What is legal policy?
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Table of Contents Introduction ...................................................................................................................................................................... 4 NUISANCE ........................................................................................................................................................................... 7 Tort of Public Nuisance ............................................................................................................................................................. 11 Remedies for Nuisance- applies to both public and private .....................................................................................................12 STRICT LIABILITY ......................................................................................................................................................... 15 Rylands v Fletcher..................................................................................................................................................................... 16 Fire ................................................................................................................................................................................................... 18 Animals ........................................................................................................................................................................................... 18 Conversion ..................................................................................................................................................................................... 19 Vicarious liability ........................................................................................................................................................................ 19 Product Liability .......................................................................................................................................................................... 23 Intentional Torts ........................................................................................................................................................... 24 Intentional Torts Overview ..................................................................................................................................................... 24 ASSAULT (Trespass and intentional torts) ........................................................................................................................ 27 Battery ............................................................................................................................................................................................ 31 Intention to Trespass................................................................................................................................................................. 33 Sexual Battery .............................................................................................................................................................................. 37 Intentional infliction of Nervous Shock .............................................................................................................................. 39 False Imprisonment ................................................................................................................................................................... 41 Malicious prosecution ............................................................................................................................................................... 43 Invasion of privacy ..................................................................................................................................................................... 44 Trespass to land –the tort ........................................................................................................................................................ 46 Trespass to chattels aka trespass to goods........................................................................................................................ 50 The Tort of Detinue .................................................................................................................................................................... 51 Defences – to trespass and intentional torts ....................................................................................................... 52 Youth................................................................................................................................................................................................ 54 Consent in the medical context .............................................................................................................................................. 55 Self Defence ................................................................................................................................................................................... 58 Defence of property.................................................................................................................................................................... 59 Necessity......................................................................................................................................................................................... 60 Legal authority ............................................................................................................................................................................. 62 Negligence – The Tort (Policy, History)................................................................................................................. 64 Donoghue v Stevenson (1932) ..............................................................................................................................................................64 Element 1 – Damage ..................................................................................................................................................... 66 Damage (the element) (the harm caused by the defendants negligent act) ......................................................................67 Whether damage is “proximate” ..........................................................................................................................................................67 Element 2 – Cause in Fact (aka Causation) ........................................................................................................... 68 Applying “But For”- Athey v Leonati..................................................................................................................................... 68 When “But For” does not work Material Contribution .............................................................................................. 69 Clements v Clements 2012 SCC 32 ......................................................................................................................................................69 Negligence - Element 3 Standard of Care ............................................................................................................. 70 Identifying the Standard of Care............................................................................................................................................ 70 Unreasonable Risk of Harm ....................................................................................................................................................................71 The Reasonable Person ............................................................................................................................................................ 72 Custom as a test of reasonableness .....................................................................................................................................................72 Statutory Standards and reasonable care.........................................................................................................................................73 Standard of Care for the young .............................................................................................................................................................74 Standard of care for the mentally disabled ......................................................................................................................................75 Professional NEGLIGENCE - DOCTORS AND MEDICAL PRACTITIONERS ................................................................. 76 1. STANDARD OF CARE FOR TREATMENT ......................................................................................................................................77 2. DUTY TO INFORM ..................................................................................................................................................................................78 Lawyers- Standard of Care ....................................................................................................................................................... 80 Third parties (who are injured by lawyers negligence) .............................................................................................................81 Gross or Aggravated Neg .........................................................................................................................................................................82 Onus and burden of proof generally ...................................................................................................................... 82 Multiple defendants/negligent acts – proof issue .........................................................................................................................85 Many possible defendants.......................................................................................................................................................................86 Element 4 – Duty of care ............................................................................................................................................. 87 Element 4 – General Concepts and history ....................................................................................................................... 87 If there is a general duty of care… ......................................................................................................................................... 88 …Unforseeable plaintiffs ............................................................................................................................................................. 90 Failure to Act, Duty to Act .......................................................................................................................................................... 92 General rule (nonfeasance) ....................................................................................................................................................................92 Exceptions: Misfeasance ..........................................................................................................................................................................92 Element #5 – Proximate cause ................................................................................................................................. 95 General Foreseeability Test- Hughes v Lord Advocate ...............................................................................................................96 Examples where damage was/not proximate ................................................................................................................................97 SO WHICH ONE IS IT? ...............................................................................................................................................................................99 Thin Skull .......................................................................................................................................................................................................99 Psychiatric Damage - “nervous shock”............................................................................................................................................ 100 Rescue – an issue of duty ...................................................................................................................................................................... 100 Intervening Forces .................................................................................................................................................................................. 101 Defences to Negligence ............................................................................................................................................. 104 Contributory Negligence ....................................................................................................................................................... 104 History and Development .................................................................................................................................................................... 104 Policy: Critique of stalemate rule, Why we have CC .................................................................................................................. 104 Reform of stalemate rule ...................................................................................................................................................................... 104 Current Law ............................................................................................................................................................................................... 105 Apportionment of fault and policy issues ...................................................................................................................................... 106 Seat belt defence....................................................................................................................................................................... 107 Volenti non fit injuria – consent to the risk .................................................................................................................... 107 Illegality - Plaintiff acting illegally…Ex turpi causa non oritur actio ..................................................................... 109 Dispute resolution ..................................................................................................................................................... 109 Government liability in tort ................................................................................................................................... 115 Government tort liability…easy bits ................................................................................................................................. 116 Government liability for negligence (not employee’s direct liability) ................................................................. 117 1. RTGDA – there may be a statutory exemption ...................................................................................................................... 118 2. Policy /operational dichotomy...................................................................................................................................................... 118 3. Proximity – as a means to deal with duty problem............................................................................................................... 119 4. Categories where duty has been established – no Cooper or Just analysis needed ............................................... 120 The tort of Misfeasance in Public Office ............................................................................................................. 120 Crown liability- lecture.......................................................................................................................................................................... 120 MISFEASANCE IN PUBLIC OFFICE- Lecture ................................................................................................................................. 122 TOP TEN LIST OF PRACTICAL POINTS FOR TORT LITIGATION WITH THE CROWN ................................................. 125 Review – public authorities ................................................................................................................................................................. 126 Negligence resulting in pure economic loss (H7) ........................................................................................... 127 General concepts ...................................................................................................................................................................................... 127 1.Negligent Misrepresentation leading to pure economic loss ............................................................................... 128 Aka “Hedley Byrne” application ......................................................................................................................................... 128 Policy ............................................................................................................................................................................................................. 128 1. Duty of care based on “special relationship” ........................................................................................................................... 129 2. Representation must be untrue or inaccurate or misleading.......................................................................................... 132 3. Defendant must have breached standard of care ( i.e. negligent) .................................................................................. 132 4. Plaintiff did, in fact, reasonably rely............................................................................................................................................ 133 5. Reliance was cause in fact of damage ........................................................................................................................................ 133 2. Negligent Performance of Services ............................................................................................................................... 133 3. Negligent Supply of Defective products or structures…that are DANGEROUS ........................................................ 134 Defamation ................................................................................................................................................................... 139 General Concepts...................................................................................................................................................................... 139 Tort of Defamation- Elements ............................................................................................................................................. 141 Element #1. What is defamatory?--> Objective Reasonable Person Test ........................................................................ 141 Element #2: Material must refer to plaintiff ............................................................................................................................... 142 Element #3: Material must be published (policy in here) ...................................................................................................... 142 Defences to Defamation ........................................................................................................................................... 143 2. Absolute Privilege ............................................................................................................................................................... 144 3. Consent .................................................................................................................................................................................... 144 4. Qualified Privilege (most common defence) ............................................................................................................. 144 Other Rough categories (examples) of qualified privilege ..................................................................................................... 145 Negligence................................................................................................................................................................................................... 146 Malice and QP ............................................................................................................................................................................................ 147 6. Fair Comment........................................................................................................................................................................ 148 Class Proceedings and Mass tort claims ............................................................................................................. 154 Damages ........................................................................................................................................................................ 155 Pecuniary General Damages................................................................................................................................................................ 156 Non-Pecuniary General Damages...................................................................................................................................................... 158 Battery............................................................................................................................................................................ 160 Vicarious Liability ...................................................................................................................................................... 161 Introduction Some terminology Tort - "a wrong” between two or more people "A tort is a civil wrong…which the law will redress by an award of damages. “ “person or persons” commits “a wrong” which results in “damage” to “other person or persons” the law/society has agreed should be “compensated” ◦ The question is, what is a wrong? Ethically wrong, morally wrong, accidentally wrong, recklessly wrong? ◦ What is a damage, how much damage does there need to be., what is the limit? ◦ Person could be several people or corporations ◦ What is compensation? Nothing can compensate if child has died. How much compensation Tort law is common Law, law is made by judges, it is not statutory. MOSTLY JUDGE MADE LAW ◦ Statutory law is different, passed by statutes from federal and provincial. Charter of ROF is a statute. Civil law - directed at relationships between individuals More terminology Generally – some confusion Damage ◦ Actual harm or injury (victim does not have to suffer actual damage for trespass to occur) ◦ the amount of money payable to the victim (victim is paid damages for injury suffered”) general, special, punitive damages You do not have to suffer damages for it to be a tort Man on the Clapham omnibus – reasonable person. A lot of tort law is what is reasonable, or what a reasonable person would have said. Even more terminology Tortfeasor – the wrong doer Plaintiff – the victim Defendant ◦ The tortfeasor ◦ DefendANt ◦ Defence - De – Fence Tort of negligence requires injury (some other torts don’t, eg Assault) Can have both a Civil and Criminal claim from the same event Criminal is a claim laid by the government/state, civil is a claim by a person WHAT IS TORT LAW? • Tort law determines what is wrongful behaviour by one person to another, and of that wrongful behaviour what should be compensable at law • Torts are civil (v. criminal) matters • Remedies are civil remedies: an award of money, or an injunction (not a fine, or jail) • There are many kinds of torts • Tort law mainly common law, not statute law • Hierarchy of law-making power: government-made law trumps court-made law. Charter and Constitution trumps both What is legal policy? The policy of ALL Canadian law contains • Conformity with Rule of Law, the Charter and the Constitution • Other principles, standards, interests or values relevant to the activity involved ( be it aircraft safety or criminal negligence or wills law or …. Elements of policy compete – and require balance • Evidence Act – apology legislation – evidence of liability v. resolution of conflict • Can’t apologize – could be used as evidence that you are liable (held against you) • But if you could apologize, could alleviate injury, make it easier to settle • In Alberta Evidence Act, you can apologize without it being admissible and held against you by court or insurance – balances competing interests of policy • Nuisance law – the right to enjoy one’s property with the right to freely use one’s land • Fatal Accidents Act – dead children and insurance interests • Fatal Accidents Act – when someone is killed by a Tortfeasor, there is no money that can replace them – tremendous loss and have to prove in court that you are sad • Also hard to quantify “loss” from death (lost wages, etc), so Fatal Accidents Act says $25,000 for dead parent, $75,000 for dead child, no longer have to go to court • Policy factors change over time – law might need reform • Women and children as property • Jactictation of marriage (pretending to be married to someone) • Privacy law - just confirmed in the last year that nowadays much more potential for invasion of privacy than ever before Often best identified by what it is not • Family law is NOT about laying blame on parents, is about best interests of children • Tort law NOT about punishing, is about compensating • Charter protection of individual rights – NOT about social rights trumping individual rights BAD news • Conceptualization not precise • Complicated by context, history and politics • Search for perfection will drive you mad GOOD NEWS • Often obvious • Laws are relatively precise Why do you care? • “legal policy” = “soup” of principles, ethics, morals, social and economic interests, efficiency, effectiveness behind a law • One cannot know law unless you know the underlying policy. • Knowing tort law involves knowing what torts are and why they became torts. Practical notes • Policy forms part of judges’ reasons for a ruling • Policy for statute law – found in Hansard, in political statements and cases interpreting statutes • “Policy” aka principles, values, morals, reasons, motives, considerations etc Tort Law Policy Bottom lines • All human activity involves some harm and conflict • Society wants to minimize harm and, where it occurs, restore order • Tort law addresses certain reckless, careless, unintentional activities • Function: How does it do this? • Values: What acts of are “worthy” of being torts? Functions 1. Compensatory- makes person whole again – if tort law was completely compensatory, it would ignore fault (who cares, someone just need to pay the victim) 2. distribution/allocation of risk- there is a business and financial cost to torts 3. general deterrent /normative/ corrective justice1. General: if you are going to get sued, you will avoid that behavior - pain 4. specific deterrent /specific restorative vindication/retribution / punishment ( limited) restorative / appeasement/ 5. efficient dispute resolution ◦ Efficient dispute resolution – lawsuits cost money – so encourage people to settle without suing (peaceful settlement) 6. "ombudsman" - social action, strategic use of legal action to force change ◦ Values: What acts of are “worthy” of being torts? Most human activity is not wrong Some activity is wrong, but not compensable Some activity is wrong and compensable - tortious!!! Why compensate? ◦ When loss is quantifiable ◦ Causes weakness that could result in future loss ◦ Significant impairment ◦ Harm is actually compensable ◦ To encourage/support other policy ends – eg deterrence What Tort Law is Not Contract law - private, temporary mini legal systems govern a shared activity. Contract sets the remedies ◦ pre-existing relationship – different from tort law (there is overlap though) Trusts law/ fiduciary duties/equity – harm arises due to a breach of trust/fiduciary obligation. ◦ Remedies are largely based on “equity” v. “legal” jurisdiction of court. This distinction is losing relevance.) Torts NO need for pre-existing relationship / contract /fiduciary relationship Lots of overlap with other areas of law Criminal law - the relationship between individual and society ◦ Wrong against the public peace ◦ Constitution - allocates criminal law to federal, civil law to provincial governments ◦ No time limitations to bring action ◦ Victims not central to the action ◦ Tort law is between two specific individuals, criminal is the relationship between individual and society (wrong against an individual vs wrong against public peace) ◦ No time limitations in criminal, victims not central to the action Liability/obligations set mainly by statute ◦ Eg Family law, wills and estates, business law, intellectual property Compensation Schemes/ Allocation of liability ◦ Let the loss fall where it may – no compensations ◦ Divide the loss between parties – 50/50 based on no fault, or base it on fault ◦ Strict liability (all loss paid by person who triggered harm) ◦ Society/gov’t bears the loss – social assistance programs ◦ Private insurers – mandatory or voluntary Alternate compensation schemes ◦ Motor insurance – no fault in Mb, BC, Sask ◦ In Alberta, there are caps (limit on amount paid for certain injury) – fault based ◦ Workers Compensation – one of the biggest torts was employee getting injured at work suing employer, now can’t do that due to workers comp Path of a tort o Have to prove all elements of tort are there eg negligence have to prove relationship in some way and harm, harm is proximate (due to the negligence) – on the plaintiff to prove this o If an element is not satisfied, no tort – defendant wins Defences: Justification, Out of bounds, out of time o Justification – I have authority (eg ambulance or police car with sirens on) o Out of bounds – what is claimed is not within the boundaries of tort (too remote) o Out of time – limitations act Limitations Act o Is for all civil claims (tort, contract, fiduciary) o Section 3(1) – 2 years after tort or 10 years after claim – defendant immune from action o So you can’t hold threat to sue over someone’s head for so long o What’s the point after 10 years? Obviously your life has been fine since you haven’t brought it forward o Harder to prove after a long time o Gives plaintiff a bit of a grace period to wait for damages to mature o Limitations act is a defence (on defendant to raise it) Defence - Limitations Act is a defence Civil - Applies to civil actions only Concealment – limitation period suspended during time a defendant fraudulently conceals injury Disability - limitation period suspended during any period the claimant is under a disability Survival of Actions Act o Used to be if you were killed by a Tortfeasor, you couldn’t sue o Changed it to if you die, your tort claim is your property and you could still sue (you could also still be sued) NUISANCE Nuisance Act of occupier of land results in unreasonable interference with the neighbour’s enjoyment of property Remedy: money, in amount based on amount of actual harm and/or an injunction Overview- Private nuisance Unreasonable interference of an indirect or consequential nature with occupiers use or enjoyment of his/her land (not your items) Private nuisance is a civil wrong- it does not matter what if it harms other in the community Tortfeasor not necessarily neighbor/adjoining land owner It is reasonable that the interference be tolerated by the occupier Occupier must have interest in the land IT’S THE RIGHT TO ENJOY YOUR LAND Most nuisance actions involve intentional/reckless act, though in some cases of accident (especially with municipalities), the court will spread the loss Damage must occur in order for nuisance to exist Material damage is generally considered unreasonable- without any other conversation, if you harm their crops or weaken their home, that is always unreasonable Damage to the senses, to convenience and enjoyment, what is reasonable depends on considerations including (but not limited to) o Nature of the neighborhood o Delicacy of the plaintiff – is the plaintiff particularly susceptible to smells..SENSITIVITY!! o Utility o Frequency o Degree of harm Overview- Public Nuisance Actual or potential interference with public conveninance or welfare Criminal or civil (tort) or both Attorney General brings the action (you as an individual can rarely start a claim), except o Private individual can only sue by relator action (not very common) OR o If hey had suffered unique damages No strict liability- must be caused intentionally/negligently There are many forms of statutory nuisance Usually the remedy would be an injunction + compensation to the public (government) Public nuisance is more random- refers to a group of criminal and quasi-criminal offences, which involve actual or potential interference with the public convenience or welfare no obvious connections to land Individuals can petition for public nuisance, but cannot start it, has to be done administratively Even if something is a public nuisance, you can still frame it into a private nuisance by proving the damage is special to him Criminal Code s.180 You must have pretty clear intention (mensrea) and a higher degree of harm or damage required by bringing a public nuisance (cant have it be willy nilly) o Also need to have an identifiable group that is affected Overview private and Public Remedies Money Injunctions o Injunctions can be strict and immediate, or have terms that say “you must stop in 3 weeks” or “once something is over” Abatement/self help Defences o statutory authority o contributory negligence /fault o acquiescence/consent /estoppel o statutory immunity o limitation period o third party acts o prescription and adverse possession History of nuisance? INSERT TOCK AND PUGLIESSE PUGLIESSE What difference does it make if Action is useful? They do look at the greater public good, but not an actual solid defence Legal? It doesn’t really matter if its illegal or legal, it’s the impact what counts Done with reasonable care and skill? Again, not a defence for act and nuisance. Has to t obe taken into account but not too much Tock What does it say about: Definition of private nuisance? Act or ommision where someone is unlawfully disturbed in an unreasonable manner Material damage v. interference with enjoyment? Almost 100% of the time if there is material damage, it will be a nuisance If there is some interference with enjoyment, it could be more acceptable What is material damage? Serious physical damage that is unreasonable If it is proven, don’t have to prove other factors as much Is this a hard and fast rule? There is an argument to be made that sometimes the court draws the line too far What about relationship between plaintiff and defendant? You don’t have to be neighbors for it to be nuisance. You don’t need to have adjoining land. Ratio decidendi: If there is substantial material damage, courts will usually say it’s a nuisance Russell Transport Material damage v. interference with enjoyment? Material damage again is important “ineffectual defences” It doesn’t matter if you are the one who came to the nuisance (or if previous landowner didn’t complain) Benefit at large (not a defence, but taken into account) That is the only sutiable place (will be taken into account) Acting alone would not have caused nuisance How are use, care, utility taken into account? Would it be different if… If orchids were grown, that would be super sensitive If the damage had been noticed right before, then it will probably not matter. They will take into consideration if you go into it knowing there was a nuisance. Ash hadnt damaged the car but just bad smell and disturbed employees: No material damag. Only someone who has interest in the land can sue. What elements limit a plaintiff’s right to recover? Reasonableness of the use of which the property The character of the locality Any special insensitivities (note 2 at 594) Nor-Video What are “proprietary interests that deserve to be protected” Business enjoyment business use What does it tell us about applying the factors in determining reasonableness? This is not about malice And this had to do a lot with public utility Ontrario Hydro also was backed by legislation Ontario hydro could have also changed the way it built it Whether it was foreeable? Is foreseeability required? Not for nuisance, yes for negligence What does it say about sensitivities? Ontario hydro argued that norvideo was super sensitive A couple of questions ◦ Does it matter at all if man came to nuisance or nuisance comes to the man? doesn’t make any difference in the analysis ◦ In terms of foreseeability, it will be taken into account if it was unreasonable or not doesn’t play into account if it’s a nuisance or not ◦ In nor video- the damages were small because most of the harm was on the customers, but they could not sue because they had no interest in the land Canary Wharf – shadows and radio waves House of law cases are persuasive Is it nuisance to block light, air flow, TV signals? ◦ Answer was no, they were not ◦ Policy that would be in line with canary wharf: reasonable to expect buildings to go up Distinguish Nor- Video from Canary Wharf ◦ Main distinction: There was no fundamental change in the operation or the enjoyment of the surrounding area ◦ If you built building in a way that that fundamentally interferes with the use or enjoyment of land, there is a much better case for it Limits to private nuisance No nuisance in: Simple interference with view or air flow – no fundamental change to plaintiffs use of land Plaintiff’s connection to land- must have a legal connection Delicacy of plaintiff- delicacy and sensitivity limits you Damage- there has to be damage for private nuisance Accident- not a nuisance Who can sue? ◦ Narrow view: title holder ◦ Mid view: Legal interest in the land…renter, leaseholder, license to hold a land, reasonable connection to a land Motherwell