summary-complete-both-terms-kleefeld-torts-cans-summary

lOMoARcPSD|3799896 Summary - complete - Both terms kleefeld torts (cans) summary Tort Law (University of Saskatchewan) StuDocu is not sponsored or endorsed by any college or university Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Torts CANs – 2014-2015 Table of Contents INTRO TO TORT LAW............................................................................................................................. 5 Goshen v. Larin (1974, NSCA).................................................................................................................7 Garrat v. Dailey.......................................................................................................................................7 Tillander v. Gosselin................................................................................................................................7 Carnes v. Thompson................................................................................................................................7 Basely v. Clarkson...................................................................................................................................7 Smith v. Stone.........................................................................................................................................8 Lawson v. Wellesley Hospital..................................................................................................................8 INTENTIONAL TORTS.............................................................................................................................. 8 ASSAULT...................................................................................................................................................... 8 I. De S & Wife v. W. DeS (1348)..............................................................................................................8 Stephens v. Myers...................................................................................................................................9 Tuberville v. Savage................................................................................................................................9 Bruce v. Dyer...........................................................................................................................................9 Mainland Sawmills v. U.S.W. Local I-3657.............................................................................................9 Warman v. Grosvenor...........................................................................................................................10 BATTERY.................................................................................................................................................... 10 Cole v. Turner........................................................................................................................................11 Bettel et al. v. Yim.................................................................................................................................11 SEXUAL WRONGDOING.................................................................................................................................11 Non-Marine Underwriters, Lloyd’s of London v. Scalera......................................................................12 DAMAGES.................................................................................................................................................. 12 INTENTIONAL INFLICTION OF MENTAL SUFFERING..............................................................................................12 Elements...............................................................................................................................................12 Wilkinson v. Downton...........................................................................................................................13 FALSE IMPRISONMENT..................................................................................................................................13 Elements...............................................................................................................................................13 Bird v. Jones..........................................................................................................................................13 Chaytor et al. v. London, NY and Paris Assn of Fashion ltd. And price.................................................13 MALICIOUS PROSECUTION.............................................................................................................................14 Elements for Malicious Prosecution.....................................................................................................14 Nelles v. Ontario...................................................................................................................................14 TRESPASS TO LAND......................................................................................................................................14 Entick v. Carrington..............................................................................................................................14 Trespass to Property Act.......................................................................................................................15 INTERFERENCE WITH CHATTELS.......................................................................................................................16 1. Trespass to Goods.............................................................................................................................16 Everitt v. Martin....................................................................................................................................16 2. Detinue.............................................................................................................................................17 3. Conversion........................................................................................................................................17 Hollins v. Fowler....................................................................................................................................17 Fouldes v. Willoughby...........................................................................................................................17 Penfolds Wine bottles...........................................................................................................................18 INVASION OF PRIVACY (COMMON LAW) (INTRUSION UPON SECLUSION).................................................................18 Jones v. Tsige........................................................................................................................................18 INVASION OF PRIVACY (STATUTORY TORT)........................................................................................................19 1 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Getejanc v. Brentwood College Assn....................................................................................................19 Milner Manufacturers Life Insurance...................................................................................................20 Bigstone v. St. Pierre.............................................................................................................................20 DEFENCES............................................................................................................................................ 21 CONSENT................................................................................................................................................... 21 O’Brien v. Cumard (1891, Ct. of Massachusetts)..................................................................................21 Non-Marine Underwriters, Lloyd’s of London v. Scalera (2000, SCC) Burden of Proof for Consent (Sexual Assault)....................................................................................................................................21 Norberg v. Wynrib (1992, SCC) Power of Imbalances..........................................................................22 Charland v. Cloverdale Minor Baseball Assn (2013, SCC) Parents fighting @ baseball field...............22 Malette v. Shulman (1990, ONCA) Consent in the MEDICAL context...................................................23 Marshall v. Curry Consent in the MEDICAL context: EMERGENCY exception......................................24 SELF-DEFENCE.............................................................................................................................................24 Cockcroft v. Smith.................................................................................................................................24 DEFENCE OF PROPERTY.................................................................................................................................24 Bird v. Holbrook (1828, Common Pleas)...............................................................................................25 Defence of third party...........................................................................................................................25 Babiuk v. Trann (note case) Defence of 3rd party.................................................................................25 Provocation...........................................................................................................................................25 LEGAL AUTHORITY....................................................................................................................................... 26 NECESSITY..................................................................................................................................................26 Dwyer v. Staunton (1947, AB Ct.) Public Necessity defence (successful defence)................................26 Vincent v. Lake Erie Transportation Co. (1910, Sup. Ct. Minnesota)....................................................27 Southwark London Borough Council v. Williams and Anderson Private necessity: homeless entering empty house (defence fails)..................................................................................................................27 DEFAMATION...................................................................................................................................... 27 Remedies for defamation.....................................................................................................................27 Factors affecting damages...................................................................................................................28 The Values at Stake..............................................................................................................................28 Hill v. Church of Scientology of Toronto (1995, SCC) Reputation > freedom of expression.................28 Grant v. Torstar (2009, SCC) Libel Chill…Freedom of expression > reputation....................................29 Libel vs. Slander....................................................................................................................................29 Meldrum v. Australian Broadcasting co. (1932, Sup Ct Victoria).........................................................29 Libel and Slander Act............................................................................................................................30 Plaintiff’s Case......................................................................................................................................30 1 – P must prove that the statement is defamatory............................................................................31 Murphy v. Lamarsh et al. (1970, BCCA)................................................................................................31 Notes.....................................................................................................................................................32 2 - The material must refer to the P (Linden & Klar textbook).............................................................32 3 - The material must be published (McNichol v. Grandy)...................................................................33 McNichol v. Grandy (1932, SCC)...........................................................................................................33 Crookes v. Newton Hyperlink case.......................................................................................................33 Notes.....................................................................................................................................................34 Basis of Liability....................................................................................................................................34 Hulton & Co. v. Jones (1910, H.L.) intent not required for defamation................................................34 Cassidy v. Daily Mirror Newspapers, Ltd. (1929, CA)...........................................................................35 Vizetelly v. Mudie’s Select Library ltd. (1990, CA)................................................................................35 Defences...............................................................................................................................................36 1. Truth.................................................................................................................................................37 Mudford v. Smith..................................................................................................................................37 M.D. Mineralsearch v. East Kootenay Newspapers Newspaper Case..................................................38 2. Absolute Privilege.............................................................................................................................38 2 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 3. Qualified Privilege (Klar, Tort Law)...................................................................................................38 4. Responsible Communication on a Matter of Public Interest............................................................40 Grant v. Torstar (2009, SCC).................................................................................................................40 5. Fair Comment (Linden and Klar).......................................................................................................41 WIC Radio v. Simpson (2008, SCC)........................................................................................................42 INTRODUCTORY CONCEPTS.................................................................................................................. 43 INTRODUCTION TO NEGLIGENCE.....................................................................................................................43 Dunsmore v. Deshield...........................................................................................................................44 STRICT LIABILITY..........................................................................................................................................45 Rylands v. Fletcher................................................................................................................................45 5 main defences to the Rylands v Fletcher Rule:..................................................................................45 Abraham, “Rylands v. Fletcher: Tort Law’s Conscience”......................................................................46 VICARIOUS LIABILITY.....................................................................................................................................47 67122 Ontario Ltd. V. Sagaz.................................................................................................................48 Bazley v. Curry......................................................................................................................................49 Jacobi v. Griffiths..................................................................................................................................50 NEGLIGENCE – DUTY OF CARE.............................................................................................................. 50 DONOGHUE V. STEVENSON............................................................................................................................50 Donoghue v. Stevenson The neighbor principle...................................................................................51 Cooper v. Hobart...................................................................................................................................51 R. v. Imperial Tobacco Canada DoC in a special relationship...............................................................52 Summary of Anns/Cooper Jurisprudence.............................................................................................53 DUTY OF AFFIRMATIVE ACTION – NONFEASANCE AND MISFEASANCE....................................................................53 Horsley et al v. MacLaren et al. – boater falls overboard....................................................................53 1) Jordan House Ltd. V. Menow and Honsberger – positive duty imposed on the bar to assist drunk patron getting home safely..................................................................................................................53 Childs v. Desormeaux social hosts........................................................................................................54 2) Relationships of Control or Supervision (Klar, “Tort Law”)..............................................................55 3) Oke v. Weide Transport – Creator of dangerous situation..............................................................55 4) Zelenko v. Gimbel Bros.- Reliance Relationships..............................................................................55 Mercer v. SE&C Rwy Co. – ex. of a reliance relationship......................................................................56 R. v Nord-Deutsche et al.......................................................................................................................56 RESCUERS AND PSYCHIATRIC HARM.................................................................................................................56 Hay v. Young.........................................................................................................................................56 Reasonable Foreseeability (re DoC stage vs. Remoteness stage)........................................................57 Mustapha v. Culligan of Canada Ltd....................................................................................................57 Horsley v. MacLaren.............................................................................................................................58 Corothers et al. v. Slobidan et al. (1975, SCC)......................................................................................58 DUTY TO WARN, INTERMEDIARIES, AND DUTY TO OBTAIN INFORMED CONSENT......................................................59 Reibl v. Hughes.....................................................................................................................................59 Hollis v. Dow Corning Corp. (1995, SCC)...............................................................................................60 Intermediate Examination....................................................................................................................61 Ives v. Clare Bros Ltd. et al....................................................................................................................61 Smith v. Inglis (1978)............................................................................................................................61 DUTY OF CARE, ECONOMIC LOSS AND CONCURRENT LIABILITY.............................................................................61 R. v. Imperial Tobacco of Canada – Policy reasons that would negate a DoC.....................................62 Hedley Byrne v. Heller & Partners........................................................................................................62 Queen v. Cognos...................................................................................................................................63 Hercules Management Ltd. v. Ernst & Young.......................................................................................63 BG Checo v. BC Hydro...........................................................................................................................64 Winnipeg Condominium Corp No 36 v. Bird Construction....................................................................65 CNR v. Norsk Pacific Steamship............................................................................................................66 3 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 NEGLIGENCE – STANDARD OF CARE AND BREACH................................................................................67 Vaughan v. Menlove.............................................................................................................................69 Bolton v. Stone......................................................................................................................................69 Watt v. Hertfordshire County – Fire Station Call, heavy jack inures P..................................................69 R. v. Saskatchewan Wheat Pool – breach of statutory duty................................................................69 Ryan v. Victoria.....................................................................................................................................70 Paris v. Stepney Borough Council – gravity of harm should be considered.........................................70 Vaughn v. Halifax-Dartmouth Bridge Comm........................................................................................70 McCullough v. Riffert (2010) – SoC of lawyers.....................................................................................71 NEGLIGENCE – CAUSATION.................................................................................................................. 71 Kauffman v. TTC – but for test..............................................................................................................72 Horsley v. MacLaren – but for test.......................................................................................................72 Athey v. Leonati....................................................................................................................................72 Clements v. Clements – when “but for” test does not work – material contribution of risk test.........72 Cook v. Lewis – 2 negligent Ds but only 1 caused accident – REVERSE ONUS.....................................73 Snell v. Farrell.......................................................................................................................................74 NEGLIGENCE – REMOTENESS AND FORESEEABILITY..............................................................................76 The Wagon Mound, No. 1 – changed law: foreseeability....................................................................76 Hughes v. Lord Advocate – modified foreseeability test......................................................................77 The Wagon Mound, No. 2 – CURRENT AUTHORITY.............................................................................77 Smith v. Leech Brian & Co. – thin skull rule..........................................................................................78 Marconato v. Franklin – thin skull plaintiff...........................................................................................78 Mustapha v. Culligan of Canada..........................................................................................................79 Price v. Milawski – Intervening causes.................................................................................................79 NEGLIGENCE – DEFENCES..................................................................................................................... 80 Galaske v. O’Donnell – Seat belt defence.............................................................................................80 Hambley v. Shepley – Voluntary Assumption of Risk...........................................................................80 Hall v. Hebert – unsuccessfuly ex turpi causa claim.............................................................................80 B.C. v. Zastowny – successful ex turpi causa claim...............................................................................81 The Contributory Negligence Act, RSS 1978, c. C-31............................................................................81 The Limitations Act, S.S. 2004, c. L-16.1...............................................................................................81 DAMAGES............................................................................................................................................ 