trial judge decides the facts—you cannot appeal the finding of fact (unless there is
some serious error)
 E.g. this is battery—you are entitled to damages
Appeal Courts
o Every province has a court of appeal
o Decides only questions of law
o Trial record and findings of fact from lower court stay the same
The Supreme Court of Canada
o 9 judges
o Must obtain leave to appeal
 Some appeals “as of right”
 E.g. convicted of a crime at Trial level—conviction upheld at Appeal court,
but with a dissenting opinion from one or more judges there—as of right
appeal to the SCC
o Also confined to questions of law only
Force of “Weight” of Precedent
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Binding
o Same facts
o Higher court
o Same jurisdiction
Persuasive
o Same fact situation
o Different jurisdiction or same/lower level of court
Distinguishable
o Not the same fact situation
o Different relevant legislation
Primary Sources
o Cases
o Legislation (statutes; regulations)
o Charter
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Secondary Sources
o Commentary
o Textbooks
o Restatements
Reported Decisions
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Terminology
o Style of Cause – name of the case
o Plaintiff – in Tort, the person who is suing
o Defendant – in Tort, the person who is being sued
o Accused – Criminal law term
o Crown – the State
o Headnote
o Ratio Decidendi
Basic Citation
o Smith v. Jones (1997), 6 DLR. 4th 629 (SCC)
o Smith v. Jones, [1997] 2 SCR 720.
Introduction to Tort Law
The purpose of the law of Torts is to adjust the losses and to afford compensation for injuries sustained y
one person as the result of the conduct of another.
Distinction between Tort and Contract is that duties in the former are primarily fixed by the law, while in
the latter they are fixed by the parties themselves.
Factors Affecting Tort Liability
(1) Moral Aspect of Defendant’s Conduct
- “The moral guilt or blame to be attached in the eyes of society to his act, his motives, and his state
of mind”
- May be assumed that in every community there are certain acts/motives which are generally
regarded as morally right, and others which are considered morally wrong
- The ethical principles which underlie the law are “not the moral code of popular speech,
but an artificial and somewhat sublimated morality, which is formulated by the law…”
(2) Historical Development
- the substance of the plaintiff’s right is determined and limited by the possibility of a remedy under
the common law forms
(3) Convenience of Administration
- Limitations upon the time of courts, difficulty of ascertaining the real facts in some cases, or of
providing any effective remedy—these have meant that there must be some selection of those
more serious injuries which have the prior claim to redress and are easily dealt with
(4) Capacity to Bear Loss
- The relative ability of the respective parties to bear the loss which must necessarily fall upon one
or the other
o A matter of their capacity to absorb the loss or avoid it
- Limitations to the power of a defendant to shift the loss to the public—courts have frequently
been reluctant to saddle an industry with entire burden of the harm it may cause; fear it may be
ruinously heavy
(5) Prevention and Punishment
- Courts concerned with not only compensation of the victim, but the warning of wrongdoer
o Strong incentive to prevent any occurrence of harm when court decisions become known,
and liability is clear
- Prevention and retaliation have become accepted objects of the administration of the law of
torts—to the extent that punitive damages are given
Lecture – Sep 13th
Mustapha v. Culligan of Canada Ltd., [2008] S.C.C. 27
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Elements of a Case
o Facts and Judicial History
o Legal Issue(s) and Decision(s)
 Typically separated issue by issue
 WHEN WRITING EXAM—SEPARATE BY ISSUES
o Damages
 How much $ should (D) pay (P)
Legal Issue and Decision—look at each issue individually
o Successful Negligence Claim requires that (P) demonstrate four things:
 1) That the (D) owed (P) a Duty of Care (DoC)
 2) That the (D)’s behaviour breached the Standard of Care (SoC)
 3) That (P) sustained damage
 4) That the damage was caused, in fact and in law (remoteness), by the (D)’s
breach
 “Cause in Fact”  Causation
o E.g. did the fly in the bottle cause damage?
 “Cause in Law”  Remoteness
o Remoteness—policy driven inquiry that asks whether it is foreseeable
that a person would suffer this kind of injury
 “it is the foresight of the reasonable man which alone can
determine responsibility” (Overseas Tankship (U.K.) Ltd. v.
Morts Dock & Engineering Co., [1961] A.C. 388)
o Reasonable Foreseeability Requirement
 Degree of probability that would satisfy this requirement
found in The Wagon Mound (No. 2)
 A “real risk”…”one which would occur to the mind of a
reasonable man in the position of the defendant… and which
he would not brush aside as far-fetched”
o Mustapha adds a new requirement for Remoteness
 Must be reasonably foreseeable that a person of ordinary
fortitude would suffer damage?
o 1) Did (D) owe the (P) a Duty of Care (DoC)?
 Yes, it has long been established that the manufacturer of consumable good owes
DoC to ultimate consumer of that good.
 Precedent cited (Donoghue v. Stevenson)
 (D) owed (P) DoC
o 2) Did the (D)’s behaviour breach the Standard of Care (SoC)?
 Yes, trial judge found (D) breached SoC by providing (P) with contaminated water.
 Second element of liability in tort for negligence is met
o 3) Did the (P) sustain Damage?
 Yes, trial judge found that (P) developed major depressive disorder associated with
phobia and anxiety
 This had debilitating and significant impact on his life—qualifies as personal
injury at law.
o (P) has therefore sustained damage
 Court distinguishes between psychological disturbance that rises to the level of
personal injury from psychological upset
 E.g. upset, disgust, anxiety, agitation, other mental states fall short of injury—
not recognized by law
 Precedent cited (Vanek v. Great Atlantic & Pacific Co. of Canada)
o 4) Was the (P)’s Damage caused by the (D)’s Breach?
 Yes, trial judge established (D)’s breach of DoC caused (P)’s psychiatric
injury/damage (Cause in Fact established)
 Did (D)’s breach also cause damage in law, or was it too remote to warrant
recovery? (Remoteness question)
 Too remote—there is no evidence that a person of “ordinary fortitude”
would have suffered injury from seeing the flies in a bottle (Cause in Law
not established)
Tort Law Introduction
- Historical Review
o Torts as a residual category
 A “civil” wrong—plaintiff, defendant
- Remedy
o Usually damages, monetary compensation
- Burden of Proof
o Balance of probabilities used as the standard of proof (51% chance, or “more likely than
not)
 (P) must prove elements
 elements  what is required by tort
 (D) must prove defences
Legal Remedies?
- What you are asking the Court to do?
o Tort – puts you back in the position as if the situation had not occurred
Functions of Tort Law
1) Compensation
a. Damages to pay for things you have lost as a result of the tortious action
i. E.g. Bicycle accident—lost wages for 2 weeks due to injury
2) Appeasement and Vindication
a. Jane Doe v. Metro Toronto Police
i. Sought a decision that stated police action caused her damage—vindication
3) Punishment
a. Whiten v. Pilot Insurance
i. Whiten family house burned down—Insurance company dragged out compensation
litigation; suggested arson—case went to SCC and SCC awarded $1 million to
Whiten as punishment for conduct of Pilot Insurance
4) Deterrence
a. Jordan House v. Menow
i. We don’t want certain things to happen, so we deter them by showing the
consequences
5) Market Deterrence
a. A way to change the behaviour of manufacturers by awarding damages that make it
economical to correct their conduct
6) Justice
a. (P) sues (D), not for damages but for justice (due to circumstances of the case)
7) Education
a. Tort law ensures that we learn about the dangers of certain situations
i. E.g. not combining certain toilet cleaners
Introduction to Remedies
Proof of Causation
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There can be no liability for negligent conduct unless some damage is caused by it
o Sometimes called “Cause-in-Fact” issue
“But for” Test
o If the loss would not have occurred but for the conduct of the defendant  It is the cause of
the loss
o If damage would have occurred in any event, with or without the fact of the defendant, the
conduct is not a cause of the damage
(a) Damage
- No liability for negligence unless some damage has been suffered by (P)
- Damage caused by negligent conduct may consist of several different items
o E.g. medical expenses, hospital bills, loss of income, non-pecuniary loss (i.e. pain and
suffering, loss of enjoyment of life, etc.)
(b) Limitation Periods
- Discoverability Rule—Date of Discoverability of the Damage
o Time does not start running until this date
o Central Eastern Trust Co. v. Rafeuse (1986), 37 C.C.L.T. 117 (S.C.C.)
 “…a cause of action arises for purposes of a limitation period when the material facts
on which it is based have been discovered or ought to have been discovered by the
(P) by the exercise of reasonable diligence”
o Health Disciplines Act (Ontario)  provides for similar discoverability principle for
negligence in the medical area
 No liability unless the action is commenced within one year “from the date when the
person commencing the action knew or ought to have known the fact or facts upon
which the person alleges negligence or malpractice
o Peixeiro v. Haberman (1997), 151 D.L.R. (4th) 429 (S.C.C.)
 Suing in motor vehicle cases in Ontario
 SCC declared that time period cannot begin until the victim discovers the
seriousness of the injury and whether it will meet the statutory threshold
o M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, 96 D.L.R. (4th) 289
 SCC extended limitation period for victims of incest
 (P) sued father for incest 18 years after first incestuous conduct occurred—10 years
after she had reached age of majority
 Trial judge and Court of Appeal dismissed (P)’s action due to expiration of 2 year
limitation period provided for in Ontario statute
 SCC acknowledged it is a tort of battery—subject to the legislation—but held due to
nature of this type of battery the limitation period is postponed until victim
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becomes aware of connection between harm suffered and incestuous conduct that is
its cause
 Another approach  view incest as breach of parent’s fiduciary duty—not
subject to any limitations
Limitations Act, S.O. 2002, c. 24 – Ontario
o Prescribes Basic Limitation Period
 “proceeding shall not be commenced in respect of a claim after the second
anniversary of the day on which the claim was discovered” (s. 4)
o “Discovery” defined to include the time when a reasonable person would know the
essential facts required before a decision to sue could be made
 the injury
 the “act or omission” causing the injury
 the person responsible
 and knowledge that a “proceeding would be an appropriate means to see to remedy
it” (s. 5(1))
 Rebuttable presumption (s. 5(2)): person would know these things on the
“day the fact or omission on which the claim is based took place”
 s. 6  time does not run while a person is a minor, or where someone is incapable
physically or mentally (s. 7)
 Assault or Sexual Assault  victim is presumed incapable if there was an intimate
relation between claimant and defendant, or if claimant was dependant on the
defendant
Lecture – Sep 16th
Remedies
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Fault Continuum
o Intention to injure = trying to run someone over
o Recklessness = aware of risk
 E.g. driving through shopping mall
 Subjective awareness that I might hurt someone
o Negligence = carelessness
 E.g. texting while driving (omission)—could also fit under Recklessness
 Subjective awareness gone
 Objective test  Would a reasonable person have known?
o Strict Liability = liable with defence of due diligence
 E.g. using expired garbage tags provided by city
 Even more onerous—fact that there is no intention or awareness doesn’t matter;
you are responsible
 Gives you the opportunity to raise a defence
o Absolute Liability = wallet stolen, liable for driving without license
 You’re guilty. There is no excuse.
 Does not give you the opportunity to raise a defence
o Torts  mainly focused on Intention and Negligence
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Intentional Torts
o Will cover 4 intentional torts + defences: Battery, Intentional Infliction of Mental
Suffering (IIMS), False Improsonment, Invasion of Privacy
o Defendant must intend to act
o Ordinarily, Plaintiff need not prove injury (EXCEPT for IIMS—must prove psych harm)
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Negligence
o To sue for negligence, you must be hurt
o Liable for carelessness, do not need to intend action, but injury must occur to be able to sue
(can be physical or psychological, beyond mere upset, stress, strain or anxiety)
o Everyone has a duty to avoid acts or omissions that can foreseeably injure your neighbour
(Donoghue v. Stevenson)
 Donoghue test
Remedies
o 1) Damages
o 2) Injunctions – prohibitive, mandatory
 Declarative Injunction—court makes statement of what reality is (more so in
Property Law, not Tort Law)
 Court declares that you stop/start doing something
o 3) Declarations
o 4) Specific Restitution
 Giving back what you’ve gained (more so in Contracts)
o 5) Cost Awards
 Way the Court can make a statement beyond damages awarded
 Cost awards – costs associated with going to Court
o 6) Self-help remedies
 Don’t use the law at all
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Kinds of Damages
o Nominal Damages
 Intended to make a legal statement
 Damages for infringement of legal right alone, not actual harm, affirms legal right or
principle—rare, usually low
 Not very common
o Compensatory Damages
 Andrews Test
o Aggravated Damages
o Punitive Damages
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Damages in Intentional Tort
o More like nominal damages—for infringement of legal right alone, affirming your right to
bodily integrity and dignity
o Courts do not usually calculate compensation, no established methods for setting awards—
E.g. Rahemtulla simply says $5000 for “serious humiliation, outrage, and general distress”
o Courts may compensate in more egregious cases
 E.g. sexual assault or harassment, but do not intend to use the Andrews method for
assessing compensation in negligence cases—more of a “ballpark” figure)
o Awards can be quite wide-ranging (e.g. $1 for trespass, $225,000 for father’s sexual assault
of daughter = tort of battery, P.B. v. W.B.)
o Awards usually much lower than negligence
o Clark v. Canada
 RCMP case where female employee harassed for years by co-workers—received
$88,000 for lost wages and $5000 for “reasonable measure of consolation for her
injured dignity”
o Malette v. Shulman
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$20,000 for blood transfusion—“technical battery, nominal damages, good faith and
favourable outcome”
No costs awarded to successful (P), did acknowledge mental and emotional harm
suffered by (P)
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Andrews Test (Compensatory Damages)
o Principle is to put (P) back in position they would have been in if tort injury did not occur,
use Andrews framework for general damages
o 1) Pecuniary Loss
 a) Future care (lump sum vs. periodic payment)
 b) Lost earning capacity
 c) Considerations vis both (interest rates)
o 2) Non-Pecuniary Loss
 For pain, loss of life’s pleasures
 Limited to “reasonable solace for misfortune”
 Capped at $400,000
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Aggravated Damages
o Distinct rom punitive damages—is part of compensation award, for additional injury to
dignity suffered due to (D)’s reprehensible conduct
o Focus on (D)’s conduct, not proof of additional injury
o PB v WB
 Ongoing sexual assault of daughter and violence through childhood years
 “Most traumatized victim doctor had ever seen”
 $75,000 awarded
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Punitive Damages
o Whiten v. Pilot (SCC 2002)
o Whiten Test for punitive damages: 10 factors
 1) Rejects Categories
 2) Objectives:
 Punishment
 Deterrence
 Denunciation
 3) Only in exceptional cases
 4) Pejoratives insufficient “High-handed, oppressive”
 5) Look to facts of case
 Would award further objectives?
