TORTS
INTRODUCTION TO TORTS
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Definition
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Torts & Contracts
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History of Tort Law
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Trespass on the Case
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Scott v Shepherd [1558-1774] ALL ER 296
Leame v Bray (1803) 102 ER 724 (KB)
Williams v Holland (1833) 131 ER 848 (CP)
Holmes v Mather (1875) LR 10 EXCH 261
Cook v Lewis [1952]
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LIABILITY IN TORTS (Sept 12 L)
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Absolute Liability
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Strict Liability
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Negligence
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Intention
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No Liability
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FUNCTIONS OF TORT LAW (20) (Sept 14 L)
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Rights Theory of Tort Law (25-26)
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VOLITION
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Smith v Stone (1647) 82 ER 533 (KB) (52)
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INTENTION
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Actual (Clear) Intent
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Imputed (Constructive) Intent
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Transferred Intent
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Related Issues: Motive, Mistake, Accident
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Motive
Mistake
Accident
Children & Mentally Ill
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REMEDIES (Sept 19 + 21 L)
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Extrajudicial Remedies (self-help)
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Judicial Remedies (29-30)
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Types
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Classification of Damages (31)
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Nominal (token) Damages (32)
The Mediana [1990] AC 113 HL (32)
Compensatory Damages (34-35)
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Aggravated Damages (37-41)
B(P) v (B)(W) (1992) (p.39)
Punitive Damages (Retributive, Vindictive, Exemplary) (37-41)
Whiten v Pilot Insurance [2002] (p.43-44)
Disgorgement (gain-based) (45-46)
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Edwards v Lee’s Administrators
Penarth Dock Engineering Co Ltd v Pounds (1963) (p. 47-48)
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APPORTIONMENT OF FAULT IN INTENTIONAL TORTS (274-277)
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BATTERY (NOMINATE TORT - ACTIONABLE PER SE) (63-70)
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Bettel v Yim (1978) 88 DLR (3d) 543 (Ont Co Ct) (64-70)
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ASSAULT (NOMINATE TORT - ACTIONABLE PER SE) (70-75)
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Holocombe v Whitaker, 318 So.2d 289 (Ala SC 1975) (71-72)
Police v Greaves [1964] NZLR 295 (CA) (72-73)
FALSE IMPRISONMENT (NOMINATE TORT – ACTIONABLE PER SE) (75-84)
Bird v Jones (1845) 115 ER 668 (QB) (75-77)
Campbell v SS Kresge Co (1976), 74 DLR (3d) 717 (NSSC (TD)) (79-80)
Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 (HL) (82-84)
MALICIOUS PROSECUTION (INNOMINATE TORT) (84-94) + BEGINNING OF INNOMINATE TORTS
Nelles v Ontario [1989] 2 SCR 170 (85-87)
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Abuse of Process (92-93)
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INTENTIONAL INFLICTION OF NERVOUS SHOCK (94-104)
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Wilkinson v Downtown [1897] 2 QB 57 (94-96)
Radovskis v Tomm (1957) 9 DLR (2d) 751 (Man QB) (96-97)
Samms v Eccles, 358 P2d 344 (Utah SC 1961) (97-99)
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INVASION OF PRIVACY (INNOMINATE TORT) (105-124)
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American Common Law Privacy Actions (108-109)
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Motherwell v Motherwell (1976) 73 DLR (3d) 62 (Alta SC (AD)) (105-107)
Jones v Tsige, 2012 ONCA 32 (113-115)
Hollinsworth v BCTV [1999] 6 WWR 54 (BCCA) (118-120)
Breach of Confidence
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DISCRIMINATION (INNOMINATE TORT)
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Seneca College v Bhadauria (1979) 105 DLR (3d) 707 (Ont CA), rev’d [1981] 2 SCR 181 (124-126)
DEFENCES – CONSENT (201-243)
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Implied Consent
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Wright v Mclean (1956) 7 DLR (2d) 253 (BCSC) (202-203)
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Exceeded Consent
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Agar v Canning (1965) 54 WWR 302 (Man QB) (204-205)
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Competence of Person Giving Consent
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Vitiating Consent
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Fraud (Deceit) – high threshold
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Mistake
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Duress (Coercion)
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Latter v Braddell (1880) 50 LJQB 166 (CP) (213-216)
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Public Policy
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R v Jobidon [1991] (207)
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Medical Consent – To Treatment, Counselling & Care (Oct 19 L)
Marshall v Curry [1933] 3 DLR 260 (NSSC) (224-225)
Malette v Shulman (1987) 63 OR (3d) 243 (HC) (226-228)
C v Wren (1986) 76 AR 115 (CA) (232-233)
Starson v Swayze [2003] 1 SCR 722 (236)
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Ex Turpi (21 Oct L)
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DEFENCES - SELF DEFENCE (245-250) (31 Oct L)
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Wackett v Calder (1965) 51 DLR (3d) 598 (BCCA) (245-247)
Defence of Third Parties (251-254) (Oct 31 L)
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Gambriell v Caparelli (1974) 54 DLR (3d) 661 (Ont Co Ct) (251-252)
DEFENCES – DISCIPLINE (254-259) (Oct 31 L)
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R v Dupperon (1984) 16 CCC (3d) 453 (Sask CA) (254-256)
Canadian Foundation for Children, Youth & the Law v Canada (AG) [2004] 1 SCR 76 (258-259)
DEFENCES - LEGAL AUTHORITY (279-315) (Nov 2 L)
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Koechlin v Waugh and Hamilton (1957) 11 DLR (2d) 447 (Ont CA) (294-297)
Berntt v Vancouver (City) (1999) 174 DLR (4th) 403 (BCCA) (300-301)
R v Caslake [1998] 1 SCR 51 (301-303) (Nov 7 L)
Eccles v Bourque [1975] 2 SCR 739 (308-311) (Nov 7 L)
INTENTIONAL INTERFERENCE WITH PROPERTY (Nov 7 L)
Trespass (129-130) (Nov 7 L)
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Fouldes v Willoughby (1841) 151 ER 1153 (Ex Ct) (135-137)
Detinue (130-131; 165-168) (Nov 7 L)
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Gen & Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644 (CA) (165-167)
Aitken v Gardiner (1956) 4 DLR (2d) 119 (Ont HC) (167-168)
Conversion & Trover (Nov 7 L)
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Mackenzie v Scotia Lumber Co (1913) 11 DLR 729 (NS SC) (139-140)
373409 Alberta Ltd (Receiver of) v Bank of Montreal (2002) 220 DLR (4th) 192 (SCC) (149-152)
Aitken v Gardiner (1956) 4 DLR (2d) 119 (Ont HC) (158-160)
Recapture & Replevin (Nov 7 L) (171-175)
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INTENTIONAL INTERFERENCE WITH REAL PROPERTY (NOV 9 PODCAST)
Turner v Thorne (1959) 21 DLR (2d) 29 (Ont HC) (177-179)
Harrison v Carswell [1976] 2 SCR 200 (182-185)
Trespass to Airspace & Subsoil (194-199)
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Bernstein v Skyviews & General Ltd [1978] QB 479 (194-196)
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DEFENCE OF REAL PROPERTY (Nov 16 L)
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Defence of Reasonable Force (259-264)
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MacDonald v Hees (1974) 46 DLR (3d) 720 (NSSC) (259-261)
Bird v Holbrook 91828) 130 ER 911 (CP) (263-264)
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Defence & Recaption of Chattels (Nov 16 L)
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Necessity – Public & Private (Nov 21 L)
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Surocco v Geary, 3 Cal 69 (Cal SC 1853) (266-268)
Vincent v Lake Erie TPT Co, 124 NW 221 (Minn SC 1910) (270-273)
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NUISANCE (Nov 21 L)
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Trespass vs Nuisance
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Kerr v Revelstoke Bldg Materials Ltd (1976) 71 DLR (3d) 134 (Alta SC) (190-191)
Private Nuisance (Nov 21 L)
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340909 Ont Ltd v Huron Steel Products (Windsor) Ltd (1990) 73 OR (2d) 641 (HC) (968-972)
Antrim Truck Centre Ltd v Ontario (Transportation) 2013 SCC 13 (977-981)
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 (983-985)
Public Nuisance (994-1002) (Nov 21 L)
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AG Ont v Orange Productions Ltd (1971), 21 DLR (3d) 257 (Ont HC) (995-997)
Hickey v Electricity Reduction Co (1970), 21 DLR (3d) 368 (Nfld SC) (997-999)
Defence of Statutory Authority (986-990)
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Tock v St John's Metropolitan Area Board (1989), 64 DLR (4th) 620 (SCC) (986-990)
Remedies (Nov 21 L)
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Mendez v Palazzi (1976), 68 DLR (3d) 582 (Ont Co Ct) (1002-1004)
Miller v Jackson [1977] QB 966 (CA) (1005-1010)
Spur Industries Inc v Del E Webb Development Co, 494 P2d 700 (Ariz SC 1972) (1011-1013)
GUEST SPEAKER ON PRIVATE NUISANCE (Nov 30 L)
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INTRODUCTION TO TORTS
Definition
- Private wrongs – wrongdoer breached an obligation that was owed to an individual rather than society
as a whole
- Doesn’t cover strict liability since it deals with wrongdoing
- Successful litigation = usually remedy that reflect the manner in which the breach affects the parties;
typically focuses on plaintiff’s loss
- Nominate Tort – classic tort rooted in writ system – battery, assault, false imprisonment –must be
direct
- Innominate Tort – tort that hasn’t been specifically named & created by courts – relaxed direct
element; generally not actionable per se (has to show damages)
Torts & Contracts
- Structure: both involve primary & secondary obligations
o Primary obligations – tell people how they ought to act
o Secondary – remedial – tell people how they must act after primary obligations are broken
- Source of Primary Obligations: obligations in tort are imposed by law on the basis of circumstance;
contractual obligations generally created by parties (voluntarily agreed to do so)
- Privity: enforcement of contractual obligations subject to doctrine of privity (only parties to an
agreement can sue/be sued); tort obligations imposed by law so they apply even if parties are
strangers
- Compensation: tort obligations imposed to prevent harm & protect existing state of affairs (looks
backward to put plaintiff back in position he would’ve been in)
o Contracts based on promises pertaining to future (looks forward & puts person in position they
would’ve enjoyed if agreement was performed)
History of Tort Law
- Common law had central feature of writ system – writs began with suits against the King’s peace:
called trespass vi et armis – assault, battery, to land, taking of goods
- Trespass on the case emerged – pleadings in an action on the case raised special circumstances which
made the act wrongful whereas the original trespass action a general plea would suffice
- Core normative principle of tort law in 19th century = idea of fault or moral blameworthiness
Trespass vi et armis – wrongs committed against the King’s peace
- Actionable per say (actions that don’t require the allegation/proof of additional facts to constitute a
cause of action, nor any allegation/proof that damages were suffered)
- No requirement interference was intended and/or wrongfully motivated
- Characteristics:
o Directness
o Actionable per se (didn’t have to show damages – just breaching peace)
o No intention requirement
Trespass on the Case
- Could be wronged indirectly – circumstances which made the act wrongful
Scott v Shepherd [1558-1774] ALL ER 296
Directness for trespass vi et armis doesn’t need to be physical touch
Facts
- D threw firework into market; in order to protect themselves & avoid damage, quib was thrown
on by 2 others
- when it landed near the complainant, it exploded & caused face injury & lost use of 1 eye
- original thrower (D) charged with assault & trespass
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Issues
Was plaintiff’s injury the immediate act of the defendant or from the third person?
Held
Appeal dismissed – injury was direct & unlawful act of D who originally threw & intended to throw
the squib
Ratio
Directness doesn’t have to be physical touch; done by a mean it’s sufficient
Analysi - probable consequence was someone to be injured even though it wasn’t intentional
s
- he who acts through another does the act himself (qui facit per aliud facit per se)
- he who does the first wrong is answerable for all consequential damages
- not necessary for D to personally touch plaintiff, done by a mean is sufficient
Dissent Injury not immediate – consequential injury = action on the case
- everyone has right to protect themselves, but in a manner not to endanger others
Leame v Bray (1803) 102 ER 724 (KB)
Expanded definition of trespass vis et armis – intention not required; immediacy is based upon the
immediate act of force by the defendant
Facts
- D drove horse-drawn carriage into P’s carriage; P’s horses panicked & P fractured his collarbone
when he jumped from carriage to save his own life
- occurred in dark night, D was driving “with force & arms”
- P sued for trespass, claimed it was intentional
Issues
Is willingness necessary to constitute trespass?
Held
Wilfulness is not necessary
Ratio
Expand definition of trespass vis et armis – intention not required; immediacy is based upon the
immediate act of force by the defendant
Analysis
- Not case of trespass vi et armis – irrelevant if injury was willful or not
- case involved negligence – didn’t intentionally hit P with horse because it was a dark night but D
failed to act as a reasonable person in this case
Williams v Holland (1833) 131 ER 848 (CP)
Added layer of intention to trespass vi et armis – intention may/should be requirement; Can bring trespass
on the case for negligence even if an action in trespass due to immediate injury is appropriate
Facts
- D collided his carriage into P’s carriage that was carrying his son (his servant)
- alleged that D drove carelessly & improperly; destroying P’s carriage & injured son ∴ deprived of
his services
- brought action on the case for negligence (action for damages caused by collision traditionally
brought under writ or trespass)
Issues
May an action on the case be maintained if an action in trespass due to immediate injury is
appropriate?
Held
Appropriate writ is trespass on the case because there were issues around directness requirement
Ratio
Added layer of intention to trespass vi et armis – intention may/should be requirement
Analysis - trespass on the case has 2 elements: directness & wilful – if its carelessness, even if it’s
immediate (direct), as long as it’s not wilful, person can go with trespass on the case
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Holmes v Mather (1875) LR 10 EXCH 261
Affirmed rule: if act that causes injury is an act of direct force, trespass vi et armis is the proper cause of
action
Facts
- D driving horse cart w/ servant when horses became unmanageable – attempted to guide
runaway horses w/o success; while turning a corner, led horses into P’s path & injured him
- P sued in negligence & trespass
Issues
Is there negligence by the defendant for being unable to control the horses?
Held
No negligence
Ratio
Affirmed rule: if act that causes injury is an act of direct force, trespass vi et armis is the proper
cause of action
Analysis
- D endeavoured to do what’s best in circumstances: driver guided horses away from P but
injured her despite his efforts
- people on roads must expect such mischief as reasonable care on the part of others cannot
avoid
Commentar - if act is direct = trespass vi et armis
y
- wrongful act but not direct (not wilful or person didn’t act on own will) = trespass on the case
- juts because someone suffered damage from another’s action doesn’t mean there’s a tort; if
not direct or wilful enough, can simply be an accident
Cook v Lewis [1952]
No joint tortfeasance when 2 parties are engaged in a lawful act and it’s proven that 1 of them caused harm
but cannot be proven which party actually did it
Facts
- All parties were hunting. Lewis (D) was hiding in bush & his brother tried to warn P &
companions of this but was misunderstood
- grouses flew out of bush, Cook & friends fired shots – D hit in face & lost an eye
- P & friends claimed that they couldn’t have shot D
- Trial jury: one of their shots hit him but couldn’t decide whose shot it was
- COA: ordered new trial, Cook appealed
Issues
When there are two parties – proven one of their actions caused harm but can’t prove who,
which one, if any, are liable?
Held
Cook’s appeal dismissed
Ratio
No joint tortfeasance when 2 parties are engaged in a lawful act and it’s proven that 1 of them
caused harm but cannot be proven which party actually did it
Analysis
- P’s case is made by proving that he was injured by force applied directly to him by the D; then
onus falls on D to prove that trespass was utterly without his fault
� satisfied onus of establishing absence of both intention & negligence
Commentar - Last half of 19th century: established that a form of intent/negligence is prerequisite to liability
y
in most areas of tort law
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LIABILITY IN TORTS (Sept 12 L)
Fault in various forms emerged as a central organizing principle of tort law
Basic principle: liable for intentional tort if conduct is voluntary & intentional
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Divided into 4 categories:
o Intentional torts, Negligence, Strict Liability, Residual group of actions (based on unique
principles of liability)
Absolute Liability
- Defendant held liable for simply engagement in proscribed behaviour, causing plaintiff to suffer a loss
(plaintiff not required to prove defendant’s conduct was intentional or negligent). Prohibited act
directly causes loss. Defendant not entitled to plead exculpatory defences. Canadian law does not
contain any torts of this type of liability (18)
Strict Liability
- Ambiguous phrase. While an obligation was breached, the defendant did not do so intentionally or
carelessly. Strict liability regime allows defendant to plead some defences (18-19)
- Doctrine of vicarious liability: allows court to hold one person responsible for a tort committed by
another, most often occurring under the rule of respondent superior (employer responsible for
employee) (19)
Negligence
- Failure to take reasonable care to prevent foreseeable harm to another person (19)
- P must prove D failed to take reasonable care to prevent harm
Intention
- Based on fault: P must prove actual subjective intent on the part of D (19)
- Doctrine of imputed intent – law ascribed the requisite intention to the D if the P’s loss was certain or
substantially certain to follow from D’s act
- Canada: P proves that injury was caused directly, burden of proof then shifts to D to disprove intent &
negligence
No Liability
- Some types of harm aren’t recognized under rule of tort liability, regardless of intention/carelessness
- Not recognized under any rule of tort liability. May lie outside of scope of tort law (19-20)
FUNCTIONS OF TORT LAW (20) (Sept 14 L)
 Piece-meal attempts by courts in a de-centralized fashion to shape both procedural concerns and
particular social goals on a case-by-case basis (20)
 Under functional approach, questions are raised relevant to social concern: which
principles/rules does tort law currently endorse? Which principles and rules should be endorsed?
What behaviours are sought to be prevented or what benefits does tort law seek to promote?
 Ability to affect behaviour; tort law as a legal system of social control amongst a wide array of
other systems that may be non-legal (21)
Compensation – reparation for loss
 Primary purpose. Tort law is extremely inefficient as a mechanism for providing compensation
because of uncertainty in judgment; costs bearable to plaintiff (risk); compensation may also be
limited in quantity and restricted to a number of parties involved (21)
 (You cannot force somebody to do something within tort law, but the primary relief
is monetary compensation; You must be strategic on who you sue; and when you
“pull the plug” on a lawsuit; Ontario caps how much you can take from a client for a
payout; Majority of lawyers in the province expect hourly rates and disbursement;
Risks posed to compensation (client may suffer a loss because of lawyers’ fees + trial
fees, rather than settling for less) (Sept 14 L)
Appeasement & Vindication – Meant to vindicate plaintiff’s position and condemn defendant’s conduct.
Nominal damages are available in response to some torts (few sue for nominal damages) as it is a symbolic
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means/recognition of the wrong so it is unfavourable to a plaintiff who must regain expenses of legal process
(21)
Punishment – Intersection with criminal law with punitive elements; punitive damages available for highhanded, vicious or outrageous conduct (rise of negligence claims has decreased this element); moral
blameworthiness (22)
Deterrence – Must clearly define the undesirable conduct & provide sufficient inducements for discouraging it
- Tort law has greater deterrent impact on premeditated conduct than spontaneous careless behaviour
Market Deterrence – tort law as a system of loss allocation (22-23)
- Allocating costs of accidents to produce of accident; cost of accident are internalized in price of
product or activity
- Ex. high cost of dangerous products lead consumers to purchase cheaper, safer services
Justice – retributive, distributive (wealth distributed in society), corrective (correct improper deviations from
the pattern by annulling “wrongful” gains & compensating “wrongful” losses) (23)
Rights Theory of Tort Law (25-26)
- Theory: recognition, enforcement & redress of individual rights
- Tort law is instrumental as it exists for the purpose of repairing losses, punishing wrongful acts,
deterring future misconduct, promoting economic efficiency etc. (25)
- Damages are available for the purpose of vindicating P’s primary right; monetary relief acts as a
substitute for that right
- Legal rights must reflect interpersonal moral rights – not simply matter of policy
- Characteristics:
o non-instrumentalist—private law doesn’t exist to promote external goals (deterrence/
compensation)
o Structuralist – rights aren’t merely incidents or contingent elements of a larger enterprise –
they underlie & inform the entire subject
o Formalist – rules must govern
o Individualist – focuses on P & D, rules reflect narrow relationship b/w parties
- Analytical Rights Theorists: seek to understand nature of rights & explain ensuing implications
- Interpretive Rights Theorists: aim to provide a coherent account of existing law
- Normative Rights Theorists: law ought to develop by reference to rights & obligations
VOLITION
- D’s act is voluntary if it’s directed by his conscious mind – something you have control over, not
necessarily what you’ve chosen to do
- Often assumed – Court will assume or even presume, that if there's enough evidence to show that D
committed the tort, the volition is accounted for – no need to prove you were a victim
Smith v Stone (1647) 82 ER 533 (KB) (52)
Trespass requires volition – Involuntary trespass it not actionable
Facts - Smith brought action of trespass after D was carried onto P’s land by force & violence of others,
and wasn’t there voluntarily
- there was trespass by the people who carried onto the land, and not by D
Issues
Should D be liable for trespassing even though he was forcefully carried upon the land?
