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Sarah Chaster, 2014-2015: Torts Review
Torts (Law 108C): Midterm Review
Introduction
Tort: A civil wrong where a tortious act causes someone to suffer loss or harm, resulting in legal liability for
the tortfeasor (usually judge-made rather than statute law). Results in damages, i.e. monetary awards.
 Intentional or negligent action vs. something purely accidental
 Strict liability: Damages without fault or intention (usually found in legislation)
 Statutes: Cyber-Safety Act establishes liability for cyberbulling as a tort (one of the few examples
of statute-made tort law)
Aims of tort law:
 To punish fault (moral realm)
 To support good behaviour (protect/compensate the person wronged)
 A wrongdoer should restore balance w/ damages (put the victim back to the way they were)
 Deterrence
 Education (what are peoples’ rights and responsibilities?)
Categories of torts:
 Negligence (requires a negligent act, causation, and damages – was there a duty of care?)
 Intentional torts (battery, assault, false imprisonment)
 Nuisance
 Defamation
Tort law versus criminal law:
 Balance of probabilities (51%) vs beyond a reasonable doubt (higher burden in criminal)
 Monetary damages vs punishment
Tort law versus contract law:
 K: Direct relationship between 2 people set out in terms of contract. Liability from breach of K
 Tort: No direct relationship. Liability from damages that have arisen
Wrongdoing and Responsibility
Joint Tortfeasors
Joint tortfeasors: Individuals other than the actual perpetrators may be responsible; each is liable for
the wrongdoing of another member of the group.
 Special relationships (e.g. employer/employee)
 Party may become fully liable even if they didn’t actually commit the tort
 Joint tortfeasors each become 100% liable (rather than a court apportioning liability between
parties acting independently and resulting in a tort)
 Strict liability: The imposition of liability on a party without a finding of fault
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Cook v Lewis (SCC, 1951): P was shot by one of two Ds (not sure which). P argued they were joint
tortfeasors and judgment should be entered against them both as being jointly liable.
 Joint tortfeasors: Engaged in a “common enterprise”, making each liable for the acts of the other
(they were hunting together & had agreed to “divide the bag evenly”
 Held: If uncertain as to which individual caused offence, neither can be convicted.
o Joint tortfeasors: agent/principal, servant/master, 2 people agreed on “common
action”, employer/employee  these all result in vicarious liability
o Rejects joint tortfeasor argument (too broad – would make scope of liability too wide
for anyone in social/sporting group to be vicariously responsible for the other members)
o Here, neither party anticipated the other would act negligently, controlled, assisted, or
encouraged the other
Fish & Fish v SSUK (UK, 2013): Is SSUK liable as a joint tortfeasor for attack on F&F’s property? F&F
argued SSUK, SSCS and Paul Watson had a “common design” to damage property through “Operation
Blue Rage”, therefore SSUK liable as a joint tortfeasor.
 Test for joint tortfeasorship:
1) Must be a common design that tortious act be done
- Must be explicitly mapped out (tacit agreement not enough)
- e.g. Credit Lyonnais v ECGD: Employee & fraudster had common design to defraud bank
2) Alleged joint tortfeasor must have committed acts in furtherance of that common design
- Mere facilitation not enough (e.g. selling a gun to someone which you know they’ll use
to murder somebody  might be an accessory to murder, but not liable in tort)
- Simply looking on with approval not enough
- However, act just needs to further common design (not play an essential role, no need
for joint tortfeasor to be physically present)
 Joint tortfeasorship is necessarily restrictive (too broad = floodgates, too much uncertainty)
 Closely related parties (shareholders, business partners) not enough to establish JT
 Held: There was a common design (SSUK supported campaign, owned the boat, and committed
acts in furtherance of common design)
Vicarious Liability
Vicarious liability: A doctrine which renders employers/principals liable for the wrongdoing of their
employees/agents. Another (more common) way to establish joint tortfeasorship.
 Strict liability arises out of a “special relationship”
 If you did something personally, you can be sued severally as a separate joint tortfeasor, and
liability will be apportioned accordingly
Limit on vicarious liability: Employer only responsible for torts committed within the scope of what the
employee was supposed to do. Employer isn’t an involuntary insurer for anything an employee might do.
 Did the “special relationship” exist? (look at the facts! E.g. Sagaz)
 Was employee acting in the “scope of employment”?
Policy: Employees are often judgment-proof; vicarious liability allows “fair recovery” for plaintiff. If both
plaintiff and employer are without fault, it is fair for the employer to bear the cost.
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Employer is usually in the best position for this (deeper pockets, can spread the losses through
insurance/higher prices, etc), has received benefits from employees actions, and this acts as a
deterrent for employers to minimize risk (safe practices)
General Test: 1) Does the requisite “special relationship” exit? (Sagaz)
2) If so, was the tort committed “in the course of employment”? (Danicek, Bazley v Curry)
Salmond Test: An employee’s wrongful conduct falls within the course of employment if it consists of (1)
acts authorized by employer, or (2) unauthorized acts so connected with authorized acts that they may
be regarded as improper modes of authorized acts (Bazley)
Ontario v Sagaz Industries (SCC, 2001): Is Sagaz responsible for the tortious conduct (bribery scheme) of
its consultant? Is the special relationship between employer and independent contractor sufficient?
 Court looks to various tests to establish vicarious liability re: independent contractors:
o Control test: Did the employer control the activities of the worker? (problems: not
always realistic – as an employer hires professionals, hard to maintain control over what
they actually do)
o Entreprise test: Who had the tools? Was he in business for himself? Did he hire his own
helpers, provide his own equipment, take on his own financial risk, etc?
o Organization test: was worker integrated into employer’s workplace? (A contractor’s
work may be done for the business, but is not integrated/is only accessory to it)
o Held: there is NO conclusive test to distinguish employee from independent contractor
o Court asks: “Is the person engaging to perform the services performing them as a
person in business on his own account?” (Various factors to be given weight, depending
on circumstances – tools, level of financial risk, hire his own helpers, opportunity for
benefit, and degree of control the employer had over these activities)
 Held: AIM was an independent contractor – no vicarious liability (AIM as a separate legal entity,
paid its own costs, AIM controlled how it conducted the business being done for Sagaz, etc)
Danicek v AHBL (2011, BSCS): Was there a sufficient connection between Danicek’s dance-floor mishap
and her employment to trigger liability insurance coverage under a policy covering AHBL’s employees?
Did the accident happen out of and in the course of employment?
 Various definitions of “scope of employment”  depends on the facts of each case – generally,
if it furthers or promotes master’s business (usually not if employee is off-duty, or if conduct has
no relationship to employer’s business)
 Held: Poole’s actions were not in the scope of his employment (event had “tenuous” connection
with employment, attendance not required, firm did not sponsor it, AHBL did not gain any
benefit from it), and Danicek’s injury did not arise in the course of her employment
McDorman’s example: a bouncer removes a drunk patron and, in the process, uses force that injures
him. A tort has been committed – bouncer, bar would be sued. Bar would argue force was never
authorized. Police considerations: Bar is innocent party but better able to bear cost through insurance,
higher prices, etc. As an enterprise, they’ve introduced the risk and might fairly be liable for a tort.
 Balance: employers aren’t ultimate insurers for employees, but in some circumstances it may be
fair for them to bear the cost of liability.