 6) Recover profits from wrongdoer
 7) No fixed cap or ratio
 Look at misconduct, not (P)’s loss
 8) Proportionality
 Look at both compensation and punishment required
o Punitive damages “if, but only if” amount of compensation not
sufficient to punish conduct
 9) Juries need guidance
 10) Punitive damages are proper subject of review by appellate courts
o Punitive damages are allowed in negligence and contracts cases, although rare
o Not foreclosed by criminal sanction for same conduct
o Awarded “if, but only if” compensatory damages not sufficient to punish (“If, but only If”
Test)
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“If, but only if” Test
o Punitive damage added if, but only if, compensation is not enough to
deter/punish/denounce bad action
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Factors Indicating Blameworthiness (Whiten v. Pilot Ins.)
o 1) Whether the misconduct was planned and deliberate
o 2) The intent and motive of the defendant
o 3) Whether the (D) persisted in the outrageous conduct over a lengthy period of time
o 4) Whether the (D) concealed or attempted to cover up its misconduct
o 5) The (D)’s awareness that what he or she was doing was wrong
o 6) Whether the (D) profited from its misconduct
o 7) Whether the interest violated by the misconduct was known to be deeply personal to the
(P)
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Punitive Damages for Negligence?
o Robitaille
o Kraft
o Vlchek v. Koshel
o McIntyre (2006 ONCA)
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Limitation Periods (pp. 279 to 282 in text)
o Limitations periods set by statute in each province (usually from two weeks to two years)
o Clock starts ticking at “date of discoverability of the damage”
 I.e. when you can reasonably connect injury to negligent act
 Clock Does not run when person is incapable or a minor
o Fiduciary duties not subject to limitations periods
 Not tort law – old remedy
 Used by people who suffered sexual assault (usually by parents) because it has no
limitations period
 Some jurisdictions putting in one
 Has to be a relationship of trust
 Can serve as alternative to tort law where limitations period has expired
Battery
Criminal Code of Canada
265.(1) – A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person,
directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or
causes that other person to believe upon reasonable grounds that he has, present ability to effect
his purpose…
Cole v. Turner, Nisi Prius. (1705), 6 Mod. 149, 87 E.R. 907
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Upon evidence in trespass for assault and battery, declared
o 1) the least touching of another in anger is a battery
o 2) if two or more meet in a narrow passage, and without any violence or design of harm,
the one touches the other gently, it will be no battery
o 3) if either of them use violence against the other, to force his way in a rude inordinate
manner, it will be a battery; or any struggle about the passage to that degree as may do
hurt, it will be a battery
Bettel Et Al. v. Yim, Ontario County Court. (1978), 20 O.R. (2d) 617, 88 D.L.R.
(3d) 543, 5 C.C.L.T. 66
Facts
(P) and others threw lighted matches into (D)’s store. Match thrown by (P)
ignited bag of charcoal.
(D) grabbed (P) with both hands—shook (P)—(D)’s head came into
contact with (P)’s nose, severely injuring it.
Issue(s)
Rule
Analysis
(D) had no intention to injure (P), though he did intend to grab (P) firmly
by collar with both hands and shake him.
Can an intentional wrongdoer be held liable for consequences which
he did not intend?
Is doctrine of foreseeability as found in law of negligence applicable
to the law of intentional torts?
The intentional wrongdoer should bear the responsibility for the
injuries caused by his conduct.
The negligence test of “foreseeability” to limit or eliminate liability
should not be imported into field of intentional torts.
In law of intentional torts  it is (P)’s right to insist (D) keep their hands
to themselves.
Test is whether (D) was guilty of deliberate, intentional and unlawful
violence or threats of violence. If yes, and more serious harm comes to (P)
than was intended by (D), then (D) must bear responsibility for
unintended result.
If physical contact intended  makes no difference that magnitude of
exceeded reasonable or intended expectations.
Sexual Wrongdoing
-
-
Unwanted sexual contact clearly constitute a battery
o May also constitute other torts—e.g. assault, intentional infliction of emotional distress
In many cases, sexual wrongdoing amounts to breach of trust
Suits against Private/Public institutions
o Actions typically brought in negligence and for breach of fiduciary duty
 (P) seek to hold institutional (D)’s “vicariously liable” for torts committed by their
employees
Victim of sexual misbehaviour might also be able to bring tort action of “intentional infliction of
mental suffering”
“Sexual Harassment”  new tort action potentially emerging
Norberg v. Wynrib, [1992] 2 S.C.R. 226
-
Female patient successfully sued doctor for a sexual battery
o Doctor agreed to prescribe drug to addicted patient in exchange for sexual activities
SCC rejected doctor’s defence that patient had “consented”
Rule: SCC held that where two parties are in position of inequality, and where dominant
party exploits that position, consent is not a valid defence
Another approach adopted was to find a breach of fiduciary duty
M. (K.) v. M. (H.), [1992] 3 S.C.R. 6
-
SCC upheld claim of incest victim against her father
Rule: SCC held that limitation period for sexual battery based upon incest does not begin
until incest victim discovers the connection between harm suffered and the incest
F.H. v. McDougall, [2008] S.C.J. No. 54, 2008 SCC 53 (S.C.C.)
-
Rule: ordinary civil burden of proof applies in sexual battery cases (not an elevated
burden)
Rule: (P)’s testimony does not require corroboration to support a verdict of liability
Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344 (1961)
-
(P) claimed damages from (D) for injuries allegedly suffered as result of persistent indecent
proposals
Court accepted (P)’s claim as being intentional infliction of emotional distress
o No physical injury suffered
Lajoie v. Kelly (1997), 32 C.C.L.T. (2d) 115 (Man. Q.B.)
-
(P), waitress, complained that (D), manager, made sexual advances/remarks to her in presence of
others
(P) left employment due to this behaviour—brought action against (D)
Court held that sexual harassment is a tort—awarded damages to (P)
Mandel v. The Permanent, [1985] O.J. No. 1068
Facts
(P) claims damages from (D)s for assault by one (D) on order of another
(D). (P) claims injuries suffered to arms, back, legs, ankles, feet, as result of
being assaulted by (D)s. (P) seeking $3000.00 _+ costs.
(D) claims (P) began to yell at staff on date of incident. (D) claims (P)
refused request by another (D) to stop disturbing staff/customers. (D)
claims (P) refused request to leave premises. (D) claims another (D) gently
touched her elbow, to point out the exit. (D) denies (P) sustained any
damages, but if she did they were the result of (P)’s own actions.
Issue(s)
Rule
Analysis
Conclusion
Court agrees with (TJ)’s finding of the facts, and decision that (P) was not
credible.
Court agrees that (D) perceived (P)’s conduct to be disruptive in a place of
business attended by other customers. Court agrees with (TJ)’s finding
that (D) placing his hand on her arm/elbow and guiding her towards the
door was a police gesture and acceptable usage in daily life of civilized
society.
Appeal dismissed—Costs awarded to (D).
Tort Suit as Remedy in Rape Cases
- Benefits:
o 1) Victim able to control the proceedings; tell their own story; victim can define their own
issues (unlike criminal law)
o 2) (P) may have greater chance of success in a tort case—due to different burdens of proof,
especially in relation to consent
o 3) If (P) wins, (P) can be compensated for injuries and their consequences
o 4) Tort suit can reinforce victim/family for their courage—help to avoid harmful selfblame
Lecture – Sep 20th
Assaults as precursor to battery
- will not be covered this year
- Assault refers to events prior to battery
o “Intentionally creating in the mind of another the apprehension of harmful or offensive
contact”
- Confusing terminology – an assault in criminal law is the same as battery in tort, in that contact
occurs
- The Tort of assault does not require that contact actually occurs—simply need to threaten
contact
How do we determine what contact/act is harmful?
- Must consider the perspective of the reasonable person
Mandel
- there is a line that can be drawn in which acts do not represent harmful contact
Battery
- Definition: “intentional infliction of harmful or offensive contact on the body of another” (Bettel v.
Yim. Para 78)
- Not defined in statute
- A Common Law Tort  created and defined solely through the case law
Battery – Burden of Proof
- Plaintiff  proves elements:
o a) intent to bring about contact
o b) harmful/offensive—objective test (sexual contact prima facie battery)
- Defendant  proves defences:
o A) consent
o B) self-defence or defence of others
o C) defence of necessity
What kind of intention is required?
- Intended contact—positive contact (not accidental)
- Must subjectively intend contact, but do not need to intend harm or offence
- Motive for contact is irrelevant
What kind of contact is required?
- need not be physical contact between two people
-
o can include:
 spitting, pouring water on another, pulling out chair from under them, flicking
flower off suit, cutting hair (Morgan v. Loyacomo para 77 – package)
Need not be aware of contact when it occurs
Must be positive act to bring about contact – does not include an omission—e.g. falling to get out
of someone’s way
What is harmful or offensive?
- Determined objectively—what would a reasonable person consider to be harmful or offensive?
o Tort of battery protects dignity (Alcorn para 77)
o No requirement for injury—actionable per se
o All sexual contact prima facie battery (Scalera)
 Scalera  SCC: all sexual contact is prima facie
o Only exception—ordinary, day-to-day contact (“gentle touch” in Cole v. Turner para 77, tap
on arm, handshake)
Negligence  must have injury
Intentional Tort  does not require injury
Sexual Wrongdoing
- Unwanted sexual contact can be both battery and a crime (sexual assault) – (NO tort of “sexual
battery or harassment)
- ALL sexual contact therefore prima facie a battery  Defendant must please and prove that
Plaintiff subjectively consented
- A kiss on the cheek might not be sexual – ask whether a reasonable person would find contact
sexual or whether it is ordinary, day-to-day contact (depends on culture?)
o Many cultures in our country—who gets to be the “reasonable person”?
 The template of Reasonable Person does not give room for particular sensitivities
(see: Mustafa)
Sexual Wrongdoing (pp. 80-84)
- Historically, victims of sexual assault faced a higher evidentiary burden, had to provide
corroboration and their sexual history was admitted into evidence
- One dissenting SCC Judge in Scalera (pp. 77, 12), Iacobucci J., would have reversed the onus on
proving consent for a battery that is sexual, effectively requiring that victim must prove she/he
did NOT consent
- McLachlin for the majority rejected that approach—burden of proving consent still on Defendant,
ordinary civil standard of balance of probability
- Alternative basis for action is breach of fiduciary duty
o (Norberg v. Wynrib, K.M. v. H.M. pp 80-81)
 Fiduciary has discretion or power over beneficiary
 Can unilaterally exercise that power
 Beneficiary particularly vulnerable—at “mercy” of fiduciary
o Solves problem of time lag, limitations periods don’t apply
o Discoverability (p. 81) may not connect abuse to psychological injury until years later
Fiduciary Duty
- legal obligation of one party to act in the best interest of the other
Tort Law + Doctor/Patient Relationship
- Court has found that not all doctor/patient relationships are fiduciary
Conduct may Constitute Consent
**In an exam  read fact pattern  state which interpretation of facts you are taking, then
proceed
Thin skull  If A pushes B, B falls and fractures their skull because they have a particularly thin skull, A
is responsible.  A’s action satisfies a Battery, once that has been shown you take your victim as you find
them.
Intentional Infliction of Mental Suffering
Wilkinson v. Downton [1897] 2 Q.B. 57
Facts
Issue(s)
Analysis
(D) played a practical joke on (P) by telling (P) that her husband was in an
accident, had both legs broken, and he needed (P) to go fetch him. From
hearing this, (P) experienced a violent shock to her nervous system,
producing vomit and other more serious permanent physical
consequences, weeks of suffering and incapacity as well as medical
expenses.
(P) claims damages for “1s 10.5d” for the cost of railway fares of someone
sent by (P) as a result of (D)’s false message. (P) also seeking 100 pounds
in damages.
Issue 1
Should intent to produce a reaction be imputed onto (D), given (D)’s
act was done to produce some kind of reaction similar to the one that
happened?
Issue 2
Was the effect too remote to be regarded as a consequence (D) is
liable for?
Precedent (claim for 1s 10.5d)
Relying on Pasley v. Freeman (1789), 3 T.R. 51, court determines that
the claim for “1s 10.5d” in railway cost is within that decision as “the
statement was a misrepresentation intended to be acted on to the damage
of the (P)” (text 84)
Court finds, however, that the doctrine established in Pasley and Langridge
v. Levy (1837), 2 M. & W. 519, does not extend to cover the 100 pounds in
damages claimed.
Pasley and Langridge Doctrine  “…a person who makes a false
statement intended to be acted on must make good the damage naturally
resulting from its being acted on” (text 84).
Precedent (Claim for 100 pounds)
Issue 1: “It is difficult to imagine that such a statement, made suddenly
and with apparent seriousness, could fail to produce grave effects…upon
any but an exceptionally indifferent person…therefore an intention to
produce such an effect must be imputed [onto the Defendant]” (text 85)
Issue 2: Court refers to Lynch v. Knight (1861), 9 H.L.C. 577 which asks
“what would be the natural effect on reasonable persons, or whether, as
Lord Wensleydale thought, the possible infirmities of human nature ought
to be recognized…”
Court found that the connection between cause and effect was “sufficiently
close and complete”.
Distinguishing Cases (Claim for 100 pounds)
Court distinguishes case at bar from two previous cases that laid down
rule that “illness through mental shock is too remote or unnatural
consequence…to entitle (P) to recover in a case where damage is a
necessary part of the cause of action” (text 85)
Victoria Ry. Comsrs. V. Coultas, 13 App. Cas. 222  distinguished
because case did not involve any element of wilful wrong; nor was illness
so direct and natural a consequence of the (D)’s action in this case
Allsop v. Allsop, 5 H. & N. 534  case was decided on lack of precedent
for alleging illness to be sufficient special damage in cases of slander; it
might lead to significantly increased litigation if a precedent were set.
Conclusion
(P) awarded 100 pounds, and 1s 10.5d
Bielitski v. Obadiak (1922), 15 Sask. L.R. 153 (C.A.)
Facts
Analysis
Conclusion
(D) told a friend via telephone that (P)’s son had hung himself. (D)
repeated this multiple times, and (P)’s mother eventually heard the
statement. (P) suffered violent shock, mental anguish, physical illness, and
was incapacitated for some time.
(P) brought action against (D) for damages.
Court held (D) made the statement with intention that it would reach (P).
Court held that any reasonable person would know that it would “in all
probability cause her not only mental anguish but physical pain” (text 86)
(P) entitled to recover.
Tort of Intentional Infliction of Mental Distress/Shock
-
In order to prove Tort of intentional infliction of mental distress/shock, (P) must show on a
balance of probabilities 3 things:
o 1) The (D)’s specific acts were extreme, flagrant or outrageous
 Not enough to simply submit that (D)’s conduct is extreme, flagrant or outrageous—
(P) must actually plead specific facts are the above
o 2) The specific acts were calculated to produce harm
 “calculated to produce harm” = conduct where the consequences are known to the
(D) or substantially certain to follow
o 3) The specific acts caused harm
o See High Parklane Consulting Inc. v. Royal Group Technologies Ltd., [2007] O.J. No. 107
(paras 29-32, 41 (Ont. S.C.J.)