Held
D did not trespass since he didn’t voluntarily go on the property
Ratio
Involuntary trespass it not actionable
Analysi
s
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INTENTION
Intentional tort law requires intent (voluntariness presumed) (Sept 14 L)
Person’s desire to bring about the consequences of his act, rather than his desire to do the act itself
Single act may bring about several consequences, some of which are intentional – only 1 may be
relevant
Intention = spectrum – from an accident w/o intention to something that’s purposeful
Relevant to damages: mitigating & aggravating factors
Motive is irrelevant to tort law (relative to evidentiary criminal law)
Not as relevant because there are a lot of torts that occur without it
Motive is the reason why you committed a tort (battery is a battery, but your intention mitigates the
damages)
Mistake is also confused with intention
o Could be a mitigating factor, but there is a general rule that mistake is no excuse for the law
o There is a presumption that in Canada, you know the law (this is a legal fiction but has created
our entire justice system)
Thin Skull Principle: the defendant takes his victims as he finds them (Tut 1)
If the plaintiff’s injuries are unexpectedly more severe than what would be expected for a reasonable
person because of the plaintiff’s pre-existing condition, the defendant is still liable for that more
serious harm
Crumbling skull principle: when plaintiff has an unstable medical condition that causes injuries and
damage, irrespective of the defendant’s actions, the defendant does not need to compensate the
plaintiffs for the effects of that condition because the plaintiff would have experienced them anyway
Actual (Clear) Intent
- Wrongdoer knew of consequences & wanted to cause them (Sept 14 L)
Imputed (Constructive) Intent
- Wrongdoer didn’t desire the consequence to occur but they were certain/substantially certain to result
from his actions
- Knew of consequences, wanted to cause them, but victim and/or consequences were not what was
anticipated
Transferred Intent
- D intends to commit an intentional tort against 1 party but unintentionally commits intentional tort
against the P
- If D intends to commit 1 type of intentional tort against P but unintentionally commits another
o D’s wrongful intent regarding the first tort is transferred to the 2 nd tort to permit recovery
Related Issues: Motive, Mistake, Accident
Motive
- Reason for wanting to do it; intent is the wanting; motive generally not element of cause of action
- Can be used as a defence & may affect damage amount (duress)
o Gilbert v Stone (1648) – duress=irrelevant to motive, particularly if allowing the defence would
deny relief to P –can use it as a defence to mitigate damages (55-56)
- Provocation – immediate threat causing D to lose his power & self control using reasonable person test
o Miska v Sivec (1959) – defines provocation: conduct must have been such that a reasonable
person to lose control & must have occurred at the time or shortly before the assault (57-58)
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Mistake
- D intend the consequences of their act, but those consequences have a different factual or legal
significance than that contemplated (Sept 14 L)
- Mistake is also confused with intention
o Could be a mitigating factor, but there is a general rule that mistake is no excuse for the law
o There is a presumption that in Canada, you know the law (this is a legal fiction but has created
our entire justice system)
- Has no effect on issue of intent – not relevant to establishing elements of a cause of action; may be
able to raise it as a defence to lower amount of damages
- Neither mistake of fact or of law is recognized per se as a defence to intentional tort liability
- Hodgkinson v Martin (1929) – person thought they had authority to remove someone from office –
sincere mistaken belief isn’t excuse but can mitigate liability damages (59-60)
- Ranson v Kitner (1889) – mistake not enough to dismiss case but may mitigate damages
Accident
- Establishing true accident (very hard to prove) – D proves tort occurred utterly without fault
- Situation where D unintentionally & without negligence injured the P
Children & Mentally Ill
- Courts tend to rely on first part of criminal defence of mental disorder (criminal responsibility is 12 yo)
- Often framed in terms of whether D was capable of “appreciating the nature & quality” of his act – low
threshold: if they knew difference b/w right & wrong
- No real vicarious liability in Canada:
- Generally try to sue parents for negligence for failing to control child – child won’t have money
- Doctors/nurses only liable if they’re a party to the wrongful act or were negligent in treating the
patient
REMEDIES (Sept 19 + 21 L)
Extrajudicial Remedies (self-help)
- Don’t go to court (ex. just take back something stolen from you)
- Doctrine of clean hands: 2 wrongs don’t make a right
Judicial Remedies (29-30)
Types
Damages – grants P a legal right to specific sum, doesn’t result in immediate transfer of $ – collection: P may
have to pursue creditors’ remedies
Injunction – court order that directs party to do or refrain from doing certain things
- Prohibitive injunction: forbids D from doing something
- Mandatory injunction: compels D to do something
- Granted by courts of equity & not common law courts – only available if common law remedies are
inadequate & are discretionary
Declarations – formal finding of fact (statements/decisions) of court, usually issued to resolve a dispute or
issue of legal rights
Orders of specific restitution – direct a party to restore a pre-existing condition or return an object
Charter – s.24(1): person whose rights infringed may apply to a court to seek whatever remedy court
considers just & appropriate in the circumstances (ex. issue declaration, aggravated & punitive damages)
Classification of Damages (31)
- Criteria according to nature of P’s loss, way in which loss is calculated & proven, purpose for which the
award is made
- Pecuniary (monetary) & Non-pecuniary (non-monetary) losses of plaintiff
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o Non-pecuniary cannot be subjected to exact calculation (ex. pain & humiliation)
- Special Damages: those that can’t be exactly quantified @ time of trial
- General Damages: those that’re incapable of such quantification
Nominal (token) Damages (32)
- Awarded in small sum to redress violation of a legal right the law deems worthy of protection, even in
absence of harm
- Based on purpose, not amount
- ‘Small’ sum (relative…) awards to redress a violation of a legal right that the law deems worthy of
protection even in the absence of actual harm (actionable without proof of loss in order to protect
right of exclusivity) (32)
The Mediana [1990] AC 113 HL (32)
Nominal used in actionable per se cases (actionable without proof of loss) – aren’t just small damages, are
symbolic
Issues
What’s the difference between nominal & compensatory damages?
Ratio
Nominal used in actionable per se cases (actionable without proof of loss)
Analysis
- Term “nominal damages” doesn’t mean small damages – it is a symbolic amount of money
- Court affirms point that the person has done something wrong
Commentar Nominal doesn’t mean small, small doesn’t mean nominal
y
Compensatory Damages (34-35)
- To place P in position which he would’ve been in if he hadn’t suffered the wrong complained of
- Assessing for Pecuniary Loss – can involve complex calculations based on speculative factors stretching
far into future
- Assessing for Non-Pecuniary Loss – must be fair & reasonable, fairness gauged by earlier decisions;
award must also of necessity be arbitrary or conventional
Aggravated Damages (37-41)
- Aggravated damages different from punitive damages as aggravated damages are defined as a form of
compensatory damages that are awarded to compensate the plaintiff for additional injuries to dignity
and similar feelings arising from the defendant’s reprehensible conduct (37-41)
- Sub-category of compensatory damages – compensate P for additional injuries to dignity & similar
feelings arising from D’s reprehensible conduct
- Test:
1. P must establish they suffered additional injuries to their feelings
2. D’s conduct must be highly offensive or particularly repugnant & not simply tortious
- (In aggravated damages, you are recognizing that the victim should be compensated because of the
harm that was inflicted upon them by the defendant; with punitive damages, it’s not that the victim,
should be compensated but the tortfeasor should be punished) (Sept 19 L)
B(P) v (B)(W) (1992) (p.39)
Being found guilty of a criminal offence doesn’t preclude you from being found guilty in tort
Facts - P sexually assaulted for many years by her father (D) & sued for assault & battery
- D didn’t defend the action & proceeded to issue of damages
- P extremely traumatized, emotionally & socially dysfunctional, highly unlikely to be able to
function in moral relationship
Issues
Would it be double jeopardy for D to be pay damages for criminal offence?
12
Held
P awarded $100k for non-pecuniary general damages; $75k aggravated damages for gross breach of
trust; $50k punitive damages for the rape
Ratio
Being found guilty of a criminal offence doesn’t preclude you from being found guilty in tort
Analysi - Non-pecuniary general damages: severe psychological damage
s
- Aggravated damages: must be considered in overall assessment of non-pecuniary general damages
but in some cases may deal w/ separately (like in this case)
� D was predatory & had disgraceful conduct & gross advantage of young daughter
- Punitive damages: only part of D’s conduct was criminally sanctioned so it’s not double jeopardy
for the charge of rape which was stayed
Punitive Damages (Retributive, Vindictive, Exemplary) (37-41)
- Punitive damages are limited to situations where a defendant’s reprehensible conduct warranted
punishment
- Serves dual function, providing punishment (backward condemnation) /deterrence (future
discouragement)
- Punishment must be proportionate to wrongdoing; damages are quantified with reference to
defendant’s moral blameworthiness
- Damages based on deterrence will be quantified in terms of the financial disincentive required to
discourage future wrongdoing
- In Rookes v Barnard, court limited punitive damages to 3 categories: oppressive, arbitrary or
unconstitutional conduct by govt. officials; conduct calculated to make a profit in excess of likely
compensatory damage award; situations in which such awards were expressly authorized by statute
- Canadian courts reject limiting punitive damages to 3 categories and award punitive damages far more
frequently than UK courts (but punitive damages are uncommon in Canada)
- Serves dual function: punishment & deterrence
 Punishment looks backward to condemn D’s actions – must be proportionate to wrongdoing &
with reference to D’s moral blameworthiness
 Deterrence looks forward to discourage D & others – quantified in terms of financial
disincentive required to make a profit in excess of the likely compensatory damage award
- Relatively uncommon
Whiten v Pilot Insurance [2002] (p.43-44)
Punitive damages available for any type of case to punish the D, deter D & others, denounce the conduct, or
trip D of profits that his outrageous conduct generated in excess of the likely compensatory damage award
Facts - D refused to pay P’s claim when house was destroyed by fire, claimed that P intentionally burned it
down despite contrary conclusion of fire chief, adjuster, expert engineer, investigators
- D replaced adjuster & pressured experts to conclude fire was caused by arson by providing
misleading information – conduct was planned & deliberate
Held
Restored jury’s $1M punitive award against defendant
Ratio
Punitive damages available for any type of case to punish the D, deter D & others, denounce the
conduct, or trip D of profits that his outrageous conduct generated in excess of the likely
compensatory damage award
 The fact that the defendant has been punished criminally does not preclude a punitive
damage award, but rather is only one factor to be considered by the courts)
13
Analysi - Only very serious misconduct warrants punishment, deterrence or denunciation
s
- most likely awarded in intentional torts, but may be awarded in nuisance, negligence, others
- D being punished criminally doesn’t preclude a punitive award, but will be considered
- should be awarded with restraint & then only if compensatory damages award is insufficient
- no fixed ratios b/w compensatory & punitive damages (should be lowest sum necessary to
accomplish goal of deterrence)
Disgorgement (gain-based) (45-46)
 Disgorgement (gain-based): Once plaintiff establishes defendant is liable in tort, court typically
assesses damages in terms of amount of money required to compensate plaintiff for his/her loss (4546)
 Appropriate remedy may not be compensation but rather disgorgement of defendant’s profit
(shifts focus from plaintiff’s loss to defendant’s gain)
 Principle that people should not profit from their own wrong-doing
 Courts have not determined which causes of action support disgorgement
 Proprietary torts (trespass…) allow plaintiff to choose between compensatory and
disgorgement damages
 Canadian courts will analyze cases not in terms of disgorgement but rather restitution for
unjust enrichment
 Unjust enrichment is an independent cause of action (not a tort nor category of contract) that deals
exclusively with unjustified transfers of benefits involving the plaintiff and the defendant (46-47)
 3 elements: 1. An enrichment to defendant 2. A corresponding deprivation to the plaintiff 3. An
absence of a juristic reason for the enrichment (plaintiff must establish that the defendant did
not receive the enrichment as a gift, pursuant to a contract or as a result of a judgment, other
legal disposition or performance of an obligation)
 Under restitution, the plaintiff cannot get back more than what he or she lost; defendant
cannot give back more than he or she gained
 There must be distinction between disgorgement, unjust enrichment, and restitution
Edwards v Lee’s Administrators
Damages awarded to strip defendant of wrongful gain (unjust enrichment)
Facts
- D operated cave touring business where entrance was on his property, but large portion of
cave was under P’s property where there was no entrance
- P sued in trespass to land, seeking an accounting for a share of profits & injunction to prevent
further trespassing
Issues
Is P entitled to compensatory and disgorgement damages where no harm or tangible loss
occurred?
Held
D liable to trespass to land
Ratio
P is entitled to seek compensatory & disgorgement damages but can only choose one remedy
Analysis
- P had no access to cave = no adverse effect by D’s business & suffered no tangible loss
requiring compensation
- basis of recovery = profits received, rather than damages sustained
Commentar - courts often analyze cases not in terms of disgorgement but rather “restitution” or “unjust
y
enrichment”
14
Penarth Dock Engineering Co Ltd v Pounds (1963) (p. 47-48)
Test of the measure of damages is what benefit the D obtained by having the use of the land, not what P
lost
Facts
- P sold floating pontoon to D who agreed to remove it from the premises that P rented
- D didn’t remove for 7 months, thus committed trespass to P’s land
- P suffered no loss, sough disgorgement of D’s gain rather than compensation
Ratio
Test of the measure of damages is what benefit the D obtained by having the use of the land
APPORTIONMENT OF FAULT IN INTENTIONAL TORTS (274-277)
- Historical all-or-nothing approach where if P negligently contributed to his own injuries, D had
complete defence to negligence liability (seen as unfair)
- (Partially liable, but so is the other party; As a result, the amount of damages will be adjusted to
recognize the plaintiff was partially responsible for their own part; Early belief that directness and
immediacy meant the same thing; Directness means direct contact between the plaintiff and
defendant; court said over time that such does not have to be direct per se, but immediate) (21 Sept L)
- Examples include Bell Canada v Cope (Sarnia) Ltd. (1980), Bernett v Vancouver (City) (1997)
- Legislation introduced to apportion losses in negligence actions b/w D & P according to respective
degrees of fault
- Arises only when 2 or more parties have caused/contributed to the same loss or injury (indivisible)
- Canada: common law provinces apply legislation in any case where damages have been caused by
“fault or neglect” = “fault” can be interpreted beyond bounds of negligence
- Bell Canada v Cope (Sornia) Ltd – D’s damages in trespass to land were reduced by 33% to reflect P’s
contributory negligence
- Brentt v Vancouver (City) – P’s damages reduced by 75% under prov apportionment legislation to
reflect his provocative & irresponsible behaviour as ringleader of riot
- Boma Manufacturing Ltd v CIBC – apportionment can arise among various Ds
BATTERY (NOMINATE TORT - ACTIONABLE PER SE) (63-70)
Definition: Direct & intentional bringing about of a physically harmful or socially offensive physical contact
with the person of another
Requirements: Intent for physical contact (objective reasonable person test) – need not have intent to harm/
offend P or be aware of contact when it occurred
- P not required to prove he did not consent (consent=affirmative defence that D must assert & prove)
Burden of Proof: on P to show D was responsible for tort, but on D to show there’s no intent or no volition
Unsettled law: Deliberateness, Awareness, Directness (Tutorial 2)
- Deliberateness – difference b/w deliberate & intent
- Awareness (doesn’t have to be part of the tort) – does person need to be aware of contact?
- Directness – the less direct the action the more difficult it is to prove (ex. push you into someone)
Limitations comes out of statute (26 Sept L)
o There are statute of limitations under provincial statute (2 years from date you discover
tortious action to start civil litigation) (not 2 years from when it happened but when you
discovered)
o There are exceptions (once you are an adult)
OTHER NOTES: There is a legal fiction of the reasonable person: Would the reasonable person have done x, y,
z? (Sept 26 L)
Reasonable person has no definition; it is supposed to be objective and cannot be categorized
15
-
-
-
In some scenarios, the reasonable person could be subjective (This person was from a different
country… What is reasonable for that person?)
In intentional torts, reasonable person is usually objective whereas in negligence it is sometimes
subjective
If actionable per se, no damages are necessary to sue to claim damages
There could be agreement and disagreement on what we find offensive/harmful
Many cases have been verified and tested as battery—there are grey areas
Deliberateness is different from intentional where there is some form of motive (did you deliberately
mean to be harmful or offensive?)
You could have intended to hug the person but did not deliberately mean to offend them
On-going debates on whether battery is reasonable subjectively or objectively
 The case law lies more so towards an objective test
Awareness (does the person need to be aware that the battery occurred? Generally, no, but it is
unsettled and is in a grey area)
 You can battery someone who is unconscious
 Question/issue is one of evidence
If you can prove it, they would be held liable even if you were unaware that the battery occurred
Excessive intoxication (SCC cases) deal with this important issue (cannot form mens rea to commit a
crime; nor can you form intention to commit a tort)
Directness does not always mean you need to physically touch someone else, but there must be an
aspect of immediacy to trace back to the defendant
Volition is presumed, need intention; must be direct and have a physical interference for battery
 Deliberateness, awareness and directness is subject to either the subjective or objective
reasonable person
The burden of proof always lies to the plaintiff; test is on balance of probabilities
Cross-over between intentional tort and negligence
Even if you lose on intentional tort claim, you can argue on a negligence claim and win
Pleading in the alternative (in the event where it is not an intentional tort… it is a negligence claim
against X)
Intentional torts are also criminal offenses (battery and assault as the same charges)
Compensation as an issue
 If you put all your effort in a criminal case and win, you can gain compensation from a victim
fund
 As a result, you may choose not to pursue civilly because of costs and efforts, and rather focus
on criminal guilt/adjudication of guilt
Bettel v Yim (1978) 88 DLR (3d) 543 (Ont Co Ct) (64-70)
Person is responsible for all damage, foreseeable or not, that results from their battery Facts
- P entered D’s store w/ several boys to play games before asked by D to leave store
- D saw P lighting matches & throwing them into store; then found flames coming from inside
- D grabbed P by arm to prevent him from leaving, began shaking him for a confession; while
shaking him, D’s head struck P’s nose accidentally without intent
Issues
If there’s no intention to injure, can there be a finding of battery?
Held
D liable for battery
16
Ratio
Person is responsible for all damage, foreseeable or not, that results from their battery
Analysis
- Shaking of P constituted the intentional tort of battery – purpose of shaking doesn’t fit into
accepted defences (consent, self-defence, defence of property, necessity, legal authority)
- intentional tort law seeks to protect dignitary interest
- there was physical consequence, direct, actionable per se
- “law of negligence is a concept that ought not to be imported into the field of intentional
torts”
Commentar - using negligence concepts in intentional torts would ignore essential difference b/w
y
intentional infliction of harm & unintentional infliction of harm resulting from a failure to
adhere to a reasonable standard
ASSAULT (NOMINATE TORT - ACTIONABLE PER SE) (70-75)
Definition: any direct & intentional act that causes a person to apprehend immediate harmful or offensive
bodily harm
Requirements: Direct, Intent, Immediacy, Harm/Offence, Bodily harm; Actionable per se = don’t need
damages
- Intentional creation in person’s mind of a reasonable apprehension of immediate physical conduct
� conditional, future threats & words alone without some overt act cannot constitute assault
- If battery preceded by assault, court may ignore or only superficially discuss the assault
Burden of Proof: On P to show the intent & action, burden shifts to D to disprove they had intent, volition or
negligence; must show A) the intention& volition; B) survive the defence
Unsettled law: (Tutorial 2)
- Future threats – no immediacy
- Conditional threat – “if you do this, I’ll do that” - threat with a condition that they have no right to impose &
the compliance with which is essential to ensure the victim's safety
� may be assault: needs immediacy + no choice but to comply + tortfeasor has no right to make threat
- Passive conduct – assault by not doing something
� R v Ireland – D made numerous phone calls but remained silent when answered – nature of calls were likely
to cause victims to apprehend immediate & unlawful violence
- Words & Means - must you have the means to follow through with the words?
 Reasonable person does the court consider the subjective apprehension of harm by the plaintiff and
how they felt?
 Eg. Holcombe: Court considers Holcombe’s personal fears
 Words without means-->if person has no means to actualize their verbal threats, is it assault?