Bazley v Curry (SCC, 1999): Employee of non-profit Children’s Foundation sexually abused kids. Was this
in the “scope of employment”, making the organization vicariously liable?
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Main issue: 2nd branch of Salmond test – sexual assault is NEVER authorized – but can the abuse
be an improper mode of an authorized act (i.e. putting a child to bed)?
 Policy: Foundation was entirely innocent, not at all negligent, and yet an incredibly innocent and
vulnerable person suffered damage. So where does the burden lie? Foundation non-profit, but if
not liable then children have no recourse.
 Foundation’s arguments:
1) This was an independent act, not an improper mode of an authorized act
2) Non-profit organization should be exempt from liability (usually under-insured, underfunded; vicarious liability works better in a commercial setting)
a. Simply unfair for them to be liable (court rejects this; innocent child deserves
recovery, plus there is a strong deterrence factor here)
b. Not a traditional employer/employee relationship – most people volunteers,
therefore less control (court rejects this flatly)
c. The “chilling” effect –if held liable, will this make non-profits less able to do their
good work? (court rejects; deterrence effect is beneficial, plus harm on the child
outweighs harm on the non-profit institution)
 There is no special rule for non-profit organizations
 How to differentiate b/w improper mode of an authorized act and an entirely independent act?
Court looks to policy and precedent.
 Precedent:
1) Furtherance of employer’s aims (intentional torts like assault/theft don’t work here)
2) Situation of friction (vicarious liability can cover an intentional tort like a provoked
bartender’s assault on an obnoxious customer); foreseeable risk because of the
nature of the business
3) Dishonest employee (triggers fairness/policy questions)
 Enterprise risk: The employer’s enterprise creates a risk that produced a tortious act; since the
employer placed that risk in the community, they may justly be held vicariously liable for a tort.
 Policy: Balance giving an innocent victim recourse w/ not foisting undue burdens on employers
o Main policy considerations of vicarious liability: compensation, deterrence, loss
internalization, just/practical remedy for harm, and deterrence for future harm
o Vicarious liability as a response to policy: “It must be just to pin liability on an employer
that is without fault” (theft of jewelry = vicarious liability, but not sex assault on child?)
 Caution: Avoid “but-for” test  would lead to employers being liable for everything. The
enterprise must not only provide an opportunity for a risk, but must materially enhance the risk
 Test:
1) Openly confront whether liability should lie with employer (don’t get lost in semantics)
2) Is there a sufficient connection between the creation of risk and the tort itself
3) In determining whether there was sufficiently a material enhancement of risks, courts may
consider numerous factors (opportunity to abuse power, any furtherance of employer’s
aims, any friction, confrontation or intimacy in employer’s enterprise, vulnerability of
potential victims, and extent of power conferred on employee in relation to victim)
 Held: The Foundation is vicariously liable for the sexual misconduct of Curry.
o In this case, there was a strong material enhancement of risk (bathing child, putting to
bed, alone for long periods of time); intimate relationship as part of the job which led to
clear enhancement of risk
o Between two faultless parties, the Foundation should bear the cost, since they created
and managed the risk
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Hospitals and Doctors: Hospitals may be vicariously liable for the tortious conduct of staff (incl. doctors,
residents & nurses) but not for those with “hospital privileges” (b/c they are not strictly “employed” by
hospital)
 Yepremenian (Ont. CA): Leading case re: vicarious liability for torts of doctors with “hospital
privileges”  recognized independence of medical profession, free from control/direction of
hospital board, therefore no vicarious liability here
 Might be moving away from this (potentially a “special relationship” to ensure care is taken, i.e.
hospitals as vicariously liable where it permits an independent contractor – in this case, doctor
with “hospital privileges” – to take care of person or property)
Parental Liability: At common law, parents are not vicariously liable for the torts of their children.
 BC Parental Liability Act: Parents may be liable for intentional property damage or loss caused
by child up to $10,000 – but this statute does not impose vicarious liability
 Defence: parents are presumed responsible unless they can prove they were exercising
reasonable supervision over child or made reasonable efforts to prevent behaviour
Joint and Several Liability: Negligence Act in BC says if more than one wrongdoer (acting jointly or
independently), they are jointly and severally liable, i.e. each is responsible for fully compensating the
plaintiff (plaintiff can thus go after whichever defendant is able to pay). Degree of fault is irrelevant.
They can then sort out payment amongst themselves depending on the court’s determination of degree
of fault.
 Joint = together, several = separate
 Historically, you had to sue each joint tortfeasor separately; now, legislation works to benefit
the plaintiff to allow to sue all joint tortfeasors in a single action. You go after whomever is
solvent and leave it to them to work out liability amongst themselves (e.g. employer is 60%
liable, employee is 40% - you go after employer for 100% and the employer can later go after
employee for the remainder)
 BUT, if contributory negligence, this does not apply
Contributory Negligence: Negligence Act says joint and several liability does NOT apply if there has been
any contributory negligence on the part of the victim. Degree of fault then matters; court will factor it
into the damages.
 Historically, contributory negligence was a full defence for the defendant, i.e. you could not sue
if you had any contributory negligence
Actionable Harm: Protecting Property Interests
Protecting of property interests: Private nuisance, public nuisance, and trespass to property
Private Nuisance
Definition: An act indirectly causing physical injury to land or substantially interfering with the use or
enjoyment of land or of an interest in land where, in light of all the surrounding circumstances, this
injury or interference is held to be unreasonable.
 No fault on the doer (not doing anything wrong, negligent or illegal) – a kind of strict liability
 What matters in private nuisance is the effect of the conduct, not nature of the conduct itself
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Smith v Inco (ONCA, 2011): Inco appeals finding of strict liability in private nuisance for nickel particles
placed in soil on properties of class action members.
 Private nuisance: indirect interference by something (sound, smell, dust – here, nickel oxide
from air landed on property
o Can be either a) material physical damage to land (must be material, i.e. significant), or
b) substantial interference with use/enjoyment of land (amenity nuisance). Here, claim
was under (a) only  that nickel particles caused physical injury to property, by
becoming part of the soil and adversely effecting the property values due to public
concerns over potential health consequences
a) Physical damage to property: not measured against other factors (the
physical damage itself is enough)
b) Amenity damage: reasonableness balanced against competing factors
(incl. the nature of the interference & the character of the locale)
- If you live in town, you expect some reasonable interference with the
use of your own property
 Trial judge: Nickel particles caused physical damage to land, and this was material b/c it
negatively affected the values of the property (therefore, finds causation between public
concern over health risks and private nuisance)
o Issues with this finding:
 Material physical damage only occurred over 15 years AFTER refinery stopped
producing, when public concerns emerged
 Actual effects of nickel held to be irrelevant (even if it posed no health risks nor
interfered with the use of properties); still constituted a nuisance if public
concern about the potential harm adversely affected market value of properties
 NB: No allegation that Inco acted illegally/negligently, no adverse health effects are alleged, and
class action was brought 16 years after refinery stopped producing
 Policy: A person’s lawful use of their property may indirectly affect someone else’s property.