83 Andrews v. Grand & Toy Alberta Ltd....................................................................................................84 MacCabe v. Westlock R.C.S.S.D. No. 110 – role of gender...................................................................85 Whiten v. Pilot Insurance – Punitive damages.....................................................................................86 4 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Intro to Tort Law Purposes/functions of tort law - Deterrence/prevention - Appeasement - Compensation - Protection - Distribution of losses - Justice - Ombudsman/watchdog/regulatory - Empowerment Civil Standard = balance of probabilities Specific Torts: Intentional Torts - Assault - Battery - Intentional infliction of mental suffering - False imprisonment (& malicious prosecution) - Trespass to land; trespass to goods - Violation of privacy Defamation Negligence Trespass: 1. interference with security of the plaintiff’s person or property by the defendant (class slides) Interference = injury; “actionable without proof of damage” 2. Interference results from direct action by D 3. D’s action is intentional (or negligent)  “Interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant” (Non-Marine Underwriters, Lloyd’s of London v Scalera, per McLachlin J Spectrum of Conduct Involuntary/Accidental  Negligent  (reckless)  Intentional (intent to do physical act/ to commit trespass/ to cause harm) 5 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Involuntary Scenario where someone has no control over their actions. Ex: forced into something. -NO tort liability Accidental Voluntary action but the outcome is unknown. (could not have reasonably foreseen/prevented outcome of it) -NO tort liability Negligent You act foreseeing the possibility that certain consequences will result. Conduct that you ought to have known/foreseen the outcome) -POTENTIAL liability in torts Intentional Act knowing something will be the result of your actions. -LIABLE in torts Actual intent: you desire the outcome Constructive Intent: Knowing what the outcome of an action will be. Goshen v. Larin (1974, NSCA) Referee Hands Blocking Case Facts: Referee puts hands up to block himself & accidentally hit someone. This person falls & breaks wrist. Issue: Did this meet the intent requirement of battery? Holding: No. Rule: An accident is not actionable as wrongfulness is required in tort law. Court established that in a battery case the burden/onus of proof lies on the defendant to prove that it was an involuntary/accidental act. Garrat v. Dailey Lawn Chair Case Facts: D argued that he didn’t mean to hurt P Issue: Was D liable b/c they were intentional? Holding: Yes Analysis: Pulling chair out from under someone = intentional tort. Rule: The tort of battery requires proof that the D knew with substantial certainty that what was going to happen. However, the mere absence of any intent to injure the P would not absolve D from liability if in fact he had knowledge of what was going to happen. 6 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Tillander v. Gosselin Dragging Baby Case Facts: The infant defendant, one week less than 3 years old, removed the infant baby from her carriage and dragged her over 100 feet, fracturing her skull and causing some brain damage. Issue: Does this child have the ability to understand the nature of this ability and do they know that it is wrong? Holding: No – child didn’t really know what he was doing. Rule: the D must have “the mental ability to appreciate or know the real nature of the act he was performing” Analysis: This case falls under the involuntary/accidental category. Carnes v. Thompson Throwing Pliers Case Facts: D threw pliers at a man but hit the man’s wife instead. Issue: Is D liable for the injury he caused the wife even though he did not mean to hit her? Holding: Yes Rule: Doctrine of transferred intent: If the D intended to commit an intentional tort, he is liable for all intentional torts he “accidentally” causes from that act. Basely v. Clarkson Lawn Mowing Case Facts: D made honest mistake of cutting his neighbour’s lawn. He trespassed. Issue: Did D intend to cut the lawn on his neighbour’s property? Holding: Yes – question wasn’t about whether he intended to trespass, it was about whether he intended to cut the lawn. Rule: Accidentally trespassing is not a defence as D’s actions were voluntary and he intended the consequences (lawn mowed). Smith v. Stone Involuntary Trespass Facts: P brings an action of tort against D Issue: Was D liable for trespass? Holding: No b/c D was carried onto P’s land. Rule: No liability for trespass if it is involuntary. Lawson v. Wellesley Hospital Psychiatric Case Facts: P was a non-psychiatric patient of the defendant hospital – sought damages for injuries sustained as the result of an attack by a psychiatric patient with a history of violent conduct. Action was agains the hospital claiming they were negligent by permitting the patient to be at large without adequate control or supervision. Issue: Was the hospital negligent? 7 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Holding: Rule: Where a person, by reason of mental illness, is incapable of appreciating the nature or quality of his acts, he cannot be liable for a tort since they do not have intention (which is an essential element of the cause of action). Intentional Torts Assault Definition: Conduct that intentionally arouses fear of an imminent battery (physical contact) constitutes an assault. (Stephens v. Myers, Bruce v. Dyer) I. De S & Wife v. W. DeS (1348) Hatchet Case Facts: D was pounding on P’s door with hatchet – P stuck head out window & asked D to stop. D swung at P with hatchet but did not hit her. Issue: Did D assault P even though he did no other harm? Holding: Yes Rule: Physical liability is not required for liability of assault. Stephens v. Myers Threated Punch Case Facts: D advanced towards P w/ a clenched fist, but did not physically punch him. Issue: Did D commit an assault even though there is no way the battery could have even happened under the circumstances? Holding: Yes Rule: When there is imminent fear, even though there is no way that a battery could have happened, D can be liable for assault. Tuberville v. Savage Assize Time Facts: D threatened P: “If it were not assize time I would not take such language from you” Issue: Did D’s threats that he may harm harm P in the future constitue an assault? Holding: No Rule: Cannot be held liable for assault without threat of imminent harm. Analysis: Furthermore, D is actually saying that he would not harm him, so there is no intent. Bruce v. Dyer Road Rage 8 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Facts: Road rage situation: D was tailgating P, flashing highbeams. P stopped car in front of D and signaled for D to stop. Fight ensued, D fractured P’s jaw. Issue: Is D liable for assault of P if he felt threatened b P before the fight ensued? Holding: No. Rule: If D has reasonable grounds to believe he was going to be hurt and acts in defence, he won’t be liable for assault. Analysis: P blocked D’s passage intentionally, which was sufficient to cause a threat to D. Mainland Sawmills v. U.S.W. Local I-3657 Labour Dispute Facts: In a labour dispute, defendants impeded Ps ability to enter into their workplace. Ds threatened Ps with imminent harm if they attempted to cross tracks (angry crowd) & go to work. Issue: Were the Ds liable for assault for threatening Ps by yelling at them (but not physically threatening them)? Holding: Yes Rule: words alone can constitute an assault. Analysis: Union workers created a reasonable apprehension of imminent physical contact. Warman v. Grosvenor Internet Harrassment Facts: Over the internet and personal e-mail, D threatened P for 2 years. D threatened P directly and posted his personal address and invited people to go to his home. P had strangers contacting his apartment’s management to try to get him evicted and had to move as a result. Issue: Is D liable for assault against P by causing him to be apprehensive of imminent physical harm? Holding: Yes Rule: Persistent postings of threats and providing Ps home address can cause a reasonable fear of imminent physical harm. Analysis: fear is imminent b/c the threats were serious, and because of Ds postings, P had third parties calling his landlord – this showed that people were taking action. Battery From class notes: Assault = An action which causes another person to apprehend the infliction of immediate, unlawful, force to himself. Battery = The actual intentional (or negligent) harmful or offensive interference or contact with another person. 9 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896  NOT contact that can be reasonable expected in everyday life (jostling in crowd or sports where contact is reasonable expected) Relationship btwn assault and battery: they do not have to occur together.  Can have a battery w.o assault if P doesn’t know it is coming (ex: hit from behind, hurt in their sleep)  Can have assault w/o battery if harm is apprehended by victim byt no contact ever occurs. Elements of Battery: 1. harmful/offensive contact (i.e. non-every day contact) 2. Physical contact: does not have to be harmful/cause injury 3. Directly caused by the defendant Negligence vs. Negligent Battery Negligence claim: anytime someone is harmed by the carelessness of another. - extent of liability: D only responsible for injury/harm that is reasonably expected. - Ex: leaving backpack on ground carelessly in the way of ppl walking & someone trips over it and hurts themselves Negligent Battery: Physically harming someone through the direct act of contacting them. - Extent of liability: D responsible for all harm/injury that follows from the battery (Bettel v. Yim) - Ex: D sticks out foot & trips somebody. Cole v. Turner Battery Definition - jostling in alley =/= battery Rule: “Battery” in tort is very similar to “assault” in criminal courts. “the least of touching of another in anger is battery.” Everyday touching will not be considered a battery. Bettel et al. v. Yim Extent of Liability Facts: D (adult) was angry at P (15 year old boy) for allegedly starting a fire in his store. P would not admit that he started the fire so D tried to force him to confess by picking him up by the collar and shaking him. While shaking him, D’s head accidentally came into contact with P’s nose, causing injury to him. D had no intention to injure P while shaking him, only to force him to confess. Issue: Is D liable for all injuries that follow from the battery, even if D didn’t intend the injuries that occurred? Holding: Yes. 10 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Rule: If someone intends to physically contact another, even if they do not intend or foresee the consequences, they will be held liable for any injury that flows from the battery. Analysis: An intentional wrongdoer rather than an innocent victim should bear the costs of unforeseen consequences. Sexual Wrongdoing - Unwanted sexual contact = battery no special tort of sexual assault/battery…considered as a usual assault/battery claim. Defenses different though – consent is a major one Often involves the limitation periods and assessment of damages Norberg v. Wynrib: where 2 parties are in a position of inequality and where the dominant party exploits that position, consent is not a valid defence. Limitation period: “reasonable discoverability” – ex. In incest case, limitation period for sexual battery did not begin to run until the incest victim discovered the connection between the harm suffered and the incest. o Statutes exist for limitation periods w.r.t. claims related to sexual matters – ex. In Sask, no limitation to when a claim can be brought forward Non-Marine Underwriters, Lloyd’s of London v. Scalera Facts: Sexual battery case – McLachlin J says that to prove a sexual battery, all the P has to do is prove that force was applied directly to her – she does not have to prove that she did not consent. Once P has proved physical contact of a sexual nature, if D does not dispute the contact took place, he bears the burden of proving that P consented or that a reasonable person in his position would have thought that she consented. Issue: Is consent implied in sexual activity? Is sexual activity generally acceptable in the ordinary conduct of everyday life (i.e. handshake, jostling crowd)? Holding: No to both. Rule: “it is for those who violate the physical integrity of others to justify their actions.” The burden is on the defendant to allege and prove his defence (i.e. that P consented or that a reasonable person in his position would have thought she did.) A P in a battery action need not prove the absence of consent. - the law of battery is based on protecting individuals’ right to autonomy. Damages Compensatory Damages (most common) Aim to restore the P to the position they were in before D’s tortious action. Paid for compensation of P’s losses (ex: property, personal injury) - Special damages – damages we can precisely quantify @ trial. Ex: medical bills, time off work. 11 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - - General Damages o Pecuniary damages – specific costs that will be incurred in future – ex: lost earnings/capacity to work, repair costs, disability equipment, personal care aid o Non-pecuniary damages – pain & suffering, loss of quality of life etc. o Fatal Accidents Act damages Punitive Damages (aka exemplary damages) – funeral costs, loss of companionship, loss of spouse, etc. Aggravated Damages – awarded to reflect P’s loss that was caused by D’s conduct. Ex: psychological harm. Nominal Damages – a token or symbolic amt. Usually a very small amount, but given to recognize that a tort has occurred. Usually received for a tort that is actionable without proof of damage, ex: trespass claims. (unusual to sue for this b/c of litigation costs). Intentional Infliction of Mental Suffering Elements P must show on a balance of probabilities that: 1) D’s conduct was extreme, flagrant or outrageous 2) Calculated to produce harm; and 3) The specific acts resulted in a visible and provable illness. (Piresferreira) Wilkinson v. Downton Prank Call – Husband Injured Facts: D played a practical joke on P, telling P her husband had been severely injured in an accident and she must catch a cab immediately to come get him. The effect on the P was a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity to her. Issue: Can P sue for intentional infliction of mental suffering? Holding: Yes. Rule: This case established the tort of intentional infliction of mental suffering. False Imprisonment Elements (Class slides) 1) Imprisonment (confinement/restraint – Bird v. Jones) 2) Directly caused by D’s actions 3) Intentional – constructive or negligent - actionable without proof of harm - Onus on D to show justification 12 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Bird v. Jones Facts: D blocked P from passing along a public highway in a particular direction. D could have gone around another way. Issue: Did this consist false imprisonment? Holding: No, b/c P was at liberty to move and go in any other direction, at his free will and pleasure, and no actual force or restraint was used on him. Rule: Merely blocking someone from a direction they want to go in does not amount to false imprisonment. Analysis: Judge said that “to hold the present case to amount to an imprisonment would turn every obstruction of the exercise of a right of way into an imprisonment.” Chaytor et al. v. London, NY and Paris Assn of Fashion ltd. And price Facts: Store owner called competitors coming into shop “spies” and asked their store detectives to watch them and called the police to arrest them as “suspicious characters.” Ps accompanied the police in order to avoid embarrassment and because they felt compelled to do so/ They were detained in police station for about 15 mins and then released. Issue: Can “psychological imprisonment,” that is, feeling compelled to not move about freely (and not physically detained), constitute false imprisonment? Holding: yes. Rule: Psychological pressure of imprisonment can constitute false imprisonment. CITE this case as this case tells us a tort of false imprisonment exists. - being confined and not wanting to make a scene is enough to consider it confinement Analysis: Psychological imprisonment can constitute false imprisonment in this case b/c the Ps were subjected to an objectionable form of public treatment where they were psychologically compelled to remain in the shop and go to the police station with the police officers. They did not know there was a door in the back of the shop they could leave through. There were no grounds for holding them there and taking them to the station because comparison shopping was found to be a normal and accepted practice by the judge, especially, he says, for competitors in the retail fashion trade. Malicious Prosecution Elements for Malicious Prosecution (from Linden & Klar textbook) 1) The proceedings must be initiated by the defendant; 2) The proceedings must terminate in P’s favour (i.e. in P being acquitted…unlikely they would be successful if they were convicted) 3) The proceedings must have been instituted without reasonable cause – there must have been no honest belief, based on reasonable grounds, that the accused was guilty. 13 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 4) The D must have been malicious – D must have had an ulterior motive, other than the pursuit of justice Nelles v. Ontario Nelles, a nurse at the Hospital for Sick Children in Toronto, brought an action for malicious prosecution against the Crown, tha AG, and several police officers. She had been charged with the murder of four infants who had died while under the hospital’s care. The murder charges were dismissed at the preliminary hearing. Trespass to Land Entick v. Carrington Facts: P brought action against D for B&E  D claimed to have a warrant to take papers. Issue: Was this a trespass? Holding: Yes, unless D can show that they had a warrant to seize papers. Rule: Every invasion of private property, be it ever so minute, is a trespass. If D admits the fact that they trespassed, they are bound to show that they were justified by some positive law that has empowered or excused them from the trespass (ex: a search warrant) Trespass to Property Act Definitions: Enclosed land: surrounded by fence and/or natural boundary; or enclosed in manner indicating occupier’s intention to keep persons off or animals on premises [s. 2(a)] Occupier: person in physical possession or responsibility/control over condition, activities, persons [s. 2(c)] Premises: lands or structures, and includes water; ships/vessels; trailers & portable structures (designed/used for residence, business or shelter); trains, railway cars, vehicles & aircraft (except while in operation) [s. 2(e)] Prohibits trespass, i.e.: [s 3(1)] -Enter premises when prohibited Prohibited when: contrary to notice given under s.11; enclosed lands that are property of another person [s. 4(1)] - Engage in activity prohibited on premises Prohibited when: notice given under s. 11 [s. 4(2)] - Fail to leave/stop activity as soon as is practicable after request 14 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - Re-enter or resume activity contrary to request (All without consent of occupier or “right or authority conferred by law” [s. 3(1)]; onus on D to prove consent [s. 3(2)]; person on enclosed land presumed not to have consent of occupier [s. 4(3)] ) Prohibition/permission: Entry prohibited [s. 8] – By notice under s. 11 – To enclosed land regardless of notice Activities prohibited – Deemed prohibited, if other(s) permitted by notice [s 9] – By notice under s. 11 [s. 10] Form of notice: oral or written; sign [s. 11] Defences: [s. 7]  Reasonable belief in title or interest in premises  Consent of occupier, or honest and reasonable belief in consent  Right or authority conferred by law  Honest and reasonable belief in permission to carry on activity  {All to be proved on a balance of probabilities} Remedies/enforcement:  Powers of peace officer [ss. 5, 6, 12]  Summary conviction offence, punishable by fine up to $2000 [s. 14]  [NB no specific provision for damages or compensation to occupier, unlike some other provinces] Interference with Chattels 3 types of torts related to chattels: (remedies for each are different) (from BVT slides) 15 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 1. Trespass to Goods: direct and intentional interference with chattels in possession of another. a. Remedy: damages to compensate for loss b. Actionable per se (w/o harm) 2. Detinue: Wrongful detention of goods (to which P has right of possession) a. Remedy: return of goods OR damages = value of goods at time of judgment b. Elements: i. P has right of possession (better right than D) ii. P has requested return of goods iii. D has refused return of goods 3. Conversion: Wrongful interference with P’s goods in a manner inconsistent with rights of possession. (taking & keeping good or destroying it) a. Remedy: Damages = full value of goods at time of conversion 1. Trespass to Goods - P must have possession or immediate right of possession. A lessor cannot sure – lessee must. Everitt v. Martin Coat Caught on Fender Facts: P caught coat on D’s dilapidated fender (D’s car was parked next to his) and got an injury. D tried to say P trespassed in allowing his coat to come into contact with his car (so he wouldn’t be liable for P’s injury). Issue: Did P trespass on D’s property (his car)? If so, does this allow D to avoid tort liability in P’s claim? Holding: Yes, P trespassed on D’s chattel, but id did not allow D to avoid liability. Rule: There is no right of action in the case of merely accidental contacts where no damage is done (as happened here). 2. Detinue - P must have better rights to possess the goods than D - better to go this route than conversion if you want the item back rather than just getting $ - If price of good rises so that it’s higher at trial, you would be better to sue for detinue 3. Conversion - Distinguishing feature: there has been major/serious interferences w/ one’s chattel that it justifies forced judicial sale of the chattel to the defendant - you’re not getting goods back, you’re getting full value of goods (@ time of conversion, NOT at time of trial) list of things constituting conversion: 1) taking & keeping for yourself 16 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 2) destroying something/permanent loss/changing nature of goods enough that it is no longer useful/valuable to original owner - To sue in conversion you can sue if you are the owner (holder of title) of the property, even if you’re not the possessor (i.e. unlike for trespass to chattels, lessor CAN sue for conversion) - If price of good falls so that it’s lower at trial, you would be better to sue for conversion Hollins v. Fowler Facts: Bayley (fraudster) acting as purchasing agent for a 3rd person w/ good credit. B obtained 13 bales of P’s cotton. B offered to sell to Hollins (broker). Hollins obtained bales of cotton & delivered to Micholls & co. B obtained sale price from Hollings. F never got paid & Micholls & Co. had already used cotton. $ was taken btween Hollins & Fowler. Issue: Hollins & Fowler were both innocent – so who is held liable? Holding: Hollins b/c they had a better chance of avoiding the fraud than Fowler. Rule: A person who innocently obtains possession of goods (goods of a person who was fraudulently deprived of them) & turns around & sells them to somebody else will be held liable. Fouldes v. Willoughby - D took P’s horses off the ferry after P misconducted himself and then refused to take the horses off himself - “a simple asportation of a chattel, without any intention of making further use of it, although it may be a sufficient foundation for an action of trespass, is not sufficient to establish a conversion” Penfolds Wine bottles Facts: numbered company sued in conversion b/c they had their property seized wrongly. No trespass b/c Penfolds had los possession of the bottles. But Penfolds intended bottles to be filled with their own wine but they were used for a different purpose Issue: Did this constitute conversion? Holding: Yes. Rule: an unjustified use of goods will amount to a conversion provided there is an intention to exercise dominion over them. - only a person in possession can sue for trespass (i.e. that’s why they sued in conversion here and NOT trespass to their chattel) Invasion of Privacy (Common Law) (intrusion upon seclusion) - called intrusion upon seclusion in Canada (Jones v. Tsige is an Ontario case…BC has explicitly said they won’t recognize the tort of invasion of privacy) Elements 1) Intentional (including reckless) intrusion into P’s private affairs 17 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 2) Invasion of P’s affairs w/o lawful justification 3) Reasonable person would regard invasion as highly offensive causing distress, humiliation or anguish (no proof of pecuniary ($) loss is required) Assessment of Damages Factors: – Nature, incidence and occasion of D’s wrongful act – Effect on P’s health, welfare, social, business or financial position – Relationship (domestic or otherwise) b/w parties – Distress, annoyance or embarrassment suffered by P – Conduct of both parties (before & after) Modest where no proof of pecuniary loss; range up to $20,000 Punitive/exemplary or aggravated damages possible (but exceptional) Jones v. Tsige Facts: Jones & Tsige both worked @ different BMO branches. They did not know or work with each other. For 4 years, Tsige used her work computer to access Jones’ personal BMO accounts, seeing info including: transaction details, personal info, date of birth, marital status & address. She looked at her accounts over 174 times over 4 years. The reason why doesn’t really matter. Issue: Did Tsige commit the tort of intrusion upon seclusion when she repeatedly examined the private bank records of Jones? Holding: YES Rule: When one’s intusion actions are intentional, amount to unlawful invasion of one’s private affairs, are highly offensive to the reasonable person and cause distress, humiliation or anguish, they are liable for the tort of inclusion upon seclusion. Analysis: The court created this tort in this case. Societal changes influenced this. Changes are conservative (in small steps) & consistent w/ laws that we already have. Judge narrowly defined the tort so that it wouldn’t result in floodgates. The court also looked at the 4 US privacy torts. Invasion of Privacy (Statutory Tort) - 4 provinces created legislation that makes invasion of privacy a tort: BC, SK, MB, Nfld. Privacy Act: tort of violation of privacy - must be “willful” (s. 2) - Must be “without claim of right” (s. 2) - What is violation of privacy? o Examples (ex: surveillance, use of personal documents) – if without consent, prima facie violation (s. 3) o “the nature and degree of privacy to which a person is entitled in any situation or in relation to any situation or matter is that which is reasonable in the circumstances, due regard being given to the lawful interests of others” (s. 6(1)). 