-
There is no liability for intentional infliction of mental suffering unless there is some
“recognizable physical or psychopathological harm”
o See Frame v. Smith, [1987] 2 S.C.R. 99, at 128
o Another phrase: “a visible and provable illness”  Rahemtulla v. Vanfed Credit Union,
[1984] 3 W.W.R. 296 (B.C.S.C.)
-
Negligent infliction of mental suffering or “nervous shock” is also actionable
-
Tort of intentional infliction of emotional distress is a proven valuable remedy to victims of
workplace harassment
o See Clark v. Canada (1994), 20 C.C.L.T. (2d) 241 (Fed. Ct.)
Clark v. Canada (1994), 20 C.C.L.T. (2d) 241 (Fed. Ct.)
Facts
Analysis
(P) employed by RCMP 1980-1987.
(P) successfully sued Crown for persistent harassment suffered from male
colleagues. Harassment led to stress and depression in (P)—led to (P)
resigning from RCMP.
Harassment took place over a period of time in this case, but Court found
that elements of cause of action were made out.
Conduct was extreme, calculated to harm, and did result in illness.
Prinzo v. Baycrest [2002] O.J. No. 2712 ONCA
Facts
Prinzo ran hair salon at Baycrest Geriatric Centre for 17 years.
New boss wrote poor appraisals, later eliminated her job.
Prior to layoff  Prinzo injured in fall, unfit for work until Feb 1998.
Phone calls from nurse (Frost) urging return to work, ‘harassing’,
suggested malingering.
Dec 23 letter  suggested Dr. had indicated she was able to work (false)
Issue(s)
Rule
Analysis
Held conduct = IIMS
See para 61  used subject test
Conclusion
Lecture – Sep 23rd
Intentional Infliction of Mental Suffering (or IINS)
- Definition:
o Intentionally inflicting emotional distress through acts or words which results in emotional
harm as visible, provable illness
- In order to prove Tort of intentional infliction of mental distress/shock, (P) must show on a
balance of probabilities 3 things:
o 1) Act or Statement:
 The statement need not be false, speech must be extreme—outrageous, intolerable,
offend against decency and morality, calculated to cause terror or anguish—not
every unkind comment
 Have to run a statement/conduct through this threshhold
 Must do this when setting out what the law/test is
o 2) Calculated to produce harm:
 Either deliberate intention or purpose is to inflict distress
 Or reasonable person would know distress would result (Bielitski p. 86, Wilkinson,
Purdi v. Woznesensky)
 Motive is irrelevant
o 3) Actual harm:
 unlike other intentional torts, harm or psychological injury must result
 emotional distress alone can suffice, must be visible, provable, illness (Rahemtulla)
 recognizable psychiatric illness, not grief, stress, strain, upset, anxiety (Heighington)
-
 What they mean is a diagnostic as per the DSM
Employment Cases:
o Common to use IINS for workplace harassment – Clark, Rahemtulla, Prinzo v. Baycrest
o Not permitted in family law disputes (Frame v. Smith)
Rahemtulla (see ppt)
- Main issues
o Is policy manual a contract of employment?
 No
o Wrongful Dismissal?
 Was there cause for termination?
 If no cause, then = wrongful dismissal
 What damages are appropriate for wrongful dismissal? (determine damages via
length of notice period)
 Can the plaintiff recover damages for mental distress under wrongful dismissal?
 Tort – Wrongful Dismissal
 Can an employee sue an employer in tort for manner of dismissal?
 Is employer liable for intentional infliction of mental distress?
o A) Intent:
 Did the employer intend to inflict shock, or was there ‘reckless
disregard as to whether shock would ensue’?
o B) Act:
 Was the conduct here ‘flagrant, outrageous, or extreme’?
o C) Harm:
 Was there visible, provable illness here, notwithstanding lack
of medical evidence?
Ontario’s Bill 168 on “Bullying”
- Workplace Harassment Means:
o Engaging in a course of vexatious comment or conduct against a worker in a workplace that
is known or ought reasonably to be known to be unwelcome
o Workplace harassment may include bullying, intimidating or offensive jokes or innuendos,
displaying or circulating offensive pictures or materials, or offensive or intimidating phone
calls
False Imprisonment
Tort of False Imprisonment
- The tort of false imprisonment stems from trespass and requires that the plaintiff’s imprisonment
be directly caused by the defendant.
o Where the plaintiff’s arrest/imprisonment is the result of judicial intervention/discretion,
the directness requirement fails  defendant cannot be held liable for false imprisonment,
regardless of whether or not they initiated the complaint
Tort of Malicious Prosecution
- see Nelles v. Ontario (below)
Tort of Abuse of Process
- arises where a person uses the process of the court for an improper purpose, and where there is a
definite act or threat, extraneous to the court action itself, in furtherance of that purpose
Bird v. Jones (1845)
Facts
Issue(s)
Rule
Analysis
Plaintiffs were travelling on a highway in a particular direction, and were
prevented from doing so at some point by the Defendant, a policeman.
Was the (P) falsely imprisoned?
False imprisonment must include a boundary that completely confines.
In order to constitute false imprisonment, there must be personal menace
or force accompanying the act of obstruction.
Coleridge J (speaking for the majority):
The Court distinguishes between partial obstruction and disturbance with
total obstruction and detention.
The Court draws a distinction between imprisonment and mere loss of
freedom. The Court holds that though it is part of the definition of freedom
to “go withersoever one pleases”, imprisonment is something more than
the loss of this power—imprisonment includes “notion of restraint within
some limits defined by a will or power exterior to our own” (text 89).
If the case at bar would constitute imprisonment, then any obstruction to a
right of way would constitute an imprisonment.
Lord Denman C.J. (dissent):
Considered the act against the (P) to be imprisonment.
Conclusion
“As long as I am prevented from doing what I have a right to do, of what
importance is it that I am permitted to do something else?” (text 90).
(D) did not imprison (P).
Chaytor et al. v. London, New York and Paris Association of Fashion Ltd.
And Price, Supreme Court of Newfoundland. (1961)
Facts
Plaintiffs were employees of a department store in Newfoundland.
Plaintiffs entered a competitor department store to do “comparison
shopping”. Manager of the Defendant’s store (Price) called the police to
arrest the (P)’s because they were “suspicious characters”.
(P)’s accompanied the police to avoid embarrassment/because they felt
compelled to do so. (P)’s detained for ~15 minutes and released without
being charged.
Issue(s)
Rule
Analysis
(P)’s suing Price and employers for false imprisonment.
Is physical restraint a necessary criteria of “false imprisonment”?
There can be restraint of freedom without touching of the person,
what one might call a psychological type of imprisonment.
Dunfield J:
Court finds that “comparison shopping” is a normal, accepted tactic that
falls under the general ethics of competition.
Court is convinced that had the (P)’s been asked politely to leave they
would have done so without issue.
Court finds that there is a type of “psychological imprisonment”—The
(P)’s went to the police station because they felt they could not do
otherwise due to the public nature of the action.
Conclusion
Court finds that “there can be restraint of freedom without touching of the
person” (text 93).
(P) each awarded $100 against Price, and $100 against Price’s employers.
Martin v. Houck, 141 N.C. 317
Facts
Analysis
(D) told (P) to consider himself under arrest and that (P) had to go with
(D). (P) said he would go.
“…words are sufficient to constitute an imprisonment, if they impose a
restraint upon the person, and the party is accordingly restrained; for he is
not obliged to incur the risk of personal violence and insult by resisting
until actual violence be used” (text 94).
“It is not necessary to constitute false imprisonment that the person
restrained of his liberty should be touched or actually arrested…A false
imprisonment may be committed by words alone, or by acts alone, or by
both, and by merely operating on the will of the individual, or by
personal violence, or by both” (text 94).
Valderhauq v. Libin (1954), 13 W.W.R. 383 (Alta. C.A.) -------- Otto v. J.
Grant Wallave (1988), 47 D.L.R. (4th) 439 (Alta. Q.B.).
Rule
Where the complainant directs the police to make an arrest, and the
police act on this directive without exercising independent
discretion, that an action for false imprisonment against the
complainant can succeed.
Nelles v. Ontario, [1989] 2 S.C.R. 170 (S.C.C.)
Facts
Issue(s)
Rule
Analysis
Plaintiff, a nurse at a hospital, was charged with the murder of four infants
that died while under the hospital’s care. Murder charges dismissed at
preliminary hearing.
Plaintiff brought action for malicious prosecution against the Corn, the
A.G., and police officers.
Are the Crown and the A.G. absolutely immune from suits for
malicious prosecution?
Tort of malicious prosecution can be used by a person wrongly prosecuted
by someone else—see 4 elements for a successful suit below.
Crown enjoys immunity from suit for malicious prosecution.
A.G. and crown attorneys have no such immunity.
Four elements that must be satisfied for a successful suit for malicious
prosecution:
1) The proceedings must be initiated by the defendant
2) The proceedings must terminated in the plaintiff’s favour
3) The proceedings must have been instituted without reasonable
cause
4) The defendant must have been malicious
#3 and #4  present great difficulty—not only must there have been no
honest belief, based on reasonable grounds, that the accused was guilty,
there must also be proof that there was an ulterior motive, beyond the
pursuit of justice, on the Defendant’s part.
See: Griffin v. Summerside (City), [2008] O.J. No. 229, at para 7
Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board,
[2007] S.C.J. No. 41
Rule
Analysis
SCC recognized that the tort of negligent police investigation exists in
Canada.
McLachlin C.J.C. (for majority):
Existing remedies for wrongful prosecution and conviction are incomplete
and may leave a victim of negligent police investigation without legal
resources.
Torts of false arrest, false imprisonment, and malicious prosecution do not
provide adequate remedy for negligent acts.
Radovici v. Toronto Police Services Board et al., 86 O.R. (3d) 691
Facts
Plaintiff and three friends had left a club where they had been drinking for
several hours, and were walking downtown. Plaintiff had an open bottle of
beer, which was noticed by the Defendant, a police officer.
(D) was working plain clothed, noticed (P) and friends walking towards
him, and (P) with open bottle. (D) requested (P) bring him the bottle, (P)
refused, (D) placed (P) in handcuffs after brief exchange and arrested her
for public intoxication.
(P) brought to 55 Division, underwent level 2 search, belongings removed,
placed in a private cell for 6 hours, then released with a Provincial
Offenses Ticket, and charged with possession of alcohol in a public place.
(D) arrested (P) pursuant to s. 31 o the Liquor License Act, R.S.O. 1990,
which provides:
“31(4) No person shall be in an intoxicated condition,
(a) in a place to which the general public is invited or permitted
access
(5) A police officer may arrest without warrant any person whom he or
she finds contravening subsection (4) if, in the opinion of the police officer,
to do so is necessary for the safety of the person”
Crown attorney ended up withdrawing the charge.
Issue(s)
Rule
(P) suing for damages alleging unlawful arrest and detention, malicious
prosecution, assault, negligence and violation of constitutional rights
under ss. 7, 8, 9 and 12 of the Charter.
Did the (D) have reasonable and probable grounds to arrest (P)
under ss. 31(4) and (5) of the Liquor License Act?
Who bears the onus of proving imprisonment is not “false”?
(Onus is on the (D) to establish this on a balance of probabilities)
What is the test under s. 31(5)—When is it necessary for the
safety of the person?
When determining whether the requirements for arrest under ss. 31(4)
and (5) of the Liquor License Act have been met, the degree of impairment
is directly proportional to the necessity of protecting any person through
arrest. The risk presented must be taken into account in order to assess
whether the degree of impairment warrants an arrest. (my rule)
An arrest of an intoxicated person is not justified under s. 31(5) of the
Liquor License Act where that person is argumentative or belligerent, but
is otherwise in control of their faculties and does not pose a safety risk to
self or others. (professor’s rule)
Analysis
While a plaintiff may be ordered to pay all costs under the rules of civil
procedure where they have bypassed Small Claims Court and refused an
offer of settlement, they should not have to pay the defendant’s costs
where they are otherwise successful in their action. (professor’s rule)
Credibility
Court finds that only two witnesses to the arrest, the (D) and one of (P)’s
friends, were sober.
Court identifies (P)’s sober friend as a “neutral observer to the events with
no stake in the outcome of the trial”, and found his evidence/testimony to
be more reliable than (D)’s.
Statutory Interpretation/Precedence
Court examines requirements of arrest under s. 31(4) of the Liquor License
Act:
1) a person in an intoxicated condition
2) the necessity for an arrest in the opinion of the police officer
3) arrest for the safety of the person
Test for False Imprisonment
Court lays out test for false imprisonment:
1) Would a ‘reasonable person in the arresting officer’s position
conclude that there were reasonable and probable grounds to
make arrest? (R. v. Storrey, [1990] 1 S.C.R. 241)
2) The totality of the circumstances relied upon by the arresting
officer must be taken into account—will form the basis for
objective assessment. This includes the dynamics within which
the officer acted on his/her experience (R. v. Lawes, [2007] O.J.
No. 50.)
Test for Arrest under s. 31(5)
Court cites R. v. Giri, [2001] O.J. No. 3307 (paras. 36-40 ) and R. v.
Hagarty, [2005] O.J. No. 5462 (paras. 15-17) for the meaning of
“intoxicated condition”. Court cites cases that have described intoxication
as being “stupefied by alcohol” or a state of “substantial or extreme
impairment”.
Court holds that intoxication alone is not sufficient grounds for arrest.
Court finds that, in determining whether requirements for arrest under ss.
31(4) and (5) if the Liquor License Act have been met, “the degree of
impairment is directly proportional to the necessity of protecting any
person through arrest” (para. 20).
Court cites R. v. Giri at paras. 41-42 re: taking into account risk presented
when assessing if degree of impairment warrants arrest.
“Necessary” as per s. 31(5) implies that no other reasonable means are
available to avoid risk of harm in existing circumstances.
Application to Current Case
Court finds that (P) was clear-headed enough to question why an apparent
stranger, (D), was demanding her beer, and (P) was asking for proof of
authority. Court finds (P) was “in reasonable control of her faculties”.
Court finds that (P) was acting in contrary to s. 31(2) of the Liquor License
Act by carrying an open bottle of beer, but concludes this is not grounds
for arrest unless she refused to identify herself upon request (this did not
occur).
Court finds no assessment of risk—concludes that (P)’s friends were
prepared to see her home safely.
Conclusion
Court concludes (P)’s arrest and detention was unlawful—(P)’s cause of
action for false arrest and false imprisonment established.
Plaintiff’s action allowed--$7500 in damages awarded—no costs awarded.