Sometimes we must be expected to tolerate this – therefore, the law of nuisance looks to
whether the harm caused or the interference done is unreasonable
o Negligence looks at the defendant’s conduct; nuisance looks at the effects of the
defendant’s conduct (even if that conduct itself was perfectly legal/reasonable, it may
result in an unreasonable interference with the plaintiff’s property rights)
o Private nuisance driven by public concern would open doors too wide – companies can’t
be held liable for what is beyond reasonable – plus, the public concern stemmed from
claimant’s counsel making allegations of carcinogens, later abandoned
 Analysis: 3 kinds of physical damage that satisfies “material injury to property”:
a) Material (i.e. more than trivial)
b) Actual (has occurred; not merely potential damage that may or may not occur in future)
c) Readily ascertainable (damage that can be observed/measured – not so minimal as to be
unnoticeable – however, need not be visible to the naked eye)
o Inco argues that physical change in land is not the same as physical damage to land;
further argues that private nuisance can’t be based on what public opinion thought
nickel was doing to the soil 15 years after the fact, rather than what the nickel actually
DID to the soil
 Held: Mere chemical alteration in content of soil does not constitute physical harm or damage
to property – this chemical alteration must be shown to have a detrimental effect on the land
itself or with use of land (plaintiffs failed to show any actual harms or risks to health)
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o
o
o
o
o
Trial judge extends the tort of private nuisance too far – claims based on concern only,
rather than substantial, actual injury caused to another’s land
Not enough for public concern about potential risks affecting property values to
establish an actionable nuisance
Unreasonable for Inco to be responsible for unfounded public concern based on “junk
science”
Anomaly: nuisance exists to STOP the party causing nuisance from doing so. Here,
nuisance only exists 15 years after refinery stopped operating – there would have been
no basis for an injunction when Inco actually was operating, since according to trial
judge the nuisance hadn’t yet happened (based on public concern later) – this is
inconsistent with the essential nature of nuisance
Conclusion: Claimants failed to show the nickel caused actual, substantial, physical harm
to properties – therefore the nuisance claim fails.
Antrim v The Queen (SCC, 2013): Deals with reasonableness aspect of private nuisance (not raised in
Smith v Inco). Main issue: when is interference w/ private use and enjoyment of land unreasonable, if it
serves an important public purpose? (Here, highway construction restricted access to plaintiff’s land).
 Plaintiff had to establish private nuisance to receive compensation under the Expropriations Act
 Private nuisance: Interference with claimant’s use or enjoyment of land that is both substantial
(i.e. significant, serious, non-trivial) and unreasonable
o Actionable claims come from “inconveniences that materially interfere with ordinary
comfort according to those of plain and sober taste” (not any trifling annoyance)
 Reasonableness: Balance gravity of harm against utility of defendant’s conduct
o Factors in gravity of harm (inter alia): severity of interference, character of
neighborhood, sensitivity of plaintiff, frequency/duration of interference
o Utility of conduct: whether the interference suffered is unreasonable, not whether the
nature of the defendant’s conduct is unreasonable. Burden is on the plaintiff to show
the interference is substantial and unreasonable, not to show the defendant’s conduct
(i.e. use of its own land) is unreasonable
 Although, if defendant’s conduct is malicious or careless, this may be considered
 Public good does not always trump private nuisance, otherwise public good
would always win out
 Policy consideration: unfair for one person to unfairly take on burden of
beneficial service conducted for the public good. Even if it is a v. important
public project, compensation may still be owed to the claimant
 Therefore, severity of harm and utility of public work are NOT equally weighted
considerations (otherwise, high degree of public utility will always trump even
extensive interference)
 Must weigh all interests carefully in all circumstances (Toronto subway case –
no recovery b/c it was noisy commercial area, no negative effect on profitability
of business, no material damage to building, etc)
o Test for reasonableness: “Whether it is reasonable for the individual to bear the
interference w/out compensation, not on whether it was reasonable for the statutory
authority to undertake the work” (Schenck, salt damage to orchards)
 Balance between the “give and take” expected of everyone versus interferences
that impose a “disproportionate burden” on one person
o Reasonableness analysis is necessary, even if interference is physical or material
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
Held: Board did not err in concluding that the interference was serious and would constitute
private nuisance. Appeal allowed.
Rule in Rylands v Fletcher: Imposes strict liability for damages caused to plaintiff’s property by the
escape, from the defendant’s property, of a substance “likely to cause mischief”.
 Narrow view: “non-natural use” of property is a precondition. Four prerequisites:
1. The defendant made a “non-natural use” of land;
2. The defendant brought something onto land likely to do mischief if it escaped;
3. The substance did escape
4. Damage caused to plaintiff’s property as a result.
 Broad view: Strict liability for any damage from escape of a substance on Df’s land
 Trial judge (Smith v Inco): Applied RvF, said nickel refining was a non-natural use of land &
escaped onto claimants’ properties
o Also turned to strict liability for “ultra hazardous activities” (per Linden and Feldthusen),
not dependent on non-natural use, escape and mischief – conduct that is not inherently
wrong, but is so dangerous or unusual that strict liability is imposed on the party who
created the risk resulting in the harm
o SCC rejects the “extra hazardous” strict liability theory as a broad departure from
traditional RvF rule (and even if they did accept this, there is nothing to show Inco was
involved in a “extra hazardous” activity). Two competing views discussed below:
 RvF is aimed at accidental/unintended consequences of engaging in an activity
(floods, gas leaks, chemical spills, etc) – escape of something “unintended”
 “Extra hazardous” strict liability theory imposes strict liability for all damages
(even if intended and not accidental)
 Policy: Courts cannot dramatically change the common law and impose strict
liability in this way – this should be left to the legislature (then it is clearly
outlined in statute, parties know where they stand, etc)
o Therefore, the court does NOT abandon the rule in RvF
 Majority (Smith v Inco): Was the operation of the refinery a non-natural use of property?
o “The touchstone for the application of the rule in RvF is to be damage occurring from a
user inappropriate to the place where it is maintained”, i.e. pig in the parlour
o Court must look to time, place and manner of use, not just origin of substance (i.e. is it
naturally occurring) and to the balance between what we must all tolerate versus the
burdens associated with accidental/unintended consequences of use
o Onus on the claimant to show non-natural use of property
o Held: NOT a non-natural use (heavily industrialized part of city in an ordinary/usual
manner that did not create risks beyond normal ones in any industrial operation)
o No reason to require foreseeability of the escape (would merge RvF with negligence)
o Escape need not be restricted to a single isolated escape (can be repeated/cumulative)
o Also, the act here was intentional (carried out in a reasonable manner and in
accordance with regulations) – so doubt whether RvF even properly applies
Trespass to Property
Definition: Any direct/physical intrusion onto a plaintiff’s land (need not be intentional, but must be
voluntary). Trespass is actionable without proof of damage. Physical entry/contact is required, but this
can involve placing an object or discharging a substance onto a plaintiff’s land.
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Trespass versus nuisance: Trespass is a direct intrusion; nuisance may be an indirect intrusion
 Trespass would be directly placing material objects on another’s land
 Nuisance would be doing an act which results in the entry of such objects onto another’s land
 Throwing stones on a neighbor’s yard = TRESPASS. Allowing stones from ruinous chimney to fall
onto another’s yard = NUISANCE.
 In Smith v Inco, the intrusion was indirect, not direct, therefore no claim in trespass
Protecting Physical Security and Integrity – Assault & Battery
Assault & Battery (Trespass to the Person)
Intentional torts: Battery, assault, and false imprisonment
The purpose of trespass actions (battery & assault) is to protect a person’s physical and mental security
and integrity from unwarranted interferences (i.e. direct invasion of a person’s personal autonomy,
security, psychic, and liberty interest).