case Devon case: kids can sue ◦ Broad view: Reasonable interest/connection to the land Citizens of Edmonton ( businesses and homeowners ) v. Cleanit Greenit Giant smelly compost causing smell to the neighbors ◦ They are trying to mediate it Issue: is this a private nuisance? ◦ Is it public or private? In private nuisace, the business owners and homeowners could sue For public nuisance, the entire community could sue or sensitivity, health, morality Nobody can sue for publc nuisance unless they have a very different damage Standing to sue? ◦ Business owners who were losing employees, and homeowners Damage? ◦ Employers are leaving the businesses, and owners og homes are affected Unreasonable interference with use or enjoyment? ◦ Frequency of the complaints recently ◦ Homes should be able to open their windows ◦ They could say that it was not forseeable ◦ Utility of what they were doing ◦ They have taken reasonable measures to try and stop this Defences Defences and remedies are the same for both public and private nuisance. Remedies ◦ Damages ◦ Injunction ◦ Abatement Defences: ◦ Limitations ( 2 years after it was discovered, or 10 years after it happened) ◦ Statutory immunity- particular agencies are immune from liability, especially government ◦ Statutory Authority- if the statute says you can do whatever your doing that’s causing a nuisance, oure not liable if the statute authorizes everything you have done ◦ Contributory negligence/fault- there is a contributory negligence act. It says if you contribute to our on tort, you cant sue as much ◦ Consent- consenting or acquiescing for a long time will make courts say no. Cannotbe ok with it for 5 years and then suddenly sue Tort of Public Nuisance Tort = private wrong Public, aka common, aka criminal nuisance = public wrong Therefore: Public, aka common, aka criminal, nuisance is not a tort Public Nuisance is a wrong against all of society, individual cannot sue Common, aka public, aka criminal, Nuisance Unreasonable interference with public’s interest in health, safety, morality, comfort or convenience Crime, quasi crime – not a tort Attorney General brings court action for public nuisance (either directly or by relator) 2 ways: 1) government, represented by attorney general Or 2) someone can volunteer to take take up the action Remember the history lesson? Can also be a private nuisance When? Interference with a property interest. So… where’s the tort? A private (tort) action in public nuisance A public nuisance plus Plaintiff suffers unique, substantial and specific damage If it particularly impacts someone else’s enjoyment of property and its not something to common to everyone Private person can sue for the tort of public nuisance only in this instance The special damage can be private nuisance When? You actually sue for public nuisance Tort of private nuisance is different then a tort of public nuisance A tort of public nuisance is a public nuisance + plaintiff suffers unique damage. Its not about the public at all, it has one small feature. Eg. Dam built- affects people travelling down river= public nuisance Dam floods peoples lan-private nuisance Olympics swimmer can’t swim-no property interest but they can sue because she experience public damage in relation to the public nuisance (this is private action in public nuisance claim)- the public nuisance has to exist in order for this to happen. If everyone was an Olympics swimmer- you can argue that it is public, the “special” circumstances” wanes. Do the citizens have a right-are they able to swim, fish? If everyone is affected, and they are expected to enjoy life without the nuisance, then they have a right. What amounts to Nuisance? Unreasonable interference causing damage Personal injury (tangible or intangible) Damage to property Economic loss or Inconvenience and delay What is unreasonable? Pollution Nature of the neighborhood Courts will consider “if taking Who can bring court action for Public nuisance … Attorney General For public, criminal, common nuisance Individual Plaintiff For tort, if public suffers public/ common nuisance and plaintiff suffers unique damage Hickey v. Electric Reduction co of Canada Company released toxins into water and affected fishermen Issue: is there a tot here, or right of private action Court said there was no specific harm Because right to fish is a common right, and everyone suffered in this way. No Remedies for Nuisance- applies to both public and private 1. Injunction 1. Interlockury injunction – an injunction for a little bit 2. Mandatory injunction – stop right away 3. Injunction has some time to set into plav 4. Appleby v Erie Tobacco preffered injunction because it is about stopping the nuisance, not about getting rewarded 5. Convenience/utility v risk of harm Courts will weigh these two to decide. They don’t want to stop a business, but they will balance out both. They will look if the utility of the company is more important than someone being harmed 2. Damages Tort law allows damages (money payments) where there is personal harm (intangible or tangible), here there is a fatal accident, where there is economic loss (big debate on how deep It goes) Punitive damages- when behavior is unruly, malicious they will use punitive damages Nominal damages- Display its displeasure, or tort was commited but no really bad damage It will take into account insurance and collateral damages There is also some duty on the victim to mitigate 3. Abatement as a remedy, the ability for self help, you have the right to go on someones propeprty to try and mitigate the property Defences Statutory immunity – defendant creates nuisance, but statute says he is immune from the action 1) industry is going to build this, and they are immune 2) Or any activity is not suable You either immune the activity, or the activity itself Statutory authority- defendant creates a nuisance, but was authorized by statute to carry out that act Court will always interpret statute against defendant If a statute protects all of the actions, then it is a nuisance If it is only a part of the actions the company did, not a full defense If you can find a way to say there was no other way to this act by carrying out a nuisance, and it was authorized, it is a complete defence Contributory negligence- contributory fault Arises when you do something that increases or aggravates the harm Alberta contributory negligence act- when there is a fault of two or more people, damage to one of them, ten liabaility will be spread among everyonw If you come to the nuisance, is not a defence Estoppel/ consent/ acquiesce Plaintiff consented Doing nothing is not ok rd 3 party acts If a 3rd party commits an act on someone elses property If you knew or or orught to have known they were on your property, you may be liable for abit Acts of god Mother nature is really mad. Limitations actions- limitations act in AB, othr statutes may provide limitation that are shorter Property rights Nuisance for so long that they have actually obtained a right to do it. Adverse possession. Trespass torts Trespass An intentional act that directly results in entry on to another's land, threat to a person, touching a person, confinement of a person. No actual damage need occur. ◦ Assault: intentional words or actions directly resulting in a perception of imminent harm ◦ Battery: an intentional act directly resulting in touching another person ◦ False Imprisonment: intentional act that directly results in complete and unjustified physical confinement – either real or perceived. Negligence There is a legal duty to be careful toward those we foresee could be impacted by our actions. In breach of that duty, the tortfeasor acted in a way that was careless about the consequences. The action caused harm to the victim. There was a reasonable causal connection between act and harm. Defamation The tortfeasor publicly said or wrote something that could result in hurt to the reputation of the victim or cause her to be the object of hatred or ridicule. It does not matter that harm was not intended. It does not matter there was no actual harm. STRICT LIABILITY What is strict liability? Liability for any harm arising from an enterprise/activity – regardless of cause This means accidental, unintentional Not intentional causes He who operates the activity pays for all damage emanating rom it Not a tort allocation system A means of damage/risk allocation. No requirement that fault be proven. NO PROOF of FAULT NEEDED FOR LIABILITY. You are liable right away, regardless of fault AKA “Absolute liability” Strict liability in Canada (Where it is found) Rylands v. Fletcher (nuisance) – escape of a substance from property, where the use of the land is unusual. You are strictly liable for the substance escaped Vicarious liability – certain employers liable for certain acts of employers without proof of fault of employer. ( may need proof of fault of employee) Employer will vicariously liable even if employer did nothing wrong. Public policy says someone needs to pay, so employer does Workers Compensation schemes - plan liability without proof of fault. Products liability - industry liability for kinds of risk/damage without proof of fault - very limited in Canada A lot more strict liability in the US, can bring action in a case more easily A lot of legislation in Canada though, which protects consumers, and can use the legislation to sue, instead of this Animal cases If you have lion on your property and it escapes, you are liable Fire cases Conversion Trespass Fault- (no requirement of it in strict liability) Nuisance – unreasonable action causing damage In nuisance you have to prove fault. Unreasonableness use of property for example. Negligence – failure to live up to a duty of reasonable care, carelessness Trespass, defamation –intentional actions that interfere with person or property Intentional act, and there will be a blameworthy fault All these need fault or intention ^ Two doctrinal approaches When should strict liability be applied? Narrow – instance by instance Go very slowly and fit in each case as it relates to previous law Broad – e.g. U.S. And some Commonwealth cases Strict liability for damage caused by carrying abnormally dangerous (ultra hazardous?) activity Any ultra hazardous activity should be subject to strict liability No real predictability in defining whether the activity is super hazardous Policy considerations (pg 7 to 9) Moral aspects of behavior…? The more selfish the behavior, the less of benefit it is to the community, the more likely you will see strict liability Historical development…? Industrial concerns were way different hundreds of years ago. Changes in social values Convenience of administration…? It is inefficient to deal with the fault system Capacity to bear loss…? more likely a big company will be able to bear a loss. Also more able to spread cost in a different way, more able to spread the loss of production Prevention and Punishment…? It is normative and descriptive, it is a slap on the wrist. It is a carrot and a stick. Rylands v Fletcher What happened? Fletcher was harmed when defendant built dam and flooded fletchers mine. NOT NEGLIGENCE: Law of negligence was such that you needed a privity with the contractor, you needed a contract with a contractor (which changed in 1930). That’s why this was not negligence NOT NUISANCE: Anything caused by gravity was not nuisance (back then) Court of Exchequer – Blackburn J Said anything that escapes, you are liable House of Lords - Lord Cairns I agree with Blackburn if you are using your land in a bad way Elements of R v F Prima facie liability for property damage, and personal damage if 1. bring/accumulate something on to your property which is likely to cause damage if it escapes o what about car? o Do you have to know if it will cause damage if it is escaped 2. it escapes 3. causes damage 4. and the defendant is using land (and the substance) in a non natural – i.e. not ordinary way Non-natural use But these are the two concerns to non natural use: authorized by statute and direct benefit. In this case, it was authorized. Legality and benefit. Legality and local use is good. Self interested is bad. Nature of degree of risk of activity (will be taken into account). Whether substance occurred naturally (likely to be more natural use) • …but Non ordinary use = non natural use (in accordance with time, place, manner) Used in Inco and rylands Considerations Legality Conformity with land use/planning Nature and degree of risk Self v. community interest Time, place and manner Or 2nd approach: anything that increases the risk of damage; ultra-hazardous approach Look at Tock (court in tock was split, but dominant position was that it was anything out of the ordinary test) Inco St Annes ( note 6 ) Gertsen (note 7 ) Wei’s Western Wear - Does it mean any risky behavior non-natural? Or does it mean risky behavior CAN be ok? - People don’t like that its so limited and try and stretch it. Escape - HAS to be unintentional Courts will not impose strict liability if it is intentional. Will become nuisance or negligence - Can be over a long period of time - Escape does not have to be forseaable for people to be liable - Escape is mandatory (Read v Lyons) Macmillan Land rights (not the rule right now) Simon looks at the actual thing - Nothing to do with land or neighbors ( Alridge) Racetrack where car hits people Follow’s simons view of escape the car was the thing and it left. - Does not have to be escape from your own property (Eckstrom) Truck Case: Escape of gas, sufficient to meet Rylands v fletcher. Other elements of R v F Personal damage Macmillan said you need property damage, you cant sue for personal damage NOT BEEN FOLLOWED But if you look at the alrdidge case, r v. f applied here. Applied to personal damage In regards to property and personal damage, both are covered under Ryland v fletcher. Relation to Property Intentional discharge (not an element) IF YOU INTENTIONALLY DISCHARGE SOMETHING-IT IS NOT RYLANDS v. FLETCHER Rylands v. fletcher not intentional Defences to R v. F Same as defences to nuisance: - Consent of plaintiff – has to be absolutely clear. If it is implied, then courts will try and avoid implied consent - Default of the plaintiff – contributory fault - Act of God - have to really serious, really unpredictable claim - Deliberate act of third parties. – provided it is unforeseeable. If you know there is a high probability someone will tamper with property, you still may be held liable - Legislative authority – someone is authorized- Will go to great lengths to make sure it was exactly the same, and that there was no other practical way to do it. They will be very strict - Statutory immunity – “ anyone who engages in this cannot be sued” - Limitations Smith v. Inco Facts: Brought nickel onto the land, nickel in soil around the plant was higher than average. Plaintiffs said this hurt the real estate values. What does this case say about Ultrahazrdous activity, and whether it was a non –natural use of land? It was taking the narrow approach. It was a more focused look on strict liability. Courts shouldn’t go into policy in this case, and what should be concerned ultra hazardous. Courts said Inco was not a ultra hazardous activit Escape was unintentional and over a long period of time Non natural use? Fact that an activity is authorized by statute means it is natural. Use of the direct benefit of the community is not natural o Courts said inco plant was not there the benefit, it provided jobs, but not a DIRECT benefit But these are the two concerns to non natural use: authorized by statute and direct benefit. In this case, it was authorized. Legality and benefit. Legality and local use is good. Self interested is bad. Nature of degree of risk of activity (will be taken into account). Whether substance occurred naturally (likely to be more natural use) Foreseeability? Courts said the rule is: if there is any foreseeability requirement, it is not foreseeability of the escape. The escape does not have to be foreseeable. ESCAPE DOES NOT HAVE TO BE FORSEEABLE There is strict liability for damage to property or persons arising from certain activities o specified in common law o or statute o (not a general theory, not any activity can be used) Fire Law predates Rylands; Is not Rylands For fire, you can sue under rylands. Does not matter how the fire started, unless started by 3rd party or act of god, strict liability applies. Fire limitations act- you are not responsible for accidental fires, but interpreted accidental is super strict and narrow (only if fire was spontaneous) It still applies, but hard to use and is too narrow What you are left with is pretty strict liability for fires Now the plaintiff has to prove defendant started the fire Animals Law predates Rylands; Is not Rylands - Strict liability for lions tigers bears if they escape o Regards to escape, if a 3rd party interferes with your control , there is no liability. - Mentra urea-if you know your dog or cat will be dangerous, you are going to be held liable o For wild animals it is assumed it is dangerous o For a dog or cat, plantiff has to prove defendant knew the dog or cat was dangerous, and there will be strict liability Conversion Strict liability tort - also intentional. A positive and intentional act of interference with a person’s right to possession of chattels (personal property other than your land) Possessory interest, not ownership Conversion is in a class of torts called intentional torts…There must be intention to do the act. Doesn’t matter if your intention is bad or good. On that basis, it means it is strict liability. No difference in liability if you are well intentioned or have bad intentions. The act can be purely innocent. No need to prove fault, but must prove intentional N.B. to financial institutions – applies to intangibles Policy – why is this law fair? It’s about stuff Your possessions were a big thing, and interference with it was a big deal Statutory limitations: e.g. these squeeze down conversion law for business efficiency Banking legislation Sale of Goods Acts There is an implied warranty in every sale of good that someone who sells something, is legally able to sell so Factors Acts -mercantile agents (handle property for sale, consignment), if the agent is holding property and sells it to an innocent purchaser, the chain of harm will stop at the innocent purchaser. Elements denial or serious interference with possessory right (ex-a right to have a pair of shoes, or a tractor, and have control over it)- not necessarily ownership right positive act (not a tort of omission, not passive) goal of the act must be changing the possessory right Conversion – examples Portage Credit Union Ltd. v D.E.R. Auctions Ltd. 1994 CarswellAlta 8 (Alberta CA) Boma Manufacturing Ltd. v CanadianImperial Bank of Commerce 1996 CarswellBC 2314 (SCC) The accountant forged and created a bunch of cheques, and desisted on her bank, and then drawn on BOMAS account, whose bank was cibc. CIbc accepted the cheque, and deposited them into the evil womens. Cibc was well intentioned but BOMS as entitled to the funds , and CIBC should be held liable because they were in control Vicarious liability Employers liable for the tortious acts of employee acting within course of employment NOT A TORT, but it’s a law distributing loss Employer Need not be complicit Regardless of due care and attention History… employer liability Up to 15th century – respondeat superior (master and servant law) Then “command theory” not terribly helpful Early 1700s “implied command”- if a servant did something that was a tort (tortious conduct), courts would go to great ends to imply that master told him to do it 1800s – “in the course of employment” right now, its employer is liable if employee does it in the course of employment 2000’s – beyond employment? Policy… why is this fair law? she who creates the enterprise that creates the risk should carry the cost of the risk. OR he who benefits takes the risk. availability of remedy to the victim/ “deep pockets” enterprise has better ways to handle the cost and liability ability to carry the cost – via prices, insurance, taxes etc deterrence and prevention hire better workers, try and reduce liability General Tort liability He who is at fault is liable for it. Personal responsibility for our unlawful, wrongful acts. VL Policy Historic Control Master benefits from servant's work Revenge Care and choice – responsible for choice Identification Evidence – easy to put it on master because hard to prove Indulgence – if you are rich of enough to have a master, rich enough to pay Danger Satisfaction Modern Cost internalization, as either a matter of (a) efficiency, or (b) fairness Loss distribution and absorption, as either a matter of (a) deep pockets, or (b) loss distribution; Deterrence; corrective justice Have to have a feeling that it is fair to impose VL because it fits with certain policy objectives. Bazalycourt goes to great ends to make sure results conform to policy objectives of deterrence and spreading risk and employers being responsible for risk. 3 elements of VL 1. Employer/employee relationship ** 2. Acting in the course of employment 3. Imposition of vicarious liability in the circumstances must conform to the policy purposes of this law 1. Employer/employee relationship** Does not include … parent/child relationship, union/ employee relationship, independent contractors, franchises/franchisees What is the test for employment relationship? Sagaz Whose enterprise is it? Control test (control of actions)-> traditional test. What degree does the employer control what the person does Bought own equipment or not Was the business run on his own account Workers opportunity for profit Degree of financial risk Whether he hired his own helpers or not Whose locations is it performed now Note on page 564 even when you borrow servants or employees, you are liable The list is open!!! Remember the** ? Some independent contractors have been liable because policy considerations were fulfilled. 2. Acting in the course of employment The original test 1. employee acts authorized by employer OR 2. wrongful / unauthorized mode of doing act authorized by the master Limitations of this test Employees never authorize intentional torts No employer ever authorizes intentional abuse “Strong connection test” – 1999 Bazley v Curry 1. Relationship between the wrongful act and auth’d conduct – does it justify vicarious liability ? • Yes if there a significant connection between creation of risk and accruing wrong 2. A strong connection between what the employer is asking for and the wrongful act 3. Connection is determined by looking at • Opportunity • Link with employer aims • Related to intimacy, conflict if there is more intimacy, there is more liability and risk • Power balances -> between employee and the victim • Vulnerability victim • Time and place??? page 567, middle the time and place can be held relevant though. Opposite can occur though, can negate connection if you don’t have time or place Wrong must sufficiently connected to the wrongdoer’s assigned tasks that the wrong can be seen as a “materialization of the risks created by the enterprise” (KLB) How did this play out in Bazley? It was definitely connected because his job gave him the time and place to do it. It was part of his job to be intimate In Jacobi? There was no VL because it occurred in his own home, there was no connection. It was not part of his job to tuck them in or touch them, or dress them, Everything he did he did on his own. Hammer? Hammer case: it was not part of his job to touch or interact with children, so not sufficient connection between wrongdoing and his authorized job (cleaning the school) In KLB? KLB: No VL, because foster homes are supposed to have a certain amount independency. Looked at the connection test, and the degree of control. Note: what did the court say about precedent in Bazley? We are going to apply the strong connection test if there is no precedent for these situations So first figure out if there is a precedent, then if it’s a no, then well consider a connection test 3. Imposition of liability must conform to policy purpose Tests not applied mechanically, but in consideration of the underlying policies of fair compensation and deterrence (Bazley) Other examples – Charitable and non profits can be vicariously liable Including independent contractors? Small business? Liability for children in care… Recourse for children in care who are abused History - institutional abuse Not particularly heartwarming history, abuse was rampant Alternate strategies Mass settlement (residential school settlements) Ex gratia payments – movement to not go to a lawsuit at all and just pay them Parens patriae and alternatives to money maybe suing is not the best idea Avoidance Other points Must be tortious activity Have to have a definable tort to be charged with VL What if employee is immune from suit? What If there is legislation protecting them? If it is a tort, they still may be liable Limitations would apply though, for tort and vicarious liability More than one employer 2 employers can be held vicariously liable Employee liability Related rules Non delegable duty You can get someone to do the work for you, but you cannot ditch the liability What kind of criteria do they use? “The duty may be a duty to ensure care is taken. “ usually found in interpretation of the underlying statute. Lewis v. Govt of BC Hire contractors to bld roads. Rocks fell down and injured lewis, and the independence contractor was responsible for inspection, damages. Lewis sued BC, but BC said no, this as an indepeendant contractor, so case closed. BUUUT, this was a non-delegable duty, meaning some things cant be delegated to a contractor, so govt is liable Hammer and foster parent cases School boy said school board had a non delegable duty over the janitor Statutory vicarious liability Drivers and car owners Owners of cars are liable for any drivers that use that car Other - legislation Product Liability Canadian American Based on contract and tort (negligence) “fault” based - at least in part Plaintiff proves either 1. There was a contract or warranty of safety and it was breached or 2. Negligence (failure to conform to duty) Based on strict liability – not fault based Plaintiff proves there was damage from the chattel made by the defendant The thing speaks for itself “res ispa loqitur” Americans have also included implied warranty in law regarding strict liability Each party has to pay its own case, don’t have to pay for the other side if you lose Also saw development of torts now also deals sellers and distribution for defective products Jury awards bigger damages Dangerous chattels – Canada Based on contract law AND Tort law, can go either way Contracts or warranties Look at terms of contract between parties – what is the agreement? Look at statutory warranties ( e.g. Sale of Goods Act) Act sets out particular warranties that are included No fault need be proven, just breach and damage AND/OR Negligence Two kinds of products Inherently dangerous - poison Herbicides, blood Becomes dangerous – design, manufacture or delivery Because it was designed bad, manufactured bad, or became poisonous (meat) Negligence and dangerous chattels ALL PRODUCTS (Products that become dangerous /dangerous per se) Duty of care to anyone who may use the product Arising in 1932 – Donoghue v. Stevenson Before 1932 you had to have some privity or some sort of contract/relationship PLUS Products dangerous per se Ultrahazardous Duty of care almost amounting to strict liability was been law pre D v. S Exception to the old privity rule All you have to do is use it and prove harm Strict liability or the contract/negligence model? Which is fairer? Klar says it should be a strict liability Consider Moral aspects of behaviour… selfish or public benefit? Historical development… law needs to adapt to change Convenience of administration… efficiency of remedy Capacity to bear loss… and provide remedy Prevention and Punishment… In Negligence Its about the consequences of your action You have a duty to other people to look out for them and not harm them by your actions Did you take care? In strict Liability More about your action It doesn’t matter if you took care, you are still responsible Intentional Torts Intentional Torts Overview What torts are we talking about? • Trespass to the person • assault • battery • generally • sexual wrongdoing • False imprisonment • invasion of privacy • Trespass to property • to land • to chattels • simple trespass to goods • detinue • conversion Legal Evolution - three original writes of trespass replaced trial by ordeal - in those days were compensated for direct harm only - strict liability for these rites of trespass - these rites were inefficient so writes ‘on the case’ developed—had ability to sue for indirect harm (inability to tend crops) - also saw the development of fault based liability - out of actions on the case developed both trespass actions - started to evolve independently - write system abolished in 1700’s, opened up ability for courts to develop new torts Values and policy • Inviolability of personal space and body • Inviolability of property - intentionality and discussion about whether you intend the consequences of your act is increasingly a discussion in these torts - in 13 C it was pure causation - insurance is a big deal—insurers don’t insure for intentional acts - if one can show they were negligent or reckless insurance will cover it - difference between direct and indirect harm back in 13 C only compensated for direct harm - Frost Case—court acknowledged that trespass should be limited to direct harm but they go beyond to award indirect damage - there is still a distinction between direct and indirect, you are compensated for all harm linked to certain event within a certain category - harm to body/space, financial (income, damage to property), mental suffering and stress, economic loss (loss of business) Intent: Plaintiff doesn’t have to prove intent - can mean two things 1) Intent is not an element of the tort - (Rylands v Fletcher—stuff released from property, doesn’t matter what actual intent of tortfeaser was) OR 2) tort does require intention - plaintiff has to prove basic element (in battery, plaintiff proves invasion to their body) - this basic element creates an assumption of unlawfulness - the onus shifts to the defendant to prove that there was no negligence and no intent Continuum of Intent - applies to your intent visa-vie the consequences of your actions - Accident (Shoot, reasonable to believe that no one was there) Careless/ Negligent (shoot, without bothering to check) Deliberate (shoot knowing someone was there) Terminology Warning: Intent: - Garette v Daily - need to be careful to distinguish which form of intention we are talking about - Not motive: intent is different from motive - Not Volition: should also be distinguished from volition—conscious awareness of the act that you are taking Strict vs absolute liability - some use it in the same way - absolute liability, also causation based liability liability for all things that happen from your actions - strict liability can also have the same meaning but can also mean that you aren’t necessarily liable for accidents Negligence - two meanings of negligence 1/ total or partial inadvertence towards the consequences of ones conduct - 2/other meaning of negligence is carelessness—not necessarily talking about tort of negligence Intent: Transferred Intent: Carnes v Thompson - defendant attempts to attack farmer with pliers, strikes wife by accident instead - court find defendant just as liable, intent is transferred to another person - Donald shoots at Peter to frighten him, hits him by accident, what tort liability has arisen? Trespass Basley v Clarkson - Clarkson mowed grass on Basley’s land by accident, trespass to land despite it being a mistake - illustrates where line for liability is—there is liability for mistake on land trespass Young v Arneyk - went onto Young’s property and cut down trees thinking it was his property - elements of tort of trespass to land—as long as you establish they went onto your land you prove tort, don’t have to prove intention Goshen v Larin - Different treatment of intention - Referee knocked down plaintiff by accident when leaving arena: courts found him not liable - courts said in a case of battery—if one does not inflict injury intentionally than he is not liable - difference between trespass to land and battery - reverse onus kicks in—plaintiff has to show that he was wrongfully knocked down - defendant has to prove that it was not intentional Volition and Mental Capacity - volition is not your intent, it is your voluntariness, your consciousness of your action - external forces can remove volition- its not voluntary, its not your conscious act (if someone forces you to do something, not volition, because its not your conscious act - if you don’t have volition you cannot commit a tort - external forces can remove volition • carried onto someone’s property • threatened into going onto someones property • drunkenness - Internal forces: sleepwalking, immaturity, mental disorder - – Immaturity , what about for children who don’t have volition, are the parents liable? When a child commits a tort, should the parents or society bare the loss? Also what is the cost to a family, if the family - is tortious liable for there children. Policy issues. Is it fair/appropriate for family to bear the costs/burden of debt. Could you build an insurance system that can ensure against these losses? These are some policy issues to consider. – Mental disorder- baby dragging case. 2 innocent parties, one who bears loss is the one who did the deed. How much liability does a 65 year old mother have over a mentally challenged 30 years old son/daughter? o Immaturity? - Tillander Policy? o Mental disorder? - Lawson v. Wellesley Hospital, Gerigs v Rose Test Inability to know the nature and quality/”consequence” of the act Regardless of understanding of the moral nature WAS THERE VOLITION? • Test –For Volition-if you know the nature (you know what you are doing), of the act, doesn’t matter whether you know whether it is right or wrong. Sciz people, if voices are telling them to swing the axe at a head, and they know, you have volition. If you don’t know that you are swinging the act, no volition. We are not talking about the moral aspect of consequences, more so the physical aspects. Motive (right or wrong) does not matter (you just have to know you were doing the act). • Inability to know the nature and quality/”consequence” of the act • Regardless of understanding of the moral nature ASSAULT (Trespass and intentional torts) • Differences in def’s for assault. • … The intentional creation in another person of a reasonable apprehension of imminent harmful or offensive conduct. … it can be said that assault is the creation of a reasonable apprehension of imminent battery. • The defendant’s conduct must have caused a reasonable apprehension of imminent harm. • … intentional creation of the apprehension of imminent harmful or offensive contact. • (1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. (2) An action which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm. Point 2 didn’t have a measure of intention. Point 3 didn’t mention whether it (the action) was reasonable or not. Point 4 as well. As well difference in the words cause and create. #4 combines assault and battery. #1/3- intention aspect #4 sub 2- act not done with intention is not included in the definition. If you are reckless about apprehension of harm, that is a different tort. They are only talking about deliberate intention here. Threat and touching are assault. Technically is Canada we have a distinction between assault (threatening someone) and battery (touching someone) You have to be clear that you are talking about physical harm/offensive conduct. Threatening to kiss/fondle someone these are offensive but not physical. Be careful about the creation…”I do something here, and another domino falls..” this is not the creation we are talking about. We are talking about a direct act . Policy and Values • personal security, inviolability • discourage violence, retribution Elements • “… The intentional creation in another person of a reasonable apprehension of imminent harmful or offensive conduct. … • • • • • Intention Creation Reasonable apprehension Imminent Harmful or offensive conduct 1. Intention and assault • Must have volition • Motive is irrelevant – Acting for good or evil – does not matter • Whether can or intends to actually do harm - irrelevant , provided that …. • Most of the time people do it deliberately - Whether can or intends to actually do harm is irrelevant, provided that the P thinks something bad will happen. Most of the time people create threats deliberately. -You have to have intention to create this tort. If you do something that is so clearly related to the act, the court will say its intent. If you operate on someone, take out there appendix, you have intentionally/deliberately taken it out-even though it was intended to. Intent and assault… But what if you aren’t acting deliberately??? Intention in battery • Deliberate – it’s a tort – some commentators think that it is purely accidental (you were innocently standing there), you shouldn’t be at fault, policy should favor no liability, but then you have an innocent victim-policy will tend to favor victim. From policy perspective, accidental battery is going to cause liability-don’t worry about it. • Constructive or imputed intent – it’s a tort • Reckless, negligent – it’s a tort in Canada – not a tort in U.S. or England • Accidental – Not entirely clear. Probably a tort. – Policy favors the victim – Practically speaking – who would sue? • No Intent: “If it were not assize time, I would run you through… !” Tuberville v. Savage 1699- NO intent here at all. • Deliberate or constructive intent: “If you don’t leave, I’ll run you through!” - if actions/demeanor suggest you will not stab you, there might be no intent here. D might be able to show that he didn’t really have intent. Continuum of Intent Careless/neg-shoot without checking, P is in the way, you are liable If its an accident/mistake- courts will favor victim, but you will not likely face a lawsuit, chances are there are no damages. Don’t forget transferred intent. What is the act…? • the particular thing you set out to do • Remove an appendix (v. “operate’)- that is your deliberate act, you are taking out the appendix, the question will come as to whether or not that is assault. Offensive contact (didn’t hurt you tho). Was it a tort? Yes because it was intention (you set out to remove the appendix). Saying