Lecture – Sep 27th
Lebel v. Roe [1994] Y.J. No. 62
-
Nurse held liable in false imprisonment for telling a woman that she would be apprehended by the
RCMP if she did not voluntarily go to the psychiatric hospital
(not true - RCMP, JP, application for committal all denied requests to apprehend and hospitalize)
$5000 awarded for humiliation
Ketchum v. Hislop [1984] B.C.J. No. 3185
-
Woman detained in psych hospital via application for committal that was ‘out of time’ (too late,
therefore invalid)
Damages awarded for false imprisonment, as her rights to liberty and security were ‘seriously
invaded’
Only $500 awarded in damages though, since she benefited from treatment
False Imprisonment
- Definition  Intentionally restraining the movement of another person ‘falsely’ (without
authority)
- “Imprisonment”
o 1) freedom must be totally restricted—no alternate means of escape (Bird v. Jones)
o 2) means of escape must be reasonable, not dangerous
-
-
 Courts have held that Trespassing is a reasonable means of escape
o 3) subjective component gone in Canada (and the U.K.)—need not be aware of
imprisonment at the time (see Meering, Murray, Ketchum v. Hislop)
 e.g. detained in prison too long
Means of Imprisonment
o 1) Need not be actual physical force or confinement
o 2) Also via threats of force or coercion (See Chayter, Campbell v. Kresge, Martin v. Houck,
text 93-94)
o 3) Can be barriers or other physical means (on airplane or ferry, see: Robinson v. Balmain)
“False”
o 1) ‘False’ means ‘without legal authority or justification’
o 2) Is a defence, NOT element of offence—Defence must plead and prove that it wasn’t false
o 3) This defence was raised in Radovici but failed
o 4) Civil debt (i.e. not paying bill) NOT justification
Consent: Imprisonment by Agreement
- Operates like defence of consent—open to Defendant to show that Plaintiff agreed to confinement,
either implicitly by conduct, or explicitly
- Getting on Express bus (see: Martin v. Berends, p. 95)
- Boarding ferry (see: Robinson v. Balmain New Ferry)
- Going down into a coal mine (see: Herd v. Weardale Steel)
Directness Requirement
- Defendant liable even where they have directed another person (an ‘agent, usually police) to
imprison
- Defendant will be liable where police act on Defendant’s direction without exercising independent
discretion (see: Otto v. Grant)
- Defendant NOT liable where judicial decision-making or police discretion is interposed, but might
be malicious prosecution (see: Nelles v. Ontario)
Privacy
Jones v. Tsige [2012] O.J. No. 148
Facts
(P) and (D) work at separate branches of the Bank of Montreal (BMO),
where (P) maintains a primary bank account.
Issue(s)
Rule
Analysis
(D) was involved in a relationship with (P)’s ex-husband—(D) accessed
(P)’s personal bank records at least 174 times over 4 years. (D) did not
publish, distribute, or record the information in any way.
Is there a tort of invasion of privacy?
Yes, there is a Tort of Intrusion upon Seclusion.
Further, damages for intrusion upon seclusion in cases where the (P) has
suffered no pecuniary loss should be modest, but sufficiently mark the
wrong that has been done. Range fixed at up to $20,000.
Prosser’s on Privacy – Tort of Intrusion Upon Seclusion
Canadian courts generally cite Prosser’s four tort’s:
1) Intrusion upon the plaintiff’s seclusion or solitude, or into his
private affairs
2) Public disclosure of embarrassing private facts about the plaintiff
3) Publicity which places the plaintiff in a false light in the public
eye
4) Appropriation, for the defendant’s advantage, of the plaintiff’s
name or likeness
Court finds tort most relevant to case at bar is the tort of intrusion upon
seclusion:
One who intentionally intrudes, physically or otherwise, upon the
seclusion of another or his private affairs or concerns, is subject to
liability to the other for invasion of his privacy, if the invasion
would be highly offensive to a reasonable person
Precedence
Court finds that, though far from conclusive, case law supports this cause
of action in tort.
Court cites how the Charter recognizes privacy as a fundamental value—
specifically identifies the right to informational privacy (distinct from
personal and territorial privacy) as worthy of protection.
Tort of Intrusion upon Seclusion
Court states that the facts of the case at bar “cry out for a remedy”. Court
states that the discipline administered by BMO were governed by
principles of employment law and employer interest, and do not respond
to the wrong done to (P).
Court identifies key features of cause of action for Tort of Intrusion upon
Seclusion:
1) Defendant’s conduct must be intentional (including reckless
conduct)
2) The defendant must have invaded, without lawful justification,
the plaintiff’s private affairs/concerns
3) A Reasonable person would regard the invasion as highly
offensive causing distress, humiliation or anguish
Court states that proof of harm to a recognized economic interest is not an
element of the cause of action—emphasis given to notion that the
intangible nature of the interest protected results in damages for intrusion
upon seclusion being ordinarily measured by modest conventional sum.
Court states that the above key features of the cause of action for this tort
means that claims for intrusion upon seclusion will arise only for
deliberate and significant invasions of personal privacy. E.g. intrusion into
matters such as: financial/health records, sexual practices/orientation,
employment, diary or private correspondence that a reasonable person
would describe as highly offensive.
Case at Bar
Court finds that (D)’s actions satisfied all of the features of cause of action
for this tort. Court finds that no public embarrassment, harm to health,
welfare, social, business or financial position suffered by (P) as a result of
(D)’s actions. Court finds that (P) was understandably upset, and that
(D)’s actions were deliberate and repeated.
Conclusion
(P) awarded $10,000 in damages.
Tort of Intrusion upon Seclusion
- “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his
private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the
invasion would be highly offensive to a reasonable person” (text 111).
o Tort includes physical intrusions into private places as well as listening or looking, with or
without mechanical aids, into the plaintiff’s private affairs
o Non-physical forms of investigation or examination into private concerns may be
actionable
- Features of Cause of Action for Tort of Intrusion Upon Seclusion
o 1) Defendant’s conduct must be intentional (including reckless conduct)
o 2) The defendant must have invaded, without lawful justification, the plaintiff’s private
affairs/concerns
o 3) A Reasonable person would regard the invasion as highly offensive causing distress,
humiliation or anguish
- Jones
o Court held that damages for intrusion upon seclusion in cases where the (P) has suffered
no pecuniary loss should be modest, but sufficiently mark the wrong that has been done.
Range fixed at up to $20,000.
 If you can prove economic loss, additional damages may be awarded
- Manitoba Privacy Act
o Court cites this Act as being instructive as to determining where in the range of damages
(see Rule) a case falls.
Hopkins v. Kay [2014] O.J. No. 485
Facts
Issue(s)
Rule
Analysis
Conclusion
(P)s claim based on allegation that in 2011-12, ~280 patient records of the
Peterborough Regional Health Centre (Hospital) were accessed and
distributed (in some cases) to third parties without the consent of the
patient(s).
(P)s maintain that many patients have suffered psychological damages as
result of the breach of privacy. (P) claims for general damages arising out
of alleged breach of privacy, as well as claims for punitive and aggravated
damages.
1) Has PHIPA “occupied the field”, or can the common law tort of breach of
privacy and PHIPA co-exist?
Issue #1
Court finds, with reference to Jones, that Statute and Common Law tort of
breach of privacy can co-exist.
(P) awarded costs of $24,000
Notes:
- hospital argues that PHIPA governs this matter—excludes civil action in the absence of a
determination/order from the Commissioner
- plaintiff argues that Jones has established common law tort of intrusion upon seclusion, and thus
their claim should be allowed
- Different test for striking statement of claim at Superior Court (different from Small Claims
Court—see Vertolli v. Youtube)
o is it ‘plain and obvious’ that statement of claim discloses no cause of action?
- Is the common law tort of intrusion upon seclusion pre-empted by PHIPA here?
- Why is the result in B.C. different from Ontario?
Vertolli v. YouTube, LLC
Facts
Issue(s)
1) Can you strike a statement of claim in small claims court?
2) If so, what is the test for striking a statement of claim?
3) Does the statute preclude the common law tort?
4) Is there sufficient evidence to sue for common law tort of intrusion
upon seclusion?
Rule
Analysis
Issue #1, #2
Test = is action inflammatory, waste of time, nuisance or abuse of court
process? (Robertus)
Issue #3
Statute does NOT preclude common law tort (Jones v. Tsige)
Issue #4
(P) CAN sue for common law tort of intrusions upon seclusion—enough
evidence here (facts as pleaded taken to be true), action not inflammatory,
waste of time, nuisance or abuse of court process
Conclusion
Lecture – Sep 30th
Interests Protected by Privacy?
- Physical
o Harassment
o Threats
o Sexual integrity
o Intrusions (battery, assault, IINS)
- Reputation
o Personal information
o Defamation
o Confidentiality
- Property
o Monitoring
o Physical intrusions (trespass, nuisance)
- Commercial
o Appropriation of personality
o ‘theft’ of marketable images
Countervailing Concerns/Motives
- Freedom of Expression
o Artistic works
- Security
o Blood samples
o Airport searches
- Freedom of Press
o Free speech
o Democracy
- Political Motives
-
o Union activity
o Abortion clinics
Profit
o Celebrities
o Zeta-Jones
Prurience
o Video Cams
o Topless photos
Harassment
o Hostile neighbours
o Ex-partners
Earlier Actions in Privacy
- Motherwell v. Motherwell (1976)
o New category of nuisance
 The non-physical intrusion into the use or enjoyment of another’s property
o ‘invasion of privacy via use of the telephone system’
o nominal damages and injunction granted
- T.W. v. Seo (2003 ONCA)
o Ultrasound technician videotapes plaintiff in changing room
o No invasion of privacy because no property interest or appropriation of personality
Privacy in the Common Law: Somwar v. McDonald’s (2006 Ont. Trial Ct.)
- Plaintiff employee sues employer for conducting credit check without consent
o (Discrimination in promotions struck from claim)
- (D) seeks motion striking statement of claim
- Held: Ontario trial court refuses to strike:
o “the time has come to recognize invasion of privacy as a tort in its own right”
- Justifications for a new Tort:
o Statutory protection in other provinces, tort has been recognized in Ontario case law
o Judicial recognition of a Charter right to Privacy to protect dignity, integrity, autonomy of
individual (Dyment, Hill)
o Technological change poses greater risk to privacy, traditional torts not sufficient
- Nitsopoulos v. Wong (2008)
o Somwar was followed in this case
o Held: Jan Wong could be sued for posing as a nanny in someone’s home
Other Jurisdictions
- Nova Scotia
o Trout Point Lodge (2012)
 N.S. trial court recognizes Ontario tort of intrusion upon seclusion
- British Columbia
o Demcak (2013)
 B.C. Trial court declines to recognize common law tort for breach of privacy
 B.C. has statute that covers invasion of privacy—British Columbia Privacy Act
o Must ‘wilfully’ violate privacy of another
o No proof of damage is required
o Nature and degree of entitlement to privacy determined y
reasonableness in circumstances
o ‘nature, incidence and occasion of the act, and domestic or other
relationships between parties’
Jane Doe 464533 v. N.D., 2016 ONSC 541
Facts
Issue(s)
Rule
Analysis
Conclusion
Notes:
- Recognition of a new Tort of Public Disclosure of Private Facts
o One who gives publicity to a matter concerning the private life of another is subject to
liability to the other for invasion of his privacy, if the matter publicized is of a kind that:
 a) would be highly offensive to a reasonable person
 b) is not a legitimate concern to the public
o Reasons for recognizing a new Tort
- Tort of Public Disclosure of Private Facts
o Uses Prosser, 2nd category + Restatement (like Tsige)
o Elements:
 Must be public disclosure
 Facts themselves must be private
 Matter publicized or act of publication ‘highly offensive to reasonable person’
 Matter is not of legitimate concern to the public
- Damages Discussion (Stinson)
o High damage awards very rare in intentional tort
o Damages limited to $20,000 (Jones v. Tsige)
 Court:
 Stinson uses sexual battery precedent
 General damages at $50,000
 Aggravated damages ($25,000) and punitive ($25,000)
 Injunctions – can’t keep, repost video, or contact family
 Cost award = $36,208.73, full indemnity (rare)
Lecture – Oct 4th
Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580 (1986 SCC)
- says that the Charter doesn’t apply to common law
- Question: Is the Common Law reviewable under Charter rules?
o Court  No—allowed an injunction to stop the Union from their picket—Court didn’t care
about the limits on freedom of expression/association—Charter does not apply to Common
Law
 However, Court: Common law should be interpreted and applied in a manner
consistent with Charter values
Tort of Public Disclosure of Private Facts
-
Uses Prosser, 2nd category + Restatement (like Tsige)
Elements:
o Must be public disclosure
o Facts themselves must be private
o Matter publicized or act of publication ‘highly offensive to reasonable person’
o Matter is not of legitimate concern to the public
Annie Problem
- Features of Cause of Action for Tort of Intrusion Upon Seclusion
o 1) Defendant’s conduct must be intentional (including reckless conduct)
o 2) The defendant must have invaded, without lawful justification, the plaintiff’s private
affairs/concerns
o 3) A Reasonable person would regard the invasion as highly offensive causing distress,
humiliation or anguish
- It is possible to find all the elements, but also consent—defence of consent is determinative
- Steps:
o 1) Identify the Acts that would constitute a tort
o 2) Run these acts through whatever test related to your tort there are
Joe and Cynthia
- Tort of Public Disclosure of Private Facts
o Uses Prosser, 2nd category + Restatement (like Tsige)
o Elements:
 Must be public disclosure
 The context is that of an Intervention—Interventions imply a sort of
privacy/private groups
 Family could seemingly be considered public in certain contexts (i.e. a family
BBQ), but within the context of an Intervention there is an expected/implicit
environment of privacy
 Facts themselves must be private
 Facts are private, yes.
 Matter publicized or act of publication ‘highly offensive to reasonable person’
 Marijuana—perhaps not highly offensive to reasonable person given the
development of marijuana laws in Canada
 Sexually explicit messages—definitely highly offensive to reasonable person,
however within the context it is private and related to the intervention
 Matter is not of legitimate concern to the public
 This is not a legitimate concern of the public
Discrimination
Bhadauria v Board of Governors of Seneca College, [1979] OJ No 4475.
Facts
Pl. clains she’s been discriminated against by def. on grounds of her ethnic
origin.

She is a highly educated East Indian woman with Doctorate in Phil.
And Maths, and is qualified to teach in province of Ontario, with
several years exp.
 She applied several times over 4 years, for 10 advertised openings
at def. college, has never secured an interview.
 She alleges this is due to her ethnic origin
Instead of filing complaint under On Human Rght Code c. 318, pl. issued
claim for damages for discrimination and for breach s.4 of that Code
She alleges the nature of her damages are:
 That she has been deprived of the opportunity to join the
defendant’s teaching staff and to ear her livelihood as a teacher
and that she has suffered mental distress, frustration and loss of
dignity and self-esteem.
Issues
Is there a common law remedy for discrimination?
Rule???
Should there be?