Battery: Protects physical integrity (touching of the body, direct physical interference)
Assault: Protects sense of security (the apprehension of contact)
 Emphasis on direct interferences (primarily intentional, though can relate to negligent conduct)
 Torts are actionable without proof of harm (the interference itself is considered wrongful)
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
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Intentional torts (battery/assault) versus negligence, which is about faults
Intentional torts – no need for damage, must simply prove the tort occurred, and then it is up to
the defendant to raise a defence
In negligence law, different burden of proof – the onus is on the plaintiff to show the defendant
was negligent (i.e. to prove fault). In an intentional tort, no need for the plaintiff to show fault in
the same way.
Non-Marine Underwriters v Scalera (SCC, 2000): Issue is whether Lloyd’s insurance policy will cover
Scalera (clause excluding damage caused by intentional acts).
 Argument to change battery fault-based (more like negligence) – that the plaintiff must prove
not only battery but also an intent to harm (i.e. fault)
 Held: Court rejects shifting the burden of proof. Battery should remain a rights-based as
opposed to fault-based tort. Plaintiff need not prove lack of consent; defence must raise
consent and has the burden of proof. Making battery fault-based would be subordinating
plaintiff’s right to physical integrity to defendant’s freedom to act.
o Compensation flows from violation of the right to autonomy, not fault
 Reasons: McLachlin gives three reasons for this:
1) Negligence can be messy (complicated chain of events), so fault-based makes sense. Here, it
is direct interference, i.e. simple/direct connection between plaintiff and defendant. If
plaintiff proves interference, it makes sense to require defendant to raise a defence.
2) Makes practical sense (defendant in best position to say what happened) – “smoke out” the
evidence, give defendant the incentive to explain.
3) Protect high “demoralization costs” – physical integrity is very important, victims feel
resentment/insecurity if not compensated. Extra burden shouldn’t be on plaintiff.
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 Shifting onus on plaintiff would be unreasonable. It is easier to prove a positive (that there was
consent, proved by defendant) than a negative (no consent, proved by plaintiff).
 However, not every physical contact constitutes a batter. Requires contact “plus” something
else, not just non-trivial contact.
Protecting Physical Security and Integrity – Defences
Defences
Defences can be complete, or partial. Consent is a full defence to battery. Other examples: self-defence,
defence of a third person, defence of property – all full defences.
Consent: a plaintiff’s consent negates the tortious nature of the conduct (battery) and renders the
defendant w/out civil liability. The law presumes there is no consent – onus on defendant to show this.
 Consent can be express, or implied (grey area)
 Consent must be free, full and informed (esp. in medical situations)
 You can withdraw consent at any point
 Consent forms not determinative (only evidence, if you sign) – was consent real & freely made?
 Big issue: extended procedures, i.e. patient consents to surgery X, but during surgery something
comes up and doctor must do Y, which patient hasn’t consented to – doctor’s argument is
usually implied consent due to emergency situation
Guest Speaker: Informed consent as a myth – can we ever be fully informed? Or do we just work with a
reasonable standard of being informed? The legal fiction of “reasonableness” (i.e. what would a
reasonable person do). How detailed should disclosure be? What constitutes a material risk?
 Multicultural dynamics; different expectations, language abilities – issues in comprehension
 Easy access to medical information has changed the power dynamic between physicians and
patients. Good that patients are more empowered, but can be v. challenging for physicians
 Patient-physician (dyadic) encounters becoming triadic (patient, physician, family/close other)
 Family as a source of information for doctor – should doctor be obliged to ask patient if they
want a family member present for informed consent situations? (Currently discretionary)
 Consent as a transactional dialogue
Consent to Medical Treatment (Adults)
Malette v Shulman (ONCA, 1990): Is doctor liable for administering life-saving blood transfusions to
Jehovah’s Witness, who had a card stating rejection of blood transfusions under any circumstances?
Trial judge found Shulman guilty of battery – damages of $20,000. Shulman appealed to ONCA.
 NB: NO negligence on Shulman’s part – he met standard of care & likely saved her life. Liability
imposed b/c he tortiously violated Malette’s rights over her own body, not due to negligence
 Analysis: Any intentional, non-consensual touching is actionable as battery. No special
exceptions for medical care (other than emergency situations)
o Doctrine of informed consent: No medical procedure can happen w/out patient’s
consent, informed of risks, benefits and other options
o Right of self determination: Patient has a right to refuse treatment, even if doctor
disagrees and it results in risks as serious as death. Patient has final say.
o Exception: Implied consent in emergency situations (by reason of necessity)
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
If Malette had consciously said no, Shulman couldn’t have proceeded. What then is the effect of
the card?
 Defendant’s arguments:
1) Card didn’t properly constitute “informed refusal” – reason to doubt its validity
o Court rejects (instructions were clear, plain, constituted a valid restriction)
2) In the absence of informed refusal, Malette’s rights must give way to social/state interest in
a) preserving life and b) safeguarding the integrity of the medical profession
o Court rejects (state’s interests must give way to a patient’s interest in directing the
course of her life. Not an easy decision for doctor, but he is bound by law to respect her
choice, even if it seems contrary to his judgment. If not, this would render the right of
self-determination and the doctrine of informed consent meaningless)
 Therefore, under common law, the individual has a very wide scope of rights to autonomy. This
includes the right to refusal, which doesn’t necessarily need to be informed (informed consent
versus informed refusal – court rejects defendant’s argument here)
 Held: Shulman guilty of battery. Appeal dismissed.
 Judge is CAREFUL to isolate his decision to this fact pattern only (doesn’t apply to innocent third
parties, preventing suicide, etc)
Reibl v Hughes (SCC, 1980): Pl. underwent surgery, had massive stroke (paralyzed/impotent). Had
consented to surgery but argued it was not “informed consent”. Alleges battery and negligence.
 Issue: Does a lack of proper information vitiate consent and lead to battery, or does it go to
negligence? Is lack of informed consent alone a basis for imposing liability in battery?
 Duty to disclose: Doctor has duty to disclose the nature, gravity, material and special/unusual
risks of the operation. Comes from “special relationship” between patient and doctor.
 Trial judge: Doctor failed to properly inform purpose of operation and gravity, nature and extent
of risks (if properly informed, plaintiff would have refused) – doctor breached his duty
(negligence), thus plaintiff consented to an operation without being properly informed, and for
this reason the doctor is liable not just in negligence but also in battery
 Held: Doctor is NOT liable in battery. Lack of informed consent goes to negligence, not battery.
Consent itself is not vitiated simply due to a failure to disclose specific risks.
 Reasons: Confusion around the term “informed consent” (confuses battery with negligence). As
long as the surgery was basically what the plaintiff consented to, there is no claim in battery. But
if failure to disclose relevant information led to damage on the plaintiff, then maybe negligence.
o Battery is an intentional tort, consisting of unprivileged/unconsented to invasion of
one’s bodily security. Cannot take liability in battery too far – if there has been consent
to the very surgery as it happened (regardless of whether the actual risks were properly
disclosed) then there is no claim in battery
o Consent is not vitiated simply due to failure to disclose material risks – even if there is a
serious failure, this goes to negligence, not battery
o Policy: Battery is easier for a plaintiff to argue than negligence (no proof of causation,
burden on the defendant to prove there was consent). Negligence is harder to prove –
plaintiff must show on a balance of probabilities that doctor was negligent/at fault.
