Torts CAN - Prof B. Goold
Fall 2010 Sara Li
Contents
Foundations & Objectives of Tort Law ........................................................................................................................... 2
Basic Principles of Liability for Intentional Torts ...................................................................................................... 4
Assault & Battery ..................................................................................................................................................................... 5
Battery.......................................................................................................................................................................................... 6
Sexual Battery & the Role of Consent .............................................................................................................................. 6
False Imprisonment................................................................................................................................................................ 8
Malicious Prosecution ........................................................................................................................................................... 8
Intentional Infliction of Nervous Shock - Wilkinson ................................................................................................. 9
Stalking, Harassment, & Discrimination ...................................................................................................................... 10
Intentional Interference with Land................................................................................................................................ 11
Intentional Interference with Chattels ......................................................................................................................... 13
Intentional Interference with Economic Interests .................................................................................................. 14
Intentional Torts: Defences ............................................................................................................................................... 17
Remedies in Intentional Torts.......................................................................................................................................... 21
Defamation ............................................................................................................................................................................... 23
Privacy........................................................................................................................................................................................ 25
1
Foundations & Objectives of Tort Law







Criminal
Tort
Main function
Punish & deter criminal
Compensate victim for losses
Administration
Community, government take action
against criminals to maintain social
order
Victim takes tort action against
defendent
Burden of proof
BARD - heavy
Balance of Probabilities - lighter
Punishment
Monetary, liberty (jail)
Monetary
Focus
Punishing defendant
Protect community
Compensating victim
Assert interests of victim
Contract
Tort
Obligations
Imposed by parties themselves
Imposed by circumstances
Who can you
sue?
Enforcement is limited by privity
Anyone...
Compensation
Forward-looking (what would you
have gotten had the K been
completed?)
Backward-looking (where were
you before the wrong happened?)
Other functions of tort: punishment, deterrence, accountability, corrective justice,
appeasement, vengeance, education
Who is worth suing?
o Insured defendants
o Large corporations & governmental institutions
o Wealthy people
o Corporation/employer can be sued personally if they fail to train/supervise their
employees or employer can be sued for vicarious liability if the tort is committed within
the scope of Def's work
Three ways of dealing with definition of Torts:
o Torts consists of intentional torts, negligence, etc
o Torts deals with private wrongdoings, other than those covered by a contract
o Define Torts by aims and objectives: compensating plaintiffs for private wrongs
committed by other individuals
Conduct & loss are both important considerations in tort
Moralist view – idealistic, ethical principal of personal responsibility for wrong
o Consequentialist vs non-consequentialist (do consequences matter?)
Instrumentalist view – what are the purposes of tort law?
Descriptive account - what tort law actually does:
o Corrective justice - is about relationships between parties (rights & duties - A's right not
to be injured correlates to B’s 1st order duty not to injure. B also has a 2nd order duty to
2








repair. This duty doesn’t only arise when B is morally blameworthy, it arises whenever
A’s right not to be injured is violated. (Coleman))
o Compensation
 Why? Deterrence, stable society, prevent vengeance/retribution, rule of law,
corrective justice
 Why not? Does tort end up holding the right ppl accountable? Mostly ignores
distributive justice
o Punishment
 Why? If left unpunished, it's like approving the wrong. Punishing acknowledges
personal choice, autonomy, & dignity
 Why not? Crim already deals with punitive side; who ends up w/ punishment?
o Deterrence - General, Specific, Market deterrence
 Why? Ppl may change their behavior to avoid tort suits
Why not? Doesn’t work because most ppl don’t know enough about tort law,
unreflective conduct, liability insurance
o Psychological dimensions
 Allowing the P to get revenge non-violently; therapeutic for P
o Education
 Changing larger society's behaviour, not just potential Defs
o Ombudsman role
 Holding powerful ppl accountable - anyone can bring tort action
What tort law SHOULD do (according to some):
o Distributive justice (critique of corrective justice)
o Retributive Theories of Tort Law
 Recognizing & responding to moral wrongs
 But: some torts do not deal with moral/blameworthy wrongs
 Intention → recklessness → negligence → strict liability
 Most tort actions to do with negligence & strict liability (ie not a strict moral
wrong)
o Economic Theories of Tort Law
 Richard Posner - all law should minimize the cost of accidents - need to allocate
resources efficiently
 Ignore morals & ethics - tort liability should be imposed where it leads to efficient
allocation of resources
Personal injury & accidental death – large area of tort but compensation is not always
complete
o Government programs: worker’s comp & auto insurance
o Private 1st party insurance – life & disability
Readings:
Coleman: “Theories of Tort Law”
Compensation reflects corrective justice
Corrective justice views tort law as 1st order duties (duties not to injure) & 2nd order duties
(duties to repair - arises from breach of 1st order duties)
2nd order duties come from corrective justice
Weinrib: “Corrective Justice in a Nutshell”
Corrective justice is restoration - puts P back at square one
Distributive justice - takes into account allocation of resources
Restitution (make sure D hasn't gained from wrong) vs compensation (make sure P hasn't lost
from wrong)
3
Basic Principles of Liability for Intentional Torts
Intentional Torts






very precise & narrow rules
not covered by liability ins
"settled", static
More well known, finite categories of
duties
History: Writs (a series of actions that
one could go to the crown with) →
nominate torts → duty
Convention, rigid, longer history,
linked to criminal law, less policy
arguments
Negligence Torts













general rules - reasonableness & foreseeability
Sometimes covered by liability ins
"less settled", still changing
Broad range of duties owed
History: general principle of neighbourhood
(Lord Aitkin in Donoghue v Stephenson [1932]
→ who is my neighbour & how do I owe a duty
to them?
Broad principles - reasonableness,
foreseeability, duty of care, policy arguments,
current social attitudes
Indefinite # of P's
Meaning of intention
Plain meaning: A intends X when he wanted X to result from his act
o Motive doesn't matter - no such thing as good or bad intent
Constructive Intent:
o A intended X, but did Y, and Y was a substantially certain outcome of A's act
o Can treat this "as if" A intended Y
o Issue: how substantially certain must Y be?
Transferred intent:
o A means to do X, which is unlawful/wrong, but ends up doing Y
o No substantial certainty of Y, but A is morally culpable and Y's victim is innocent
o Transferred intent may move from one intentional tort to another (eg A shoots C but
hits B's car - battery → trespass to chattels)
Def may be incapable of forming intent if he doesn't understand the nature & quality of his act
(mental disability or infancy)
Intention vs volition - must have volition for tort action to succeed
o No volition during extreme duress - ie no other option available (Smith v Stone and Stone
v Gilbert)
Intent vs motive - motive doesn’t matter, otherwise victim would be deprived of
compensation
Issues with intentional torts
Some argue negligence covers everything
Can end up penalizing morally blameless (for objective intention)
Prior fault - courts not sympathetic to these cases.. But what about alcoholism or drug
addiction?
4