you set out to operate doesn’t really answer the question, you have to be specific about the act. • Walk quickly with your head down in a crowd ( v “walk”) Boxing ex- its not the act of walking, its walking with your head down and arms up. Those are the acts your looking at when you are looking at liability/intention. • Drive fast in a town (v “Drive”) Compare with the crime of assault • Includes assault and battery • Mens rea as well as actus reus required – you know consequences and whether it is right/wrong (you don’t have this is tort) • No criminal liability for pure accident/mistake – so if you intentionally remove an appendix by mistake, no criminal liability, but in tort you are liable, because you acted intentionally. Creation/causation • Direct • Cause effect • “but for” test • Word, deed, or combination – if you are standing and looking threatening and P can expect contract this could do the trick/ Reasonable apprehension • Plaintiff’s point of view – are they aware of the imminent harm. Apprehension of offensive contact, apprehension of being offended or fear of being hurt. • Plaintiff has to be awake/conscious • “Reasonable person” test - reasonable to assume harm will ensue • Fear not required • may be conditional - your money or your life • Illegal conditions – if it requires you to give up your right, money or your life, those are illegal conditions. If you have a right to do something. • … though it may be the gun is not loaded. If you reasonably apprehend that the gun is loaded, you can have a tort of assault. Question – reasonable apprehension of contact • • Facts: Mary is a racist - towards a particular racial group, and encounters members of that group on a subway train. She experiences apprehension of imminent harm solely because of her racist views. Mary was raised to fear this race. Would a mistaken, but real fear held by Mary be a reasonable fear/apprehension under the definition? No… • WHY? • No act by defendant. An action is required. Just “being” is not an act. • Suppose person does act – he is wearing a hoodie and reaches in the pocket? – No – not a reasonable fear to assign a belief about an entire group to a single person. (though some disagree!) • May be reasonable to hold the belief, (because people he trusted taught it) but the belief itself is not reasonable • Could also argue the holding of that belief is not reasonable? (responsibility of the citizen to think independently?) • Public policy – If something is really against public policy, courts will not enforce it. Even if law is good, but its so blatant against public policy. • Requirement of an act is really important!! You actually have to do something to commit a tresspass Imminent (next element of tort of assault) • Immediate• From the plaintiff’s perspective if the P thinks gun is loaded, and its pointed at him, its imminent and reasonable to think he will be shot. If someone phones you and says they will shoot you,that is NOT imminent. Plexi glass- across the counter, not reasonable to think harm will come, not imminent. • Is the gun loaded or not? • Not over the phone, across a counter, tomorrow, … not imminent. If the person if pounding on your door, then it is imminent. Harmful or offensive contact • Physical contact - with body or an object • physically harmful OR • offensive - spit, lewd approaches, licking, goosing, fondling, remember the policy. Actual damage Is NOT an element of trespass torts, including assault. Plaintiff does have to experience actual harm, but… what remedy? Don’t forget the reverse onus In assault, plaintiff proves basic elements, then that creates an assumption that there was intent (on purpose or negligently/carelessly (not neg tort)). Defendant has to prove that she did not intend it. If you cant prove it, then you have to prove a defence. o You don’t have to prove as a plaintiff to prove intention. Defendant has to. Evidence has to come from defendant. o Thus reverse onus is on defendant o This works for assault and battery and trespass. o It also works to protect policy of people not touching you Application in cases BRUCE V DYER • Bruce was driving down the highway, dyer tries to pass him and other car, tries to get in front of bruce, bruce accelerates and doesn’t let him in, dyer gets mad and starts tailgating him. Mr Bruce stops his car in the middle of the highway, and both get out of car. Mr dyer breaks mr bruce’s nose? • Did Mr Bruce commit an assault by not letting him in, and did mr dyer commit an assault when he tail gated? • YES! Mr bruce committed assault by not letting him in. My dyer felt reasonable apprehension of harm. TAILGATING is an assault. • What if dyer punched mr bruce and broke his hand, and bruce is not hurt. • Damages is not an issue, do doesn’t matter who broke each hand and wh got hurt MAINLAND SAWMILLS V. USW o Strike at sawmills, workers brought in against picket line, picketers were drunk and scared everyone o The graveyard shift suffered conditional threats. If you cross this line, we will smack you. This was assault o One of the workers was being threatened Battery • Trespass and intentional torts Tort of Assault and Battery - Compare with the crimes of assault • See page 61 and slides following • Simple assault includes assault and battery • Mens rea as well as actus reus required • No criminal liability for pure accident/mistake Criminal Code RSC 1985 c C-46 Assault 265. (1) A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. • 268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. • Criminal and tort liability assault and battery Simple criminal assault includes intention AND touching. Aggravated assault includes intention and act. They include assault AND battery. o You can consent to touching your body, but that person can still be charged criminally Overview – battery • Battery – Definition – Policy – Elements – Other points – Sexual Wrongdoing as a form of battery Definitions • A person who intentionally causes harmful or offensive contact with another person is liable for battery. • Battery is … bringing about intentionally an offensive or harmful contact with [to] another person.” Policy: • personal security, dignity, • discourage violence Elements of Battery • Requires an act • Presumption: any touching of the body is wrongful, except • involuntary • jostling (everyday walking, running into people in hallway, way of life). 1. Intentional 2. Cause/ directness 3. Harmful or offensive contact 1. Intention • Motive is irrelevant • Same reverse onus • ( more later ) 2. Cause/”directness” • The harmful or offensive contact must be the direct consequence of the act. – No intervening act • The compensation is only for the harm that is directly resulting. – One of the only limits in tort action – It limits the harm that is compensable in a way that negligence does not – This is why actions of the case developed, because trespass was limited compensation. 3. Harmful or offensive… • Actual injury or • Offensive contact – All contact is prima facie offensive – The harm is to the integrity of the person’s body (as soon as you touch somebody, you are interfering with the integrity of the body) • Delicacy • Beneficial, offensive conduct • Plaintiff does not have to be aware – Eg Kiss (or worse ) while asleep – Awareness – it is still assault if a person does not become aware. – If it is a battery, the person does not have to be aware of the battery. Someone could go into coma, or has no awareness. … Contact • some "force" directed at the plaintiff - something more than mere everyday jostling – Careful of “force” • Does not have to be much – as long as a positive act • Person to person, or through a medium or weapon Actual damage - Is NOT an element of trespass torts, including battery - Plaintiff does not have to experience any harm, prima facie all contact is offensive/ wrongful - But what remedy if no damage? - Well first 99.9 don’t go to trial - Strategic advantage of the prima facie rule Intention to Trespass o Negligence is just carelessness in these cases, NOT THE TORT of negligence Causists- Someone should be held liable if they caused the harm that happened, no matter how it happened. Freidman Faultists- There is only trespass if you have some fault, where you are actually careless or deliberate. Klar • …More on the intention question and sexual battery next class Last class: intention in the trespass torts 1. Deliberate /constructive intention 1. You mean it, or the act is so clear it is constructive intent (so clear results were gonna happen) 2. Reckless/careless/ “negligent” 1. 3. Accidental • Constructive intention = deliberate – “consequences” known to be substantially certain to follow – “the substantial certainty test” – amounts to deliberate action – Not clear exactly what – the harm or the interference? – Usually does not matter. – i.e. Deliberately took steps to interfere with person’s personal inviolability, or with their interest in land – Bettel v Yim e.g. After that, then what? • • The “Causists” and the “Faultists” - cause theory of liability v. fault theory What are “the consequences”? “the interference with the right” OR “actual injury”? – Answer: The interference with the right. NOT the actual injury. – (NO actual damage is needed for a person to experience a trespass) – DID YOU INTEFERE WITH THE RIGHT? You don’t have to prove damage. So the question is: Did the volitional act interfere with person’s right? – Cause theory: Yes, I intended the act which caused the interference with rights. “I intended to step where I stepped.” Therefore I am responsible for all damage/harm flowing from the interference. Or – Fault theory: I intended the act which caused the interference with rights, but I am only legally responsible for damage/harm I deliberately or carelessly caused (deliberate or recklessly) “I intended to step where I stepped, but only stepped by honest mistake or by accident” – You are responsible for your acts only if there was some fault. You intended something to happen or you were careless. e.g. TTL “I intended to build a fence on this land.” Cause theory: Therefore I am responsible for all damage/harm flowing from any interference with another person’s possessory right to that land. Fault theory: Therefore I am responsible for all damage/harm flowing from any interference with another person’s possessory right to that land that I knew would happen or was careless about. I am only responsible for what I intend to happen, or what I was careless about. e.g. with TTP “I intended to walk fast through an open field while talking distractedly on my cell phone.” • Cause theory: Therefore I am responsible for damage/harm flowing from interference with others’ rights to physical security. • Fault theory: Therefore I am responsible for damage/harm flowing from interference with another person’s right to physical security, that I knew would happen or was careless about. • Little catch: Careless? 2 schools Within the Faultist school… o Two schools of thought about recklessness • Note, Linden, Bettel v. Yim: recklessness, negligence, is not limited to foreseeable harm - liable even under “fault theory” for unforeseeable interference with right to possession or right to personal security. • • • • Does not matter if its forseeable Klar: liability for only “foreseeable” harm (interference with right, NOT DAMAGES) • You are not responsible “I intended to walk fast through an open field while talking distractedly on my cell phone.” • Careless, but not foreseeable, interference with others “I intended to walk fast on a subway platform while talking distractedly on my cell phone.” • Careless and foreseeable interference with others Cause school makes you responsible for everything, while fault school would be more in the middle and only hold you liable for intentional and reckless. And within reckless there are two schools (foreeable/or not). There is no set law that stands right now. We have to analyze the cases, and there is authority for both schools. Policy considerations How might the application of these theories affect behavior ? • Cause theory • People would be WAY more careful. You are held liable for a lot of things. Less likely do act and do things. • Fault theory • A bit looser but still important, and if you don’t require foreseeability, makes it more liabale • Industry? Government? • Less incentives for business to go into risky areas • Cause theory is better for victims • Cause theory is better for vicarious liability, they would be held more liable. It increases exposure to vicarious liability • Uncertainty in the law tends toward cautios approach • Insurance industry • Cost of coverage for intentional torts • Determining scope of coverage • Whether do cover intentional actions • Insurers like fault theory more than cause theory because of what they would have to pay out. Values • What values are at stake? • Protecting innocent victims • Encouraging victims resilience • Protecting fundamental values of person and property • Risk and cost allocation • Avoiding violence, peaceful resolution • Fairness (is justice done?) • Flexibility in applying the law • Adaptability of the law to new circumstances The St. Paul Tragedy – case study of Intention Facts: • Ten years ago Mr. X suffered a serious brain injury. Since then, he cannot work - has disordered thoughts, occasional seizures, headaches. He lives on disability pension with his wife and children. Two years ago he was finally cleared to drive again. He has lived in the same small town for his whole life. • One morning Mr. X dropped two of his kids off at school. Driving home, his mini-van accelerated and crashed through the wall of the local school. Five children were physically injured, a sixth died. A dozen other children were in the classroom and were seriously frightened by the event. They feared for their own safety on the moment of the crash. There was serious damage to school property. Mr. X has been charged criminally. • It is not clear what caused the acceleration. The van was old. Mr. X may have had some seizures in the week before the accident. Issues: • Volition? Was he aware of what he was doing? Did he know the nature and quality of his action? o You would look for medical reports and try and see what his mental state was o Motive does not matter here. Only if he knew what was happening. o If he was having seizure, there probably is no seizure Assuming volition and NO mechanical problems Can he disprove the intended interference with the children’s personal security (he has to disprove it because of reverse onus) o Deliberate?--> (act was probably not deliberate) has to disprove this but it would be hard o Substantially certain? o Careless and forseeable? o Careless and not –forseeable o Accidental or mistaken? If you have cause theory he would probably be held liable for intention. If you have fault theory you would not be responsible if you were careless and NOT forseeable. She doesn’t think he could prove his innocence. • What is the intentionality? Where on the continuum does it fall? • Different types of harm to the victims some were dead, scared, frightened. • Battery of some children, assault of children who were scared, trespass to chattels and land Land is cause (usually) People is fault (usually) Issue-Assault- the 12 children • Creation/directness? Yes he created it directly • Reasonable apprehension? Go with assault • Imminent? Go with assaul • Harm or offensive contact? • Intention? Issue- battery – 5 hurt • Creation/directness? Yes he created it directly • Reasonable apprehension? • Imminent? • Harm or offensive contact? • Intention? Issue-Battery – (the dead child) • Creation/directness? Yes he created it directly • Reasonable apprehension? • Imminent? • Harm or offensive contact? • Intention? Trespass to propertyInterferences with possessory intent, direct/causation, intention Issue- Criminal Liability • Criminal offence as well as civil • Impact the timing of civil action • Crime compensation/retititution may be available Bonus issues • The tort of negligence o By mr x? o By the school • Quantum of damage/ remedy for each victim • Time limitations o 2 years. Sexual Battery • Trespass, intentional Torts • No elemental different from Battery – DIRECT/CAUSE • – HARMFUL OR OFFENSIVE CONTACT – INTENTION ( IS NOT DISPROVEN ) Some special considerations • Is not different from battery because the convicted still has reverse onus. Want to have this. No elemental different from Battery – DIRECT/CAUSE – HARMFUL OR OFFENSIVE CONTACT – INTENTION ( IS NOT DISPROVEN ) • Some special considerations • DEFENDANTS DON’T LIKE REVERSE ONUS victims like it. Def have to prove no intention Unconscionability • Norberg v Wynrib SCC 1992 – Plaintiff was a woman of lower education, druggie. Tried treatment, was no successful. She went to doctor, asked for prescription, and doctor said no. Got it somewhere else, and came back and doctor said ill give you drugs for sex. She really needed those drugs so she did consent. She did beat addiction and then she told the story and LEAF took case. Doctor said she consented to this activity. COUR says NO. There was invasion of her dignity. It is just plain wrong, it is against public policy for someone to take advantage of a powerless person. So consent defence cannot work. INTENTINOAL INTERFERENCE WITH THIS PERSONS PERSONAL DIGNITY. • 3 judges held: battery – No question it was intentional [interference with patient’s personal dignity] – Unconscionable and against public policy to allow “Consent” defence because of power imbalance – “Battery is actionable without proof of damage. Moreover, liability is not confined to foreseeable consequences.” • Here liability is not confinable to forseeable consequences. • The doc said it was not forseeable that this harm caused to her was forseeable, doctors did not care. It was intentional and we don’t care how forseeable it was. Breach of fiduciary duty • Norberg , Two judges • Characteristics of fiduciary relationship (not a tort, just a legal wrong) • When you have trust over somebody, those people are fiduciary, they are of higher trust. They are responsible for their power. – fiduciary has scope for exercise of a discretion or power – fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests and – the beneficiary is vulnerable to the fiduciary holding the discretion or power. • Not a tort, from equity/trusts law. • In norberg, they don’t need to find fiduciary duty cause they have battery, Way more powerful then fiduciary duty • Fiduciary duty is always pleaded alongside sexual battery Discoverability of harm • M(K) v. M (H) SCC 1992 : M’s father sexually abused her for a long time. Said if she told anyone everyone would be mad and upset. He told her this is right. She thought abuse was all her doing and she was responsible for it. She told a few people so she was aware she had been wrong. She had done some therapy. • Defence used limitations period • incest/ injury from incest or sexual abuse: may take a long time for the plaintiff to understand of “both of the wrongful nature of the perpetrator's act, and the causal nexus between those acts and the plaintiff's present sufferings” – Have to discover both of these. She realized in the 30’s • In common law Limitation starts running on discovery of harm (of the above harm) • Legislation affects the limitations for this occurrence • (Practically speaking, injury is an “element” of trespass – since discovery of harm triggers the limitation period.) Tort remedy as remedial ? • Is it worth suing for sexual battery? – Control of process, issues, get actual compensation, vindicating – But Is hard on the victim, may not yield anything Really hard on them, there is considerable reluctance to engage in these. More or less hard than the criminal system. – Better or worse than criminal process? – Advances the law – Changes social perceptions • E.g. M(K) and incest • Standard of proof Defendants have to disprove intention in battery (reverse onus) • like all battery actions, – balance of probabilities – don’t have to prove beyond a reasonable doubt (less evidence needed than criminal) Clear and convincing evidence – no corroboration needed- don’t need corroboration of evidence. Test of balance of probabilities is enough and does not need corrobation. It will be tougher without it, but don’t need someone o corrobate your story. Emergence of new torts ? • Sexual harassment? – Could be other torts? Assault? Economic tort? • M.(K.) SCC 1992 – incest is not a discrete tort • Sexual discrimination? – Legislated right of action for damages. Intentional infliction of Nervous Shock • Trespass, intentional Torts IINS, aka IIMS • Definition • Policy • Elements • History and Other points • Case studies Definition: Direct and deliberate infliction of emotional anguish, nervous shock, or severe emotional injury • Primary Policy – inviolability, personal security, dignity . Similar to trespass but different. Gives you to chance to sue for non-imminent threats Wilkinson v Downton, 1897 • Facts – she suffered physical harm when told a lie of death of her husband • Issue – is there an issue here? We cant charge him with assault was harm was not imminent. • Decision, ratio – deliberate, willful misstatement of facts – Intended or foreseeably likely to cause mental anguish and physical pain – Would be carried to the plaintiff Elements 1. Intentional, or willful misstatement of fact, or a threat 1. Threat or act, caused by a defendant 2. Intended or could be foreseen to cause mental anguish/pain 1. Reasonable foreseeability. 3. Direct 4. Damage? 1. Deliberate lie or act? Misstatement of fact – lie • Wilkinson v Downton – Dead husband • Bielitiski v Obadiak – Son suicide • Ginsberg – Fear of AIDs, hiding sexual orientation Direct Act • Timmermans v Buelow – Telephone threat of harm • Purdy – Strike husband in presence of wife • Radovskis v Tomm – Witness rape of a child • Edmonds v Funeral Home – Autopsy 2. Intention • The act was deliberate or could be foreseen to cause mental anguish – Strong standard for these • ( not cause based… high on the “deliberate” scale) 3. Direct • The lie or act must “come” directly to the plaintiff – Directed at the plaintiff 4. Damage? • Not clear whether legally is an element – Cnt be just plain grief or fear. • Practically speaking, must show • What kind of damage? Nature of the damage - Not “mere” grief or fear - Embarrassment? probably wont get you anything - Do you need physical harm? - Probably not - Need provable harm - Need serious, sustained harm - E.g. Hair turning white, depression, physical ailments etc. Other points • Terminology – Nervous shock, nervous suffering, mental shock… • • Overlaps with – Negligent infliction of nervous shock – Assault – Harassment • Statutory and criminal actions Scope is unsettled False Imprisonment Trespass and intentional torts November 15, 2012 Definition • Wrongfully preventing someone from going where they are legally entitled to go • Imprisonment/detention of a person without lawful justification Policy • On one hand … • Personal freedom, inviolability • Liberty, dignity and reputation • On the other… • Public safety – a lot of bad people sometimes • Need to clear up suspicious circumstances • Economic/business interests Elements 1. Confinement 2. Intention 3. Direct/caused by defendant Once plaintiff proves these then onus shift: presume there is no lawful excuse Defendant has to prove defenses or intend 1. Confinement • 100% confinement • No force needed • No “jail” needed • May be psychological – Objectively reasonable to feel restrained e.g. Embarrassment, uniforms – In the dress store example, they felt they could not leave because it would be embarrassing • Physical: The bridge example. Not false imprisonment because there was a way out, and a reasonable one at that The test is if it is OBJECTIVELY REASONABLE- Would the reasonable person know? E.g. • • Bird v. Jones on the Hammersmith Bridge Chaytor et al v. London etc 2. Intention • Intention of defendant to confine – Deliberate – generally is deliberate • Most cases: shopkeepers or police – Careless? Reckless? Not likely to convict – Mistaken? • Maybe. Cases show: Has been liability for well-intentioned, mistaken confinement. 3. Direct • Direct/caused by defendant - police doing confinement on laying of information - not direct. – Intervening judicial discretion breaks the chain – However, if police acted without discretion, then maybe • See Otto v. J Grant Wallace – Def was the storekeeper, not the police. No crime committed. False imprisonment crime against shopkeeper Not required • Plaintiff’s awareness – But how much compensation??? • Actual harm Other factors • Changing one’s mind: – Agree to confinement, – But release is conditional – Reasonable lawful conditions - No liability • Submit to search? – It IS confinement in the honest ed’s example. In airplanes it is more ok – Depends on reasonability • Pay a penny in the turnstile? – Plaintiff walks into waiting area of the ferry. Cant get out and is confined. Courts said that is a reasonable condition. You have a reasonable out. • Riding the bus? • • • • • Police/guards have some statutory protection where there are reasonable and probable grounds Can be false imprisonment in jail – wrongfully preventing someone from being where they are legally entitled to be (if there is no authority in the jail) Can be imprisoned by detention of goods? ( I have your purse but you can leave) – Yes, in U.S. – Canada - Has been recognized in obiter comments but nothing concrete False imprisonment includes false or wrongful arrest Criminal Code – Police have broad powers of arrest – Private citizens more limited One of the defences to false arrest/confinement… … A private person who arrests an individual must satisfy the court on a balance of probabilities: (a) that someone committed an indictable offence, and (b) that the private person effecting the arrest had -objectively reasonable grounds for believing and -actually did believe the person arrested had committed that indictable offence. *indictable – includes hybrid and indictable offences (for torts, virtually all criminal laws) Example • Otto v J. Grant Wallace Ltd. – No belief that plaintiff committed crime – Mr. and mrs otto went into Canadian tire store. Someone observed mrs. otto doing 2 things. 1) stole seeds 2) stole hooks from bag. Tried to leave store and stopped by the staff. Police were called and charges were laid. Charges were laid were respect to the hooks. No one found those hooks ever again, and there was difficulty finding the broken package. So it was not clear. She was acquitted. She sued for false imprisonment – Theft really occurred with the seeds but no charge on them. For hooks, there was no actual belief – Nobody at Canadian tire could prove they had committed to stealing the hooks. The staff did believe she had stolen hooks, but could not prove it – SO arrest was illegal • P. (M.) (Guardian ad Litem) v Port of Call Holdings Ltd. – No Reasonable grounds and belief, but proof someone committed crime – Child stole chocolate milk. He only investigated this kid.” I wanted to talk to you about this” • Has to be concrete belief Malicious prosecution • Trespass and intentional torts Definition • Wrongful prosecution; wrongful invocation of criminal process • LIMITED – To rare cases – Crown prosecutors and similar agents Policy One hand… • Personal dignity and freedom Other hand… • Public interest in the prosecution of crime • Protection of prosecutorial discretion. (from political or other forces). Prosecutors should have freedom to do their job. Don’t want nay political or money factors. Make them independent. Elements (from nelles) 1. Proceedings initiated by the defendant 2. Proceedings must be terminated in the plaintiff’s favor 3. Proceedings must be instituted without reasonable cause 4. Defendant must have been malicious 1. Proceedings initiated by the defendant – criminal proceedings – used to be private – Generally the crown or the defendant 2. Proceedings must be terminated in the plaintiff’s favor – At any stage of crim proceeding – Plea bargain is not fully in the plaintiffs favor (this wont count) 3. Proceedings must be instituted without reasonable cause – No reasonable and provable grounds to convict – No honest belief in the grounds – In recommending whether to convict, prosecutors say “we don’t have enough evidence” way to protect themselves 4. Defendant must have been malicious – Not just a lack of grounds – prosecutor deliberately intended to subvert or abuse the office of the Attorney General – Must have taken steps to really do it Examples • Nelles – No – Infants died in the infants unit and she was in charge. She was tried for murder. She was acquitted. She was super stressed. She sued government. Up until then, prosecutors had a lot of power. – No reasonable grounds of belief, but also, you were so blind, lost, and negligent, that it became malicious. They were really off hand. – Constructive intention, abuse of process • Kvelles v Miazga – Children said their daycare operator starting a sex-cult. Prosecution charged, case was tossed out. Daycare operator sued for MP – Prosecutor just went through the motions. – No honest belief there was ground for prosecution, but not malicious. • Proulx – Crown prosecutor noticed there was a defamation case going, and a criminal trial at the same time. Used investigator to be on both sides. – Said this was MP – Party in civil matter used improperly as investigator/witness in civil matter Invasion of privacy • Trespass and intentional torts Jones v Tsige • Ontario CA - not binding but persuasive • Great summary of law and policy Facts and Issues • Facts : Tsige looked into bank records of Jones. • Issues 1. Is there a tort of invasion of privacy 2. Damages? Issue 1 - is there a cause of action for invasion of privacy? • Judicial analysis : – History and policy – Case law and policy – Charter cases and values/policy – Canadian legislation and policy – Other jurisdictions case law and legislation – Scholarly writing – What is going on in the world? – Facts demand a remedy History and policy – Since 1890 – U.S. – Policy • Right to be let alone • Immunity of the person • Right to personality – Protected already • in tort by assault, battery, false imprisonment, defamation etc • Copyright law • Criminal law U.S. : four possible privacy torts – 1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs. – 2. Public disclosure of embarrassing private facts about the plaintiff. – 3. Publicity which places the plaintiff in a false light in the public eye. – 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. Number 2 and 3 are not well developed in Canada. Case limited to intrusion on seclusion Why? Analytical importance of separate torts Even though the others are not recognized in Canada Judge restricted to issues/facts before the court Sidebar: What is an application to strike pleadings? What is “disclosing no cause of action”? • Plaintiff files Statement of Claim (application to strike pleadings) • Defendant says the plaintiff has not shown a “cause of action” (disclosing no cause of action) • i.e. Plaintiff’s statement of claim does not set out all the elements of a known tort or other legal action. • Court rules on whether there is cause of action JvT • • • • - Review of case law Seedlings of torts: invasion of privacy and appropriation of personality Lots of cases refusing to strike pleadings Not much outside of Ont. Corrected Trial Judge’s error Charter values • Privacy is worth constitutional protection • Common law should develop according to Charter values • Three privacy interests o Personal o Territorial (stuff and land) o Informational (internet)- this one is not so well protected Statutes and privacy New acts that protect privacy. There is recognition - FOIPA, PIPEDA legislation protects citizens and consumers/client information - Some provincial legislation gives right of action/damages for breach of privacy Other jurisdictions • U.S. o Has recognized all four privacy torts • Commonwealth o Recognition or start of recognition of the tort Rationale at para 66 – 69 • Time to recognize a new tort! • Why? All of the above plus o Academics agree o Technology is advancing: informational privacy needs are threatened o “facts that cry out for a remedy” ***“Intrusion on Seclusion” ** Only one where tort has been established 1. Intentional or reckless 2. Wrongful intrusion 3. Upon plaintiff’s private affairs or concerns 4. Invasion is highly offensive to a reasonable person causing distress humiliation or anguish Harm does not have to be proven Compensation will be modest Other points • Room for development of privacy torts • Competing policy interests – Freedom of the press, freedom of speech – Public interest - medical and social services - research - criminal and other investigations Trespass to land –the tort Definition: Direct interference with right to possession of land by • Going onto the plaintiff’s land or • Placing, throwing or erecting something on the plaintiff’s land Need to have volition though Policy • The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been …abridged by some public law for the good of the whole… … Entick v Carrington ( 1765) at Klar p 83 • Your land is sacred Another “reverse onus” tort – any interference with possessory right is wrongful, defendant must prove justification…(or lack of intent?) • [the defendant] is bound to show by way of justification, that some positive law has empowered or excused him. … Entick v Carrington ( 1765) at Klar p 83 Path of the tort: Tort Defences damages Tort: intention is part of the tort, there is onus on the defendant to deal with the intention. Has to be disproven by the defendant Defences: Has to be proven by the defendant. Elements 1. Plaintiff has possessory right to land 2. Defendant physically interferes with it 3. Direct action 4. Intention? – Strict liability or not? Fault or cause? 1. Possessory right to land a. Possessory Right - (plaintiff has to have possessory right). Has to be a sufficient right of ownership. • Not necessarily ownership – Right to possession - lease, license, right of way. Can be an easement to a land (like a transformer on someone’s property) – Landlord trespassing on tenant • Only has to be better right than defendant (landlord might have right, but tenant might have better possessory right) • If owner is completely out of possession, may have no right of action – Though may sue for harm to reversionary interest • Possessor must have sufficient control to entitle exclusion all others? – One of the tests for possession is: whether you have sufficient control that your able to exclude all others Examples: Shopping mall picketing cases Grosvenor Park Shopping Centre v Woloshin (1964) - common law rule People went into shopping mall and picketed, and were asked to leave peacefully. Was a private mall. So they didn’t leave and then sued. Plaintiff said you could you cant kicks us off, Court decided for the shopping mall owner because they had a right to kick people out You own the shopping centre, you can kick people off R v Peters (1971) - statutory rule • …possessory right to land • You have invited people onto your property, shopping centre owner, and you dont have a right to exclude people. They did not have sufficient control. • Under the petty trespass legislation, you don’t have sufficient control, to kick people off b. What is land? – Moveables - land or chattel? • Attachment- If your chattel is attached to your land, then it is considered land. If it is not, it is not land. – The infinite carrot • Cuius est solum est usque coelem et ad inferos • Underground • Airspace Underground • Who owns the rights to subsoil and below? – You can own surface. Typically, the subsurface belong to the crown (mineral rights). There are exceptions to that because way earlier, ownership came with mineral rights. But mostly right now, you don’t have subsurface rights. But if someone cuts a hole in your property, it is trespass to land. Airspace – can you possess the airspace? • Possible theories – You can’t possess airspace because bylaws etc trump. Life has eroded the right to airspace – You own the airspace – You possess the airspace you can reasonably or actually use or need to enjoy property (modern theory) most common today to balance the need for airplanes/power poles, but at the same time, respect the enjoyment of the property • Didow v Alberta Power Co (1988) Ab CA – Facts: Overhanging Power poles – You possess the airspace you can reasonably or actually use or need to enjoy property – Court said it is interfering with his enjoyment, trespass was found • Distinguish – Permanent structural projections – trespass • If its permanent , its trespass – Transient invasion – only if it’s low enough • If its just balloons and planes, then it is just transient, and trespass there would only arise if they were low enough Some authority for the carrot remains (but not common) – Lewvest v Scotia Towers (1981) Nfld TD (low authority in AB) – Nuisance or trespass? – Crane is erected and swinging over neighbors property. Here is the plaintiff being disturbed – Court used infinite carrot doctrine, and the court has no power to tell them to not swing over property. Court said to go away and negotiate this 2. Interference • The merest interference? • De minimus applies - no suit for trivialities • Court will not tolerate suits for the super small things • To replace trivial interferences, we have petty trespass act 3. Direct • Direct 4. Intention - 2 lines of authority Costello • Facts: Mrs Costello had property in Calgary. Gov wanted to build overpass, and expropriated their land. Court decided expo is wrong and gave them property back. Court said there was a trespass because gov occupied land for 10 years. – Calgary was not malicious. It was • Intention: fault or no fault? – Fault doesn’t matter in this case. It is strict liability!!!