18 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 o Factors to be considered, eg: nature, incidence and occasion; relationship; effect (s. 6(2)) - Defences (s. 4) - Consent - Incidental to lawful right of defence of person or property - Authorized or required by law - Peace officer or public officer… - News gathering… - Publication… Available remedies (s. 7) - actionable per se … “actionable without proof of damage” (s. 2) - damages (ex: compensation for job loss, psychological) - injunction: forcing D to take down info. on this person. - Accounting for profits - Order to deliver articles or documents - “any other relief…that appears necessary under the circumstances” Getejanc v. Brentwood College Assn. Facts: House master, McCarthy @ Brentwood College, went looking for one of his “boarder” students @ another student’s home, off-campus. McCarthy entered this home w/o invitation, walked around looking for students & contraband (alcohol). He opened bedroom doors, fridge, cupboards, took 4 students’ track suits. He know that P, the rightful possessor of the home was away at the time. P looking to sue McCarthy for trespass & seeks general, special & punitive damages. Issue: Was the P entitled to privacy? If the P was entitled to privacy, did the D breach P’s privacy? Holding: Yes, P was entitled to privacy. (even though, P’s entitlement was decreased b/c of McCarthy’s lawful “houseparent” interests. This decrease though was not enough to diminish P’s expectation of entitlement to privacy. Yes, McCarthy willfully and w/o claim of right entered P’s house, violating his privacy. Rule: Elements of the statutory tort of Violation of Privacy: 1) Was there an entitlement to or reasonable expectation of privacy? 2) Was it “willful”? 3) Was it “without claim of right”? Wilful = a higher threshold than intention. A willful act is an act that was intentional – the actor knew or ought to have known would violate P’s privacy. Analysis: 3 different defence possibilities. Biggest one was looking @ which lawful interests were taken into account. Court looked at nature/situation, relationship etc. - there were less intrusive means of exercising his lawful right as houseparent - looked @ aggravating & diminishing factors – aggravating being that McCarthy was an authority figure which made the invasion of privacy worse 19 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Milner Manufacturers Life Insurance Facts: Ms. Milner – claiming damages for “breach of privacy” b/c of video surveillance carried out @ request of Manulife. Private Investigators took photos unnecessary to Ms. Milner’s issues- ex: her sons playing soccer, her daughter changing. Issue: (same as Brentwood case) Were the Milners entitled to privacy? If so, did the videotape surveillance breach the Milners’ privacy? Holding: No entitlement to privacy in this situation because of the specific details (see Analysis) Rule: If there’s no entitlement to privacy, there can be no breach. When something prima facie looks like a violation of the Privacy Act, must look at details – from this case we can see that when looking closer at the facts, it’s not actually a violation of privacy. Analysis: The Milners had low privacy b/c of nature of their actions. In home w/ blinds open & lights on. Boys playing soccer in plain view of public, even if it was on private property. Manulife did have a lawful interest in conducting their surveillance based on the nature of her claim & the credibility issues that arose. Bigstone v. St. Pierre Facts: Issue with grandmother’s home and grandson wanting to possess it. Bigstone was the mother of St. Pierre, who had title to the home but broke his promise and rented it out. Bigstone disclosed that she had used per position as a customer service rep with her workplace to access SPC records to confirm her grandmother’s residence had been rented to a third party. When Bigstone brought an action against St. Pierre for an unconscionable house transfer, he alleged Bigstone’s accessing of the records was an actionable violation of his privacy rights pursuant to the Privacy Act. Issue: Has the claimant pleaded enough to allow this claim to proceed? Holding: Yes. Rule: @ pleading stage you don’t have to show a reasonable right to privacy. Analysis: This case shows us that the threshold is set low for “reasonableness.” Defences courts must balance the interests being invaded and the interests being advanced by the defendants’ conduct Complete defence = completely clears D of liability - Consent - Self-Defence - Defence of 3rd parties - Defence of property - Public and private necessity - Legal authority Partial defence = partially clears D of liability - provocation - contributory negligence - 20 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Consent - If P proves all elements required for tort, onus shifts to defendant to prove that What the defendant needs to do to prove consent: - express consent (Non-Marine Underwriters) - implied consent (by your actions: ex: putting out arm (O’Brien)); or - by regular day-to-day conduct like jostling in a crowd (Cole v. Turner) O’Brien v. Cumard (1891, Ct. of Massachusetts) Facts: Surgeon employed by Cunard S.S. C. vaccinated P while she was on board. In order to emigrate from Boston, vaccination needed. Surgeons lined up ~200 women. If they did not have a mark on arm proving they had been vaccinated the surgeons would give them vaccination. She didn’t verbally say she wanted the vaccination, she held out her arm for shot. Issue: Did the surgeon’s actions constitute an assault on the plaintiff? Was the defendant guilty of negligence toward the plaintiff? Holding: No to both. Rule: Consent can be implied by conduct. - honest/reasonable belief of consent is a valid defence - Onus is on P to prove D acted negligently Analysis: If it is indicated by conduct that D’s action is desired and it is not objected, D’s actions are lawful because consent was given. Non-Marine Underwriters, Lloyd’s of London v. Scalera (2000, SCC) Burden of Proof for Consent (Sexual Assault) Facts: Sexual assault took place. Issue: Does the onus rest on the P to prove that the D either knew she was not consenting or that a reasonable person in the D’s position would have known that she was not consenting? Holding: No – it is for those who violate the physical integrity of others to justify their actions Rule: - Burden of proof to prove that the P consented is on the defendant in a sexual assault case - the P who alleges sexual battery makes her case by showing evidence of force applied directly to her. - “force” in the context of an allegation of sexual battery, simply means that it is physical contact of a sexual nature Analysis: this case draws the line btwn casual/everyday contact (jostling in crowd – implied consent) and “offensive”, not everyday contact -McLaclin discussed that the biggest aspect of the tort of battery is to protect one’s right to their own body/autonomy 21 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Norberg v. Wynrib (1992, SCC) Power of Imbalances Facts: Laura Norberg – severe pain in jaw & headaches. Became addicted to painkillers. After breaking her ankle she was needing painkillers & her new doctor (Wynrib) gave her painkillers in exchange of sexual favours. Issue: Did Dr. Wynrib commit the tort of battery in sexual assault? Did Dr. Wynrib prove Norberg consented? Holding: Yes, he committed tort of battery in sexual assault b/c Norberg’s consent was vitiated by the power imbalance of the relationship. Rule: Consent that occurs where inequality in a relationship that is exploited is not valid consent. Need both elements: 1) inequality in relationship; and 2) exploitation of the inequality Analysis: Wynrib’s obvious defence to a claim for sexual assault is that she consented. - Norberg argue that she was exploited – if it wasn’t for the inequality in their relationship that was exploited, she would not have consented. He exploited the doctorpatient relationship, took advantage of her addiction to drugs she needed. Also he was much older than her. Charland v. Cloverdale Minor Baseball Assn (2013, SCC) Parents fighting @ baseball field Facts: Physical altercation btwn. 2 dads @ kids’ baseball game. Issue: Was there a defence of consent? Holding: No  mutual fight. Rule: “mutual fights”  those who engage in fights cannot complain of injuries suffered during fight unless force used by one of combatants is excessive or unnecessary. - D has onus of establishing there was consent - In fights, if fight ends @ point of mutuality, neither are liable. As long as fight stays w/I reasonable consent (escalating reasonably) - Disproportionate use of force would go beyond “reasonable escalation” - in a FIGHT context, must ask: 1) was there consent? 2) was consent exceeded? - In sports, it’s said you’ve impliedly consented by playing the sport that you consent to the nature of the sport - anything beyond the scope of what’s expected in the sport is not going to give player immunity to liability Bertuzzi v. Moore  contact that was deliberately meant to cause bodilyharm, exceeding Moore’s expectation. Bertuzzi not immune from liability due to the fact that this was in a sports setting. 22 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Malette v. Shulman (1990, ONCA) Consent in the MEDICAL context Facts: P was a jehovah’s witness injured in car crash. She was brought to hospital & was semi-conscious and in shock. Dr. was made aware she carried a card in her purse which forbit any form of blood transfusion. Dr. administered one anyway (he determined it was necessary). P sued D. D appealing. Issue: Did Malette expressly say she does not consent by carrying the card in her purse? Holding: Yes – her card is expressing her refusal just the same as if she had said it/ Rule: Patients have a right to refuse any and all treatment (maintains personal autonomy). - the right to refuse treatment is not premised on understanding the risks of refusal, but on autonomy. - Where P has expressly prohibited a treatment, that treatment cannot be imposed in an emergency. - her card is expressing her refusal just the same as if she has said it - consent of refusal in advance is just as valid as consent given @ time of treatment - Malette expressing her refusal of consent overrides the emergency situation from Marshall v. Curry Medical consent (from class slide) • Consent must be voluntary • Person giving consent must have capacity. ‘capacity’ means the ability: 1. (i) to understand information relevant to a health care decision respecting a proposed treatment; 2. (ii) to appreciate the reasonably foreseeable consequences of making or not making a health care decision respecting a proposed treatment; and 3. (iii) tocommunicateahealthcaredecisiononaproposed treatment [Health Care Directives and Substitute Health Care Decision Makers Act, SS 1997, c H0.001, s 2(1)(b)] • Consent must be specific (to procedure and person) Marshall v. Curry Consent in the MEDICAL context: EMERGENCY exception Facts: While performing surgery on P to fix a hernia, D (doctor) removed P’s left testicle b/c he said it was a necessary part of the operation for the cure of the hernia (testicle was diseased). P argues that he did not consent to removal of his testicle. Issue: Is D liable since P did not consent? Holding: No – D not liable. 23 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Rule: An exception to the requirement of consent to medical treatment: where the surgeon has a duty to act to save the patient’s life where an unanticipated emergency arises. Self-Defence Cockcroft v. Smith Facts: P ran fingers towards D’s eyes. D bit a joint off P’s finger. Issue: Was biting off his finger a proper defence? Holding: No Rule: self-defence must be immediate and proportional to the threat. - a delayed response does not fall into the scope of self-defence because the threat to the defendant is no longer imminent and it can be seen as revenge. - excessive or unreasonable force won’t be justified as self-defence - justified  necessary to defend from the attack Defence of Property (from slides): - (usually for land; can also be chattels) - the defence of property can be a defence for a tort of battery, but must be cautious - this defence has many parallels with self-defence but not identical - D reasonably believes P is wrongfully entering, remaining in, damaging etc. property in possession of D - Force used must be reasonable and necessary to prevent/end interference Bird v. Holbrook (1828, Common Pleas) Facts: D had a walled garden where he grew valuable tulips. D set up a spring gun with trip wires in garden. No notice of spring gun given. P climbed the wall to rescue a bird. P called several times for D before descending the wall. P seriously wounded by the trap. Issue: Can D use defence of property for setting trap? Holding: No. Rule: Defence of property is not a justifiable defence of property if express motive is to harm trespasser. - Notice of danger to trespassers about traps must be given. Analysis: D is liable because he did not give notice and set the traps for the express purpose of injuring trespassers. Defence of third party Elements (from slide): 1) Reasonably believes person (self or third party) is under actual or imminent attack 24 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Force used is reasonable under the circumstances – Proportionality b/w form and nature of attack and response – Factors in CC s 34(2) – Not to be “measured with nicety” Idoesn’t need to exactly match) 3) Both to be proved by D on a balance of probabilities 2) Babiuk v. Trann (note case) Defence of 3rd party - player (D) punched player (P) in face & broke his jaw after whistle blew b/c P had stepped on D’s teammate’s face w/ metal cleats. D not held liable b/c he was defending his teammate (third party) and was “measured with nicety.” Provocation - When conduct of P causes D to lose self-control - conduct that constitutes provocation must occur just before or @ time of D’s tortious act – has to be “in the moment” - not a complete defence, but may reduce damages (proportionately depending on the role P played) Provocation cases (from class slide)  Bruce v Dyer [pg. 154, note 9, expert under Assault] o Decided on self-defence, but provocation would have reduced damages o “provocaitn was such as to reduce the damages to the vanishing point”  Check v. Andrews Hotel [pg. 154, nn8, 9] o Verbal abuse and swearing = provocation o No reduction of damages (b/c only punitive or aggravated damages can be reduced, and none awarded)  Defosse v Wilde [1998] o Obnoxious behaviour, ripping D’s shirt and hitting D = provocation o damages reduced by 50%  Agar v Canning [ p. 132, n2(under consent)] o Hooking and hitting with hockey stick = provocation; consent defence rejected for retaliation by hitting in face with hockey stick o Damages reduced 1/3 Legal Authority - an umbrella defence – covers many statutory defences Criminal Code ss. 25 & 495 Citizens Arrest and Self Defence Act Can have immunity from some civil liability because of CC Difficult to generalize – must look at defence of legal authority on a case-by-case basis 25 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Necessity (uncommon defence) - D must argue that there was a compelling interest that mst bave been protected - Can be similar to self-defence/defence of third party in a way - KEY DIFFERENCE for this defence: the threat the D is protecting themselves against is not from the P, it’s from some external force - Public necessity = acting to protect public from external threat. Emergency, in public interest, no reasonable alternative, no unnecessary damage done - Private necessity = acting in your own interest to protect yourself from an external threat – only available in cases of extreme need (great, imminent danger). There must be no reasonable legal alternative. (becomes difficult where actual damage/loss is done. Majority decision in Vinet case says you have to pay difference where actual damage is done). Dwyer v. Staunton (1947, AB Ct.) Public Necessity defence (successful defence) Facts: P was a farmer, D lived north of P. Snow blocked the road running past the farmer’s property. Oil company bulldozed a path across P’s farm. D used it with other vehicles following. P suing D for trespass & damages to his crop. Issue: Did D have rights to trespass onto P’s farm to get into dtown? Holding: Yes. Rule: Defence of necessity allowed for a trespass to land. A traveller who is lawfully using a public road has the right to go upon private land at places where public way is impassable. - Rights of public are higher than private property rights. Analysis: public interest is not very compelling in this case. Vincent v. Lake Erie Transportation Co. (1910, Sup. Ct. Minnesota) Facts: D tied boat to P’s wharf during a big storm. Wind was hitting boat onto wharf. Issue: Is D liable to P for trespass onto his wharf? Holding: Yes, for part damages. Rule: D used P’s wharf (property) for the prupose of preserving its own more valuable property, and the Ps are entitled to compensation for the injury done. To use defence of necessity, there needs to be an imminent peril. Analysis: Southwark London Borough Council v. Williams and Anderson Private necessity: homeless entering empty house (defence fails) Facts: 2 homeless people peaceably enter 2 empty houses owned by local authority. The local authority owns hundreds of empty houses. They are trying to sue for trespass. Issue: Can defendants use defence of necessity for trespass after entering the houses? Holding: No. Rule: Reason for entering houses was not merely to prevent discomfort of Ds – not sufficient for defence of necessity. - Need a serious, imminent need such as a risk of death. Emergency would have given Ds a better chance. 26 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Analysis: D made an economically rational decision here – he tied his boat b/c its value was higher than the wharf – he made the decision to save his boat - Whynrib said it’s all abot the best/just relationship between the parties. In order to protect your own property and damage other property, you’re liable to damage of another’s property Defamation - seeks to protect the reputation of individuals against unfounded and unjustified attacks. Onus on P to make out the elements of defamation; then onus shifts on P to make out elements of defence o If defence of qualified privilege is made out, P can negate it by showing that the D was malicious or exceeded privilege o If the defence of Fair comment is made out, the P can negate it by showing D was malicious Elements of Defamation (onus on P to prove 3 elements) (1) P must prove that the statement is defamatory (Murphy v. Lamarsh et al.) (2) The material must refer to the P (Linden & Klar textbook) (3) The material must be published (McNichol v. Grandy) Remedies for defamation (from class slides):  Compensatory damages o General o Special o Aggravated  Punitive/exemplary damages  Injunction (in very limited cases) Factors affecting damages (from class slides):  D’s conduct, motive, Condition  P’s reputation  Extent of publication; how & by whom received  Apology/retraction (or lack thereof) Mitigation of damages (Libel and Slander Act)  Defendant can offer evidence in mitigation of damages that he “made or offered a written or printed apology to the plaintiff before the commencement of the action; or, if the action was commenced before there was an opportunity of making or offering such apology, ... as soon afterwards as he had an opportunity” [s 4] 27 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896   Mitigation of damages for newspaper libel where no actual malice or gross negligence, and full apology before commencement of action or at earliest opportunity [s 7] Mitigation of damages for newspaper libel where P has already sued/recovered for (substantially) same libel in other newspaper [s 17] The Values at Stake - Law around defamation – tries to balance freedom of speech and reputation Violation of privacy and defamation can often come up together For statutes on defamation, it must comply with the Charter right of Freedom of Expression CL – a more ubtle exercise of balancing Charter rights & CL interests Hill v. Church of Scientology of Toronto (1995, SCC) Reputation > freedom of expression Facts: Hill was a Crown prosecutor – Church of Scientology was making statements about him saying that he misled an Ontario supreme court judge and breached court orders. He claimed that they were defaming him. Issue: Should the court alter the defence of qualified privilege so that it would comply more with the Charter right of freedom of expression? Holding: No. Rule: Reputation (especially for a lawyer) is extremely important. - this case altered an narrowed the scope of the defence to defamation of Qualified Privilege. Analysis: Example of how damages are awarded for loss of reputation – not necessarily a pecuniary loss. Hill was awarded 3 Million dollars for punitive, aggravated and general damages. Grant v. Torstar (2009, SCC) Libel Chill…Freedom of expression > reputation Facts: media case – freedom of the press concern, discussion of “libel chill” it will chill the news for fear of libel charge. Rule: The SCC should rely on the Charter to emphasize the importance of freedom of expression in shaping Canadian defamation law (different view from Hill) Analysis: The Common Law, though not directly subject to Charter scrutiny where disputes between private parties are concerned, may be modified to bring it into harmony with the Charter. Libel vs. Slander Libel (print/permanence) = actionable per se (without proof of harm) Slander (speech/non-permanence) = actionable upon proof of damages Libel: 28 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896     o Includes writings, signs, pictures, statues, films, and even conduct implying a defamatory meaning o Actionable without proof of damage since general damages are presumed Slander: o Is communicated orally and is not actionable per se, so that an action lies only if special damages are pleaded and proved (there are 4 classes of slanderous statements that are actionable per se and do not require proof of special damages.) Damage rule is well settled in the law and can only be changed by legislative reform o AB, MB, NB, NS, PEI- “Defamation means libel or slander:  AB- “When defamation is proved, damage shall be presumed” Distinction between libel and slander still exists in SK The mere broadcast would not make something libel, but if that is recorded or given some permanent form, it becomes a libel Meldrum v. Australian Broadcasting co. (1932, Sup Ct Victoria) Facts: P brought an action for defamation alleging in the statement of claim that D “wrote a script” and “read out” the words on the script into a broadcasting apparatus. No special damages were alleged. D moved to strike out the statement of claim or to have it amended by striking out those parts which referred to a writing or script and those parts of the words which could not support an action of slander without proof of special damage. Issue: Does the fact that the D read the defamatory remarks from a script make it libel or slander? Holding: this constitutes slander. Rule: The distinction between libel and slander lies solely in the mode of publication. It does not matter if the speaker is reading them from a script or if the audience knows he is reading them from a script. As long as the communication is by word of mouth, it is slander and not libel. Analysis: This was an important distinction since slander requires proof of harm, but libel is actionable per se. Libel and Slander Act • Libel and Slander Act, s8: Only actual damages recoverable for newspaper libel if:     - Good faith – Reasonable grounds to believe publication was for public benefit; – Libel did not involve criminal charge; – Mistake or misapprehension of facts; and 29 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896  – Full and fair retraction before commencement of action [conspicuous and at least 15 days before election, if candidate for public office] Plaintiff’s Case Elements of Defamation (onus on P to prove 3 elements) (1) P must prove that the statement is defamatory (Murphy v. Lamarsh et al.)  What is defamation? 2 steps: 1. Is the material capable of being defamatory? (question for the judge) 2. Is the material in fact defamatory? (question for th jury)  Objective test (based on what a reasonable person would think) (2) The material must refer to the P (Linden & Klar textbook)  Again, 2 steps: 1. Is the material capable of being regarded as referring to the P? (for the judge) 2. If yes, then… is the material in fact seen/read by people (who know P) as referring to P? (for the jury)  Objective test (would a reasonable person/reader think so or what will that reasonable person do with that info)  This issue usually arises in cases of group defamation: Depends partly on size of group, language, person’s identity or role in the group (3) The material must be published (McNichol v. Grandy)  Material/statement conveyed by D and received by third party  Publication intended by D (actual intent), or due to D’s negligence (negligent intent)  Republication (every publication, conveyance of the material, is the basis for a separate cause of action)  “repetition rule” (not a defence to claim “only repeating what someone else said”) – repeating is publication as much as actual publication. 