Readings
Epstein: "Intentional Harms"
Strict liability is not amoral - it is a neat, unified theory of liability
Makes ppl more moral
Only asks: is there an injury & a cause?
Simmonds: "Epstein's Theory of Strict Tort Liability"
Torts isn't entirely free of culpability
Not possible for neat, unified theory of liability
Assault & Battery










Assault
Direct & intentional action that causes someone to apprehend immediate harmful or offensive
bodily contact
P doesn't need to be fearful - tort protects brave & fearful
Elements:
o Direct - the act must be directed at P
o Intentional
 Apparent intent is enough (objective test)
 Intent is presumed, Def must prove no intention/negligence (reverse onus of
proof)
 Why reverse onus? Because the act is morally wrong, violates P's right to
autonomy
3. Cause apprehension - "but for" causation
4. Immediate - future threats do not suffice, apprehension of immediacy must be
reasonable - but capacity matters (Ahluwhalia - spousal abuse - set husband on fire provocation/mentally unfit)
5. Harmful/offensive
Some rules of assault that are being revised or where exceptions are created:
o Threats of future violence do not count (Holcombe)
o Mere words cannot amount to an assault (words + circumstance can (Ireland))
o Passive conduct cannot amount to an assault
o Conditional threats - threat of violence + condition that the speaker has no right to
impose + compliance would lead to safety = assault (eg I will kill you if you take me to
court)
Readings
Holcombe v Whitaker
D threatens P multiple times with the last threat outside her residence - "if you take me to
court I will kill you"
Words along can't constitute assault, but words & circumstances can
R v Ireland - (covers most things on assault) from England, Cdn Courts have yet to decide on
this case
D makes silent phone calls to P
Words alone CAN constitute assault
So can LACK of words in some circumstances
Psychiatric injury can be compensated in torts (R v Burstow)
5
Battery





Direct, intentional physical interference with the body of another which is either harmful or
offensive to a reasonable person
Elements:
o Direct (poisoning food, setting traps does not fulfill this requirement)
o Intentional - presumed that you intended the act, reverse onus again
o Physical interference - some form of physical contact (not necessarily skin to skin)
 P does not have to be aware of it at the time
 Eg Malette v Shulman (1990) - blood transfusion
4. Harm - Malette: right to refuse treatment, patient makes the final decision. Recognizing
right to self determination
 Malette suffered no physical injury, but there was physical interference
Why battery in tort?
o To protect the rights of bodily integrity & personal security (autonomy & dignity)
o Symbolically asserts the right to dignity (thus actionable per se)
Readings
Bettel v Yim (covers most things in battery)
Def shook P by collar, accidentally head-butted P's nose
Def is liable for unintended injuries, rules of foreseeability do not apply
Sexual Battery & the Role of Consent




No distinct tort of sexual battery in Canada - is dealt with according to traditional rules of
battery
Sexual contact usually not offensive, courts were unwilling to rule on this area of life
Non-Marine Underwriters, Lloyd's of London v Scalera:
o P is not required to prove lack of consent- the onus is on def to prove that there was
consent
o McLachlin J: would have been wrong to recognize a new tort of sexual battery requiring
the P to prove a lack of consent
o Usually, tort law view parties as equal - here, MacLachlin rejected that by recognizing
the power imbalance that usually exists btwn P & Def
o Constructive consent can be used (inferring consent from behaviour & circumstances) but is an objective test
o Victory for feminists because court rejected a subjective test for belief, & thus an honest,
but unreasonable belief is no defence
Problems with Scalera?
o Unclear as to whether def needs to adduce evidence about reasonable efforts to get
consent
o Objective approach → plaintiff's perception is irrelevant if defendant can show
reasonableness
o Plaintiff may be blamed for behaviour leading to defendant's reasonable belief of
consent or for failing to resist
o Premised on common sense ideas about 'normal' behaviour or responses to unwanted
sexual advances
6



Tort law & Sexual Battery?
Advantages:
o Therapeutic effects
o Victim has control over trial (producing evidence etc)
Disadvantages:
o Civil litigation can be costly, stressful, and elongates experience (may outweigh
therapeutic benefits)
o Defendant with lots of resources/good defence counsel → further victimization
o Even if victim wins in trial, may not obtain much in damages/costs or enough to cover
litigation costs
Should there be a new tort of sexual battery?
o Could take out issue of consent all together as in crim law - implied/constructive
consent is no defence - must have express defence
o Eg. Ewanchuk [1999] 1 S.C.R. 330: Crim law - complainant decides on the issue of
consent (just has to say no consent). Would this create convictions where defendant
genuinely believed consent was given? Yes, but right to bodily integrity trumps rights of
morally innocent persons not to be convicted. Onus is on defendant to make absolute
certainty of consent. The only defence possible is that the defendant took reasonable
steps to ensure consent is given.
 Controversial! What about presumed innocence?
Readings
Non-Marine Underwriters, Lloyd’s of London v. Scalera
 Insurance doesn’t cover intentional acts- more importantly, def has to prove consent in sexual
battery
Sansalone v. Wawanesa Mutual Insurance Co.
 Same as above
Adjin-Tettey: “Protecting the Dignity and Autonomy of Women: Rethinking the Place of
Constructive Consent in the Tort of Sexual Battery”
 Constructive consent is harmful to victims of sexual battery- consent should be "voluntary and
affirmative" to be considered valid
 Criminal prosecution serves many purposes, but for the victim, can even inflict more trauma &
many do not feel justified. Also standard of proof is higher.
 Allowing constructive consent to be a defence could feed gender/racial/other stereotypes
 "Not all honest beliefs are morally innocent"- beliefs could be based on harmful stereotypes
Feldthusen, B. (1993) “The Civil Action for Sexual Battery: Therapeutic Jurisprudence?"
 What purpose does civil lawsuit serve for victims of sexual battery?
o Could be corrective justice, vindication, appeasement, retribution
 Criminal trial focuses on accused- providing them with fair trial; can be more harmful to
victim than helpful; burden of proof BARD
 4 cases where victim sues:
o Police/crown do not press criminal charges
o Victim chooses not to press criminal charges:
 May be a family member, or looking for punitive damages (sometimes denied if
convicted in criminal court)
o Pressed criminal charges, defendant acquitted:
 Easier for plaintiff to win in civil trial without BARD
o Pressed criminal charges, defendant convicted:
 Perhaps criminal sentence inadequate, also easy for Plaintiff to make case
 Is a civil trial the right form of "therapy"? May inflict more harm, costly, often D’s can’t pay
7
False Imprisonment