** • Other issues – Notice of expropriation Minsky • Facts – Mantrac was contracted by city to snowplow. He was snowplowing when he struck a transformer on the peoples property. The hydro company sued. He could not see the transformer. He didn’t mean to do anything. No other place to pile on the snow either • Intention: fault or no fault? – Court said he did everything reasonable to do, and so no trespass. He did not directly intend to do it. – 2nd part: Was he careless or negligent? No!! • Other issues – Nature of ownership – Vicarious liability • Man-trac was independent contractor so city was not vicariously liable Differences between cases? Calgary intended to expropriate property, and minskey did not mean to hit it. Municipality can more easily bear the cost, and Manitoba hydro was on the same level as city of Manitoba Other Issues No damage required… By the laws of England every invasion of private property, be it ever so minute, is a trespass … Entick v Carrington ( 1765) at Klar p 83 But, de minimus applies Trespass Legislation Purpose Effect o Petty Trespass Act Doesn’t apply to crown land, doesn’t apply to recreational land o Trespass to Premises Act Less excuses, less “outs” and defences Cause of action? o These don’t give you a cause of action. o This is a s.96 issue, higher courts are the only ones able to deal with this Premise v land: Fences are enough to establish that land is prohibited Good enough to keep people out of farms, but not enough to keep people out of malls. Thus trespass to Premises act was enacted. Premises: any building or structure, that is associated with the use of the land. It is not just the land, it included the buildings o TPA deals with the premises Continuing Trespass • When does a trespass start and end? – Limitations issue (2 years from when you know). You can still sue after 2 years though: – Continuing trespass – every day is a new trespass. Every moment is a new tort. Didow can watch his trespass every day for 22 years, but he does not get damages all the way back, but limitation act cant be raised against him. – Compare – nuisance – interference is ongoing. Considered one single tort. • Nuisance involves the usage of my land disturbing the use or enjoyment of your land Trespass to chattels aka trespass to goods Defined: Trespass to goods- improper interference with the possession of goods DOESN’T HAVE TO BE OWNERSHIP Why care about this tort? Seizure of goods! Policy: We love our stuff Elements – trespass to goods 1. Interference with possessory right to chattel 2. Direct 3. Damage? 4. Intentional 1. Interference with possessory right Interference Moving, touching, damaging or destroying the chattel Does not have to be permanent Possessory right better than defendants Not necessarily, but usually ownership Can be agent of owner Chattel, not land Attachment If it became part of the land, then it would be land, and not chattel! (attach becomes such that it becomes use of the land, so her reindeer would not really be use of the land) 2. Direct Must be direct Taking the toy away v Leaving it at the neighbour’s where the dog ate it. Might be held liable for negligence 3. Damage Everett v. Martin You have to have damage in order to establish trespass to goods (other than all other trespass torts) Why is this good policy? If you just interfere with it a little, you are not really taking away possessory right For trespass to person: its not your chattel, and you might not notice Also, everyone has so many goods so there might be incidental interferences with chattels Some commentators disagree However, de minimis! You wont go to court if someone poked your reindeer 4. Intention… The problem with intention is the same we are not sure if cause or fault Not clear if it’s cause based ( strict liability) or fault based (liable only for intentional or careless) If it’s cause based/strict liability, mistake or accident is not a way out. Two lines of authority Intention in trespass to goods (and all trespass torts) At one time, it would have been undisputed that liability for trespass to goods, in the same way as other varieties of trespass, resulted from some act which constituted a trespass, regardless of the intention of the defendant, or his appreciation that he was committing a trespass. If developments in respect of trespass to the person and land apply to trespass to goods, this former strictness of liability has been attenuated… Linden, The Law of Torts in Canada, 2d at 125 All started as strict liability torts, so intention didn’t really matter But it has now become less Strict Liability Intention in the trespass torts- How do go about it If defendant is going to claim accident or mistake in a trespass claim He will have to win the legal argument that the element of the trespass alleged does not include strict liability (i.e. that the trespass is fault based, not cause based. Have to prove the intention element is fault based, not cause based He will have to prove, using evidence, that the action was accidental or a mistake (i.e. that he did not act deliberately or carelessly ) Once you win legal argument, have to prove this How? How to establish a legal argument Cases STATUTES!!! Fault :minsky Cause: Costello Secondary sources Policy History Current values Legislation Charter values Scholarly sources Convince the other side or the judge How to establish a factual position Evidence Statements Writings Physical evidence Experts /opinions Balance of probabilities The Tort of Detinue Defined – wrongful detention of goods Policy – property protection Elements Plaintiff has better right to goods than Defendant Defendant’s possession may be lawful or not Plaintiff asks for them Plaintiff HAS to ask for it back Defendant has refused Detinue Not a trespass tort Overlaps with conversion Conversion would be selling it Remedies Detinue – continuing act of deprivation - valuation of damage is at the end of the trial Conversion – single act of causing possession to change – valuation of damage is at the time of conversion Detinue is a continuing tort it keeps going. And every moment it continues and you incur damage every day. It adds up. It stops at the date of the return If that had a conversion, the price would only be what happened at the time Defences – to trespass and intentional torts All of these defences apply to all of the torts, unless otherwise stated All are reverse onus, the defendant has to prove defence after other elements are proven Defences Consent Outline General Policy Form of consent Scope of consent Reality of consent Fraud Duress Undue influence Youth Criminal behaviour Consent in medical context Withdrawal and refusal Emergencies Children Scope of Consent Informed Consent and Duty to disclose Sports cases Policy if I have control over my person, I can consent to invasion of my person If defendants can act confidently based on consent, future cooperation is secured. If people are clear what the rights are people will be getting along. Economic policy: “Transforms the brawl to a boxing match” Forms of consent 1. Express Oral or written Contract rules apply 1. It can be gatitious, consideration can be given Written is evidence only – consent may be narrower or broader 1. Different from contract can be narrower or broader 2. First place we will look what was expressly done, said, or written 2. Implied consent - We do this everyday. O’Brien v. Cunard Participation objective, reasonable Can be given through action (if you wait in line for vaacination) Participating in activities Sports Consent to the reasonable trespass in sport ?black Friday IS it consent to get trampled at walmart? Mistakes – who gets the nod? We are not sure if there is consent to an activity Mistake goes to the plaintiff! What about apparent acquiesence – e.g. to a confinement? They acquiesce, they go with them to leave the store in fashion case. Its not consent! Because they were scared of embarrassment or consequences if they were escorted out Scope of consent To the activity associated with the activity. Including reasonable amount of rule –breaking Even some stuff you are suspended for, it is allowed But there is a line hat you cross once it moves to intention to injure, it is not consent! Major issue with sports The Happy Gilmour golfer Not expect someone to take a slapshot with a golf ball so no consent The punch on the soccer field Rule breaking that is intention to injure – liability Agar Mudballs is fine because it is reasonably expected Wright – what if the mudballs were rocks? Onus of proof – on defendant E.g. Scalera ( note 2 p 104 ) No exceptions! He wanted to make it that she says she did not consent, for insurance purposes. DOESN’T MATTER! Onus is on defendant must show evidence of consent Defendant must show plaintiff consent Reality/Valid of Consent Fraud (on part of the defendant, vitiates consent) Vitiates consent Must go to the nature of the act Your singing will get better if you do … Implied – sexual health - Failure to warn of AIDS or STD …Not to the consequences I am your legal spouse v. I will marry you Consequences don’t matter it has to be direct nature E.g. Bell Ginsberg ( note 5 113 ) Duress Violence or threat of force vitiates consent Drunk or drugged vitiates consent to trespass Date rape drunk Undue influence The test is A. proof of inequality of power plus proof of improvident bargain? B. proof of inequality of power plus exploitation that is divergent from community standards ? C. proof that threats plus lack of intention ? Undue Influence – Power imbalance Norberg v Wynrib “to be willing, one must be in a position to choose freely” Indicia of power imbalance General position of doctors Doctors are in power Wynrib’s knowledge of the addiction Authority to prescribe Indicia of exploitation WWRDD? - Treat. What would normal person do?--> you treat it Standards for Dr/Pt behaviour Look at community standards Plaintiff being taken advantage of Undue Influence – Power imbalance Court has also simply rejected consent defence for policy reasons re M( M) Incest with child wont even talk about incest Breach of fiduciary duty may apply Youth Civil law standard – the mature minor rule Common law used to recognize 18 or 21, but there were a number of ages that it became obvious that people kids could consent Child was 16 and wanted IUD in her If you understand the procedure and the nature, and the consequence, then you can consent It keeps parents out of decision making Another case was 16 year old refusing blood tranfusions could she consent? Child had a clear understanding: she would die Courts said this is a matter of life and death. This child was brainwashed and her upbringing was so wrought with this belief, and she should live. You can consent to death. What is the action, what is the consequences of the action Is child responding on a rote basis Have to understand this stuff probably not Its intrusive and permanent! Upper tenth that your loking for Criminal law standard – set ages Strict ages for consent in criminal law The age for committing crime is 11 Guardian/parent may consent under FLA GUARDIAN CON CONSENT TO HEALTHCARE OF THEIR CHILDEN Not set out in other provinces Consent to behavior that is a crime Should the defendant be liable if the plaintiff consented to participate in illegal behaviour? An illegal abortion? A fist fight ? What if a knife is pulled? P 116 note 8 Should the defendant be liable? Answer used to be no, answer now is YES. Simply by policy, you consent, you can sue. But if fist fight goes beyond reasonable or if knife is pulled, that does not remove your right to sue. Can still sue. Consent in the medical context • • Basic policy – Inviolability of the human body, of human dignity Competing issues – Duty to treat, value of life – Freedom of thought, belief, religion – Care providers liability – Criminal acts if you screw up really bad, its criminal Withdrawal and refusal of consent • How to refuse treatment – Malette v Schulman • You can have a card in your pocket and say you don’t want blood transfusions • Doctor not listening to this was held to be wrong • Withdrawal of consent • Nancy B • Wanted to be taken of life support • Protection of care providers • Capacity to consent or withdraw consent • Fortey – Capacity was clearly not there. He was drunk and said to not operate on him. They should have Demanding treatment / Right to treatment • Not treating, not providing heroic measures • Not receiving treatment is not an issue. Trespass is not an issue. You don’t have to provide resuscitation • Removal from life support – not a trespass – negligence, murder…? • Not providing heroic measures – No resuscitation not at trespass • Assisted suicide – battery that kills? • Rodrigez – She wanted help to die, she was in pain • Gloria Taylor and the ruling in the BC Supreme Court – Not withstanding Rodriguez, they granted her permission to die Emergency medical treatment* • Statutory Authority – codified common law – Section 101 Alberta Adult Guardianship and Trusteeship Act • Only for doctors *RTGDA – Queens Printer – Note • Definition of “health care” • Definition of “adult” • Defined in interpretation act. Someone of the age of minority Emergency treatment at common law (to perform medical a treatment without consequences): • Patient must not have denied consent • Malette • Not allowed cause of card! • Must be necessity and not mere convenience • Marshall v Curry • Not possible to cure hernia if not removed • Must be immediate, not future need • Has to be that there Is no time to wait • Was there an opportunity to obtain consent? • Murray Why do I care about the common law? (if its all in code?) • Because not everyone is covered • Releases and waivers • evidence of consent • Written consent is only appropriate if things are done Minors and adults who cannot consent • Adults can consent unless clearly incapacitated • Presumption is consent, unless they cant • Minors cannot consent unless they are demonstrably mature enough to have capacity • Presumption is you are not, unless you are mature enough • Alberta Age of Majority Act – 18 Minors • Parents are guardians, and can consent – Family Law Act s. 21 • Subsection 7- requirement that parents exercise guardianship power in accordance with evolving maturity of child • Mature minor rule – Johnston v Wellesley Hosp – • Best interests of the child rule – Family law policy 1. Best interest of the child is paramount 2. The law does not interfere with the inner operations of the family unless there is neglect or harm – Parents • refusing treatment – Cant refuse treatment for children. 1 is good, 2 is violated. Child youth and family enactment act is what gives gov the authority to step in • consenting to experimental treatment • allowing elective procedures – Circumcision? Debateable. And Involiability of the child. Big debate about this. Is it in the childs best interest? Parents do. Unless they are making a decision that will harm them. – Ears and naughty bits Adults without capacity to consent Mental Health Act • Detention and treatment for persons 1. suffering from mental disorder 2. likely to cause harm to self or others or suffer substantial mental or physical deterioration or serious physical impairment, and 3. unsuitable for admission to a facility other than as a formal patient Try and use the least restrictive method • Starson v Swayze – balance need for treatment and rights to freedom from interference Adult Guardianship and Trusteeship Act (evolved because people could not consent) • Order appointing a guardian if 1. adult does not have the capacity to make decisions about personal matters 2. less intrusive and less restrictive alternative measures than a guardian have been considered, and 3. is in the adult’s best interests Sterilization for non medical purposes NO!! • Inviolate right of the patient cannot sterilize a person for non medical purposes See s. 1( r), s. 33(2) AGTA Evolved from common law Comment on eugenics and ADR The doctrine of informed consent • AKA “duty to disclose” • There is a duty on doctors to ensure consent is “informed” – failure to inform patient fully of the risks/consequences is a matter of breach of duty/negligence (not battery or assault!!) • Doctrine not applied to battery actions Failure to inform does not vitiate consent to a trespass Fraud does! Battery - is there consent to the specific touching? • Reibl v Hughes SCC 1980; but see Malette v. Schulman 1990 Reibl hughes is the asolute law Sports Cases • Playing a sport is consent to the trespass associated with that sport • Consent includes trespasses from rule abiding behaviour and some violations of rules • Consent does not extend to intentionally harmful trespasses, trespasses not reasonably associated with the activity Self Defence Self defence – generally • The defendant is not liable for trespass if** – Defendant had reasonable apprehension of personal harm, or suffered harm – Used no more force than necessary (not allowed to shoot person) – (macdonald v hees, politics guy getting slammed through glass in hotel) • Onus on Defendant to prove (mann v balaban) • Can kill if you really need too ( r v smith) • Not defence of property ! – ITS defence of person • Revenge is not self defence • What if defendant is mistaken? – Reasonable apprehension of attack … Retreat • What if you can escape? – Then you must • If you can leave, or get out of the way, then you must • Not in your own house though – Contrast – American “Stand-your-ground” statutes • You don’t have to retreatthis is dumb though. THIS IS NOT THE LAW in cananda Provocation • Threat and provocation are different – Threat might be assumed – Golf course examples • Mere provocation is not a defence. Threat has to be something substantive. Pulling out a club is threat – Mere provocation may be taken into account to reduce compensation – but NOT absolve – MERE PROVOCATION IS NOT A DEFENCE (evans v bradburn). • Two lines - Reduce punitive damages only or reduce all compensatory damages contributory fault? Or strict liability? Cases • Bruce v Dyer 1966 Ontario Supreme Court • Hincks v Macmillan 2001 ABQB Defence of Others (protecting someone) (prior v mcnab) • Same test - but carefully applied – Reasonableness! – Same onus (prior v mcnab) and rules for mistake (will not be held liable if you honest thought they were in danger but was a mistake) (gambriell v caparelli). • Clearly extends to family members and people with a positive duty to protect – E.g. police – Not so clear, but possible for others Defence of property Outline Defence of property generally Have right to tell people to get off property, have right of reasonable force to kick them out. You can use force immediately if someone is on your property illegally. If they are LEGALLY THERE, then your first act must be words. If they don’t leave, then you can use a reasonable amount of force. The defence of “defence of property” (doesn’t happen a lot) • A defendant who has trespassed is justified if she was doing so to protect against wrongful interference of her property – Defendant must show plaintiff wrongfully interfering with property and – Reasonable force used in response Can meet force with force – Green v Goddard • If plaintiff’s entry is peaceful, defendant must first use words, not force – MacDonald v Hess • Must give them reasonable opportunity to leave premises – Green v Goddard • If no personal threat, not much force is justifiable • Example of talk first – Bigcharles v Merkle • Shooting case where homeowner accidentally shoots burglar in his home. Was 25% reasonable. – Weibo Ludwig? • Someone shot someone trespassing. Too much force! May be a statutory right to arrest or remove someone or something from your land – Trespass to Premises Act • Can arrest someone who is on your property – Liquor licensing legislation • Allows ejection from people on our property with a bit more force than usual – By laws entitling towing of “trespassing” vehicles Necessity Outline Necessity – In public interest – In private interest In public interest • Emergencies – flood, fire, drought,…. – not war • Policy options when public good conflicts with private rights – Public trumps private completely? • Every time public trumps private, and it shouldn’t matter – Private rights to be compensated? – Private trumps public? • Either taxpayers pay you, or other kind of compensation scheme • Individual rights Elements 1. Plaintiff is without involvement or fault 1. Plaintiff was not contributory. Defendant dos not contribute either. Not a case of plaintiff. He is a by standard 2. Significant external threat – weather, emergency, (Not war) 1. Can 3. Imminent peril 1. Cant sue for past or future • Onus on Defendant to prove all of these elements • Dwyer v Staunton • Highways are for the public good • Public interest absolute over highways • Modified by statute, compensation schemes • E.g. EMA Emergency Management Act RSA 2000 c E - 6.8 19(1) On the making of the declaration and for the duration of the state of emergency, the Minister may do all acts and take all necessary proceedings including . . . (h) authorize the entry into any building or on any land, without warrant, by any person in the course of implementing an emergency plan or program; (i) cause the demolition or removal of any trees, structures or crops if the demolition or removal is necessary or appropriate in order to reach the scene of a disaster, or to attempt to forestall its occurrence or to combat its progress; (j) procure or fix prices for . . . essential supplies and the use of any property, services, resources or equipment within any part of Alberta. . . (k) authorize the conscription of persons needed to meet an emergency Liability Protection for Emergency Service Providers Minister 27 No action lies against the Minister or a person acting under the Minister’s direction or authorization for anything done or omitted to be done in good faith while carrying out a power or duty under this Act or the regulations. Local authority 28 No action lies against a local authority or a person acting under the local authority’s direction or authorization for anything done or omitted to be done in good faith while carrying out a power or duty under this Act or the regulations during a state of local emergency. No actions means you cant sue the minister There is a compensation scheme if something happens under 19(1) The policy we follow most of the time is that we have developed statutes that say taxpayers pay for public trespasses. Private interests Elements 1. External threat 2. Imminent peril, need for survival – Southwark v Williams 1. Two squatters in public housing, They were kicked out. They said “necessity”. Courts said no, it has to be imminent peril. – Vincent v Lake Erie 1. Boat example. 1. Were held liable but there was a dissent. It depends how strict you want your property rules to be 3. All reasonable steps taken (by defendant) 4. Defendant did not contribute to the risk Two lines of authority – Partial defence - if no damage, then a defence; if there is damage, defendant pays. Defendant repays plaintiff. (good thing cause defendant benefits, he should not suffer even if no one was guilty) • Vincent v Lake Erie – Complete defence – plaintiff bears all the risk (so if defendant was innocent, it sucks if there was any damage for the plaintiff) • Dissent in Vincent – Results dependent on facts and equities Killing and Cannibalism • Is killing from necessity a defence to trespass? – Criminal law – no • • Public policy/public response • You cant kill people out of necessity – Tort law – no? What if plaintiff is already dead? – Criminal law – no • Public policy/public response • There is a criminal charge against this – Tort law – two lines of authority? • One could say necessity and other people would die without doing it • NOT ON EXAM Legal authority • • • • Outline Generally Police powers and arrest Citizen’s Arrest Generally • Mainly statutory authority (having some sort of authority to doing what you are doing) • Many forms e.g. – Criminal Code, Policing legislation – Expropriation – Trespass statutes – right to arrest – Child protection laws - Apprehension of children – Emergency measures – . . . . LOOK AT THE ACT!! Common Issues (each time you try and use authority, these are usually the issues agint doing so) • Defendant’s adherence to procedural requirements (did you follow the statute properly) – E.g. Costello • They did it in 17 days when the needed to wait till day 20. Abrogated this right • Constitutional validity – E.g. Victim’s Restitution and Compensation Payment Act • Allows people to recoup materials that they took when they were trespassing or crime. • This s basically a trespass to take your things back • Charter validity – e.g. Trespass to Premises Act • Does not pass the oakes test Police Powers - Arrest • Bottom line is you need authority if you plan to arrest • Warrant (court order) issued by a judge authorizes arrest – If you go and get warrant, you can do it – Police apply to court before arrest • S. 495(1) – Arrest powers where no warrant • Other requirements – informing arrestee of reasons (sandison v rybiak) • Police means as defined in legislation - not security guards – Only for police offers. Not peace offers Police Powers – force • Criminal Code – section 25 (1) Use of reasonable force authorized if a person is authorized to administer or enforce law and acts on reasonable grounds, subject to (3) (THIS IS FOR EVERYBODY) (2) Protects those authorized to effect a warrant or sentence even if there was no jurisdiction to issue it (3) Generally, person only allowed lethal force allowed if reasonably necessary for self preservation ( ) Police (and authorized helpers ) allowed lethal force against (4) dangerous offender avoiding flight, if no alternative (5) prison escapees, if no alternative ONLY FOR POLICE POLICE HAVE ALO OF POWERS FOR ARREST AND FORCE Citizen Powers – Arrest (very narrow compared to police) • Code s. 494 • If arrest is authorized under s. 494, then s. 25(1) and (3) applies (above, just not s.4 and 5) can use reasonable force • If you are authorized to arrest under other legislation, s. 25(1) and (3) applies and you are allowed to use reaonsble force – E.g. Trespass Act When does s. 494 (1) apply? • HAVE TO BE ABLE TO PROVE OFFCNE IS/WAS commited (Hayward v Woolworth). But some case law ha shwn only need reasonable and probable grounds (Dendekker) • (1)Any person can arrest if - Someone he finds committing an indictable offence OR - Someone he reasonably believes has committed criminal offence and is freshly pursued by police Courts have said this means • A person can arrest without warrant (a) if someone committed an indictable offence (on balance of probabilities), AND (b) the person effecting the arrest had -objectively reasonable grounds for believing and -actually did believe the person arrested had committed that indictable offence. Example • Otto v J. Grant Wallace Ltd. – Reasonable grounds for belief but, no proof someone committed crime – Could not prove on balance of probabilities that someone had committed the crime (or committed an offence) – MRS OTTO got damages • P. (M.) (Guardian ad Litem) v Port of Call Holdings Ltd. – No belief that plaintiff committed crime (because he was just asking questions) Negligence – The Tort (Policy, History) Element #1 – Damage Element #2 – Causation Element #3 - Standard of Care and Proof of Negligence Element #4 – Duty of Care Element #5 – Remoteness Definition - Two meanings Negligent conduct - Careless, thoughtless, bad, wrongful conduct; not deliberate as to consequences, not totally accidental o Kind of like reckless behavior o This is what we have been saying Cause of action for negligence - a plaintiff is entitled to a legal remedy when o A. Defendant has a duty of care o B. Defendant breaches the duty o C. Damage has resulted Policy – purposes, values, interests Compensation for faulty conduct Very broad purpose Deterrence o Market – strong force in businesses to manufacture safe products, build safe roads. The idea behind this is that tort law should aim to reduce the costs of accidents. This is achieved by imposing the costs of accidents on those who participate in accident-causing activities o Individual- the possibility of a civil sanction, such as damages, will cause the defendant to alter their behaviour and avoid inflicting damage Normative - reinforces values (gives us rules to give by) o Respect, responsibility, fairness o Compare to “single interest” torts – defamation, trespass to land or chattels, nuisance Negligence was much broader History of the action for negligence Pre 1900 – no general “duty” No concept of duty, had to have privity of contract Liability for negligence only within defined relationships o Doctor – patient, Blacksmith – customer o Policy: Legal duty should not be imposed on someone unless they agree to it. Needed privity of contract (or something similar) Industrial revolution put pressure on this principle o Especially in products liability (no workers compensation either those days) Donoghue v Stevenson (1932) Facts: Ginger beer, a friend and a snail. Ms Donoghue was sickened by it. But there was no privity of contract. Her friend had bought it. HOL- Destroyed privity rule Narrow rule: New category of duty (manufacturers of dangerous products) o They are liable for what they manufacture, regardless of liability Wide Rule: the neighbour principle o You owe a duty of care to anybody that you can reasonably forsee will be effected by your actions o This was overturned in this case, but is now prevalent and widely applied. … Rapid Expansion of liability based on neighbor principle Who is my neighbour? “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions in question” (donughue v stevensen) o E.g. Expanded to direct economic as well as physical loss (huge shift in liability) o Pressure to expand to other kinds of loss (e.g. cultural heritage) and other neighbours o Rapid growth of insurance, rising costs of insurance and liability Growth slowed down in in the last few decades as SCC and HL limited development of new duties of care o Elements: the ABCs are too simplistic… A. Defendant has a duty of care o When does a duty arise? o What is the extent? Do I owe a duty to everyone who is affected by my actions, no matter how far removed in time, and distance? B. Defendant breaches the duty o How do we know the standard of care? o How do we know when it’s breached? o What about the actions of the plaintiff? C. Damage has resulted o What causal links? How far along the chain of causation? o What kind of damage? Just physical harm to person or property? What about the losses flowing from physical harm? Grief, loss of enjoyment, loss of salary, losses to third parties and businesses, What about pure economic loss – i.e. not flowing from physical harm? Klar/Linden/Feldhuesen elements (these are elements that are pulled out of the casebook) 1. Damage - Claimant must suffer damage (just physical? Mental? Pure economic?) 2. Causation - Damage must be caused by the defendant’s conduct (Cause in Fact)- have to show on balance of probability that accused caused the harm) 3. Breach of legal standard of care - Defendant’s conduct must be negligent 1. Have to know what the standard of care is, and must be breached 4. Duty - Must be a recognized duty to avoid the damage 1. Easy most of the time, but sometimes there is not a recognized duty 5. Proximate cause - Conduct must be a proximate cause of the loss (i.e. damage not too remote) (Cause in Law) 6. (is this an element?) Defences - Plaintiff’s conduct should not be a bar to recovery Jack v Pailmaker Damage – broken crown from fall Cause in fact - pail leaked water, did that cause Jack to fall? (have to show on BOP that this caused jack to fall) Duty – Does the maker of the pail owe a duty to people in Jack’s position? (when was it manufactured, whos had the possession of it). Breach of Standard of Care –what is the legal standard for pail quality (how many rivets, how much weight)? Was it breached by the pail maker? Proximate cause (cause in law) — In the circumstances, is the broken crown sufficiently related to the leaky pail such that there should be liability? Defences - Did Jack contribute to the damage? Important distinction We are now learning about negligence that causes physical damage to person or property Pure economic loss /Economic Torts - Negligence that causes only economic loss has slightly different elements and is taught separately. o E.g. negligent misrepresentation o E.g. negligent performance of services Element 1 – Damage There is no tort of negligence unless there is damage. Why is damage an element of negligence ? o Policy Improves deterrence, prevents floodgates| Defendants should not pay where no damage | Restitutio in integrum | Corrective Justice Element 1- Damage o The harm caused by the breach of duty (i.e. negligence) – compensable harm is limited to what was actually caused, physical harm, and “proximity/remoteness” of the harm. o Damage is quantified by damages. Damage v. Damages Defendant liable to compensate plaintiff for the damage caused, by payment of damages Damage: What harm was caused by the defendant’s negligence? What harm is compensable? Damages: what is the damage worth? Damages o NOT an element of negligence. o THE Remedy for negligence o Quantification of the damage – money Governing Principle – restitutio in integrum – restore the whole o Only want to restore them to where they were before o Exceptions: death, dismemberment Different heads of damage (categories) get different remedies (what you get): Head of Damage: Realty and chattels: o replacement with real value at time of loss o loss of use o cost of repair Head of Damage - Personal injury o Special damages Costs incurred before trial – loss of income, medical and other bills, Quantifiable o General damages – Non fatal injuries Pecuniary (your damages going forward, you can only proximate how much your loss of income is) o They are quantifiable o Loss of income o Cost of care Non Pecuniary (Things that cant be quantified) You cant measure how much your life is shortened o Pain and suffering o Loss of expectation of life Death o Fatal Accidents Act Special and General Damages up to time of death (there is no NON pecuniary damages, but there is compensation for frief): Compensation for grief of parents, spouses and children o Damages Punitive damages o Relatively rare o Outrageous or high handed behavior Malice, wantonness, insult, persistent, vindictive o Outside the bounds of the offence and defense of the trial. If you were really really bad. Damage (the element) (the harm caused by the defendants negligent act) Limitations Act o 2 years- Discoverability of negligence (its when you realize the injury was attributable to the defendant) o For the purpose of the 10 year law, its when the conduct terminates or the last conduct occurs (for negligence) This is different than discoverability Don’t need to have discovered the damage, you just run out of time for 10 years o Whichever runs out first Agreements and Suspension – Concealment, persons under disability, agreements When the defendant fraudulently conceals something (injury has occurred) then the limitations act does not start Fraudulent concealment to the plaintiff (ss 4) If you have a disability, it does not start to run until you are able (ss 5) If the defendant and plaintiff agree, then the limitation period can be changed (ss7) o Can only EXTEND limitations period, cannot reduce limitations period o An agreement and acknowledgement of extension has to be in writing. Not binding if its an oral agreement (ss 5,7,9) As a defence v barring starting an action Limitation does not extinguish the claim I can’t sue you but I still have a claim. You still have a claim and you can still do stuff with it. o Eg. Set off You could hold something back from someone if you had a claim o Eg. Epcor Power Epcor and the defendant had a dispute over how much they were gonna charge for power, and couldn’t decide, and then they just let it go. Brought it up again, and said if we disagree, we are going to go to arbitration. Other party said, you are out of time. Its expired but the claim is still alive, and can still be brought to trial. Alberta Limitations Act s. 3(1) compare Ontario Limitations Act s. 4 o Limitations Act Q: What damage is compensable? A: The damage caused by the negligent act of the defendant: o Damage to person or property, including “nervous shock” (psychiatric illness), but not grief, sorrow anxiety AND o Caused in fact (element #2) AND o Proximate (element #5) Whether damage is “proximate” AKA whether damage is “too remote” to be compensable If every negligent act was responsible for everything down the chain, it would get pretty ridiculous. This also decides how much damage is compensable Factual and Policy issue Foreseeability of the injuries (its not the perfect test but it’s the one of the more useful tests) Probability (also a little useful) Severity of injury Nature and degree of defendant’s conduct Relative financial positions Behaviour of plaintiff in response to injuries ( mitigation ) Compensation of plaintiff for blameworthy conduct Predictability and certainty of the law o ( Klar, Tort Law 5th edition at 496 ) Element 2 – Cause in Fact (aka Causation) The “but for” test and the material risk test Element 2 – Cause in Fact o Liability arises if the damage would not have happened “but for” the breach of duty (i.e. negligence). o This is 90% of tort actions o Thus, there can be a lot of causes to a tortious act. You don’t attribute liability according to what caused the harm. If the but for test is met, then you are liable o The exception was seen in clements, where they used material forseeaability test. This arises out of when two people act together. What they ask is “did the tortfeasor materially contribute to risk of harm occurring” material risk of injury o Except, if it is impossible to prove causation because there is more than one possible tortfeasors, the “material risk of injury” test applies. The “But For” test The injury would not have occurred “but for” the negligent act of the defendant Proof of cause, not negligence! o This is only for the cause, you still have to prove all the other elements of negligence Balance of probabilities o The injury would not have happened on the balance of probabilities but for the actions of the defendant Kauffman and TTC’s lack of railings o TTC did not put in railings. Even if this was a negligent act, this did not cause the injury. Even with railings she could have easily been hurt Mclaren’s heart attack o The rescue attempt was negligent, but could not show the negligent act caused the heart attack Most commonly used! o Speculative? Applying “But For”- Athey v Leonati Facts - Yoga instructor who got into two separate accidents and then hurt her back really excessing, so she had to have surgery General Principles- Plaintiff has to prove on BOP that but for their act, she would not have had the problem o Causation doesn’t need to be scientific, should be almost common sense It is not necessary to establish the defendants negligence was the sole cause of the injury defendants remain liable for all injuries caused The Athey case clearly demonstrates that a Plaintiff can recover 100% of his damages if the Defendant, by his conduct, contributed in some way to the Plaintiff s damages, even if that contribution is significantly less than 50% As long as a Defendant is part of the cause of an injury, the Defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: Defendants remain liable for all injuries caused or materially contributed to by their negligence. o Law does not excuse a defendant form liability merely because of other causal factors for which he is not responsible The ratio of that judgment is limited in scope to cases of multiple causations, where a tortfeasor cannot avoid liability for injuries or losses on the grounds that one of the contributing causes (even if a major contribution) emanated from the Plaintiff. However, it can also be said from the dicta in this decision that these principles can be extended to resolve other more complicated cases of causation. (material contribution) Defences put forward (want apportion and not be responsible for all of it): Multiple Tortious Causes o 2 or 3 defendants. 