 Eg. Police v Greaves: if Greaves was not holding a knife and standing a few feet from officer
when he made his threat, would it have been assault?
 Eg: Holcombe v. Whitaker: ”words alone do not constitute assault”: if Whitaker had only told
Holcombe to not take him to court or else, he would kill her, calmly, only once, rather than
aggressively clawing at her door and making threat repeatedly, would it have been assault?
OTHER NOTES: Volition and intent required (Sept 28 L)
 Intent must be proved because volition is presumed
 Direct and intentional (historic vi et armis, nominate tort) and actual per se (no damages need to be
proven) act that causes a reasonable person to apprehend immediate, harmful or offensive bodily
contact
17


There does not have to be physical harm to constitute an assault; person has to apprehend immediate
harm; immediacy
You can have a battery without an assault
Holocombe v Whitaker, 318 So.2d 289 (Ala SC 1975) (71-72)
Words give meaning to an act & both, taken together, may constitute an assault
Facts - D said “if you take me to court, I will kill you” when she went to see him to get an annulment
- did so against after P filed the suit, went to her apartment, beat on her door, tried to pry it open
- D claims not assault b/c it was merely a conditional threat of violence & no overt act was involved
(no proof he was going to kill her)
Issues
Did D’s action constitute assault? Can assault take place when there’s only a conditional threat of
violence?
Held
D liable for assault
Ratio
Words give meaning to an act & both, taken together, may constitute an assault
Analysi - D had no right to impose the condition on P, cannot say that the condition explained away his
s
threat to harm her
- actions of pounding on door & making every effort to get into apartment = sufficient to arouse an
apprehension of harm or offensive conduct
- threat was successful in efforts to frighten P
Police v Greaves [1964] NZLR 295 (CA) (72-73)
Conditional threat can constitute assault – show of force, accompanies by an unlawful or unjustifiable
demand & present ability to carry out threat, compliance with which will avert the threatened battery
Facts
- Tolley called police after attacked by inebriated respondent who also resided in house
- Police arrived, respondent opened door with knife in hand, threatened officer saying “you
come a step closer & you will get this straight through your guys”
- officer faced with threat, withdrew to obtain further assistance
History
- appellant convicted of assault in court – conviction quashed in Supreme Court on grounds that
threat made by appellant was conditional one & didn’t constitute assault
Issues
Did the conditional threat constitute an assault?
Held
Greaves liable for assault on officer
Ratio
Conditional threat can constitute assault – show of force, accompanies by an unlawful or
unjustifiable demand & present ability to carry out threat, compliance with which will avert the
threatened battery
Analysis
- Menacing attitude of respondent caused police to retreat for help
- There was threat of violence exhibiting an intention to assault & a present ability to carry
threat into execution
Commentar Active or passive threat – with means to execute threat it can raise to level of assault, won’t be
y
absolved of liability simply because D could avoid harm by not taking action
FALSE IMPRISONMENT (NOMINATE TORT – ACTIONABLE PER SE) (75-84)
Definition: direct & intentional confinement of another person
18
Requirement: Volition, Intention, Directness, Confinement
- Restraint of movement – must be total, even if only momentary – may be imposed by barriers, physical
means, implicit/explicit threat of force, implicit/explicit assertion of legal authority
Burden of proof: P has prima facie obligation to prove case (easy: show inability to leave the room or
questioning); burden shifts to D to prove why conduct doesn’t meet definition
Unsettled law: Complete detention, Psychological confinement, Person being aware of confinement

3 grey areas undefined (Oct 3 L)
1. Complete Detention/Partial Detention is enough? Courts have usually said that if there are
alternatives to get out, that doesn’t mean it is any less than a detention
2. Psychological Imprisonment: Even if not physically confined, if you were under the impression
that you were not allowed to leave—is that enough to make it a false imprisonment? Law is
unsettled, but it does appear that if the person was an authority, or there was expectation that
there was authority, then the psychological imprisonment could be a legitimate false
imprisonment
3. Issue of Awareness: In battery cases, you do not have to be aware—for false imprisonment, it
may go the other way (comes up with respect to children, elderly
1. Bird v Jones: majority held there was no FI against Bird because Bird had alternative routes of escape
available to him vs. Dissent said otherwise, that just because of the fact that Vird’s liberty was impeded
on, it does not matter that he had other routes of escape and that he had in fact being falsely
imprisoned
2. Psychological imprisonment: even if you were not physically confined, but if you were under the
impression that you were not allowed to leave- FI?
3. Campbell was falsely imprisoned because she was under the impression that she had to listen to the
security guard and comply with his demands or else she would embarrass herself, cause a scene made
her feel forced mentally and imprisonment and forced to comply with his demands- gave her
impression she had to oblige or else there would be consequences (she would embarrass herself)=
mental F.I.;
3) Awareness (in battery- said we don’t have to be aware to be victim of battery) vs in FI—> need to be aware
to be victim of FI
-usually comes up with vulnerable persons: children, elderly (eg. seniors homes’ removing doorknobs so
seniors couldn’t leave their rooms for covid 19 precuations)—if some seniors had dementia, etc. and were not
aware their doorknobs were removed, is it FI?
1. Herd v. Weardale Steel Coal & Coke Co. Ltd, 1914: Herd accepted to go down mine so could not claim
that he was being falsely imprisoned when he was not allowed to come back up mine shaft; If
someone willingly places themselves into a situation/consent to a situation that they cannot escape
from, then they haven’t been falsely imprisoned
Awareness Does victim need to be aware they are falsely imprisoned? Yes
Consensual Restraint if victim consents to the conditions they are in, is it false imprisonment? No can’t be
FI because it was a legitimate confinement P consented to
1. Eg. Herd v Weardale Steel Coal & Coke Co Ltd: Volenti non fit injuria: Herd willingly placed
themselves in situation so can’t now bring claim against employerwith intention
Bird v Jones (1845) 115 ER 668 (QB) (75-77)
Partial obstruction, unaccompanied by threat of force does not constitute false imprisonment
19
Facts
- P was prevented by Jones (police) when crossing a bridge to go a particular direction – done
without violence but expected that necessary force would be used to execute commands
- P was at liberty to go in any other direction
Issues
Whether or not a partial obstruction/confinement meets the definition of false imprisonment
Held
Not imprisonment
Ratio
Partial obstruction, unaccompanied by threat of force does not constitute false imprisonment
Analysi - inconvenience doesn’t meet definition: a mere obstruction of one direction that leaves person the
s
liberty to stay or go another direction is not false imprisonment
- imprisonment is a total restraint of the liberty of the person
Dissent As long as person is prevented from doing something he has a right to do, it makes no difference
Campbell v SS Kresge Co (1976), 74 DLR (3d) 717 (NSSC (TD)) (79-80)
Psychological restraint – Restricting person’s lawful movement by threat of non-physical harm given from
position of authority constitutes false imprisonment
Facts
- P left D’s store, another shopper tells security that she might’ve stolen something
- Officer goes outside after her, asks her to come inside office to avoid embarrassment, P
reluctantly follows before stopping to ask officer why
- Officer sees informant is gone and lets P leave
Issues
Did security officer’s actions constitute false imprisonment?
Held
P was imprisoned
Ratio
Restricting person’s lawful movement by threat of non-physical harm given from position of
authority constitutes false imprisonment
Analysis
- P subjectively felt obligated to stay when confronted & invited by member of police force to
avoid embarrassment – followed out of fear of consequences should she refuse
- No physical confinement & had opportunity to leave but psychologically felt no choice but to
stay
Commentar - person may be held liable in false imprisonment for ordering another person to do so (“stop
y
that man”)
Consensual Restraint
Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 (HL) (82-84)
Consensual Restraint – person who binds himself (by contract) cannot bring action of false imprisonment
against holder – it holds person to the situational conditions they accepted when entering into a contract
Facts
- P quit while in a mine, but in the middle of his shift and company refused to let him up until
end of shift
- P consented to going down mine, knowing that elevator doesn’t bring anyone up until shift is
over
- D justified refusal: P was guilty of breach of conduct in refusing to do work ordered to do
Issues
Did the actions of the respondents constitute false imprisonment?
Held
Not false imprisonment to hold a man to the conditions he has accepted when doing down a
mine
20
Ratio
A person who binds himself (by contract) to be held, cannot bring an action of false
imprisonment against the holder. (It is not false imprisonment to hold a person to the
situational conditions they accept when they enter into a contract).
Analysis
- if man chooses to to go into a dangerous place from which by the nature of physical
circumstances he cannot escape, doesn’t follow that he can compel the owner to bring him out
of it
- entered mine on terms that he complete his shift, must abide by terms on which he entered
mine
Commentar Maxim volenti non fit injuria – to a willing person injury is not done
y
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MALICIOUS PROSECUTION (INNOMINATE TORT) (84-94) + BEGINNING OF INNOMINATE TORTS
Innominate torts were historically trespass on the case; however over time, this included acts of
omission and the root of the law of negligence (5 Oct L)
These torts are not inherited by the writ system
Courts will expect damages (because you committed one of these torts doesn’t mean they’re
actionable)
Courts usually do not like when there are no real damages (waste of resources)
Still requires intention; but the concept of directness may not be required in innominate torts
Reasonableness threshold (with nominate torts, starting point is the reasonable person as objectively
viewed)
 Court could take a subjective view, but this is uncommon
With innominate torts, court is willing to be more open to the subjective lens of a reasonable person
Definition: unjustified interference with individual freedom arising from improper initiation of criminal
proceedings
- NOT actionable per se – P must establish he suffered loss/harm
Malicious prosecution (4 requirements) (5 Oct L)
 1. Must show defendant is responsible for intentional commencement of proceedings against the
victim (criminal proceedings in nature)
 2. Victim must have been acquitted
 3. Proceedings commenced without reasonable cause
 4. Defendant had to have acted by malice (needed to have started proceedings knowing that it was
going to harm you—this is the most difficult element to prove) (ascertain intent on the part of malice)
 (tangent) Abuse of procedure (abusing court system for illegitimate reasons)
Nelles v Ontario [1989] 2 SCR 170 (85-87)
Test: 1) Proceedings initiated by D; 2) Proceedings terminated in favour of P; 3) Absence of reasonable &
probably cause; 4) Malice or a primary purpose other than that of carrying the law into effect
Facts
- P charged w/ 1D murder for deaths of 4 babies @ hospital; all charges dropped b/c lack of
evidence
- P sued officers, ON AG, Crown for false imprisonment, prosecution, negligence, Charter
violations
Issues
What constitutes tort of malicious prosecution?
Should prosecutors & legal officials have absolute immunity?
21
Held
Ratio
Test: 1) Proceedings initiated by D; 2) Proceedings terminated in favour of P; 3) Absence of
reasonable & probably cause; 4) Malice or a primary purpose other than that of carrying the
law into effect
Analysis
- Reasonable & probable cause = honest belief in guilt of accused based upon a full conviction,
founded on reasonable grounds, of the existence of a state of circumstances which assuming to
be true, would reasonably lead any ordinarily prudent & cautious person to conclude that the
person charged was probably guilty of the crime
� must be both actual belief & belief must be reasonable in circumstances
- Malice = improper purpose – spite, ill-will, spirit of vengeance & any other improper purpose
- Policy considerations: shouldn’t be absolute immunity for office of Crown b/c that would grant
them a license to infringe on others
Commentar - Different from negligence - negligent can be poor police practice
y
- Different from abuse of procedure - abuse of procedure occurs when parties attempt to use
the court for a non-legitimate purpose
- Applies to criminal prosecution specifically
- Genuine malicious prosecution will also be offences under Criminal Code
- D must be driving force behind initiation/prosecution
Abuse of Process (92-93)
Definition: misuse of civil proceedings for a collateral or illicit purpose other than the resolution of the claim
- not primarily concerned with the wrongful initiation of proceedings – P doesn’t have to have to prove that
the earlier proceedings terminated in his favour, or that D lacked RPG for engaging in the earlier proceedings
Requirement:
1. D brought a civil action
2. D did so for some extrinsic purpose
3. D undertook, or threatened to undertake, some overt act, other than the litigation itself, in order to
further the improper purpose
4. P consequently suffered a loss
INTENTIONAL INFLICTION OF NERVOUS SHOCK (94-104)
- Historically: can’t have a verbal assault on someone that causes a physical harm (5 Oct L)
Definition: Wrongdoer, with intent, causes mental and/or physical harm to the victim
Unsettled law: Is mental harm enough to settle the tort? Traditionally needed physical element too
Elements:
 1. Conduct must be so outrageous/extreme and has to be coupled with actual, OR constructive intent,
to cause severe impact on the victim’s psychological well-being (usually a shocking event, but could be
a pattern of less shocking events)
 2. The shock in and of itself is not sufficient; the shock has to rise to a level of a recognizable psychiatric
illness or physical harm (could be a battery)
 3. The victim cannot have a predisposition or susceptibility to the shock (if you shock someone who
already has a pre-existing condition, the fact that the event triggered it, may not lend itself to the tort…
notwithstanding the egg-shell skull rule… therefore test of reasonableness comes in)
**Samms v. Eccles**
• If someone intentionally engages in some conduct toward the plaintiff
With the purpose of inflicting emotional distress; AND
22
Where a reasonable person would have known that such would result; AND
Their actions are of such nature to be considered outrageous and intolerable in that they offend against the
generally accepted standards of morality and decency
• Then they’ve committed the tort of emotional distress.
** does NOT apply in Canada--> in Canada we do not use reasonable person standard
Wilkinson v Downtown [1897] 2 QB 57 (94-96)
Infliction of nervous shock requires intent & mental injury (and no physical injury) & extreme conduct –
intent imputed (constructed) where act was so plainly calculated to produce some effect that intention
ought to be imputed to D
Facts
- D played joke on P, sent message that her husband was in bad accident, broken legs & had to
fetch him home – all of which was false
- effect of statement was a violent shock to her nervous system: vomit, more serious &
permanent physical consequences, weeks of suffering & incapacity – P had no previous illhealth/predisposition
Issues
What constitutes intentional infliction of nervous shock?
Does there need to be an intention for tort of infliction of nervous shock?
Held
P awarded damages
Ratio
Infliction of nervous shock requires intent & mental injury & extreme conduct
Analysis
- D wilfully did an act calculated to cause physical harm to P, infringing her right to personal
safety & therefore caused her physical harm
- wilful injury in law=malicious, although no malicious purpose to cause harm was caused nor
any motive of spite is imputed to the D
- D’s act was so plainly calculated to produce some effect of the kind which produced an
intention that ought to be imputed to him – sudden & seriousness of statement expected to
produce grave effects
- Effect was not too remote to be regarded as a consequence for which the D is answerable –
direct & natural consequence can flow from D’s conduct
- D acted voluntarily; D intended to produce harm; P experienced demonstrable damage; P
not particularly susceptible to harm
Commentar - First time that court held D liable for nervous shock
y
Radovskis v Tomm (1957) 9 DLR (2d) 751 (Man QB) (96-97)
Nervous shock must be visible & provable + be a natural or direct consequence of the wrongful act
Facts
- infant P raped by D who was convicted of the offence & serving lengthy sentence for
- father of P suing to recover damages for trespass to her person, medical expenses, loss of
wages & damages for nervous shock of child’s mother
Issues
Is psychological damage that doesn’t manifest itself as visible & provable illness actionable?
Held
Not sufficient to support claim
Ratio
Nervous shock must be visible & provable + be a natural or direct consequence of the
wrongful act
Analysis
- no medical or personal evidence from mother
23
- husband said mother didn’t have good nerves before & that since then they had been bad
- the illness furnishes the measurable damage, not the shock
- visible & provable illness may be natural consequence of violent emotion; fear or acute frieg
is not in itself capable of assessment of measurable temporal damage
Samms v Eccles, 358 P2d 344 (Utah SC 1961) (97-99)
Test for emotional distress w/o physical injury – D intentionally engaged in conduct toward P: 1) with
purpose of inflicting emotional distress; OR 2) where a reasonable person would’ve known that such would
result, and his actions are of such an outrageous & intolerable nature that they offend against generally
accepted standards of decency & morality
Facts
- D repeatedly & persistently called her at all hours, soliciting her to have sexual relations with
him; went to her residence one time with such solicitation & made indecent exposure of his
person
- P claims proposals were insulting, indecent, obscene – that her feelings were deeply wounded
& as a result suffered great anxiety & fear for her personal safety & severe emotional distress
Issues
What is the test for emotional distress where there’s no physical injury?
Held
P awarded punitive damages
Ratio
Test for emotional distress w/o physical injury – D intentionally engaged in conduct toward P:
1) with purpose of inflicting emotional distress; OR
2) where a reasonable person would’ve known that such would result, and his actions are of
such an outrageous & intolerable nature that they offend against generally accepted standards
of decency & morality
Analysis
- noted medical evidence not required – severe emotional distress recoverable if D intentionally
engages in conduct that’s objectively or subjectively harmful
� Objective harm: with purpose of inflicting emotional distress
� Subjective harm: outrageous & intolerable actions that any reasonable person would know to
be harmful
Commentar - not negligence case but there’s a cause of action that comes from action of the D
y
- case removes requirement of physical injury: even w/o psychiatric evidence can find liability
under 2-part test
INVASION OF PRIVACY (INNOMINATE TORT) (105-124)
- Canada: piecemeal combination of federal laws, some provincial laws – some attempts to argue privacy as
framing it in contract/property law
- Privacy = fairly modern & elusive concept of privacy – has competing interests (access of information vs
privacy)
- Violation usually means an intangible loss (hard to quantify it)
- Privacy claims come up in diverse circumstances - courts like some element of predictability
- Privacy Act, RSC 1985 (117)
- Personal Information Protection and Electronics Document Act, S.C. 2000 (117)
- Mixed bag:
- Common law: Torts Invasion of Privacy
- Federal legislation
- Personal Health and Information Protection Act 2004 ON
24
-
Eg. Privacy Act (BC): Hollinsworth v. BCTV:
If someone: willfully violates another person’s privacy without a claim of right AND the nature and
degree of that person’s privacy is reasonable in the circumstances, then they’ve breached the
statutory tort of breach of privacy.
OTHER NOTES: (Oct 5 L)
 World of privacy law is muddier than innominate tort law
 Privacy law in Canada is based under the common law (drawer of torts), federal legislation and
provincial legislation (Ontario is excepted)
 Attempts under common law to create new tort specifically for privacy
 Courts have recently declined to do that—why?
 Privacy was seen as a fairly new idea
 Until the conception of the internet, privacy was not on people’s minds as it is now
 Internet allows one to recognize how easy it is to lose or sign away your privacy rights
 Privacy is very subjective to particular communities; some communities feel like there is a right to
know about neighbours, whereas other cultures may be the opposite
 In tort law, we prefer objective than subjective tests
 Privacy also involves competing interests
 Sometimes we want to have access to information; we dislike when information is kept from us
 Freedom of speech is wanted; conversely, there is also information that is deemed privilege
and should not be shared
 Confidentiality in your life
 Tort law is not the best place to weigh competing interests
 Administrative law (legislature) should deal with policy issues on privacy
 Damage is intangible for violation of privacy
 How much money do you get if you feel violated?
 Reluctancy for courts to be arbitrators for privacy claims
 BC, MB, SK, NL have privacy statutes
 Federally, there are 2 (PIPEDA- deals with federal jurisdiction issues on information that is collected
electronically) and (Personal health information and protection act PHIPA- deals with any medical
information)
 In the past, there would be a trespass to chattel
 Attempts failed until 2006 (note on privacy) (109)
 Somwar v McDonalds (2006)
 Court of Appeal said they could not conclude that door allowing you to enter on an invasion of
privacy claim is closed (there is still the possibility that one day the court will allow an invasion
of privacy)
American Common Law Privacy Actions (108-109)
American states recognize 4 categories of cases that may give rise to common law action for invasion of
privacy:
- Unreasonable intrusion upon the seclusion of another – intentionally intruding upon solitude/seclusion
of person’s private affairs or concerns, if intrusion would be highly offensive to a reasonable person
- Appropriation of other’s name/likeness
- Unreasonable publicity given to the other’s private life – if publicized matter would be highly offensive
to a reasonable person & isn’t of a legitimate public concern)
25
-
Publicity that unreasonably places the other in a false light before the public – false light would be
highly offensive to a reasonable person, & actor had knowledge of or acted in reckless disregard to the
falsity of the publicized matter)
Motherwell v Motherwell (1976) 73 DLR (3d) 62 (Alta SC (AD)) (105-107)
Distinguish privacy from nuisance – held privacy rights as a category of the tort of nuisance
Facts
- D continually harassed plaintiffs, making false accusations via telephone & mail, refused
requests to cease
- P brought action against her for invasion of privacy & nuisance
History
- P won @ trial, D appealed: no action lay to restrain “lawful communications”
Issues
What is the distinction between invasion of privacy & private nuisance?