False imprisonment: direct and intentional imprisonment of another person
o Direct
o Intentional
o Complete restriction on liberty (partial obstruction doesn't count - Bird v Jones)
Actionable per se
P doesn't have to be aware of imprisonment
Restraint can be imposed by
 Barriers
 An implicit or explicit threat of force
 An explicit assertion of legal authority
 Psychologically (ie person of authority asks you to accompany them inside Campbell)
Lawfulness is a defence, not an element of the tort
What's indirect false imprisonment? A directs B to imprison C, and B has little or no discretion
in the matter
Readings
Bird v. Jones (1845) ER
 P trying to pass through highway, def obstructs his way because of some event on the road
 Is this false imprisonment? No
 Partial obstruction & disturbance is not imprisonment
 Personal force or menace is not required for imprisonment
Campbell v. SS Kresge Co (1976)
 P shopping in K-Mart, stopped in the parking lot by security officer who makes her go back
into store to question her based on another shopper's suspicions - says he doesn’t want to
cause either of them embarrassment
 No reasonable grounds to think she had committed an offence
 Even a short period of time can be false imprisonment
 This is false imprisonment - psychologically she had no other choice
Malicious Prosecution
2 interests at stake:
o Individual right not to be wrongfully prosecuted
o Public interest in prosecuting criminals
Tort law favours prosecutors… malice must be proved
P must prove:
1. Defendant initiated the proceedings against the plaintiff
 Def must have been instrumental in bringing a prosecution
 Providing information is not enough unless wrong info is given deliberately to
prompt prosecution
2. The proceedings terminated in the plaintiff’s favour
3. There was no reasonable and probable cause for the proceedings
 Traditionally, both subjective & objective belief of guilt is required
 But Miazga changed this - only need to consider objective belief
4. There was malice on the part of the defendant
 Being incompetent is not enough

8
Any improper purpose inconsistent with duties of the Crown is enough
Miazga on malice: lacking a subjective belief is helpful in determining malice, but
isn't the determining factor (lack of subjective belief could be due to inexperience,
etc)
5. Damage - eg loss of reputation, loss of liberty, financial loss
Abuse of process: "improper use of civil litigation process"
1. Defendant starts litigation process
2. Purpose of proceedings - collateral or improper
3. Overt act/threat to secure defendant's improper purpose
4. Damage



Readings
Miazga v Kvello Estate [2009] (SCC)
 Objective & subjective belief required for tort action btwn private parties
 Only objective needed for action against the crown
 No subjective belief doesn't automatically lead to malice
Proulx v. Quebec (A.G.) [2001] 3 S.C.R. 9
 Prosecutor charges Proulx for 1st degree murder after a number of years because "new
evidence" in the form of a retired police officer shows up - prosecutor is made aware of this
because Proulx is suing the officer for defamation
 Elements of defamation met:
o Reasonable and probable cause not present - the evidence was highly flawed
o Improper use of the crown's power: defence of the defamation suit mixes with public
interest
Nelles v. Ontario [1989] 2 S.C.R. 170
 Crown lays charges against nurse for death of 4 infants - discharged because not enough
evidence
 Crown doesn’t have immunity against malicious prosecution - elements 3&4 will protect
against honest mistakes & floodgates of litigation
Intentional Infliction of Nervous Shock - Wilkinson

Outrageous conduct intended to inflict nervous shock
1. Outrageous conduct (question of fact, according to a reasonable person)
 Can be a series of acts (Clark v. R)
 Courts may take into account vulnerability of P, if Def knows about it
2. Intent
 May be inferred by seriousness
 May be inferred where harm to P was reasonably foreseeable
 May be inferred from extent & duration (Clark v. R)
 Case law seems to indicate recklessness doesn't count
 No need to foresee full consequences, just some distress or harm
3. Nervous shock (ie recognizable psychiatric illness or physical harm)
 Anguish, worry & emotional stress normally insufficient- need medical evidence
(Radovskis)
 UNLESS conduct was outrageous & symptoms of depression present in P
(Rahemtulla)
4. P doesn't have a predisposition to shock
9
Issues?
o
o
Causation is not always clear
A single action can cause nervous shock to many people (indeterminate amount of plaintiffs
over an indeterminate amount of time)
Readings
Wilkinson v. Downton [1897] QB
o Def tells P her husband is seriously injured - she suffers serious physical consequences
o P wins - First case of IINS
Radovskis v. Tomm (1957) (Man. Q.B.)
o Mother suffers mental anguish because Def raped her 5 yr old daughter
o P loses - no medical evidence entered, court wouldn't award damages for mother's
nerves
Rahemtulla v. Vanfed Credit Union (1984) (B.C.S.C.)
o Teller fired from job - suffers from depression
o P wins - no medical evidence, but evidence of her behaviour, and supervisor's conduct
extreme
Stalking, Harassment, & Discrimination








Discrimination - Seneca
Currently, no separate tort of discrimination (Seneca)
Should there be one?
o The tort would fill in the gaps, expand on the statutes
o Issue: Balance equality with other freedom interests; eg. freedom of contract
o Osbourne: wouldn't be that difficult to balance using current legislation as a guide
o "Rights as trumps"
Stalking
Stalking is where a person knowingly (i.e. intentionally) or recklessly harasses another person
in a manner that leads that other person to fear for her own safety
o This is basically what the crim code says
No tort of stalking in Canada
o Victim can bring action in other torts: nuisance, IINS, assault, trespass to land…
Arguments for an independent common law tort of stalking
o Fundamentally different from the piecemeal items of trespass, assault, etc
o Privacy ↔ stalking - is stalking really a privacy interest? No..
Harassment - Chapman
Harassment is is where a person knowingly (i.e. intentionally) or recklessly harasses another
person and the conduct is seriously annoying, distressing, pestering, and vexatious
o Activities are distressing, upsetting, but not necessarily frightening
Examples (Osbourne):
o Minor sexual harassment
o Bullying
o Harassment by creditors or governmental officials
o Abusive or racist communications
Harassment not really covered by other torts
10