1 – P must prove that the statement is defamatory Test for what is defamatory     “tends to bring the plaintiff into / expose the plaintiff to hatred, contempt, or ridicule” [Murphy v Lamarsh; Botiuk v Toronto Free Press] “tends to lower the plaintiff in the estimation of right-thinking members of society generally” [Murphy v Lamarsh; Botiuk v Toronto Free Press] “tends to lower the plaintiff’s reputation in the eyes of a reasonable person” [Grant v Torstar] “tends to make the plaintiff be shunned or avoided” [Youssoupoff v MGM] Examples of what court has found defamatory 30 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896    Imputing to the plaintiff o Illegal, disreputable or improper conduct o Immoral or unethical conduct/ character o Socially undesirable traits (lousy teacher, serious illness) o Lack of skill, knowledge, judgement, etc. o Disease, including mental or physical illness Material that is embarrassing or humiliating (exposing P to “more than trivial” ridicule) Berkoff v Burchill o Whether it is funny or is it defamatory? o Actor call notoriously hideous looking by a reporter (jokingly) Murphy v. Lamarsh et al. (1970, BCCA) Facts: Murphy was formerly employed as a radio newsman in the press gallery at Ottawa reporting for his radio station the doings of Parliament and the Government of Canada and general political news, including the public and private actions of politicians who were in the public eye. The D is the author of, and the defendant McClelland and Stewart Limited is the publisher of a book of political reminiscences called Memoirs of a Bird in a Gilded Cage. The first edition of the book contained statements about P which he says are defamatory. Issue: Is the D guilty of libel? Holding: Yes. Rule: Classic test for defamation: would the statement tend to lower the P in the estimation of right thinking members of society generally?  normally qualified by “or lead to the P being shunned or avoided?” (Sim v Stretch)  Ask: who is a “right thinking member of society”? Notes Youssoupoff  defamation: “calculated to bring into hatred, ridicule, or contempt” … “or causes them to be shunned or avoided.” – but this is not exhaustive Slayter  the standard measurement in defamation is someone of “fair average intelligence” or what “ordinary decent folk in the community, taken in general” would feel. Innuendo  words may appear innocent on the surface but may be defamatory to people who are aware of extrinsic facts. In such a case, the p must pleas and prove this, which is called the “innuendo.”  Ex: Morrison: publication of the apparent good news that Mrs. M has given birth to twins  Mrs. M. is successful in a libel action when she pleads and proves 31 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 that she was married only four weeks before, the innuendo being that she have birth to illegitimate children. 2 - The material must refer to the P (Linden & Klar textbook) The material must refer to the P (Linden & Klar textbook)  Again, 2 steps: 1. Is the material capable of being regarded as referring to the P? (for the judge) 2. If yes, then… is the material in fact seen/read by people (who know P) as referring to P? (for the jury)  Objective test (would a reasonable person/reader think so or what will that reasonable person do with that info)  This issue usually arises in cases of group defamation: Depends partly on size of group, language, person’s identity or role in the group o Ex: arab taxi driver in Quebec brought a class action against a radio host for making extremely offensice and insulting remarks about Arab taxi drivers in Mtl.  Claim failed b/c P must prove that he personally suffered an injury as a result of the speaker’s fault in making such defamatory comments o Ex: Booth v. BC Television Broadcasting Systems – detective defamed by prostitute on tv. Judge said defamation depended on what “reasonable men would take from what was said.” 3 - The material must be published (McNichol v. Grandy) McNichol v. Grandy (1932, SCC) Facts: D and P got into altercation in dispensary at P’s drug store, D spoke in a loud and angry tone and uttered defamatory words of the P. An employee at the store heard it all from the changing room with a small hole in it next door. TJ found that the defamatory words were not published. Issue: Were the defamatory comments published? Holding: Yes, appeal dismissed Rule: Onus on P to prove publication. Responsible for defamation if publication is reasonably foreseeable by the defendant. Analysis: The publication to the employee took place while she was performing her duties in the usual course of business, and was not brought about by unlawful/improper act on her behalf - we must take it that the defendant intended the natural and probable consequence of his act - onus on D to say he did not intend anyone else to hear it, and that he did not expect anybody to be in hearing distance (to prove not guilty of any want of care in not 32 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 foreseeing the probability of the presence of someone within hearing range of the speaking tones which he ued) Notes Huth v Huth case  the D sent an unclosed letter to P, and the letter was removed (unlawfully) by P’s butler and read by the butler. This was found not to be defamation because it was not reasonably foreseeable that the butler would take it out and read it. - other cases where it was reasonably foreseeable that a third party would open and read the letter (ex: lawfully by a clerk), there was publication by the defendant to the P’s clerk. - where a letter was intended for one person but was by mistake sent to another, that is considered publication (Thompson v. Dashwood) - where a letter (containing defamatory statements of P) was negligently dropped by the D and picked up and read by a third party, that is publication (Weld-Blundell v. Stephens) Crookes v. Newton Hyperlink case Facts: D posted an article on his website on the topic of free speech. The article contained hyperlinks to other websites which contained defamatory comments concerning the P. Issue: Did publishing electronic links to articles which contained defamatory material amount to republication of the defamatory material itself? Holding: Not without more, so not in this case. Rule: hyperlinks without more act as mere references to other material but do not publish the content of that material. People who publish hyperlinks may attract liability “if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because understood in context, they have actually expressed something defamatory…” (Justice Abella in writing for the majority in Crookes). Notes  Publication has a wide breath o Innocent dissemination defence: protects those who play a secondary role in the distribution system, such as news agents, booksellers, and libraries. Such subordinate distributors may escape liability by showing that they have no actual knowledge of an alleged libel , are aware of on circumstance to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel  Byren v Deane [1937]- Proprietors of the club were held liable for defamatory posters put up by members. Failure to remove defamatory matter may amount to publication where removal is simple and easy. On the other hand, it would be 33 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896   difficult, if not impossible, to draw an inference of “volition” from failure to remove deeply chiselled defamation from stonework of a building Botiuk v. Toronto Free Press Publications  “joint tortfeasors”  those who participate together in the publication of a defamation can be liable together o Joint tortfeasors can also be liable for a subsequent republication if this is a “natural and logical consequence” of the first publication A person who communicated the defamatory material to the person being defamed generally is not liable, since there has been no publication to a third party. If, however, the person defamed was under necessity or compulsion to repeat it to a third party, there is publication. If the republication of defamatory material by a third party to another party is the natural and probable consequence of the original publication, the original publisher can be liable for that republication as well (Linden & Klar textbook) Basis of Liability Hulton & Co. v. Jones (1910, H.L.) intent not required for defamation Facts: Hulton & Co. were the printers, publishers and proprietors of the Sunday Chronicle, which published an article with a libel concerning Jones. Hulton & Co. used Jones’ full name, saying that he was with a woman who was not his wife. Witnesses were called to trial and said they read the article and that it was referring to the plaintiff. D said the name was chosedn for the purpose of the article as a ficticious one, having no reference to the P. Issue: Did D commit the tort of libel even though he did not intend to defame the P? Holding: Yes. Rule: Intent is not necessary to prove defamation. Accidental defamatory lack of intent is not a defence. Cassidy v. Daily Mirror Newspapers, Ltd. (1929, CA) Facts: Cassidy was living with a woman who was not his wife. A photograph was taken of Cassidy and another woman with an engagement announcement. The woman who he had been living with (not his wife) brought an action for libel against the newspaper setting out these words with an innuendo, meaning thereby that the P was an immoral woman who had cohabited with Corrigan without being married to him. Issue: (1) was the alleged libel capable of a defamatory meaning? (2) as the Ds did not know the facts which caused the friends of Mrs. Cassidy to whom they published the words to draw defamatory inferences from them about the P, were they liable for those inferences? Holding: (1) Yes, it was capable of defamatory meaning that “he is a single man.” (2) Yes, D still liable for those inferences because if D publishes something reasonably capable of being read as relating directly or indirectly to the P and, to those who know 34 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 the facts about the P, capable of a defamatory meaning, D must take the consequences of the defamatory inferences reasonably drawn from his words Rule: Inquire first before publishing. It is no excuse for the D to say that he did not know of the P and did not mean to injure him. - defamation is a STRICT liability tort, not fault based Vizetelly v. Mudie’s Select Library ltd. (1990, CA) Facts: A book published contained a passage defamatory to the P. After the publishers were sued by the P, they sent out a notice requesting all copies of the book be returned so that they could take out the page containing defamation and replace it. The defendant library continued to lend copies of the original book, and were selling surplus copies. Issue: Did D commit a libel in lending and selling copies of the original copy of the book? Holding: Yes. – defence of innocent dissemination not met. Rule: 3 elements must be met for the defence of innocent dissemination: 1) that the D was innocent of any knowledge of libel contained in the work disseminated by him 2) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and 3) that when the work was disseminated by the D it was not by any negligence in his part that he did not know that it contained the libel. - onus lies on defendant to prove these 3 elements Analysis: If all 3 elements are met then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the beforementioned facts, be held not to have published it. Notes  Menear v Minguna (1996): Held that innocent dissemination is available to a printer of a book  Balabanoff v Fossani (1948): Good defence to a libel action for a vendor or distributor of a newspaper or other periodical to show that he had no knowledge of the libelous matter and that there was no extraneous facts which should have put him on guard  Ontario Libel and Slander Act: allows recovery for only actual damages if an alleged libel was published in good faith, that it took place in mistake or misapprehension of the facts, and a full and fair retraction is published immediately  Bahledia v Santa- Court held that placing material on the internet constitutes a broadcast for the purpose of legislation Defences 35 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Consent   Consent of the plaintiff can be a valid defence Very strictly/narrowly construed, only referring to specific material published, author can’t take creative license Justification (Truth)       Arguing the material you published is true Beyond balance of probability of truth Actual truth (as proved), not the defendant’s knowledge or belief Substantial truth o Fact that you got a few insignificant details wrong wont defeat the defence Risky defence, if you try to proof justification, you can increase damages, if you continue to insist facts are true you can aggravate damages Truth of the “Sting” (defamatory meaning) o The actual defamatory statement must be true, surrounding irrelevant details can be false o Have to prove that all of the stings are true Absolute privilege      These relationships are important enough, we need the right people and everything that was said has to be in the conduct of their official duties Applies to: Executive officers (high executive, PM), judicial proceedings, parliamentary proceedings, spouses Parliamentary proceedings o Only covers proceedings themselves Judicial and quasi-judicial proceedings o Applies to everyone including clients, lawyers, witnesses, judges, quasijudicial, etc. o Fair and accurate report of court proceedings (libel and slander act, s 11) Communication between spouses Qualified privilege     When do we have a privilege? What is it qualified by? Existence of some truth or duty of the publisher that justifies the communication (reciprocal), Limits of privilege exceeded Responsible Communication on matter of public interest 36 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Fair comment 1. Truth - at CL, truth is a complete defence - truth is in all circumstances an interest paramount to reputation - the falsity of defamation is presumed until dispelled by the defendant - truthfully repeating a defamatory rumour, explaining that was something you heard, will not be protected by the defence of truth. It is the truth of the rumour which you must be prepared to prove. - the truth of the sting (the defamatory meaning) is the part that the defendant must prove to be true Mudford v. Smith Facts: D posted comments stating: P had “no integrity” and you should be careful dealing with her. Saying that he had to sue her. 2 judgments found she breached contract and that she had refused to pay the judgments. Proven facts: D had sued her (but didn’t “have to.” Judgments against her (but not finding breach of K in one case; substantially true in other case). She DID pay, and at no point did she refuse to pay. Issue: Did the defence of justification apply in this case? Holding: No, because there was still some “sting” in the comments that the D couldn’t prove was true. Rule: It is often the case where some information is proved to be true and some is not. M.D. Mineralsearch v. East Kootenay Newspapers Newspaper Case Facts: A newspaper published an article about deceptive trade practices by a business. All facts were true. Issue: Was there defamation here? Holding: Yes – the newspaper did not succeed on the defence of justification. Rule: the sting of the INNUENDO that the article implied that they were a deceptive/misleading company had more of a sting than the actual offence they committed. Deceptive trade practice is a strict liability offence and their infraction was actually “very minor.” 2. Absolute Privilege  Certain types of communications are protected by an absolute privilege o “to the acts of high executive officers in the performance of their official duties” (ex: Prime minister, PM’s chief of staff, RCMP Commissioner, etc.) o statements made during the parliamentary proceedings and  only proceedings themselves, not to media (even if it is repeating what was said in house) o judicial proceedings 37 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 parliamentary proceedings only have absolute privilege if they are fair and accurate. And were not published maliciously o communications between spouses o statements made in committees of the House o A P who consents to the publication of defamatory material about themselves will be barred from recovery  This defence is narrowly construed and must be given for each publication separately No defamation action can be successfully brought in these cases, even if all the requirements of the P’s prima facie defamation case are met In these cases, freedom of speech prevails entirely over the protection of reputation o Certain types of communications are so vital that they must not be fettered by even the threat of a legal action for defamation    3. Qualified Privilege (Klar, Tort Law)  Protects defamatory material published on certain occasions o When the publisher has an interest or duty to convey the material to a person who had a reciprocal interest or duty to receive it  Existence of a duty is based on an objective test  Whether “people of ordinary intelligence and moral principles” would have considered there to have been a duty, not whether the defendant honestly believed that one existed o QP attaches to the occasion upon which the communication is made, and not to the communication itself  Clear list of types of reports covered by QP: o All about context o The occasion is what privilege attaches to o Contrast where people should be able to speak freely but not so strong to give an absolute privilege, situation where there is a compelling public interest o The defence is rarely established by media organizations  Privileged reports o Fair and accurate report of legislative and other public proceedings (libel and slander act) o Fair and accurate reports of judicial proceedings (CL) o Fair and accurate reports of public documents (CL, see note 7)  Existence of some truth or duty of the publisher that justifies the communication and an interest and duty of the receiver of information has: o Personal interest, common interest, public interest  These can cover a wide variety of interests  (ex of TUTORIAL 3: Pauline had a personal interest in protecting her reputation (classic qualified privilege) 38 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 calling the police to say you think a crime is about to be committed  medical report  if you write a letter of reference, sometimes you have to say things that aren’t complementary o Difficult to apply QP b/c of it’s wide breadth  When it is defeated (QP)  P has opportunity to show malice or excess of privilege to defeat defence  Malice (if P can prove malice, defence defeated) o Knowledge of falsity or reckless disregard ofr the truth o Dominant purpose of injuring P o Dominant purpose that improper or unrelated to/inconsistent with the duty or interest o By your conduct you have shown that you don’t care whether the information is true or not (enough for malice)  Limits of privilege exceeded (sometimes malice cannot be proved, but excess of privilege can still defeat defence) o Consider what was and how much was communicated o How much was it communicated? o To whom was it communicated? Notes  SCC refused to give a special qualified privilege to the media to report on matters of public interest o Libel and Slander Act – s. 8(1) though (gives a type of protection for newspapers who have committed libel). Says that only actual damages can be awarded if certain requirements are met by the newspaper company  Also a CL defence of QP for fair and accurate reporting of public documents. This qualified privilege applies to public records obtained under the disclosure requirements of Freedom of Information legislation. 4. Responsible Communication on a Matter of Public Interest Grant v. Torstar (2009, SCC) Facts: Grant sued the Toronto Star in defamation for an article the newspaper published about a proposed private golf course development on Grant’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that Grant was exercising political influence behind the scenes to secure government approval for the new golf course. The reporter attempted to verify the allegations in the article, including asking Grant for comment, but Grant chose not to provide a comment. 39 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Issue: Can a new defence be created that won’t unduly curb free expression and chill reporting on matters of public interest the way that the law of defamation currently does? Holding: YES! Rule: Creates new defence of responsible communication on matters of public interest. - a balanced approach to libel law properly reflects both the interests of the P and the D - this new defence is “available to anyone who publishes material of public interest in any medium.” TEST for responsible communication: 1) the publication must be on a matter of public interest; and a. enough that some segment of the community would have a genuine interest in receiving information on the subject… 2) the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances. Relevant factors (guidelines – non-exhaustive): a. the seriousness of the allegation (proportionality) b. the public importance of the matter (in many cases, the public importance of the matter may be inseperable from its urgency). c. the urgency of the matter – whether the public’s need to know required the defendant to publish when it did d. the status and reliability of the source e. whether the P’s side of the story was sought and accurately reported f. whether inclusion of the defamatory statement was justifiable (necessary to communicating on a matter of public interest). g. whether the defamatory statement’s public interest lay in the fact that it was made rather than it s truth - an exception to the “repetition rule” called reportage - if a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue, provided: o 1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability o 2) report indicates expressly or implicitly, that its truth has not been verified o 3) the report sets out both sides of the disput fairly o 4) the report provides the context in which the statements were made Analysis: First argument: grounded in principle. The existing law is inconsistent with the principle of freedom of expression as guaranteed by s. 2(b) of the Charter. It’s argued that the traditional rule has a chilling effect that unjustifiably limits reporting facts, and strikes a balance too heavily weighted in favour of protection of reputation. 40 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - getting at the truth is important – fear of being sued for libel may prevent the publication of information about matters of public interest - media reporting on matters of public interest engages the first and second rationales of the freedom of expression guarantee in the Charter - publishing matters of public interest advance the free expression rationales of democratic discourse and truth-finding Second argument: grounded in jurisprudence. Many foreign CL jurisdictions have modified the law of defamation to give more protection to the press, in recognition that the traditional rules inappropriately chill free speech. 5. Fair Comment (Linden and Klar)  Fair comment on matters of public concern or interest is protected from liability for defamation provided it is based on facts  2 main categories: 1. those matters in which the public has a legitimate interest, such as government activity, political debate, and proposals by public figures, and public affairs generally 2. works of art displayed in public such as theatrical performances, music and literature  (in a democratic and culturally vibrant society, a discussion of these matters must be unfettered)  MUST be based on FACT. They cannot be presented so that they appear to be allegations of fact  Jury decides whether the communication is fact or comment  Unless the facts upon which the comment is based are true and undistorted, the comment cannot be “fair”  Comment does NOT necessarily have to be reasonable o Unreasonable ppl are allowed to express their views too  As long as the comment represents a legitimate opinion honestly held, it will be protected  Jones v. Bennett: the defence of fair comment will fail if the “sting of the words complained of do not appear to be comment at all” Fair comment – then (Chernesky)… 1. Comment must be on a matter of public interest 2. Comment must be based on fact 3. Comment must be recognizable as comment 4. Comment is “fair”; expresses an opinion honestly held by the D (Subjective test) - fair comment can be defeated by proof of malice! FAIR COMMENT – NOW (WIC Radio)… 1. Comment must be on a matter of public interest 2. Comment must be based on fact 3. Comment must be recognizable as comment 41 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 4. Comment is “fair” = could any person honestly express that opinion on the proved facts? (objective test). WIC Radio v. Simpson (2008, SCC) Facts: Radio talk show hosted by appellant Mair, a well-known and sometimes controversial commentator on matters of public interest in BC. The target of his “editorial” was the respondent Simpson a widely known social activist. The context was a public debate over the introduction of materials dealing with homosexuality in public schools. Mair and Simpson took opposing sides in the debate about whether the purpose of this initiabive was to teach tolerance of homosexuality or to promote a homosexual lifestyle. Simpson was a leading public figure in the debate, and the TJ found that she had a public reputation as a leader of those opposed to any positive portrayal of gay lifestyle. - Whatever view one may take of Mair’s commentary, the factual basis of the controversy was indicated in the editorial and widely known to his listeners. In the absence of demonstrated malice on his part (which the trial judge concluded was not a dominant motive), his expression of opinion (FAIR COMMENT), however exaggerated, was protected by the law. - TJ foind defence of fair comment; Court of appeal overturned Issue: Is the defence of fair comment available to Radio Talk Show host? Holding: Yes. Rule: Elements of fair comment defence (Dickson J’s dissent in Chernesky) that the majority in WIC said now constitute the test for defence of fair comment: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; 4. (d) the comment must satisfy the following objective test: could any man honestly ex-press that opinion on the proved facts? (WIC changed the test for the fair comment defence to this!) 5. (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. 