Between Ashby v White (1703) 92 ER 126 and the preamble of the On
Human Rights Act, a person has the right to a common law remedy.
i.e. If a pl. can establish that they have been discriminated against based
on any of the ground laid out in the Ontario Human rights act, then the
common law must afford them a remedy…. (basically the tort he
creates).
Analysis
Goes into analysis of precedent, in which two different cases (Christie v
York Corp [1940] SCR 139, and Rogers v Clarence Hotel [1940] 3 DLR
583) That both deal with the refusal to serve beer to black (literally
‘negro’) ppl…. [?]
Important question raised in the second case, is whether a SCC
decision on the civil law of Quebec was binding in common law
jurisdiction: it is not.
Basically, judge decides that the facts give rise to a cause of action at
common law, even though there is no cited authority that has yet
recognized a tort of discrimination. He uses Ashby v White (1703) 92 ER
126 to demonstrate that if a pl. has a right, he must necessarily have a
means to vindicate and maintain it.
Conclusion
Judge cites the Ontario Human Rights Code preamble as a sign of the
province’s public policy of respecting fundamental human rights, thus
necessitating the common law’s ability to ensure a pl.’s access to their
human rights, regardless off race, creed, religion, etc.
Appeal is allowed, trial decision set aside, costs of appl. will be
compensated.
Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2
S.C.R. 181
Facts
Issue(s)
Rule
Analysis
The ONCA recognized a new intentional tort of discrimination stemming
from Bhadauria’s argument that a civil right of action flowed directly from
a breach of the Ontario Human Rights Code.
ONCA found that the Code supplied applicable standards, the breach of
which allowed the tort to rise at common law.
Issue #1
Should the SCC affirm the recognition by ONCA of a new intentional tort of
discrimination?
A common law remedy (e.g. creation of a new tort) arising from the
violation of the terms of any given piece of statutory legislation will
not be recognized where that legislation contains a comprehensive
enforcement scheme for the violation of its substantive terms.
Issue #1
SCC finds that there is no common law case in Canada that recognizes the
tort of discrimination as posited by Bhadauria.
SCC finds that the comprehensiveness of the Code in its administrative and
adjudicative features precludes the creation of a tort of discrimination
directly from a breach of the Code.

Adjudicative features of the Code include a right to appeal to the
Courts on both fact and law
SCC disagrees with ONCA’s finding that the enforcement scheme of the
Code did not exclude a common law remedy.

Brown J.A. (ONCA): “the Code…[does not] contain any expression
of legislative intention to exclude the common law remedy.
Rather, the reverse since s. 14(a) appears to make the
appointment ”
SCC finds that the lack of any explicit exclusion of a common law remedy
strengthens the notion of Legislative intent to provide the Minister with
untrammelled discretion as to the adjudication/enforcement of the terms
of the Code.
Conclusion
SCC finds that the Code precludes both civil action based directly
upon a breach, and common law action based on the notion of the
public policy expressed in the Code.
Appeal allowed; action dismissed—SCC found ONCA erred in supporting a
tort of action of discrimination.
Radnoff & Foy – “SCC Should Recognize the Tort of Discrimination”
 Primary reason SCC has rejected a general tort of discrimination is because the court views that the
Code is comprehensive enough for addressing claims of discrimination
 This reasoning (demonstrated in Bhadauria) begins to crumble when one looks at the procedural
limitations of the human rights regime
o Plagued with systemic constraints
o Many of those who allege discrimination are unable to obtain relief through the complaints
process because of “procedural hamstrings, remedial limitations, broad enforcement
discretion and delay”
o Judiciary recognizes that discrimination is pervasive wrong in society that should be redressed
within the civil system
 Seneca College of Applied Arts and Technology v. Bhadauria
o Bhadauria is a well-qualified math teacher who over the course of four years, made 10
separate applications for employment with Seneca College



o Although her applications were acknowledged, she was never granted an interview nor was
she given any reasons for rejection
o Alleged she was denied position because of her ethnic background
o Asserts that those hired instead of her were not as qualified
o Chief Justice Laskin SCC – held that you can’t sue someone for a tort if that cause of action is
acknowledged in the criminal code (I think this is what he means) – the Code “overtook the
existing common law”
Courts don’t like this; they have been distinguishing Bhadauria in numerous cases so they do not have
to follow it
o L’Attiboudeaire v. Royal Bank of Canada [1996] OJ 178 (CA)
o McKinley v. B.C Tel [1996] BCJ No. 982 (SC)
 Discrimination does not by itself provide the basis for a civil cause of action; BUT it does
not oust the jurisdiction of this Court to try an action for damages based on an
independent tort or breach of contract
Procedural Limitations:
o In Noble China Inc. v. Cheong [1998] OJ No 4676 GD – declined to grant a stay on the basis that
the human rights process is more complex and time-consuming than litigation.
The Trilogy: three cases related to work-place sexual harassment made it to the Court; all three cases
were successful at the trial level in advancing claims for wrongful dismissal  the court is taking a
clear stance on discriminatory conduct and suggests that the Code can be used to interpret employer
obligations
o An example of how civil courts can be a meaningful instrument in advancing equality and nondiscrimination
Lecture – Oct 7th
R. v. Saskatchewan Wheat Pool
 Civil consequences of breach of statute should be subsumed in the law of negligence
 (A) nominate tort of statutory breach giving a right to recovery merely on proof of breach and
damages should be rejected, as should the view that unexcused breach constitutes negligence per
se
 Proof of statutory breach, causative of damages, may be evidence of negligence
 The statutory formulation of the duty may afford a specific and useful standard of reasonable
conduct
Jaffer v. York University (2010 ONCA)
 Jaffer considered whether the courts should recognize a common law tort of discrimination in the
wake of the 1981 SCC decision in Bhadauria.
 As in Bhadauria, court rejected this and
Nolan v. Toronto Police [1996] O.J. No. 1764
 Unlawful detention of 1st Nations man, racial slurs, no reasonable and probable cause
 Two officers found liable for false imprisonment, intentional infliction of nervous shock, and
negligence (force also liable)
 Court also awarded punitive damages, noted that racist comments actionable in IINS (mental
suffering)—outrageous, intolerable, outside bounds of decency (almost $25,000 awarded overall)
Defence of Consent
Conduct which would ordinarily result in liability may not do so for a number of reasons:
- Plaintiff consenting to invasions of their persons  not allowed to claim protection of law
- Other reasons that may excuse invasions of plaintiff’s interests:
o Self-defence
o Defence of persons, property, or of the public interest as a whole
1. The Nature of Consent
O’Brien v. Cunard S.S. Co.
Facts
Issue(s)
Rule
Analysis
Plaintiff, O’Brien, alleges defendant, steamship owner, conducted a tort of
assault and negligently vaccinating (P) who was a passenger on (D)’s ship.
Trial court returned verdict for (D), and (P) appeals/brings exceptions.
Issue #1 – Is there any evidence to find the (D) guilty of assault on (P)?
Issue #2 – Is there any evidence to find that (D) was guilty of negligence
towards (P)?
1) In determining whether an act is lawful/unlawful, once must
consider how that act relates to the greater circumstances in
which it occurred.
2) If an individual’s conduct indicates consent to an act, and if
that individual does not expressly indicate they do not
consent, that act will be found as lawfully conducted.
(D)’s Conduct Considered in Connection with Surrounding
Circumstances
Issue #1 and #2
If (P)’s conduct indicated consent, (D)’s surgeons were justified in their
acts.
Court finds that (P)’s conduct indicated consent:
There were numerous signs in different languages indicating the
nature/purpose of the vaccination program
(P) testified that she was one of ~200 women assembled to be
vaccinated—and that she understood they were to be vaccinated
(P) testified that she lined up, showed her arm, stated she had
been vaccinated before but had “no marks” of such, that the
surgeon stated she needed to be vaccinated regardless, that she
didn’t tell him she did not want to be vaccinated, and that she
took the certificate of vaccination after with no objections
Court finds that (P) did nothing to indicate that she did not want to be
vaccinated, nor receive the certificate of vaccination to avoid detention.
Court concludes that, in the surrounding circumstances, conduct of (D)’s
surgeons was lawful.
Conclusion
Issue #2
Court found no evidence or indication of negligence on the part of (D)’s
surgeons.
Court finds that (D)’s surgeons acted lawfully—(P)’s appeal/exceptions
overruled.
Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24,
[2000] S.C.J. No. 26
Rule
Analysis
1)
In the Tort of Sexual Battery, the onus rests on the (D) to
prove that the (P) consented, or that a reasonable person in
(D)’s position would have thought (P) consented.
2) The Battery of Sexual Assault follows the traditional rule
that the (P) in a battery action must prove direct contact, at
which point the onus is placed on (D) to prove consent (or
some other defence)
Does Sexual Battery fall into “Implied Consent” or “Acceptable
Ordinary Contact”?
SCC finds that sexual activity is not one where consent is implied, nor does
it all into the category of being generally accepted and expected in every
day life.
SCC finds sexual activity involves singling out another person’s body in a
deliberate, targeted act.
Precedence – Conduct must be “harmful” or “offensive” to constitute
Battery
SCC finds that precedence indicating contact must be harmful or offensive
to constitute battery reflects the need to exclude battery from casual
contacts inevitable in everyday life.
SCC cites La Forest J. in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6
SCC states that the law of battery protects the inviolability of the person.
Making out a case of battery does not require the (P) to prove
that the contact was physically or psychologically injurious, or
morally offensive
Sexual touching, absent the (D) showing a lawful excuse,
constitutes violation of inviolability of person  it is “offensive”
SCC states that “sex is not an ordinary casual contact which must be
accepted in everyday life”.
Requiring (P) in such a case to prove they did not consent, or that
a reasonable person in (D)’s position would not have assumed
consent, would deny the protection the law has traditionally
afforded to inviolability of the body
Notes:
- McLachlin J.:
o Cites Goff L.J. in Collins v. Wilcock, [1984] 3 All E.R. 374 (Q.B.):
 “[t]he fundamental principle, plain and incontestable, is that every person’s body is
inviolate”
o McLachlin J. states that the (P) who alleges sexual battery makes their case by tendering
evidence of force applied to them
 “Force”  in the context of sexual battery = physical contact of a sexual nature;
neutral in that it doesn’t connote a lack of consent
o McLachlin J.  If (D) doesn’t dispute contact/force took place, they must prove that (P)
consented, or that a reasonable person would think they were consenting
o Traditional Approach to Trespass of the Person
 Trespass to the Person (including Battery)  (P) succeeds if they can prove
direct interference with their person

-
-
Direct Interference  the immediate consequence of a force set in motion
by the act of the (D)
o Burden on (D) to prove their defence (Consent is one such defence)
 Law of Battery = Based on Protecting Individuals’ Right to Personal Autonomy
 This explains why, in an action for Battery, (P) needs to only prove direct
interference  Onus then shifts to (D) to justify that intrusion, excuse it, or
raise a defence
 Contrast: If Law of Battery based on principle of fault  would subordinate
(P)’s right to protection from invasions of their physical integrity to (D)’s
freedom to act
 Unlike negligence (requirement of fault can be justified because tortious sequence
may be complicated), trespass to person is confined to direct interferences
 If direct interference = injury to (P)  there is direct connection between
(D)’s action and (P)’s injury
McLachlin on “trivial contact”
o While (P) in the action of Battery needs to only provide direct contact occurred, there are
exceptions to this general rule
 E.g. being jostled in a crowd
 Person who enters a crowd cannot sue for being jostled—such contact is not
offensive
 Explaining the Exceptions
 Theory of Implied Consent
o Even if (P) proves contact, burden never shifts to (D) to prove consent
because consent is implied by law
 Exception Theory – Physical Contact that is Generally Acceptable as
Ordinary Conduct of Everyday Life
o (P) cannot succeed simply by proving contact if that contact falls
within this exceptional category of conduct generally acceptable in
ordinary life
o E.g. brushing someone’s hand while exchanging a gift, gratuitous
handshake, jostled in a crowd
McLachlin on “Vexatious Claims”
o McLachlin rejects the counter-argument that the necessity of inherently harmful or
offensive conduct to constitute Battery, and the burden of proof being on (D), allows (P)s to
unfairly drag (D)s into litigation
 Rejected because few (P)s would sue in situations where they are certain to lose
once facts come out
 Rule of the court provide sanctions against “vexatious litigants”
Norberg v. Wynrib, [1992] 2 S.C.R. 226
Facts
Issue(s)
Rule
Plaintiff was addicted to painkillers. Defendant, physician, agreed to
provide (P) with painkillers in exchange for sexual contact.
Issue #1 – Can the Defence of Consent be raised against the intentional tort
of battery in this circumstance? (No.)
Issue #2 – Is the (P)’s action barred by reason of illegality or immorality?
(No.)
1) Consent must be genuine, and not obtained by force or
threat of force, or be given under the influence of drugs.
2) Consent can only be vitiated by fraud or deceit in terms of
the (D)’s conduct.
3)
4)
Analysis
See Power-Dependency Relationship Test below.
The presence of an addiction does not automatically render
consent legally ineffective—there must also be exploitation
of that addiction.
Nature of Consent
SCC states that consent is based on presumption of “individual autonomy
and free will”, and that positions of relative weakness can interfere with
the freedom of a person’s will.
SCC states that consent can be vitiated by (D)’s conduct through fraud or
deceit, and that consent must be genuine and not obtained by force, threat
of force, or given under the influence of drugs.
Test for Determining Power-Dependency Relationship (Sexual
Assault)
Step 1 – Is there proof of an inequality between the parties?

This will ordinarily occur within the context of a “Power
Dependency” relationship
Step 2 – Is there proof of Exploitation of the inequality?

Consideration of the type of relationship may be indicative
of exploitation

Consideration of community standards may be helpful in
determining existence of exploitation
Applying Test to Case at Bar
Step 1 – Was there inequality between the parties?
(TJ) found that (P)/(A) implied consent. (CoA) found (P)/(A) voluntarily
engaged in sexual encounters.
SCC states that (P)/(A) was in a position of marked inequality with respect
to the power dynamic between her and (D):
o (P)/(A) was a young woman with limited education
o (P)/(A) was addicted to use of painkillers
o Her drug dependence diminished her ability to make a real
choice
o (TJ)’s comments indicate (P)/(A) was in a vulnerable position
because of dependence on drugs
SCC also cites The Final Report of the Task Force on Sexual Abuse of Patients
to point to the fact that unequal distribution of power is frequently a part
of the doctor-patient relationship.
SCC finds that the (R)/(D)’s medical knowledge + knowledge of
(P)/(A)’s addiction + authority to prescribe drugs = power over her.
It was the doctor who suggested the sex-for-drugs arrangement.
Step 2 – Was there exploitation?
SCC cites another doctor (expert testimony) who expressed opinion that a
“reasonable practitioner” would have taken steps to attempt to help
(P)/(A) end her addiction, or at least would have stopped giving her drugs.