Doctors are happy with this result because it restricts their liability in battery.
 Ratio: Actions of battery re: surgery/medical treatment should be confined to cases where there
is no consent to the surgery, or where the surgery goes beyond that to which consent was given
 NB: No question that the procedure itself was properly performed. The negligence comes from
him failing his duty to properly disclose risk.
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Legislation
Health Care (Consent) and Care Facility (Admission) Act:
 s. 4, Consent Rights: the right to give, refuse or revoke consent, on any grounds (incl.
moral/religious), even if refusal will result in death
 s. 5, General Rule: Consent always required for any health care (w/ some exceptions)
 s. 6, Elements of Consent: Given voluntarily (not by fraud/misrepresentation), with information
about the nature, risks, benefits, and other options re: proposed health care
 s. 9, Scope of Consent: Can be oral/in writing/inferred from conduct (!)
 s. 11, Exception – Substitute Decision Maker: May provide health care without consent if person
is incapable, and there is a substitute decision maker, guardian or representative who has
authority to consent and is capable of giving consent
o Listed in s. 16 (spouse, child, parent, sibling, grandparent, etc) – must be at least 19,
have been in touch in last 12 months, have no dispute, and be capable of giving consent)
 s. 12, Exception – Emergency: Provides for health care w/out consent in emergency situations
 s. 19, Advance Directive: Adult may make advance directive unless “incapable of understanding
the nature/consequences of the proposed advance directive”
o s. 19.8: Such directives do not apply if health care provider believes the instructions
don’t address the health care decision to be made, instructions are too unclear, person’s
wishes/values/beliefs have changed since directive was made, etc
 s. 33, Protection from Liability: No action may be brought against a person in exercise of
power/performance of duty under this Act if they acted in good faith/used reasonable care.
Health Care Consent Regulation:
 s. 4 lists “major health care” as radiation therapy, intravenous chemotherapy, kidney dialysis,
electroconvulsive therapy, and laser surgery.
 S. 5 limits what substitute decision makers can consent to. CANNOT consent to abortion,
electroconvulsive therapy, psychosurgery, remove tissue for research, experimental health care
Consent to Medical Treatment (Children)
Generally, a parent/guardian has to provide consent for the treatment of minor cases. However, the law
recognizes some cases where children can make their own health care decisions.
Legislation
Infant Act:
 s.2: An infant may consent to health care and it is not necessary to obtain consent from the
infant’s parent or guardian – an act that would “otherwise constitute a trespass to the infant’s
person”
 s. 3: Infant’s consent is only valid if a) infant understands nature, consequences and foreseeable
benefits/risks of treatment, and b) health care provider is satisfied that the health care is in the
infant’s best interests
Child, Family and Community Service Act:
 s. 29, Child who needs Necessary Health Care: If child or parent refuses to give consent to health
care that, in the opinion of 2 medical practitioners, is necessary to preserve the child’s live or
prevent serious/permanent impairment of health, a director may apply for a court order. The
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court, if satisfied, may make an order authorizing the health care, prohibiting anyone from
obstructing the health care, and requiring parent/guardian to bring child in for the health care
 Infants Act deals with who can give consent; CFCSA deals with refusal of consent (allows court to
override refusal of consent).
 Infants Act statutizes the common law mature minor rule, where a minor patient may have the
maturity/capacity to consent to as well as refuse medical treatment. No set age for this – simply
an issue of capacity (must have sufficient intelligence/understanding to consent or refuse)
SJB v BC (Director of Child, Family and Community Service): 14 year old child, Jehovah’s Witness,
refuses blood transfusions. Doctor tried to avoid transfusions, knowing her preferences, but it they were
ultimately necessary. PCJ made order for transfusions pursuant to CFCSA as necessary to preserve the
life of the child/prevent serious or permanent impairment of health.
 Plaintiff argued that legislation (CFCSA) should NOT override the common law mature minor
rule; she had given an “informed refusal” and court should not be able to override this
o Argued the Director’s power is limited to that of parental authority – i.e. Director can
only “step into the shoes” of the parent and act as guardian (narrow view of parens
patriae jurisdiction) – exercise of this jurisdiction is not unlimited & does not displace
mature minor rule
 Held: Legislation trumps the common law rights of a mature minor (legislation itself doesn’t say
it supercedes common law – courts decided this).
o Broader view of the legislative power to protect a child – this power is NOT constrained
by the common law limits placed on the parens patriae powers of a court
Consent to Contact in Sport
Colby v Schmidt (BCSC, 1986): Experienced rugby players – Schmidt hit Colby with an elbow to the fact
(dispute over when hit occurred – was it late or not?). Colby suffers serious injuries, alleges battery, sues
for special and punitive damages.
 Defendant: Argues injuries took place in normal course of play; Colby assumed and consented to
risks inherent in the game of rugby.
 Held: Credibility issue over conflicting evidence – judge found plaintiff’s evidence more credible,
that hit was late and not accidental (Marsden: impartial, uninterrupted view, was there to
supervise referees)
o As a condition of playing, players assume a risk of injury in sports like hockey and rugby
and waive usual claims for trespass to the person. But this does not create immunity
from liability – conduct is usually instinctive/unpremeditated, not intentional – anything
showing “definite resolve to cause serious injury” does not fall within the scope of
implied consent
o Colby did NOT consent to defendant’s actions – there must be a “realistic limit” to the
risks assumed in playing a sport like rugby. Therefore, liability in battery.
 Damages: Damages for pain, suffering and loss of enjoyment of life, plus restorative surgical
procedures
o Punitive damages: “The purpose of punitive, or exemplary, damages is to punish the
defendant for behaviour which may be compendiously described as ‘inexcusable’ or
‘reprehensible’ and to deter others from acting in the same manner.” Not a proper case
for punitive damages.
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Consent to Sexual Contact
Trespass torts: Plaintiff only has to lead evidence re: trespass, and onus is on the defendant to prove
they acted without intent/negligence – unique burden of proof in Canada (reaffirmed in Scalera)
Offensive sexual conduct: Often against most vulnerable members of society, usually a systemic
problem, often involves breach of trust (family members/professionals), often in institutional settings
Civil actions to redress sexual wrongdoings:
 Advantages for survivor/plaintiff:
o Greater involvement (can control decision to sue, unlike in criminal prosecution)
o Less demanding burden of proof (balance of probabilities vs. beyond reasonable doubt)
o Access to compensation for harm suffered (damage awards)
o Possible therapeutic effects of bringing a claim (empowering, psychological functions). If
found guilty, perpetrator is responsible to THEM, not the state. Judicial recognition of
harm done, which can be healing. Clarifies what we as a society consider acceptable.
 Disadvantages for survivor/plaintiff:
o Very costly and time-consuming
o Plaintiff can feel “re-victimized”
o Adversarial process – harrowing, victim’s conduct is examined and attacked
o Often proceedings are undefended (no therapeutic effect of facing perpetrator in court)
o Compensation may be illusory (judgment-proof defendants) unless other parties can be
brought in (e.g. vicarious liability)
Limitation dates: Period after which a court proceeding must not be brought with respect to the claim.