Held
Respondent had valid claims. Trial judge’s award of nominal damages & injunction upheld
Ratio
Invasion of privacy is a category of private nuisance
Analysis
- scope of tort category may be broadened by a trend in precedents – abuse of telephone
systems can be new category of private nuisance rather than rationalizing it to enlarge the
category of undue interference with a neighbour
- telephones communications: P has no control over incoming calls & who is calling – abuse of
phones (a necessity) is a matter of general interest
- Mail: didn’t result in substantial & unreasonable interference
Commentar - No tort of invasion of privacy – opened definition of nuisance
y
Jones v Tsige, 2012 ONCA 32 (113-115)
Created law for invasion of privacy as a tort = “intrusion upon seclusion” – Elements: intrusion was
intentional; intrusion was highly offensive to a reasonable person; amounted to unlawful invasion of private
affairs; intrusion caused anguish & suffering
Tort of “inclusion upon seclusion” (Tutorial 3)
(1) that the defendant’s conduct must be intentional
(2) that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or
concerns; AND
(3) that a reasonable person would regard the invasion as highly offensive causing distress, humiliation
or anguish.
Facts
- P discovered D was looking @ her bank records (same employer) and D had common-law
relationship with P’s former husband
- D had full access & looked into her records at least 174 times over 4 years
Issues
Is breach of privacy a tort?
Held
D liable for intrusion upon seclusion, awarded damages to P (no aggravated or punitive
damages)
Ratio
Elements: intrusion was intentional; intrusion was highly offensive to a reasonable person;
amounted to unlawful invasion of private affairs; intrusion caused anguish & suffering
26
Analysis
- P didn’t suffer public embarrassment or harm to her health, welfare, business/financial
position & D apologized and made attempts at amends
- considering damages: favour higher reward b/c D’s actions were deliberate, repeated & arose
from domestic arrangements likely to provoke strong feelings & animosity
Commentar - court created new tort of “intrusion upon seclusion” – first time tort was applied
y
- flexible about intention, not actionable per se
Hollinsworth v BCTV [1999] 6 WWR 54 (BCCA) (118-120)
Person not liable under Privacy Act when they act in honest & reasonable belief, and without knowledge
that they are violating privacy of another
Facts
- P was balding & underwent surgery to attach hairpiece to head which was filmed for
instructional purposes as agreed upon in contract & consent
- 7 years later, BCTV did feature on baldness, interviewed the doctor who gave them tape –
host verified with doctor that patient consented to this use of tape
- BCTV broadcast the feature that showed an unmistakable likeness of P’s face – easily
identifiable
- P sued BCTV, Look International & others for breach of confidentiality & breach of provincial
Privacy Act
History
Trial judge dismissed action against BCTV but awarded P on claims against Look International
P appealed dismissal of claims against BCTV
Issues
Did BCTV violate Hoolinsworth privacy?
Held
Appeal dismissed. Trial decision upheld.
Ratio
Not liable for tort of privacy when they act in honest & reasonable belief, and without
knowledge that they’re violating privacy of another
Analysis
- BCTV not liable in defamation because it didn’t make a false statement
- BCTV not liable for breach of confidence – no evidence they knew (or ought to have known)
that videotape was confidential
- Privacy Act, s.1: “it is a tort, actionable without proof of damage, for a person, wilfully and
without a claim of right, to violate the privacy of another”
-- “wilfully”: applied narrowly to an intention to do an act which the person doing the act knew
or should’ve known would violate the privacy – BCTV not wilful
-- “without claim of right”: an honest belief in state of facts which, if existed, would be a legal
justification or excuse – BCTV’s belief was honest & reasonable
Commentar - Tort actionable w/o proof of damage = actionable per se
y
- Use reasonable person test to define what privacy means
Breach of Confidence
- this tort action used to protect privacy of sensitive & personal information
- LAC Minerals Ltd v International Corona Resources Ltd – to recover for breach of confidence, P must
establish:
- Information was confidential in nature
- It was disclosed in circumstances creating an obligation of confidentiality
- Its unauthorized use was detrimental to the confider
27
DISCRIMINATION (INNOMINATE TORT)
Seneca College v Bhadauria (1979) 105 DLR (3d) 707 (Ont CA), rev’d [1981] 2 SCR 181 (124-126)
No tort of discrimination exists – example of courts not wanting to create new torts
No common law action where public policy excludes such action
Facts - P=racialized woman educated & qualified to teach in Ontario, applied to 10 teaching staff openings
but not granted any interviews even with requisite qualifications
- claimed she wasn’t given position because of her ethnic origins & suffered mental distress,
frustration, loss of dignity & self esteem
- issued writ claiming damages for discrimination & breach of OHRC
History COA: Appeal allowed
SCC: No tort of discrimination exists
Issues
Do allegations give rise to common law action or civil cause of action under the OHRC?
Held
No tort of discrimination exists
Ratio
OHRC excludes common law action based on invocation of the public policy expressed in Code
Analysi - human rights is highly legislated for different environments (workplace, criminal,
s
federal/provincial)
- interest of racialized person entitled to protection of the law – OHRC serves this purpose
- rejected COA decision: Code outlines procedures & offers avenue for relief





Discrimination is an action or decision that treats a person or group negatively for reasons of age, race,
disability et cetera (Oct 5 L)
Ontario Human Rights Code, RSO 1990
Tort of discrimination can occur (must plead the facts)
Mostly used as an aggravating factor, not used as a tort in and of itself
Allows for punitive damages or compensatory damages for aggravating factors
Current body of law already deals with issues of discrimination
Human rights regime (federal and provincial codes apply to private individuals)
DEFENCES – CONSENT (201-243)
In general, the law wants people to have autonomy and freedom of choice
Even if we don’t like the choice they are making, they still have the right of choice (free to consent to
pretty much anything, with very few exceptions, no matter how bad of an idea it is) (Oct 17 L)
- Premised on people’s autonomy to consent to what would be an intentional tort
- If successful, absolved of liability
- May be explicit in writing, verbally or by gesture
- D must prove that P agreed to the act giving rise to the tort – P’s failure to physically resist isn’t enough
Implied Consent
- When consent seems obvious to a person based on our daily actions—actions make it clear to a
reasonable person that it was agreeable (we do this on a day-to-day basis and we don’t even know
about it) (i.e. sitting on dentist chair and opening your mouth to have cavity filled, going to barber’s
chair and having your hair cut) (Oct 17 L)
o Difficulty with this consent is between the subjective and objective test (what you may be
experiencing can be fully reasonable, but there could be another objective element… Panic
attack on flight and wanting to get off, airline would argue that you consented to get on)
-
28
-
Can exist through participation, demeanor, other behaviour – objective standard: reasonable person
test
Wright v Mclean (1956) 7 DLR (2d) 253 (BCSC) (202-203)
Harm suffered by consent isn’t a cause of action where there’s no malice, anger, mutual ill will
Facts - 4 boys playing near bound of earth, tossing mud @ each other; 1 mudball passed infant defendant
riding his bike; stopped and said “want to fight?”
- continued throwing @ each other; D threw lump at P who cried & fell, stopped playing
immediately
- one boy said they were in a way inviting D to play game; no anger or malice
Issues
Was there implied consent on the part of P?
Held
Action dismissed
Ratio
Harm suffered by consent isn’t a cause of action where there’s no malice, anger, mutual ill will
Analysi - reasonable view that people consent to take the ordinary risks of sport they engage in – including
s
risk of injury
- only okay when play is fair, according to rules, blows are given in sport & not maliciously
- D didn’t notice it was a rock when he picked up & threw it
Exceeded Consent
 Not really a defence, but more of a response to implied and express consent (if defence could properly
show you expressly/implied consent to the tort, you can argue exceeding consent) (i.e. professional
sports) (Oct 17 L)
 Even with consent, there are limitations to it (reasonable person standard)
 Standard to prove that consent should have been ignored is set very high
 Court will not overturn consent if it is freely given (you must argue that consent should be
ignored)
 Start case representing victim from perspective of conceding the consent)
 Alternative is to assert tort i.e. battery and put onus on defence to prove consent
 If injuries are such that your client now has long-term disability, there is a chance that they
exceeded consent
 Other way would be to question whether the person was competent to consent
 Freely given, voluntary, cannot be pressured into consenting
 Court provides reverse onus (onus is not on the victim to show that there was competency to
consent—the onus is on the defence to demonstrate that the consent should be held as valid)
(i.e. sexual battery.. consent is invalid unless proven otherwise.. sure, there could have been
consent, but court will eviscerate it)
 No magic age in civil litigation consent (criminal culpability is set at 12)
 Sexual offences are different, elderly, young, mental health issues
 It comes down to whether they knew the consequences and if they chose to accept anyway, they are
considered competent
 Reverse onus rises in civil cases (medical and sexual cases)
 Must show that consent is made but it should be vitiated
- Wrongful act exceeds limits of the consent
- Consent negated if accused both intends & causes serious bodily harm
Agar v Canning (1965) 54 WWR 302 (Man QB) (204-205)
Where person has definite resolve to cause serious injury, conduct exceeds consent
29
Facts
- P (member of hockey team) & D (opposing team) followed puck where D body-checked him
- P attempted to delay him skating away & hooked him with his stick & hit D w/ painful blow on
back
- D held stick with both hands and struck P’s face, P fell to ice unconscious & lost vision in eye
Issues
Did P consent to injuries arising from the sport?
Held
D held liable, acted on provocation. Special damages awarded
Ratio
Where person has definite resolve to cause serious injury, conduct exceeds consent
Analysis
- action exceeded the implied consent – should be a limit on players immunity from liability,
decided upon facts of each case
- even when provocation in the head of the game shouldn’t fall within scope of implied consent
Commentar Provocation=mitigating factor but not a defence
y
Competence of Person Giving Consent
- Look @ if capable of appreciating nature & consequences of the act, NOT reasonableness of the
decision
- TEST:
o Person giving it must be capable of appreciating the nature & consequences of act to which it
applies
o If he cannot due to age, physical/mental illness, intoxication or other incapacitating factors,
consent=invalid
o Competency: person’s ability to understand the information relevant to the act in issue
o If competent, law must uphold his right to make both wise & unwise decisions
Vitiating Consent
- After defendant establishes that plaintiff consented, plaintiff may raise factors that vitiate his consent
- If consent vitiated, F will be held liable as if there was no consent
- Factors that vitiate consent: Fraud, Mistake, Duress, Public Policy
Process for raising defense of consent and vitiating that consent: (Tutorial 3)
o Plaintiff establishes Defendant committed tort of battery
o Defendant establishes plaintiff consented to the act giving rise to the tort
o Plaintiff can raise factors that vitiate their consent:
o “I felt threatened that I would lose my job if I said no”
o There was a power imbalance
o Consent was exceeded
o Plaintiff did not have competence to consent
- Onus on defendant to show:
- the consent was NOT exceeded;
- that the plaintiff was competent to consent; or
- That there are no underlying public policy reasons that vitiate the consent
Fraud (Deceit) – high threshold
- Situation in which defendant:
o Knowingly makes false statement
o Makes a statement in total disregard to its truth
o Knowingly creates a misleading impression by omitting relevant information
30
-
Plaintiff’s consent based on fraudulently induced belief won’t necessarily vitiate the consent
o Must establish that D was aware of, or responsible for, P’s misapprehension
o Fraud will only negate consent if it relates to the nature & quality of the act, as opposed to a
“collateral” matter
- HIV status fraud – individuals not disclosing HIV status – fraud goes into potentially harmful
consequences, not the sexual act itself
Mistake
- Consent vitiated if D was responsible for creating P’s misapprehension & the misapprehension went to
the nature or quality of the act
- Also if misapprehension went to the harmful consequences of the act & the act physically harmed P or
exposed him to a significant risk of serious physical harm
- Situations must be distinguished from those where D erroneously believes that P has consented
Duress (Coercion)
- Victim consented under forced compulsion or threats or from imbalance of power dynamic
Latter v Braddell (1880) 50 LJQB 166 (CP) (213-216)
Facts - housemaiden accused of being pregnant; her mistress forced her to have a medical exam without
her prior knowledge
- ordered to go to her room, strip for doctor who did exam on her – cried the whole time
Issues
Did the plaintiff consent if it was given reluctantly?
Held
Consent not vitiated
Ratio
Duress requires force or violence, or threat thereof
Analysi - P didn’t comply out of fear, she had physical power to not comply
s
- no evidence of anything improper/illegal was theratened
Dissent - abundant evidence of non-consent: examination not justified unless servant’s consent is voluntarily
given
- she yielded – overpowered by fear of consequences by master who she believes she is bound to
obey
Public Policy
- Positions of age difference, positions of trust (parents/doctors) – unequal bargaining power,
exploitation, breach of trust, impossibility of “meaningful consent”
- Noerberg v Wynrib – cannot consent to sexual relations with doctor: power imbalance
- R v Welch – cannot consent to harm being imposed upon them except for a “generally approved social
purpose”
o Inherently degrading/dehumanizing conduct involving sexual gratification from inflicting pain
that results in physical harm cannot be the subject of consent
- R v JA – cannot consent in advance to having sexual acts performed on them when they’re unconscious
R v Jobidon [1991] (207)
Cannot consent to serious bodily harm or death
Facts
- J killed man in a fistfight outside bar; they had fought inside but were kicked out & continued
fight
- victim was bigger but J was trained boxer – J landed a punch in face which knocked victim
unconscious then punched him 4 times in face
31
- victim in coma then died; J claimed he didn’t know victim was unconscious when he continued
hitting him
- both consented to fight
History
- Trial judge acquitted because it was a fair fight
- COA: entered manslaughter – can’t consent to dying from a bar fight
Issues
Is absence of consent a material element that must be proved by the Crown in all cases of
assault?
Held
Affirmed COA decision - consent is vitiated if they intentionally applied force causing serious
harm
Ratio
No one would consent to serious bodily harm or death
Analysis - Against public policy to allow fighting with intent to cause bodily harm to be legal
- since intention to cause bodily harm was itself illegal, consent to fighting can’t be valid
defence
Medical Consent – To Treatment, Counselling & Care (Oct 19 L)
- Burden on healthcare provider to demonstrate on balance of probabilities that consent was given
- Should be obtained in advance & must relate to specific procedure/treatment undertaken
o Address issues re: documentation, confidentiality, reporting, disclosures
- Must be voluntary – product of patient’s conscious mind – even if patient reluctantly consents, held to
have consented voluntarily
- No minimum age (you can consent to medical care at any age—up to doctor to determine what you’re
asking whether or not you are competent to consent)
- 11(2) consent must be informed (doctor will determine competency)
- Relates to treatment, be informed consent, given voluntarily, not be obtained through
misrepresentation or fraud
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A
 No minimum age
 S. 11(1): Consent has to:
 Be informed
 Does NOT mean refusal must be informed--> person can refuse for whatever
reason (Malette v Shulman, 1987)
 Related to treatment
 Be given voluntarily
 Not be obtained through misrepresentation/fraud
 If an emergency, consent not required (ss. 25-28)
 Eg. Marshall v Curry, 1933: Because the patient’s inflamed testicle was an emergency
that could not have been anticipated, the doctor had a duty to save his life and do
whatever needed to be done the plaintiff’s consent was not required.
Exceptions to common law principles of Consent:
1. In unforeseen medical emergency where it’s impossible to obtain patient’s consent – healthcare
professional is allowed to intervene w/o consent to preserve patient’s life
2. Patients who’ve given general consent to course of treatment
- Patient viewed as implicitly consenting to any subordinate tests & procedures that’re
necessarily incidental to the agreed course of treatment
32
- This implied consent will be negated if patient expressly objects
3. Healthcare professionals had right to withhold info from patient if its disclosure would undermine
patient’s morale & discourage him from having needed treatment/surgery
- SCC cast doubt on continued existence of privilege
Marshall v Curry [1933] 3 DLR 260 (NSSC) (224-225)
Not liable where an unanticipated emergency arises & is his duty to act in order to save the life or preserve
health of the patient
Facts
- D removed P’s left testicle during operation for hernia – during operation found testicle was
grossly diseased & was of the opinion to remove testicle to cure the hernia because it would
risk P’s life to leave it � P argues he didn’t know or consent
- D argued it was necessary & that the necessity for removing it couldn’t have been reasonably
ascertained by diagnosis before the operation; that there was implied consent from P’s request
to cure the hernia
Issues
Was there implied consent to further treatment?
Held
Case dismissed
Ratio
Not liable where an unanticipated emergency arises & is his duty to act in order to save the life
or preserve health of the patient
Analysis - where there’s opportunity to obtain consent, it must be had – can be express/implied; consent
may be implied from conversations before surgery or from preceding circumstances
- D discovered conditions neither party anticipated & couldn’t have foreseen
- action was in interest of patient; and necessary; would be unreasonable to postpone to later
date
Malette v Shulman (1987) 63 OR (3d) 243 (HC) (226-228)
Doctor not free to disregard advance instructions any more than he can disregard instructions given at the
time – doctrine of informed consent doesn’t extend to informed refusal
Facts
- P seriously injured in accident; Jehovah’s Witness card: don’t to give blood under any
circumstances
- D told of the card, condition deteriorated & believing she would otherwise die, start blood
transfusions until P’s condition stabilized, even after P’s daughter arrived ordering D to stop
Issues
Does the doctrine of informed consent extend to informed refusal?
Held
Damages awarded to P for mental distress
Ratio
Doctor not free to disregard advance instructions any more than he can disregard instructions
given at the time
Analysis - no basis to believe card doesn’t express consent
- card was valid restriction on D to treat patient; D had no reason to doubt validity of card which
was a clear & concise statement of religious belief
- P clearly foresaw need for blood transfusions when she went through exercise of preparing &
keeping the Jehovah’s Witness card – suggested decision made with clear understanding of
risks
- even in emergency, doctor cannot override limits a patient places on her consent
- Doctrine of informed consent doesn’t extend to informed refusal – right to refuse=inherent
component of the supremacy of the patient’s right over her body
33
Burden of Proof & Consent Forms
- Signed consent form is not conclusive proof of consent
- Patient must understand nature of procedures & their associated risks & consented to them
- Only as good as the info it contains & the circumstances in which it is signed
Competency to Consent
- focuses on patient’s ability to understand nature of proposed treatment & risk, NOT ability to make reasoned
or prudent decision
- can be competent even if he’s intoxicated, young, frail, developmentally delayed
- Test applied on case-by-case basis in terms of specific risks of proposed treatment
- Minors:
o No minimum age of consent @ common law – most cases involve patient above age of puberty
o Consent valid if young person can understand nature of proposed procedure & its risks –
parental consent not required or relevant
C v Wren (1986) 76 AR 115 (CA) (232-233)
Courts will exercise increasing restraint on parental rights as child grows to & through adolescence
Facts
- 16 year old got pregnant, moved out of home; was approved for abortion
- Parents disagreed & brought suit against doctor for lack of consent given by girl
Issues
Was there informed consent?
Held
Appeal dismissed
Ratio
Courts will exercise increasing restraint on parental rights as child grows to & through
adolescence
Analysis - Infer from the circumstances that the expectant mother & her parents had fully discussed the
ethical issues & disagreed about
- cannot infer from the disagreement that the expectant mother didn’t have sufficient
intelligence & understanding to make up her own mind
-
Adults:
o Arises from patients with mental illness, developmental disability, dementia
o Start with assumption they’re competent & assess competency in relation to specific treatment
Starson v Swayze [2003] 1 SCR 722 (236)
Adult must be capable of understanding relevant information & appreciate consequences of his decision
Facts
- Starson frequently institutionalized; refused meds; psychiatrist believed he lacked capacity to
refuse consent
History
COA: Starson acknowledged his mental issues & showed understanding of condition – made
clear choice to reject medication
SCC: upheld trial judgment; Dissent: evidence Starson was in almost total denial of mental
illness
Issues
Was Starson capable of refusing consent to medication?
Held
Yes
Ratio
Adult must be capable of understanding relevant information & appreciate consequences of his
decision
34
Analysis - Ontario Review Board denied Starson's subsequent application for release, Court of Appeal
upheld decision
- Left untreated, condition deteriorated - when it became apparent he might die, treating
physician found him to be incapable of refusing treatment & was treated with medication he
had previously improved - condition improved immediately
Substitute Consent – from patient’s next of kin where patient clearly incapable of giving valid consent
- patient must be incompetent, next-of-kin acted in good faith, decision was in patient’s best interest
Informed Consent: Battery or Negligence?