SCC finds that (R)/(D) did not do any of the above, rather, he “abused his
power over her and exploited the information he obtained
concerning her weakness to pursue his own personal interests”.
o SCC finds this to be divergent from what a community would find
acceptable
SCC again cites the Task Force Report (supra) for a body of opinion that
regards sexual contact in any doctor-patient relationship as exploitative.
SCC finds that (P)/(A)’s consent was not genuine for the purposes of
law because:
o Relationship was not only doctor-patient, it was doctor-drug
addict
o
Relationship was not just sexual, it was sex-for-drugs
SCC rejects (R)/(D)’s argument that (P)/(A) exploited him, the old man.
SCC finds that it was he, the doctor, who suggested sex-for-drugs
relationship.
Does the presence of an Addiction render consent legally ineffective?
SCC states that an addiction may indicate inequality in power, but it does
not by itself render consent legally ineffective—there must also be
exploitation.
SCC cites Principle of Unconscionability  aim is not to absolve addict from
all responsibility, rather, to protect addict from abuse from those in special
positions of power.
Conclusion
Appeal allowed.
Notes:
- La Forest J.:
o Tort of Battery  the intentional infliction of unlawful force on another person
 Defence of Consent
 Express or implied consent is a defence to battery
 Failure to resist or protest is an indication of consent “if a reasonable
person who is aware of the consequences and capable of protest or
resistance would voice his objection” (La Forest J. cites Fleming, “The Law
of Torts”)
 Consent must be genuine
o Cannot be obtained by force, threat of force, or given under influence
of drugs
o If (D)’s conduct in gaining consent included fraud or deceit, that
consent obtained would be vitiated/spoiled/invalidated
o Consent (in Torts) based on presumption of individual autonomy and free will
 Presumed that an individual has the freedom to consent or not to consent
 Positions of relative weakness can interfere with the freedom of a person’s will
 Notion of consent must be modified to appreciate the power relationship that can
occur between parties
o Test for Determining Legally Effective Consent to a Sexual Assault
 Step 1 – Is there proof of an inequality between the parties?
 This will ordinarily occur within the context of a “Power Dependency”
relationship
 Step 2 – Is there proof of Exploitation of the inequality?
 Consideration of the type of relationship may be indicative of exploitation
 Consideration of community standards may be helpful in determining
existence of exploitation
Notes (Lecture:
- A power dependency relationship
- Fiduciary Duty:
o One party (fiduciary) can exercise unilateral power or discretion on behalf of a vulnerable
beneficiary who is at “mercy” of fiduciary; latter must act on behalf of beneficiary, with
loyalty and good faith
- Negligence:
o Failure to treat addiction = breach of Standard of Care
- Power-Dependency Relationship Test
o New vitiating factor—“power-dependency relationship” in Norberg v. Wynrib
 1) Inequality between the parties?

2) Exploitation?
2. Consent in the Sporting Context
Charland v. Cloverdale Minor Baseball Association and Wheeler, 2013
BCSC 488, [2013] B.C.J. No. 551
Facts
Two fathers (Charland and Wheeler) engaged in a physical altercation at a
baseball game. Watchuk J. dismissed the actions in assault and battery
brought on by Charland.
Issue(s)
Rule
Analysis
Conclusion
Notes:
- Watchuk J.:
o Consent is a defence of the Torts of Assault and Battery
 If (D), Wheeler, proved that the parties (him and Charland) agreed to the physical
contact, then (P) could not complain of the injuries suffered
 Onus of establishing consent is on (D)—Wheeler.
o If a fight is proven to be mutual/consensual  the parties cannot complain of the injuries
suffered in the course of the fight
 The activities may still be criminal, but the parties cannot complain of injuries
suffered in the course of the fight unless the force used by one of the combatants is
excessive or unnecessary
 Plaintiff’s actions in these cases may be dismissed on the grounds of Defence
of Consent, or Illegality
o Cites Petersen v. Stadnyk, 2006 BCSC 806
 Court found that at the first stage of a fight, both parties were using excessive force
but it was consensual. If the fight stopped there, then both parties would be
disentitled to damages
SEE THE HOCKEY CASE IN “NOTES” – Case brief it
Lecture – Oct 11th
Vitiating Factors
Vitiating factors ‘erase’ consent—a third step
- Are the elements of Battery met?
- Did the Plaintiff consent?
- Was the consent vitiated?
Three Vitiating Factors:
- Fraud
- Duress
- Public Policy – “Power-dependency relationship”
Vitiating Factors: Fraud
- in Tort Law – ‘nature and quality of the act’ test erases consent where:
o Dishonesty causes Plaintiff to consent
o Dishonesty relates to nature and quality of the act
o Defendant must also be aware of, or cause Plaintiff’s misapprehension
Fraud – “Nature and Quality of the Act” Test
- R. v. Williams – was fraud as to nature and quality of the act; “voice therapy”
o Sex was predicated by a lie that it was good for “voice therapy”
- Papadimitropoulos
o Consent is not vitiated because no fraud as to the nature and quality of act
o Marital status is a “collateral matter”—Plaintiff knew what act itself was
- R . v. Cuerrier (1998 SCC)
o Must have dishonesty—a lie or omission
o Dishonesty (and consequent consent) exposed person to ‘significant risk of serious bodily
harm’
- R. v. Hutchinson (2014 SCC from ON)
o SCC held consent vitiated, upheld conviction
o Depriving a woman of the choice whether to become pregnant or increasing the risk of
pregnancy is equally serious as a “significant risk of serious bodily harm” within the
meaning of Cuerrier, and therefore suffices to establish fraud vitiating consent under s.
265(3)(c)
Vitiating Factors: Duress
Duress – very limited in scope, only applies where there is force or threat of use of force
Latter v. Braddell (1880, U.K.)
- Does not apply where economic duress (i.e. job loss)
- Could apply in Nagy decision, where woman under arrest complies with medical examination
Vitiating Factors: Public Policy
Public Policy  new vitiating factor—“power dependency relationship” in Norberg v. Wynrib
1) Inequality between the parties
2) Exploitation of the power-dependency relationship
Consent to Treatment
- Battery or Negligence?
o No consent = Battery (Malette)
o Lack of Informed Consent = Negligence
o Reibl v. Hughes (pp. 240-241 text) – Surgery on carotid artery, patient paralyzed
 “Actions in battery in respect of surgical or other medical treatment should be
confined to cases where…there is no consent at all… or (goes) beyond that to which
there was consent”
 “A failure to disclose the attendant risks, however serious, should go to negligence
rather than battery”
Consent in the Medical Context
Malette v. Shulman (1990), 2 C.C.L.T. (2d) 1 (ONCA).
Facts
Plaintiff, Jehovah’s Witness, was given a blood transfusion following an
accident by the Defendant, doctor.
(P) carried a card that stated under no circumstances was a blood
transfusion to take place—(D) found a blood transfusion was necessary
and administered one.
(P) sued for negligence, assault, and conspiracy.
(TJ) found (D) liable for battery—awarded (P) $20,000 in general
damages. (D) appealed.
Issue(s)
Rule
Analysis
Conclusion
1)
A medical intervention in which a doctor touches the body of
a patient would constitute a battery if the patient did not
consent to the intervention.
a. Patients have the decisive role in the medical-decisionmaking process. Their right of self-determination is
recognized and protected by the law
Does Case at Bar Qualify as Emergency Exception?
Court finds that the case at bar does not qualify as an emergency
exception. (P) had clearly written her no blood transfusion instructions
prior to falling unconscious, and with the contemplation of potential
future accidents in mind.
(D), as a doctor, is not allowed to ignore his patient’s instructions.
Appeal dismissed—(D)’s actions constituted a battery.
Notes:
- Tort of Battery
o Traditionally protects interest in bodily security from unwanted physical interference
 Any intentional non-consensual touching which is harmful or offensive to a person’s
reasonable sense of dignity is actionable
- Doctrine of Informed Consent
o Primary means of protecting a patient’s right to control his/her medical treatment
o No medical procedure may be undertaken without the patient’s consent
 Consent is obtained after the patient has been provided sufficient information to
evaluate the risks/benefits of proposed treatment and other options
 A doctor who performs a treatment in the absence of informed consent =
liable for battery; infringed on patient’s right to control
o This civil liability is notwithstanding the doctor’s justifiable belief that
whatever treatment given was necessary to preserve life/health
o Emergency Situation Exception
 When immediate medical treatment is necessary to save life/preserve health of a
person who is incapable of withholding or giving consent (e.g. unconscious), doctor
may proceed without consent
 Doctor has implied consent; privileged, by reason of necessity, to give aid
 Doctor not to be held liable
 Prosser & Keeton:
 Requirements of Emergency Exception:
o 1) patient must be unconscious or without capacity to make a decision
o 2) time must be of the essence—must reasonably appear that delay
until to wait until consent can be given would subject patient to risk of
death/serious bodily injury that prompt action could avoid
o 3) under the circumstances, reasonable person would consent—
probabilities are that a patient would consent
Nagy v. Canada (Trial), [2005] A.J. No. 36 – Nagy v. Canada (appeal by
Phillips and Kirk), [2006] A.J. No. 1020
Facts
Plaintiff, Nagy, arrived at Edmonton airport and was suspected of carrying
illegal drugs. (P) was arrested, and eventually subjected to an invasive
internal cavity search by a doctor which included:
induced vomiting by way of drinking solution
three enemas
internal cavity searches
x-rays of the stomach and abdomen
No drugs discovered on (P). From time of arrest to time of release, she was
under constant supervision of police.
(TJ) found no reasonable and probable grounds for arrest and search. (TJ)
found the doctor liable in battery and assault for conducting procedure
without (P)’s consent.
(ACA) upheld (TJ)’s findings/decision.
Issue(s)
Rule
Analysis
Conclusion
Notes:
- Alberta Court of Appeal on Consent and Implied Consent
o Tort of Battery  “intentional one, consisting of an unprivileged and unconsented to
invasion of one’s bodily security – Reibl v. Hughs, [1980] 2 S.C.R. 880
o Norberg v. Wynrib, [1992] 2 S.C.R. 226
 “Consent, express or implied, is a defence to battery”
Lecture – Oct 14th
Consent to Treatment
-
Health Care Consent Act
o s. 10 – “No treatment without consent”
 s. 10(1) – A health practitioner who proposes a treatment for a person shall not
administer the treatment, and shall take reasonable steps to ensure that it is not
administered, unless:
 a) he/she is of the opinion that the person is capable with respect to the
treatment, and the person has given consent; or
 b) he/she is of the opinion that the person is incapable with respect to the
treatment, and the person’s substitute decision-maker has given consent on
the person’s behalf in accordance with this Act.
o s. 4 – “Presumption of capacity”
 s. 4(1) – “A person is capable with respect to a treatment, admission to a care
facility or a personal assistance service if the person is able to understand the
information that is relevant to making a decision about the treatment, admission or
personal assistance service, as the case may be, and able to appreciate the
reasonably foreseeable consequences of a decision or lack of decision.”
 s. 4(2) – “A person is presumed to be capable with respect to treatment, admission
to a care facility and personal assistance services.

Health care professional always starts with presumption of capacity, then
assesses if apparently incapable
 No set age (unlike Alberta – 16 years old)
 Never a global finding, not permanent, can be capable on some days and not
others, for some treatments and not others
o E.g. Alzheimer’s patient—capacity can change from day to day; if they
are capable on a particular day and not consenting, you must respect
that rejection
o s. 11(3) – What is Informed Consent?
 Doctor must advise patient of all of these:
 1) Nature of the treatment
 2) Expected benefits of treatment
 3) Material risks of treatment
 4) Material side effects of treatment
 5) Alternative courses of action
 6) The likely consequences of not having the treatment
o ss. 12, 13 – Course of Treatment
 Not responsible for this stuff
-
-
Ciarlariello v. Schacter 1993 SCC
o Patients are always allowed to withdraw their consent, notwithstanding any broad consent
forms they may have previously signed
Three Exceptions to Requirement for Consent
o 1) Course of Treatment (not responsible for this one)
 ss. 12, 13 HCCA)
o 2) Incapacity
 ss. 4, 21, 22 HCCA
 Children  C. v. Wren, Re L.D.K., Dueck, DH
 Mental Illness  Starson v. Swayze, Pinhas
o 3) Emergency Exception
 s. 25 HCCA
Substitute Consent (ONLY where patient is incapable)
o s. 20(1) HCCA – Who is Substitute Decision-Maker? (SDM)
 1) The incapable person’s guardian of the person, if the guardian has authority to
give or refuse consent to the treatment.
 2) The incapable person’s attorney for personal care, if the power of attorney
confers authority to give or refuse consent to the treatment.
 3) The incapable person’s representative appointed by the Board under section 33,
if the representative has authority to give or refuse consent to the treatment.
 4) The incapable person’s spouse or partner.
 Meaning of “Partner” – either of two persons who have lived together for at
least one year and have a close personal relationship that is of primary
importance in both persons’ lives
 5) A child or parent of the incapable person, or a children’s aid society or other
person who is lawfully entitled to give or refuse consent to the treatment in the
place of the parent. This paragraph does not include a parent who has only a right of
access. If a children’s aid society or other person is lawfully entitled to give or refuse
consent to the treatment in the place of the parent, this paragraph does not include
the parent.
 6) A parent of the incapable person who has only a right of access.
 7) A brother or sister of the incapable person.
 8) Any other relative of the incapable person.
o s. 20(2) – Requirements vis SDM
 (2) A person described in subsection (1) may give or refuse consent only if he or
she,
 a) is capable with respect to the treatment;
 b) is at least 16 years old, unless he or she is the incapable person’s parent;
 c) is not prohibited by court order or separation agreement from having
access to the incapable person or giving or refusing consent on his or her
behalf;
 d) is available; and
 e) is willing to assume the responsibility of giving or refusing consent.

o s. 21 HCCA – What must they decide? Prior Capable Wishes (PCW)
 s. 21(1) – A person who gives or refuses consent to a treatment on an incapable
person’s behalf shall do so in accordance with the following principles:
 1) If the person knows of a wish applicable to the circumstances that the
incapable person expressed while capable and after attaining 16 years of
age, the person shall give or refuse consent in accordance with the wish. =
PCW
 2) If the person does not know of a wish applicable to the circumstances that
the incapable person expressed while capable and after attaining 16 years of
age, or if it is impossible to comply with the wish, the person shall act in the
incapable person’s best interests. = Best Interest Test
 s. 21(2) – Best Interests Test
 s. 21(2) – In deciding what the incapable person’s best interest are, the
person who gives or refuses consent on his or her behalf shall take into
consideration:
o a) the values and beliefs that the person knows the incapable person
held when capable and believes he or she would still act on if capable;
o b) any wishes expressed by the incapable person with respect to the
treatment that are not required to be followed under paragraph 1 of
subsection (1); and
o c) the following factors:
 1) Whether the treatment is likely to,
 i. improve the incapable person’s condition or wellbeing,
 ii. prevent the incapable person’s condition or wellbeing from deteriorating, or
 iii. reduce the extent to which, or the rate at which, the
incapable person’s condition or well-being is likely to
deteriorate.