 If a plaintiff is out of time, this is a complete defence
 BC: tort claim is usually 2 years after the claim is “discovered”, i.e. discovery of the link between
the actions and the harm suffered (not necessarily the incident itself)
 As a minor, if action is against parent, limitation date was historically 2 years from 19th birthday
 Why do we have limitation dates?
o Certainty (must come a point where defendant knows they will no longer be held to
account for ancient obligations)
o Evidentiary (can’t bring a claim on stale evidence – witnesses die, memories face –
defendants shouldn’t have to worry about preserving evidence that long)
o Diligence (encourage plaintiffs to get into court, not just sit on their rights)
 In BC, there is NO limitation date for claims of a sexual nature – M(K) v M(H)
Norberg v Wynrib (SCC, 1992): Norberg addicted to Fioniral, a painkiller drug. Began seeing Dr. Wynrib,
who discovered she was addicted and began giving the drug in exchange for sexual encounters.
 Issue: Can the defence of consent be raised against the intentional battery of tort here?
 BSCS: Dismissed claims (implied consent, therefore no sexual assault, and though there was
breach of fiduciary duty, ex turpi causa = no damages – her injury resulted from her own
illegal/immoral acts)
o Consent is not genuine if given a) under threat/force or b) under influence of drugs, but
she voluntarily submitted to sexual encounters, thus impliedly consented
 BCCA: Agreed with trial judge and dismissed claims.
 SCC: 3 decisions which all reverse findings. Majority: actions constituted the trespass of battery.
Minority (Sopinka): breach of K. Minority (McLachlin): breach of fiduciary duty.
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


Leaf (Intervener): Intervened to bring equality perspective, wanted plaintiff’s vulnerability to be
taken into account; argued that lower courts took an unduly broad definition of consent
(ignored difference between genuine consent and coerced submission, thereby ignoring
inequalities of sex, disability, and the doctor-patient relationship).
o The standard of consent in sexual assault torts should recognize inequalities of power
Majority (La Forest): Consent, express or implied, is a defence to battery, but must be
“genuine”. Expands narrow view of consent taken by lower courts – freedom to choose must
take into account the power relationship between the parties – this may vitiate consent
o Contract law: Recognizes “inequality of bargaining power” between parties. Someone
may be intellectually weaker, situationally weaker, or “weakness” due to a special
relationship of trust/confidence – if power imbalance shows one party was not in a
position to choose freely, then consent may be vitiated. Two step test:
1) Was there inequality in the positions of the parties?
 Yes – marked inequality between parties. Professional physician, powerful
position vs. young, vulnerable, relatively uneducated woman (addiction
diminished her ability to make a real choice)
2) Was there proof of exploitation?
 Yes – he knew she had an addiction, knew she could not “just quit”, abused his
power/exploited her addiction for his own interests.
 Exploitation: his conduct diverged from community standards of morality
o She was frightened of painful withdrawal, only engaged in sexual activity due to her
drug addiction; not only doctor-patient relationship, but doctor-drug addict relationship
o Some arguments that ANY sexual conduct in doctor-patient relationship is exploitative
(Task Force on Sexual Abuse of Patients, Hippocratic Oath)
o Her consent was NOT genuine. Her addiction, coupled with physician’s conduct, leads to
conclusion (para 48): “The unequal power between the parties and the exploitative
relationship removed the possibility of the appellant’s providing meaningful consent to
sexual contact.”
o Rejects ex turpi causa  no causal connection between her “double doctoring” and the
harm she suffered as a result of Wynrib’s actions.
o Rejects defendant’s arguments that this means no addict can give consent. Being an
addict doesn’t negate responsibility; but equity will still protect those who cannot
protect themselves, esp. protecting an addict from abuse by someone in power
o Damages: Aggravated damages if battery was in humiliating/undignified circumstances
(assessed with general damages, not in addition to). Punitive damages if conduct
deserves punishment due to harsh, vindictive, reprehensible or malicious nature.
 Punitive damages are to punish; aggravated damages are to compensate
 Awards general damages (which incl. aggravated damages) of $20,000 and
punitive damages of $10,000, with costs throughout
Minority (McLachlin): Looks to breach of fiduciary duty (equity), rather than tort/contract
o Tort/contract assume parties to be independent equal actors, concerned w/ self
interest. Fiduciary duty recognizes an inherent power imbalance and is concerned with
trust, not self-interest – therefore is the only way to capture the essential wrong here
 If the parties are on equal footing, it is appropriate to apply tort/contract law. If
not - if there is a material discrepancy between the power of one person and
the vulnerability of the other - then it is a breach of fiduciary relationship
o Frame v. Smith test for a fiduciary relationship:
1) The fiduciary has the scope for exercise of some discretion/power;
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o
o
o
o
o
2) The fiduciary can unilaterally exercise that discretion/power to affect the
beneficiary’s legal or practical interests; and
3) The beneficiary is peculiarly vulnerable/at the mercy of the fiduciary.
Applied to this case:
1) Clear discretion/power at the hands of Dr. Wynrib
 The wrong is not that the fiduciary has power (this is inherent in a fiduciary
relationship); the wrong is that the fiduciary abuses the power entrusted to him
2) Fiduciary can exercise power to affect beneficiary’s legal/practical interests
 Not just legal rights, but vital non-legal or ‘practical ‘interests (universal duty of
doctors to not exploit patients – this is a vital societal/personal interest which
should be protected just as much as legal/economic rights)
3) Vulnerability of patients generally, and women in particular, physical and emotional
(looks to Task Force on Sexual Abuse of Patients) – cannot ignore gender dynamics
Consent: there was consent, but that doesn’t matter in a fiduciary relationship – the
issue is how the fiduciary acted, not the beneficiary’s conduct
Locates the problem in the structure of the relationship, and places the onus on the
fiduciary to behave in a proper way and avoid conduct that would harm beneficiary
Criticism of La Forest’s approach – used “unconscionability doctrine” to vitiate consent,
but this is usually restricted to unconscionable K’s, not negating defences to tort actions
She addresses 3 main objections to the use of breach of fiduciary duty:
1) Norberg’s conduct prevents the application of breach of fiduciary duty (“he who
comes into equity must come with clean hands, and ex turpi causa”)
 Soundly rejects this  Norberg was a sick person, not a sinner
 Dangers against victim blaming – huge power imbalance = DOESN’T MATTER
what she did, how seductively she may have dressed or compliant she may have
appeared – abuse is abuse.