1. 2. 3. a. Onus is on P to prove malice on D’s part (WIC) Introductory Concepts Introduction to Negligence As opposed to trespass:  Injury can be caused indirectly  Must have ACTUAL damage  P has to establish the fault of the D  Requires recognition of a “duty” relationship (initially greatly restricted) 42 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 The Components of a Negligence Action (1) Duty of Care – A DoC is owed to persons who fall within the ambit of foreseeable risk created by the defendant’s actions. This is the first thing that a Court will consider. If they find no duty, there is no claim. (2) Standard of Care – i) What would a reasonable person have done in the circumstances (how ought the Def. to have acted)? This is the SoC. ii) Did the defendant breach that standard of care? Was the Def negligent (fall below the standard)? This is a fact-based concern. (3) Causation – Did the Def’s negligence cause the Pl. loss? (“but for” test). If the Def. is not the cause then irrespective of (1) and (2) the Def. will not be held negligent. (4) Remoteness – Def. is only liable for losses that are a foreseeable result of his/her conduct. Which of the Pl. injuries should the Def. be held liable? Which are sufficiently proximate? This is a legal policy question – to what extent is the Def. responsible? (5) Defences – Should the Pl. conduct be taken into account (contributory negligence, voluntary assumption of risk, illegality)? Limitation periods are also important. (6) Damage/Actual Loss – A Def. will not be held liable if the Pl cannot prove that they have suffered a legally recognized type of loss. Generally, monetary damages are awarded that approximate the loss suffered. Types of Liability 43 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Absolute Liability: The defendant is reliable regardless of what happened. (mostly a hypothetical construct given as the far end of the spectrum) Strict liability is usually as far as courts will go. Liability based on a particular fact situation or legal relationship. The D may not have acted intentionally or even carelessly at all but may still be liable, subject to some defences. Vicarious Liability: Basically where an agent or an employee or a subordinate of one party commits a tort, then the master, employer etc. are liable through their vicarious liability relationship. Mostly seen in an employer relationship. There are limits to it. (1) Must be an employee/employer relationship. (2)The tort must have occurred as part of their employment duties. This is often a reason why employers will often try to classify their employees as independent contractors – to limit liability. jointly liable: Each defendant is liable for the full amount (it doesn’t matter what their relative negligence is, their plaintiff can recover from each of them the full amount) Severally liable: Each defendant is liable for their share of the damages. Jointly and Severally liable: The default in Canada. Each defendant is liable for the full amount – the Plaintiff can claim the full amount from any of the defendants. The defendant who has to pay can then go after the other tortfeasors for anything in excess that was their fault that they had to pay. Dunsmore v. Deshield Facts: Dunsmore broke glasses playing football, injuring his eye; lenses were supposed to be Hardex (extra-stong) but weren’t. Descield is the optometrist who sold he glasses. Neither Deschield nor the manufacturer (Imperial) tested the glasses. Issue: Was Deschield or Imperial (the manufacturer) liable in negligence for not testing glasses to ensure they were Hardex lenses? Holding: Yes – they met all of the elements of the tort of negligence. Court held that Deschield and Imperial were Joint and Severally liable. They actually awarded Descield indemnification against Imperial. Imperial could try to sue Deschield if they wanted to get his percentage he was at fault for. Rule: goes through the whole test (see slides) – discusses what joint and several liability means. Strict Liability  “liability without fault” Blewman v. Wilkinson  gives us definition of strict liability: “…if and when an excavation which has interfered with the support of land by land causes damage by 44 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 subsidence, the landowner for the time being has a right of action against the original excavator. Liability is strict in that negligence need not be proved…” Rylands v. Fletcher - the case that gave rise to the modern idea of strict liability Facts: The D constructed a reservoir on his land, the water broke through into a mine shaft and flooded his neighbour’s land. Issue: Is the defendant liable for the damage caused to P? Holding: The elements of a cause of action Rule: 4 elements to establish the Rylands v. Fletcher tort of damage done to a neighbour’s land: 1) the D has made a non-natural use of his land - “it must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community. (Tock) 2) the D brought onto his land something which was likely to do mischief if it escaped - whether something is “likely to do mischief if it escapes” envisions at least some element of foreseeability (Windosr v. CPR) 3) the substance in question escaped; and - normal migration of the substance and intended consequence of the activity of D’s land is not sufficient (for this, would have to claim negligence or nuisance) - the harmful substance MUST have ESCAPED as a result of some sort of unintended mishap or accident 4) damage was caused to the P’s property or person as a result of the escape 5 main defences to the Rylands v Fletcher Rule: (ONUS on DEFENDANT) (existence of these defences has diluted the power of Rylands v. Fletcher and have brought it closer to negligence theory. 1) Consent of the P, especially where P benefitted - In the same sense as consent seen intentional torts and negligence - When consent is expressly given there is rarely any problem with it - Implied consent can be more difficult to handle - Where there is not benefit to the P, the court is less likely to imply consent 2) Default of the P - Akin to the defence of contributory negligence o Ex: a mine owner was denied compensation when he carelessly worked his mine under the D’s cnal, causing himself damage by the flooding o Ex: when a horse died after it reached over into the D’s property and ate from poisonous tree, the owner was refused compensation 45 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 3) Act of God - Scope has been limited to those circumstances which “no human foresight can provide against and of which human prudence is not bound to recognize the possibility” - Ex: a high wind is NOT an act of God unless it is of “such exceptional strength that no one could be reasonably expected to anticipate or provide against it” 4) Delierate Act of Third Person - The D will be exempted from strict liability if they can prove that the escape in question was caused by a third person’s conscious act of volition (i.e. it must have been done deliberately) - If it is forseeable that a third party person may interfere, even negligently, strict liability may still be available 5) Legislative Authority - Where an activity is authorized by legislation, no strict liability is imposed unless the D is found to have been “negligent” - Courts cautious to use this defence too broadly in order t protect the principle of strict liability - Onus of proof is on the D to demonstrate that their otherwise tortious conduct was authorized by the legislation and that the damage caused was inevitable Abraham, “Rylands v. Fletcher: Tort Law’s Conscience” Smith v. Inco says that “natural” or “non-natural” should be looked at in context - if looking at the use of the land, must ask: what kind of land is it? Is it an industrial town? Non-industrial town? - Refinement of nickel was not a “non-natural” use of the land b/c the refinery was located in an industrialized part of the city and was operated in a manner that did not create risks beyond those incidental to most industrialized operation.s Tock v. St. John’s Metro  P brought a cause of action based on Rylands v. Fletcher due to flooding of their basement that was caused by a storm sewer maintained by D that overflowed during a heavy rainstorm - this basis of P’s action was rejected in court - the use of a sewage system is NOT a non-natural use becaue it is ordinary and proper for the general benefit of the community - keep in mind that non-natural use is contextual – Tock takes this into consideration here Vicarious Liability At the end of ANY TORT analysis, whether intentional or negligence, ask if there is a principal (i.e. employer) who could be held vicariously liable - Not an independent cause of action: employee must commit tort and be found liable for there to even be a VL claim against an employer 46 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 One of the most important applications of strict liability Rationale for VL: the party that created the risk of harm should be held responsible for the loss (because they created the situation of potentially forseeable harm), and NOT the innocent party - Policy reasons for Vicarious Liability: a. The employer put the risk out into the community, so they should be responsible for the harm they put out there. b. Employers usually in a better position to compensate c. VL acts as a deterrent to unsafe practices – employers are going to be more active in training/supervising their employees in ensuring these types of activities don’t happen again d. It best achieves economic efficiency – employer can get insurance and recover loss NOTE: an employee “loaned” to another employer may excuse the original employer from V.L. - A DUTY delegated to an independent contractor likely is the responsibility of the independent contractor - BUT some duties cannot be delegated, eg: a school board owed a “nondelegable” duty of care to schoolchildren despite hiring an independent contractor to teach swimming lessons (Woodland v. Essex County) Woodland v. Essex County:  When are duties non-delegable? 1. Inherently dangerous activities; or, 2. Generally, where there is a duty with three main characteristics: a) Antecedent relationship between D and claimant b) Positive or affirmative duty to protect c) Duty is personal to Defendant (i.e. work may be delegable, but duty is not) Cases involving non-delegable duties generally include the following: o Claimant is vulnerable or dependent; o Defendant usually has element of control over claimant; o Claimant has no control over how duties are performed; o The delegated function is integral to the positive duty upon the Defendant; o Third party has been negligent not in some collateral respect but in “the performance of the very function” that was assumed and delegated by Def. - 67122 Ontario Ltd. V. Sagaz Facts: The original supplier of Canadian Tire’s synthetic car seat covers suffered substantial losses when it was replaced by competitor Sagaz because a bribe was paid by Sagaz’s consultant to the head of Canadian Tire’s automotive division. Issue: Is Sagaz, the competitive supplier, vicariously liable for the bribery scheme perpetrated by its consultant? 47 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Holding: No – the consultant was not an employee of the supplier but an independent contractor. Rule: A relationship between an employer and an independent contractor does not typically give rise to a claim in CL. - policy reason for this: an employer does not have the same control over an IC as over an employee to reduce accidents and intentional wrongs by efficient organization and supervision. In order to succeed in a claim for VL, 2 elements must be met: 1. the worker must be an employee of the employer to find the employer vicariously liable 2. the tortious conduct has to be committed by the employee in the course of employment SCC looks @ 2 main policy considerations for finding VL: 1. an employer put the risk out into the community – they should be responsible for the harm they put out there. Employer also likely better able to compensate victim than their employer. 2. Deterrence – employers are in a better position to ensure that similar incidents do not happen in the future (training etc.) Analysis: - in this case they said: just because a K says an employee is an independent contractor doesn’t mean a court will follow this – they will look at the NATURE OF THE RELATIONSHIP - in this case, Sagaz didn’t have enough CONTROL over their contractor for them to be VL - who has the opportunity to make profit? - Who has control over the work being done?Who controls how the work is done? - The ownership of tools/equipment - Does the tortfeasor have the ability to hire helpers? - Who has the risk? - ….etc. Bazley v. Curry Facts: The Children’s Foundation provides homes for emptionally troubled children aged 6 – 12. They provide substitute parents for the children that practice “total intervention” in all aspects of the lives of the children it cared for. The organization authorized it’s employees to act as parent figures and were to do everything a parent would do, from general supervision to intimate duties like bathing and tucking in at night. Issue: Is the Children’s Foundation vicariously liable for their employee’s sexual abuse of children in his care? Holding: Yes Rule: SALMOND TEST: employers are vicariously liable for: 1) employee acts authorized by the employer; or 48 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 2) unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act (the SCC said that employer can be VL for intentional torts under 1) [but unlikely to authorize intentional torts] and 2)) 1) are there precedents that say that this type of relationship forms VL? (if yes, you could stop here and say YES, VL) 2) Is there a sufficient connection between the act that was committed and the type of work? - A) look for: a connection between the creation or enhancement of risk and the wrong that accrues - B) Time, place, foreseeability all play a role (imposing costs unrelated to risk turn the employer into an “involuntary insurer” - (This is where we look @ Bazley factors to determine sufficient connection between employment and harm). (non-exhaustive list of things the court will look at: BAZLEY FACTORS: a. Did the employer give the employee an opportunity to abuse their power? b. To what extent did the wrongful act further the employer’s aims? c. To what extent was the wrongful act related to “friction, confrontation or intimacy” inherent to the employer’s enterprise? d. What was the extent of the power conferred on the employee in relation to the victim? e. How vulnerable are potential victims to the wrongful exercise of an employee’s power? Analysis: VL is a form of “strict” or “no-fault” liability b/c it is imposed in the absence of fault of the employer - the more an enterprise requires the exercise of power or authority for its successful operation, the more materially likely it is that an abuse of that poer relationship can be fairly ascribed to the employer - special attention should be paid to the existence of a power or dependency relationship, which often creates a considerable risk of wrongdoing. Jacobi v. Griffiths Facts: Griffiths was the program director of a club with the objective “to provide behaviour guidance and to promote the health, social, educational, vocational and character development of boys and girls.” Griffiths developed friendships with the children at the club, but this developed into sexually assaulting one male and one female child. Issue: Is the club vicariously liable for Griffith’s sexual assaults that occurred with the children who participated in the club? Holding: No (court applied the test from Bazley, court split 4-3) 49 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Rule: there must be a STRONG LINK between the enterprise and the opportunity for abuse in order to impose vicarious liability. Analysis: In Bazley, there was a much more intimate relationship than there was here. McLachlin’s DISSENT: (4-3 judgment) found the Club to be VL b/c the Club introduced the offender to the community’s children and gave him special responsibilities and powers over those children who were most vulnerable – they created an sustained the risk that materialized. They would find that compensation for the harm that followed should fairly be viewed as a cost of the club’s operations. The policy rationales underpinning vl: compensation and deterrence, would support this conclusion Negligence – Duty of Care - the “duty of care” question does not usually arise in most tort cases b/c of precedent (but more work if it’s a NOVEL situation) EXAMPLES OF PRECEDENT DUTIES: - motorist owes duty to others on the road - physician owes a duty to patients - manufacturer owes a duty to consumers (Donoghue v. Stevenson) - a store or mall has a duty to invitees particular duties of care: - rescuers - affirmative/positive action - duty to warn - duty to obtain informed consent Donoghue v. Stevenson - moved the law of negligence from a “closed list” of relationships that allowed liability to an “open-ended and general concept of a relationship of proximity” that could be applied to new situations  allowed expansion and development of the law of negligence Donoghue v. Stevenson The neighbor principle Facts: Snail in bottle of ginger beer – bottle was opaque & sealed so that you couldn’t see what is inside. Issue: Does a manufacturer owe a duty of care to the ultimate purchaser/consumer to take reasonable care that the article is free from defect likely to cause injury to health? Holding: Yes – a duty of care is found by applying the neighbor principle Rule: NEIGHBOURHOOD PRINCIPLE: “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.” Anlaysis: Who, in law, is a neighbor?  those who are closely and directly affected by one’s actions who ought reasonably to have them in contemplation as being so affected when their mind is directed to performing those actions (misfeasance) or omissions 50 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 (nonfeasance)…that are reasonable foreseeable to cause injury (foreseeability)…to persons who are closely and directly affected by my act that I ought to reasonably have them in contemplation as being so affected (remoteness). Cooper v. Hobart Facts: Appellant (class of over 3,000 investors) brought an action against the registrar of mortgage brokers claiming that they breached the duty of care that was owed to the appellant and other investors. Appellant asserted that the registrar was aware of the broker’s serious violations of the BC Mortgage Brokers Act and should have suspended his liscence earlier and notified investors that he was under investigation. Issue: Does a statutory regulator owe a private law duty of care to members of the investing public for (alleged) negligence in failing to properly oversee the conduct of an investment company liscenced by the regulator? Holding: No, the registrar did not owe a duty of care to its investors. Rule: SCC in Cooper v Hobart modified the Anns test to the following test for determining whether there is a DoC: 1) PRECEDENT: Do the facts of the case bring it within an established category of relationship where a duty of care has been recognized or does it fit in a closely analogous category? If YES = prima facie duty exists (Childs v. Desormeaux). IF NO, ask: 2) Do the circumstances disclose (burden on P): (i) reasonably foreseeable harm; (ii) sufficient proximity between a P and D (including “broad” policy factors)? If YES, a prima facie duty exists - Fraser v. Westminer gives us considerations for establishing “proximity”: - relationship btwn the parties - physical proximity (nearness is space) - assumed or imposed obligations - close causal connetion btwn act/omission and harm suffered 3) If a prima facie doC exists, can the D show any “residual” or “remaining” policy factors that nonetheless justify denying liability? If YES, no duty of care will be held to exist. (burden on D) - “serious,” “overriding,” “convincing,” “compelling” policy reasons that are “more than speculative” ; a “real potential for negative consequences” - note, once a prima facie DoC is established, it’s RARE for the court to NEGATE that DoC due to policy reasons – but regardless, still have to go thru this step Anlaysis: Even if the loss was forseeable, there was no proximity. The registrar is a statutory creation and therefore, there must be a DoC explicitly created in the statute. Does not pass 1st stage of A/C test here. 51 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - - agency set up to benefit public as a whole – if they’re always going to be looking over their shoulders to protect individuals, it won’t be protecting the public as a whole. Keep in mind “GROSS NEGLIGENCE” often found in statutory provisions limiting liability R. v. Imperial Tobacco Canada DoC in a special relationship Facts: Imperial alleged that Canada negligently misrepresented the health attributes of low-tar cigarettes to consumers and that they made negligent misrepresentations to the tobacco companies. The facts pleaded to not bring either claim within a settled category of negligent misrepresentation. - Although HCC was a regulator, but the claim went beyond that – this was essentially a commercial relationship. Issue: Does Imperial Tobaccos third-party claim against Canada pass the stage 1 analysis of the Anns/Cooper analysis, giving rise to a prima facie duty of care? Holding: Yes, they passed this stage (ended up failing @ stage 2) Rule: A “special relationship” between the parties will likely satisfy the foreseeability and proximity aspects of Anns/Cooper.  with a public authority involved, duties may arise (a) via statute or (b) via specific interactions or (c) both  factors to consider in establishing a “special relationship”: - direct financial interest by defendant; - professional skill or knowledge of defendant; - advice provided o in the course of business; o deliberately; and/or o in response to a specific request  foreseeability does not include the precise means (or “vehicle” by which liability may arise – only that harm of some sort could result from the negligent act or omission. Anlaysis: Keep Kamloops case in mind for how this applies for public authorities - btwn private parties, legislative scheme probably not important, but in schemes with public bodies, looking @ legislation is important - met reasonable foreseeability aspect b/c it’s R.f. that if you give bad/negligent advice to the tobacco companies, they can be expected to follow it Summary of Anns/Cooper Jurisprudence Duty of Affirmative Action – Nonfeasance and Misfeasance Horsley et al v. MacLaren et al. – boater falls overboard Facts: boater falls overboard. Issue: Did boater have a duty to rescue Horsley? Holding: Yes – an exception to the general rule that there is no duty to rescue at CL: where there is an “invitor/invitiee” relationship. 52 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Rule: General rule is that there is no duty to take positive action in aid of another no matter how helpless or perilous his position is. Klar suggests 5 exceptions, where “rescue” or “affirmative action” cases generally fall into these categories: 1) Relationships of economic benefit (Jordan House) 2) Relationships of control or supervision; (discussed by Klar in casebook) 3) Creators of dangerous situations (Oke v. Weide Transport) 4) Reliance relationships; and/or Zelenko v. Gimbel Bros 5) Statutory duties (there may be some overlap amongst these categories)  note that even if initially no duty to rescue, once you begin a rescue, you must take reasonable care in performance of that rescue 1) Jordan House Ltd. V. Menow and Honsberger – positive duty imposed on the bar to assist drunk patron getting home safely Facts: Menow went to a local hotel, got drunk, got ejected from a bar right by a Highway, and got hit by a car. The driver who hit him was sued in negligence for hitting him, but the driver goes after ordan House (the bar that ejected him) b/c they overserved him and pushed him out into the night. Issue: Did Jordan House owe Menow a DoC? Holding: Yes! Rule: In a commercial relationship where the party is profiting from the person who gets injured, there can be found a positive duty of care.  Laskin J said that JH had a positive duty to take charge of Menow and make sure he got home safely. (POSITIVE DUTY)  Ritchie J said JH had a duty to stop serving him. His reason was a more traditional duty to refrain FROM HARM. (NEGATIVE DUTY) Anlaysis: Factors looked at in this case: Menow was frequently known to come to the bar and get too drunk. JH also had the economic benefit to over serve him b/c they make money from serving him. The tavern owner specifically told his staff not to serve Menow alcohol unless he was with someone responsible (they over-served him anyway).  apportionment of damages here was split equally btwn Jordan House, driver and Menow (contributory negligence). Childs v. Desormeaux social hosts - main difference with social hosts = they are not making a profit from their drunk guests - NO real test for social hosts – but look at indicia (would most likely hinge on a standard of care question) Facts: Childs was hosting a BYOB party. Desormeaux, impaired, left the party and drove away. He got in an accident that seriously injured Childs. 53 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Issue: Di social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by intoxicated guests? Holding: Does hosting a party where alcohol is served (without more) create a positive DoC on the host to members of the public who may be affected by the guest’s conduct? Rule: No  no reliance on host to monitor. Social host neither undertakes nor is expected to monitor the conduct of guests on behalf of the public.  