Ex Turpi (21 Oct L)
- Comes from Latin expression meaning from a dishonourable cause, an action does not arise
- Suggests that you can’t have a valid claim if the way you went about getting into the situation that led
to the claim came from something in and of itself either illegal or a violation of community standards
- Can be a blanket defence for a lot of things
- principle that a person cannot recover in tort law for the consequences of her own illegal/immoral
conduct
- ex turpi causa – “to a dishonourable cause, an action does not arise"
- limited to cases in which plaintiff's injuries are a direct result of his participation in immoral or illegal
conduct
DEFENCES - SELF DEFENCE (245-250) (31 Oct L)
 CCC has specific requirements to raise self-defence; less in tort law
 Case law suggests, in arguing self-defence, you can do so if you could demonstrate that the force you
used was reasonable to repel actual violence, or a threat of immediate violence
 Actual violence is the battery, threat is the assault
 There must be evidence of honest and reasonable belief in imminent/threatened violence AND the
degree of force was reasonable in all the circumstances
 Hybrid test (objective and subjective)
 Your client has to believe that they had an honest and reasonable belief in the threat of violence
 How much force you used to repel violence is not the subjective issue
 In civil litigation, the lines are blurred between objective and subjective test
Requirements:
1. Person honestly & reasonably believed that they were about to be struck,
2. Belief was that there would be imminent or threatened violence
3. The amount of force used to protect themselves was reasonable in the circumstances
Wackett v Calder (1965) 51 DLR (3d) 598 (BCCA) (245-247)
Attacked person is entitled to reject with force & not held down to measure with exactitude
Facts
- P reiterated insulting remarks & invited D to engage in a fight; tried to strike D & his brother
- P struck D, who then hit the P in face, got back up and tried to attack D again
- D hit him again, P fell, D was walking away
Issues
Is D entitled too rely on self-defence? Was excessive force used?
Held
D’s appeal allowed. Action dismissed.
Ratio
Attacked person is entitled to reject with force & not held down to measure with exactitude
Analysis
- P was belligerent & in a dangerous mood, capable of doing serious harm
35
- D was attacked when turning away, he was entitled to reject force with force, first blow wasn’t
sufficient to stop the respondent’s attack & second more forceful flow was justified to end the
episode
Dissent
D could’ve walked away and avoided the episode – didn’t need to rely on self-defence
Commentar SCC – Limits defence of consent on policy grounds, cannot raise defence if they intend & cause
y
serious bodily harm
- excessive force – consider: nature of force used & circumstances, not necessarily the resulting
injuries
- D doesn’t have to wait for other party to strike first blow – can invoke self-defence in an
attempt to pre-empt an assault by becoming the aggressor
- P’s reputation for violence/prior violent behaviour can be raised to justify D’s decision to strike
1st
Defence of Third Parties (251-254) (Oct 31 L)
- Raised to a battery or assault case
- Defendant may use reasonable force to defend a third party from violence or threat of immediate
violence
- Same evidentiary burden as self-defence (must have an honest and reasonable belief in imminent
violence or threat of violence, and the degree of force was reasonable in all circumstances)
- Allows someone else to jump to your defence – Can be raised by anyone who appears on the scene
- Canada: intervenor’s right to raise the defence is independent of the legal rights or position of the
person being defended
Gambriell v Caparelli (1974) 54 DLR (3d) 661 (Ont Co Ct) (251-252)
Person intervening to rescue a third party from imminent danger of injury must hold an honest (though
mistaken) belief, use reasonable force � was it necessary? Was it reasonable?
Facts - D found son and P in a fight, P was on top of her son and choking him
- D yelled at them to stop, got a garden tool, struck D on shoulders then on the head
Issues
Can D claim that she was defending her son count as a defence?
Held
P’s case dismissed
Ratio
Person intervening to rescue a third party from imminent danger of injury must hold an honest
(though mistaken) belief, use reasonable force � was it necessary? Was it reasonable?
Analysi - Where a person in intervening to rescue another holds an honest (though mistaken) belief that the
s
other person is in imminent danger of injury, he's justified in using force, provided that such force is
reasonable
- Defendant had little choice - plaintiff could overpower her son, empty-handed aid of a women who
was older and of average build would have availed little
� If not, son might well have been beyond recovery, especially since she had language barrier
- Plaintiff's laceration and not fractured skull = shows that force used was not excessive
DEFENCES – DISCIPLINE (254-259) (Oct 31 L)
- Very narrow defence concerning battery of a child
- S.43 of CCC: If you are being physical with your child for the purpose of correcting behaviour, you can
raise this as a defence if you are charged criminally with assault
- UN Declaration on Rights of a Child forbids spanking laws (however, Canada has ratified this document)
- SCC put rules on disciplining children, however it is still permitted
36
- S.43 could be revisited to be struck down
- Honest belief that discipline was required by way of correction + reasonable force
- Parents, guardians and educations can invoke the privilege
- Courts held that accused’s cultural background & religious beliefs are irrelevant
R v Dupperon (1984) 16 CCC (3d) 453 (Sask CA) (254-256)
Reasonable force must consider age & character of the child; and the likely effect of the punishment on the
child, degree of gravity of the punishment, circumstances under which it was inflicted, the injuries suffered
Facts - appellant strapped 13 yo son on bare buttocks with leather belt ~10 times
- son was caught smoking behind the house, later used foul language against his father & was
grounded
- son decided to leave home, left note telling father off; when he returned after he was disciplined
- appellant charged for committing assault on son
Issues
Was excessive force used as discipline?
Held
Appellant’s sentence upheld but conviction of assault, instead of assault causing bodily harm
Ratio
Reasonable force for discipline must consider age & character of the child, and the likely effect of
the punishment on the child, degree of gravity of the punishment, circumstances under which it was
inflicted, the injuries suffered
Analysi - Ample grounds for appellant to honestly believe that a strapping was required by way of
s
correction
- 10 strokes of a leather belt on bare buttocks is a severe beating, particularly in this case which was
inflicted on an emotionally disturbed boy
Canadian Foundation for Children, Youth & the Law v Canada (AG) [2004] 1 SCR 76 (258-259)
Discipline defence is limited to minor corrective force of a transitory & trifling nature, only used for a
corrective purpose designed to restrain & control a child or express symbolic disapproval
Facts - Appellant argued that s.43 of CC violated s.7 rights of children, s. 12 (cruel unusual punishment),
s.15 (guarantee of equal treatment & benefit of the law)
Issues
Is s.43 of the Criminal Code unconstitutional?
Held
Appeal dismissed. Upheld constitutional validity but narrowed defence
Ratio
Discipline defence is limited to minor corrective force of a transitory & trifling nature, only used for
a corrective purpose designed to restrain & control a child or express symbolic disapproval
Analysi - Limited to "minor corrective force of a transitory & trifling nature"
s
- Force can only be used for a corrective purpose that's designed to restrain & control a child or
express symbolic disapproval
- Child must be capable of understanding why the force is being used & be capable of benefiting
from it
o Defence doesn't apply to children under 2, or those with a disability that makes them
incapable of learning from it
-Does not apply to the use of force that harms or could reasonably be expected to harm a child
o Doesn't apply where children are hit with objects, or if they're hit/slapped in the head
- Does not apply to any use of force that's cruel or degrading
- Defence cannot be invoked to justify corporal punishment of teenagers (no age limit)
37
- Teachers may use reasonable force to remove a child from a classroom or secure compliance with
instructions, they cannot use force merely as corporal punishment
DEFENCES - LEGAL AUTHORITY (279-315) (Nov 2 L)
Sue someone you believe who has wrongfully detained you, the defence is used when the detention is
not wrongful
- There is legal justification, usually but not exclusively the product of a statute, which permits what
would otherwise be a tort against the person
- Most commonly referenced is the criminal code, which says "any peace officer can arrest
(without a warrant) any person who he/she believes on reasonable and probably grounds to
have committed an indictable offence"
▪ Usually done when they are certain a person has committed an indictable crime and will
flee the jurisdiction
- Peace officer: any citizen authorized by law to act in the administration of the law (usually the
police)
- If a peace officer finds someone committing any offence (even if it is a summary offence, e.g.
Shoplifting), they have the authority to arrest them if they are caught in the act
- Anybody can arrest anyone that he/she finds committing an indictable offence or has
committed any offence and is escaping
- May be committed during an arrest, search, seizure, or entry
- Framework for analyzing defence:
- Did D have legal authority to undertake the act that gave rise to the tort in issue?
- Was the D legally privileged, protected from both civil & criminal liability in doing the act that
gave rise to the tort?
- Did the D meet all of the other obligations imposed upon him in the process?
- Common issues that illustrate how defence operates:
- Authority & privilege to arrest without a warrant
- Rights & obligations in the arrest process
- Common law power to search pursuant to a lawful arrest
- Peace officer’s common law power of entry to search for a wanted person
Canadian Charter of Rights & Freedoms (281-282)
- Section 7-15: broad range of legal rights – burden shifts to government to justify violation under s. 1
- Remedies under s.24(1) – judge has discretion to grant person whatever remedy they consider
“appropriate & just in the circumstances”
- Liability under s. 24(1):
o Damage award is one of the remedies judge may grant
o Appropriate & just remedy meaningfully vindicates the claimant's rights & freedoms, employs
means that are legitimate within Canada's framework for constitutional democracy, is judicial in
nature, and is fair to the party against whom it is made (Doucet-Boudreau v Nova Scotia)
o Vancouver (City) v Ward - four part test for awarding damages under s.24(1)
▪ Plaintiff must establish his Charter rights have been violated
▪ Damage award must advance Charter goals by compensating the plaintiff for a personal
loss resulting from the violation, vindicating the breach of the plaintiff's rights or
deterring future violations by state actors
▪ State my attempt to establish that a countervailing factor warrants refraining from
awarding Charter damages (ex. other Charter or common law remedy that adequately
addresses the violation)
38
-
● Inappropriate to award Charter damages against officials who had reasonably
relied on legislation that was subsequently struck down
The amount of damage award should reflect its purpose (compensation,
vindication, deterrence), having regard to the impact of the breach on the
plaintiff and the seriousness of the state's conduct
Impact of Section 52 on the Defence of legal authority
o s.52 provides that any law that's inconsistent with the Charter will be of no force or effect to the
extent of the inconsistency
o Charter may eliminate the legal basis upon which a person would've otherwise been able to
establish the defence of legal authority
Authority & Privilege to Arrest Without a Warrant (285-287, 290-291)
- Peace officers & private citizens often raise this defence when a suspect whom they've arrested/
detained sues them for false imprisonment or battery
- Defendant has to prove that the specific act that gave rise to the tort action was authorized by
common law or statute
o ss. 494 & 495 of Code authorize arrest in specific situations - "reasonable grounds" = mere
suspicion is not sufficient
o confined to officers, sheriffs, mayors, commercial pilots, fishery officers, and others
- Privilege or justification under the Criminal Code - Privileging provisions address the related issue of
the criminal & civil liability of those exercising legal authority (s. 25)
- Private citizen's authority & privilege to arrest without a warrant – s. 494: citizens may arrest
immediately or within a reasonable time after the offence provided they reasonably believe that it's
not feasible for the police to make the arrest in the circumstances
o Must be committing an indictable offence, or a criminal offence on or in relationship to their
property
o Civil cases - defendant need only establish the commission of the crime on a balance of
probabilities
Rights & Obligations in the Arrest Process (294)
- Reasons for the Arrest – may seek redress under the Charter pursuant to s.10(a) & (b)
- Individuals generally under no obligation to identify themselves, account for their presence, answer
questions, remain on the scene, accompany an officer or submit to a search
Koechlin v Waugh and Hamilton (1957) 11 DLR (2d) 447 (Ont CA) (294-297)
Person is not required in law to submit to restraint on his freedom unless he is told reasons for his arrest
Facts
- 20 y.o. plaintiff & friend were walking on sidewalk when stopped by defendants, officers in
plain clothes in a police cruiser car & asked for identification which P objected to unless officer
ID’d himself
- Hamilton (D) produced a badge and said he was an officer. P unsatisfied & requested the
name & number of the officer which he didn’t give;
- P continued to refuse to identify himself; scuffle ensued where plaintiff fell into a ditch
- Force was used by officers to put the plaintiff into a police car - wasn't told any reason for his
arrest; taken to station & told he would be charged with assault of a police officer
- Adult plaintiff informed of son's arrest at 2AM; @ station asked the sergeant how assault of
police officer happened but he said he would not tell him and would hear about it the next day
in court - was not allowed to see son
39
- Charge against infant plaintiff was heard & dismissed
Issues
Did officers exceed their powers and infringe the accused's rights?
Held
Appeal allowed. Officers exceeded their powers & infringed the rights of infant plaintiff
without justification.
Ratio
Person is not required in law to submit to restraint on his freedom unless he is told reasons for
his arrest
Analysis
- Trial judge: officers stopped plaintiff because of their clothes but there was nothing
distinctive about it, friend was wearing rubber-soled shoes
- break ins in the area & had reported someone wearing rubber-soled shoes was involved;
when P refused to cooperate, officers became more suspicious & firm in the belief that
something was wrong
- Fact that friend of plaintiff was wearing rubber-soled shoes & windbreaker falls far short of
reasonable & probable grounds for believing the infant plaintiff had committed an indictable
offence or was about to commit an offence
- police has no right to use force to compel P to identify himself
- P not told of any reason for his arrest - was not required in law to submit to restraint on his
freedom unless he knew the reason why that restraint should be imposed
- Person in custody should never be denied his right to communicate with his relatives at the
earliest reasonable opportunity so that he may avail himself of their advice & assistance
- P was entitled in law to resist the efforts of the officers & they have failed to justify their
actions
Commentar Pre-charter case – court tends to favour plaintiff
y:
Use of Reasonable Force (299)
- General rule: suspects must be given opportunity to submit peacefully before any force is used
- Use only as much force as is reasonably necessary to subdue the suspect
- Won’t be held liable simply because suspect is innocent
- Officer must have reasonable grounds that such force is necessary to protect self or 3 rd person from
imminent or future death or grievous bodily harm
Berntt v Vancouver (City) (1999) 174 DLR (4th) 403 (BCCA) (300-301)
Reasonableness of the force must be assessed in terms of what a reasonable person at the scene would've
believed
Facts - P was a ringleader of massive riot after hockey game; threw objects and approached police waving
long screwdriver; was shot in back with a plastic baton
- After receiving treatment, rejoined riot; showed police the welt caused by first shot & when
walking away, was shot with second baton that was aimed for his back but hit his head
- Sued for battery & negligence
- Trial judge: 1st shot justified; 2nd shot unnecessary b/c police had gained control of situation, riot
lessened & plaintiff posed no immediate threat
Issues
Was the second shot a use of reasonable force?
Held
New trial ordered (Court of Appeal). Reasonable force used (retrial).
40
Ratio
Reasonableness of the force must be assessed in terms of what a reasonable person at the scene
would've believed
Analysi - Did officer believe that force he was about to use necessary to suppress the riot? Officer believed
s
removing ringleaders was key to defusing riot & making arrest wasn’t feasible in the circumstances
- Did officer have reasonable grounds for that belief? Plaintiff brandishing an edged weapon made
him very dangerous in a crowd
Common Law Power to Search Pursuant to a Lawful Arrest (301-303) (Nov 7 L)
- Traditionally: narrowly defined – need reasonable grounds to believe person was in possession of
evidence or weapon
- Can search suspect & his personal effects, the immediate scene, provided arrest took place in public or
the suspect’s premises
- Social interest in conduct search must be balanced against one’s reasonable expectation of privacy
- Unreasonable search and seizure of vehicle?
- Impounded vehicle
- Appeal dismissed
- There is no tort of unreasonable search and seizure
- Once arrested, there could be a trespass to chattels argument; invasion of privacy concern
- If detained while searching car, there may be wrongful imprisonment
- Abuse of process possibility
- Legal authority comes from CCC, but there is a Charter violation argument
R v Caslake [1998] 1 SCR 51 (301-303) (Nov 7 L)
Limits to search incident to arrest: 1) Power doesn't impose a duty - just because they can search doesn't
mean they must; Search must be for a valid objective; Search must not be conducted in an abusive fashion
Facts - Six hours after accused arrested for marijuana possession, his impounded vehicle was subject to an
inventory search to safeguard its contents & note its general condition
- Cash & cocaine were found, accused charged with cocaine possession
Issues
Did vehicle search constitute an unreasonable search or seizure contrary to s.8 of Charter?
Held
Vehicle search not truly incidental to accused's arrest; Search violated s.8 but evidence ruled
admissible and accused's conviction upheld.
Ratio
3 important limits:
- Power doesn't impose a duty - just because they can search doesn't mean they must
- Search must be for a valid objective
- Search must not be conducted in an abusive fashion
Analysi - 6 hours between search & arrest - no need for strict time limit to elapse - search must be truly
s
incidental to arrest = justified if purpose of search is related to the purpose of the arrest
- Searched usually occur within a reasonable period after arrest - substantial delay doesn't mean it's
unlawful but court can draw an inference that search isn't necessarily connected to arrest
- Search was conducted for inventory purposes & not to gather evidence or serve other legitimate
ends of criminal justice
Cell Phone searches:
41
-
R v Hiscoe - downloading phone's entire contents 1 month later exceeded scope of common law search
power & violated s.8
- R v Fearon - cellphone search pursuant to person's arrest wouldn't violate s.8 if:
o the arrest was lawful; search was truly incidental to arrest; nature & extent of the search were
tailored to its purpose; police made detailed notes on what they searched on device & how
they examined it
Physical searches:
- Power doesn’t extend to physical searched, seizing bodily samples or undertaking medical/surgical
procedures
- R v Golden – Strip searches inherently degrading but when necessary could be conducted pursuant to
lawful arrest – not justified if held for short time in police cells, not mingling with gen pop or no legit
concern about concealing a weapon
- Generally no right to search suspect until he’s been lawfully arrested
- R v Stillman - common law right to search pursuant to arrest didn't extend beyond protecting the
arresting officer or seizing evidence that might otherwise be lost (hair/saliva/bodily fluids)
Peace Officer's Common Law Power of Entry to Search for a Wanted Person
- R v Landry [1986] 1 SCR 145 - SCC further limited entry power to persons wanted for indictable
offences and that police could also enter if they reasonably believed that an indictable offence was
about to be committed
o R v Macooh [1993] 2 SCR 802 - court extended doctrine to provincial offences when in hot
pursuit of a person
- R v Feeney [1997] 2 SCR 13 - s.8 Charter limits common law right to situations of hot pursuit & perhaps
other exigent circumstances
o 4 dissenting judges rejected this limitation
- Parliament amended Code to create statutory rights to enter dwellings to arrest a wanted person
(1997)
o Apply in addition to any common law authority an officer may have to make such entries
- Common law right of frced entry to prevent commission of murder & other felonies is distinct from this
right of entry to search for wanted suspects
- R v Godoy [1999] 1 SCR 311 - police have common law right to demand entry under their common law
"duty to protect life"
Eccles v Bourque [1975] 2 SCR 739 (308-311) (Nov 7 L)
Entry can be made against the will of householder only is: 1) there are RPGs for belief that the person sought
is within the premises AND 2) proper announcement is made prior to entry
Facts - Claim tort of trespass when officers Eccles's apartment in plain clothes & armed
- Purpose of entry was to apprehend another person who had three outstanding warrants - person
wasn't found in apartment
- Eccles won at trial, Court of Appeal reversed decision
Issues
Were the respondents authorized by s.25 of Criminal Code forcibly to enter & search the appellant's
apartment pursuant to their right to arrest without warrant? If not, were actions justified on
common law principles?