 Para 91: The essence of trust/fiduciary relationships is the trustee assumes
responsibility for the welfare of the other party - the fiduciary cannot then rely
on the other party's weakness/infirmity as a defence to his failure to discharge
his duty properly
2) Fiduciary duty doesn’t add anything to an action in tort or K, thus there is no point
 Rejects this by arguing broader scope for fiduciary obligation (not just duty to
not disclose confidential information)
 Fiduciary obligation goes not just to narrow legal/economic interests, but to
fundamental human and personal interests
 In light of this, the consequences are huge!
a. Defences which can be applied in a tort action do not apply when raised
against the beneficiary of a fiduciary relationship. This is because the
fiduciary approach is founded on the recognition of the power imbalance
inherent to this relationship, and to give redress where that power
imbalance is abused (para 94)
b. Breach of fiduciary obligation gives a more generous approach to
remedies (equity holds trustees strictly accountable in a way that the tort
of negligence and contract have not)
c. Most significant consequence: tort/contract can provide a remedy for a
doctor's failure to provide adequate treatment, but they don't properly
respond to the question of consensual sexual relations. They are ill-fitting
molds which don't respond to the fundamental wrong being addressed,
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nor do they properly provide damages/remedy. Only by characterizing
this in light of the fiduciary duty can the wrong done to the plaintiff be
fully comprehended in law and adequately compensated in damage
3) Floodgates argument
 Rejects this. If properly applied, inherent restraints on fiduciary obligation
will prevent the floodgates possibility (must not simply establish power
imbalance – must also be potential for interference with vital rights, nature
of trust, transfer of power on assumption that fiduciary will act in
beneficiary’s best interest)
o Conclusion: Breach of fiduciary duty established; damages at equity.
o Damages: Breach of fiduciary duty allows for broader damages than tort and contract
(the latter are narrower and offer more defences, so claims might not be made out)
 Breach of fiduciary duty: broad scope, recognizes the wrong of sexual
exploitation by a fiduciary in light of the special power entrusted to him
 Tort: keeps parties at arms length (doesn't recognize inherent power
imbalance). Also applies defences which may protect the defendant
which are not available in breach of fiduciary duty.
 Breach of contract: limited to failure to provide proper medical
treatment - does not extend to procuring sex via abuse of power
 Goal of equity: to restore plaintiff to the position he/she would have been in
had the breach not occurred. Hard to do here, since her losses are not
economic. Must use a generous, restorative, remedial approach based in equity
when considering damages. Looks to two main factors in doctor's actions which
led to her loss/injury: a) prolongation of her addiction, and b) sexual violation.
a. Prolongation of addiction: She was desperate and her addiction was
prolonged by his actions.
 Awards $20,000 for suffering/loss during this period
b. Sexual abuse: humiliating, haunt her still, long suffering.
 Awards $25,000 for sexual exploitation
c. Punitive damages: the fiduciary's actions were repugnant, and should be
awarded for specific deterrence, general deterrence, and to punish the
wrongdoer. This serves to maintain a high standard of conduct for
fiduciary obligation in this case and to protect beneficiaries
 Awards $25,000 in punitive damages
 Overall award of $70,000
Non-Marine Underwriters v Scalera (SCC, 2000): Issue is whether Scalera’s insurer has a duty to defend
him (exemption clause against intentional torts).
 Scalera’s argument: the sexual contact was intentional but the harm was NOT, therefore Lloyd’s
has a duty to defend. Problem is that the tort is actionable without proof of harm – simply the
physical contact itself must have been intentional. SCC rejects this.
 Division over burden of proof/possibility of creating a new tort
 Iacobucci (minority): Batteries (punching, stabbing) are inherently harmful, therefore lack of
consent is presumed. Sex is not inherently harmful; it is only harmful when it is non-consensual,
therefore onus should be on the plaintiff to prove lack of consent, not the defendant.
o Shifts the burden of proving non-consent from defendant to plaintiff (to prove the direct
harmful physical contact)
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o

This would create a special kind of battery with a special burden of proof (i.e. onus on
the plaintiff to prove that the defendant knew she did not consent)
o This would make lack of consent an element of the tort rather than a defence (UK and
New Zealand have done this)
McLachlin (majority): Rejects the creation of a new intentional tort w/ different burden of proof
o This would deny protection of law that is available in other kinds of battery claims when
it is perhaps needed the most, and inappropriately shift the focus from the defendant’s
behaviour to the plaintiff’s conduct (possibility of victim-blaming)
o Particularly unfair to require plaintiff to prove consent, since defendant has knowledge
and is in best position to give evidence as to what led him to believe he had consent
o Battery is a violation of personal autonomy by the infliction of contact that is outside of
what is ordinarily acceptable (like being jostled on a bus). No need to create a special
rule for sexual battery.
o Creating a special rule would create inconsistencies in the tort of battery (e.g. medical
battery – like sexual contact, the medical intervention need not be inherently harmful or
offensive, beyond its potential to violate bodily integrity)
o Confining battery to conduct that is “harmful or offensive” has two exceptions: implied
consent, and trivial contact acceptable in everyday life. Neither of these exceptions
applies to sexual contact (consent is not implied, and sexual contact is not to be
accepted in everyday life)
o Reaffirms traditional battery rules/burden of proof  plaintiff must prove the physical
contact, and onus then shifts to defendant to prove they had consent
o Plaintiffs often testify regardless that they didn’t give consent – but no compelling
reason to REQUIRE that they do this. This is inconsistent with our understanding of the
interests that these rights-based torts protect (battery is founded on violation of
personal autonomy, therefore ANY contact outside of what is generally acceptable in
everyday life is a violation of autonomy, and a plaintiff need not additionally prove nonconsent)
o Conclusion: keep consent an affirmative defence that must be raised by the defendant
against a claim of sexual battery
o Final note: Court says you cannot have a negligent sexual battery (would open the door
to insurers having to defend). Sexual battery is ALWAYS intentional & can’t be negligent.
Protecting Mental and Emotional Security & Integrity
Intentional Infliction of Mental Suffering
Three main criteria for infliction of mental suffering, as set out in Boucher:
1) Was the action flagrant and outrageous? (Anything outside the norm – not just a practical joke,
or being hard on an employee)
2) Was there intention/an intended consequence to harm the plaintiff? (This is what makes it an
intentional tort and brings it outside the realm of negligence)
3) Was there harm (violation of mental/emotional integrity) with sufficient causation (connection
between action and resulting harm)?  Controls built in to prevent anyone from bringing
forward a tort over trivial matters (response to floodgates concern)
 “Reasonableness requirement” imputed to plaintiff  if plaintiff has specific predisposition to
be affected mentally/emotionally by something and defendant had no way of knowing, then
there is no claim
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
Peculiarity of this tort: usually, plaintiff has simply to prove interference. Here, plaintiff has to
prove much more, and this differentiates it from other intentional torts (need not simply prove
interference, but also the intention of the other party, and harm)
Wilkinson v Downton (UK, 1897): Plaintiff’s husband went to race, defendant told her that he was lying
in the street with both legs broken. Statements were false and she became ill from shock to her nervous
system.
 Defendant wilfully committed an act which caused harm to the plaintiff
 Doctrine: A person who makes a false statement intended to be acted upon must make good
the damage naturally resulting from it being acted on.
 There was clear intention for his statement to have an effect on her. Her reactions were not the
result of previous ill-health/disposition. It is no defence if the harm done was more than the
defendant anticipated – he clearly intended some sort of consequence, and that is sufficient.
 Was the effect too remote from the act itself for it to be a consequence for which the defendant
is answerable? No. Mental shock is not too remote/unnatural a consequence of damages.
 Rejects floodgates argument
Boucher v Wal-Mart Canada (ONCA, 2014): On-going, aggravated abuse and humiliation of Boucher by
Pinnock, her supervisor. At trial, awarded damages for intentional infliction of mental suffering (WalMart held vicariously liable).
 Three elements of the tort of intentional infliction of mental suffering (see above)
 The trial judge did err the jury on the second element (when he said the defendant knew or
ought to have known that the conduct would produce harm) – it is a subjective test, not an
objective one – but the error was inconsequential, did not result in an injustice, and thus
irrelevant. Pinnock clearly intended for his conduct to cause harm, i.e. so much stress that
Boucher would resign.