IF ON EXAM: discuss indicia. Could argue that a host who continues to serve alcohol to a visibly inebriated person knowing that they will be driving home has become implicated in the creation or enhancement of a risk sufficient to give rise to a prima facie duty of care” 3 categories where a positive duty to prevent drinking & driving imposed: 1) intentionally attracts and invites third parties to an inherent and obvious risk that he or she created or controls; 2) Paternalistic relationship (parent-child, teacher-student) 3) Ds exercise a public function or commercial enterprise that includes implied public responsibility  note: 3 elements/concerns: - what role did the D have in creation or control of risk? - What impact would a DoC have on autonomy of person affected by a positive duty to prevent drinking and driving? o Right of ppl to engage in risky activities o Permits third parties not to get involved o Only where there is a “special relationship” is there a positive duty to get involved Anlaysis: Since this is a NOVEL DoC, they went thru the Cooper v. Hobart test: 1) Prima facie DoC? Injury was not reasonably foreseeable. Lack of evidence that hosts knew of Desormeaux’s intoxication. 2) Proximity?  nonfeasance vs. malfeasance. - facilitating consumption of alcohol does not in itself create risk - SCC says: real argument is – having organized the party, hosts permitted their guest to drink and then drive. 2) Relationships of Control or Supervision (Klar, “Tort Law”) (another situation where courts may impose an “affirmative action” DoC) - voluntary assumption of duty of positive action - duty to prevent others from harming them. Ex: o parent and child o teacher and pupil o employer and employee o landlord and tenant o hospital and patient o prison and inmate o (in all of these scenarios, “the freedom of action of the subservient party is limited by the dominant party” 54 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 EX: Seatbelts - The Traffic Safety Act o If a person under 16 in vehicle, there is a statutory duty of supervision and control of the driver to ensure that the person under 16 is wearing a seatbelt.  For failing to ensure minor wearing a seatbelt, the driver may face  Statutory penalties under the Traffic Safety Act  Liability for injuries suffered by that minor  Note that statute provides guidance for what society should do in assessing whether or not there should be a DoC 3) Oke v. Weide Transport – Creator of dangerous situation Facts: D accidentally struck a road sign – leaving pole exposed, and did not notify anyone. Next day another driver was impaled. MBCA said no liability for lack of foreseeability. Issue: Was the driver under a duty (statutory or otherwise) to the deceased or to highway users generally to do anything about the broken sigh post? Holding: No (dissent discusses), but case wasd decided on the issue of foreseeability and remoteness. Rule: If you cause a danger, even through no fault of your own, you have a duty to take reasonable steps to remove that danger where it is reasonably foreseeable that a person may be harmed as a result. 4) Zelenko v. Gimbel Bros.- Reliance Relationships Facts: P’s spouse became sick in the D’s store. The D undertook to administer first aid and kept the spouse for 6 hours in the store’s first aid room with no further medical attention. Issue: Did D owe P a DoC? Holding: YES – the store created a duty through a positive action. If they would have just left her there and not tried to help/interject, they would not have had a DoC. Rule: Where a person takes on the responsibility to rescue/help/act, that person now has a duty to do that act. By helping/interjecting, they prevented others from helping her. They created RELIANCE that they would take care of her. Anlaysis: General rule is that the D would not have been under a legal duty to assist a sick person, but the fact that he began helping her created a reliance relationship. Mercer v. SE&C Rwy Co. – ex. of a reliance relationship Facts: D had made a practice of eeping a wicket gate locked to pedestrians when a train was passing. Gate was left unlocked due to “carelessness” (i.e. negligence) of the D’s employee. P was injured. Issue: Did D create a reliance relationship that caused him to have a DoC? Holding: Yes. Rule: “If a self-imposed duty is ordinarily performed, those who knew of it will draw an inference (i.e. will act in reliance) if on a given occasion it is not performed.” 55 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896  to prevent that inference of reliance, you would need to give notice R. v Nord-Deutsche et al. Facts: The Crown was under no duty to put up range lights, but they had always had them up, but Crown employees negligently permitted a set of the lights to become displaced. The lights created a reliance among ship pilots to navigate. Issue: If an accident happens, would the Crown be liable? Holding: Yes Rule: Although there was no statutory duty to maintain those lights, there was a “breach of duty on the part of the servants of the Crown responsible for the care and maintenance of the range lights…upon which lights mariners were entitled to place reliance.” Analysis: Like the Good Samaritan discussion under rescuers…normally don’t have a duty to rescue, but if you do go and help someone and mess it up, you could be held liable. But if you never even tried to help in the first place, you can’t be held liable. Rescuers and Psychiatric Harm Hay v. Young Facts: P was getting off a bus. On the other side of the bus an accident happened, killing a cyclist. She did not see the accident, but she heard it. After the cyclist’s body was removed, she say blood on the road which she said led to a nervous shock which caused her to have a stillborn child. Issue: She sued cyclist’s estate for negligence. Did the cyclist owe her a duty of care? Holding: No. this was not a reasonable effect that could have been foreseen. Rule: Nervous shock of a third party walking by and seeing blood was not reasonably forseeable to a reasonable person. Anlaysis: Note that this is an objective test – not subjective to the claimant. - therefore the question to ask for reasonable foreseeability is: could a reasonable hypothetical observer have reasonably foreseen that anyone “placed as P was” could be affected in the manner in which she was? …answer here was no. Reasonable Foreseeability (re DoC stage vs. Remoteness stage)  Note that this concept appears both under Duty and under Remoteness ◦ The line is not clear, but:  At the “Duty” stage, it’s about whether the relationship between the parties is sufficiently close  At the “Remoteness” stage, is about whether the injury is foreseeable by the reasonable person  Of course you only consider at the “Duty” stage for a novel claim  Does this mean that once a precedent is established the remoteness inquiry is irrelevant – that R.F. is assumed? 56 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896  In Mustapha, as far as mental injury is concerned, the person of “ordinary fortitude” is considered at both stages Mustapha v. Culligan of Canada Ltd. Facts: Shop owner sees a dead fly in his Culligan water cooler bottle before he was about to use it. P claimed that as a result, he was depressed and incapable of working. Issue: Did Culligan owe Mustapha a DoC? Holding: Yes.  established category of a manufacturer owing the consumer a DoC (Donoghue) Rule: Test for establishing a Duty in regards to psychiatric harm: Is it reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant’s conduct? (objective test) - if yes, a duty is established Anlaysis: This case establishes that a duty of care can be owed with respect to someone’s psychiatric harm. - Culligan won this case on other grounds even though a DoC was established to Mustapha - for Psychiatric Harm, establishing causation and quantifying damages can be difficult - all Mustapha had to do was establish that a reasonable person could have experienced SOME kind of psychiatric harm, then the fact that he was extra sensitive is fine (thin skull rule  take victim as you find them) to establish a DoC. Reasonable foreseeability = a threshold test  Mustapha lost @ the remoteness step: He failed to show that it was reasonably foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. Horsley v. MacLaren Facts: McLaren was driver and owner of a boat. Matthews fell overboard. MacLaren attempted to maneuver the boat to matthew’s position, who appeared unconscious. After Matthews fell in, Horsely jumped in the water to attempt to rescue him. Matthews’ body not recovered. Horsley pulled from water but could not be resuscitated. Water was extremely cold; Horsley died of cardiac failure resulting from exposure to cold water. Boat operators testified that MacLaren’s maneuvering of the boat after Matthews fell was not up to the standard of a properly-trained boat captain. Issue: Does the master of a boat owe a duty to come to the assistance of a passenger who falls overboard, even though this occurred through no fault of the master? Holding: Yes, they must take reasonable steps, but the court still held judgment in favour of the D MacLaren because he was not negligent – he simply made an error in judgment. - McLaren did not cause the fall into the water, and Matthews would have died immediately upon impact with water. Thus, though the duty would have existed if 57 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Matthews had been alive, Matthews almost certainly immediate death means MacLaren’s negligence in the rescue was not the cause of Matthews’ death. Rule: ESTABLISHED DUTY OF CARE: where D affirmatively undertakes a rescue operation, he has assumed a duty to act. ESTABLISHED DUTY OF CARE: Where there is a special relationship between D and P, there is a special duty to aid and to rescue. (special relationship here = invitor/invitee relationship).  there is NO general duty to rescue a person who is in danger through no fault of D - BUT where D causes a situation of danger requiring another’s rescue, D has an obligation to perform the rescue Anlaysis:  Moddejonge v. Huron County  As a result of the negligence of a school, 2 students get into difficult swimming. A third student attempts to rescue them, but dies in her attempt. Her family sues school for negligence in creating the need for rescue in the first place (negligent in their supervision of the swimmers creating a situation of peril that induced the girl to attempt to rescue them).  although the general rule is “there is no general duty to assist anyone in peril” there are 5 categories of exceptions where someone might have a positive duty of care to rescue – there was a special relationship here.  but Moddejonge’s family failed in their negligence claim to the school, because her efforts constituted a rash and futile gesture (wehre there was no chance of the rescue succeeding and the risk to the rescuer was very high) Corothers et al. v. Slobidan et al. (1975, SCC) Facts: Poupard was driving on the wrong side of the road and causes a collision – he’s killed in the accident. Corothers attempts to assist the injured and leaves the accident scene to flag down help. Slobidan, driving below the speed limit and with his lights on low beam, sees Corothers and turns towards the ditch (thinking there’s an accident ahead). Slobidan didn’t apply the brakes properly and the trailer jack-knifed, injuring Corothers. Issue: Did Poupard and/or Slobidan owe Corothers a DoC? Holding: Poupard = yes! Mrs. Corothers acts in attempting to flag down approaching traffic were perfectly normal reactions to the cry of distress and was a “reasonably foreseeable consequence of Poupard’s negligence (for driving on the wrong side of the road) that was the cause of Corothers’ injury.” Slobidon = No! “faced with a gesticulating woman on the side of the highway…he was acting in a moment of imminent emergency” so that “his error of judgment was not actionable negligence. [like MacLaren’s rescue attempt in Horsley v. MacLaren!!] Rule: A rescuer may be able to claim if injured in the course of rescuing if the person they are rescuing was negligent and it was reasonably foreseeable that someone would come to their aid to rescue them.  you can remain a “rescuer” even if you leave the scene of an accident – the original tortfeasor may still owe you a DoC and remain liable 58 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - (there are definitely scenarios where this link si broken, but it was not here, since Corothers was attempting to get help for Poupard._ Duty to Warn, Intermediaries, and Duty to Obtain Informed Consent - - Manufacturers of goods have a positive “duty to warn” b/c: Consumers are in a position of reliance on manufacturers A manufacturer can be in breach under any (or all of) these categories o Its duty to warn consumers of dangers associated with its product o Its duty to take reasonable care in design; and/or o Its duty to take reasonable care in manufacture (not worried about self-evident dangers like that a knife may cut, that one may fall while skating etc.) concern is dangers that the consumer has no way of discovering  the duty is continuing one while the consumer uses the product physicians have a duty to warn of the dangers of medications (they are “learned intermediaries”) AND a positive duty to their patients to warn of the risks of medical procedures Duty to Obtain Informed Consent Reibl v. Hughes Facts: The P underwent surgery performed by the D. As a result of the surgery the P suffered a stroke leaving him paralyzed and impotent. He sued for battery and negligence, claiming lack of informed consent. That is, the doc did not properly inform the P of the risks involved in undergoing this type of surgery. On the side battery issue, found that your consent remains valid and therefore there is no battery, HOWEVER, failure to disclose risks does not invalidate consent, but doctor may still be held negligent.  this particular procedure had around a 10% morbidity rate at that time  there was no immediate need for the surgery Issue: Was the doctor negligent in not telling the patient of the risks of the surgery? Holding: Yes – a reasonable person (on a balance of probabilities) would not have undergone this operation had they been warned of the full risks. Rule: A surgeon has a duty to the patient to disclose all “material risks attending” the recommended surgery. The more material the risk is, the greater the duty to disclose. Generally, a risk that is a “mere possibility” need not be disclosed. What must be disclosed under the surgeon’s duty will differ from case to case.  Doctor also has a duty to disclose non-material risks when they know or ought to know it would be of particular concern to P Anlaysis: Tort of battery issue – in cases of “duty to disclose” – better to go for negligence rather than battery b/c consent can quash batter claim but not negligence claim. 59 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Duty to Warn: Learned Intermediaries Hollis v. Dow Corning Corp. (1995, SCC) Facts: Hollis had received breast implants – one ruptured while she was taking a baking course that required rigorous upper-body movement. She was not warned by him of the risks of post-surgical complications or of the possibility that the implants might rupture inside her body. Was Dow liable to Ms. Hollis for failing to warn D. Birch adequately of the risk of a post-surgical implant rupture? Issue: Did Dow have a duty to warn its ultimate consumers of possible defects? Holding: Yes – as early as 1979, Dow was aware that implant ruptures could cause adverse reactions in the body arising from loose gel. Rule: General rule: the duty to warn is owed directly by the manufacturer to the ultimate consumer. BUT in exceptional circumstances, a manufacturer may satisfy its informational duty to the consumer by providing a warning to a “learned intermediary.” Anlaysis: Learned intermediary rule came about through the tripartite informational relationship btwn drug manufacturers/doctors/patients. Application of learned intermediary rule here: 1) Did Dow have a duty to warn Ms. Hollis directly, or could it satisfy its duty to warn her by warning a “learned intermediary (i.e. Dr. Birch)? 2) Assuming that Dow could properly discharge its duty to Ms. Hollis by warning Dr. Birch, did Dow adequately warn Dr. Birch of the risk of post-surgical rupture in light of its state of knowledge at that time? Analysis: Buchan v. Ortho Pharmaceutical: The learned intermediary rule does not apply in the case of oral contraceptives.  the manufacturers have an actual duty to warn their consumers due to the substantial risks in the medication and the fact that the physicians don’t really have an ongoing relationship with the patient in terms of this medication. Intermediate Examination Ives v. Clare Bros Ltd. et al. Facts: P bought a gas furnace from D. The furnace was defective – on 3 separate occasions service people working for the installer failed to discover or remedy the defect. P suffered carbon monoxide poisoning. Issue: Did intermediate examination absolve the manufacturer entirely of liability? Holding: No – the manufacturer and installer were joint and severally liable. Rule: RARE to find courts holding the intermediary liable but not the manufacturer for a defective product. Smith v. Inglis (1978) Facts: Smith was electrocuted by touching a stove and the fridge because of two reasons: 1) defect in manufacture of fridge; and 2) lack of third prong on the fridge’s 60 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 plug. Someone had cut the third prong off prior to Smith purchasing the fridge. The manufacturer kew or ought to have known that it was common practice for someone to cut off the third prong. The P was found to be contributorily negligent – he had experience with such matters and should have checked the plug upon purchase or upon installation. Issue: Who owed Smith a duty of care here? Holding: The manufacturer, Inglis. The repairer and the manufacturer were not held negligent – Smith didn’t try to sue them, so their portion of their negligence was imputed on Smith. Smith only sued Inglis, and the court said that since it was not possible to establish degree of fault, they apportioned it equally btwn. Smith & Inglis. Rule: In a case where there are intermediaries, P should sue everyone. Liability was apportioned 50/50 here – Smith was held contributorily negligent. Duty of Care, Economic Loss and Concurrent Liability o Pure Economic Loss = financial loss without any corresponding injury, death or property damage (ex: loss of investment, loss of profits, financial penalty) o PEL claims are found in different categories o Different policy considerations for different categories o A policy argument that can be made for all pure economic loss categories  courts don’t want to step in when the parties could have contracted for something. To decide if this could be a claim that falls into the precedent pure economic loss category, need to see if it fits into one of these 5 categories or PEL: 1) Negligent misrepresentation 2) Negligent performance of a service 3) Defective products or structures 4) Relational losses 5) Public authority liability  If doesn’t fall into one of thee 5 categories, or doesn’t meet the test, then move on to the Anns/Cooper analysis to see if a duty is found. BUT NOTE: the textbook authors say that in many cases, the courts will prefer not to find a duty owed, because they would prefer the contractual allocation of risk (i.e. rather than create a new duty, it falls upon the parties to contractually control their risk). 1) NEGLIGENT MISREPRESENTATION o Different from fraudulent misrepresentation and innocent misrepresentation o Prior to Hedley Byrne misrepresentation claims had to be founded in contract o Hercules Management remains the leading case on neg. misrepresentation o While courts don’t always use the 5-part test in Hercules Management, the key elements for a duty of care in neg. misrep. Cases comes down to: 61 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 o Reasonable foreseeability; and o Reasonable reliance R. v. Imperial Tobacco of Canada – Policy reasons that would negate a DoC Facts: Same facts as above – this excerpt shows that Imperial Tobacco’s claim against Canada FAILS at the “stage-two” policy consideration stage. (…i.e. #3 in Anns/Cooper test). The defendant (i.e. CANADA) proved that there were serious policy concerns that would warrant the finding that no duty exists. Issue: Were there significant policy considerations that warranted finding that Canada did not owe a duty to Imperial Tobacco not to make negligent misrepresentations? Holding: Yes! Rare for Ds to successfully prove this, but Canada did here. Rule: claims for negligent misrepresentation against a government agency may be struck at the second stage of the Anns/Cooper analysis if they are matters of government policy. - what is government policy? “true” or “core” policy, in the sense of a course or principle of action that the government adopted Anlaysis: 4 policy considerations that Canada relied on: (1) that the alleged misrepresentations were policy decisions of the government; (2) that recognizing a duty of care would give rise to indeterminate liability to an indeterminate class; (3) that recognizing a DoC would create an unintended insurance scheme; and (4) that allowing Imperial’s claim would transfer responsibility for tobacco products to the govt from the manufacturer, and the manufacturer “is best positioned to address liability for economic loss.” IS THERE A DUTY TO ANYONE? Hedley Byrne v. Heller & Partners Facts: P wanted to know if it should lend $ to a specific individual. He asked his bank if the 3rd party’s credit was good – they passed question onto another bank. This bank sent letter back to P’s bank saying 3rd party was a good risk. P invested $ into it and lost it. P sued the bank that did the check and made the statement that they wer good/ The letter disclaimed all responsibility for the advice. Issue: Was the bank that made the “misstatement” liable? Holding: The disclaimer was valid so no liability. BUT the court said that had there not been a disclaimer, then the bank would have been liable for PURE ECONOMIC LOSS. Rule: negligent words must be treated differently from negligent acts = ESTABLISHED DUTY OF CARE: a duty can be imposed for negligent advice  this was the case that eliminated the restriction against recovery for damage caused by negligent words to contract law Queen v. Cognos Facts: Person was being recruited for a position in Ottawa. He went to the interview to oversee a special project. He was told by the recruiter that there was funding in place 62 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 for at least 2 years + it had been approved by the company. Relying on this advice he quit his job and moved to Ottawa. However, after 2 months he found out that the funding was not there and he got transferred and later let go. He sued in tort for negligent misrepresentation. Issue: Did the interviewer owe the interviewee a duty of care not to misrepresent the facts? Holding: yes! Reasonable reliance was foreseeale and there was a close relationship. “actual reliance is a necessary element of an action in negligent misrepresentation and its absence will mean that the P cannot succeed in holding the D liable for his or her losses” Rule: Duty exists on these facts (elements for the “proximity” step): 6) It was reasonably foreseeable that the P would rely on his interviewer’s statements 7) Such reliance would be reasonable Anlaysis: This case accepted Hedley Byrne in Canada TO WHOM AND FOR WHAT LOSS DOES THE DUTY EXTEND? Hercules Management Ltd. v. Ernst & Young Facts: Auditor prepares report for shareholders. Individuals who are shareholders rely to their financial detriment on the report and sue auditor. The auditor clearly owed a duty of care to the company that paid for the report. Issue: Does the D owe a duty of care to shareholders? Holding: No, because one cannot sue someone for negligent misrepresentation for a purpose that the statement was not intended to be used for.  