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Chapter 3 Notes - Torts

CH 3 - PAGES 75-105
To take someone to court, you must have:
 A cause of action (a legal reason for going)
 A remedy (what you want the court to give you)
Tort: a wrongful act done intentionally or unintentionally to the person or property of another for which the law gives a
Intentional Torts: harmful acts that are committed on purpose and for which the law provides a remedy. (assault, trespass,
malicious prosecution, false arrest and false imprisonment, defamation) harmful and on purpose
Unintentional Torts/Torts of Negligence: when someone acts carelessly or without thought, and causes unintentional harm
to another person or that individual's property. (a doctor who is careless while operating on a patient and causes injury,
driving without proper care and attention) careless and by accident
Vicarious Liability: the responsibility of an employer to compensate for harm caused by employees in the normal course of
Control of Shoplifters: Shoplifting normally results in a criminal charge being laid, but depending on the response of the
business to the incident, it can also lead to one or more of the tort actions described in this section. The intentional torts
affecting the rights of business and customer in a shoplifting situation are:
#1 - Citizen’s Arrest and False Imprisonment: if shown not to have shoplifted, the detained person could bring an action for
false imprisonment. The store defends itself by saying it had legal authority to detain the person. Any time you attempt to
deal with a suspected shoplifter, there is an element of legal risk involved.
False Imprisonment: unlawfully restraining or confining another person with belief they have committed the crime
There are three requisite elements that must be proven by the plaintiff:
1. A deprivation of liberty
2. Against the will of the person detained
3. Caused by the defendant
Note that deprivation of liberty can take several forms:
 Physical restraint, in which the shoplifter is actively prevented from leaving
 Threat of physical restraint, in which no actual touching occurs
 Neither physical restraint nor threat of it
#2 - Malicious Prosecution: causing a person to be prosecuted for a crime without an honest belief that the crime had been
committed. To succeed, four criteria must be met:
1. Criminal charges were laid
2. Those chargers were later dismissed or withdrawn
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There were no reasonable or probable grounds for bringing the charges
There was a malice or an improper motive for laying the charges
#3 - Trespass to Land: the entry onto the property of another without the owner’s permission, or some lawful right to do so
Trespass to Goods: involves intentional interference that causes damage or interference to another’s goods
Defences to Trespass: beyond control (thrown from car onto another’s property), implied right (shopping mall), acting in
official capacity (police, postal workers)
#4 - Conversion: unauthorized use of the property and/or goods of another. (shoplifting)
Nuisance: use by one land owner that substantially and unreasonably interferes with another occupier’s ordinary use of the
land, but does not include every interference. Most nuisance cases involve private disputes, but some cases can be a public
nuisance (Example: Noise, odour, vibration, smell, light)
Public Nuisance: government can sue for nuisance that affects public property, often involve environmental problems such
as oil spills
Picketing: by dissatisfied employees, done peacefully, near a business’ property disturbs the business’ use of its property but
is justified on the basis that the employees have the right to inform the public
Focused/Secondary Picketing: directed at employees’ homes, restaurants where employees eat, or hotels or motels where
they stay (invasion of privacy)
Assault: threatening another with violence, with the ability to carry out the threat causing fear in the victim. Common
defences include: accident, consent, self-defence
Battery: physical contact with a person without consent with the intent to do harm
Consent: is a defence to a claim of assault or battery if the person agreed to the physical contact
Informed Consent: the person must be informed of all significant risks when they are consented
Self-defence: a response to an assault or battery with as much force as is reasonable in the circumstance
Provocation: conduct that would cause a reasonable person to lose self-control, such as irritating, taunting, insulting or
angering someone to the point that they can't take it any longer and will react in an uncontrolled or often violent manner.