Courts only considers harassment if plaintiff is the clear target and suffers severe mental
distress. Then, approach taken varies between:
o Basing liability on a previously recognized tort
o Providing a remedy through consumer protection legislation
o Recognizing a new tort of harassment.
Uncertainty & confusion in applying harassment… (Chapman)
Readings
Bhadauria v. Board of Governors of Seneca College of Applied Arts and Technology [1981] SCC
 No job interview given to Bhadauria after multiple applications
 Trial: no such tort as discrimination
 CA: can create tort - case law hasn’t affirmed nor rejected a tort of harassment
 SCC: Ont. Human Rights Code is comprehensive enough to deal with this & no precedence for
the tort → no cause of action
Chapman v. 3M Canada Inc.
 P sued 3M for sexual harassment & discrimination based on sex
 Judge decided these were within exclusive jurisdiction of the Ont Human Rights Code - ie no
civil cause of action
Intentional Interference with Land
Direct, intentional (or negligent) and physical interference with land in the possession of the
plaintiff.
1. Direct
 Must be a direct result of Def's actions - ie oil spills etc not actionable
 Can usually sue indirect actions under private nuisance
2. Intentional (intent to do action, not intent to cause harm or even to trespass)
 Onus on the Def to prove not intentional
 Mistake is no defence (Turner v. Thorne)
3. Physical interference (must be physical - smog, noise, odour likely won't work)
i.
Enter without permission
ii.
Place an object on property
 Continuing trespass if left on property, each new day is a new cause of action
iii.
Possessor has revoked license to be on the property
4. In the possession of the P
 P must have legal possession (not always owner)
 Exception: Doctrine of trespass by relation - no one is in possession, D trespasses,
then P takes possession - P can sue for trespass
Actionable per se
Tort of trespass plays 3 roles:
Protects possessor's freedom of land use (not owner)
Compensates for damages to land from an intruder, and deters intruders
Protects privacy interests

3 main defences:
 Consent
 Express vs implied
 Contractual or gratuitous (contractual license harder to revoke)
 Necessity
11
Can trespass to prevent harm to themselves, the public, the possessor of the land,
or a third party
 Need imminent peril, advantage gained by trespassing, no other options, danger
significantly outweighed loss to the P
Legal authorization
 Trespass ab initio - when legal authority is abused, the entry is deemed to be
wrong from the beginning
Statutory authorization



Remedies
 Damages (all damages, not just foreseeable ones)
 Nominal damages, if no real damage to the land
 Punitive damages for flagrant acts of trespass
 Injunction for continuous trespass - prohibitory injunction (stop doing what you're doing),
or mandatory injunction (take away what you've already put in)
 Self-help remedy (using reasonable force to remove a trespasser)
 Petty trespass legislation - punishable by a small fine
Airspace
3 types:
Permanent intrusion at a relatively low leve
 Actionable trespass to land, without proof of damage
 Compensatory and injunctive relief available
Temporary intrusion - not an aircraft
 Construction cranes usually
 Remedies range from immediate injunction to injunction after the construction
project is done or compensation
Temporary intrusion - aircraft
 Canadian position: remedies available only for intrusion by aircraft within the
owner's effective possession (ie a height necessary for current/future enjoyment,
use, or comfort - a few hundred feet - anything else would be under negligence or
nuisance)
Readings
Harrison v. Carswell [1976]
Shopping mall picketer
Statutory right to picket, but private property rights are higher priority
Strong dissent from Laskin - used Charter principles to defend right to picket
Turner v. Thorne (1960)
Delivery taken to garage of home instead of business, P trips over boxes
"trespasser becomes liable not only for personal injuries resulting directly and proximately
from the trespass but also for those which are indirect and consequential"
12
Intentional Interference with Chattels




Trespass to Chattels - Intel
Direct, intentional interference with a chattel in another's possession
Direct
Intentional/negligent
 Reverse onus of proof
Chattel in another's possession
Usually used when chattel has been damaged, or minor unauthorized use/movement
o But actionable if damaged, destroyed, taken, used, moved
Mistake is no defence
Not sure if damage is required - Solomon thinks it should not be required
o Intel seems to say damage is needed
Remedy: Damages - either reduction in market value or cost of repair (the lesser amt)
Detinue
Owner has asked Def to return the chattel, but he can't (lost) or won't
o P must have asked Def to return it
o Def must have refused request
o Need these 2 unless it is already clear that chattel can't/won't be returned
Remedies:
o Order to return chattel (main reason why one would bring action under detinue instead
of trespass & conversion)
 Usually good is hard to replace or unique
 If Def returns it before judgment is made, action fails
o Damages for value & detention
 Damages assessed at time of judgment as opposed to date of conversion (because
Tort is mainly for detention of the chattel)
Conversion - Fouldes & Mackenzie
Intentional interference with another's chattel as to seriously harm the P's rights to it
Includes taking, selling, withholding, destroying
Mistake is no defence, ie not required to know it is wrong (Mackenzie)
o Intent means basic intent to do act
o But conversion is not available for negligence - can take action in trespass
o So, innocent seller & innocent purchaser of stolen goods are liable
o Exception: Innocent purchaser's agent buys the goods - the agent is liable
o Exception: Packing, storing, or carrying of goods for someone without title to the goods
is not actionable provided you are unaware of the lack of title
P must attempt to mitigate losses
When dealing with temporary taking, movement, or use - test is whether it seriously
harmed P's rights to the chattel
Remedy: Def is held liable for full value of chattel, damages assessed at time of conversion
Action on the case to protect a reversionary interest
For the P who doesn't have rights to possession, but will in the future
Rarely used in Canada - usually action under negligence or in K for possessor to take care of
the chattel
13
Other ways besides Detinue to recover a chattel
Replevin (court process)
o Court orders return of chattel prior to judgment if P has an apparent right to possession
Recaption (a legal right)
o Person with strongest right to possession can use reasonable force to prevent theft or
recover chattel


Defences
Same as trespass to land
Also - remedy of distress damage feasant: chattel enters land & causes/is causing damage land owner can hold it until compensation is paid
Readings
Fouldes v. Willoughby (1841)
 Ferry owner releases P's horses
 Not conversion - the action did not seriously harm P's rights to the horses
Mackenzie v. Scotia Lumber Co.
 P's raft of lumber accidentally taken in with Def's rafts. When Def found out, returned
 This is conversion because it seriously interfered with P's rights to it
 But, damages will not be for full value because it is returned, only nominal damages & costs to
the P
Intel Corp v. Hamidi (2003)
 Hamidi sends emails through Intel's server to Intel's employees - Intel sues for trespass
 Court: needs to be proof of damage - usability of server not disrupted, no injury
 Dissenting: Brown J - time required to delete & prevent emails is enough injury
Penfolds Wine v. Elliott [1946]
 P retained ownership of its wine bottles. Def filled bottles with his own wine when his
customers brought them to him.
 P couldn't sue under any established tort:
o Trespass to chattels: P didn't have possession
o Detinue: P hadn't asked for the bottles back
o Conversion: Def hadn't seriously harmed P's rights to the bottles
o Reversionary interest: Def wasn’t damaging the bottles
Intentional Interference with Economic Interests