2 separate car accidents that both caused damages. o This is a good policy but does not apply to this case. When there are multiple tortious causes, then the money is split between the parties liable so plaintiff still recovers o BUT HERE, there wasn’t multiple tortious causes, there was tortious cause, and non tortious It would be bad policy to apportion between tortious causes and non-tortious causes o Legislation? She can sue one, and they can make it to the other one Divisible Injuries (this is not a case of divisible injuries) o One cut off my arm, one cutoff my leg. These are just separate torts. 2 separate claims o While yes, you can have divisible injures and each party is liable for that injury (you cut off foot, I cut off head), this is not so in this case. There is only a single, indivisible injury Adjustments for Contingencies o Take into account contingencies. This is not the same as the but for test however. o Its an apportionment of damages, not a liability issue, o Past events are not based on probabilities, its you either caused it or you didn’t o Future events like damages, can be based on percentages Independent Intervening Events o Its not intervening because the accident hurt the back. Its no something separate or independent o Still have to use but for test Thin Skull, Crumbling Skull o If you injure someone with a thin skull, you take them as you find the, If hes sensitive, it doesn’t matter. Oh well but you can take this into account for damages o Crumbling skull takes into account that they were already suffering something, so you don’t have to try and compensate them to try and fix what was already broken as well. When “But For” does not work Material Contribution Usually it’s the but for test that is applicable, but in the absence of the but for test (when it doesn’t make sense to use it or cant be used), the courts have used another test that said causation is established when where the defendants negligence “materially contributed” to the occurrence of the injury Clements v Clements 2012 SCC 32 Facts o They both shoot at the same moment, and one hits the farmer. Two negligent acts but cant prove which one hit he farmer. But for test doesn’t work (lewis) So they used material contribution Plaintiff claims “material contribution” test rather than “but for” - i.e. that defendant “materially contributed to the risk of injury” o Tire was punctured by nail, so both the motorcycle guy and the nail was relevant. She could not prove negligence caused harm o She could not prove the but for test, but she used material contribution Why? She could not prove defendant’s negligence caused the harm. THE BUT FOR TEST APPLIES ALL THE TIME UNLESS MATERIAL RISK OF INJURY IS RELEVANT. MATERIAL RISK OF INJURY WILL ONLY APLY WHEN TWO OR MORE PEOPLE ACT NEGLGIENTLY AND YOU CANNOT TELL WHO DID IT. IMPOSSIBLE TO SAY WHO CAUSED IT. Clements v Clements at 46 “(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required. “(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss;and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.” Negligence - Element 3 Standard of Care Standard of care = activity that creates an unreasonable risk of harm falls below the legal standard of care What is reasonable? o What the reasonable person would consider reasonable Take into account - likelihood of harm, severity of harm, remediation, utility of the activity Would the reasonable man see it as a mathematical problem (if cost of PL > cost of amelioration, then activity is unreasonable )? OR as socio-economic, contextual evaluation? (this is the right one!) Terminology alert Negligence – the tort (action for negligence) Negligence – o Breach of a standard of care, where the defendant has a duty of care or o Transgression of standards to be expected of a reasonable person or o Failure to take the care which would have been reasonable in the circumstances Negligence – careless/reckless behaviour “Standard of care” also known as “taking reasonable care”, “reasonable care”, “due care” What is “standard of care”? A Standard of behaviour - conduct is blameworthy if it creates an unreasonable risk of harm. o Key question is what is reasonable? Objective o The test of unreasonable risk is an objective test. Its what is reasonable under the circumstance--> How would a reasonable person view this risk, reasonable or not? Mixed question of fact and law o You have to prove a breach of reasonable care, and you have to do that by establishing fact, and certain law So you establish the fact that doctor left sponge inside, fact of what usual standards; And then as a matter of law, you have to see what is reasonable o Why do we care? If we appeal the case, the standard of review is narrow in appeal and mostly related to law. Not a matter of morality, motive o You can establish an unreasonable risk of harm totally blindly and innocent o All we look at is whether objectively, the risk is unreasonable Intertwined with duty of care o For S/C – have I created an unreasonable risk? o For D/C – do I owe a duty to the plaintiff to adhere to the S/C? Identifying the Standard of Care Reasonableness test Reasonable Person test Unreasonable Risk of Harm Is risk of harm created by defendant un/reasonable? o Degree of risk Probability (foreseeability ), loss, utility of activity, cost of remediation o Reasonable person test o Custom ?--> IN the past, custom used to play a bigger part o Statutes ?--> in the past, if you breached the statute, you would be liable Both custom and statutes changed over the past few years Bolton v. Stone (1951) - Woman hit by cricket ball off a pitch. The court looked at a lot of different things: Harm is reasonably foreseeable o Is it mathematical probability? How often did the ball go over the fence? o Reasonable probabilities v fantastic possibilities- how many people were on the road? Whats the chance of it finally hitting someone? Plus - severity of harm Its not a bomb Plus - Cost of compliance? Yes or no? o THEY DID NOT LOOK AT This in this case, didn’t really matter for them o Literature all said you look at the cost of compliance/ utility Probability of occurrence Once every three years? Once a day? Mathematical only? Magnitude of loss /Severity of harm Cricket ball or dynamite? One eyed mechanic Burden of remedial measures, Utility of activity The utility of the activity has been taken into account (how valuable is it) Burden of remedial measures is also important (different then utility, its about how much would it cost to comply Conflate? Examples o The burning sofa – Push a burning sofa out the window? It depends why you are doing it utility of activity to prevent your house burning down would be alright o Cost of medical care- have to treat people, its not a utility o society to not treat people to save money o Police chases – chasing criminal and killing other people on the way. They found that there was enough public utility … Economic test? Is Probability of Loss > or < Burden of precaution? o Is the probability of loss greater than or less than the burden of precaution. Whichever cost is lower, should prevail o If the cost of loss is less than burden of precaution, you take the loss o And thus, your behavior is reasonable Critique o No deterrent effect here o Are all harms measurable in dollars? NO o Can’t be case specific o Avoidance of harm v responsibility for action? it’s to minimalist of a test. We want people to take responsibility for their actions. We want to use the carrot not the stick. The Reasonable Person Hes not the judge or jury, he just is fictitious Looks at probability, degree of harm, utility/remediation from the perspective of the reasonable person Vaughan v Menlove (1837) - He built a hayrick on the side of the property, and his neighbor Vaughan kept warning menlove that it should be fine “it wont catch fire” it lit on fire and burned everything down and everything on vaughan’s property At trial… prudent man test What the reasonable person does is prudent On appeal … best efforts and bona fides test o Menlove did his best, he put a chimney, and therefore not negligent o Its too subjective, this is the big critique. Its measured by what the individual thought bad o Also cant have different standards On further appeal… man of ordinary prudence test o He was negligent because he created unreasonable risk of harm Reasonable person test – policy Subjective or objective? o Objective!!! What about stupid people or beginners? o And what about people that try hard? o IT DOES NOT MATTER Reasonable standard of care test does not take it into account stupid, beginners and people trying to be normal (when discussing the reasonable standard of care) Standard of perfection? o Its not perfection. If you are reasonable and cause harm, you wont be liable. Reasonable person is not perfect Proper to put judge or jury in the place of the defendant? o No, we don’t want to personify the reasonable person Blyth v Birmingham (1856) Frozen fire plug exploded when it got really cold and flooded basement Which test here? o They did use reasonable person test but they also took into account the bonafides test( did he take precaution) o Shows how they can intermix these tests Where does the reasonableness test apply? Every type of activity under the sun Custom as a test of reasonableness Breach of penal statute and reasonableness Custom and the reasonableness test Custom = community or industry practice Conformity or non conformity with custom is some evidence of reasonableness o This is the rule currently its dependant Plaintiff must prove custom and (non) conformity to try and prove deviation from the standard of care Policy – promote good practice Good industry and community practices Historically, conformity with custom was prima facie conclusive of reasonable care (not as strong anymore) E.g. Klyne v Town of Indian Head (hockey glass); This case were when courts looked at the community standard and saw that it was not that different from it, even though it was a stupid standard Cowle v Filion (child struck by car); Childs parents were following custom Ruch v Colonial Coach Lines (no warning re bumpy back seat) o Have to warn her that the backseat of the bus was bumpy. But no other busline gave warning, so it wa scustom and industry, so they were not liable Still a very strong indicia for professions and trades o Doctors e.g. Dentists, lawyers Waldick v Malcolm (1991) SCC Icy sidewalks Plaintiff must prove custom, no judicial notice Adherence to custom not necessarily proof of adherence to standard of care o A custom is not necessarily a reasonable standard of care. Its not the reasonable way to reduce risk of harm No amount of compliance with an unreasonable custom will make an action reasonable Also – Kaufmann v TTC What is judicial notice? court's recognition of generally known facts something so common in society that court takes note of it accuracy cannot be reasonably questioned No evidence needed to prove E.g. cars travel on the right side of the road Statutory Standards and reasonable care Issues 1. If defendant is convicted or charged with an offence – is that evidence or proof of failure to conform to standard of care? a. Is non-adherence to the criminal law is some sort of evidence of what a reasonable standard of care is? b. Determined in sasketchewan wheat pool c. This is the big question 2. Statutes can set or limit a standard of care or provide a right of damages i. E.g. Charter damages, liquor control, emergency powers, expropriation legislation ii. These statutes can set it Saskatchewan Wheat Pool (1983) SCC Facts: Pool delivers infested wheat to Board in breach of statute. Pool acted carefully. Board sues for damages for “breach of statute. ” o Pool acted totally carefully but under the wheat board act under the time: if you deliver wheat infected, you are liable. SO they sued for breach of statute Canadian law a mess b. Breach of statute is prima facie evidence of negligence? Prima facie liability for negligence? Absolute liability per se? c. Intention of legislature test Issue: is there a tort of breach of statute? Breach of statute is some evidence of negligence Not prima facie, not absolute liability Court, not legislature, decides whether there is civil liability Except if statute sets the standard of care Onus still on plaintiff to prove all elements No tort of breach of statute or negligent breach of statute -There is no such thing as these torts Consistent with o Move away from strict liability o Legislation creating specific duties and compensation schemes o Improper to conflate civil and criminal sanctions/policy Should not be mixing them up The use of statute to prove standard of care Rule in Sask Wheat Pool o There is no tort of “breach of statute” o A penal sanction in a statute is evidence but not proof of the standard of care o Breach of penal statute, causing damage, is evidence, but not proof, of [the tort of] negligence o Why? Civil and criminal objectives/policy are not always the same Negligence v Negligence Breach of penal statute sometimes amounts to breach of standard of care (negligence) However… Breach of penal statute sometimes amounts to entire tort of negligence ..when?? Breach of penal statute can amount the tort of negligence. When? 1. There is damage 2. The breach of penal statute amounts to breach of reasonable standard of care (Often the penal statue is essentially the civil standard of care )- i.e. the reasonable standard can be found in the statute “The statutory obligation may exceed the duty at common law or it may fall short of it, or it may equal it.” Eg. Bux v Slough Metals (goggles case ), Ryan v Victoria o When equal, breach of statute = breach of civil standard of care Traffic signals and rules of the road: Stop sign – failure to stop is breach of duty of care Compliance with legislation is not always adherence to standard of care o Ryan v. City of Victoria o Bux v Slough Metals (goggles case ) 3. The breach of penal statute caused the loss (passed the “but for test”) E.g. Johnson v Sorochuk – car has defective brakes in breach of statute. Court found breach of regulation did not cause damage to darting pedestrian. 4. Common law duty of care owed to the same people the statute aims to protect Hatch v. Ford Motor Co (hood ornament ) 5. The policy protected by the penal statute is the same as the policy protected as negligence ( proximate cause ) Gorris v Scott ( baa ) Why do I care about this? The underlying rule is that statutory breach is evidence of negligence In practice, there is no much overlap that some statutory breaches may be treated as negligence per se (note - headings in the outline are deceiving…) Standard of Care for Children, Disabled, Professionals Youth Mental or Physical disability Professionals Standard of Care for the young Tender years – no culpability: which is about kids up to 5 and 6, should not, and cannot be held liable. Cant be contributory negligent either Youth – standard of a reasonable child of like intelligence McEllistrum v Etches Heisler v. Moke except for adult activities Adult – normal foresight and prudence are expected Where are the cut offs between each? - Tender years v youth Heisler v Moke The test to be applied when determining whether an adult was negligent is purely objective. In the case of children, there are two separate questions to be determined. o 1. Is child past tender years? Whether the child, having regard to his age, his intelligence, his experience, his general knowledge and his alertness is capable of being found negligent at law in the circumstances under investigation. The particular child is to be considered. This test is very subjective. All of the qualities and defects of the particular child and all of the opportunities or lack of them which he might have had to become aware of any particular peril or duty of care must be considered. o 2. The second question, is whether the child exercised the care to be expected from a child of like age, intelligence and experience. (Standard of care for youth) 2nd question is whether the child was negligent at all, and to what degree? Similar to objective reasonable man test, except it’s a reasonable child. “what a reasonable child of that particular age could reasonably be expected to do and to forsee under those particular circumstances” … Youth v adulthood Note 5, p 207 Age of Majority Act may not be absolutely determinative? Kids become adults at around 16/17 “later teens” Other points Adult activities excepted!!! When young people are engaged in adult activity, they are now held to the objective standard as if they were adults. Like cars, planes, dirtbikes, atv’s (mcerlean v savel) Comparison is not to any reasonable youth, but to a reasonable youth of similar age and intelligence and experience. The elderly – should there be a similarly adjusted standard of care? Elderly are kind of treated like children, especially regarding driving (mckee v mccoy) Standard of care for the mentally disabled While compensation for the victim is still a worthy goal, that should not compromise the basics tenants of tort law If they are held to be liable, then it they are all no fault torts, so all torts become strict liability torts To find negligence, the act causing damage must have been voluntary and the defendant must have possessed the capacity to commit the tort. o Burden falls on defendant to show the absence of either In order to be relieved of tort liability when a defendant is afflicted suddenly and without warning with a mental illness, that defendant must show either of the following on a balance of probabilities 1. As a result of mental illness, the defendant had no capacity to understand or appreciate the duty of care owed at the relevant time 2. As a result of mental illness, the defendant was unable to discharge his duty of care as he had no meaningful control over his actions at the time the relvant conduct fell below the objective standard of care This test will not erode objective reasonable person test. It will preserve notion that a defendant must have acted voluntarily and must have had the capacity to be liable. Fault will still be an essential element of tort law Facts Issue: “innocent” defendant? Should the standard be relaxed or not? Arguments Normal Adult standard Two innocents – one who causes harm should pay Hard to find cut off for disability Encourage caregivers to look out Erode the current standard to become the foot test Stereotyping Relaxed standard But there is really no fault – strict liability Compensation, deterrence etc should be the consequence not the purpose of tort law Fault should go to liability assessment Fill in the gaps with gov’t programs Children and “suddenly disabled” have relaxed standard Better diagnostics Caregivers liable? (yikes!) Normal standard – outdated reasoning Comparison to other standards U.S. - mental illness not taken into account Quebec – “Where he is endowed with reason” Criminal – M’Naughton test Request treatment test – (?) Sudden disability rule – Known disability – Drunk – Unintentionally drunk Physically disabled Physical disabilities generally Partially subjective (deviated from pure objective). Person who is blind is not obliged to see, person who is deaf is not obliged to hear. But are expected to avoid getting themselves into positions of danger Reasonable person test, but can’t make the blind see, the deaf hear… Sudden disability if you suffer a heart attack in the car and crash the car and kill somebody, you are not liable If you knew your disability and/or drunkenness, more of a chance you will be held liable Professional NEGLIGENCE - DOCTORS AND MEDICAL PRACTITIONERS Professional negligence generally The standard of care required by a professional person is that degree of care which is shown by the reasonably prudent practitioner operating in like circumstances Access to facilities taken into account Juniors have same standard as seniors Experts must meet expert standard Locality is not a measure of skill Standard of care is the “industry standard” unless it is clearly unreasonable State of knowledge - at time of the tort Sound judgment, not perfection, is required Doctors and dentists Two Standards of care Treatment: Doctors must provide treatment according to the standard of a reasonably prudent doctor practicing in the same circumstances and, if applicable, according to the same specialization. Objective test Duty to inform: Before treatment, doctors must provide the patient with sufficient information such that the patient is able to make an informed decision about treatment Taking into account the objective risks and the circumstances of the patient Breach of standard of care for treatment = negligence Liable for damage caused by sub-standard treatment Breach of standard of duty to inform If there was harm from treatment (whether or not negligent) AND there was a breach of duty to inform (no informed consent) AND a reasonable patient in the patient’s position would have refused if properly informed Then, Breach of duty to inform= negligence i.e. Liable for any damage from treatment, if there was no informed consent and patient (acting reasonably ) would have refused Doctors have 2 standards of care 1. Standard of care for treatment - Must conform to a fair, reasonable and competent degree of skill o Eg. Challand v Bell, Swanson (SCC) 2. Duty to inform – informed consent for treatment a. Extra duty for doctors – duty to inform Guiding principles, issues General negligence principles There is always duty of care to clients/patients ( Element 4 ) Contractual relationship in addition to duty of care Expert knowledge, unknowable by lay person – protection of client Allow professionals to practice Autonomy of clients 1. STANDARD OF CARE FOR TREATMENT What is the standard of care for doctors, lawyers and other professionals? (challand v Bell) The care required by a professional person is that degree of care which is shown by the reasonably prudent practitioner operating in like circumstances. Klar Tort Law at 395 Doctors, surgeons, and dentists should show a fair, reasonable and competent degree of skill. Not required to have the highest skill REASONABLE UNDER CIRCUMSTANCES Take current state of knowledge into account - judged based on knowledge available at time An “error in judgment” may be negligent, but not necessarily o Judgment must rely on professional knowledge, expertise and skill No expectation of perfection o An error of judgment MAY OR MAY NOT be negligent. It depends on the nature of the error If it’s a dumb judgement, its still negligent In Neuzen v Korn, Sopinka states that if they say they have a certain skill level, they must posses the skill level of an average specialist in that field Customary, common practice is the standard of care - Unless action is not part of professional activity (Neuzen v Korn) o In regards to customary practice, it is assumed that the medical profession has adopted the procedures that are best practice and are not inherently negligent o If it’s a complex, uncertain, or tough matter, a standard practice wont be negligent. BUT if they fail tot take obvious and reasonable steps/precautions, then that’s not good Considerations: - Specialists – including surgeons Beginners – no exceptions. The same degree of skill is expected of an inexperienced surgeon as of an experienced one Interns – what is reasonable for intern. Standard of care is that of a reasonably competent intern. They also need to know their limitations and when they should be cautious. Location – no exceptions/ Rural doctors should keep up with new developments but a few people say they should be held to a lower extent. But not really Extent of Standard of Care - Follow up on patient activity - - o What if doc sends patient home, who gets injured further? Doctor under disability – no defence Report child abuse o Child Youth and Family Enhancement Act s.4 o Statutory requirement to report child abuse if reasonable and probable grounds exist o No cause of action can be brought against the one who reports Not performing treatment due to cost constraints o Not a defence to negligence o Cost containment you have to reject “product-line medicine”, cannot make medical decisions based on whats cheaper. IF doctor has to choose between treating patient and the medical system, patient is always number 1. (vos v Robertson) Other Medical professions Standard of care specific for their profession Other related professions have standards of care that are related to their field, not doctors (Emt judges to reasonable emt) Proving Negligent Medical Treatment - P must prove standard of care and breach o Usually use expert evidence Unless self evident (eg. sponges/gloves left in body after surgeon) - Proof really hard to prove things so must rely on expert witnesses, but some doctors don’t want to rat their own out: “conspiracy of silence” o Judges are also reluctant to second guess doctors o Expert evidence is not always required (judgment call made by one person. 2. DUTY TO INFORM Duty to disclose, duty to ensure informed consent o Called a duty – but this is a standard of care Reibl v Hughes – Battery if: o No consent given at all o Treatment is beyond consent (eg. consent to amputate leg, doctor amputates arm) o Fraud Lepp v Hopp (1980 SCC) o Doctor must disclose: 1. Nature of the proposed operation 2. Gravity of the operation 3. Material risks and any special or unusual risks o What if there is no proper disclosure? Did failure to disclose cause the damage? Aka “If I was properly informed of this risk I would never have had the surgery” Reibl v Hughes - P underwent surgery for carotid artery, during surgery P experienced stroke and became seriously disabled, if P put off surgery for one year benefits would have provided for him - P sued Doctor D, claiming that D did not properly inform P of risks - P claimed that if he was properly informed he wouldn’t have had the surgery Decision: - Causation test: o Given there was breach of duty to disclose, would reasonable person in P’s position have declined the treatment? - Policy balance – interests of doctors and patients o Considers P’s reasonable fears and interests - “modified objective” test for causation o Has objective and subjective components Modified Objective Test of Causation: o o o 1. Doctor informs patient of risks 2. Patient consents and undergoes treatment 3. Harm occurs as a result of treatment Question 1) was the info provided in accordance with duty? If no, then Question 2) would a reasonable patient in P’s position have refused treatment? If yes, Failure to inform patient caused the harm Deals with both subjective and objective thoughts of the person and whether a reasonable person in the circumstances of the plaintiff would have done if faced with the same situation. (have to look at what the patient was experiencing) The more subjective the test becomes, the better for plaintiffs (because its what they were thinking) What must Doctor disclose? The onus is on the doctor to prove that patients understand the information being given to them. Thus it is recommended that info be given face to face, but this is not required Both material risks ( small chance of serious injury, large chance of small injury) and Unusual or special risks (not common ordinary matters) will need to be disclosed Whether a risk is material is not solely to be determined by professional standards, just a guide Dangers inherent in any operation need not have to be disclosed (anastheia) Reibl v Hughes – what info must be disclosed o Nature of treatment o Material risks of treatment o Material risks of not having treatment o Alternatives to treatment o Special or unusual risks of treatment - Info given must consider emotional state and intelligence level of patient o Can generalize info - What is “material risk”? o Likely and/or severe harm o If inquired about by patient o If Doctor knows or should know about patient interests o Relevant to patient’s decision to undergo treatment Cory v Bass Tautological definition - What is “special or unusual”? o Probability of risk still plays a factor in determining what should be disclosed Establishing Standard of care for disclosure - Material risks differ in each case o Experts can testify to the objective risks What is practice standard? What is likelihood, physical severity of risk? Canterbury v Spence p.228 o Patients and families establish impact of risk on P Provide evidence on impact of risk on P Experimental and cosmetic procedures - More disclosure required - Risks are unknown, may outweigh benefit Doctor’s inexperience or disability - Don’t have to be disclosed Policy and Practical issues in Medical Negligence If it helps doctors be better helps patients make better decisions, and more trust in doctors, then reibl v hughes is a good thing Subrogation – right to assume P’s claim. Right to assume the plaintiff’s claim- the act allows the gov’t to pay out claims on half of the P, then sue D. Insurers and/or government under Crown Right of Recovery Act, (s38) – pay out claims to the plaintiff and then sue the defendant, in the plaintiff’s name Hospital’s Act, insurers Structured settlement o Large sum of money designed to pay P over time for large damages/injury Used to pay damages Contingency fees Lawyer takes case for portion of winnings Lawyer undertakes case on behalf of plaintiff in return for a share of the damages-downside, risk of a lawyer. Risk of P, contingency fees can be unfair. Also sometimes lawyer’s pay loan money to client. Plaintiff only liable for disbursements Law Society limits this activity Lawyers- Standard of Care Generally Brenner v Gregory - a classic statement of the duty. Lawyer was accused for neg, didn’t order a survey about an encroachment on a street. Client was aware that some of the property he was buying was out of the land. Court took into acct that the client knew of the encroachment, and the instructions to the Client- do the transfer. Courts said the obligation is to exercise due care! Court used expert evidence to prove standard of Care. Judges will often have their own opinions about what is reasonable for a lawyer given the circumstances. Take into acct what the client is telling you to do (scope of retainer, specific constructions), everyone knew that the P knew of the risk of encroachment, it was implicit in the instructions that the lawyer was not going to take responsibility for that. The obligation of a solicitor to exercise due care in protecting interests of a client …will have been discharged he has acted in accordance with the general and approved practice … o … unless such practice is inconsistent with a known risk, as where particular instructions are given which the solicitor fails to carry out (Brenner v Gregory) Factors = o o o o o Client interests are central Expert evidence used (judges may take notice) Judges may take notice themselves as lawyers Clients instructions to the lawyer Risks known by the lawyer Characteristics of the lawyer’s standard of care Lawyer- SoC- is limited by- interest of client and what they tell you to do. Inherent in a retainer letter, is what services you will carry out. Inherent in the retainer provided for the client Carry out all services to achieve the requested task In the interests of the client Documents will be legal and enforceable Arrangements for client to be reasonable and workable Affected by o What did the client ask for? o What did they really want? Perfection is not the standard - DO it legally. All of the above are looked at in order to achieve the SoC. Issues Duty in contract v duty in tort (you don’t need a contract to sue in neg). problem of duty in retainer contract v duty in tort – how do you reconcile duties under the contract and duties under the tort of negligence Arises when there is a contract with the professional that gives rises to certain duties and obligations towards the client but also duties under common law tort of negligence used to be that you could only sue in contract if you had a contract. It limited you to looking at the services of the contract (no broad test). Early 1900’s, “well I want to sue the lawyer in court as well”. If you have a contract with someone, and its to provide services, you have a DUTY OF CARE (4th element), Contract for services is a close relationship, and so there is a duty! If the contract includes tort liability or extends limitation liability, you have to look at that. Arises when there is a contract with the professional Establishment of tort of negligence and standards of care for professionals = be able to sue under retainer contract for breach OR sue for negligence even if there was no explicit duty under contract Established that contractual duties may not be sufficient for duty of care – need to meet the negligence professional standard of care If contract of retainer has some limitation on tort liability – then that will apply and modify; however, most do not because you cannot contract away/reduce your standard of care towards your client Central Trust v Rafuse (1986) Duty of care arises when there is a contract Because there is sufficiently close relationship Cannot circumvent contractual limits on liability The question of lawyers who specialize – self- proclaimed, so you hold yourself out that way (reliance by client) and your fees- characteristics that are looked at for specialization. Are specialized lawyers held to a specific or higher standard of care than general lawyers? Elcano Specialists will be held to higher standard (lawyers who specialize)- can’t specialize in the same way that med people do (no special exams). P said redo promissory notes, senior council handed it to someone below, they missed a provision about interest rates being monthly vs yearly. Promissory notes were invalid. Client couldn’t sue on the promissory notes , was the firm liable? 12/13 experts didn’t know about the provision, and they always put yearly interest rates. Court said, on either standard, this care is below the standard of care, you cannot miss a section like that. In law, if you hold yourself out that way, you will be held to the standard of care. Clients who ask for rushes- this is a problem, there is no excuse of lower standard of care if clients ask for rush. Make sure it is a rush! Lawyer is wise to say “ do you understand that the quality of my service might be jeopardized, and that you must accept that risk”. Advocacy and conduct of trial- hard to establish negligence in the course of a trial – during advocacy and conduct of trial Hard to establish- hard to est, court does not like or resists when a criminal client says that their lawyer was neg. There is a temptation to use that to get a second crack at appeal. Courts will look at this pretty skeptically in deciding whether the lawyer was neg (abuse of process, lack of credibility, wanting to get a better outcome). Judges will step in if they think the lawyer is below SoC. Problems with plea bargainclients sometimes say lawyers were neg with plea bargain, and think they could have gotten a better deal”. Loss of a better result though is not rellly a harm you can sue for… Proving “Better results” Forces “Trial of a trial” Loss of chance Judges Immune – lawyers are under supervision, and are more likely to not be liable in the court room because of the above mentioned. Judges- look at capacity, ex manitoba judge. Are immune from liability. Third parties (who are injured by lawyers negligence) What if I am not the client, but am injured by lawyer’s negligence? Duty owed to them? Ex. At least for Wills there may be a duty. Broaden’s liability though for lawyers, everyone touched by neg could have an action. What about people in the promissory notes case, the client of the lawyers client…they will be injured by neg of lawyer. Policy issue!! Proximity. Policy issues Wills and Succession Act s. 37,38,39 – If Will is executed w/o witness, as long as you can prove the intention of the testator, the Will can be proved to be valid! Court can add or delete characters or words, if it is satisfied that testator’s intention didn’t come through because of the lawyer. If you have evidence that the testator (who is dead), the court will rectify the Will.