LAWS 108 RNB – WEEK 1 CRITICAL CONCEPTS OF CANADIAN BUSINESS LAW CH 3 - PAGES 75-105 WHAT IS A TORT? 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 remedy 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 employment INTENTIONAL TORTS 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 Those chargers were later dismissed or withdrawn LAWS 108 RNB – WEEK 1 3. 4. CRITICAL CONCEPTS OF CANADIAN BUSINESS LAW CH 3 - PAGES 75-105 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 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 AND BATTERY IN THE LAW OF TORT 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 LAWS 108 RNB – WEEK 1 CRITICAL CONCEPTS OF CANADIAN BUSINESS LAW CH 3 - PAGES 75-105 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 support 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 BUSINESS REPUTATION MANAGEMENT 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 figures) 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 told.” 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 LAWS 108 RNB – WEEK 1 CRITICAL CONCEPTS OF CANADIAN BUSINESS LAW CH 3 - PAGES 75-105 DEFENCES 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 defamation. 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) INTENTIONAL BUSINESS TORTS 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 requirements: 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 LAWS 108 RNB – WEEK 1 CRITICAL CONCEPTS OF CANADIAN BUSINESS LAW CH 3 - PAGES 75-105 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 law Nuisance is the intentional unreasonable interference with another’s use or enjoyment of their property 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 LAWS 108 RNB – WEEK 1 CRITICAL CONCEPTS OF CANADIAN BUSINESS LAW CH 3 - PAGES 75-105 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 2. 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 shoplifting? The discussion should include the practical difficulties of running a business versus personal freedom concerns 3. 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 4. 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 burns. 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? LAWS 108 RNB – WEEK 1 CRITICAL CONCEPTS OF CANADIAN BUSINESS LAW CH 3 - PAGES 75-105 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?