Court held that E&Y did actually owe shareholders a prima facie duty of care, but LOST at the policy stage – courts are very wary of indeterminate liability – audited financial statements may be used by many different persons (customers, creditors, shareholders, takeover bidders). Losses attributable to an auditor’s negligence could be out of proportion to the level of fault. Rule: SCC reworked duty issue to conform to the Anns/Cooper test: 1) …didn’t talk about, there is no precedent for this 1) Reasonably Foreseeable: that special relationship + reasonable reliance would result. If so, a prima facie duty is established o Factors to consider for “special relationship” o Usual question of “should the D ought to have reasonably foreseen that P would rely on statements? o Factors to consider for “reasonable reliance” (Professor Feldhusen’s list of indicia of reasonable reliance): o The D had a direct or indirect financial interest in the transaction in respect of which the representation was made o The D was a professional or someone who possessed special skill, judgment or knowledge 63 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 o The advice or information was provided in the course of the D’s business o The information or advice was given deliberately, and not on a social occasion o The information or advice was given in response to a specific enquiry or request 2) Policy considerations: Indeterminate liability, increased litigation, social costs, the true purpose of the misrepresentation Anlaysis: “proximity” in cases of negligent misrepresentation arises through reliance by the P on the D’s words. These 2 elements must be met: 1) D ought reasonably to foresee that the P will rely on his or her representation; and 2) reliance by the P would, in the particular circumstances of the case, be reasonable  this case narrows the category of cases where recovery for economic loss resulting from a negligent statement will be allowed to those in a known class who use the info for a known purpose RELATIONSHIP BTWN CONTRACTUAL TERMS AND NEGLIGENT MISREPRESENTATION General rule (from Rafuse): “Where a given wrong prima facie supports an action in contract and in tort, the party may sue in either or both, except where the K indicates that the parties intended to limit or negative the right to sue in tort.” o Note: parties can always contract out of common-law duties o This (says the court) preserves a sphere of individual liberty and commercial flexibility. BG Checo v. BC Hydro Facts: Case dealth with concurrent liability and overlap of tort/contract. Tenders were called for to erect transmission towers. P was one of the bidders, and in the pre-tender package it was represented to bidders that the right of way would be cleared by a 3 rd party. P entered into K, and K too said that the right of way would be cleared. The right of way was not properly cleared = they lost $. So, they sued the company for both contract and negligent misrepresentation. Issue: Could Checo still sue in tort when the misrepresentation was included in a contract? Holding: Rule: Majority of the court held that concurrent liability (P can choose either cause of action) if: 1) Where contract stipulates more stringent obligation than the general law of tort would impose o P would want to sue in contract b/c they would be able to recover more damages under the higher standard, but they are not precluded from suing in tort. 2) Where K stipulates a lower duty than would tort o Ex: exclusion of liability in the contract – generally, the duty imposed by the law of tort can be nullified only by clear terms 64 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 3) Where contractual duty and tort duty are co-extensive – P can choose the more advantageous one. Anlaysis: Why sue in both? Note that they can have different limitation periods, different amounts you can claim, etc. 2) NEGLIGENT PERFORMANCE OF SERVICES - Where the D negligently performs a service “by deed as opposed to statement.” - One important difference is that reliance is not a key part of negligent performance of services claim – the damages are inflicted “directly” - Textbook suggests that “assumption of responsibility” is therefore the effective test of the duty of care for such cases - Ex: a lawyer negligently prepared a will (a beneficiary signed as witness, rendering the beneficiary’s bequest void). – the residue went in intestacy and the beneficiary received only a portion of the intended bequest o The beneficiary recovered for the difference from the solicitor (or, rather, from his malpractice insurance) despite lack of reliance. 3) ECONOMIC LOSSES CAUSED BY DEFECTIVE PRODUCTS AND STRUCTURES - Economic losses flowing from defective construction (ex: repair costs) - We’re also dealing with third parties who would not necessarily have contractual remedy - Different principles apply if a person is directly injured due to negligent construction Winnipeg Condominium Corp No 36 v. Bird Construction Facts: Winnipeg Condo Corp built a condo (allegedly negligently) and after the original building owners had sold it to someone else (Ps), a part of it collapsed. Issue: may a general contractor responsible for the construction of a building be held tortuously liable for negligence to a subsequent purchaser of the building, who is not in contractual privity with the contractor, for the cost of repairing defects in the building arising out of negligence in its construction? Holding: Yes. Rule: where a contractor’s “building is found to contain defects resulting from that negligence which pose a real and substantial danger [to the occupants or other persons or property in the community], the reasonable cost of repairing the defects and putting the building back into a non-dangerous state are recoverable in tort by the occupants.” A lack of contractual privity between the contractor and the inhabitants at the time the defect becomes manifest does not make the potential for injury any less foreseeable. (i.e. doesn’t matter if the building is owned by a subsequent purchaser @ time defenct manifested).  court reaffirms that tort & contractual duties can co-exist  the duty to construct a building according to reasonable standards and without dangerous defects exists independently of contract 65 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Anlaysis: Note – only costs of repair can be recovered to a point of bringing structure to a point where it is acceptable.  policy reason for this case: dangerous structures create dangerous situations for the community at large  distinction between “shoddy” and “dangerous” – when it’s dangerous, it has the potential to create actual harm to the community  “shoddy” construction doesn’t bring that same policy concern – it doesn’t have the same potential impact upon other ppl – there would be a contractual remedy for this - court noted they didn’t want to find a duty of care to subsequent purchasers for the cost of repairing non-dangerous defects, b’c it would be going down the road of indeterminate liability for the D 4) RELATIONAL ECONOMIC LOSSES CNR v. Norsk Pacific Steamship Facts: Public Works and Government Services Canada owned a bridge. CNR was the main use (86%) of it. CNR and Public Works had a K where CNR would help maintain the bridge. Their was a clause in their contract saying that CNR could not sue Public Works for any disruption of use. Norsk (tortfeasor) came along and damaged bridge, bridge was closed for several weeks and CNR suffered economic loss (think: potential loss of work, contracts, delay in delivery, disgruntled clients). Issue: Can CNR sue Norsk directly in negliegence for their pure economic loss?? Holding: Rule: SINCE BOW VALLEY HUSKY, LA FOREST J’s “MINORITY” JUDGMENT PREVAILS: *Exclusionary rule denies recovery for relational economic losses* 3 exceptions: 1) Where the claimant has a possessory or proprietary interest in the damaged property; 2) in the “general average” cases (maritime law) 3) Situations where the P and property owner are in a relationship equivalent to a “joint venture” - McLachlin look @ certain factors for a “joint venture”: where the P’s operations are so closely allied to the operations of the part suffering physical damage and to its property that it can be considered a joint venture with the owner of the property, the P can recover its economic loss even tho the P has suffered no physical damage to its own property. Ex: CNR was the bridge’s preponderant user, CNR was recognized in the periodic negotiations surrounding the closing of the bridge, CN supplied materials, inspection and consulting services for the bridge. McLachlin’s “majority” - recovery in relational economic loss must be limited but should not be impossible. Look for some connection (proximity) btwn. The P and D such that it is appropriate that the D compensate P. 66 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Anlaysis: La Forest discusses the need for a firm exclusionary rule – to prevent the “ripple effect” and indeterminate liability. A firm rule would allow parties to plan their business affairs. Bow Valley Husky v. St. John Shipbuilders (1997, SCC)  used La Forest’s minority judgment – gave a CLEAR exclusionary rule + 3 exceptions - if you are not in one of the 3 listed categories, you’re not getting compensation for relational economic loss Negligence – Standard of Care and Breach  Common sense “test for breach”: Did the D depart from the standard of the reasonable person? (Vaughan) - look @ cases we’ve covered in class to assess the situation. - Test is objective - if there’s a custom in your society/community – it’s on the D to prove that to the judge – ex: if no one salts their driveway in the area where you live and someone slips and hurts themselves, it would be up to the D to prove that - - exceptions: Youth – must look @ whether the youth’s conduct would fall outside the conduct of what a normal child in that category would do Mental Disability or Illness o If the D understood the duty of care s/he owed and was able to discharge that duty, their actions would be voluntary and capacity would exit. o However, if the D can show that, as a result of their mental illness:  1) D had no capacity to understand or appreciate the duty of care owed at the relevant time; or  2) D had no meaningful control over their actions and was unable to discharge their duty of care at the time their conduct fell below the objective standard of care;  the D will be relieved of tort liability Physicians o Held to a different standard – what would the “average physician of the area that they work in” have done? o “a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances,” especially GP vs. specialist 67 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - o urban/rural doctors – used to be held to different standards but moving to rural docs being held to same standard as urban docs o Reibl v. Hughes: “duty to disclose” Lawyers o Lawyers are held to the standard of the “reasonably competent”, “ordinary competent” or “ordinary prudent” solicitor o ELDER LAW CASE (McCulloch) o Rural/urban “locality rule” doesn’t apply Courts look at a variety of factors when faced with a SoC question: ◦ Probability of harm (Bolton v. Stone); ◦ Magnitude (or potential magnitude) of harm (Paris v. Stepney Borough Council, Hollis v. Dow Corning); (a greater capacity to cause injury to consumers = a correspondingly high SoC under negligence law) ◦ Burden of risk avoidance (Vaughn v. Halifax-Dartmouth Bridge Comm.); (who’s in the better position to avoid the risk? What kind of $/effort is going to be involved? – in Vaughan it wasn’t very much) ◦ Utility of the activity (Watt v. Hertfordshire County Council); (is it a commercial setting for making profit? Is it a non-profit? Or was the risk taken for the public good? (as it was in Watt)) ◦ Existence of custom or guidelines; standard practice  (though this has become a more limited factor, it is still relevant in, e.g. medical malpractice) (ter Neuzen v. Korn); (don’t hang hat on this argument – not as useful anymore) ◦ Existence of statutory standards (R. v. Sask. Wheat Pool, where the statutory duty is breached; and Victoria (City) v. Ryan, where the statutory duty is met). ◦ Bonus: if a deliberate decision regarding safety or risk (ex: Vaughn), can talk about Hand’s mathematical formula Vaughan v. Menlove GIVES DEFINITION FOR THE REASONABLE PERSON: “…such reasonable caution as a prudent man would have exercised under the circumstances.” “…the care which a prudent man would take…” Bolton v. Stone - Was the risk of damage…so small that a reasonable man in the position of the D, …have thought it right to refrain from taking steps to prevent danger.”? - “risk of harm” factor – one factor in determining what a reasonable person would have done 68 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - Bolton v. Stone analysis: o 1) What is the possibility of injury? o 2) What is the potential severity of a possible injury? Watt v. Hertfordshire County – Fire Station Call, heavy jack inures P Facts: D’s fire station had a heavy jack to be used for emergencies. The only vehicle properly equipped to carry it safely was out when the fire station received an emergency call to recue a woman trapped under a heavy vehicle. Officer in charge ordered the heavy jack to be driven to the accident in a lorry w/o properly securing it. En route, driver stopped suddenly & injured P. Issue: Was D negligent in failing to use reasonable care in supplying safe appliances and working conditions to P? Holding: No. Rule: In measuring standard of care one must balance risks against the en to be achieved (the measures necessary to eliminate risk).  Look @ the social utility (or disutility) of the activity - the more socially useful the activity, the more unwilling the courts will be to impose a high standard of care Analysis: The saving of life or limb justifies taking considerable risk. If this accident had happened in a commercial context w/o any emergency, there could be no doubt that the P would succeed (b/c the commercial end to make profit is very different from saving human life/limb). R. v. Saskatchewan Wheat Pool – breach of statutory duty Facts: Sask Wheat Pool delivered infested grain out of a terminal elevator contrary to s. 86(c) of the Canada Grain Act. Canadian Wheat Board incurred costs of >$98,000 b/c of it and now are pleading statutory breach in a tort action against Sask Wheat Pool. Issue: Where a party breaches a statutory duty causing injury, does the victim have a civil cause of action against the first party? Holding: statute itself may provide for a tort or other civil remedy for breach. In this situation, the govt had not done so. P didn’t actually plead or prove negligence in this case, so the action failed. Rule: The mere fact of breach of a statutory duty does not, in itself, give a right to recovery. But proof of the breach may provide evidence of negligence. The statute may provide guidance re: the standard of reasonable conduct. Analysis: Unless you’re negligent in fulfilling your statutory duty, the mere breach itself is not sufficient – still have to go thru whole negligence analysis. Ryan v. Victoria Facts: Issue: If someone complies with a statutory duty, can they still be held negligent? Holding: Yes. 69 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Rule: Compliance with a statute does not necessarily satisfy the CL duty of care. So, just as breach (sask wheat pool) does not prove negligence, compliance, in itself, does not negative a finding of negligence. Analysis: Other side of the coin from Sask Wheat Pool: What if there’s a statutory duty and you comply with it? Can you still be liable? Paris v. Stepney Borough Council – gravity of harm should be considered Facts: P was employed in the D’s garage, and to D’s knowledge, P had the use of only 1 good eye. A chip of metal flew into D’s good eye while working resulting in total blindness. Practice within the trade (“custom”) was not to provide goggles to workers. P claimed damages alleging negligence by D failing to provide him with goggles. Issue: To what shtandard of care should the D be held? Holding: to an extra high standard. Rule: The greater the magnitude of potential harm, the greater the standard of care  an employer should take into consideration if a risk is higher for a certain employee then therefore they need to have a higher standard to take care with that employee Analysis: it does depend on the nature of the statute tho – if the statute has a very rigorous regime that sets out what activities are authorized, it might be enough to satisfy the standard of the reasonable person @ CL Vaughn v. Halifax-Dartmouth Bridge Comm.  Facts: Bridge painted, damaged cars parked nearby from flying paint  Duty was to take all reasonable measures to prevent result or minimize damage of falling paint  Easily feasible to prevent damage (ie warning signs)  Could have avoided this risk, particularly in gravity of harm and probability (could have taken preventative measures at a relatively low cost)  Conclusion: Liable because did not take necessary precautions (could have taken preventative measures at a relatively low cost McCullough v. Riffert (2010) – SoC of lawyers Facts: Robert McCullough died 10 days after his lawyer to give instructions for a Will. The Will, which was not signed, would have left his entire estate to his niece Sarah McCullough. In this action, his niece Sarah, the disappointed beneficiary, claims against his layer, Riffert, in negligence. Issue: In the circumstances here, was the lawyer negligent in not attending to the preparation and execution of the will before Robert died? Holding: No negligence on the part of the lawyer in these circumstances. Rule: Lawyers: A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken. The requisite SoC has been variously referred to as that of a reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor (Central and Eastern Trustco v. Rafuse) In this situation, had to ask: 70 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 1) What is the standard of care required of the solicitor in the preparation of a will? 2) Is the solicitor liable to a disappointed beneficiary; 3) In the circumstances of this case did the solicitor fail to meet the standard of care Negligence – Causation The element that links the defendant’s breach of the standard of care to the plaintiff’s loss. The “but for” test (or sine qua non – “without which not”) ◦ But for the breach, would the plaintiff not have been injured? ◦ (Not quite the same question as “did the defendant’s conduct cause the loss”) ◦ The P must show that the D’s negligence was necessary to bring about the injury (Clements).  Causation is a question of fact – therefore, P must provide evidence supporting causation  evidence must be adduced supporting each allegation Alternatives and Exceptions to the “but for” test (general rule): 1) Material contribution to risk - Clements v. Clements - Resurfice Corp 2) Refusal to allow reliance on the “learned intermediary” rule - Hollis v. Dow Corning 3) Interference of Causation - Snell v. Farrell Kauffman v. TTC – but for test Facts: While ascending an escalator in a Toronto subway station, P was injured after 2 youths ahead of her fell on a man who in turn fell back on her. Court asked the question of whether TTC was negligent as well as 2 causation questions. Issue: Was TTC’s alleged negligence a contributing cause of P’s accident? Holding: No. Rule: a causal relation must be made out btwn the alleged negligence and the injury.  P must be able to establish on a balance of probabilities that their injuries would not have occurred “but for” the D’s negligence Horsley v. MacLaren – but for test  General Rule: the test for causation is the “but for” test, which requires the P to show that the injury would not have occurred but for the negligence of the defendant 71 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Athey v. Leonati Facts: P had a pre-existing back condition. D negligently caused a car accident that injured P’s neck and back. One day while stretching as advised by a doctor, P herniated a disk in his back. Issue: Does a causally contributing cause limit liability of the D if other factors are involved? Holding: No – D is held fully liable when their negligence is a causally contributing cause. Rule: Thin skull rule: D must take their victim as they find them. (both Ds were held joint and severally liable b/c each contributed but independently caused harm). – so each D is liable up to the full amount, but each D may recover, from the other D, $ paid in excess of that D’s proportionate share As long as the D is part of the cause to an injury they will be held fully liable even if they are not the only cause. Exception to the “but for” test for causation: Material contribution of risk test  still state general “but for” rule!!!!!!! Clements v. Clements – when “but for” test does not work – material contribution of risk test Facts: P suffered brain injury from motorcycle accident. She was unable to prove “but for” causation, due to the limitations of scientific reconstruction evidence. P claims “material contribution” test rather than “but for” – i.e. that D “materially contributed to the risk of injury.” Issue: Could the P use the “material contribution of risk” test here? Holding: Yes – since she could not prove any one of the D’s caused the harm Rule: “Material contribution of risk” test is typically used when: - a number of tortfeasors; - all of whom are at fault; - one or more of whom has in fact caused the P’s injury; - But it’s impossible for the P to show that any one D caused the injury because the Ds can “point the finger” at each other  P must meet the “but for” test globally  P must still show that the injury would not have occurred but for the negligence of one or more of the Ds  Each D who has contributed to the risk of injury (via owing a DoC, and breaching their SoC) can be faulted  Policy reasons and the goals of negligence law are thus satisfied: - The P can obtain compensation - D’s have been negligent and may in fact have contributed to the loss - Deterrence is furthered Cook v. Lewis – 2 negligent Ds but only 1 caused accident – REVERSE ONUS Facts: P shot in the face by 1 of 2 hunters who had fired at the same time. Both hunters denied aiming in P’s direction. P could not prove, on a BoP, who had shot him. 72 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Issue: Can P still claim in negligence even though she can’t prove which one caused her injury? Holding: Yes – but reverse onus on Ds to prove which one did it, or they’re both liable Rule: Where P can prove there were two Defendants, one of which must have caused his injury/loss, but cannot prove which one caused his injury/loss, then each D is liable unless one can prove it was the other who actually caused the injury - ***the burden of proving causation shifts do the Ds *** - this onus-shift generally only works when: - there is a small number of Ds - all of whom are joined in the litigation; and - all of whom have exposed the P to an unreasonable risk of the type of injury that the P suffered = each D must have owed a DoC and have breached the SoC!! Exception to the “but for” test: Refusing to allow manufacturer to rely on learned intermediary rule Hollis v. Dow Corning  D argued P needed to prove that the doctor would have warned P had Dow Corning properly warned the doctor  SCC aid this would require the P to prove a hypothetical (that had been brought about by D’s breach of its duty) RULE: Where the manufacturer fails to inform the learned intermediary of the risks of their product, it is no defence that P cannot prove the learned intermediary would have passed the information to P (if that was the case, the P would have no recourse at all – the learned intermediary was not aware of the risks, so was not negligent, and the manufacturer would be immune b/ c P could not prove the learned intermediary would pass the information along). - the STRICT application of the “but for” test is a strong argument to make – but the court said no- part of that was based upon the imbalance of information - the manufacturer is the only one who’s going to have information about this - the court is not going to allow them to rely on the learned intermediary rule in this case - The exceptions and alternatives all relate to asking” who is in the best position to know who caused the injury? - It’s the Ds here who will be most likely to know who actually caused it (think: Cook v. Lewis; Clements v. Clements) - If you do force Ps to prove they wouldn’t have suffered injury “but for,” the breach of the manufacturer, they won’t be able to find this information Exception to the “but for” test: Using a modified objective test in informed consent cases Reibl v. Hughes 73 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - must show that “but for” the failure to warn, the patient would not have proceeded with the treatment EXCEPTION: the court used a modified objective test: “but for the doctor’s failure to inform, would a reasonable person in the P’s position not have undergone the treatment? Exception to the “but for” test: Inference of Causation - Common in Medical Malpractice - Not “reversing the onus” like in Cook v. Lewis, but rather recognizes that the inquiry is a practical one, made on the entirety of the evidence - (even if the P has not proven to a scientific certainty that a drug would have prevented harm, a judge can still decide FOR the P that the drug would have prevented the harm on a balance of probabilities). (Goodman) - NOT reversing onus, just addressing that test is based on a BOP Snell v. Farrell Facts: An opthamologist is performing surgery on Mrs. Snell for cataracts. During surgery he found a small amount of blood – he left it and then went on to continue surgery anyway. 9 months later, her optic cord atrophied, causing her to lose vision in the eye. Expert evidence was very important at the standard of care stage (what would a reasonable opthamologist have done) and at the causation stage. In this case it was difficult to know whether the pressure that caused the haemorrhaging and the eventual atrophy was caused from her high blood pressure, or something else, or whether it was caused from the opthamologist. Issue: Who had the burden of proof for causation? Holding: P. But D didn’t have sufficient evidence to rebut that inference. (while blindness could have resulted from natural causes, there was sufficient evidence indicating it was more likely a result of the surgery). Rule: GENERAL RULE: the onus is on the party who asserts a proposition, usually the P. EXCEPTION: where the subject-matter of the allegation lies particularly within the knowledge of one party, that party may be required to prove it.  P is in NO position to know what went on during the operation, but in these kinds of cases where causation is NOT clear and where you have a technical question and the D was in a better position to know what happened, the courts will allow inferences to be drawn from what the D said and they won’t just follow the strict “but for” test. I.e. primarily applicable to malpractice cases. MULTIPLE CAUSES o Causation becomes more complex when P’s loss has two or more causes. o If they are divisible - if they can be divided into distinct losses attributable to each tortfeasor – then there are separate causes of action. o If they are indivisible, either tortfeasor may be sued for the full amount (joint & several liability) 74 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 o (Not easy to draw the line btwn divisible & indivisible injuries) ***Athey v. Leonati  A D is liable for “any injuries caused or contributed to by his or her negligence.”  The presence of other (non-tortious) contributing causes does not reduce the extent of liability.  So long as the D’s breach has “materially contributed” to the occurrence of the injury, i.e. falls outside the “de minimis” range.  