--> fixes problems of lawyers making mistakes in drafting Other Professions…same princples applies… Brendan and Gregory Case- Court was looking at clear departure from care. Gross or Aggravated Neg Defined Marked departure from standard of care Very great negligence – SCC Negligence, gross negligence and recklessness - A fool, a damned fool and a G-D fool Judge Magruder Can be one act or a compilation of acts Defines the act, not the result/consequences… AKA willful or wanton misconduct, recklessness Legislative and contractual provisions- that.. Limiting liability to the tortfeasors, to gross neg/misconduct. Used to be that you could only sue the host driver is driver was grossly neg, that is gone in AB though. Lots of legislation that limits liability. Municipalities, only liable in some circumstances if they are grossly neg… Does not change rules for quantification of damages Snow on roads 531(1) A municipality is only liable for an injury to a person or damage to property caused by snow, ice or slush on roads or sidewalks in the municipality if the municipality is grossly negligent. (2) A person who brings an action claiming gross negligence described in subsection (1) must notify the municipality of the event that gives rise to the action within 21 days after the occurrence of the event. (3) Failure to notify the municipality bars the action unless (a) there is a reasonable excuse for the lack of notice, and the municipality is not prejudiced by the lack of notice, (b) death is the result of the event complained of, or (c) the municipality waives in writing the requirement for notice. Municipal Government Act 1994 cM-26.1 -this can also be in a waiver form! (gross neg part) Onus and burden of proof generally We are talking about the burden of proof for proving negligence (negligent action, not the tort) For proof of negligence, Except for statutory changes, the general stand is that the onus of proof is on the plaintiff Its based on balance of probabilities Wakelin v London: “it is incumbent on the plaintiff in this case to establish by proof that her husbands death has been caused by some negligence of the defendants, some negligent act, or some negligent omission, to which the injury is attributable. Concepts What does a trial look like? Prove all elements, onus on plaintiff to bring it to 50% Plaintiff proves, unless the onus is reversed Balance of probabilities (for each element) Submit sufficient evidence to establish Damage Standard of care and breach Cause in fact Duty Proximate cause …In accordance with the legal test for each Proof of breach of standard of care May be by direct evidence May be inferred Former doctrine of res ipsa loquiter Even though no body saw it happen Duties of trier of law v trier of fact Evidence Direct evidence of facts See it, feel it, hear it, smell it, touch it Saw car swerve and hit deer Indirect evidence Things from which facts can be inferred When you dont have direct evidence, you can use circumstantial evidence to infer negligence Circumstantial evidence Car in ditch, skid marks, dead dear on road Role of judge and jury (we don’t use Jury, BC does. But can still think about the functions) Trier of law - Role of the Judge o Whether there is enough evidence to proceed o What law/test/rule should be applied (but for, or material risk, etc.) o Is there any evidence? o Can the law be applied? o What law should be applied? (but for test, or material risk test) Trier of fact (jury, if there is one) o What the facts are o Whether the law should be applied to the facts ON A BALANCE OF PROBABILITIES o What facts are proven? Which story is more credible (black or white)? o Whether the law ought to be applied. (given the facts you were given, what would a reasonable person do, and did the person breach that standard) Examples Allegation: negligence - construction material blew off building and struck plaintiff. Judge and jury hear all evidence. Jury finds facts based on evidence: There was construction material left on the roof of the building. The wind was very high. The material was tied down well. Defendant owned the building. Judge: There is enough evidence to proceed. “The law to consider is: What would the reasonable person have done in the circumstances and did the building owner breach this standard of care? Did the injury happen ‘but for’ the breach?” Jury: yes or no First class car (no 346) of 1887- (Metropolitan Rwy v Jackson (1877)) Facts: Train is overcrowded. No employees around to stop overcrowding. Mr J a passenger, puts hand out of the train car the to keep others out, porter shuts door. Hand badly injured. Judge sends case to jury. Jury awards damages. Issue: Did judge err? Was there enough evidence to send it to the jury? Was there a sufficient amount of evidence? Decision: Yes. There was no evidence on which negligence of the defendant could be established. Overcrowding may be negligent, but no evidence of causation. Porter shutting the door is just doing his job: no evidence of breach of standard of care. • Jury cannot decide whether there is enough evidence to apply the law • Jury can decide what facts are shown by the evidence and whether law ought to be applied. Mixed fact and law Most negligence questions are mixed fact and law E.g. “what is the standard of care, and was it breached?” Legal aspect (what is standard of care) and factual aspect to the test (was it breached?) E.g. “but for the breach, would harm have resulted? Presents appeal difficulties Standard of appeal High deference for fact finding, and mixed fact and law - Appeal court will not overturn unless palpable and overriding error eg Wakelin v. London (HL) Less deference for error of law only – Appeal Court will overturn if incorrect. It is correctness. E.g. Elcano Acceptance – specialist case Inferring Negligence Circumstantial proof and inferring negligence Res ispa loquitor (the thing speaks for itself) was first introduced in byrne v boadle (flour falling on head) but now useless, and the jurisprudence will be guided by fontaine v insurance corp What we’re talking about … Proof of breach of standard of care o Different from proof that breach caused the damage proof of damage Inferring negligence Byrne v Boadle (barrel of flour fell on head) o Prima facie negligence – Didn’t have direct evidence. Reversed the onus, all the plaintiff had to do was show barrel fell on his head through the window. Defendant then had to disprove negligence. o Res Ipsa Loquitur A presumption ???? Not Reverses the onus Fontaine v ICBC o Two guys who had gone hunting together died, there was a rainstorm and both found in their seat o not enough evidence to draw an inference, don’t have enough evidendnce to proceed o We don’t know it went into he ditch, hot or cold, raining or not o Circumstantial evidence of negligence Inference may be drawn May or may not be sufficient to prove case may de facto create a prima facie case o In this case there wasn’t enough circumstantial evidence to bring it to the jury o Court was saying you can use inferential evidence to push yourself along the balance of probabilities. You must have circumstantial evidence to put yourself close to, or past 50%, and to bring it to the jury(trier of fact) Have to have enough evidence to get to 50% o The defendant then has to bring evidence to push it back lower than 50% o THIS DOES NOT REVERSE ONUS Plaintiff still has to bring evidence, all that changes is that negligence can be inferred from circumstantial evidence expiry of res ipsa loquitur The thing speaks for itself o A rule of circumstantial evidence o Historically confused and confusing no longer exists o Most cases can be explained using circumstantial evidence analysis The Court rejected the use of res ipsa loquitur and instead proposed the rule that once the plaintiff has proven that the harm was under exclusive control of the defendant and that they were not contributorily negligent a tactical burden is placed on the defendant in which the judge has the discretion to infer negligence unless the defendant can produce evidence to the contrary When using circumstantial evidence…There is no reverse onus Trier of law decides Whether there is enough evidence to draw an inference If there is no evidence, then it cannot go to the jury. If the trier of law thinks there is enough to draw an inference, it goes to the jury Trier of fact decides Whether an inference can be drawn i.e. whether evidence shows breach on a balance of probabilities Plaintiff’s evidence Enough to infer negligence? Case can proceed If there isn’t enough evidence to infer negligence, defendant can apply for non-suit Enough to prove negligence? – i.e. breached standard of care? Up to Jury after hearing all the evidence Weak inference may not = proof Does not reverse onus (formally) Defendant needs to provide evidence to neutralize Example – weak inference Allegation: negligence - construction material blew off building and struck plaintiff. Judge and jury hear evidence. Jury finds facts based on evidence: There was construction material left on the roof of the building. The wind was very high. The defendant owned the building. Judge: There is enough evidence to proceed. “The law to consider is: What would the reasonable person have done in the circumstances and did the building owner breach this standard of care? Did the injury happen ‘but for’ the breach?” Jury: yes or no Can we infer negligence? Example - weaker inference Allegation: negligence - construction material blew off building and struck plaintiff. Judge and jury hear evidence. Jury finds facts based on evidence: There was construction material left on the roof of the building. The wind was very high. The defendant owned the building. Defendant had tied down the material and put a cage over it. Judge: There is enough evidence to proceed. “The law to consider is: What would the reasonable person have done in the circumstances and did the building owner breach this standard of care? Did the injury happen ‘but for’ the breach?” Jury: yes or no Multiple defendants/negligent acts – proof issue Unexplained cause Inferring breach of standard of care – multiple defendants Leaman v Rae Facts (two cars smack into each other. Judge cant figure out what happened. Both said they were on the right side. But on evidence, it looked like both were negligent, so both were held to be equally liable. Result: both liable When there is negligence on both parties, and you cant distinguish between the two parties, both parties can be held equally liable for damages Negligence can be inferred; if cannot determine degree of negligence, both sides equally liable Different from Fontaine how? What was the evidence of breach of standard of care in Fontaine? We know way more in leanman What was the evidence in Leaman? Two cars, smack into each other, where exactly it happened Enough evidence to infer negligence (breach of standard) It was reasonable to infer that both cars were being negligent Must be sufficient evidence to infer breach of standard of care by one or both o Wotta v Halliburton (not enough to infer someone breached standard of care) o Haswell v Enman (257, one plaintiff dead, other amnesia from car accident.TJ used Contributory neglegince act Fault can be attributed to all the tortfeasors. BUT THE APPEAL SAYS YOU ACTUALLY HAVE TO HAVE THE TORT OF NEGLGIENCE FIRST BEFORE YOU ATTRIBUTE IT. It should be emphasized that there must be some evidence that BOTH parties were negligent; if the proof indicates that one or the other of the parties ere to blame, but not both, the action must be dimissed o Must prove negligence on both parties for there to be multiple defendants. A person CANNOT be held liable if they were not at fault (committing negligence) o In Haswell v Enman, one party died, and the other had amnesia absence of evidence. Many possible defendants Ybarra v Spangard Negligent act (scalpel breaks during the procdure), no proof of who did it (manufacturer, nurse, doctor). HE SUED EVERYONE All negligent because we didn’t know who did it you will all be held liable because evidence would be good enough This case was followed by Anderson v Spombeg, where the court said that each defendant must come forward and disprove their negligence (burden of proof shifts) Difference between Ybarra and Clements (mr and mrs clements on motorcycle, but for his negligence, would she have been injured) Proof of breach of standard of care v proof of causation (material risk test) Material risk test not applicable to proof of breach of standard of care In Ybarra, causation was proved, but WHO did it, was not proved Reverse onus created by statute and common law Reverse onus caused by statute Traffic Safety Act RSA 2000 c T-6 ss185 and 186 Onus shift where breach of Traffic Safety Act If you drive, run yellow light, and crash and cause damage, breach of TSA is de-facto breach f standard of care, so therefore ONUS IS ON ME to prove you didn’t breach it. Onus shift where pedestrian injured driver’s duty to disprove negligence In a collision between two motor vehicles, it will be ordinary onus of proof, not in breach of TSA Onus to prove that they are not negligent is on the driver. Done because it was very hard for plaintiffs to prove this It creates a rebuttable presumption of negligence. IF at the end, its too balanced, decision will go to the plaintiff. Reverse onus caused by common law Direct damage, negligence and the trespass action Dahlberg v Naydiuk Inferring Causation • We have already discussed this when discussing Cause-in-fact, the “But for” test and the Material Risk test. Clements v Clements 2012 SCC 32 is the leading decision. It has overtaken much of the material in the casebook. • Alternate theories of causation Loss of Chance: Materially a risk of injury is an injury in itself. To negligently deprive a person of a chance to avoid an njury is to damage that person – has been rejected by Ontario and Manitoba courts, note 3 at 264 Market Share Liability - Sindell v Abbott and Note 1 at 279 • If a drug kills somebody, not sure what company manufactured or sold it, everyone will be held liable dependant on their market share of the product. Element 4 – Duty of care Element 4 – General Concepts and history Normally not a huge issue in most tort cases, especially when there in injury, because you presume duty if someone is hurt. More common when there is a novel duty involved In the very beginning Action in trespass o Direct … contact, threat, confinement . You were liable if you were direct. o Intentional o No damage – didn’t care about this either No issue about o Relationship between plaintiff and defendant. We didn’t care about this o Causal link between act and damage Then negligence emerged … Originated as an “action on the case” o A form of application to court o Used where there was a wrong, but facts did not fit the writ of trespass (writs were too narrow, so these emerged) o Evolved to allow cause of action where there was a failure of service, or agreed to duty Pre Donoghue – categories of relationship (courts were going relationship by relationship). Policy – people don’t assume a duty except by acquiescence. They have to know or agree to a duty. Post Donoghue- Policy – people owe a general duty to take care (love thy neighbor) Parties in a “neighbour” relationship in addition to parties in a categorized relationship Breach of standard of care Cause in Fact Property or Personal damage Donoghue - My neighbour (Snail in ginger beer case) Those to whom there is a “Duty” to take care “Persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called into question” People who I should reasonably be thinking about if I act badly. But who the hell is that? Is everyone in? critique of this, everyone is included, wtf. Duty to those who are so closely and directly affected by my act that I should have them in mind when acting Or, those who are in a relationship sufficiently close that it is reasonable to foresee that they will be injured by my careless action Established principle that duty of care is not confined to a closed list of specific relationships, its an open ended concept Limits of liability problems o Who is my neighbour? o For what damage am I liable? Its much more significant if we don’t know who the neighbor is “Solved” by principles of o Duty of care o Proximate cause - Element #5 o Endless possibilities for neighbour status? The categories of negligence are never closed. The cardinal principle of liability is that the [defendant] should owe to the party complaining a duty to take care and that [plaintiff] should be able to prove that he has suffered damage in consequence of breach of that duty. Where there is room for diversity of view is in determining what circumstances will establish such a relationship between the parties as to give rise on the one side to a duty to take care and on the other side to aright to have care taken. o Lord McMillan in Donoghue Purpose of duty principle: o limits the extent of liability for negligence o Principled rules to guide who has an action, who has a duty If there is a general duty of care… Who’s in? Neighbour rule applies 90% of cases Drivers and users of the road Relationship of service – doctors, lawyers, teachers, caregivers Neighbours (physical neighbours) Manufacturers and products liability (people who we encourage to buy or manufacture to buy) ABC rule applies 90% – duty to maintain standard of care, breach, damage Who’s out? What are the limits? Is everyone my neighbor? What about purely economic loss? (there is duty owned in business relationship, but there are policy issues) Government/Crown action? (big issue, if they are liable for every act) The test for deciding who’s out… Anns v Merton London Borough (1978) (the ”maisonette” case) Builder making maisonettes, and had to have a foundation of 3 feet. Maisonettes sold to owners, and after a few years, it srted to crumble. They found out it was 2 feet, 8 years. They could not sue contractor, so they sued the regulator. Regulator said we don’t have sufficient control or proximity Test: Prima facie duty of care arises if there is a sufficient relationship of proximity or neighbourhood such that it is reasonable that carelessness by defendant will cause damage to the plaintiff Rebutted by policy considerations that may limit the scope of duty Cooper v Hobart A problem with the anns case said it squished together proximity and neighborhood New Duty found if Harm to Plaintiff reasonably foreseeable, and a proximate relationship There is no external policy reason to oust a duty of care THE Test If Parties relationship doesn’t fit existing category then that’s when you move to the anns/cooper analysis Duty if parties are in one of the already recognized categories (analysis ends there, if its doctor/patient, lawyer/client these are already established) Stage 1 - Harm to Plaintiff reasonably foreseeable, and a proximate relationship Onus on Plaintiff Is the harm to this plaintiff foreseeable? o Consider: P’s ability to handle situation – either through youth, intoxication, or incapacity Is there a proximate relationship – policy test applied to party’s relationship (The proximity analysis of the first stage is focuses on factors arising out of the relationship, and include questions of policy) o Stage 1 policy considerations – as between plaintiff and defendant: What about their relationship makes it fair that someone is their neighbor? Physical proximity Reliance Representations (promises to provide service) Just and fair Property or person Relationship If yes to Stage 1 (foreseeable and proximate) - Prima facie duty of care Stage 2 – Is there no external policy reason to oust a duty of care?? External Policy considerations that may oust duty For society, legal system, commerce, respect for division between judicial and executive branch etc Defendant has to prove this Stage 2 policy considerations – society’s interests (Defendant has to prove why you should not have them do this) Impact on legal system Other remedies available? Other legal alternative paths? Indeterminate classes? Improper interference with executive branch Policy v operational decisions in government o Government policy cannot be analyzed here, but carrying out or executing policy is ok Improper interference with judicial (quasi judicial) functions Onus is on the defendant to prove step 2. 8 reasons why it could limit scope Flooding the courts with trivial cases Denying essential public services A parellel system of justice is available Another field of law is more appropriate to resolve the matter Danger of collusion between families Interference with separation of powers Likely negative behavioral responses Certain fact situations should be kept out of tort law’s reach Cooper v Hobart - applying law to facts ( P sues D for delay in suspending investment company, causing her to lose more money than necessary) Stage 1 – as between the investors and the registrar Foreseeable? - perhaps Proximate? – no o Reviewed Statutory powers Not the person (have to look at the registrar, not the person) FAILED ON STAGE 1B Stage 2 – considerations outside the relationship? Imposing duty would impact o The making of Policy and Quasi judicial decisions regarding licences o Duty owed to public and private interests o Policy making power ( side bar – Just v AG BC) o Unlimited class of plaintiffs o Cost to taxpayers o Whether taxpayers are insurers Government owes duty if its in the operating sphere, but not for policy sphere They are liable if they do a crappy job executing their policy (negligent inspection of the roads) Strategic consideration Who has the onus to prove Stage 2?--DEFENDANT Analysis is by categories of relationship o Eg. Hill v Hamilton Wentworth Regional Police Police are not immune from liability, and owe a duty of care in negligence when they investigate suspects. Tort of negligent investigation exists requires police officers to act reasonably-> reasonable officer is the standard Snap test Apply the Cooper analysis to o Parent child relationship generally and Mom raising child badly Child leaving toys around, dad trips over toys Parent driving car, child in back – parent causes car accident Childs v Desormeaux Facts: Demoreuz had a BYOB NYE party, and had some alcohol as well- someone left there (with a drinking problem) and drives off druk and paralyses someone Issue – does a social host owe a duty of care to a person injured by his drunken guest? Analysis Stage 1 o Looked for precedent – none Foreseeable - that Mr. C would hurt plaintiff? No, on the facts Proximity – is the relationship between the social host and the plaintiff sufficiently close? No for policy reasons social hosts don’t have power or incentive to supervise guests, no regulations - not like tavern owners No reliance on a social host to control OOH No creation of risk, no ability to control risk Nonfeasance – would require Ms. D to interfere with guests’ autonomy Compare to Commercial Host o Can monitor consumption Have incentive to monitor consumption (if they don’t, their patrons don’t pay) social hosts don’t havr this o Sale and consumption is regulated by law (not for social hosts) Shapes attitudes Special training Patrons, public and owners expect and respect regulation Bouncers and other means to regulate o Contract with patrons, benefits from overconsumption You don’t have this contract with social host SO NOT LIABLE—Didn’t consider stage 2 …Unforseeable plaintiffs Look at the facts, and ask: is the damage to this plaintiff reasonably foreseeable? If no, then no duty Difficult to predict foreseeability (whats reasonably forseeable for you, doesn’t mean it is for everyone else) Examples of unforeseeable plaintiff Hay (Bourhill) v Young o Getting off a bus, and motorcyclist passed the bus, hit a car, the guy died. She suffered shock. SORRY, you are not a forseeable plaintiff. o There is no negligence in the abstract, has to be a duty of care TO THE PERSON HE SHOULD FORSEE Childs v Desmoureaux o Even though they knew he was a drunkard, its not forseeable he would crash a car into you Palsgraf v Long Island Railway guy pushing someone, that set off chain of events that resulted in a woman being hurt. It was completely unforeseeable Law v visser ran over a drunk guy, he should have known Unborn Children Damage to fetus by third parties Damage to fetus by third party – A tortfeasor is liable to an unborn child who has suffered a pre-natal injury caused by negligence Duval v Seguin (1999) o Ms duval was pregnant, seguin damaged the fetus vy car accident, fetus suffered injuries o Child en ventre sa mere and injured in car accident o How did court handle the fact a fetus is not a human being at law? You can sue when the baby is born and injured, there is a duty during pregnancy, but it is perfected when he/she is born Procreation is entirely foreseeable, Pregnancy is entirely foreseeable, When the child is born with injury resulting from prenatal accident, the cause of action is perfected Damage to fetus by mother? Policy issues o Causes of damage – negligence, ignorance, intention, illness o What about abortion? o What if they have autism? Remedies – Prevention means imposing treatment on mother Damages – realistic remedy? o Policy of tort law achieved? Deterrence? Compensation? o Legal Status - fetus is not a person o Family relations o Family finances o Insurance Dobson v Dobson o Mother got in a car accident, grandpa sued the mother, testing the insurance. o No duty of care to fetus, nothing to the unborn child!! Mothers are not liable for damage to their own fetus no standard of care o To do so would intrude into bodily integrity, privacy, and autonomy o Against public policy o Major dissented saying there should be a standard of care Maternal Tort Liability Act • Limited to driving • Exception to Maternal tort liability where child injured because eof mothers acts before he was born • S.4: “A mother may be liable to her child for injuries suffered by her child on or after birth that were caused by the mother’s use or operation of an automobile during her pregnancy if, at the time of that use or operation, the mother was insured under a contract of automobile insurance evidenced by a motor vehicle liability policy. Child born alive If the child is born with injuries and was hurt by car accident, he can sue the mother. Insured activity Limits of policy Limited exception DOBSON IS THE RULE, EXCEPT FOR THIS ONE STAT EXCEPTION Failure to Act, Duty to Act Is there a positive duty to act? Duty of care – take care when acting Nonfeasance – no duty to act Misfeasance – duty to act General rule (nonfeasance) No duty to take positive steps act – to rescue, to prevent imminent injury (you can watch someone choke or drown) Concepts: Non feasance – non tortious inaction Good Samaritan Priest and Levite and Samaritan – no duty Policy: Respect for personal freedom, personal autonomy (we are not going to force anyone to do something) o LOTS AND LOTS of exceptions Policy supporting nonfeasecence It could put you in danger Supports rugged individualism Independence It is for legislature to decide when to impose positive duty , not court Can’t enforce kindness, heroism, altruism Ridicule is a better deterrent Can’t enforce conferral of benefits Amateur, or too many rescuers, muck things up, In a crowd – who do you sue? What is the extent of required action? Exceptions: Misfeasance – tortious inaction Policy reason for imposing a duty to act Defendant created the danger Defendant created some reliance or expectation that s/he would rescue Defendant/plaintiff in a relationship where rescue is expected When there is a service relationship/ Supervision relationship … This is theoretical, no law in common law province that looks like this Should duty to rescue be imposed by statute? (common law cannot create this duty, but the statute could) Could duty to rescue be imposed by statute? Require minimal action, no endangerment – e.g. call for help (provided they were not in danger, do the minimum) Limit liability o No liability for poor rescue o No liability if reasonable in circumstances not to rescue Exceptions: Misfeasance Misfeasance -- Duty to act in relationship of economic benefit (?) the Court held that a bar owner has a duty to reasonably ensure their intoxicated patrons are able to make it home safely. Jordan v Menow and Honsberger (1973)- Duty found for commercial host Facts (mr menow was kicked out of the bar, got hit by a car) o What was the inaction? (failed to prevent him from leaving, failed to prevent him being run over) They did nothing to prevent harm to him (that was the inaction), but they claimed non-feasence and lost What was the finding of duty based on? o Foreseeable that he would be harmed and o proximate relationship knowledge of Menow Menow’s instruction not to serve him Defendant breached statute in serving him Awareness of intoxication Reasonable and safe alternatives to ejection Childs v Desmoreaux a. Social host at a party where alcohol is served is not under a duty of care to members at the public who may be injured by a guest's actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk. No duty found o Stage 1: no foreseeability AND no for proximity/ policy o Lack of economic relationship o Reluctance to impose a positive duty Also leaves two doors open “without more” can mean if you keep giving alcohol to a drunk, you could be liable AND “social hosts” can include work parties or no? Issues Is the duty issue here about economic benefit? She doesn’t think this is an economic benefit cases How “generalizable” are these cases? o See Laskin at p 338, McLaughlin at para 44 on 344 Be careful about generalizing these facts, a great deal turns on the knowledge of the operator o Category v individual relationship hard to differentiate In Menow, how did Laskin and Richie differ? o Laskin – tortious inaction (misfeasance) – did not act to protect o Richie – tortious act – fed him drinks (they kept feeding him beer when he was drunk, it was a positive act, an actual act) Hard to tell action from inaction o Fed him drinks v did not stop him from drinking Misfeasance -- Duty to act in relationship of control or supervision Defendant acquiescent to the possible need for action, protection Policy – dependency, reliance BIG ONE BUT SIMPLE ONE If you are acting in these relationships (below) inaction is always misfeasance require dominant parties to take steps to prevent injury or assist others. People enter into this willingly, so not contradictory of desire to not interfere. o Teachers /students, Employer/Employee (note Workers Comp!), Hospital/ Patient, Carrier/Passenger, Guard/Prisoner Misfeasance -- Duty to act where you create a danger Obiter and Dissent in Oke v Weide Transport Facts: o Mr. weide, drives down the road, knocks over a pole, cleans it up on his own. Then someone else drove and got impaled by the pole. Other driver should not have been in that lane at all. Is there a duty to warn? o It was not forseeable This exception is not developed Misfeasance – where there is an undertaking by defendant and reliance by plaintiff X creates an expectation (amorphous concept, difficult to predict) to Y he will do something and then does not Y relies on the expectation and is injured by the failure to keep it Liability? If you rely on the undertaking and they don’t do it, they may be held liable The promise may create both a duty and standard of care The failure is a breach of standard of care and/or also a breach of duty Undertaking and reliance – variation 1: reliance on standard behaviour Mercer – X closes the crossing arm at the crossing every day, Y is used to that. Crossing arm not closed…Y run over Held: self imposed duty (had a duty unto itself) Variation 2 – Start an rescue, but bungle it Zelenko v Gimbel: Y (zelenko) gets sick in X’s (gimbel’s) store o X puts her in sick room for six hours and Y dies American position – liable if you undertake a rescue and do it negligently (you assume a duty of care and standard of reasonable rescuer) Canada – not clear - Horsely v McLaren Issues Don’t forget: All elements of negligence still required Policy problems with liability for duty created by undertaking o Impact for What about if you have no money? What if you are just being nice. Government? Industry? Starting and stopping practices Reasonable expectation doctrine – does it exist? o Uncertainty is bad for good Good Samaritans Protecting the Good Samaritan Emergency Medical Aid Act (only 2 sections) Not responsible if you administer health and didn’t cause the death/injury Medical professionals who render aid outside of hospital or medical facility are Protected from liability Layperson who renders aid at scene of emergency Adult Guardianship and Trusteeship Act s. 101 101(1) Notwithstanding any other provision of this Act or the regulations, a physician may provide emergency health care to an adult in accordance with this section. (2) Subject to subsections (3) and (4), a physician may provide emergency health care to an adult without consent if (a) the health care is necessary i. to preserve the adult’s life, ii. to prevent serious physical or mental harm to the adult, or iii. to alleviate severe pain, and (b) the physician is satisfied that the adult lacks capacity to consent or refuse to consent to the emergency health care as a result of i. drug or alcohol impairment, ii. complete or partial lack of consciousness, or iii. another cause. 3) A physician (a) shall, if practicable, obtain the written opinion of a 2nd physician or health care provider respecting the matters referred to in subsection (2)(a) and (b) …… .(4) Nothing in this section authorizes a physician to provide health care to an adult who the physician has reasonable grounds to believe (a) expressed a wish or instruction that is applicable to the circumstances, after having attained the age of 18 years and while having capacity, to refuse the health care, and (b) did not later, while having capacity, express a wish or instruction contrary to that referred to in clause Element #5 – Proximate cause A heads up Warning… Proximite cause - limits liability by limiting the compensable damage Four approaches to proximate cause 1. Directness test: Liability for damage arising “directly” from negligent act (Polemis) A. It has been discredited 2. Foreseeability test (specific): Liability if the specific damage is reasonably foreseeable (The Wagon Mound #1) B. SPECIFIC FORESEEABILITY 3. Foreseeability test (general foreseeability): Liability if the general type of damage is reasonably foreseeable (Hughes v Lord Advocate) C. This is the test that is most often used, more open than 3 4. “Possibility test”: Liability for damage that is reasonably foreseeable or for a high risk event that is possible (though not probable) (The Wagon Mound #2)This test seldom, if ever, used 5. Klar, Linden and Feldhuesen advocate a pragmatic, policy based approach. … All these tests are difficult and unpredictable Little consistency in cases All policy based Approaches are easily confused with cause in fact, or standard of care Are “secretly” value based One standard is not more fair than another Element #5 – Proximate Cause, aka “remoteness” or “Cause in law” Issue here is the scope of liability, or the extent to which someone will be held liable for his or her substandard conduct Proximity puts a limit on liability Preconditions: establish damage, standard of care and breach, cause in fact, duty o Have to establish these before you can even reach element 5 Generally, it used to be the polemis test Polemis o Facts: Dropping a board caused catastrophic damage o Test: If you commit a negligent act (i.e. standard of care breached) then liable for all “direct” consequences It turned out to be a crappy test, you were liable for everything that resulted. But it changed in wagon mound What policy works against the directness test? o Small damage, over compensation o Consequences outweigh fault, proportionality. o Its not that fair Consequences suffered by defendant out of proportion to his/her fault Ethical? Over-deterrent? How do you insure for that? The Specific Foreseeability Test - The Wagon Mound # 1 ( THIS IS THE TEST FOR US) Facts: Wagon mound spill oil into ocean, people were welding/sodering on the wharf, and a spark ignited the water, and burnt ships. No one could foresee that water would light on fire.. Courts below could not find for defendant due to Polemis HL overturned Polemis : o It is a principle of civil liability, …that a [person] must be considered to be responsible for the probable consequences of his act. (probable: foreseeable consequences). What would a reasonable person see. o To demand more is too much, less is not enough… it was not reasonable that Overseas Tankship would expect their spilling of oil to result in the large fire that happened, and therefore they are not liable for the damages sustained by Morts. a party can only be held liable for damage that was reasonably foreseeable. Reasonable forseeable may be coterminous with “natural, necessary, probable” … They could overlap, not totally getting rid of polemis, but limiting it to reasonable forseeability General Foreseeability Test- Hughes v Lord Advocate Facts: set up paraffin lamp in man hole, 8 year old boy went into man hole, and came out of man hole knocking lamp into hole and set everything on fire with lamp. And kid falls in again because of lamp. Findings: Duty owed by workmen, breach of standard of care. You don’t have to foresee everything that happens, but have to foresee general possibility of danger and could cause harm. As long as the general type of injury can be foreseen, there will be proximate cause. Where a plaintiff’s injury is foreseeable, but the injury is caused in a unique way or manner which could not have been foreseen, the result is within the chain of proximate causation and that element of negligence is satisfied. Damage resulted in fact, “but because a known source of danger acted in an unpredictable way” Held: Can’t escape liability because exact concatenation (chain reaction) is not foreseeable What policy might the court have had in mind in softening the Wagon Mound test? Ages of plaintiffs Deterrence Insurance Practicality Other Example: R ( The Queen in Right of Ontario, as represented by the Minister of Justice) v Cote et al (1974) SCC Facts: Winter, stormy day. Accident occurred on hwy 2 hours previous. Police aware of danger. Cote trying to pass four cars. Had to pull in after three. Hits an icy patch. Hits K’s car just slightly. K’s car crosses highway, colliding with another car and killing 2, injuring 4. Known to be a trouble spot in winter. Highways dept office a short distance away Liability? o Cote? Police? Ministry of Highways? Minister of Highways – 25% at fault o Foreseeable that road would be bad in these circumstances. o Did not have to foresee exactly what happened, but that damage was foreseeable o They should have done something to lower peoples speeds and warn them Cote 75% at fault o He pulled out on dry pavement, before ice o Its still mostly his fault Police o No cause in fact: failure to warn did not a cause in fact o They knew about an accident 3 hours earlier, but the court found the highways department was more responsible for this. Examples where damage was/not proximate Damage not foreseeable Doughty v Turner : Breach of duty to prevent harm from vat; Burning from splash foreseeable, but not from explosion Tremain v Pike- Rats urine poisoning was not forseeable Oke v Weide Transport : Driver hit up a pole in middle of highway, its on highway, and someone hits the pole and gets impaled on it-(but victim driving on wrong side of the road) so D not liable…Means of damage not foreseeable Damage foreseeable Lauritzen Facts: drunk guy got his friend to drive him, and he took the steering wheel and veered him off into a ditch. Had to walk 36 hours in cold to farmers house. Had to get arm amputated.