Can not be used as a defence
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Invasion of Privacy/Intrusion upon Seclusion: intentionally intrude upon the seclusion or private affairs if another and it
would be highly offensive to a reasonable person. The Ontario Court of Appeal established this new tort in 2012 in the case
of Jones v. Tsige
 Ms. Tsige accessed her husband's ex-girlfriend’s bank records to see if he was using his money to pay child
 Approximately 174 times over four years
 Ms. Jones sued for invasion of privacy and sought $90,000 in damages
 At the time there was no law to dignity of privacy, so it was dismissed
After extensive examination of the law in Canada, UK, Australia and New Zealand, it concluded that there is a
need to protect privacy in Canada
In 2012, it created a new tort of intrusion on seclusion, but applies under strict conditions
Defamation: making an untrue statement that causes injury to the reputation of an individual or business, including both
libel and slander
Defamation has traditionally been divided into two categories:
1. Libel: defamation in which the harmful statement is written or broadcast (recently included broadcasting,
movies, pictures, film, computer tech)
2. Slander: defamation in which the harmful statement is spoken
Common defences include: accuracy (statement is true), absolute privilege (statement made on floor of Parliament),
Qualified privilege (professional duty to convey information, lawsuits, statements), Fair comment (politics, public
Innuendo: a statement that implies something derogatory about another individual without directly saying it
Repetition: repeating a defamatory statement is also defamation. It is no defense to say “I am merely repeating what I was
Damages for defamation contain a unique element. Not only is there compensation for ordinary loss, but money is also
given for injured feelings, such as humiliation
Defamation on the Internet: Communication over the Internet presents some unique features:
 There is no editor, or intervenor of any sort, filtering out potentially defamatory material - you can post
something online without needing someone’s permission
 There is the possibility of posting the material anonymously (Reddit, Twitter)
 There is immediate and widespread access to the material - millions of users are on Facebook, Twitter, etc
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Innocent Dissemination: Example: Bookstores and libraries will not be held liable if it can be proven that it was not
reasonable for them to know of the contents. However, a publisher does review the contents of every book, and often
makes changes, so a publisher would not use the defence of Innocent Dissemination
Truth/Justification: it is up to the individual who made up it up to prove it is true, and not harmful to the plaintiff’s
reputation (will only succeed if the statement is untrue)
Absolute Privilege: complete immunity from liability of defamation, whereby the defamatory statement cannot be the
grounds for a lawsuit. Example: you may hear one politician say to another in a debate: I dare you to repeat that comment
outside the house. That member of Parliament is trying to get the other to repeat the statement where absolute privilege
does not apply
Qualified Privilege: immunity from liability for defamation where the statement is made in good faith to a person or body
which has authority over the person defamed. Example: A teacher reporting the abuse of a child
Fair Comment: a defence to an action for defamation in which the harmful statements were made about public figures
(normally relating to politics or art)
Injurious Falsehood: a false statement that causes intentional damage to an individual's commercial or economic relations
(goods or services) Example: One restaurant spreads word that local Chinese restaurant serves cats. This would also be
Deceit/Civil Fraud: a lie that causes economic losses Example: Lying to customers about a product (could also lead to
criminal charges or consumer protection offenses)
Passing Off: When a business leads people to believe their product is another business’ product – can sue for losses
(plagiarism) Example: Fake Rolex watches
Inducing Breach of Contract: intentionally causing one party to breach their contract with another
Misuse of Confidential Information and Inducing Breach of Confidential Information: if a person takes or misuses
confidential information outside of the business without permission
Intentional Interference with Economic Relations: the tort of intentional interference with economic relations has three
1. That the defendant intended to injure the plaintiff
2. The defendant did interfere with the plaintiff’s economic interests by illegal or unlawful means
3. And it caused the plaintiff actual economic losses
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In Summation
Tort: a civil remedy for the wrongful harm done by one person to another. The harm will either be done
intentionally or unintentionally
Intentional Torts
 False arrest is causing a person to be arrested without reasonable cause
 False imprisonment is unlawfully restraining or confining another person
 Citizen’s arrest is if a person is sued for false imprisonment as a result of a citizen’s arrest, the citizen
can establish the defence of legal authority if:
o The citizen had reasonable grounds to believe the other person was committing a criminal
offence, and
o The other person actually committed a criminal offence
 Malicious prosecution is if a person gives information to the police so that another is prosecuted but
the charge is dismissed, and if that person acted out of malice and did not have proper grounds for
the charge
 Trespass: a business’s premises is private property.