Modern tort law believes law should stay out of the market when possible & not to provide
remedies for ordinary business practices
o Sort of runs against notion of corrective justice
Deceptive Practices:
Deceit - Derry
When someone makes a false statement that intentionally causes another person to rely on it to his
detriment
1. Misrepresentation - Def must have made a false stmt
o Usually verbal or in writing, but can be in conduct
14
Usually a positive action, but sometimes half-truths, active concealment, and failing to
correct an honest misrepresentation ok
 Abel v. McDonald [1964] Active concealment of truth held to be deceit.
o No liability in not disclosing facts unless there are special circumstances (eg fiduciary
duty)
2. Fraud - Def must have known the stmt was false (or was objectively reckless to the falsity)
o Onus of proof on P to prove
o Objectively reckless = not believing whether or not it was true (not the same as being
reckless in finding out its truth, but still honestly believing- deceit is meant to catch liars
as opposed to lazy ppl)
o Mistaken belief is a defence - subjective standard (Derry)
 Not necessarily a reasonable belief, but must meet min requirement that it is a
possible belief of a reasonable person (ie judge must be convinced you actually
believed it)
3. Intention - Def must intend for the P to rely on the statement & be misled
o Intention to mislead needed, not intention to injure (but still more than basic intention
to make the stmt)
o If reasonably foreseeable that P would rely & be misled, court can presume intent
4. Damage & reliance - P must have suffered a loss as a result of reasonably relying on stmt
o Reasonable reliance→ less reliance on sales people, future predictions, opinions
o Actions must result from deceit → If Def would have done the same thing without stmt,
action fails
o Stmt must make a material contribution to P's decision, no need to be the only
contribution
o
Passing off - Ciba-Geigy
 Aims to protect the reputation and goodwill of producers, and to prevent customers from
being deceived.
 Elements(Ciba-Geigy Canada Ltd.),
1. The existence of goodwill
o Power to attract or retain customers
o Held to exist where goods/services can be identified as P's
2. Deception of the public due to a misrepresentation
o No intent needed, just need the act of presenting goods as being associated with, or
from, the P
o Won't be actionable if the only person who would be misled is a "moron in a hurry"
(Newsweek Inc.)
3. Actual or potential damage to the plaintiff
o Diversion of customers, or damage to P's reputation
 Examples of passing off:
o Misrepresentation that goods of Def are goods of P
o Misrepresentation that goods of P are goods of Def
o Misrepresentation as to origins of the goods
o Misrepresentation that Def's goods are of the same standard as P's goods
o Misrepresentation that the Def has a business relationship with the P
 Remedies:
o Damages, equitable remedies, injunction, delivery up
 Issues:
o Tort can tend to support monopoly
o Ability of tort to protect consumers from bogus goods/services
15

o Interest of consumers in price competition
Hard to show damages when P & Def aren't in same field of commercial activity, but may steer
the tort towards preventing misappropriation of a character instead of protection of goodwill
o Unauthorized character merchandising (using a character to sell prod/services)
o Dilution misrepresentations (Sony socks, Pepsi shoes)
Injurious Falsehood
 Protects business & commercial interests, not individual's reputation, ie defamation.
1. False statement made of, or concerning, one's trade, business, or property
2. Publication of the statement to a 3rd party
3. Malice
4. Actual pecuniary loss
 Defence of justification available to Def, but probably hard to use if P has already proved
malice
Misappropriation of Personality
 Using someone's name and likeness for commercial purposes
 Protects P's goodwill in name and personality. Incidentally protects public from deceit
1. Intentional use of P's name or likeness
2. Unauthorized use of P's name or likeness to promote Def's commercial interests
3. Damage
 Remedies: damages, injunction
Readings
Derry v. Peek (1889)
 Peek bought shares of Tramway co., who thought they could use steam engines
 Tort punishes dishonesty, not negligence/recklessness - tort action failed
Ciba-Geigy v Apotex [1992]
 Def makes same drug as P, makes it look like P's pill
 This is passing off
Improper Market Practices:
Conspiracy - Posluns
 2 or more parties enter an agreement to economically damage a third party
Simple Conspiracy (damage by lawful means)
 Central element: proof that def's predominant aim was to harm P, not to further
own interests
Conspiracy to injure by unlawful means
Intimidation- Brookes
 Intimidation: must involve the threat of unlawful acts
i.
Three Party intimidation: Def threatens to unlawfully coerce a 3rd party to damage P
ii.
Two party intimidation: def threatens unlawful acts to compel the P to act to his own
detriment
Inducement to break a K - Posluns
 Direct inducement to breach a K
o Elements: direct inducement to breach the K, knowledge of the contractual link, an
intention to secure a breach, and damage
16
No need for a desire to harm P, can be acting in order to advance own interests & still be
liable
Indirect inducement
o Elements: Done by illegal means, & the illegal act causes the breach, knowledge of K,
intent to break K
Interference with a K by unlawful means without causing a breach
o Elements: intention to interfere with contractual oblig's, knowledge of K, damage
o






Intentional interference with economic interests by unlawful means - Reach
Elements:
1. Intent to injure P's economic interests - Reach interpreted broadly: predominant purpose
doesn't have to be to injure P, can be furthering own interests
2. Interference by unlawful means - Reach interpreted "unlawful" as something D is not at
liberty to do
3. Economic harm
Readings
Posluns v. Toronto Stock Exchange [1964]
TSE finds out about illegal trades of P - gets P's employer to fire him
Conspiracy? No, no malice or improper motive
Contractual interference? No, the interference was justifiable
Intentional Torts: Defences