-> He was guilty Breach of duty to not expose buddy to cold/danger Frostbite foreseeable Weiner v Zoratti D smacked into fire hydrant and flooded palintiffs basement court found that he was negligent and fire hydrant damage was forseeable Breach of duty to users of road Extent of flood damage from breaking hydrant Issues … depends on how duty is framed Doughty o Standard of care: reasonable person would know acid would splash, and therefore ensure vat is covered as otherwise some could be burned o What damage could be foreseen? Hughes o Standard of care: reasonable person would ensure young boys could not play with paraffin lamps o What damage could be foreseen Concepts of foreseeability often confused Standard of care: the appropriate behaviour for a reasonable person in the circumstances (this has to be breached first before you analyze proximity) Duty: to those who I reasonably foresee will be harmed by my breach of duty ( to whom you owe a duty) Cause in Law, Proximate Cause: the damage which can be reasonably (what harm would be) foreseen if duty is breached Wagon Mound #2 – possibility test Breach of duty of care to not spill oil in the harbor (this was established in both cases). Liable to the ships that burned. Wagon Mound #2 had to pay up to these defendants, in 1 they didn’t. Held: If there is a real, though small, risk that an event (the oil catching fire) may occur, the reasonable person would take steps to prevent it., therefore liability for the damage The event must merely be possible (not reasonable or foreseeable) Not generally used or followed (just know it exists) Proposed Common Sense Test (this is whats being pushed) There is no automatic formula Especially for non recurring situations Is a matter of policy and principle Justice Andrews (dissent in Pfalsgraf) Consider o A cause and effect sequence? o Was conduct a substantial factor in result? o A direct connection? o Proximity in time and space? o Is there Large risk of small danger ?...Small risk of large danger? (Wagon Mound) o Cost sharing Klar, Linden and Feldhuesen advocate a pragmatic, policy based approach. Approach should be “unblinkered” (we should look at the reality of the situation Innocent victim v negligent actor – Risk and foresight ( we should still look at this, plus everything below) Plus Personal v property damage? Private citizen v industry Availability of insurance o Macro and micro Deterrence Education Market forces Utility of activity Proportionate balance of degree of fault v magnitude of damage However Is the Court equipped to manage these issues? Should evidence be required? Who should provide the evidence? SO WHICH ONE IS IT? Short answer: The test is reasonable foreseeability of the actual harm that occurred. "The degree of probability that would satisfy the reasonable foreseeability requirement ... is "one which would occur to the mind of a reasonable man in the position of the defendant ...and which he would not brush aside as far-fetched." (McLachlin CJ in Mustapha at p 397 of the case book, quoting from various cases.) In applying the proximity test, consider the purpose of tort law: fair and reasonable compensation, deterrence, punishment. Long answer: Commentators and judges go back and forth on how probable a particular injury must be before it is considered reasonably foreseeable and exactly what Wagon Mound #2 says. The cases are not consistent on finding liability where the damage was a serious, though improbable, risk. Some say such damage is unforeseeable, some do not. In addition, there is not agreement on the specificity question: what exactly has to be foreseen? Is it just a foreseeable source (Hughes - that the children would mess with the fire was reasonably foreseeable, but some aspects of the injury were quite weird ) or the something more specific that must be foreseeable (such as all the steps in the injury chain and the exact injury). That is why Linden, Felthusen, Klar et al propose the Courts adopt a more "honest" test of proximity - where the Court will do a more open analysis of the policy and fairness issues in each case. In the meantime - Justice McLachlin's 2008 description of the proximity test is a recent statement of the test that we can rely on for the exam. Recurring issues of proximate cause and their solutions Or…. Things that are not really issues of proximate cause? Thin skull | Psychiatric Damage | Rescue | Intervening forces (Second Accident, Intervening medical negligence, Intermediate Inspection, Warnings and the Learned Intermediary) Thin Skull Take your victim as you find her …That victim is fragile and suffers more harm doesn’t matter Smith v Leech Brain o Facts: o Principle… Wagon Mound did not kill the thin skull rule o If you get a fragile victim, (particular susceptibility to injury) and because you negligent injured them, and you caused more than usual or forseeable harm, you are still liable. The ruling in Wagon Mound does not apply to cases where the outcome was unforeseeable to a particular plaintiff because of a condition that he or she had; rather it is used in situations when the foreseeable connection between the action and the outcome is unreasonable. Also don’t forget crumbling skull, it still applies Similarly – aggravation of previous psychological condition o Malcolm v. Broadhurst, Marcanato v Franklin Upset and personality changes Unforeseeable by defendant Thin skull applies to physochological problems as well Mental suffering flowing from physical injury is compensable under the thin skull rule. No difference in egg shell skull and egg shell personality (Malcolm v broadhust) Changes in personality, a common problem, are compensable under the thin skull rule (Marconato v franklin) Suicide: Is it foreseeable? Thin skull problem? Or should you be able ot argue its not forseeable. Some have argued both ways. Crumbling skull applies here again need not compensate people back to perfection, or in a better position-> only to what happened before the accident (athey v leonati) Psychiatric Damage - “nervous shock” Policy: faking? Bootstrapping (people get better if they are told they are not so sick)? Legitimate illness COURTS ARE INCREASILY SEEING THIS IS AS DIRECT DAMAGE Duty/neighbourhood is established by foreseeability of shock* Recognizable illness o Prolonged o Not Grief and sorrow *Plaintiff endangered, or at scene of the mishap (cant be other randoms) *mostly restricted to “Loved ones”, but can include others Being informed probably not enough Reasonable robustness and fortitude is expected of Canadians A side bar: proof of mental illness (long and not pretty history) History o Of social and scientific understanding of mental illness Over time theorized as caused by excess of bile, possession, witchcraft, evil spirits… Medical models – at least as early as Hippocrates Modern theories of cause include combinations of o Neurochemical imbalance o External stress or events o Genetics o Substance abuse o Physical illness Expert evidence generally required o “The DSM” - The Diagnostic and Statistical Manual of Mental Disorders Used by experts to classify and diagnose American Psychiatric Association Currently DSM-IV o International Classification of Diseases World Health Organization Rescue – an issue of duty Issue: D negligently puts self or someone else in danger. Foreseeable that someone will be injured in attempt to make a rescue? DUTY TO THE RESCUER by the defendant Rescuer is generally foreseeable è duty of D to rescuer o If you put someone in a position to rescue someone, then you are liable There is no duty to rescue There is, with some exceptions, a duty to the rescuer Rescuer Scenarios Variation 1: A negligently (committed tort) puts B in danger. C, injured coming to the aid of B. Rule: LIABLE o “Danger invites danger”: A rescuer is generally foreseeable, therefore there is a duty to the rescuer (proximate cause is met) o Injury to rescuer that is foreseeable is therefore compensable. See Wagner v International Rwy, test applied in common law countries. ( Note 1 p 407) Rescuer (duty) and damage to rescuer (cause in law) are generally foreseeable from perspective of wrongdoer Variation 2: A, as a result of excusable error in judgment, causes B to be in peril. C is injured in the rescue A did not breach standard of care, therefore no negligence. Variation 3: A creates a situation where B seems to be in peril. C comes to rescue o A not negligent vis a vis B C can argue that A has been negligent vis a vis C o Not impossible to establish duty, standard of care, breach… o Have to establish negligent act by A (NOT EASY but not impossible), Must be reasonable for C to assume peril Variation 4: B carelessly puts self in danger, C comes to rescue o Jumps into the water without putting a life jacket on If all elements can be established, then B liable to C o Duty of care, breach, damage, etc. C becomes plaintiff Rescuers are a recognized category o i.e. Rescuer is generally foreseeable è duty to rescuer Variation 5: A negligently puts B in danger, B negligent in trying to extricate self E.g. failure to put on a lifejacket when jumping from sinking ship Appropriate portion of fault attributed to B Rescuer issues Rescuer is foolhardy, wanton, reckless o E.g. Motor boat negligently tips canoe, C dives off High Level Bridge to assist canoeist o No liability applying proximate cause analysis Futility o E.g. victim already dead o Reasonableness of rescuer’s perception of danger is key o If you think victim is alive, and reasonable to think so (duty remains and foreseeability of harm remains) o If you know the victim is dead, then you are there to take body out. So no longer a rescue. Rescuer voluntarily assumes risk o Argues lots when its their job to rescue If paid duty to rescue, liability will be lessened, but still there o Defendant must prove state of mind at time of decision – not in hindsight o Tough, but possible, to prove Intervening Forces “intervening” refers to events that happen between a tort claim arising and judgment (i.e. resolution) of that claim. ( T#1) i.e. Plaintiff comes to trial on T#1 with a further injury from other tortious or non-tortious cause Once judgment is entered on T#1– is it res judicata We are talking about injuries that happen in between tort claim and judgement … E.g. Before judgment on T#1 T#1 Car accident (sprained neck) – fall down stairs due to dizziness (broken arm) o Is accident caused by car accident? Should they have been walking down the stairs Sexual assault (psych damage) – divorce (more psych damage) o Is this a separate damage resulting, or is it independent Car accident #1( broken leg) – Car accident #2 (broken arm) o Should these be treated single or divisible Second or Successive Accidents - a cause in fact and proximate cause issue Second Accident before action is resolved Apply tort principles – restitutio ad integrum, only pay for what you caused in fact and in law If one or more defendants cause indivisible injury – jointly and severally liable This is a question of fact if its indivisible or not If you can show liability for different injuries, then they are seperate Resolved using application of tort principles o Athey v Leonati o Key question is whether Plaintiff’s injuries are treated as a single injury or separate injuries (“divisible”) o A question of fact – what does the evidence show about what caused the injury? Then law - was it proximate? Cause in fact is dividing the injuries are they divisible, if no, then its one injury. And then you look at proximate cause Divisible injuries If divisible and different injuries – and both tortious o Each defendant liable for tortious injury s/he caused in fact and law o Thin skull and crumbling skull may apply Divisible and second injury tortious and same injury E.g. D#1 breaks P’s leg, D#2 then cuts it off Thin skull creates unfairness Treat as if judgment on T#1 occurred before T#2 o Well pretend tort 2 hasn’t happened yet, and asses damaage based on that, and then look at tort 2 on its own Not examinable Divisible injuries and second one non tortious o Defendant liable for only injuries s/he caused in fact and law o If non-tortious act caused same injury then D only liable up to second event Non- Divisible Not divisible - no proof of separate causation – treat as one injury – joint and several liability o Defendant should only be liable for foreseeable damage he caused BUT ALSO, We must put back the plaintiff in the same position If subsequent damage falls within the risk created by D#1, then D#1 and D#2 jointly and severally liable If subsequent damage is divisible, D#1 pays for first D#2 for second If second tortiously caused injury is greater due to latent vulnerability of P, thin skull applies (except psych damage - only liable for psych damage to person of reasonable fortitude) therefore o For indivisible injury – taken in account in assessing compensation (damages) o For divisible injury D#2 may pay extra If second tortiously caused injury is an exacerbation of a pre-existing injury or degenerative condition, crumbling skull may apply therefore o For indivisible injury – taken into account in assessing compensation (i.e. damages) o For divisible injury D#2 may pay less All of the above balanced by principle of restitio ad integrum Don’t forget the Contributory Negligence Act allows apportionment after liability is determined! o Only after damage is established though … Intervening medical negligence Same principles apply – Kolesar at Klar p 415 Plaintiff injured tortiously by T#1. Doctor’s negligent treatment of injury exacerbates injury. Plaintiff may claim from T#1 for 100% (even though doctor gave her gang green) Exception: “malpractice is completely outside “range of normal experience” ( i.e. not foreseeable ) In practice T#1 would third party Doctor (ultimately you would have both n the case) T#1 must prove Doctor’s negligence Implies that Doctor’s negligent treatment foreseeable/proximate Intermediate inspection Negligently manufactured or faulty product. Inspected by intermediary, but defect not detected. Fact of Inspection does not absolve the manufacturer It is taken into account in determining liability Warnings and the Learned Intermediary Warnings …Manufacturers have a duty to warn of dangerous aspects of products At common law and legislation Continuing duty i.e. Includes dangers discovered after distribution and sale Does not include obvious dangers “You may fall down when skating” o People getting breast implants were not warned properly Learned Intermediary Duty to warn may include duty to provide expert “learned intermediary” with information o E.G. Doctor, pharmacist o Applies where ordinary consumer needs assistance in understanding, applying the warning o May be duty to inform both the LI and the consumer, or either Mustapha 1.Duty “foreseeability, moderated by policy concerns” Determined by preexisting category or Anns/Cooper o If you cant find pre-existing duty, you apply anns/cooper rule 2.Breach of Standard of Care? did conduct create an unreasonable risk of harm? standard – provide uncontaminated water to customer breach - bugs 3. Damage? o Physical injury that is serious trauma o For psychological; Prolonged, debilitating, significant impact Rise above ordinary fears o If its something simple suck it up princess 4. Cause in Fact? “But for” test – Clearly it was passed 5. Cause in Law – Proposed Test: Policy based, pragmatic test - “a risk which would occur to the mind of a reasonable person in the position of the defendant” Things that are probable, and things that are possible with high risk/damage It covers all 3 tests (wagon mound 1 and 2, and one other) We can use this on our exam o Wagon Mound #2 o Never mind “possible” v “probable” For psychiatric harm, defendant expected to look out for person “of ordinary fortitude” o For the purposes of cause in law, reasonable person expects us all the be psychiatrically of normal fortitude Extreme reactions are generally not foreseeable o BUT, it you know someone is sensitive or know the plaintiff will have that reaction, IT IS forseeable Test: Is it foreseeable that a person of ordinary fortitude would react this way? What about thin skull rule? How does this apply if you poke someone and they break their rib? o In this test, its when if we can foresee the event at all, but the thin skull rule applies when you o If injury can be seen, then thin skull applies Defences to Negligence Contributory Negligence and all the rest: seat belt, volenti, ex turpi causa Onus is on the defendant to try and establish these** Volenti, ex turpi, and limitations are a complete defence** Contributory negligence and seat belt are apportion** Contributory Negligence Plaintiff all or partly at fault History and Development A complete defence – the stalemate rule 1807 – Butterfield v Forrester o Speeding Plaintiff runs into pole left by Defendant, Defendant at fault , Plaintiff at fault No compensation for the defendant Why not compensate the plaintiff? o Single cause theory was dominant …It’s his own damn fault What, if any, is the deterrent effect of this result? o Plaintiffs will look out for themselves…Defendants won’t bother, or will bother less “Softening” stalemate: Last clear chance rule 1842 Davies v Mann o Plaintiff wrongfully leaves donkey on road, Speeding defendant kills it Plaintiff compensated for injured ass Why compensate the plaintiff? o Defendant had clear chance to avoid he was the last person involved. Could have avoided donkey o Defendant sole cause of the loss …under prevailing tort theory Policy: Critique of stalemate rule, Why we have CC o o It’s good policy because… Makes plaintiffs behave If defendant is business – encourages enterprise, limits losses People at fault not deserving of protection of the law (drunk people running into things shouldn’t be compensated) Single causation theory is clear It’s bad policy because… Cruel to plaintiffs Does not deter defendants Disproportionate distribution of fault Ignores reality of multiple cause and fault Reform of stalemate rule Contributory Negligence Acts 1937 – Contributory Negligence Act 1951- s. 3 disallows claims against spouses 2000 – Amended to o repeal s. 3 (against the spouse) and o repeal last clear chance rule …Contributory Negligence Act Apportionment of liability 1(1) When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally. (2) Nothing in this section operates to render a person liable for damage or loss to which the person’s fault has not contributed. No more stalemate rule, damage is distributed apportionately Determination of degree of fault 2(1) When damage or loss has been caused by the fault of 2 or more persons, the court shall determine the degree in which each person was at fault. (2) When 2 or more persons are found at fault, they are jointly and severally liable to the person suffering the damage or loss, but as between themselves, in the absence of a contract express or implied, they are liable to make contribution to and indemnify each other in the degree in which they are respectively found to have been at fault. Questions of fact 3 In every action (a) the amount of damage or loss, (b) the fault, if any, and (c) the degrees of fault, are questions of fact. Very hard to appeal these facts Last clear chance rule not applicable 3.1 This Act applies if damage is caused or contributed to by the act or omission of a person, whether or not another person had the opportunity of avoiding the consequences of that act or omission and failed to do so. Adding party defendant 6 When it appears that a person not already party to an action is or may be wholly or partly responsible for the damages claimed, that person may be added as a party defendant on such terms as are considered just. Issues and Notes Not all provinces have abolished last clear chance rule Always always note up legislation ! Be aware of the legal context of cases – what is the law of the time? Current Law Contributory Negligence Act – Contributory negligence bar (common law) was gotten rid off, we are left joint and several liability – In theory, the standard of care demanded of plaintiffs is no different than that expected from defendants must exercise care that reasonable person would – This issue goes to the jury if there is one, who may not be as demanding as the theory says (on the plaintiff) Admiralty law – o CNA ((Alberta) does not apply to shipping, admiralty and maritime law. Why? Because its federal jurisdiction!! o Same rules apply by common law – Bow Valley Husky (1997) SCC Elements of contributory negligence (what has to be found?) o Same as negligence Plaintiff has Duty to self (and neighbours) To act as reasonable person – avoid foreseeable harm DEFENDANT HAS TO PROVE Breach of standard/duty causing damage = negligence o Question of fact whether breach occurred o Tendency toward leniency to plaintiffs Plaintiff’s duty Is to self, not defendant o No need to establish any duty owed to others, duty is only relevant where another person is damaged by the actors conduct o “duty is relevant… where the damage is to another person” If you hurt the defendant, then it really doesn’t matter as that’s a separate thing “Damage” – is the physical harm caused Injury caused to self is a result of breach of duty to self Plaintiff carrying out statutory duty, may override the duty to self o E.g., police injured while in pursuit of bad guys o Has a duty to public May be coterminous with duty to others o E.g. Duty to self and other drivers Plaintiff’s Standard of Care: Reasonable person..Avoid forseeable harm In the circumstances of the plaintiff o The exceptions for children, youth, mental incapacity apply o Context, as always, will be examined Emergency? State of knowledge of plaintiff? Awareness of risk? Causation – cause in fact and cause in law Plaintiff’s negligence must be a cause in fact o E.g. I leave my out of gas car on side of road. You fall asleep and hit it. Was my negligence a cause in fact of the damage? NO Plaintiff’s negligence must be a proximate cause o E.g. you warn me not to walk where there is no railing because I might fall off the balcony. I walk there, but the window falls out an hits me. Proximate cause? Apportionment of fault and policy issues 1. As between faulty plaintiff and one defendant… Should apportionment be based on o Relative fault, blameworthiness? ✓ (heller v Martens) Not based on physical contribution o Actual physical causation? o Both? Relative fault, blameworthiness: Consider – nature of duty, timing of acts, number and nature of blameworthy acts, whether statutory breach, emergency, extreme carelessness or mere lapse, 2. As between plaintiff and defendants, Apportion based on o Relative fault of plaintiff and each defendant? o Relative fault of plaintiff and defendants as whole? ✓(fitzgerald v Lane) Why is this the preferable policy? Because defendants could have died, could want to settle, etc. Remember joint and several liability ! Joint and several liability is a form of liability that is used in civil cases where two or more people are found liable for damages. The winning plaintiff in such a case may collect the entire judgment from any one of the parties, or from any and all of the parties in various amounts until the judgment is paid in full. In other words, if any of the defendants do not have enough money or assets to pay an equal share of the award, the other defendants must make up the difference. o Each defendant jointly and severally liable to plaintiff for defendants’ entire share of liability o After deduction for Plaintiff’s share, Plaintiff can sue all or any defendant for the rest o As between defendants, each is liable to the others in accordance with their proportion of fault (CNA) o Default rule is equal (indivisible) until shown differently Except BC – several liability only. (have to sue each person separately) 3. No set off (unless parties agree otherwise) E.g. Mutual negligence A and B both cross centre line A owes B $2000 B owes A $1000 Set off - A pays $1000, B pays nothing. (try and do this for insurance) No set off – A pays $2000, B pays $1000. ✓ o Why is this good policy? Notes and issues o Defendant must prove contributory negligence! o Apportionment of liability is a question of fact o NO apportionment between negligent and non negligent causes o Trial judge assesses the culpability, blameworthiness Default - is equal culpability (CNA) Create scenarios where Plaintiff … 1. Contributed to accident that caused the injury – fail to keep lookout for waterfall when asked to, grabbed the wheel of the car, went over the white line, driving drunk,, start skating before instructor tells you to. 2. Exposed self to risk of being involved in injury – pet a dangerous dog, go in a tiger cage, not sitting properly in the snowmobile, getting in car with drunk driver, 3. Failed to take reasonable precautions to minimize injury – seat belt, life jacket, fail to follow doctors orders, Seat belt defence Subsumed History and development o 1960s- 70s - courts and citizens resisted seat belts and related legislation o Why? Infringes Freedom! Forces action Current law Generally accepted as contributory negligence o But not prima facie! Defendant must prove o Failure to wear seat belt met elements of negligence Duty, breach, cause in fact, cause in law, damage o Courts may be less demanding on proof Duty is assumed Questions of a type that could be on the exam Use of seat belts are legislated – how does this impact the wearer’s duty, standard of care, or both? Analyze the use/non use of a seat belt as a form of contributory negligence Besides deterrence, education, loss distribution, punishment – what other policy purposes might seat belt laws fulfill? Volenti non fit injuria – consent to the risk Very narrow defence Voluntary assumption of risk History and Development Olden times: Pre 1950’s an absolute bar o o Defendant not liable, if plaintiff proven to clearly know and appreciate the risk AND voluntarily incurred it Proof by express words or implied action …Similar to defence of consent Current law- application of volenti as a defence Still an absolute bar Very limited defence Defendant must prove plaintiff agreed to exempt defendant from liability o Express or implied o Essentially – “I know all the risks, and that you have a duty, and I agree not to claim if you breach your duty.” o Almost a promise not to sue Why the change? o Hambley v Shepley Ont CA 1967 too much immunity for blameworthy defendant The defense of volenti can only succeed if the plaintiff consents not merely to the risk of injury, but to the lack of reasonable care which may produce that risk. Also, public utility. o “Willing passenger” cases (more and more people getting into each others cars, and in the past, was seen as assumption of risk, but not any more) Agreements To be effective o Must clearly describe the risk involved o Can be written or oral; express or implied Interpreted against defendant Written agreement o Is evidence of agreement, not prima facie proof Very strict test because judges don’t like using it Must show that person waived claim of negligence (lagasse) Sports Cases Volenti i.e. assumption of risk of negligence still available as defence. Still very active in sports cases. o Often an express waiver. Its evidence of acceptance of risk, its not a proof of acceptance of risk. Agreement actually has to be what is agreed too. o Limits of the defence HAVE TO LOOK AT What is being agreed to? E.g Did Plaintiff agree to intentional slash? Alternate modes of analysis of volenti ( a bit confusing) Plaintiff consents to the breach of standard of care o Defendant negligent, but I agree not to claim o He walked over to the players area, he knew he could get a puck in the face, he knew arena should protect him but he accepted standard of breach o Volenti is a complete defence Plaintiff not owed a duty of care, because he accepted a lower standard by o Defendant not negligent, because I agreed his duty to me is lower than normal o No negligence o E.g. Puck in the stands everybody should know this o Volenti is a complete defence … Contributory negligence as alternate analysis to volenti o Did plaintiff breach duty of care to self? Did he contribute his own negligence? By participating? By not sitting elsewhere? o Advantage: Not a complete bar: apportionment allowed Illegality - Plaintiff acting illegally…Ex turpi causa non oritur actio o from a dishonorable cause, an action does not arise An overarching principle of law o operates when the action would be disreputable, a distortion of the fabric of the law o If its completely inconsistent with principles of law o Applies to all areas of the law o e.g. Kill my parents and then plead orphanhood … Plaintiff acting illegally is not an automatic bar to compensation o Just because you are robbing house and get shot, doesn’t mean you are screwed Plaintiff acting illegally… ways to limit o Is Plaintiff contributorily negligent? o Is defendant negligent? Is there a policy reason to limit defendant’s duty? Eg Lord Advocate, Coopers, Anns For example, between burglar and homeowner, what kind of duty exists o Ex turpi - Does Plaintiff’s action offend common decency, or the fabric of the law? Examples of ex turpi o No claim for lost wages caused by negligence if you are in jail, even if crime was caused by defendants negligence BC v Zastowny Was a criminal, in prison, he got abused in prison and when he came out he committed crimes because of abuse, and got send back to jail again causation established. So then he claimed for lost wages for being in jail court said no way! Principles of criminal law are punishment, retribution, we don’t want to clash principles of criminal and civil law Ratio: One cannot be compensated for a lawfully given prison sentence because it would create conflict within the branches of the law and negate the punishment given by the criminal courts. HL v Canada Someone was abused by HL, and tried to sue for last wages when he was in jail. Similar reasons, he couldn’t get lost wages. What exception might apply? o Can’t inherit if you murder your parents Can your kids? Should they? o Can’t make illegal act a condition of inheritance (ill leave you a million if you kill wife) o Can’t impose celibacy as a condition in a spousal support Plaintiffs illegal or anti social behavior is likely to be treated as contributory negligence It is important to understand that the defence of illegality will only be available in very rare circumstances. It is simply there to prevent a party from profiting from their illegal activity, or permit evasion of a penalty imposed by the criminal law. It is not there to prevent compensation for an injury or damages to property as in the case of Hall v. Hebert, there the plaintiff should not be denied damages for his injuries, he should be punished separately for the illegal driving while under the influence, this will not create an inconsistency within the law. Dispute resolution • A quick primer on processes for resolving civil law (and other) disputes Why should I care • Most civil law disputes never make it to lawyers or courts system • Of those that do, most resolved by • Avoidance • DIY negotiation • Negotiation involving counsel • Of the remainder • “formal” dispute resolution process • Mediation • Arbitration • Litigation Terminology • Alternative Dispute Resolution or Appropriate Dispute Resolution Forms and features of DR processes Avoidance • “voluntary” avoidance • Personal choice to “move on” • Other sources of compensation • “involuntary” – can’t pursue claim because (no access to justice) • Unsophisticated, No funds, No information, No access to counsel or courts, Power imbalance, Cultural issues, No time, No support • Defendant is gone, unknown or broke – no blood in the stone Negotiation • Parties, in person, or with representatives discuss with a view to settlement of dispute • Types • Interests based aka mutual gains bargaining • Rights based • Zero sum Mediation • Facilitated negotiation • “Neutral” facilitates discussion between parties- doesn’t take sides • Evaluative or non evaluative • Binding or non binding • Parties pay • Outcome is private Types • “Rights” based • Parties’ legal rights form the basis of the discussion • “Interests” based • Parties’ wants, needs, concerns, rights form basis of discussion • More holistic Arbitration and Private Adjudication • A private “adjudicator” hears each side • Makes a ruling Ruling may be binding or not • Parties bear cost Informal – “Rent a judge” • Parties may agree to binding or non binding • If binding, usually contractual only • May combine into a “med-arb” Mediation and arbitration. One party mediates, one other party makes a judgement. • Outcome usually private • Will probably not be considered case law • Default rules setting out power and jurisdiction in legislation • Arbitration Act (domestic matters) and • International Commercial Arbitration Act and a number of international treaties, • Collective bargaining legislation Parties agree to operate under these rules or vary them Arbitrator's ruling can have same force as judgment of Court Usually binding Outcome may be public Used for many civil matters - labor, family, commercial, wills… Parties pay for everything, no publicly provided judge or compensation. Formal • • • • • • Litigation - public adjudication • Neutral judge • Cost of judge covered • Outcome Public, usually Trial, hearing • Full public hearing • Rights based • Before judge • Outcome is public, usually • Binding and enforceable • Outcome can be enforced by law • Considerations in choosing DR process All good dispute resolution…. • Parties aware of what they are involved in • Parties agree to participate • Parties are competent • Respectful • DR Process includes • Notice and information to all disputants • Opportunity to be heard • Opportunity to hear the other side • Neutral facilitator or adjudicator, as the case may be Parties can design their DR process … * • Considerations • Is choice of DR process made pre or post conflict? • If we are contracting to do something – should the contract have a DR clause? • A will, family court or other court order • Will the result of the process be legally binding? • If so, can it be filed in court or merely enforceable by contract? • What kind of dispute is it? • Finding of fact? Interpretation of contract Determination of Charter validity? • * except for trials • Timing, privacy, cost • Full hearing, only written • On line or in person? • Do we need experts to hear the matter? • Legal issues – fact or law? • Timing, privacy, cost • Full hearing, only written • • On line or in person? • Do we need experts to hear the matter? • Legal issues – fact or law? What do the parties need? • Finding of fact so they can determine liability? • Money? • Ruling on a point of law? • Repair relationship? • Vindication? • Forgiveness? • For it to be over with? How COURTS resolve Disputes … it’s not all trials • Aim of Court proceedings… Rule 1.2(1) … provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost effective way. (2) In particular, these rules are intended to be used (a) to identify the real issues in dispute, (b) to facilitate the quickest means of resolving a claim at the least expense, (c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (d) to oblige the parties to communicate honestly, openly and in a timely way, and (e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. DR processes available at Court • Summary trial, summary judgment (civil proceedings) • Ruling on specific issues, without trial • Public-ish • Judicial Dispute Resolution • Before trial • May be mini trial, mediation, arbitration depending on judge • May be rights or interests based • Outcome is private • You can choose the judge you like, or wait for him • Mediation • For Family matters • For civil claims under $25,000 • Judges may refer to private mediation • Case management • Judge may supervise parties’ adherence to deadlines • May recommend use of DR • Notice of offer to settle • It’s a way of encouraging people to settle early because if you are offered 50,000 and at the end, you are awarded 35,000, then you will be liable for costs • Costs impact if party fails to accept reasonable offer • Full Formal Trial – QB • Full testing of evidence and arguments of law • Rights based • Public • Less formal trial – Provincial Court • Claims under $25,000 • Appeal • Retesting of legal issues Rights v Interests based resolution Case study … Facts: • Red McDonald farms and raises organic tomatoes. He prides himself on developing his own special organic pest management treatments for his tomatoes. He sells them at the local Farmers Market. • Alice Pasta, Red’s neighbour, purchases tomatoes. She loves tomatoes and has always eaten a lot of them. But Alice gets ill from the tomatoes. She has never been ill before from tomatoes. • She misses three months of work: she sells home made tortellini at the Farmer’s Market. • She told everyone at the Farmer’s Market Red’s produce is poisonous, Red is losing business They could choose • Negotiation • Mediation • Arbitration or private judging • Litigation …rights based analysis • Alice • Possible negligence action : Claim for loss of income and other damage during illness • Red • Possible defamation or slander action • Claim for loss of reputation, lost income … interests based analysis • Red’s interests • Compensation • Relationship with Alice • Keeping costs of settling low • Business goodwill – has a line of rutabagas to sell • Has a right of action • Alice’s interests • Reputation • Relationship with Red • Rekindle lost business • Ensuring public knows of dangerous organic practices • Acknowledgement of suffering • Has a right of action • Has no money Rights based solution Court order $1,000 damages for Red $3,000 damages for Alice New Law: new duty of organic marketers to warn of possible harm from organic pesticides Interests based solution Agreement • Mutual apologies • Alice will work fo Red to develop rutabaga pasta sauce, to be advertised and sold jointly at Farmers Market • Red will follow up with CFIA re safety of tomatoes • Red pays $300 compensation • If one breaches agreement, penalties are triggered Government liability in tort 1. Public (i.e. Government) Authorities can be liable in tort – trespass, defamation, nuisance, negligence etc. 2. Public Authorities’ liability for negligence is limited for policy reasons: Much of government action is aimed at the general public interest - the government cannot have a private law duty to each and every citizen for each action it takes. 