 Held: Rejects Pinnock’s arguments. Each of the 3 elements of the tort were established.
1. His behaviour was outrageous and flagrant (long period of time, extremely belittling
and humiliating). Beyond the norm – clearly not just a practical joke (Downton) or
being hard on an employee (Boucher)
2. He clearly intended to produce the harm that actually occurred (i.e. Boucher quitting)
3. Boucher suffered a visible and provable illness (weight loss, vomiting blood, sleep loss,
etc)
 Concludes that the jury's finding of liability was reasonable - appellate intervention re: liability
not justified
 However, allowed the appeal on punitive damages (reduced significantly) - the very high
amount initially awarded wasn't necessary to denounce and deter conduct. Upheld the jury’s
award of damages for intentional infliction of mental suffering (against Pinnock) and aggravated
damages (against Wal-Mart).
Protecting Liberty Interests
False Imprisonment
False imprisonment: The last of the intentional (i.e. trespass) torts. Applies to intentional confinement,
not authorized by law. No need for damage (unlike negligence). Needs directness (e.g. if someone digs a
pit and you fall in, is this false imprisonment? Does it meet directness/intention factor? Probably not).
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





Intentional infliction of mental suffering requires proof of damage but false imprisonment does
not
You can be falsely imprisoned without being aware of it – however, the lack of awareness will go
to damages (i.e. they will only be nominal) but the tort itself existed, regardless of your
awareness
So – you don’t have to prove damage, or awareness – you just have to prove unlawful
confinement, and everything else falls to the defendant (like the other intentional torts)
Idea of confinement = you don’t have a reasonable alternative route – confinement, not simply
obstruction
Intention: McDorman says plaintiff would have to show confinement, and some degree of
intention, and the defendant has to show lack of intent, or that it was lawful, which means there
would be no tort
If the defendant can’t show anything, then the plaintiff simply has to show that they were
confined. If the defendant can’t show that it was lawful (this onus is on them) then the case is
made out. So lawfulness and lack of intention are defences.
Lumba v Secretary of the State (UK, 2011): Foreign national prisoners (FNPs) were detained pending
deportation. Published policies had a presumption in favour of releasing FNPs, but unpublished policies
had a presumption in favour of detaining FNPs. Were the claimants wrongfully imprisoned?
 State argued that they never would have been released even if the policies were published, so
there was no false imprisonment
 But Court said, people were imprisoned due to a secret/unpublished policy which was
inconsistent with published govt policy such that the imprisonment itself was illegal – so THAT’s
what matters, not whether they would have been detained either way
 Using secret unlawful policy made the imprisonment unlawful
 The tort is made out: clear confinement, intention, and unlawful. BUT damages were nominal
since there was no actual harm done
 Intention/lawfulness as defences - we get really caught up on who has to prove what, where the
balance is, etc, but remember that much of this is theoretical - on a practical level, once you're
actually in court, you'll be arguing everything you can, proving whatever you can - even if in this
case you only have to show confinement, you'll ALSO be arguing that it was unlawful,
intentional, etc etc. These are technicalities which often don't matter as much in the courtroom
(like in sexual assault, where the burden to prove non-consent is on the defendant, not on the
plaintiff - but on a practical level, the plaintiff will almost always testify as to their lack of
consent, either way, even though the burden/onus is not on them to actually do so)
 Trial judge introduced a causation test (to show that they would have been detained either way,
whether published or unpublished policy applied, and thus detention was lawful). Court rejects
introducing a causation test into the tort of false imprisonment. This is contrary to the matter as
the law of trespass to the person. The law here does not recognize the defence of causation
 Trespass torts are actionable per se, regardless of whether the victim suffers harm. There is
action even if the victim doesn’t know they were imprisoned (though this would mean they’d
only get nominal damages). Therefore, there can be a claim even if no damage
 May seem counterintuitive to hold that the tort of false imprisonment is committed
by the unlawful exercise of power to detain in circumstances where it is certain the
claimant would still have been detained if that power had been exercised lawfully,
BUT the ingredients of the tort is are clear - there must be a detention, and an
absence of lawful authority to justify it - if the detainer is a public authority, they
must have the power to detain and the power must be lawfully exercised. Here, there
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was a detention, and an absence of lawful authority to justify it, so there was false
imprisonment (EVEN IF the person would have been detained if the power was
lawfully exercised)
 The plaintiff suffered no harm, so this speaks to damages (nominal only) but doesn't
mean that the tort itself didn't occur
 In summary: all the claimant must prove is that he was detained. Secretary of State must
then prove the detention was justified in law.
What appropriate damages?
 Divided on issue of damages - some judges held there should be vindicatory damages, since
officials abused their power and claimants' rights were breached. Others held nominal
damages only since they suffered no loss/damage as a result of the unlawful exercise of the
power to detain
 The purpose of damages is to compensate the victims of civil wrongs for loss/damage that
the wrongs caused. Here, no harm, so nominal only.
Jeeves v Swanson (BCSC, 1995)

Psychological confinement - the doors were not in fact locked (locked from the inside but not
from the outside)
 Court found that Mrs. Swanson's intention was to confine Jeeves (and Jeeves thought
she was actually confined) even though the doors could have been unlatched from the
inside
 So doesn't actually matter that the door wasn't actually locked
Claim: Plaintiffs (mother and daughter) claim damages for false imprisonment. Defendants deny (say
plaintiffs were free to leave anytime) and counterclaim for libel.
Facts: Jeeves was upset with quality of work done by jeweler. Dispute over payment - defendants told
her she couldn't leave til she paid. Plaintiff thought doors were locked and reasonably believed she was
being physically detained (even though it turns out the doors weren't actually locked and she could have
left anytime. Doors were locked more than half an hour prior to the arrival of the constable. Conflicting
evidence - judge finds plaintiff more credible. Finds that the defendants were trying to confine plaintiff
and enforce payment for the bracelets, not trying to get rid of an unruly customer as they testified.
False Imprisonment:
 "Imprisonment" simply means confinement (not necessarily in a jail cell). "False" simply
means unauthorized or legally wrong (doesn't necessarily mean a deception or
misrepresentation of facts).
 Definition of the tort of false imprisonment: "Anyone who intentionally confines another
person within fixed boundaries is liable for the tort of false imprisonment."
 Must be total confinement within definite boundaries (it is insufficient to block another
person's way if another route can be taken, for example)
 Restraint may be accomplished by direct force/threat of force, a plaintiff might go along
with another to "avoid a scene which would be embarrassing" (psychological
imprisonment - can be as real as physical imprisonment), by retaining control over a
person's valuable property, holding a child hostage, etc. Ultimately it is a subjective
test - if, as a result of the defendant's intentional conduct, a person reasonably feels
totally restrained, however that result is obtained, it amounts to an imprisonment
and is actionable unless it is justifiable.
 Here, plaintiff reasonably felt she was being detained - the tort of false imprisonment is thus
proven
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
Tort of false imprisonment can be found even where the plaintiff is not aware of the
confinement at the time - but this doesn't apply here (for the infant child). Only effect on
the infant child was that she was upset. She isn't old enough - the tort is not complete.
Damages for false imprisonment:
 Plaintiff was very upset, but a mitigating factor is absence of public humiliation and no
actual physical restraint
 General damages assessed at $3500 - additional aggravated/punitive damages of $1000