Held
Eccles’ appeal dismissed
Ratio
Entry can be made against the will of householder only is: 1) there are RPGs for belief that the
person sought is within the premises AND 2) proper announcement is made prior to entry
42
Analysi - Criminal is not immune from arrest in his own home, but basic principle is that man's home is his
s
castle
- s. 25 affords justification to person for doing what he’s required to do by law, if he act on RPGs &
uses reasonable force necessary to that purpose
- RPG: entry doesn’t become unlawful if fugitive isn’t there; Eccles was closest known associate &
officer had info fugitive was staying at Eccles’ apartment
- Announcement: for personal safety & respect for privacy, law requires officer to ID self & require
admittance; should give notice of presence, of authority, of purpose
INTENTIONAL INTERFERENCE WITH PROPERTY (Nov 7 L)
Intersection with property and tort law
Intrusions to property
Limitations to your freeholds
Defence for trespass (licence)
Property divided into 2 categories: personal and real property
In rem action (under writ, sued to get the property back)
o Property wrongfully taken from you was land
o Neighbour would encroach on your land
o Court would declare that the land belonged to you
o This became known as a real action (you really wanted the land back… became known as real
property)
- When you wanted compensation because somebody took your property, it was called an in personal
action
o You sued the person for compensation
o Even if you get the property back you want further compensation
o Became known as personal actions and therefore personal property
- Generally speaking, real property refers to land and personal property refers to chattel (cattle)
- Both are actionable per se and historic (even there is no damage, you can sue someone)
- Fit into intentional torts (must show intention… volition always exists and is presumed)
- Major modern actions: Trespass to chattels, conversion, detinue
o Trespass – for wrongful taking
o Detinue – for wrongful detention
o Conversion – traditionally trover – for wrongful disposal
DEFENCES (Tutorial 4)
 Consent: P consented to letting D enter their land/take their chattel
 Implicitly: opened the door
 Vitiating consent
 Ex turpi
 Defense of legal authority
 Eg. Police need to take your phone to investigate crime
 Reasonable force: can use reasonable force to get someone off your property/get chattel back
Must show that you asked person to leave , gave them opportunity and they refused (MacDonald v
Hees, 1974)
 Devices: Can only be used to deter individual from but NOT to harm them and must give notice (Bird v.
Holbrook, 1828)
 Recapture of Chattels: have to first ask for item back
-
43
Trespass (129-130) (Nov 7 L)
- Possessory right
- Ownership (best right to have), possessory (something less than ownership), title rights are the 3
traditional categories of property rights
- Title rights are difficult because title usually falls under ownership, but not always (commercial law
splits ownership and title)
- Trespass to property is an issue of possession (even if you are not the owner of the laptop, you can
sue)
- Violation of your possessory rights
- i.e. taking something without your permission; destroying it
- No directness in the actual tort, but it is implied because it has to be in the physical control of the
victim
- Deals with the damage to the chattel or tort of damaging to the holder of the chattel
- To a chattel, the intentional damage of a chattel that is in physical control of the victim – actionable
per se
- Elements:
o Intent
o Affected goods were in claimant’s possession
o Interference was direct & forceful
- Plaintiff must show (Tutorial 4)
o Defendant intended to cause damage (to P as holder of chattel)
o Damage
o They had possessory right** to chattel
** Even if Plaintiff is not the owner BUT had possession of chattel, they can still sue
Fouldes v Willoughby (1841) 151 ER 1153 (Ex Ct) (135-137)
Conversion requires that the party taking the goods should intend some use to be made of them, or that
because of his act the good are destroyed to the prejudice of the lawful owner
Facts - P went on board D's ferry boat with 2 horses & carriage which he paid the usual fare; allegedly P
misconducted himself & behaved improperly after getting on board, and D told him he wouldn't
carry the horses over & to take them on shore
- P refused, D took horses from P and put them on shore; horses were seen in stables of a hotel kept
by the D's brother; P remained on board
- Next day, P sent to the hotel for the horses but the parties in whose possession they were refused
to deliver them; message was sent to P that he had to pay for their keep to get horses back
otherwise they'd be sold to pay the expense of it
- Horses were subsequently sold by auction
- Defence: P misconducted himself and that horses were sent on shore to get rid of P, by inducing
him to follow them
- Trial judge: D by taking the horses from P and taking them off boat, had been guilty of conversion,
unless they thought the P's conduct had justified his removal from the boat - jury found there was
conversion
- D appealed
Issues
Was there trespass to chattel?
44
Held
Appeal allowed. There was no conversion through the simple removal of horses for a purpose
unconnected with the denial of P's right to the possession & enjoyment of them
Ratio
Conversion requires that the party taking the goods should intend some use to be made of them, or
that because of his act the good are destroyed to the prejudice of the lawful owner
Analysi - Standard for conversion is higher - simply taking or interfering with something doesn't make it a
s
conversion
- D won't escape liability by proving that the trespass occurred as a result of an honest & reasonable
mistake
Detinue (130-131; 165-168) (Nov 7 L)
- Suing for a bailment gone bad; got it with permission but refuse to give it back
- 1. Tortfeasor was given the chattel with consent, not stolen
- 2. You demanded the return of the chattel to your possession
- 3. They refused to return it with intent (despite efforts made to get it back, it was made clear you
would not receive it)
o You can sue for damages
o Likely, you just request the chattel to be returned
- Lien as a remedy (common law remedy) allows someone usually owed money to keep the property
until the money is repaid
- Lien is a defence to detinue
- Detinue and lean are products of common law
- Problem with possessory lien (i.e. with the passage of time, the possessory lien becomes a right of sale)
- involves wrongful withholding of a chattel which the plaintiff had a right of immediate possession
- Must show:
o You demanded its return + tortfeasor’s refusal
- Two possibilities:
o Detinue sur bailment – D had possession through bailment
▪ Once P established bailment & immediate right to possession, D required to return
chattel or pay its full market value
o Detinue sur trover – D either found chattel or got possession through some means other than
bailment
- Limitations:
o Chain of possession – possession had to be established in an unbroken chain b/w claimant & D
o Continuing possession – liability presumed that D remained in possession – detinue not
available if D lost, sold or destroyed the goods
o Wager of law – can swear oath attesting to his innocence & by presenting requisite # of
compurgators (oath helpers) who swore to the purity of D’s oath
- Remedy:
o Generally: market value of chattel at time of trial (good to sue in detinue in rising market)
Gen & Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644 (CA) (165-167)
Facts - Chattel still in possession of Cooks (D) when Gen & Finance (P) asked for it back
- P demanded for mobile crane back or its value and damages for detaining the crane
Issues
Is this conversion or detinue?
Ratio
45
Analysi - Cause of action at date of wrongful refusal to deliver up goods continues until delivery or judgment
s
in action for detinue
- Conversion - single wrongful act & the cause of action accrues at the date of the conversion
� personal action w/ pecuniary damages only – judgement for single sum for value of chattel @ date
of conversion + consequential damage flowing form it
- Detinue - continuing cause of action which accrues at the date of the wrongful refusal to deliver up
the goods & continues until delivery up of the good or judgment in the action
�seeks specific restitution of chattel – judgment for delivery of chattel or payment of value – gives D
option to return chattel or pay its value
- Options for judgement:
i) Value of chattel & damages – appropriate where chattel is an ordinary article in commerce, no
specific restitution when damages are adequate remedy
ii) Return of chattel & recovery of its value & damages for its detention – option to return chattel +
give P right to apply to court to enforce specific restitution by writ of delivery + recovering damages
iii) Return of chattel & damages for its detention – unusual; pecuniary sum for detention
Aitken v Gardiner (1956) 4 DLR (2d) 119 (Ont HC) (167-168)
Facts
- D purchased share certificates w/o knowing that they had been stolen from the P, and sold
some of them
- At trial: held that D were liable in either conversion or the old action of detinue sur trover –
Ordered D to return remaining certificates & then considered proper measure of damages for
shares sold
- D argued proper measure was value of certificates when they were converted, rather than the
much higher value at time of trial
- D submits that the action of detinue is restricted to actions based on bailment by the P to D
Issues
What kind of cause of action can P take?
Held
P can sue in either detinue or conversion
Ratio
Analysis
- Detinue doesn't lie against him who never had possession of the chattel, but it does against
him who once had, but has improperly parted with the possession of it
- P alleges that successful action for detinue requires P to prove:
1) that the chattel was in possession of the D who refuses to deliver the same, and
2) that if the D on the issuance of the writ no longer had possession of the chattel, he parted
with it wrongfully
 Conversion (time conversion occurred) (Nov 14 L)
 At time of sale, the price was lower than when it would be at trial
 Shows and possession (piece of paper holding the stocks, but what is more valuable is
what it represents)
 Court occurred conversion happened; issue is then how to assess damages
 In conversion you can choose book value, market value etc. subject to litigation
 Generally, you look at the date when conversion happened (might not be agreed upon
by everyone)
 Date you took from me, refused to return to me, the day I started litigation against
you…
 Could date be altered should the value increase or decrease
46

Court said value could be modified
Property as relationship (you and your thing, and your relationship to other people; other
people’s relationship with your stuff); not tied down to actual objects
 Chose and possession: something that you could physically possess; something tangible
and can be possessed; law recognizes it exists
 Chose and action: a thing that only exists; can only be the subject of a property law
dispute when someone takes action to retrieve it; more abstract and unless the law,
either by common law or legislation says it exists, it is not recognized (your ideas aren’t
a thing, it’s not physical… cannot sue in property law)
 Copyright Act, Trademark Act recognizes, now, ideas
 In financial world, common law is relied upon to see if what is being argued is
recognized in law (i.e. idea of a debt: if you lend someone $100 and they owe it
back, is it the subject of property law litigation? Answer is a debt is not
recognized in property/law/contract law… when you sue, it magically becomes
subject to a property interest because you have taken action to get it back)
 Abstract concept in property law that says until action is taken to recover item
back, the law does not recognize that it exists
Commentar - Detinue sur trover and detinue sur bailment - recognized 2 forms of wrongful detention: one
y
based upon a purely tortious wrong & the other connected with agreement b/w parties
Conversion & Trover (Nov 7 L)
- Conversion – intentional exercise of control over a chattel which so seriously interfered with the right
of another to control that the intermeddler may justly be required to pay its full value
o Time is the issue, fact dependent +
o Continued use of someone else's goods without intention to "convert" may be conversion
- (not actionable per se as it is a newer tort and created)
o You are asking the Court to convert (you as the plaintiff) the detinue into ownership
o Take what was yours and force the person to buy it from you
o Converting ownership
o What is needed to succeed?
o 1. Must show the victim had a possessory right (did not have to be the owner)
o 2. Must show they committed a trespass and trespass must have been intentional
o 3. Interference with your chattel was so serious that it impacted on your rights
o Award full cost of your chattel
o If someone breaks into your house and steals your clothes (it is a trespass to your real property
and they have all your shit)
▪ You no longer want them back, you want conversion (damages are for both
compensatory and non-compensatory)
o Full cost varies (assessment, future value, negotiation…)
- If the defendant (Tutorial 4)
o buys chattel in good faith that was stolen
o Takes chattel of another, mistaking it as their own, then returns it immediately on discovery
47
Then they may NOT be liable for conversion (Consumer Protection Act, Sale of Goods Act, Mackenzie v . Scotia
Lumber Co. )
**Conversation more challenging to show with chose in action because intangible, abstract property
o Under common law, mistake is no defence (if you sell something that is determined to be
stolen or buy something stolen, you can be pulled into a conversion)
▪ The fact that you innocently bought or sold is not a defence
o Statute offers some protections (If you believed they were a legitimate supplier, your store
could be protected by legislation… if you buy as a consumer, you can be protected but you
must prove with factual evidence)
- Complainant doesn’t want property back so you must give full value to plaintiff
- Elements:
o Show victim had possessory rights
o Show intentional (not result of negligence)
o Show interference was so serious as to interfere with victim's rights
▪ Temporary withhold=not enough; needs to be almost semi-permanent
- Trover was improvement upon detinue – D couldn’t avoid liability through one of the 3 limitations
- Unsettled law: replacement value or purchase value?
- Remedy – compels D to pay damages representing chattel’s market value, that tort effectively leads to
forced sale – P receive value of item & in exchange D acquires right to retain item
o Generally: market value of chattel @ time of conversion
- Distinctions b/w detinue, trespass & conversion in consequences:
o Detinue - has object & doesn’t want to give it back - usually sue for specific performance (order
to return item) - usually arises on bailment gone bad
o Conversion - request to court not to get item back but to transfer ownership to person who has
wrongfully holding property to get full market value
o Conversion preferable in falling market; Detinue preferred in advantageous market
Mackenzie v Scotia Lumber Co (1913) 11 DLR 729 (NS SC) (139-140)
One can be liable for conversion of property if he takes property of another, even mistakenly
Facts - P owned a raft which drifted away & had become, without any interference of the Ds, attached to 2
rafts belonging to the Ds which had also gone adrift
- D sent their servants for their own rafts - servants found all 3 rafts together, supposed that all 3
began to D, and brought them all to D
- D didn't know that P's raft was in their mill
- P contends that if D, under the mistaken idea that the raft was their own, detained it treating it as
their own, and exercising dominion over it as their own property, they're liable for a conversion of
the raft, even though the moment they discovered the mistake, they returned it to the proper
owner
Issues
Is there conversion when property is mistakenly held and returned immediately upon discovering
the mistake?
Held
Appeal allowed. Judgment for plaintiff for nominal damages only.
Ratio
One who takes the property of another, even mistakenly, is liable for conversion of property
Analysi - D had returned the raft immediately upon the discovery of the mistake & P resumed ownership
s
- Intent isn't the intent to commit the tort but the intent to do the action (take the raft)
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- P wont have get full value of property which was returned back to him, but can recover nominal
damages
373409 Alberta Ltd (Receiver of) v Bank of Montreal (2002) 220 DLR (4th) 192 (SCC) (149-152)
In context of money or negotiable instruments, a party acting with proper authorization from the rightful
owner is not liable in conversion
Facts - Lakusta was the sole shareholder & directing mind of 373409 & Legacy Holdings Ltd; he received a
cheque payable to 373409 for the sale of an automobile to a bona fide customer, Lea Sanderson
- Lakusta altered the cheque by adding /Legacy to read and deposited it into Legacy's account at
BMO
- Cheque was not endorsed, Bank credited Legacy's account with proceeds of the cheque & funds
were later withdrawn by Lakutsa
- 373409 went into liquidation, its Receiver & Manager brought the action in conversion against the
Bank for having accepted for deposit 373409's unendorsed cheque into Legacy's account
Issues
Whether the Bank was authorized by 373409 to deal with the cheque as it did?
Held
Appeal dismissed. Bank not liable in conversion for the proceeds of the cheque
Ratio
In context of money or negotiable instruments, a party acting with proper authorization from the
rightful owner is not liable in conversion
Analysi - Lending institution's liability in conversion is predicated upon finding both that payment upon the
s
cheque was made to someone other than the rightful holder of the cheque, and that such payment
was not authorized by the rightful holder
- 373409 was the rightful holder of the cheque before it was brought to the Bank by Lakutsa; the
alteration had no effect on its sole entitlement to it
- A bill payable to order is negotiated by the endorsement of the holder - endorsement=the formal
mechanism by which the holder of a bill payable to order transfers title in that bill to another party
- As long as the Bank's actions were authorized by 373409, then the criterion for wrongful
interference doesn't arise
- Lakutsa instructed the Bank to deposit the proceeds of the cheque - Lakusta was the sole owner of
373409 - the only person capable of acting as the corporation's directing mind
Aitken v Gardiner (1956) 4 DLR (2d) 119 (Ont HC) (158-160)
Damages is generally the value of chattel converted at time of conversion
Facts - D purchased share certificates w/o knowing that they had been stolen from the P, and sold some of
them
- At trial: held that D were liable in either conversion or the old action of detinue sur trover –
Ordered D to return remaining certificates & then considered proper measure of damages for shares
sold
- D argued proper measure was value of certificates when they were converted, rather than the
much higher value at time of trial
Issues
What is the appropriate measure of damages for conversion?
Held
D must return share certificates of the same kind or pay the damages, value of share certificates at
date of trial
Ratio
Damages is generally the value of chattel converted at time of conversion
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Analysi - Generally is the value of the chattel converted @ time of conversion
s
- Where chattel increases in value after, if increase of value was not because of the act of D, P is
entitled to recover it as special damage resulting from the conversion
- P suffered damages due to D's inability to deliver certificates - aren't too remote to calculate in her
loss
Recapture & Replevin (Nov 7 L) (171-175)
- Recapture: take chattel back
- Not the best choice
o Limited to results that can be achieved without: the use of unreasonable force + A breach of
peace
- Replevin: two-step process:
o Replevy: court order to seize the disputed property
o Action in Replevin: Determination of which party enjoys the right of possession
- Usually P has to show D will destroy the chattel if it’s not seize and it can’t be merely replaced with
money
- Recaption – occurs when dispossessed owner simply takes back the goods (self-help remedy)
o Limited to results that can be achieved w/o use of unreasonable force or breach of peace
▪ Maybe use some force, reasonableness depends on facts of the case
- Not a tort, but rather a remedy
- If someone trespasses with your personal property or refuses to give it back, you have the option to
take it back yourself
- Self-help remedy
- Replevin – creation of legislation under rules of civil procedure – defines how to get property back
prior to starting a court action – NOT a tort, is interlocutory relief
o Concern: property will go missing when you bring an action
o Two steps:
▪ Interim order only for the recovery of property
▪ Final order for return of specific property
NOV 9 PODCAST
 Recaption and Replevin are not torts, but remedies for personal property
 Recapture (creation of common law)
 Self-help remedy of recaption (practical solution but must beware)
 Recaption would require some form of trespass (i.e. you let neighbour borrow lawn mower but
refuse to give it back, they leave their garage open… and you just get it back… it would be hard
for them to sue you for trespass because of the concept of ex turpi)
 If in fact you do trespass to get your property back and you get injured on their property, ex
turpi is on you (if you sue for your injury and you explain your trespass to recapture, it is on
you)
 You committed a tort to correct another tort
 Recapture would essentially nullify a possessory lien, but it doesn’t matter because if there is an
action, its not for the nullification of the lien, but what triggered the lien (mechanic repaired
your car, but you took it… he wants to be compensated for the work done)
 Replevin (statute contained in rules of civil procedure)
 Form of interlocutory relief
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When you commence a legal action, it takes a long time especially for civil litigation before you
have your matter heard
First appearance doesn’t lead to much, you must give court evidence (prove proper jurisdiction,
provide documentation) then enter series of motions for disclosure (might need to serve
someone by alternate means)
Best case scenario is to go to a summary judgment trial/motion to dispose of an entire affair 2
or x years after you commence action
In that period of time, there might be reasons why you cannot wait
Back to mechanic problem above, you might need your car back while case is going through
court (court might tell to return car to you, but that doesn’t mean you win your case.. wait to
be heard)
In nuisance situation, neighbour makes a lot of noise, you want to sue but you don’t want to
wait x years
 Bring forward interlocutory motion (without prejudice basis, meaning that even if the
court orders you to stop playing music or the nuisance, it doesn’t mean that you will not
win your case. You still have to wait to be heard and have case decided)
Replevin is an interlocutory motion allows you to go to court on ex parte (without their
knowledge) basis (go to court without serving that other person…) ask the court to make the
order to have property given to you while you wait for case to be heard
 Must provide security deposit (court will say you must give deposit to ensure that if the
property really doesn’t belong to you, the security deposit which is the current value of
the chattel or greater goes to the other party)
 Go to bailiff/sheriff to execute the interlocutory motion
 Once bailiff has it in their possession, they deliver it to you (short window of less than a
week to start the case)
 All you did was start ex parte motion for interlocutory relief, you must now begin the
process of suing the other party in detinue (judge will then make decision to whether
watch really belongs to you or not)
 Because you already have the property, there is a chance that you don’t commence
action, therefore security deposit guarantees other party’s loss
INTENTIONAL INTERFERENCE WITH REAL PROPERTY (NOV 9 PODCAST)
- Trespass to land – direct & intentional physical intrusion onto land in the possession of another
o Actionable per se
- Elements: direct, intentional, physical, complainant in possession of land
- Types of trespass to air:
o Permanent low-level intrusion
o Temporary intrusion other than aircraft
o Aircraft intrusion
EVOLUTION:
- Entick v Carrington (1765) (p. 177)– general rule: every invasion of private property, no matter how
minute, is a trespass without permission
o No need to prove damages, onus on D to answer for trespass that some positive law excused
him
- Harrison v Carswell, 1976: Trespass is trespass and supersedes one’s right to free speech, picket,
protest, etc. It does not matter whether property is private or private-public.