 2) Whether the incapable person’s condition or well-being is
likely to improve, remain the same or deteriorate without the
treatment.
 3) Whether the benefit the incapable person is expected to
obtain from the treatment outweighs the risk of harm to him or
her.
 4) Whether a less restrictive or less intrusive treatment would
be as beneficial as the treatment that is proposed.
-
-
o Case Law on Best Interests Test
 A.C. v. Manitoba – best interests test for children constitutionally sound
 LDK – best interests includes emotional needs, religious beliefs, not just treatment
of disease in physical sense
 Re Eve, Muir – can’t consent to non-therapeutic sterilization, never in patient’s best
interests (page 213 text)
 Dawson – best interests includes continuation of life, can’t decide some lives not
worth living (Rasouli SCC 2011)
 Scardoni (2004 ON trial) – “well-being” includes psychological well-being in s. 21 –
dignity, freedom from suffering
Emergency Exception (s. 25)
o s. 25(1) HCCA
o Emergency Treatment Without Consent  Incapable Person
 s. 25(2) HCCA
 despite s. 10, a treatment may be administered without consent to a person
who is incapable with respect to the treatment, if, in the opinion of the health
practitioner proposing the treatment:
o (a) there is an emergency; and
o (b) the delay required to obtain a consent or refusal on the person’s
behalf will prolong the suffering that the person is apparently
experiencing or will put the person at risk of sustaining serious
bodily harm
Limitation of Liability (s. 29)
o s. 29(1) – HCCA
 If a treatment is administered to a person with a consent that a health practitioner
believes, on reasonable grounds and in good faith, to be sufficient for the purpose of
this Act, the health practitioner is not liable for administering the treatment without
consent
o Apparently Valid Refusal of Treatment
 s. 29(2) – HCCA
 If a treatment is not administered to a person because of a refusal that a
health practitioner believes, on reasonable grounds and in good faith, to be
sufficient for the purpose of this Act, the health practitioner is not liable for
failing to administer the treatment
Capacity to Consent
C. (J.S.) v. Wren (Alta. C.A.), [1986] A.J. No. 1166
Notes:
- Court:
o Lord Scarman in Gillick:
 The Age of Discretion – the age at which a child has sufficient intelligence and
understanding to make up their own minds
 Age 14 for boys
 Age 16 for girls
 “the parental right to determine whether or not their minor child below the age of
16 will have medical treatment terminates if and when the child achieves sufficient
-
understanding and intelligence to enable him or her to understand what is fully
proposed”
o Court finds that the 16 year old pregnant girl had fully discussed the ethical issues involved
with abortion, and disagreed with her parents
 Court cannot infer from disagreement that the expectant mother did not have
sufficient intelligence and understanding to make up her own mind
 Court concedes she is a “normal intelligent 16 year old”—has sufficient
understanding to make up her own mind—because of her age and level of
understanding, the law states she is permitted to do so
 Appeal (parents) dismissed
Health Care Consent Act (Ontario)
o No set age for consent—take the s. 4 Capacity Test and apply it to the case
C.A.S. of Metropolitan Toronto v. L.D.K., [1985] O.J. No. 803
Facts
Issue(s)
Rule
Analysis
Conclusion
Notes:
-
Lecture – Oct 18th
Refusal of Treatment for Children – Two Different Statutory Regimes:
1) Health Care Consent Act (Ontario)
a. Is the child capable?
b. Focuses on individual autonomy
2) Child Welfare Act, Child and Family Services Act
a. Is the child in need of protection?
b. Focuses on the responsibility of the parents
- Where choices exist, Courts seem to prefer the CWA and CFSA
Withdrawal of Life Support (NOT EXAMINABLE – JUST INTERESTING)
- Rasouli (2012 SCC) – withdrawal of life support
- Carter v. Canada (2015 SCC) – assisted suicide prohibition unconstitutional
Consent to Sexual Contact
P.P. v. D.D., 2016 ONSC 258
Facts
PP brought action against DD for fraudulent misrepresentation stemming
from their sexual relationship, in which DD claimed to be on birth control
but wasn’t. This resulted in DD getting pregnant.
PP is seeking damages for non-pathological emotional harm suffered as a
result of DD’s fraudulent misrepresentation. PP claims that he was robbed
Issue(s)
Rule
Analysis
of his right to fall in love, get married, and have kids when ready as a result
of DD’s actions—this has caused him emotional harm.
Issue #1 – Can PP use the tort of fraudulent misrepresentation to advance
a claim for emotional harm of unplanned parenthood?
Issue #2 – Can PP bring a cause of action for the tort of sexual battery?
1) Fraudulent misrepresentation does not encompass a claim
for non-pathological emotional harm stemming from
unplanned parenthood.
Issue #1 – Can PP use the Tort of Fraudulent Misrepresentation to
claim Emotional Harm of Unplanned Parenthood?
ONSC finds PP cannot use tort of fraudulent misrepresentation to advance
claim of emotional harm from unplanned parenthood because it
circumvents the legal boundaries of the tort of IIMS.
Issue #2
ONSC finds, in similar manner to Issue #1, that PP’s claim does not come
within the requirements of the tort of sexual battery.
Conclusion
In dismissing PP’s actions, ONSC cites Frame v. Smith (see para. 60) as
reasons that are identical to those used to dismiss the two claims in the
case at bar.
PP’s claims dismissed.
Notes:
- Elements of claim for IIMS:
o 1) (D)’s actions are flagrant and outrageous
o 2) (D) intends to harm (P) or (D) knows his/her conduct will cause harm to (P)
o 3) (P) suffers visible and provable illness
- Elements of claim for negligence:
o 1) (D) owes (P) duty of care
o 2) (D)’s behaviour breached standard of care
o 3) (P) suffered compensable damages
o 4) damages caused in fact by (D)’s breach
o 5) damages are not too remote in law
- Elements of Fraudulent Misrepresentation
o (D) made a false statement
o (D) knew statement was false, or was indifferent to falsity
o Statement made with intention to deceive (P)
o Deception induced (P) to act
o Deception caused injury
 This was the issue in PP v. DD
-
Rajiv v. Kumar, 2006 BCSC 439
Notes:
- (P) married (D)—found out (D) only wanted to marry to gain citizenship.
- (P) successfully sued (D)—awarded $10,000 in damages for hurt feelings, humiliation,
inconvenience and delayed opportunity to marry another
- Court declined to follow Frame v. Smith – no children of concern here
Sharma v. Raval, 2016 A.J. 755
Notes:
-
(P) wanted to sue (D), wife, because she lied about having been previously married
Court declined to follow Rajiv
“Fraudulent misrepresentation inducing marriage could only stand when the validity of the
marriage itself was affected…Courts had repeatedly rejected the discovery a bride was less chaste
than assumed as a cause of action in deceit”
Substitute Consent
Hamilton Health Sciences Corp. v. D.H., [2014] O.J. No. 5419
Facts
Applicants, Hamilton, brings an application pursuant to s. 40(4) of the
Child and Family Services Act (CFSA) regarding an 11 year old girl, J.J.,
diagnosed with leukemia.
(A) maintains J.J. would have 90-95% survival rate with chemotherapy—
was undergoing chemotherapy treatment when the J.J.’s mother withdrew
consent for continued treatment—(A) submits child would not survive
without treatment.
(A)’s position is that J.J. is in need of protection pursuant to s. 40(4) of
CFSA due to medical neglect.
Issue(s)
Respondents argue that issue is capacity to consent, not protection—(R)
submits that issue should be sent to Consent and Capacity Board to
determine if mother’s decision was appropriate course of treatment for a
substitute decision-maker to make.
Issue #1 – Did J.J. (child) have the capacity to consent?
Issue #2 – Should D.H.’s decision be remitted to the Consent and
Capacity Board to determine the appropriateness of her decision as a
substitute decision-maker to discontinue chemotherapy, or is this a
child protection issue that should be adjudicated before this court
under the Child and Family Services Act?
Issue #3 – Is D.H.’s decision to cease chemotherapy an appropriate
decision for a substitute decision-maker to make?
Rule
Analysis
Issue #1 – Court on J.J.’s Capacity
Court concludes that J.J. lacked capacity to consent.
Court cites testimony of two witnesses, both knowledgeable doctors who
had first treated J.J.—both noted that her mother (D.H.) would always be
present during discussions, and that J.J. couldn’t answer any questions
regarding her symptoms, but would instead look to her mother for
answers.
Second doctor found that J.J. “lacks the ability to understand her diagnosis
and its therapy, nor could she possibly fully appreciate the consequences
of the decision to stop chemotherapy”.
Court finds (A) is correct that J.J. lacked capacity to consent to
decision of discontinuation of chemotherapy.
Issue #2 – Consent and Capacity Board or Child and Family Services
Act?
Court agrees with (A) that the issue is one of child protection pursuant to
s. 40(4) of the CFSA, and should be decided in the current court.
Precedence
1) T.H. v. Children’s Aid Society of Metropolitan Toronto et al.
a. Case dealt with a child of Jehovah’s Witnesses whom
required blood transfusions to live. Parent would not
consent because blood transfusions would break tenet
of their faith.
i. Court in T.H. found that the appropriate
adjudication setting was the court, not the
Consent and Capacity Board due to the short
time frames + matter of life or death.
2) Children’s Aid Society of Toronto v. Lois P. and Nathan P.,
2010 ONCJ 320
a. Similar in fact and law to T.H.—similarly decided that
court was proper setting for adjudication.
3) Children’s Aid Society of Ottawa v. C.S. and J.S., 2005 CanLII
44174
a. (Not sure why…)
Issue #3 – Is D.H.’s Decision to Cease Chemotherapy an Appropriate
Decision for a Substitute Decision-Maker to Make?
Court finds that D.H. has been deeply committed to cultural/aboriginal
beliefs of traditional medicines—D.H. has believed this her whole life, and
has made this decision for her daughter based on this lifelong belief.
Court concludes that D.H.’s decision to pursue traditional medicine is her
aboriginal right—This aboriginal right should not be subject to
qualification based on its verification of effectiveness by western medical
paradigms—Court concludes that to do so would create opportunity to
erode Aboriginal rights.
Conclusion
Court finds that J.J. is not a child in need of protection because D.H.,
her substitute decision-maker, has chosen to exercise her
constitutionally protected right to pursue traditional medicine vice
(A)’s suggested chemotherapy.
Application dismissed.
Notes:
- 2015 Amendment to Hamilton decision
o Aboriginal rights is just one factor to consider when weighing the best interests of the child
 Aboriginal rights no longer a trump card over best interests test
Self-Defence and Defence of Third Parties
Self-Defence
-
-
Onus of proof rests upon the person invoking the defence of Self-Defence
o (D) must prove:
 occasion warranted defensive action
 force used was not excessive
 See: Mann v. Balaban, [1970] S.C.R. 74 (S.C.C.):
 “…it is upon the defendant to establish the defences, first, that the assault was
justified and, secondly, that the assault even if justified was not made with
any unreasonable force and on those issues the onus is on the defence”
Two Elements Defendant Must Prove when Invoking Self-Defence
o 1) must be situation of actual or threatened physical harm necessitating use of force (no
other option)
o 2) force used must be proportionate to threat
 measured by conduct, not consequences
 See: Brown v. Wilson – (D) picked up (P) in “bear hug” to remove (P) from a bar—
slipped and fell—(P) died—self defence allowed—court found that force was not
excessive
Cockcroft v. Smith, Queen’s Bench. (1705), 11 Mod. 43, 88 E.R. 872
Facts
Issue(s)
Rule
Cockcroft and Smith were in a “scuffle”—Cockcroft ran her fingers
towards Smith’s eyes—Smith bit off a chunk of Cockcroft’s fingers.
Issue #1 – Is the biting off of Cockcroft’s finger in self-defence a
proper defence?
1) The response in self-defence should be proportionate to the
action which is being defended against.
Notes:
- Holt C.J.:
o “…in such cases, plead what is necessary for a man’s defence; and not who struck first…for
hitting a man with a little blow with a little stick on the shoulder, is not a reason for him to
draw a sword and cut and hew the other”
R. v. Smith (1837), 8 C. & P. 160
Notes:
- It is permissible to kill in self-defence if it is necessary to preserve one’s own life or to avoid
serious bodily injury
R. v. Hussey (1924), 18 Cr. App. R. 160
Notes:
- In defense of one’s own house, one need not retreat before the threat of grievous bodily harm
Wackett v. Calder, [1965] B.C.J. No. 129 (BCCA)
Facts
Appellant, Calder, was sitting with friends in a bar and was approached by
Respondent, Wackett, who made insulting remarks and invited (A) to go
outside.
(A) accepted (R)’s invitation to go outside to end the unpleasant situation
inside the bar. Outside, (R) challenged (A) to fight—(R) attempted to
strike (A)—eventually hit (A), who was not responding physically at all.
(R) struck (A), (A) responded and knocked (R) down—(R) got up and
struck (A) again, and (A) responded and struck (R) again knocking (R)
down.
(R) had a broken cheekbone + fractured wrist—(TJ) found that the wrist
was probably broken when (R) broke his fall.
(TJ) found the testimony of (A) and (A)’s brother to be credible—found
that (R) was aggressor through, had assaulted (A) before (A) responded—
(TJ) found that the two blows by (A) were struck under provocation and in
self-defence.
(TJ) found the only question to be whether (A)’s use of force was
excessive—(TJ) found that it was because (A) should have known due to
(R)’s intoxication he was only capable of “talk and wild swinging” + (A)
could have ended the situation by walking back into the bar.
Issue(s)
Rule
Analysis
(TJ) awarded (R) damages—(A) appeals to BCCA.
Issue #1 – Was (TJ) correct in finding that the two blows by (A), thrown in
self-defence, were excessive?
BCCA on (A)’s Actions as Excessive or Not
Court states that greatest deference should be given to facts found by a
trial judge—That said, court finds that (TJ)’s finding of (A)’s excessive
force was not supported by the evidence in front of him.
Court finds that, though there was evidence (R) was intoxicated, there was
no evidence that (R) was physically incapacitated or unduly
uncoordinated so as to be incapable of doing physical harm to others.
BCCA finds that (TJ) found (A) + brother to be credible witnesses, but
ignored fact that the second strike from (R) occurred as (A) + brother
were turning to go back into the bar—this second blow from (R) preceded
the second blow from (A), which was found to have done the damage to
(R).
BCCA’s Disposition
BCCA finds that there was no evidence that the two blows given by (A) in
self-defence were vicious or excessive.
Conclusion
BCCA allows appeal—Action dismissed.
Appeal allowed—Action dismissed.