Holding: Indivisible injuries: As long as the D’s negligence has materially contributed to the injury, they’re going to be fully liable. The court found that the pre-existing condition (that led to the herniated disk) would not have become an issue BUT FOR the car accident. (the pre-existing condition was there, but it wouldn’t have become symptomatic unless the car accident had taken place). Apportionment of liability: (still from Athey)  Multiple tortious causes ◦ Expressly permitted under negligence law, and does not reduce total damages  Divisible Injuries ◦ Really just means that D is only liable for injuries D’s negligence caused or contributed to ◦ Adjustments for contingencies ◦ (D can recover from other tortfeasers after for their portion of theliability).  Adjustments for contingencies o Adjust measure of damages based on likelihood of certain events happening – this is about damages and not liability  Independent Intervening Events: o (eg. Pre-existing condition that would have become disabling anyway in future) o This is not apportionment; deals with putting P in the “original position”  “Thin skull”/”crumbling skull” doctrines o Pre-existing condition that increases severity of injury o D liable for injuries caused, even if extreme, but need not compensate for effects of pre-existing condition that would have happened anyway Negligence – Remoteness and Foreseeability - tries to prevent “over-inclusiveness” (limits liability for negligent conduct) remoteness analysis used to draw the line in individual cases where unusual or disproportionate results flow from negligent conduct 75 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 - where unusual or disproportionate results flow from admittedly negligent conduct (in most cases, Remoteness won’t be a significant issue). No “hard and fast” application DEVELOPMENT OF THE LAW IN REMOTENESS Polemis  Wagon Mound 1  Wagon Mound 2  Wagon Mound changed the law on remoteness. BEFORE WM, Polemis was the governing authority -Polemis stood for the proposition that a D was liable for every “direct” consequence of their negligent action – no matter how unforeseeable or bizarre - in WM, the PC rejected Polemis and crafted a new test based on foreseeability The Wagon Mound, No. 1 – changed law: foreseeability Facts: WM carelessly dumpted oil into Sydney Harbour. The oil, which continued to escape for over a day, wa carried by wind and tide udner R’s wharf. R’s employees were using welding equipment. Some molten metal fell, igniting a rag floating on debris, which ignited the oil, burning the wharf. R’s wharf and some equipment were heavily damaged. Issue: Was WM liable for the damage do the wharf for negligently spilling oil into the harbor? Holding: NO  the damage to the wharf was not foreseeable, so it was too remote for liability Rule: Foreseeability became the effective test, regardless of how unnatural” the consequences of the act may be: Was the damage that occurred as a consequence to D’s breach the damage that the reasonable person would have foreseen? Analysis: Court emphasized that reasonable foreseeability is about FORESIGHT and not hindsight Hughes v. Lord Advocate – modified foreseeability test Facts: Post office employees opened a manhole. They went for a tea break so covered it with a shelter tent, pulled a cover over the entrance, removed the ladder and placed 4 paraffin lamps around it. When they were gone, 2 young boys came to explore the manhole. On their way out, one of them tripped over the lamp, which fell into the hole (when it broke @ the bottom, some paraffin excaped, creating an explosive mixture) & caused an explosion severely injuring the boy. Issue: Is the Post Office liable for the boy’s injuries or was the accident too remote? Holding: Yes they were liable. Rule: Modified foreseeability test: The KIND or TYPE of injury must be reasonably foreseeable. - The extent of the injury does not need to be reasonably foreseeable; - The manner in which the injury was caused does not need to be reasonably foreseeable 76 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 If an injury is caused by a known source of danger, but caused in a way which could not have been foreseen, D will still be liable. The Wagon Mound, No. 2 – CURRENT AUTHORITY Facts: Different P’s than WM1: shipowners rather than the wharf. Different evidence presented and findings of fact here compared to WM1. Issue: Was the damage to other ships in the harbor reasonably foreseeable? Holding: Yes – the D ought to have known the risk of oil lighting on fire and damaging boats.  The “reasonable chief engineer” would have foreseen the risk, and even though the ignition would be exceptional, a “reasonable chief engineer” would not have dismissed the possibility and not taken steps to prevent it. Rule: A reasonably foreseeable risk (i.e. a REAL RISK) is one that is possible (not necessarily probable).  A “possible” injury is one that is “more than far-fetched” which a reasonable man would not “brush aside.”  Court talked about how the fact that something happed shows that it was possible and there was a “real risk” – so, must ask whether a reasonable man, having the knowledge and experience of the chief engineer, would have known that there was a real risk of damage (in WM1, the damage was not foreseeable at all, so there was no need to determine what degree of foreseeability was necessary.  If the consequence is very severe and the cost of avoidance is very low, then you are liable if you take a remote chance (can even be liable for remotely possible activities if the reasonable person would have taken steps to reduce or avoid risk of injury). NOTES from class: - The court spends a lot of time talking about why they’re not bound by Wagon Mound #1 - Plaintiffs here are the ship owners - the evidence at trial here was significantly different than the evidence in wagon mound no. 1 - Ps in wagon mound #1 didn’t really have a strong incentive to argue that the oil was obviously flammable – since they let their employees keep working with their blowtorches. Why? b/c at that time, contributory negligence was a complete defence - In Wagon Mound 1, they would have been arguing based on Polemis – they were arguing that it was a direct result of the oil spill - Change in precedent, new authority for Wagon Mound 2 (WM!) - In Wagon mound 2, they were arguing that obviously this oil is as flammable as possible, and it should have been reasonably forseeable that it would catch fire if near a flame - Dealing with what would the reasonable person have seen at the time of the act. - PC in WM2 said that it’s oil – they should have realized it would be flammable 77 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 Smith v. Leech Brian & Co. – thin skull rule Facts: A man was hit by a piece of molten metal, burning his lip, due to D’s negligence. The burn became worse and eventually became cancerous. He died from cancer. Causation between the metal and the cancer was made out. Issue: Was it reasonably foreseeable that the burn would cause death? Holding: Probably not, but that is NOT the test. Rule: Test for remoteness: whether the D could have reasonably foreseen the type of injury that was suffered (in this case, the burn). [thin skull rule] = when you cause an injury which normally would have caused no or very minor damage, but caused severe damage to that person, the tortfeasor is liable for all the damage.  Leech Brain & Co. WAS liable here b/c the burn was not too remote (they were held liable for all the injuries that flowed from the burn). - CLASS NOTE: In Smith, court said that what has to be reasonably forseeable is the TYPE of injury – court said that as long as the burn was reasonably forseeable, all the consequences that flow from that – even though it’s based upon a rare propensity, those damages will not be too remote and D will be held liable Marconato v. Franklin – thin skull plaintiff Facts: A woman was slightly injured in a car accident (cervical strain) and developed depression, hostility, anxiety, tension, hysteria and some characteristics of paranoia. Underwent a complete personality change. These arose b/c of her pre-existing personality traits causing her to have a peculiar susceptibility or vulnerability Issue: Was the D liable for P’s bizarre psychological injury? Holding: Yes. Rule: This case extends thin skull rule to psychological injury. If the KIND or TYPE of the injury was reasonably foreseeable, then if the injury aggravates a latent psychiatric condition, D is liable for those psychiatric consequences. Mustapha v. Culligan of Canada Facts: Man ordered Culligan water bottle. Water bottle contained a dead fly. Man became obsessed with it, developed anxiety and was unable to work. Issue: Was the psychological harm that he developed a reasonably foreseeable as a “real risk” to a reasonable person? Holding: No  Mustapha lost @ this stage Rule: The degree of probability of an injury occurring is whether such an injury is one which would occur to a reasonable man in D’s position as a real risk, one not to be brushed aside (CITES WAGON MOUND 2) Any injury is possible, so ‘possibility of injury’ is not the test in Canada. 78 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 For mental Injury: Where there is a psychological injury, it is only foreseeable if a person of ordinary fortitude would have been injured (Onus on P to establish their mental injury was normal) (objective test) If D is aware of P’s ‘particular sensibilities,’ then ‘ordinary fortitude’ test not applicable. Analysis: This does NOT overturn thin skull rule  the principle applies to foreseeable injuries which have greater consequences than expected. - In Mustapha, the injury itself was not foreseeable, so nor were the consequences Price v. Milawski – Intervening causes Facts: P injured ankle playing soccer. Went to doctor, who negligently x-rayed his foot instead of his ankle, so diagnosis missed. P went to another doc, who relied on first doc’s x-ray and also missed the diagnosis. Several weeks later, went to third doc who correctly diagnosed it as a broken ankle. P suffered permanent injury. Issue: Was it reasonably foreseeable that a subsequent doctor would negligently rely upon the first doctor’s information? Holding: Yes! The second doctor’s negligence in not ordering a new x-ray was in the ambit of the first doc’s negligence, thereby did not interrupt the chain of causation. Rule: Where later negligence compounds the injury from earlier negligence, the consequences of the second negligence are within the scope of the risk created by the first negligence. A negligent person may be held liable for future damages arising in part from the subsequent negligent act of another, and in part from his own negligence, where both the subsequent negligence and the consequent damage were reasonably foreseeable as a possible result of the first negligence.  Note: modern approach from Athey places the apportionment back onto the Ds  P can recover in full from the original D. Original D can then go and sue second negligent Doc for his portion of negligence. Negligence – Defences 5 main defences to Negligent Claims: 1) Contributory Negligence  Contributory Negligence Act – Partial defence 2) The “seat belt” defence – partial defence 3) Voluntary assumption of risk – Complete defence 4) Illegality – Complete defence 5) Limitation periods – Complete defence Galaske v. O’Donnell – Seat belt defence Facts: P (8 yr old boy) and his father were passengers in D’s truck. P was not wearing a seatbelt. An accident occurred (thru no fauly of D) & P was injured, due to the fact that he was not wearing a seatbelt. P sued D alleging negligence in not ensuring that the P was wearing a seat belt. 79 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896  there IS a statutory duty owed by drivers to ensure children under 16 are wearing a seat belt. BUT this is NOT conclusive of civil liability – but it DOES provide further support for finding that a duty of care rests on the driver to take all reasonable steps to see that children are wearing seatbelts (sets the standard). Issue: Was the driver of the truck (no fault accident) partially responsible b/c he didn’t take all reasonable steps to ensure the child was wearing a seatbelt? Holding: Yes – he could be held contributorily negligent (5-25%). Rule: Failure to wear a seat belt may be a defence to negligent driver causing accident – but only 5 – 25% of liability will go to P. Burden on D to show: a) that the seat belt was not worn, and b) that the injuries would have been prevented or lessened if the seat belt had been worn Hambley v. Shepley – Voluntary Assumption of Risk Facts: Police officer, after radio instructions, used his police cruiser to block an intersection to stop the D, a motorist, from escaping arrest. He was in the cruiser and was struck by D before he could get out. Issue: Is the doctrine of voluntary assumption of risk applicable here? Holding: No. Rule: The defence of voluntary assumption of risk has 2 correlative effects: 1) it means that the P consented to bearing the injurious consequences of D’s negligent conduct; and 2) That the D is relieved of any duty of care to the P in respect to the particular risk of harm Analysis: NOTE: VAR not as commonly used as a defence as it used to be since Contributory Negligence has been changed by statute to a PARTIAL DEFENCE Hall v. Hebert – unsuccessfuly ex turpi causa claim Facts: P & D had both been drinking and were in D’s car – it stalled. They trid a “rolling start” with P @ steering wheel. P lost control of car & rolled down a ditch. P suffered significant head injuries and brought an action against D for D’s negligence in allowing P to drive his care even though he know he’d been drinking. Issue: Can P claim damages from D? Or does D have the defence of ex turpi causa (illegality)? Holding: Yes, P can claim damages (less any amount of contributory negligence). Defence of ex turpi causa does not apply here. D’s actions were not to make a profit or avoid the consequences of his illegal actions, but to be compensated for his injury. But the court did reduce damages due to P’s contributory negligence. Rule: The power of the court to grant the ex turpi causa defence is a limited one.  Concern for the legal system or the rule of law trumps the idea that P should be compensated. This defence can be used as a D where P has committed an illegal act, AND: 1) P is using their tort claim to profit from their illegal conduct; or 80 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 2) when P is using their tort claim to evade the consequences of their criminal actions B.C. v. Zastowny – successful ex turpi causa claim Facts: Prisoner was sexually assaulted in jail and after his release he developed a heroin addiction and became a repeat offender – spent 15 years in jail. He sued govt for vicarious liability relating to sexual assaults. Issue: Can P recover for loss of income which he incurred during his lengthy periods of incarceration? Holding: No! An award for past wage loss due to incarceration would have to be justified by “exceptional considerations of a compelling nature.” Crown successfully used the ex turpi causa defence here. Rule: Integrity of legal system trumps concern that the D be responsible. Analysis: the court does not want to give with one hand what they had taken away with the other hand. The Contributory Negligence Act, RSS 1978, c. C-31 o s. 2  apportionment of damages o s. 3  Apportionment of fault and contribution btwn tortfeasors - Athey v. Leonati scenario: The P can claim from ANY of the Ds for 100% of the damages. That D then would be able to seek damages themselves from the other tortfeasors. - also applies to a situation where P is partially liable – court will reduce award from D accordingly o s. 4  Contribution where one D cannot contribute - here, you would take the share of the D that can’t contribute (i.e. maybe they’ve died and there’s nothing in their estate) and add it to the other parties, proportionate to their share of the blame The Limitations Act, S.S. 2004, c. L-16.1  Failing to meet limitation period (i.e. didn’t start proceeding until after the limitation period passed) = absolute defence o s. 5  unless otherwise provided in the Limitations Act, no proceedings shall be commenced with respect to a claim after 2 years from the day on which the claim is discovered o s. 6  discoverability. These 4 things dictate the date discoverability occurred and the limitations act will go from: o (a) the day you knew the injury occured o (b) the day they knew that the injury, loss or damage appeared to have been caused by or contributed to by an act or omission that is the subject of the claim; 81 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 o (c) they day they knew that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and o (d) the day that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it o  a claimant is presumed to have known of the matters in 1-d on the day on which the act or omission on which the claim is based took place, unless the contrary is proved (by the P) Exceptions to 2 yr. limitation period s. 7  Ultimate limitation periods - 15 years is the maximum for most claims - Regardless of discovery, it’s 2 years from date of conversion…note: this is only against a good faith purchaser - Same thing with cases involving death, the ultimate limitation period is only 2 years s. 8  Can get more complicated when dealing with someone who is of legal disability: ex: a minor or someone who lacks capacity – the way it works here is that the limitation period is suspended for as long as they have the disability: ex: if the injury happens to someone who is 14, the “clock” for the limitation period will begin when they turn 18, and then the limitation period will be for 2 years after that… so have until they are 20 to bring an action. s. 14  sets out the limitation period for a claim with multiple defendants. The limitation period begins at the time the FIRST defendant was served with the claim - Usually not a huge issue, because if there are co-defendants, they’ll get dragged in anyway - This just says that you’re not bound by the initial date s. 16  NO limitation period for sexual assaults & assaults where it occurs in a situation of dependency (ex: residential school claim where physical abuse happened b/c of dependency, potentially childhood abuse if occurred from a parent or someone who they are dependent of). s. 17  NO limitation period for concealment. If D actively conceals their involvement or evidence or willfully misleads the complainant – in those kinds of situations, the limitation period is suspended during any time where this info has been concealed (otherwise ppl would just hide evidence for 15 years) Damages 82 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 o It TORTS, damages are about “returning the P to the position s/he would have been in had the tort not been committed (as far as $ can do so) Types of Damages (cite Andrews) 1) Compensatory Damages (Compensation) o Capable of monetary compensation o Aim to restore P to position they were in prior to D’s negligence a) Special Damages - backward - looking - manifest prior to trial (ex: missed x number of days of work); and - are therefore capable or precise calculation ex: medical bills, time off work b) General Damages - Extend into the future; and - Must therefore be predicted and quantified (some element of speculation) - Pecuniary damages – specific costs that will be incurred in future – ex: lost earnings/capacity to work, repair costs, disability equipment, personal care aid - Non-pecuniary damages – pain & suffering, loss of quality of life, humiliation, loss of life expectance c) Aggravated Damages – (RARE). Awarded to reflect P’s loss as a result of D’s conduct. Ex: humiliation by D’s conduct, psychological harm 2) Punitive or Exemplary Damages (Punishment) o RARE o Not compensory o Meant to punish D for their “outrageous” behaviour 3) Nominal Damages (Vindication) o Damages “in name” only – not about compensating the P, about holding the D responsible o For a tort that is actionable w/o proof of damage o Ex: Trespass claims o The Court is recognizing the legal wrong, but there are no damages to compense. o Unusual to sue for this b/c of litigation expenses Andrews v. Grand & Toy Alberta Ltd. Facts: P injured by D while on motorcycle and was injured, becoming a quadriplegic. P was held 25% contributorily negligent. At trial he was awarded $1M, CA reduced to $0.5M. P appeals to SCC. Issue: What was P able to claim for his future care costs? Holding: Rule: **Andrews establishes the method of damages analysis that continues to be used in Canada (prior to Andrews in 1978, a “global” award was given) 83 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896  Since damages are awarded in a lump sum @ trial, so the damage award must compensate P for past loss and also provide compensation for losses anticipated in the future Analysis: Pecuniary Loss – all things that can be calculated. - For the catastrophic claims or people who are young and have their whole working lives ahead of them – this can be very difficult to prove - Looking at 2 main heads of damage here Future Care – includes a lot of things that – had you not been injured, would have been covered under loss of earning capacity. Where does this enter into the analysis? We discount the loss of earning capacity by the estimate of the amount that you would pay for basic expenses – and then leave the loss of future care as is. “standard of care” (not like standard of care in negligence sense) – that means, what level of care can a reasonable person expect to get. Is this the cost of institutional care or care in their own home? - The evidence SHOWED that it would be best for him to have care in his own home, and not in a hospital - Defence said that they should realistically only be given the “standard” care – an institutionalized care - The court found that the defendant is not off the hook for that just because there is a cheaper alternative – P would be much better off at home - The point is that they still have evidence establishing that it’s likely helpful for them to live in home - The court said that he might not need personal care ALL the time – so the court deducted 20% from the pay b/c there would be reasonable times where he would be spending in the hospital, and during that time, his costs for care would be significantly reduced – again, not a magic number, just an argument made here that the court accepted Life Expectancy: The court said you can’t limit yourself based purely on statistics, although they are a useful guideline (statistical average is helpful only if the appropriate group is used) - These cases are especially difficult when dealing with younger people - Said quadriplegic likely to live 5 years loess than the average person Contingencies can be quite difficult – ask: are there any likely contingencies that would result in a loss? Ex: if it’s a female, could look at having kids…would take off a few years of work for that. - Expert evidence all along the way Loss of Earning Capacity (very difficult to calculate b/c he’s young) Level of earnings – need to look at the circumstances. Ex: in Sask, there was a guy who had been scouted for the NHL before he was injured - Usually look at what they likely would have done…become a lawyer? Go to university? Work as a trade? If young, can often look at the parents. Ex: would make a difference if 84 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896 both parents were neurosurgeons compared to both not working. Also look at things like…if he was in university, was he at the top of his class? - The younger the P is, the harder it is to determine level of earnings Length of Working life: had the accident not happened, how long would he have worked for? You can reduce it to take into account contingencies – so, it’s a very cyclical type of sector he’d be working in? but this would go into contingency calculation. - For Mr. Andrews, chances are he probably wouldn’t have had any actual income of his own outside of this award Capitalization and Tax Allowance - Not supposed to PROFIT from this, supposed to be compensated. So the court takes off a little bit for the interest they will gain from it - Counter that though, is inflation – every year, the value of the dollar goes down a little bit - Court balances the investment profit you’ll receive vs. the loss of value based on inflation - Tax allowance – the amount you receive from an award is NOT taxable, but any investment income you make later will be taxable. Should this be taken into account in pecuniary losses? - Watkins v. Olafson (1989) said that awards should be grossed up to take tax into account - Andrews actually didn’t apply the “gross up” to take ta into account - Court says “gross up” – just have to make the best assessment you can with the info you have and based on what the gross up rate should be non- Pecuniary Loss – more of a philosophical/policy exercise than a legal or logical one - still “compensatory losses” – but court is trying to compensate as much as $ can for the loss of health and happiness that a non-injured person would have had MacCabe v. Westlock R.C.S.S.D. No. 110 – role of gender  In McCabe, it was found to be a reviewable error to use the “male tables” in determining loss of earning capacity for a female P.  It is (said the court) contrary to restitutio ad integrum. ◦ McCabe had suggested that she wanted several children and would take time off work to care for them; the Court said these were not the “typical male contingencies”  Some courts have used the female tables, but grossed them up to account for the (theoretically) narrowing wage gap. - this case really tells us that courts can’t divorce data from the P in front of them Whiten v. Pilot Insurance – Punitive damages PUNITIVE DAMAGES: 85 Downloaded by Bharat Galani (cabharatgalani@gmail.com) lOMoARcPSD|3799896  “Malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”. ◦ Punishment; deterrence; denunciation  Punitive damages, as the name suggests, are not compensatory.  Awarded if but only if a compensatory award would be insufficient.  Whiten is the high watermark for punitive damage (i.e. 1mill is max Canada has seen) - will often find solicitor-client costs and punitive damages together…for when the D really screwed up and the court wants them to pay. 86 Downloaded by Bharat Galani (cabharatgalani@gmail.com)

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