- Post-Charter: Depending on the property, trespass may no always be the same
51
-
Post Bird v. Holbrook, 1828: Property is not absolute right that you have and cannot kill anyone that
steps foot onto your property
-
Trespass to land (oldest of all intentional torts): the direct and intentional, physical intrusion onto
land in possession of another.
o Actionable per se
o Generally arises in 3 circumstances:
▪ 1) Defendant enters land of plaintiff without permission
▪ 2) Defendant puts an objects onto plaintiffs property without permission
▪ 3) Defendant is on property with permission, but permission is revoked and they don’t
leave
4 elements to tort
o 1) Intrusion must be direct
o 2) Must be intentional (mistake not a defence/excuse i.e. Turner v Thorne)
o 3) Must be physical
o 4) Plaintiff must be in possession of the land
Nuisance is different (pollution, noise… as it is not physical)
Doesn’t matter whether or not plaintiff owns the land, as long as they are in possession of it
Usually remedy is damages, but also situation of interlocutory motion (could be brought to eject
someone from property)
o Could be ex parte or by notice
Interlocutory motion could work to prevent person from coming back (apply for injunction, court order
preventing them returning because they are no longer in your house)
This tort is legislated (Ontario covered under Trespass to Property Act)
Intersection with property rights deals with air rights and subsoil rights
o General rule in property law (if you own property, you own everything from centre of the earth
to the heavens above) old concept
o Over years, courts have modified this concept
o 3 kinds of interferences or trespasses to your airspace: (Tutorial 4)
▪ 1) permanent low-level intrusion: something like a billboard or treehouse, electrical
lines (if on your land without your permission, it’s generally a valid trespass and
legitimate tort to be sued for relief)
▪ 2) temporary intrusion: Courts more inconsistent (i.e. construction crane) technically
you could sue as it is a valid trespass, but if you sue and get injunction and they are
building a condo (if permanent injunction), half the building is built already and cannot
be completed (employees go to everyone in neighbourhood to give notice.. give
payment in return for license to do something which would otherwise be a trespass)
▪ 3) aircraft intrusion: lots of history since creation of airplanes (whether or not they can
go over your property without your permission) because courts have been so
inconsistent. Replaced with legislation (zone above your house that applies enjoyment
of property)
● Once passed magical zone which you can enjoy property, it is now public space
and airplanes can fly over without permission
● Drone issues, invasion of privacy? Could go over property but cannot record your
property
o Trespass to subsoil: generally no law, except for by-laws (applies to airspace)
-
-
-
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▪
In cases of no by-laws, the common law says you could dig as deep as you want; if you
dig so deep that you interfere with the supports of your neighbours (i.e. their property is
at risk because of your action; lateral supports that must be provided to your neighbour)
Turner v Thorne (1959) 21 DLR (2d) 29 (Ont HC) (177-179)
Innocent mistake is not a defence to trespass and its consequences. A trespasser to land is liable for both
direct and indirect personal injuries resulting from the trespass.
Facts - Thorne (D) operates a business known as the Speedit Delivery Service & co-D George Thorne was a
driver employed by his co-D
- Was hired to drop off cartons for delivery to Gas Machinery Co, located on P's property
- D knocked on door, no answer, went to garage which was unlocked, and piled in the centre of the
garage
- P returned home and entered garage where he fell over the cartons, sustaining serious injuries
Issues
Is person liable for trespass as an indirect trespass and from innocent mistake?
Held
Judgment for plaintiff. D rrespassed.
Ratio
Innocent mistake is not a defence to trespass and its consequences. A trespasser to land is liable for
both direct and indirect personal injuries resulting from the trespass.
Analysi - Trespass resulting from an innocent mistake - doesn't relieve liability
s
- Trespasser comes liable not only for personal injuries from the trespass, but also those which are
indirect & consequential - even if injury is proximate (related) to trespass, you may be liable
Harrison v Carswell [1976] 2 SCR 200 (182-185)
Common law protects private property rights unconditionally unless there’s an overriding statute
Facts - Carswell charged with 4 offences of unlawfully trespassing upon Fairview Corp's premises,
picketing under the firm name & style of Polo Park Shopping Centre after requested not to be on
premises by the owner
- Harrison (manager) swore the information
- County Court dismissed by Provincial judge, County Court convicted Carswell & fined her
- Convictions set aside by Manitoba COA
Issues
Is the shopping mall private or public property?
Held
Appeal allowed. It was a public space.
Ratio
Common law protects private property rights unconditionally unless there’s an overriding statute
Analysi - Court should balance the value of the right to property & right to picket
s
- Public interest is served by permitting union members to bring economic pressure on their
respective employers through peaceful picketing
o Exercisable in some locations & not in others - has been permitted on private property by
statute
- The Petty Trespasses Act creates an offence when person trespasses on land after requested by
owner not to enter - allowing otherwise would require change in statute, must be made by the
legislature
Dissent - Reconceive what we perceive as private & public space; if you go to shopping centre, you have to
follow rules of the shopping centre = private space
53
- Considerations underlying protection of private residences can’t apply to same degree to a
shopping centre but assimilating all private property would suggest no matter its use, trespass is
appropriate
- Shopping centre owner has title & possession but shouldn’t be allowed to choose what members
of the public are allowed on the property
Trespass to Airspace & Subsoil (194-199)
- Trespass to Airspace – elements same as those of trespass to land – direct, intentional physical
intrusion into airspace over P’s land
- Trespass to Soil - Subterranean intrusions raise same issues as intrusions into airspace: Epstein v
Cressey Development Corp (1992)
Bernstein v Skyviews & General Ltd [1978] QB 479 (194-196)
Rights of an owner in the air space above his land is such height as is necessary for the ordinary use &
enjoyment of his land and the structures upon it
Facts - D allegedly entered air space above P's premises in order to take an aerial photograph of his house
- D claim they took the photograph when the aircraft was flying over adjoining land not owned by P;
alternatively that if they did fly over P's land for the photograph they had his implied permission to
do so
Issues
Held
No trespass to airspace
Ratio
Rights of an owner in the air space above his land is such height as is necessary for the ordinary use
& enjoyment of his land and the structures upon it
Analysi - P relies on maxim that "whomsoever the soil belongs, he owns also the sky and to the depths"
s
- Kelson v Imperial Tobacco Co Ltd
- balance rights of an owner to enjoy use of land against rights of public to take advantage of all
airspace
- Landowner's right in air space does not extend to an unlimited height
- Homeowners do not have a greater right than the general public
DEFENCE OF REAL PROPERTY (Nov 16 L)
Defence of Reasonable Force (259-264)
- Usually used when Somebody trespasses on your land and you physically remove them - they then sue
you for battery (can sue back in cross-motion for trespass)
- If person came onto land peacefully, must ask person to leave peacefully
- If came onto land with force or won't leave peacefully, can use objectively reasonable force
- Deadly force is never a defence
- Devices: you can use a device, but the device should be meant to scare the individual, not hurt them
- Recapture of chattels applies to personal property (must ask for it back before you get it yourself; if
they do not return then you must be careful in getting it back)
MacDonald v Hees (1974) 46 DLR (3d) 720 (NSSC) (259-261)
Unlawful entry is a defence when the force was justified in law when the trespasser has been requested to
leave, given a reasonable opportunity to do so, and the force used was that necessary
Facts
- P claims D for injury, loss, damage from an assault when D forcibly ejected P from a motel
room
54
- In his defence, D denied assault & that if he used any force upon the person he was justified in
law due to the unlawful entry of P & invasion of the D's privacy
- P was an officer of local political party who wanted to introduce person to D, knocked on door
which had light on, heard someone call from adjoining unit & assumed that he was invited to
enter
Issues
Is the unlawful entry of property a valid defence?
Held
Award damages to plaintiff. Defence that application was justified in law due to the unlawful
entry of plaintiff & invasion of D's privacy is not established.
Ratio
Unlawful entry is a defence when the force was justified in law when the trespasser has been
requested to leave, given a reasonable opportunity to do so, and the force used was that
necessary
Analysis
- D was in lawful occupation of the motel unit, hadn’t expressly invited the P to visit him, nor
any implied invitation
- Trespasser cannot be forcible repelled/ejected until he's been requested to leave & a
reasonable opportunity of doing so peaceably has been given
- Amount of force used must not exceed that which is necessary - must amount to nothing
more than forcible removal & must not include beating, wounding or other physical injury
- D did not request P to leave & give them reasonable opportunity of doing so peaceably when
they merely stepped in the room and began introducing themselves
- D's use of force was excessive - threw P outside causing severe lacerations
Commentar
y
Bird v Holbrook 91828) 130 ER 911 (CP) (263-264)
Must give notice when attempting to deter trespass with a device that may injure somebody
Facts - D possessed a walled garden where he grew valuable tulips; set up a spring gun with trip wires
across garden b/c of past vandalism - no notice of spring gun posted
- Hen escaped from neighbour's house and landed in garden; P offered to help get it, climbed the
garden wall, called several times for the occupant, jumped into garden - gun discharged, seriously
wounding him
Issues
Held
Award for plaintiff
Ratio
Must give notice when attempting to deter trespass
Analysi - D didn't post notice of spring gun, had intention of discharging on someone to do injury, not deter
s
Defence & Recaption of Chattels (Nov 16 L)
- D must be in possession of the chattel, attempting to immediately regain possession, or in hot pursuit
of the person who had just taken the chattel
- If person innocently pick up D's chattel - D must request its return before using any force
- If person grabs chattel out of D's hand, D can use force to retrieve it w/o first making request for its
return
- Cannot invoke defence of chattels once dispossessed
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-
Recaption – places the dispossessed owner in role of potential aggressor who’s attempting to regain
possession of the goods from another person
o only invoked by person who has an immediate right to possession, and then only after a
request has been made for the chattel's return
o Cannot use force to recapture chattel from a bailee who refused to return it
▪ Limited to circumstances where person who wrongfully gained possession refuses to
hand over chattel after being requested to do so
o Common law privilege to enter another's land to recapture chattels in limited circumstances
▪ If chattel came onto land accidentally or was left there by a wrongdoer, the owner could
enter the property to retake his chattel, provided he didn't use force or cause a breach
of peace
▪ If occupier of land came into possession of chattel unlawfully, its owner could make a
forced entry if his request for its return had been denied
- Mistake of fact won’t negate defence of chattels, but will negate the remedy of recaption of chattels
- Owner who recaptures a chattel need not pay for any improvements that other party made to it, even
if other party acted in good faith
o Owner may be required to pay for improvements if owner recovers chattel through court action
(otherwise may be held liable for unjust enrichment)
Necessity – Public & Private (Nov 21 L)
- Public Necessity - Allows an individual to intentionally interfere with the property rights of another in
order to save lives or to protect the public interest from external threats of nature such as fires, floods,
storms
o Complete defence – no need to pay damages
- Devices: you can use a device, but the device should be meant to scare the individual, not hurt them
- Recapture of chattels applies to personal property (must ask for it back before you get it yourself; if
they do not return then you must be careful in getting it back)
- Replevin
- Defence of necessity (unique to real property)
o Comes up in trespass and trespass to real property
o 1) Public necessity: allows an individual to intentionally interfere with the property rights of
another in order to save lives or to protect the public interest from external threats of nature
(i.e. fire, floods, storms) it is a complete defence; generally courts have upheld defence but
have stated the necessity must be proportionate and the defendant must have acted
reasonably in terms of damages caused relative to the public benefit
o 2) Private necessity: When you intentionally interfere with property rights of another to
preserve your own rights
o
Surocco v Geary, 3 Cal 69 (Cal SC 1853) (266-268)
Public necessity is a full defence to tort on real property
Facts
P bringing action to recover damages for blowing up & destroying the P's house during a fire
which P thought would damage surrounding houses
Issues
Is it a defence when person acts in good faith and apparent necessity, destroys property?
Held
No verdict against defendant
Ratio
Public necessity is a full defence to tort on real property
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Analysis
- Common law adopts principles of the natural law, and places justification of an act otherwise
tortious precisely on the same ground of necessity
- A house on fire, or those in its immediate vicinity, becomes a nuisance, which it's lawful to
abate, and the rights of the individual yield to the considerations of general convenience and
the interests of society
- The necessity of blowing up a house may not exist to the owner whose judgment is clouded
by interest and the hope of saving his property
- Facts show blowing up of house was necessary as it would've been consumed had it been
left standing
Fire was going to affect other homes in vicinity; public necessity of destroying home to
prevent destruction of other homes
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“But in every case; necessity must be shown”
If there is a legitimate purpose in destroying property, it is public necessity and you would be
compensated (compensation varies i.e. insurance)
Private necessity (subjective) public necessity (objective)
Public necessity is a complete defence (compensation)
Commentar - Defendant must have acted reasonably in terms of the damages caused relative to the likely
y
public benefit
- Reasonable & good-faith mistake of fact as to need to invoke the defence of necessity will
not negate the defence
- Limited to cases where D interfered with P's property interest
- Traditionally limited to situations in which the imminent threat is posed by some external
force of nature
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Private Necessity - When a tortfeasor uses the victim's property (trespasses on victim's property) for
the purpose of preserving their own property
o Partial defence – can be mitigating factor but will be liable (compensatory damages)
Vincent v Lake Erie TPT Co, 124 NW 221 (Minn SC 1910) (270-273)
Facts - D's steamship moored to P's dock for purpose of discharging cargo; while unloading a storm
developed and was so severe that navigation practically suspended
- After discharge of the cargo, the ship signaled for a tug to tow her from the dock but none could be
obtained because of severity of the storm
- If cast off, ship would've drifted away; ship was constantly lifted and thrown against the dock,
resulting in damage
Issues
Held
Defendant held liable.
Ratio
Analysi - Attempt to leave the dock would've been worse - blown ashore or warped into a slip
s
- Those in charge of the dock only required ordinary prudence & care - they had exercised good
judgment
- Storm rendered it necessary, due to conditions which appellants had no control over - they
deliberately held ship in such a position that preserved the ship at the expense of the dock
- D prudently & advisedly availed itself of the P's property for the purpose of preserving its own
more valuable property
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Dock and boat case; boat tied to dock for purpose of unloading; large storm comes in; if boat let go
then it would have been swept to sea; dock was damaged as a result of the storm and boat being tied
Dock owner suing boat owner for damage to the dock
Court found that the boat would have been lost, there was private necessity to keep boat tied up
Majority said someone has to be liable; allergic to “accidents”
Private necessity is a partial defence
Dissent It was probably an accident and therefore cannot be a tort
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NUISANCE (Nov 21 L)
What distinguishes nuisance is that you do not need to prove intent
It is not an intentional tort
Nuisance talks about reasonableness
Court must find balance between victim’s interests in being free from nay interference by the
wrongdoer
Weigh against the defendant’s right to carry on a lawful activity
Starts to look like a negligence issue
SCC creates new or modifies test; reasonableness before you did something negligent; during; and how
you dealt with it after
Reasonableness important in nuisance; however not as important in negligence
In nuisance suit, you are more concerned with the effect of the tortfeasor’s behaviour, rather than
the actual conduct
Similar to trespass, but not entirely the same
o 1. Trespass is a historic, leftover tort that is actionable per se (nuisance is actionable per se
requiring proof of loss)
o 2. Trespass protects possession; nuisance protects the quality of the possession
o 3. Nuisance concerned with effect of defendant’s conduct on plaintiff’s use or enjoyment of
their property, but not with the nature of the conduct
o 4. Liability in trespass requires intent
Nuisance is a civil wrong (tort); it is the unreasonable, unwarranted or unlawful use of one’s
property in a manner that substantially interferes with the enjoyment or use another individuals’
property, but without an actual trespass
Default will be the objective test unless if you can claim to the court that it should be subjective
Historically, classic nuisance cases are noise
Nuisance predates negligence and negligence requires someone to do something in a way that is clear
and obvious to everyone (as offensive)
Test must also been passed in negligence
Public nuisance can involve multiple parties with 1. Common interest (one individual or group of
individuals will bring an action against defendant for what they consider to be an unreasonable
interference with interest that is common to entire community) 2. Combined private interest (group
of individuals who feel that they have all been interrupted individually—combined effort to sue as one
group)
Nuisance is tied to real property
Something can be legal to do, but must look at reasonableness (smoking weed everyday next to
neighbour?)
Private nuisance and public nuisance
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-
Unreasonable, unwarranted or unlawful use of one's property in a manner that substantially interferes
with the enjoyment or use of another individual's property without an actionable trespass
- NOT actionable per se – doesn’t have to be intentional or negligent but MUST result in damages (unlike
trespass)
- Must weight P’s interest in being free from interference against the defendant's interest in carrying on
the impugned activity, as well as society's interest in allowing some type of activities
- Unreasonableness – assessed in terms of P’s use of his property & the relative interests of P & D
- Types:
o Public Nuisance – common interest & combined private interest
o Private Nuisance - interference with the use or enjoyment of the property of another
- Liability may be imposed if occupier:
o Knew or ought to have known of a hazard created by a third party or by nature, and
o Failed to take reasonable steps to protect neighbouring properties
Trespass vs Nuisance
Trespass
Nuisance
Actionable per se
Requires proof of loss
Protects possession
Protects quality of possession
Concerned with nature of conduct
Concerned with effect of D’s conduct on P’s use &
enjoyment
Liability requires intent
Doesn’t require intent or negligence (strict liability)
Kerr v Revelstoke Bldg Materials Ltd (1976) 71 DLR (3d) 134 (Alta SC) (190-191)
Nuisance is established on proof of loss when actions of D interfere with the enjoyment of P’s property
Facts - Kerr and wife built a motel business on site that was chosen for its tranquility & scenic beauty
- D = lumber company that commenced its business across the highway from the hotel - brought in
sawmill, loading ramp, chipper and debarker were introduced
- P's complained about smoke, sawdust, dust, fly ash and objectionable noises from D's operations;
D tried to ameliorate situation by fixing up the conveyor belt, enclosing the planer and chipper
- P continued to complain and closed their motel operation in 1971
Issues
Was there trespass?
Held
Award for plaintiff in trespass & nuisance
Ratio
Nuisance is established on proof of loss when actions of D interfere with the enjoyment of P’s
property
Analysi - Smoke, sawdust, fly ash physically invaded their premises and was so severe on occasion that it
s
interfered with their use & enjoyment of their property
- Also caused concern, anxiety & discomfort from the situation, and caused harmful effect on health
of Mrs. Kerr and in turn had a negative effect on Mr. Kerr's enjoyment of life
- Intensity & frequency of objectionable noises increased substantially after sawmill commenced
operating - intense enough to interfere with ordinary conversations on P's yard and with rest &
sleep of motel guests
Private Nuisance (Nov 21 L)
- Grounded in private ownership – substantial & unreasonable interference with use & enjoyment
o Substantial = question of fact – evidence of what nuisance is, when it happens
o Unreasonable = question of law:
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1. Look @ severity of interference having regard to nature & duration & effect
2. Character of the locale – the character of the property
3. Utility of defendant’s conduct – help with economy
4. Sensitivity of the use interfered with – quality of interference
Duration may be important – right to act in a manner that would otherwise be a nuisance can be
acquired through prescription – when P allowed D to regularly do something for extensive time
Common factors: character of neighbourhood; intensity & duration of interference; time of day; zone
designation in neighbourhood; utility & nature of D’s conduct; sensitivity of the P
Substantial and unreasonable interference with the use or enjoyment of the land of another
To determine whether interference is substantial is a question of fact; to determine unreasonableness
is a question of law
Fact is something that should be left up to the trier of fact (could be a judge)
Factors to determine if it is reasonable or unreasonable
1. Severity of interference, having regard to its nature, duration and effect(s)
2. Character of the locale (where is it taking place?)
3. Utility of defendant’s conduct (how useful is their conduct?)
4. The sensitivity of the use interfered with
340909 Ont Ltd v Huron Steel Products (Windsor) Ltd (1990) 73 OR (2d) 641 (HC) (968-972)
Factors considered for determining unreasonable interference: 1) severity of interference; 2) character of the
locale; 3) utility of D’s conduct; 4) sensitivity of the use interfered with
Facts - D operates a steel stamping plant near P's apartment building which caused noise and vibrations
- D made efforts to reduce noise & vibrations with a second press that met the Ministry of
Environment's guidelines
- P brought an action of nuisance claiming loss of rental income & loss of the value of the building
Issues
Does plaintiff have a cause of action in nuisance?
Held
Decision in favour of plaintiff. D caused an unreasonable interference with P's use and enjoyment
of its property
Ratio
Factors considered for determining unreasonable interference: 1) severity of interference; 2)
character of the locale; 3) utility of D’s conduct; 4) sensitivity of the use interfered with
Analysi - Interference considered from P's point of view - expert witnesses called that testified that the
s
press caused the noise and vibrations - Press #1 was source of problem & exceeded noise level
guidelines
� Duration was regular, for many years
� Effect of nuisance caused abnormally high vacancy rate, causing loss in value of building and
income
� Character of the locale - is one of "mixed use" - apartments, houses, school, church, commercial
buildings
� Utility of D's conduct - D's enterprise & its value to community speaks to the leniency of remedy
rather than liability itself - company provides jobs to community
- Question is whether D used his property reasonably, having regard that he has neighbours; NOT
whether D used his property in a reasonable manner if he had no neighbours
Antrim Truck Centre Ltd v Ontario (Transportation) 2013 SCC 13 (977-981)
Reasonableness of the interference must be determined by balancing the competing interests
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Facts
- Antrim Truck Centre (appellant) operated service station & restaurant
- Province opened new section of Highway 417 that caused traffic to bypass appellant's premises
& effectively put it out of business
- Antrim filed on basis that Province's project interfered with its use & enjoyment and sought
compensation for injurious affection under the Expropriation Act
Procedur - Ontario Municipal Board awarded damages to Antrim for loss of business & lost market value of
al
its land
History: - Divisional Court agreed
- ONCA set aside Board's decision on grounds that they failed to consider the character of the
neighbourhood, sensitivity of the appellant, social utility of respondent's conduct in providing an
essential public service
- Appealed to SCC
Issues
Does the rerouting of a highway constitute a nuisance in law when the highway serves an
important public purpose?