Consent
A complete, free-standing defence rather than an element (ie. Def raises it rather than P
having to prove lack of consent)
General assumption that when one consents to an act, he also consents to risks of act
Explicit vs Implicit consent
o
Hard to determine whether there is implied consent: can be behaviour, demeanour,
participation, or omissions (to act, or withdraw)
o
Eg. Wright v. McLean
o
Do spectators of a sport give implied consent? (eg. Elliot: held that an amateur hockey
player knew enough about the risks & protections customarily provided when he
attended the match)
Exceeding consent: Agar v. Canning
o
Participants in a game consents to ordinary risks of injury (ie not everything in a game is
immune from liability)
P must be competent to consent: possible that some can't understand nature & consequences
of the act due to age, physical or mental illness, intoxication etc
Def's actions that vitiate consent
 Fraud
o
Def was responsible for or aware of P's misapprehension
o
Fraud must be directly related to the nature of the act (not a collateral matter)
o Eg. R v. Williams singing teacher - fraud was related to nature of the act
o Eg. R v. Cuerrier HIV - Fraud vitiates consent where there is concealment of a “significant
risk of serious bodily injury"
17
But in Hegarty v. Shine from Ireland, concealing HIV status is collateral
Mistake
o P’s consent is vitiated by a mistaken belief if the defendant is responsible for creating
that belief.
o Not the same as Def's mistaken belief that P has consented- still liable
o Eg. Toews v. Weisner (2001) (BC SC): Nurse gives shot to child based on mistaken belief
parents had given consent - still liable
o **We haven't been able to figure out the difference between fraud & mistake**
 Duress
o Consent obtained by use of force is invalid (Latter v. Braddell)
 Public Policy
o Some consent is never valid: consenting to serious injury or death (R v. Jobidon and Lane
v. Holloway) or exploiting authority
o For power imbalance to vitiate consent: (Nelitz v. Dyck)
 Proof of inequality, usually in the context of a “power dependency” relationship;
and
 Proof of exploitation – considers the type of relationship in light of community
standards.
o

Readings
Wright v McLean
Mudball game, little boy gets cut on head
"In a sport where there is no malice, no anger, and no mutual ill will, .. Combatants consent to take
the ordinary risks of the sport"
Agar v Canning
Def hit P in hockey outside of the normal course of a game, P lost vision
Def in this case goes beyond the limit marking exemption, so should be held liable
o For def: conduct in the heat of the game is instinctive & unpremeditated, so should not
be judged against normal social standards; also provocation is a partial defence
Zapf v Muckalt
Def cross checked P from behind in a hockey game- P is now quadriplegic
P consents to rules of the game - Breaking rules of the game vitiates consent
C v Wren
16 yr old girl gets abortion - parents sue Doc for battery, argue no capacity to consent
Held: patient was able to give informed consent. Don't need to be age of majority to be able to give
consent
Self Defence - Wackett
P must prove:
o
A reasonable subjective belief that assault was imminent (Objective & subjective belief)
o
The amount of force used was reasonable in all of the circumstances
 The amt of force used should be proportional to the threat or likely harm
 Wackett: Def is not required to weigh "niceties" of force during imminent harm
 Unclear whether "reasonable force" includes "reasonable foresight of injuries" but Brown
v. Wilson seems to say no
 Objective & Subjective (Look at situation from perspective of Def, then judge whether a
reasonable person would have applied that force) (Beckford v. R)
R v. Lavallee: wife shoots husband as he walks away promising to beat her when he returns
o Expert evidence of battered wife syndrome is admissible- jury should consider Def's
experience & perspective when deciding on what is reasonable force
18
Issues? How far should we stretch this subjective perspective? Kid who is bullied at
school? "glue sniffer"? → idea of prior fault - but is there really prior fault when certain
socioeconomic classes are more likely to become "glue sniffers"?
o In England, can claim provocation or diminished responsibility - but is this adding to the
"women do bad things because they are mad, not bad" idea?
Justification vs excuse - justification is complete defence, excuse is partial defence
o Justification - my conduct wasn't wrongful
o Excuse - my conduct was wrongful, but understandable (eg provocation)
o Self defence is justification, not excuse
Can be pre-emptive in self-defence
o
Readings
Wackett v Calder (1965)
P invites Def to fight, his punches do nothing - Def punches 2xs (2nd broke a bone)
Held: 2nd blow was justified to put an end to the episode - Def was entitled to reject force
with force, and not bound to take a passive defence
Defence of a Third Party - Gambriell
Same rules as self defence (Gambriell v. Camparelli)
Readings:
Gambriell v Camparelli (1974)
Mom sees son being "throttled", uses gardening tool to hit P on head
Held: reasonable given ALL the circumstances (lack of english skills, hitting on shoulder first, her
son was underneath P etc…)
Defence of Discipline
Cdn courts seem to view s. 43 of crim code as governing civil defences too
o Parent/schoolteacher is justified in using force by way of correction if the force is
reasonable under all the circumstances
o Dupperon: 2 part test:
i. Force is "by way of correction", ie for the benefit of the child
ii. Force was reasonable
 S. 43 should be interpreted in light of prevailing social standards and customs, rather than
according to those of the defendant (R v. Baptiste)
 Captains of ships and aircrafts while at sea or in the air have this defence if safety is at
stake- police not available to keep order
 Canadian Foundation for Children: court read in conditions for s. 43 to be valid
Readings
R v Dupperon (1984) - discipline
Dad uses belt to discipline son
2 part test: is it for correction/benefit of the child? Was the force reasonable?
Canadian Foundation for Children, Youth and the Law v Canada [2004]
 Asked whether s.43 is constitutional
 Court read it narrowly to bring it within Charter confines
 Use of force must be reasoned and address actual behaviour. It must be intended to restrain,
control, or express symbolic disapproval.
 Force will never be justified for children under 2 & those with particular disabilities since they
can't understand or benefit
19