Notes:
- MacLean J.A. (Dissent):
o Dissent finds that (TJ)’s judgment implies that (A) was not entitled to rely on self-defence
for two reasons:
 1) (A) could have walked away to avoid the unpleasant episode
 2) even if (A) was entitled to use force in self-defence, he used excessive force in the
circumstances
o Dissent cites the precedent that, when one is attacked and uses force in self-defence, they
are not required to “measure with complete nicety” the amount of force required to defend
themselves/repel the attack
o Dissent finds (TJ)’s conclusions are supported by evidence—would dismiss appeal
Defence of Third Persons
-
-
People are entitled to defend other people who are being attacked or threatened
o Mother may protect son/daughter; son/daughter may protect mother
o Police officer may protect citizen; vice versa
If one defends another person in the reasonable belief that that person is in need of help, one may
be excused from tort liability even if acting under a mistaken impression
o See: Gambriell v. Caparelli (1975), 7 O.R. (2d) 205 (Co. Ct.)
 Mother thought son was being choked by (P); struck (P) three times with a
gardening equipment; hit (P)’s head with considerable force; relieved of liability on
ground that she had few options
The onus is on the person seeking to invoke this defence to prove the action was reasonable and
excessive force was not used
Gambriell v. Caparelli, [1974] O.J. No. 2243 (Ont Ct. Crt.)
Facts
Defendant’s son was washing his car when Plaintiff, Gambriell, backed his
car into (D)’s.
An altercation broke out between (P) and (D)’s son—(D)’s son grabbed (P)
who hit (D)’s son in the face—(D)’s son fell back against the car and kicked
(P) in the chest—(D)’s son stated that (P) then put both hands around his
neck and choked him.
At this point (D), 57 year old woman/mother, came out and saw (P)
holding her son by the neck—thought her son was being choked—(D)
yelled “stop” three times—went to get a “three pronged garden cultivator
tool”—struck (P) three times on the shoulder, then struck him on the
head.
(P) went to hospital with two lacerations—Doctor gave medical evidence
that the wound healed and there were no resulting effects from the head
injury.
(P) states he had nerves + sore neck for 2 months—lost two days from
work. (P)’s wife states (P) has always had problems with nerves.
Issue(s)
Rule
Analysis
(TJ) accepts testimony of (D) that (P) did have his hands around her son’s
neck.
(TJ) states that (D) will be found to have assaulted (P), unless:
1) (D) was justified in using force against (P); and
2) the amount of force used by (D) was not unreasonable in the
circumstances
(TJ) cites R. v. Chisam (1963), 47 Cr. App. R. 130:
Where a person charged with the death of another says that
death of the other came about in defence of a relative or friend—
the defence of self-defence would be available if the accused
believed on reasonable grounds that the relative/friend was in
imminent danger, even though those reasonable grounds are
founded on a genuine mistake of fact
(TJ) cites R. v. Fennell, [1971] 1 Q.B. 428:
Where a person honestly and reasonably believes that he or his
child is in imminent danger of injury it would be unjust if he
were deprived of the right to use reasonable force by way of
defence merely because he had made some genuine mistake or
fact
(TJ) applies precedent to case at bar
(TJ) finds (D) was justified in using force to prevent the perceived injury to
her son from occurring—(D) found (P) with his hands around her son’s
neck.
(TJ) finds that (D) held the honest belief that her son was in danger—
justified in protecting him as an extension of the defence of self-defence.
(TJ) on whether (D)’s force was reasonable in the circumstances
(TJ) finds that (D)’s force used was reasonable—(D), (P), and her son were
the only combatants—if (P) overpowered her son she would probably be
overpowered too—(TJ) found that (D) did strike (P) in the shoulder to no
effect, then hit (P) in the head.
Conclusion
Notes:
-
(TJ) dismisses (P)’s case.
(TJ) dismisses (P)’s claim/case.
Defence of Property
Bird v. Holbrook (1828)
You cannot use force indirectly  “One cannot do indirectly that which he is forbidden to do
directly”
Facts
Defendant, Holbrook, owned a walled garden in which he grew rare
flowers—(D) was recently robbed of the flowers, and set up a gun trap to
catch the thief.
(D) put up no signs or notice indicating his trap was set—asked his
neighbour who had seen him setting it up not to tell anyone.
Plaintiff, Bird, was a boy in the neighbourhood who witnessed a servant
girl chasing after a loose hen. (P) stated he would go catch the hen for the
girl—called into (D)’s garden 2-3 times to see if anyone was there—(P)
jumped into (D)’s garden and set off the gun.
Gun went off, causing severe damage to (P)’s knee-joint.
Notes:
- Best C.J.:
o finds that “he who sets spring guns, without giving notice, is guilty of an inhuman act,
and…if injurious consequences ensue, he is liable to yield redress to the sufferer”
o finds that (D) set up the gun for the purposes of doing injury, not deterrence, based on the
fact that (D) did not put up any notice of the trap
 (D) intended that it be discharged
- Burrough J.:
o Finds that if (D) meant to only protect his property, he would have only setup the gun trap
at night time
 (P) was merely a trespasser
 finds that even if (D) was present, (D) wouldn’t be authorized to even take (P) into
custody
 states that “no man can do indirectly that which he is forbidden to do
directly”
MacDonald v. Hees, [1974] N.S.J. No. 356 (NSSC Trial Division)
Facts
Plaintiff, Macdonald, and Defendant, Hees, both worked for the
Progressive Conservative party in N.S.
(P) had gone to the motel room of (D) in order to introduce a third party to
(D). (P) knew which rooms (D) occupied, and mistook a noise for a
welcome into (D)’s room.
(P) and the third party entered (D)’s room under (P)’s mistaken
impression that he had been invited in—Encountered (D) in bed—(D)
forcibly pushed (P) out of the room, which forced (P)’s body through a
glass door causing serious lacerations to his head.
(P) and the third party testify that they had not been given the opportunity
to leave—(P) states he was about to apologize once he realized (D) was in
bed, but he was pushed before he could do so.
(D) testified that he told (P) and the third party to leave, waited a few
seconds, then guided (P) out the door.
(TJ) believed the testimony of (P) and the third party—found that (D)’s
testimony was not credible.
Issue(s)
Rule
Analysis
(D) denies assaulting (P)—(D) also argued two defences:
1) (D) was justified in law and the application of force was due to
the unlawful entry of (P) + invasion of (D)’s privacy
2) (D) also states he was justified on the grounds of self-defence
Issue #1 – Did (D) assault (P)?
Issue #2 – Are (D)’s actions justified on the grounds of self-defence?
Issue #3 – Are (D)’s actions justified in law due to the unlawful entry of
(P) and the invasion of (D)’s privacy?
Issue #1 – Did (D) assault (P)?
(TJ) accepts the evidence/testimony of (P) and the third party—(TJ) finds
that (P) was “physically assaulted, struck and pushed by (D), and thrown
or shoved by the (D) through the glass portion” of the door.
Issue #2 – Was (D) justified on the grounds of Self-Defence?
(TJ) states that it is lawful for a person to use a reasonable degree of force
for the protection of himself or any other person against any unlawful use
of force.
(TJ) states that force is not reasonable if it is either:
1) unnecessary
a. i.e. greater than is required for the purpose of repelling
the threat
2) disproportionate to the threat/unlawful act to be prevented
(TJ) finds that (D)’s actions were not justified on the grounds of selfdefence. (TJ) finds that (P) and the third party did not do anything to lead
(D) to believe he was under the threat of force. (TJ) notes (D)’s testimony
that he did not feel threatened by (P) or the third party, and that (P) was
physically much smaller than (D).
(TJ) further finds that the force (D) used to eject (P) from his room was not
reasonable + far greater than could possibly be considered by a reasonable
person to be required for the purpose of removing (P) from his room.
Issue #3 – Was (D) justified in law and was (D)’s application of force
due to the unlawful entry of (P) and the invasion of (D)’s privacy?
(TJ) states that it is lawful for the occupier of land (or someone with the
authority of an occupier) to use a reasonable degree of force in order to
prevent a trespasser from entering, or to control the trespasser’s
movements, or to eject the trespasser after entry.
(TJ) states that a trespasser cannot be forcibly repelled or ejected until
they have been requested to leave + been afforded a reasonable
opportunity to leave.
(TJ) states that the exception is if a trespasser enters or seeks to
enter by force—in this situation one can forcibly remove the
trespasser immediately
o force used must still not exceed that which is
reasonable
Conclusion
Notes:
-
(TJ) finds no forcible entry by (P) + third party in case at bar—therefore,
(D) was not justified in forcibly ejecting (P) from the room.
Judgment for (P)—Awarded $6175.00 in aggravated damages.
Introduction to Negligence
A. Introduction
“Negligence”  conduct which falls below the standard accepted in the community; not a state of mind
- negligence is a basis of liability which protects some interests and not others
Two meanings of “Negligence”:
1) Narrow Sense
a. Refers to certain conduct that falls below the standard required by society
2) Broader Sense
a. Refers to a cause of action for negligence
The “A.B.C. Rule”:
- In order to succeed in a negligence action, a (P) is required to establish three things to the
satisfaction of the court:
o (A)  a duty of care exists
o (B)  there has been a breach of that duty
o (C)  damage has resulted from that breach
Criticisms of “A.B.C. Rule”
- criticized for its simplicity
- blues together issues that should not be treated under one rubric
- complexities that should be illuminated are disguised
American Formulation of Negligence:
- Suggests that there are four elements in a cause of action for negligence:
o 1) duty
o 2) failure to conform to the standard of care required
o 3) a reasonably close causal connection between the conduct and the resulting injury—
sometimes termed “proximate cause”, legal cause, or scope of liability
o 4) actual loss or damage resulting to the interest of another
- Criticisms:
o Approach neglects conduct of (P)
o 1st and 3rd elements sometimes blurred; 1st and 2nd elements sometimes blurred
Six-Part Division of Negligence
A cause of action for negligence will succeed if the following elements are present:
1) The (D)’s conduct must be negligent
a. In breach of a standard of care set by the law
2) The Claimant must suffer some legally recognized damage
3) The damage suffered must be caused by the negligence conduct of the (D)
4) There must be a duty owed to the (P) by the (D) recognized by the law to avoid this damage
5) The damage must not be too remote as a result of the (D)’s conduct
6) The conduct of the (P) should not be such as to bar or limit recovery
a. One must, in determining liability, examine the defences of contributory negligence,
voluntary assumption of risk and illegality
B. The Standard of Care and Its Breach
The standard of care is usually the central aspect of a negligence action.
- Question is generally whether the (D)’s conduct departed from the standard of care that a
reasonable person would have exercised in the circumstances
- It is an objective standard—that said, subjective aspects may often intrude
- Custom and legislation often play a role in particularizing what is reasonable in the circumstances
Lecture – Nov 18th
Elements of Negligence:
1) Duty of Care
o Does (D) owe any obligation to (P)?
2) Standard of Care
o What does (D) have an obligation to do?
 E.g. warn/advise of risk; have property training; take care in procedure;
manufacture safe products; recall unsafe products
o What is the Content of the Duty of Care?
3) Causation
o Did breach (i.e. failure to meet that obligation) cause the injury?
4) Injury
o What injury did (P) suffer?
5) Remoteness
o Was (P)’s injury a “real” risk, within the scope of risk?
Duty vs. Standard
- Duty of Care  determines whether or not you need to do something
- Standard of Care  determines the content of the duty of care; what would a reasonable person
have done?
Duty of Care
Donoghue v. Stevenson
- Authority for Test to determine Foreseeability
o General Test of Duty  “Neighbour Principle”
 Avoid acts/omissions that you can objectively foresee might injure “neighbour”
 “Neighbour” = those who are so closely directly affected by my act that I
ought reasonably to have them in my contemplation
Cooper v. Hobart (see 334-335 in text for Core of Cooper Test)
- 1st Stage
o Foreseeability  Donoghue
o Proximity  ask whether this relationship between (P) and (D) is sufficiently close and
direct; whether policy ought to negate the duty
nd
- 2 Stage
o Policy reasons to negate duty?
o Look for residual policy considerations that go beyond this particular relationship
Does an duty alleged fall within an established category?
- If Yes, then you don’t need to use Cooper
- For our purposes  Doctor/Patient and Manufacturer/Consumer are established categories
- If No established category  it is a novel duty; must apply Cooper to decide whether we should
recognize a new duty of care
Cooper v. Hobart  1st Stage
- 1st Stage of Cooper
o foreseeability AND proximity
o proximity  asks whether this relationship (i.e. between (P) and (D)) is sufficiently close
and direct, and whether policy ought to negate the duty
o “Proximity” Factors:
 look for a “close and direct relationship”
 will the effects of the act have a close + direct relationship to the injury?
 is it just and fair to recognize?
 Consider 4 factors:
 Expectations
o Would (P) have expectations of the (D)?
 Representations
o Did (D) make representations?
 Reliance
o Did (P) rely on anything (D) did/said/representations?
 Property and other interests
nd
- 2 Stage of Cooper
o Policy reasons going beyond the “relationship” in 1st stage – go to the broader society
beyond
o Policy reasons to negate duty?
 Look for residual policy considerations that go beyond this particular relationship
o Could include “floodgate concerns”
o Effect on society as a whole  Registrar of Mortgage Brokers serves various interests,
public, mortgage brokers and investors (Cooper)
Hill v Hamilton-Wentworth
- creates a novel duty
- Foreseeability  dissent + majority agree that relationship between police and suspects they
investigate is proximate; “close and direct”
o Actions had a close and direct impact on (P)
- Dissent:
o Found that it was impossible for police to do their job in investigating suspects, and also
owe them a duty—conflicts with duty to the public; has chilling effect of investigative
powers of police
R v. Imperial Tobacco
- revisit this
Midterm will be on the following 4 Intentional Torts + Defence of Consent:
1) Battery
- Bettel v Yim
o All you need to intend is contact—not the injury
o Definition of battery: intentional infliction of harmful or offensive con
2) Intentional Infliction of Mental Suffering
- Requirements:
o 1) Act or Statement (Conduct, what you do)  does it meet the threshold?
o 2) Calculated to produce harm (intent?)
o 3) Actual Harm (what degree of injury is required?)
3) False Imprisonment
4) Privacy
Defence of Consent
- Vitiating Factors?
See Battery Powerpoints
DISCRIMINATION  NOT ON MIDTERM
REMEDIES  NOT ON MIDTERM
Exam Answer Format:
- Identify the Fact/Tortious Action
- Set out the rule that applies clearly
- Cite relevant case law – can be as simple as putting the case name in brackets
o If you make a proposition of law  cite which case it came from
- Be firm with statements—if consent is vitiated, then: “Consent is vitiated here due to…”—not
“Consent may be vitiated here due to…”
Problem
Annie has three possible causes of action she could raise against Dr. Lewis:
1)
Facts
Issue(s)
Rule
Analysis
Conclusion
Notes:
-