Held
Antrim's appeal allowed, Board's original decision restored
Ratio
Reasonableness of the interference must be determined by balancing the competing interests
Analysis
- Assess reasonableness against a public good purpose: balance gravity of harm against utility of
D's conduct; consider (not exhaustive):
� Severity of interference, character of neighbourhood, sensitivity of P
� Distinction b/w utility of conduct (focuses on purpose) & the nature of D's conduct (how
purpose is carried out)
- Focus in nuisance is on whether the interference suffered is unreasonable, not on whether the
nature of the defendant's conduct is unreasonable
- Acts of public authority usually of significant utility - Reasonableness analysis should favour
public authority where harm to property interests is one that doesn't burden claimant with unfair
share of costs & authority has made all reasonable efforts to reduce the impact of its work
- Unreasonableness of an interference can be considered regardless of the type of harm
(physical/material or not)
� Damage can be financial loss, decline in value, even where there is no harm to the property
itself
- No mandatory checklist for considering nuisance - factors are simply examples of the sort of
criteria courts have articulated; absence of factors isn't a reviewable error � COA erred in treating
it as mandatory checklist
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 (983-985)
The right to create noise on one's land is always subject to the nuisance of one's neighbours.
Facts - Plaintiff was a breeder of silver foxes and erected a sign to advertise a business which annoyed
the D
- D claimed it was detrimental to his development of a building estate
- P refused to move the sign & D threatened to discharge guns near the fox pens during breeding
season to interfere with their whelping
- D carried through with his threat & P sued in nuisance
Issues
Does a landowner have an absolute right to create noise on his property?
Held
Plaintiff awarded damages.
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Ratio
The right to create noise on one's land is always subject to the nuisance of one's neighbours.
Analysi - D was entitled to shoot for his own pleasure on his land; but D did the shooting intentionally for
s
the purpose of injuring the plaintiff - acted with malice/spite
- D argued P's business required extraordinary degree of quiet & that shouldn't prevent him from
using his land that wouldn't be a nuisance to the general public
- Motive for production of noise is considered, whether or not he was using land in a legitimate &
reasonable manner
Public Nuisance (994-1002) (Nov 21 L)
- Is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect
one person to take proceedings on his own responsibility to put a stop to
- Common Interest – arises if D’s conduct unreasonably interferes with rights, resources or interests that
are common to the entire community
- Private Interests Combined – arise if D’s conduct unreasonably interferes (on large scale) with use &
enjoyment of private property
o Each affected person can sue in private nuisance but makes more sense to join together & seek
public remedies
o Courts ask whether claimants constitute a sufficient “class” & it appears that a public claim
generally becomes available as membership in the class approaches
- Main issues: How to distinguish b/w private & public nuisance; how to determine which Ps will be
permitted to maintain private actions for public nuisance
- A public nuisance involves a substantial and unreasonable interference with use or enjoyment of
property i.e. land which is public OR widely private
- First circumstance is a common interest: if the defendant’s conduct unreasonably interferes with
rights, resources, or interests that are common to entire community (public nuisance common
interest) (i.e. if an individual blocks a highway)
- Combined private interest: if wrongdoers conduct unreasonably interferes with use or enjoyment of
private property on a large scale (i.e. if there is a factory in your neighbourhood that is emitting fumes
in your neighbourhood—combined forces and sue as a public nuisance, but can sue separately in
private nuisance)
- Public nuisance is an offence under CCC
AG Ont v Orange Productions Ltd (1971), 21 DLR (3d) 257 (Ont HC) (995-997)
A public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it
would not be reasonable to expect one person to take it on – instead, taking action becomes the
responsibility of the community at large
Facts - AG sought interim injunction to restrain D from holding an outdoor rock concert alleging that it
would constitute a public nuisance
- Evidence showed D's previous concert had acts of trespass to private property, public sexual
intercourse, public consumption of alcohol & illicit drugs
Issues
- What is a sufficient number private person involved to turn from a private to public nuisance?
- How is the court to distinguish between private and public nuisance?
Held
Injunction granted for plaintiff
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Ratio
A public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect
that it would not be reasonable to expect one person to take it on – instead, taking action becomes
the responsibility of the community at large
Analysi - Looks at it from a crowd/numbers perspective: “Social disaster” of noise, dust, etc. is a problematic
s
for everyone in the neighborhood
- Because there isn’t proper sanitation and crowd control, it would also be a nuisance to those
attending the event.
- AG v. PYA Quarries Ltd [1957] - area affected by public nuisance best understood as “the
neighbourhood”.
- Romer LJ test: To be a public nuisance it must materially affect the reasonable comfort and
convenience of life of a class of Her Majesty’s subjects (people); it is sufficient to show that a
“representative cross-section of the class” has been affected.
- Denning LJ test: With a public nuisance, because of its range or indiscriminate impact, the
responsibility falls on the community to take action. Public nuisance so WIDESPREAD that if affects
many people.
- If nuisance is concentrated to only 2-3 property owners, this would be a private nuisance with no
expectation of community action.
- Here, the concert was seen as a social disaster waiting to happen, proper sanitation must be
installed, attendance limits required so safety risk can be reduced.
Hickey v Electricity Reduction Co (1970), 21 DLR (3d) 368 (Nfld SC) (997-999)
Private action for public nuisance is only sustainable where the private damage is peculiar, particular, and
distinct from that of the general public
Facts
- D destroyed fish life of adjacent waters by discharging poisonous waste from its phosphorus
plant
- P and other fishermen in the area suffered in their livelihood - affected all persons, not
confined to the plaintiffs or confined to their use of waters
Issues
When is a plaintiff permitted to maintain a private action for public nuisance?
Held
Private action denied. Decision in favour of Electric Reduction Co of Canada
Ratio
Private action for public nuisance is only sustainable where the private damage is peculiar,
particular, and distinct from that of the general public
Analysis
- There’s a public action for private nuisance but this isn’t one of those situations
- public right to fish in sea means any interference is a public nuisance.
- pollution=public nuisance, so this should be dealt with as a private tort action
- must suffer a different injury than every one else – not in type but in extent
- Pollution of the waters which harmed the public fishery = interference of a public right. Any
person who suffers peculiar damage has a right of action but where the damage is common to
all persons of the same class, then a personal right of action is not maintainable.
- McRae v British Norwegian Whaling Co Ltd - right to fish is a public right, plaintiffs must show
direct & substantial injury for a private action; must be more than business interference for a
public nuisance
- Fillion v New Brunswick International Paper Co - where a nuisance or injury is common to the
whole public, no private right of action exists unless there's a special/particular injury to the
plaintiff
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Commenta - Plaintiff in a private action for public nuisance must have suffered some "special damage"
ry
beyond that experienced by the general public
- UK: public nuisance = unlawful act/omission which endangers
life/safety/health/property/comfort of public
Defence of Statutory Authority (986-990)
- Most common defence in private nuisance – statute that allows person to do what would otherwise be
a nuisance
- Statute can be relied upon only when less intrusive alternatives don’t exist
o Comes from case law – law used as shield, not sword – statute = default
- Other defences: Consent, contributory negligence (reduce damages), general contract principles,
public interest, prescription (nuisance remained same over time & P was aware of it)
- “coming to the nuisance” = not a defence in American cases, provided that P bought the land in good
faith & not for purpose of bringing claim
o Coventry v Lawrence – affirmed that D cannot escape liability by pleading P came to the
nuisance
Statutory authority: If statute exists which permits the nuisance, then it is a complete defence
(municipality argued they had all the necessary permits as required by law and thus were allowed to do
what they did)
- Tock v St John’s (blockage of sewer in someone’s basement; It was not so much a case on nuisance,
but other things
- Issue raised was government raised that statute did allow them to do what they did which ultimately
caused flooding; SCC said that it’s not how the defence is supposed to work (if you have committed a
nuisance, but yet you do so yet with permission then you have a complete defence)
- Under the act, sewer had to be built and if there are consequences we are not bound by it—SCC said
this argument does not work
- Statute itself doesn’t blanket cover immunity; must look at balance and all other factors (if it is meant
to protect authority, you can use it, but there must be a causal connection with right being asserted
and interference)
Tock v St John's Metropolitan Area Board (1989), 64 DLR (4th) 620 (SCC) (986-990)
Despite there being a common good, should be compensated for private nuisance
Facts
- During rainy day Tocks discovered a lot of water entered their basement & immediately
notified the Board and attempted to pump water out themselves
- 2 Board employees inspected storm sewer nearby & determined that the sewer was blocked
- Crew was summoned & by early evening it had removed the blockage
- By the time the basement was drained, it had incurred substantial damage
Procedural - Trial: flooding caused by blockage, not heavy rainfall - held Board not negligent in
History:
construction, maintenance, operation of sewer
� Flooding was a serious interference and allowed claim in nuisance - awarded Tocks damages
- COA: reversed judgment - the provisioning of an indispensable service such as water & sewer
system couldn't be held to constitute a non-natural user of land within meaning of the rule
� City operating under statutory authority & city did everything it could reasonably be expected
to do
Issues
Is the nuisance claim against St. John's barred by the defence of statutory authority?
Held
Tock's appeal allowed. COA judgment set aside and restore trial judge's judgment.
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Ratio
Despite there being a common good, should be compensated for private nuisance
Analysis
(La Forest)
- Claim of nuisance wouldn't lie against a municipal corporation for damage resulting from a
service provided under statutory authority (statutory authority can be overridden by policy
reasons)
� Board satisfied onus of demonstrating that it had done everything that could reasonably be
expected to avoid the occurrence
- Most nuisances stemming from activities authorized by statute are inevitable - this doesn't tell
us why the people who randomly suffer damages should be responsible for paying that damage
Concurring - It’s for the legislature to abolish the defence of statutory authority for policy reasons, not
(Wilson)
courts
- Reject proposition that a single person suffering damage from an isolated nuisance should be
dealt with differently from group of people suffering damage from an ongoing nuisance
- Recovery will be allowed unless it's shown that the interference with the plaintiff's rights was
permitted by either:
� Express language in the statute (provision specifying no action for nuisance may be brought)
or
� By necessary implication from the language of the statute coupled with factual finding that
damage was the inevitable consequence of what the statute authorized the public body to do
--in this case, language of statute is permissive, had to be done in conformity of private right
which was not done in this case – so no defence
Concurring - The defence of statutory authority applies only if the defendant proves that it was practically
(Sopinka)
impossible to avoid creating the nuisance
- Mere fact that it'll be less expensive will not avail
- Against conclusion that private rights are intended to be sacrificed for the common good
Commenta - Sopinka’s view was unanimously adopted in Ryan v Victoria (City) – defence applies only if D
ry
proves that it was practically impossible to avoid creating a nuisance
Remedies (Nov 21 L)
- Most common: injunctive relief & damages
o Choice b/w them is difficult – balance interests of P, D & community
o Injunction – court order directing person to act in a particular way
▪ Prohibitory injunction – compels D to refrain from a certain act
▪ Mandatory injunction – compels performance of a certain act
▪ Interlocutory injunction – temporarily restrains D pending P’s attempt to establish a
case for a permanent order
▪ Quia timet injunction – intended to prevent D from causing an anticipated harm in the
first place
▪ Permanent injunction – granted by a court, after a full hearing, in resolution of a dispute
- Self-help remedy of abatement – expedient, informal & inexpensive alternative to legal proceedings
(careful!)
o Factors considered in upholding defence of abatement:
▪ Does the nuisance regularly manifest itself & require an immediate remedy?
▪ Will the benefit of abatement be lost by waiting for a judicial remedy?
▪ Can the abatement be effected without a breach of the peace or unnecessary damage?
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o Must be peaceful & reasonable – otherwise may be ex turpi (unable to pursue remedy if you
commit illegal act)
- Occupier generally viewed as having an interest, rather than a right, in the reasonable use &
enjoyment
Mendez v Palazzi (1976), 68 DLR (3d) 582 (Ont Co Ct) (1002-1004)
Injunction must have 2 conditions precedent: Actual damage & that damage must be substantial
Facts
- Roots from trees have ruined P's law, garden & patio and are allegedly threatening the septic
tank, weeping tiles and foundation of P's home
Issues
What are the plaintiff's remedies?
Held
Damages appropriate. No quia timet injunction.
Ratio
Injunction must have 2 conditions precedent: Actual damage & that damage must be
substantial
Analysis
- There is actual damage to the law but not that degree of substantial damage to merit issuing a
mandatory injunction
- Quia timet injunction requires proof of imminent danger & there must also be proof that the
apprehended damage will be very substantial
� Must be proved damage will be irreparable
� Must be shown that if damages occur at any time, it'll come in such a way & under such
circumstances, that it'll be impossible for the plaintiffs to protect themselves against it if relief is
denied
� No evidence that roots had reached tile bed or basement has been damaged as a result of
root action
Commentar - Distinguish arguments for damages vs injunction
y
- If injury to plaintiff is small and can be adequately remedied through money, will get damages
Miller v Jackson [1977] QB 966 (CA) (1005-1010)
Public interest should be considered in cases of nuisance and weighed in an equitable manner
Facts
- P bought a house adjacent to a small cricket club - they sued the club in nuisance & negligence
after several balls were hit onto their property, causing minor damage to their house & garden
- Club put up a high fence & instructed players to keep their shots down, offered to place a net
over P's garden when there was a game, to install unbreakable glass windows, to provide
shutters & to pay for any damage
- P rejected these offers & sought damages & an injunction
- Trial: P succeeded in both claims & were awarded damages & granted an injunction
Issues
Is playing cricket a nuisance? Is it relevant that the houses were recently built & the field had
been there for 70 years? Is this an unreasonable use of the land?
Held
Appeal allowed. Injunction overturned.
Ratio
Public interest should be considered in cases of nuisance and weighed in an equitable manner
Analysis
- Lord Denning two-part test:
� Reasonable use of land?
� If it wasn't a nuisance before, does it suddenly become one when people encroach on the
grounds they knew beforehand?
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- Not nuisance - playing cricket is a reasonable use for the ground + plaintiffs knew of cricket
grounds before purchasing home
- There is a public interest in the community that overrides plaintiff's right to sit undisturbed
- If house was built first, it would be a nuisance
Concurring - P did or should have realized that the village cricket ground would sometimes knock balls over
(Cumming- - Doesn’t grant injunction for equity reasons – risk of injury doesn’t outweight public interest
Bruce):
Dissenting
(Geoffrey
Lane):
- Damage is physical & the danger of injury is obvious & is a real risk of serious injury
- irrelevant that plaintiffs “moved into” the nuisance
- would grant injunction because there’s risk of physical injury
Commentar Injunction claim must be in nuisance; damages can have claim in either negligence or nuisance
y
Spur Industries Inc v Del E Webb Development Co, 494 P2d 700 (Ariz SC 1972) (1011-1013)
In the proper circumstances, an owner of a lawful business that is enjoined from operating because his
business is found to be a nuisance can seek indemnification from the individual successful in claiming the
nuisance
Facts
- Appellant operated cattle feedlot in an exclusively agricultural area
- 1959, respondent developed plans for a residential community & purchased 20k acres of
farmland near appellant's operation
- Respondent began development and discovered that smells & flies from appellant's feedlot
made it impossible to use certain plots of land
- Respondent sought injunctive relief on basis of nuisance
- Trial judge enjoined (prohibited) defendant from operating cattle feedlot near plaintiff
Issues
Where a business is being operated in a lawful manner, may the operation be enjoined as a
nuisance?
If so, may the developer who requested the enjoinment be required to indemnify the business
owner?
Held
Trial judge decision is affirmed. Webb must indemnify Spur for a reasonable amount of the cost
of moving or shutting down.
Ratio
In the proper circumstances, an owner of a lawful business that is enjoined from operating
because his business is found to be a nuisance can seek indemnification from the individual
successful in claiming the nuisance
Analysis
- A business which is not per se a public nuisance may become such by being carried on at a
place where the health, comfort, or inconvenience of a populous neighborhood is affected
- Landowner may not have relief if he knowingly came into a neighbourhood reserved for
industrial or agricultural endeavours and has been damaged thereby ("coming to the nuisance")
� But law of nuisance doesn't have a rigid rule to be applied in all instances
- Spur required to move not because of any wrongdoing because of a proper & legitimate
regard for the rights & interests of the public
Commenta - Where injury is slight, remedy for minor inconveniences lies in an action for damages rather
ry
than injunction
- A case of "compensated injunction"
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GUEST SPEAKER ON PRIVATE NUISANCE (Nov 30 L)
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Community cases that have a public law dimension (social justice oriented i.e. labour and
employment/constitutional/administrative law)
Fact finding stage of federal inquiry
About a week trucks came in (before firm was involved in litigation)
 Firm located in Centertown
Safeguard freedom of assembly and protest
Wasn’t sure if there was a rule for civil litigation to play on convoy protest
Through public inquiry process, struggling on line between peaceful and violent protest
 Where does the line get drawn?
First issue was honking
 Emerged as a tactic that protestors jointly engaged in (i.e. co-ordinated schedules to maximize
effectiveness of honking, irritate citizens, hopes of reaching politicians)
Narrowly draft statement of claim to take aim at honking tactic
What are the unpeaceful components of protest? What are the community members’ greatest
complaints?
 Seek relief for community members
Filed motion record assembled by Friday (very expedited timeline)
 Statement of claim, motion and motion record, affidavit, factum etc.
Granted initial appearance in Court Sat morning
Class action alleging private nuisance related to horn-honking tactic
 Class action instead of behalf of one or more because it was the hope to get an injunction
(motion pertained to) that would apply to broader area of downtown as opposed to an
injunction that prohibited horn honking outside of an individual’s residence
Horn honking could have been enforced by police and by-law enforcement; could be construed as
mischief under CC (also other offences)
 Failure of public bodies to do something led to civil law providing avenue for relief
Organizers + various John/Jane Does who were participants
People named as defendants as convoy organizers (did not have their own trucks, did not engage in
horn honking)
 To hook them in as defendants, they were joint tortfeasors
 Individuals had a common design, shared a concerted effort towards same goal as truckers who
were there
 Convoy organizers materially contributed to concerted activity
Court adjourned motion to Monday to give people opportunity to have notice of hearing and
participate
If judge issues ruling to unknown individuals in prohibited activity, how is it to be enforced? Rule of law
vulnerability…
Must serve statement of claim to people (firm did it on an ex parte basis… due to nature of request and
urgency)
 Court wants to give public at large to receive notice that this is being brought (for media to
know as well)
Motions for injunctions brought on ex parte basis applying to unknown persons… usually in form of
indigenous protests, environmental blockades
Court did find the injunction test is met
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RJR Macdonald test for interim injunction to issue
 Irreparable harm; balancing inconvenience
Court found enough evidence to find that there is a serious issue to be tried; could be irreparable harm
(psychological, physical harm)
 Even did sound checks in people’s homes
 Above threshold for permanent psychological damage (if sustained…)
Granted 10 days, return to court to argue if to extend
What is value of court order that police will not/cannot enforce?
What is the impact on the rule of law? If it keeps issuing judgements on paper… Doesn’t it diminish the
rule of law? Lose confidence in the justice system overall?
City believed they did not have enough police resources to enforce injunction
Counsel for police were present for motions (had some involvement by adding input; also wrapped up
in issues of police resources)
Expansion of class action; amended statement of claim and brought in claims aimed at diesel emissions
(framed as private nuisance)
 Built allegations re fireworks and blockading of streets
Amended claim to include public nuisance
Resident subclass; business subclass
Broadening claim to include 2 classes of additional defendants; framing addition of new defendants as
class defendants (rarely, but sometimes been done in class actions)
 Donor defendants (gofundme’s): donated feb 4-onwards
 Remove John and Jane Does’ and instead putting in trucker companies (employers liable??)
Injunction on freezing assets of organizers/corporation (signing, transferring, raising assets around the
world + crypto)
Argue certification motion (commence purported class action; court must certify as a class action)
 Argument to court as to why it is best brought as a class action instead of litigation of specific
individuals
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