Force must be transitory and trifling, must not harm or degrade the child, and must not be
based on the gravity of the wrongdoing
Can't use on teens because it will harm them psychologically
May not use objects, or apply force to the head
Teachers may only use force to remove children from classrooms or to ensure that they follow
instructions.
Defence of Real Property
 Can use reasonable force to eject a trespasser if they have been asked, but refuse to leave
o Exception - threatening trespassers (no need to ask)
 Reasonable force here cannot mean enough to cause death or serious bodily harm
 Law on using 'things' to protect property (ie barb wire, guard dogs, etc) is not clear - general
rule is that things causing minor injuries (barb wire fence) is ok, but things causing serious
bodily harm (electric fence) is not
Readings
MacDonald v Hees (1974)
 P enters motel room thinking he has permission, Def immediately uses force to eject
 Defence of real property fails - no request for P to leave & force is excessive
Assertion of legal authority
 In essence, protects police officers against all types of intentional tort actions (mostly a
statutory defence now)
 If peace officer violates a Charter right, must justify it under s.1
o If not justified under s. 1, judge is open to use s. 24(1) to grant a remedy or s. 24(2) to
exclude evidence
 Due process (process matters - let some guilty go rather than lock up innocent ppl) vs. crime
control (ok to lock up some innocents as long as we get all the bad guys) - Herbert Packer
o R v Grant - police detain suspicious individual who then admits to having a firearm
Limited the exclusion of evidence & shifted towards crime control
 Rules of arrest (Koechlin):
1. The police do not have a general right to ask individuals to identify themselves. (need to
have reasonable and probable grounds to suspect the individual).
2. Police need to tell the individual why they are being arrested.
3. Failure to inform the individual of the reasons for arrest can give rise to a claim for false
imprisonment.
4. If the individual is not informed, they are entitled to resist the unlawful arrest.
 According to crim code, can only use reasonable force in arrest (for fleeing suspect, police may
be entitled to use deadly force)
 Power for a citizen to arrest is very limited
Readings
Koechlin v Waugh and Hamilton - False imprisonment
 Police try to ID P's, one refuses & gets arrested
 Police must inform of charge if someone is to be arrested - otherwise, could be liable for false
imprisonment
Eccles v Bourque [1975] - Trespass to land
 Police enter Eccles' home to arrest Cheese (who wasn't there)- is this trespass?
 Peace officers can trespass only if
1.
There is reasonable & probable grounds that the fugitive is on the property
20
2.
The peace officer properly announces reason for entering before trespassing
R v Caslake [1998] - Trespass to Chattels
 Caslake arrested for possession of marijuana, then police search car & find cocaine
 Was the search justified by the arrest? Should cocaine be admitted as evidence?
 Yes, search of car is ok. Some caveats:
o
Doesn’t impose duty to search
o
Must be for a valid objective in pursuing justice, not to intimidate or pressure the
arrested
o
Must not be conducted in an abusive fashion
Remedies in Intentional Torts


Judicial remedies
Damages
o
General (non-pecuniary because not awarded because of exactly the amount you have
suffered, amount is not quantifiable, more symbolic)
o
Special (pecuniary - quantifiable - eg. Cost of repairing, replacing, loss of wages)
o
Can classify damages by their aim/function:
i.
Nominal damages (Mediana)
ii.
Compensatory damages
iii.
Aggravated
 Augments compensatory damages (compensates victim- Vorvis)
 T.W.N.A. v Clark: for intangible emotional injury as a result of Def's highhanded conduct (not just tortious, but outrageous)
 Usually courts will infer emotional injury if conduct is severe
 Can be lumped together with general damages or awarded separately (B (P)
v. B (W))
 Should it be based on subjective assessment of P's loss?
 Probably should be, since the aim is to compensate
 But Rookes says "proper feelings of dignity" suggesting reasonable
standard
iv.
Punitive Damages
 For advertent exceptionally bad behaviour from Def
 Aim is to punish the Def (Vorvis), but also increasingly to deter
 Awarded rarely, only if compensatory & aggravated damages are not enough
to punish (Whiten)
 Double jeopardy - shouldn't award punitive damages when crim court is
already punishing them (B(P) v. B(W))
 Also see Whiten
v.
Disgorgement (restitutionary) damages
 Strips plaintiff of gains that he has received from the tortious conduct
 Disgorgement (giving up)
Injunctions
o
Prohibitive - stop doing something
o
Mandatory - do something
o Failing to comply with injunction → contempt of court → imprisonment
o Injunctions are based on principles of equity, so:
Remedy is discretionary
21
Clean hands principle
If damages are sufficient, then injunction won't be awarded
Order of Specific Restitution
o Restitutionary award prevents Def from profiting from his wrong (unjust enrichment)
o But P still has to mitigate his loss
Declaration
o Usually don't see this in torts - just a declaration of someone's rights
Extrajudicial remedies
Recapture of chattels
o P allowed to use reasonable force in regaining his personal property
Re-entry onto land
o P can use reasonable force to regain entry onto his own land when another is in
wrongful possession of it
Abatement of nuisance
o Reasonable force to prevent or stop a nuisance
o Immediacy requirement
o P needs to give notice to Def & avoid unnecessary damage
Readings
The Mediana [1900] - nominal
 Nominal damages not necessarily small
 Nominal damages: even when one cannot claim a right to damages, can still assert a right to
judgment when legal right has been infringed
B. (P.) v B. (W.) [1992] - non-pecuniary/aggravated/punitive
 Defendant repeatedly assaulted and sexually assaulted his daughter, including rape
 100k Non-pecuniary damages- state of victim, awarded for psychological trauma
 75k Aggravated damages- looks at seriousness & repetition of assaults and duration/length of
time during which the assaults occurred
 25k Punitive damages - for the one incident not taken into account during crim trial
Vorvis v Insurance Corp of British Columbia [1989] - aggravated/punitive
 Vorvis dismissed from employment
 Aggravated damages aimed at compensation, but takes full account of the intangible injuries,
such as distress and humiliation, caused by Def's insulting behaviour
 Aggravated damages could be awarded in a case of wrongful dismissal, particularly where the
acts complained of were also independently actionable - but not here.
Whiten v Pilot Insurance Co. [2002] - punitive
 Punitive can be awarded to punish, deter, denounce butonly very serious misconduct warrants
punishment or deterrence
 Punitive damages are most likely to be awarded in intentional torts, but can also be used in
nuisance, negligence, and other tort actions.
 The fact that the defendant may also have received a criminal sanction does not preclude an
award of punitive damages.
 Punitive damages should be awarded with restraint, and only if an award of compensatory and
aggravated damages is insufficient to punish the defendant.
 No cap on punitive, but award should be the lowest sum necessary to accomplish ultimate goal
 Juries should be informed of the function of punitive damages, as well as the factors that
determine the award and final amount of the damages.
 Appellate courts can intervene if an award of punitive damages “exceeds the outer bounds of a
rational and measured response to the facts of the case.”
22
Defamation
Protects reputation from unjustified attacks.
Slander (spoken) vs. libel (written/recorded)
o Slander actionable on proof of damage, libel actionable per se
o Exceptions: slander actionable per se in cases such as imputation of the commission of a
crime, infection with a loathsome disease, lack of chastity (for women only), and
unfitness to practice a trade or profession
Elements:
1. Defamatory statement
o Stmt is presumed false unless Def can prove otherwise
o Is defamatory if material is either
 Defamatory in plain meaning
 Is a true/legal innuendo (extra info makes it defamatory); or
 Is a false innuendo (no extra info needed) (Sim v Stretch)
o Is this according to a "right thinking" person or "ordinary" person?
 Traditionally, according to "right thinking" person
 Replaced "right thinking" with "ordinary" person in Colour Your World)
o Court looks at context of words & mode of publication - will view publication as a whole
(Slim v. Daily Telegraph Ltd.)
o Court will consider body language & tone of voice (Vogel v. CBC)
2. Made reference to the P
o P needs to show that the stmt referenced him on a BoP
o If stmt doesn't refer to P by name, ask 1. Is the stmt capable of referring to the P?
(question of law) 2. would the stmt lead a reasonable person who knows the P to
conclude that it does refer to him? (question of fact) (Knuppfer)
3. Published or disseminated
o P must show on a BoP that the stmt was communicated to a 3rd party who understands
the stmt
o Publication must be intentional/negligent - accidental publication not actionable
o Stmt spoken to one's spouse is not publication (Wennhak v. Morgan)
o No publication if the statement is overheard entirely by accident (McNichol v. Grandy)
o Every repetition of the stmt is a new cause of action (Lambert v. Thomson)
o Parties to the publication are liable, original stmt maker is liable for repetition if
 They authorize the republication
 They told someone who had a moral, legal, or social obligation to republish
 The republication is a natural & probable consequence of the publication
 Civil juries still used because they guard against censorship by the state & is "in the eyes of a
reasonable person"
 Strict liability tort - no intent required, & good motive doesn’t matter (Dennis v. Southam Co)
 Govt can't bring action, but individual officials can
 No need to show loss of respect & not a defence if whoever heard it hasn't been affected
Defences
Justification
o Def must show “whole of the defamatory matter is substantially true” (Meier v. Klotz)
Absolute privilege (malice doesn't matter)
Statement by an executive officer relating to affairs of the state;
Statement made during parliamentary proceedings; or
Statement made in the course of a judicial or quasi-judicial proceeding
23
Qualified privilege (malice matters)
When one has a moral, social or legal duty to make the statement.
No clear rules, defence likely available for protecting own or 3rd party's interest, or
in the public interest (Def must have duty to tell, & recipient must have duty to know)
Fair & accurate reporting falls under qualified privilege
Hill: SCC said we need to follow Charter, freedom of expression, but no need to
follow US actual malice test from New York Times v. Sullivan
Fair Comment - Cherneskey
A comment (as opposed to an accusation or allegation of fact);
Made honestly and in good faith;
Based on facts that are true; and
On a matter of public interest
o Focus is on honesty & good faith, not necessarily fairness
Consent
o Complete defence
o Def has to show stmts originated with P or P's agent, or that they were a response to P's
stmts
Apology and retraction
 Partial defences, mitigates damages
Remedies
Damages (no apparent cap - Hill)
Injunction rare (to protect freedom of expression)
Readings
Sim v Stretch [1936]
P accused of owing money & enticing away servant
Would the words tend to lower the P in the minds of right-thinking members of society?
Test:
1. Is it capable of being defamatory? (q of law)
2. is it defamatory in this instance? (q of fact)
Williams v Reason [1988]
P accused of receiving money while writing a book (true innuendo of shamateurism)
Held: this is defamation
Hill v Church of Scientology [1995]
 Def alleges P misled a judge & breached orders during a trial
 Defence of qualified privilege not open to Def because it was not a fair nor accurate report just false allegations
 No cap on damages
Cherneskey v Armadale Publishers Ltd. [1979]
 Defence of fair comment unavailable: editors did not agree with opinion expressed in letter,
and no evidence to suggest that the authors of the letter submitted it in good faith.
 Dickson J Dissenting: argued that it was unrealistic to expect newspapers to only publish
opinions they agree with, and that imposing such a requirement could have a negative effect
on the “free and general discussion of public matters.”
24
Privacy