 Occupier: any person with a legal right to occupy premises, can prevent anyone from entering or can
make someone leave upon being given notice
 A trespasser is someone who enters without consent or lawful right on the lands of another, who,
having entered lawfully, refused to leave when ordered to do so by the owner
 Trespass to goods or trespass to chattels involves intentional interference that causes damage or
interference to another’s goods
 Conversion is keeping or taking property of another without consent and resembles theft in criminal
 Nuisance is the intentional unreasonable interference with another’s use or enjoyment of their
 Assault is a tort law in akin to a threat of violence. The actual touching without consent with intent to
do harm is battery.
 Intrusion upon seclusion is the tort for invasion of privacy and occurs if one intentionally intrudes on
the seclusion or private affairs or concerns of another and the intrusion would be highly offensive to a
reasonable person
 Defamation is untrue statements made to a third person about an individual’s or business’s
reputation, and that cause harm to that individual or business
 There are a number of defences for defamation: innocent dissemination, truth, absolute and qualified
privilege, fair comment and public interest responsible communication defence
 Injurious falsehood is slander about a business’s product. In addition to truth, the defence of qualified
privilege applies
 Deceit is a lie that is made to defraud another and actually does cause damages
 Intentional business torts: there are a number of torts under this heading. These are largely unfair
business practices by which one business intends to harm another. These include: passing off,
inducing breach of contract, misuse of confidential information and inducing breach of confidential
information, intentional interference with economic relations
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Closing Questions
1. a) what tort is shoplifting?
A conversion
b) some businesses are suing parents for their children’s shoplifting. Are parents liable for
their children’s torts?
No, though they can be liable for negligent supervision
c) are children liable for their own torts? Does the Young Offenders Act protect them?
No, and the YOA is of no impact because it is criminal law
d) if a business does not want to lay criminal charges, what other solutions in law are
available for the control of shoplifting?
Petty Trespass Act
Do you think that the courts are correct in limiting a shopkeeper’s right to arrest without legal
liability? Should there be special rules for businesses that are vulnerable to loss by
The discussion should include the practical difficulties of running a business versus personal
freedom concerns
Anne Dinnert had been general manager of Tough Attitudes, a dress manufacturer, for 10
years. She quit that job and started her own clothing plant on the other side of the city. Her
former boss sent letters to Dinnert’s customers saying that she had breached her
employment agreement and was under criminal investigation. None of this was true.
a) Does Dinnert have any remedy in tort law against her former employer regarding these
letters? If so, what is it?
Injurious Falsehood
It was a week before Christmas and Frank and Marsha DeValeriote were in the mall
parking lot searching for a place to park. They noticed a car leaving in the next aisle, so
Frank jumped out of their vehicle and ran over to “stand guard” while his wife drove
around to park. Before Marsha could reach the spot, Bruno Greyson drove up and
honked at Frank to move so that he could park. Frank explained that his wife was on
her way, and refused to move. Greyson decided to force the issue, and two or three
times moved his car quickly towards Frank, stopping just short of contact. At this point
Frank, who had not moved, shouted some obscene words at Bruno who, infuriated,
drove forward until his car touched the other man. Bruno kept moving gently forward.
Frank slipped, breaking his arm in the fall. Marsha had driven up as this was happening,
and was so upset that she dropped a fresh cup of coffee in her lap, causing third-degree
a) What is the nature of the tort or torts which have occurred?
b) Is provocation available as a defence for Greyson? If not, why?
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5. A young woman applied for a job. Her potential employer asked one of her previous
employers for a reference, and was told that there was suspicion the young woman had been
stealing during her time with the company. The woman did not get the job for which she had
applied, and later learned about the statement made by her former boss. In fact, the real thief
had been caught a few weeks after the woman left the company.
a) Can she sue her former employer for defamation?