Not well developed / well defined. Why?
o Relatively a modern idea
o Somewhat dependant on personal attitudes & expectations - no clear societal consensus
o Need to balance protection of privacy & freedom in information or freedom of
expression
o Common law has been slow to recognize the intangible personal losses resulting from a
breach of privacy
o Hard to define elements of a privacy tort because privacy arises in many contexts personal & informational privacy
o Difficult to determine damages caused by loss of privacy
o In the past, less focus on protection of privacy & more of a focus on statutory
regulations of commercial & govt activities
Traditional response to infringement of privacy has been through other developed torts
(nuisance, trespass to the person, trespass to chattels, intention infliction of nervous shock)
o Disadvantage of doing this is that protection is incomplete, unpredictable, and uncertain
Now, indications that we are starting to get a tort of privacy:
o Misappropriation of one's name or likeness
o Liability imposed on unauthorized taping of convo, aiming of surveillance camera onto a
neighbour's yard - Ontario court even said it wasn't settled that there is no tort of
privacy in Ontario and it was time to recognize invasion of privacy as a tort
Support for a tort of privacy?
o s. 8 of Charter - protection against unreasonable search & seizure - right to a certain
level of privacy is entrenched
o Quebec Charter recognizes right to private life
o Other common law jurisdictions have a tort of privacy
Privacy acts in BC, Manitoba, Saskatchewan & Newfoundland
o Declares it a tort to violate wilfully, and without claim of right, the privacy of another.
o Actionable per se
o Prima facie, certain conduct is a violation: recording/listening to private conversations,
surveillance of others, etc
o A person is entitled to reasonable privacy in the circumstances
o Some balances in other interests - consent, legal authorization, reasonable police
investigation, reasonable news gathering, & publication of information either in the
public interest or fair comment on a matter of public interest
Very few cases in these provinces - eg personal investigations & surveillance are permissible
so long as a legitimate interest is at stake & the investigator is discreet and reasonable
Range of remedies: damages, injunction, orders for return of items taken during violation of
privacy, or profits accrued from violation of privacy
Readings
Motherwell v Motherwell [1976] (Alta CA)
 Def has paranoid condition constantly calling & mailing false accusations - brother, sister-inlaw, & father sue for invasion of privacy
 P's have valid claims in nuisance for the invasion of privacy
o Nuisance interferes with the comfort or convenience of living according to the
standards of the average man - this is applicable to the invasion of privacy
Hunter v Southam Inc. [1984] SCC
 s.8 protection against unreasonable search & seizure protects at least the right to privacy
25
The guarantee of security from unreasonable search and seizure only protects a reasonable
expectation – at times, will need to balance interests of govt & individual
 s. 8 can be read as granting
a. Freedom from "unreasonable" search or seizure, or
b. An entitlement to a "reasonable" expectation of privacy
 For these provisions of the Combines Investigation Act to be constitutional:
o Prior authorization for the search is required
o Whoever grants the authorization must be impartial
R v Dyment [1988] SCC
 Dr gives police Dyment’s blood sample after car crash without Dyment’s consent/knowledge
 s. 8 protects property but also privacy interests of individuals from search or seizure
 The line between seizure & finding of evidence is where the individual ceases to have a
privacy interest in the seized matter
 what is protected is people, not places
 This case: no search, but unreasonable seizure

26