3. There is a tort specific to public officials: misfeasance in public office. i. An act where a public official uses his/her standing to hurt others Crown, government liability in tort ..generally History of Crown liability “King can do no wrong" … No criminal or civil liability. Had to petition Crown to get permission to sue Crown Worked well when the Crown was only the monarch Whether they are a crown entity will depend on the legislation that created them. Sometimes they will be crown agencies or not have to look at statutes Municipal governments are not crown What is the Modern “Crown” 1. Federal and Provincial Crown in right of Canada or Alberta Cabinet (MLAs and Parliamentary officers have special rules) 2. Government Departments 3. Any ABC that is an agent of the Crown Unique area of law governing who is an agent Depends on enabling legislation! Examples of ABCs Bodies governing professions –LSA Universities and colleges Appeal and regulatory tribunals ALCB, EUB, EAAB, CRTC, CWAP, PMB, EMB, Teacher accreditation…. Government created corporations (Crown or non Crown) Canada Post, Wheat Board, Standards Council of Canada, Petro Can (formerly),WCB, CDIC… Single purpose short term agencies (Commissions and inquiries, tribunals) School Boards Municipal Governments are NOT Crown. They are a statutory body with legislative powers. Proceedings against the Crown Act 1959 – Alberta Commonwealth countries all same or similar o Quebec similar via different path 5(1) Except as otherwise provided… Crown is subject to tort liability - for torts committed by its servants or agents - for breach of employer’s duty ( negligence) to employees or agents of the Crown (vicarious liability) for negligence relating to ownership, occupation, possession of land or goods (if you expropriate, or deal with land, they take responsibility) - imposed by legislation … CPA does not apply to non Crown entities o Crown does not mean all public authorities!! For this discussion this is not an issue. It is a huge issue for some other purposes. Who is government/public authority? The Crown ABCs o If on reviewing their legislation, it is determined they are a government entity o They may be neither a Crown agent or government entity Municipal Government Government tort liability…easy bits … Generally, tort liability is same for all public authorities Liability can be limited by statute When dealing with statutory bodies, always read the legislation! No tort liability for judicial acts of superior court Nil liability for quasi judicial acts of most tribunals o Some very small and weird exceptions No tort liability for legislative acts in good faith o At least not for legislation aimed at the public interest o If you bypass a bylaw, for general zoning purposes, and decide certain property will be residential, and certain commercial, it will affect the price of houses If it failed that they didn’t properly pass bylaw, they will impose negligence. BUT if it just affected our house price and they did it properly, it will be no suit … … For assault, battery, trespasses, defamation, nuisance – Easier o Generally, if act would be considered tortious if between private individuals, then it is tortious if committed by an employee of a public authority o E.g. Costello v City of Calgary, Goddard v Day Vicarious liability rules apply to ALL torts o s. 5(3) PACA assists in relation to acting in course of employment test o SUBJECT to the limits of specific statutes o Most tort actions involving government include a vicarious liability aspect Negligent acts of employees For negligence, If act of employee is negligent in the private law analysis, then negligent o Snowplow driver falls asleep, runs over child o Police drive to, but do not enter 911 caller’s home o Meat inspector mistakenly diagnoses Mad Cow disease o The employee is the defendant Government liability for negligence (not employee’s direct liability) …not so easy bit What if the cause is not entirely the direct act of the employee? The driver fell asleep because municipality allowed him to double shift. Are the rules allowing double shifting negligent? The police were told by superintendent to go to another emergency..is that negligent? o The government policy is to hire high school graduates to inspect meat The problem of Duty of Care Prima facie duty of care owed by public authority if o Foreseeable that plaintiff will be affected by decision o Proximate relationship between citizen and gov’t (reliance between parties, physical proximity, power relationship, etc.) These things tend to lean towards proximate relationship between them BUT o What if the decision in question is The provincial or federal budget Land use plan Environmental legislation setting up watershed protection areas? Regulation of an industry Part of community plan to deal with safe highways in blizzards? allocation of scarce police resources ? … Policy concerns: If we make them liable for everything in last slide, it would be a mess o Is it legitimate for court to second guess government decisions? o Government decisions often require balancing of public priorities, allocation of scarce resources, for overall public good courts not equipped do deal with this o Potential conflicts of interests or duties o Indeterminate or inordinate liability o The Crown is not a person, cannot make pure private law analogies Terminology alert Statutory duty or power o Is a power or duty conferred by statute (some these duties are operational, some of these are discretionary) ‘A director of child welfare shall investigate.. “ “The Minister may establish a program …” “The Lieutenant Governor in Council may enact regulations providing for… “ “The EUB may order…” o DO NOT CONFUSE THESE DUTIES OF POWERS WITH THE COMMON LAW DUTY OF CARE o A Public Authority is the sum of its statutory duties and powers … does not exist outside these Common law Duty of care – arises when o In existing category of duty of care or o it is foreseeable that my negligent act may harm another, and Anns/Cooper test is met Statutory duty is not the equivalent of common law duty of care o Statutory duty was used in the 2nd stage of the anns/cooper The duty of care of a public authority = the common law duty, found using common law test The statutory duty and its context is examined to assist in determining whether common law duty exists Remember – breach of statute is not a separate tort (Sask. Wheat Pool). Therefore breach of statutory duty is not per se at tort. Four ways to deal with the duty problem 1. RTGDA – there may be a statutory exemption E.g. Follow up to Kamloops v Neilson Bc has passed legislation that would protect them now 2. Policy /operational dichotomy (Just v BC , Anns, Kamloops) o In Just if it was held that their decision was a policy decision, they would not be liable. But in this particular case, you have no immunity’ As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption. Alternatively, the exemption may arise as a result of the nature of the decision made by the government agency. That is, a government agency will be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions. In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of such a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that a policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that a duty of care is owed by the government agency and no exemption by way of statute or policy decision-making is found to exist, a traditional torts analysis ensues and the issue of standard of care required of the government agency must next be considered. A public authority is immune from negligence if the decision was made in good faith and was a policy decision This immunity does not apply to operational decisions … Once it is determined that decision/act is operational, then plaintiff must establish the rest of negligence elements Determine standard of care o Standard of care – what is reasonable for defendant in those circumstances What was the inspection scheme? Was it reasonable? If so, was there a breach of the scheme? If not, was the scheme itself unreasonable ? Then establish cause in fact and cause in law o Did the breach in fact cause the damage? o Was this damage reasonably foreseeable? Voila! Liability! What is a policy decision v operational decision ? ….Wait a minute!!! …What is a policy decision v operational decision ? NO BRIGHT LINE TEST!! Under this approach… All government decisions are either policy or operational… Court will decide whether an decision is policy or operational If operational, then no immunity from negligence There is NO bright line test to determine what is policy v operational The cases are irreconcilable Distinction works as a “flexible guide” What is policy v operational “varies infinitely” o Cannot reliably predict whether decision will be characterized as policy or operational o Very contextual … Tending toward policy (all except 1 are not determinate) Decision made at high level of government Decision maker had lots of discretion Did decision involve resource allocation? General impact Tending toward operational Routine decision/act Deliberate injury? Close, ongoing relationship with plaintiff Specific impact Can decision be pinpointed to one actor? Similar to private law situation? … additional considerations to “help” determine policy v operational Subject matter of the action Interests of plaintiff, government and others Precedent o Just v BC is very expansive case, courts have retreated Provincial, federal budgets; policy frameworks; large macro decisions are always policy o Total immunity for negligence for these … Terminology alert Policy o Policy as the “soup” of interests concerns that guide rule making o Policy as the outcome of policy analysis: non legal rules that guide government action I rely on policy to make policy It is our policy to always smile at clients because smiling makes clients happy 3. Proximity – as a means to deal with duty problem … Cooper v Hobart (this is what were talking about) Novel duty of care determined by o Two stage: Foreseeability and “proximity” between parties Any external policy reason to limit duty? Jus a variation of the Just test for exams, tell them you are aware that is both, and choose one What’s the difference? o Change in emphasis, burdens Emphasis on proximity – plaintiff must clearly establish it to proceed Onus – defendant has to prove the policy exception What’s the same? o At the Policy stage – the courts use policy/operational analysis-> what to establish … Policy and impact of Cooper No impact on professional regulators o Almost impossible for duty to be established o E.g. Edwards v Law Society of Upper Canada Scope of duty is not expanding o Almost nil for pure economic loss cases o limited where plaintiff is asking for benefits difficult but not impossible E.g. Autism funding, education funding, Liability would have a significant impact on taxpayers There is n such thing as an implied statutory duty of care (saskectewan wheat pool) 4. Categories where duty has been established – no Cooper or Just analysis needed Building Inspection cases: inspectors have duty to owner and subsequent owners o May be exceptions based on facts, legislation o Could be exempt if statute says so Police Duties o Duty to suspect to use due care in investigation The tort of Misfeasance in Public Office …an emerging remedy for plaintiffs? Generally Aka “abuse of public office” Elements of the tort o Must be a public official Government or not? Crown or not? o Official engaged in wrongful conduct in her capacity as a public official- Misuse of powers (we are not talking about other torts) o Must be intentional – intended to harm or knowing that plaintiff would be harmed Roncarelli v Duplessis Public official specifically intended to injure a person he was against the Jehovah witness. Premier made him lose liquor license Proof that person was using his power intending to injure plaintiff made out elements Odhavji Estate v Woodhouse (this tort has grown) Allegation: Police were investigating death, and in that process Police knowingly breached statutory requirement to cooperate, plaintiff injured. Family also suffered psychiatric harm knew it would harm the plaintiffs On application to strike, SCC says tort made out if o Conduct is deliberate and unlawful AND o Defendant aware conduct is likely to cause harm to plaintiff Impact Odhavji nudged the law forward, triggered claims which included both negligence and misfeasance …a new direction? The duty analysis in Dorset Yacht, Anns, Cooper suggests immunity for policy decisions made in “good faith” o Bad faith arguably negates the “policy immunity” in negligence ? E.g. Kamloops o Is it possible to stretch Odhavji such that the tort includes government action that is not in good faith? o Counsel are arguing good faith in a very broad concept you always want to try and sue the crown Crown liability- lecture Notes from TORTS LECTURE THE LIABILITY OF STATUTORY AUTHORITIES IN NEGLIGENCE - in the context of claims against the government, much of the case law has focused on the first requirement of neglgience – whether or not a duty of care exists The origin of the modern Canadian test for whether a government owes a duty of care is: Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) There remained uncertainty, though, around the first requirement of the test. The uncertainty centered upon whether foreseeability of harm alone was sufficient to satisfy the first requirement, or something further was required. The Supreme Court of Canada addressed this question head on in the 2001 Cooper v. Hobart and Edwards v. Law Society decisions. In those cases, the court said that something “more” than mere foreseeability is required to meet the first part of the test, and the something more is proximity. Proximity essentially refers to the nature of the relationship, and whether or not it is close and direct. The test coming out of Cooper is a two stage test, but with two parts to the first stage: Stage 1 Asks: Does the nature of the relationship give rise to a duty of care? 1. Is the harm suffered by the plaintiff a foreseeable consequence of the defendants actions? And 2. Is there a relationship of sufficient proximity between the parties? - look to existing categories; - if it doesn’t fit, consider whether it would be just and fair to create a new category, having regard to such factors as the expectations, representations, reliance, and property or other interests involved - importantly, if the action is against a government regulator, Cooper held we need to look to the provisions of the governing statute to determine whether proximity can be inferred - come back to it Stage 2: Asks Are there policy considerations that negate the prima facie duty of care? - potential policy considerations include prospects of unlimited liability, judicial deference to government policy decisions, and the existence of alternate remedies other than a civil action for damages Let me come back to the point though that in actions against government regulators, one needs to look to the provisions of the governing statute to determine whether proximity can be inferred - in my view, this comment was the start of the high water mark for government lawyers – it was picked up on and followed in a number of cases across Canada here in Alberta –Holstag - pine shakes as roofing material number of big decisions in Ontario, in relation to matters such as SARS, the West Nile virus, mad cow disease and breast implants in most cases the courts concluded that the statutes in question did not establish a private law duty, and the Plaintiff’s claims were dismissed this is not surprising, because statutes generally establish duties the Crown owes to the public at large, not private duties owed to individuals life as a government lawyer was good Maybe too good, because the SCC may have retreated from this position somewhat. The first possible sign of retreat came in the SCC’s 2010 decision in Fulowka. Fulowka is the case involving the bombing of a mine in the Northwest Territories. During a bitter strike at a mine, a striking worker detonated a bomb killing several miners. One of the issues before the Court was whether the Crown’s officials responsible for regulating the mine should have shut the mine down in response to the conditions caused by the strike. In considering the Crown’s liability in negligence, the Court reitereated its earlier position that the statute is the foundation of the proximity analysis. The court went on, however, to look consider other factors including: i. the fact that the category of miners was small; ii. the inspectors had direct dealings with the miners, and iii. the inspectors had the power to regulate the miners themselves; and The Court concluded that proximity had therefore been made out. More recently, the Supreme Court has gone further in a case called Kinght and Imperial Tobacco. Knight involves two claims against Imperial Tobacco: one by the province of BC for recovery of health care costs, and one by private citizens in relation to alleged misrepresentations concerning low tar cigarettes. Imperial Tobacco third partied Canada into the claims, alleging that Canada was negligent in its regulation, including negligent in statements relating to low tar cigarettes. The issue before the court was whether Canada owed either Imperial Tobacco or consumers a private law duty of care. The court considered the role legislation should play in the analysis. The court distinguished between two types of cases: 1. where the statute is alleged to be the source of the duty, and 2. where the duty is said to arise between specific interactions between the plaintiff and the defendant. To some of us, this was somewhat surprising. In the context of negligent regulation, save perhaps for Fulowka, it seemed that the Court had previously required cases to fit into the first category – the statute had to be the source for the duty. On the facts before it in Imperial Tobacco, the Court found: 1. the statutes in question did not give rise to private law duty to either consumers or tobacco companies; 2. Canada did not have any direct interaction with consumers that could form a basis for a duty of care to consumers; but 3. there was a series of direct interactions between Canada and Imperial Tobacco in relation to tobacco strains, and these interactions did give rise to a prima facie duty of care to Imperial Tobacco Imperial Tobacco thus opens the door for Plaintiffs to allege that a private law duty on the basis of interactions, even when the statute in question does not give rise to a private law duty on it face. In this respect, Imperial Tobacco is a difficult decision for governments from both a substantive and a practical perspective: a. substantive – arguably extends the bounds of potential liability; and b. practical – facts are now more important, and striking applications less likely Imperial Tobacco does, however, have a silver lining for government lawyers. Despite finding that Imperial Tobacco had established a prima facie case for a duty of care, the Supreme Court rejected the duty at the second stage of the analysis. The Court accepted that Canada made a policy decision to encourage the consumption of low-tar cigarettes, and the actions it took in pursuit of this policy therefore did not give rise to potential liability. One could question this aspect of the Court’s ruling as well. What was the real policy decision, and what was the inplementation of that decision? The court appeared to accept that the policy decision was to promote low tar cigarettes…. Might be correct at one level but it could be argued policy decision was to pursue healthy alternative, and low tar cigarettes were implementation of policy. Where does this leave us then? It appears that the new battleground will see Plaintiff’s framing their regulatory liability claims on relationship factors external to the relevant statute, an option that initially did not appear to be available after Cooper. At the same time, they might be met with a tougher hurdle at the second stage of the test, the policy stage. MISFEASANCE IN PUBLIC OFFICE- Lecture 1. the early case of Roncarelli v. Duplessis; 2. the seminal case of Odhavji Estate, which establishes the current test for abuse of public office, 3. and an interesting Alberta case called Genesis that provides a good application of the test Roncarelli v. Duplessis, Maurice Duplessis was the Premier and Attorney General for Quebec. In an effort to punish Roncarelli and prevent him from further supporting the activities of the Witnesses, Duplessis ordered the Liquor Commission to revoke Roncarelli’s liquor licence. The Liquor Commission obliged. Roncarelli sought redress from the Court. In the SCC, the Court first looked to the statute, which conferred a wide discretion on the liquor commission. The court acknowledged the existence of discretion, but said that it had to be exersiced with reason. The tort of abuse of public office was thus recognized in Canada. The facts in the Roncarelli case though are quite extreme, so the Court’s decision left room for elaboration of the minimal requirements of the tort. The SCC subsequently provided this elaboration in Odhavji Estate. Odhavje Estate a 2003 decision of the Supreme Court of Canada. It arose out of a police shooting. The officers involved in the shooting refused to comply with the Special Investigation Unit investigating the shooting, despite a statutory duty to do so. The family of the deceased brought an action against the officers, the Chief of Police, and others for misfeasance in public office. The court addressed the test for abuse of public office. The court held that the tort could be committed in two ways. The court called these ways Category A and Category B. Category A involves conduct that is intended to specifically injure a person or a class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. (para. 22) The two categories both have two elements: 1. First, the public officer must have engaged in deliberate and unlawful conduct in his capacity as an officer. 2. Second, he public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff. (para. 23) There is, however, a distinction in how the categories are proven. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort. In Category B, the plaintiff must prove the two elements independently. (para. 23) One point which requires further comment is the mental element required to meet the Category “B” formulation of the test. The Court’s use of the word “deliberate” suggests actual knowledge, perhaps both that the act is illegal and that it is likely to harm the plaintiff. There are some passages in the decision that support this suggestion. For example, the court commented that: 1. the tort is not directed at inadvertence or negligence, but rather willfully choosing to do otherwise then discharge public obligation (para. 26); 2. the requirement that the defendant must have been aware that his conduct was unlawful reflects the well established principle that misfeasance in public office requires an element of “bad faith” or dishonesty (para. 28) and, 3. underlying purpose of the tort is to protect each citizen’s reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of a public function (para. 30) The penultimate paragraph of the decision though, paragraph 38, suggest that the Court did not set the test this high. - para. 38 appears to establish two points: 1. the test is subjective; and 2. subjective recklessness or willful blindness may be sufficient to meet the mental element of the tort Odhavji is also notable for confirming two other propositions: 1. the tort of abuse of public office can be committed by omission; and 2. the tort extends to the improper exercise of powers the decision maker didn’t actually have – not just abusing actual authority – explained this in its discussion of Roncarelli This then was the state of the law when a case called Genesis came before the Alberta Court of Queen’s Bench in 2009, and the Alberta Court of Appeal in 2010. Genesis involved a claim by land developers seeking to develop a large scale resort in the Kananaskis area. The developer required certain regulatory approvals to complete the project, had succeeding in obtaining some, and was working on obtaining others. In order to obtain the others, the developer was required to go through an environmental impact assessment. - the way the EIA process worked - first, prepare terms of reference - second, seek public input on terms of reference - final terms of reference would then be set, and the EIA conducted - substantial input received, but directed at project, rather than terms of reference After the input was received, the Department of the Environment issued final terms of reference, as well as a press release saying that the terms of reference captured the concerns of Albertans and would ensure that the project was comprehensively reviewed. Two weeks thereafter, Minister Mar the Minister of Environment, issued Ministerial Orders declaring that the projects were not in the public interest, and would not be allowed to proceed. A section of the Environmental Protection and Enhancement Act empowered the Minister to do so when the Minister was of the opinion that the project was not in the public interest having regard to the purposes of the Act. The developer, Genesis, sued the Crown and Minister Mar for misfeasance in public office. The thrust of the developer’s allegation was that any environmental concerns should have been addressed through the EIA process, and Minister Mar had misused his office for political purposes rather than environmental concerns. The evidence was that Minister Mar had discussed his decision with then Premier Klein, and had advised the premier that he intended to designate the area in question as a provincial park. Later on the same day that Minister Mar issued the Ministerial Orders, it was announced that Minister Mar was switching Ministries to the Ministry of Health. At the time of the events in question, the government was trying to introduce controversial health care legislation. This fact, in combination with Minister Mar’s move to the Ministry of Health, his seeming sudden change of heart, and the fact that he had met with the premier in the midst of all of this, led the Plaintiff’s to advance the theory that Minister Mar’s decision was for the improper purpose of building Minister Mar’s reputation with the public, a reputation he could then take with him to Health. The defendants sought, and were granted, summary judgment. The decision was upheld in the court of appeal. The case is a useful illustration of the sort of proof required to establish misfeasance in public office. The Court of Queen’s Bench held that the evidence before it fell short of establishing a deliberate unlawful act. The Court of Appeal agreed, saying that the inferences that the developer argued for do not rise above speculation. I respectfully think the Genesis decision was correctly decided. One has to acknowledge though that it is a good illustration of one of the challenges that plaintiff’s face in attempting to establish misfeasance in public office – trying to establish the subjective motives or state of mind of the public officer. TOP TEN LIST OF PRACTICAL POINTS FOR TORT LITIGATION WITH THE CROWN 10. Make sure you properly name the Crown s. 12- Proceedings Against Crown Act says Crown shall be designated as – “Her Majesty the Queen in Right of Alberta” - we often see departments named as defendants, but departments are not sueable legal entities 9. Serving the Crown - also governed by the Proceedings Against the Crown Act – - s. 13 a document shall be served on the Crown by leaving a copy with the Minister of Justice and Attorney General or the Deputy Minister of Justice and Deputy Attorney General or any barrister or solicitor employed in the department of Justice 8. Suing Crown Employees in Addition to the Crown - tactical considerations - personal liability - Crown is liable for torts of its officers or agents committed in the good faith exercise of their duties - government indemnity - sometimes increases the urgency of the defence, and from the defendants perspective, may be prompt additional motions for dismissal 7. Government is Huge -some 26,000 or so employees - can make for lots of documents, and in some cases can take time 6. Best Resource - Government Liability, Law and Practice, looseleaf by Horseman and Morley 5. Trend Towards Class Actions - but procedurally difficult, need to be very well resourced - requirement for certification - hearing to determine whether best way to proceed - need commonality - often bog down - need to consider client’s interests 4. Think About What Your Client Wants - often unhappy with government decisions - but Judicial Review v. statement of claim - JR is much quicker, and less costly 3. Be prepared for Striking and Summary Judgment Motions - almost all of leading cases on duty of care decided in this context 2. Precedent Concerns Beyond that of the Typical Litigant - must look at broad impact of each case, desire to treat people the same 1. Find the Relevant Statute, and Read it Closely - immunity provisions - important to proximity analysis Review – public authorities Since Just, Court has commented further on policy operational position – more generous to government Eg Swinamer, Brown, Imperial Tobacco Three points from Imperial 1. Private law duty must be found at stage 1 – can look at the statute, and the relationship between parties Very difficult to find private law duty in a statute – virtually all, by definition are in the public interest May find duty if there is an ongoing relationship 2. Policy/operational dichotomy at stage 2 Weighing of social, economic, political issues is for government not courts Policy decisions - are a subset of discretionary decisions ie “discretionary legislative or administrative decisions and conduct that are grounded in social, economic and political considerations” Generally made by officials who are required to assess and balance public policy considerations A decision representing a course or principle of action adopted by government 3. Stage 2 is a general policy assessment, not limited to policy/operational considerations Duty was denied at stage 2 on policy/operational test AND on indeterminate liability Negligence Causing Economic Loss part 1 General concepts, Negligent Misrepresentation and Negligent provision of service Negligence resulting in pure economic loss (H7) Economic loss generally o Negligent misrepresentation Generally – Duty Is there a duty to anyone? To whom and for what does the duty extend? Relationship between terms of contract and the negligence Untrue or inaccurate statements Standard of Care Reasonable Reliance Resulting Damage Contributory Negligence o Negligent performance of services o Defective products and services o Relational economic loss – compensation for relational loss in tort is RARE Per quod servitium amisit General concepts What is economic loss, categories of liability? Negligence causing pure economic loss: Financial loss which is not causally connected to physical injury to physical injury to the plaintiffs own person or property NOT property damage to plaintiff NOT personal damage to plaintiff No causal connection between loss of money and physical or personal damage to plaintiff Examples Lost money as a result of relying on incorrect advice about solvency of business partner Cost of repairs for negligently built structure o Especially subsequent purchaser Lost business because defendant negligently damaged a bridge, and plaintiff could not deliver goods (relational economic loss) What’s the difference? Consequential economic damage: A financial loss causally connected to physical damage to the plaintiffs own person or property o we are not concerned with this right now Negligently felled tree damages outdoor restaurant – business closed for repairs. Loss of earnings for personal injury VERSUS Social damage Damage to person is more “heinous” than property damage or damage to pocketbook; therefore higher duty should be owed Both personal and property damage involve permanent social loss Money is not a perfect replacement for this kind of loss Higher deterrent needed, therefore higher duty of care Economic loss has no net social loss But we are concerned with pure economic damage Is a “mere transfer of wealth…a form of wealth transfer o E.g. Loss of money on stock market Risk of economic loss can often be foreseen and managed by contract No physical or personal damage to plaintiff o o Siding on condo building about to fall off because of negligent build. Cost of repair is pure economic loss. Negligent advice given about solvency Elements of negligent applicable to personal and property damage are adjusted for pure economic loss Different scope of duty - different policy Same or slight variations in o Breach of standard of care o Cause in fact o Foreseeabilty of damage ( cause in law ) o Actual damage Five actions for economic loss recognized by SCC Each is distinct 1. Negligent Misrepresentation 2. Negligent Performance of Service 3. Defective Products or Buildings 4. Relational Economic Loss 5. Independent Liability of Statutory Authorities for negligent inspection See previous unit See article posted on TWEN if you are further interested in this topic 1.Negligent Misrepresentation leading to pure economic loss Aka “Hedley Byrne” application Negligent words that lead to physical damage are actionable as regular negligence…Normal rules apply History and development Pre 1963 – NO liability for misrepresentation causing pure economic loss until Hedley Byrne o Had to have a contract or Fiduciary relationship, or Fraud Policy What are the concerns with expanding negligent misrepresentation to include damage for pure economic loss? 1. Defendant can’t control where words go Can foresee that they will go everywhere and cause damage to everyone Causes indeterminate liability to indeterminate class Indeterminate liability, by itself, is a strong policy reason for limiting duty 2. Most negligent misreps do not result in physical damage Therefore not a cause of “social harm” … limited duty is justified 3. Freedom of speech Defendants’ right should not be impeded without justification 4. Something for nothing? Why should all who rely get the benefit of free service? What happens to business if advisors are warrantors to everyone who might read their advice? 5. The plaintiff chooses to rely Some responsibility belongs to her ---- Maintaining commercial freedom (enter into agreements, contracts) o caveat emptor (buyer beware) look after yourself principle o Encouraging self reliance Value of private ordering and reliance on contract o Parties can allocate risk of financial losses o Insurance is available Deterring loss of wealth is not as important as deterring personal damage Need for predictability o Avoiding indeterminate liability (if the opening is too big, chaos… no floodgates) If there are gaps in protecting consumers, legislation can fill in On the other hand… 6. Often reasonable to foresee that harm will be caused by reliance on representations 7. some need for deterrence…stop people from bringing indicuing innocent 8. Compensation and fairness Hedley Byrne 1963 (HL) Facts: Bank talked to bank to ensure they would be able to pay. They gave wrong info to other bank and it’s clients (the plaintiff) lost money. Bad banks said “we don’t have responsibility” bank not liable because of disclaimer “for your private use and without responsibility” Court created right to claim for PEL resulting from negligent misrepresentation…Negligent words, even in absence of contract or fiduciary relationship, could result in liability for PEL Created a specialized duty of care opened the door to potential liability in negligence for misstatements made by a person who was in neither a contractual nor a fiduciary relationship with the recipient of the information, where the statements made were not dishonest but were simply wrong. Cognos looked at the application of Hedley Byrne application These were what was needed: 1. Duty of care based on “special relationship” 2. Representation must be untrue or inaccurate or misleading 3. Defendant must have breached standard of care ( i.e. negligent) 4. Plaintiff did, in fact, reasonably rely 5. Reliance was cause in fact of damage 1. Duty of care based on “special relationship” Analyze in stages A. Establish prima facie duty using “special relationship” test B. Look for policy reason to limit o That is, apply Anns/Cooper analysis C. Consider impact of contract on duty A. Is there a prima facie duty? (Stage 1) What is a “special relationship?” Narrow view – voluntary assumption of risk by defendant o “normally in a business transaction” o “relationship equivalent to contract” o “assumption of responsibility” or “implied responsibility” by defendant Wider view – Not dependent on category of relationship (we take this view) o Plaintiff is foreseeable and it is foreseeable that reasonable reliance would occur o “Justifiable reliance” o Don’t look at categories, just look at relationship Queen v Cognos Inc 1993 o Facts: CA for cognos. But cognos didn’t have funding for him. Clause signed by both parties that said he could be fired at any time. Cognos tried to fire him, and he was successful for neg misrep On facts it did not matter which view o Reasonable reliance was foreseeable and there was a close relationship o Duty exists on these facts o Foreseeable that plaintiff will rely o Such reliance would be reasonable Hercules Auditor prepares report for shareholders. Individuals who are shareholders rely to their financial detriment on the report and sue auditor. Clearly a duty of care to company that paid for report Issue: Is there a duty of care to shareholders ? … Apply the Anns analysis - Foreshadows Cooper v Hobart in interpretation of Anns test o Stage 1 – Is the relationship such that defendant should must be mindful of plaintiff’s legitimate interests? o Stage 2 – is there a policy reason to limit duty? (this is considered in B, stage 2) … Hercules Stage 1 Establish basic foreseeability Then proximity - What is it about the relationship that makes it fair to impose a duty? o Reliance is foreseeable by defendant ( because It is a relationship where reliance is expected) and o Reasonable for a plaintiff such as this to rely * *note o not “was reliance reasonable?” o But “whether reliance would be reasonable” … Narrow or wide view of the reliance? o Narrow view – assumption of risk view (BUT WRONG) Duty only if defendant knew specific identity of plaintiff or class of plaintiffs and loss arose from transaction for which reliance was prepared What did LaForest J say about this? Consider these factors at stage 2 – Considered them as contributing to indeterminate liability Use wide view to establish prima facie duty … Hercules - Stage 1 Reliance by shareholders foreseeable – Yes Would it be reasonable for reliance to occur? Factors to consider: o Held: Considering these factors, reliance would be reasonable Would reliance be reasonable? Factors to consider: Klar’s list Skill of advisor Skill of advisee Nature of occasion Was it solicited Did Defendant get indirect or direct $ benefit Nature of advice o Mere opinion? Based on fact or mere speculation? Feldthusen’s list (adopted by LaForest in Hercules) Defendant had direct or indirect $ benefit Defendant had special skill or is a professional Rep provided in course of defendant’s business Rep given deliberately (not on social occasion) There was specific inquiry Also consider: - Was there disclamatory language? E.g. Hedley Byrne (if there was, then likely there was reliance) Examples where reliance would be unreasonable… Installer makes extravagant claim re security system (should expect people to talk highly of their product) Mayor makes comments about zoning at a luncheon (social situation, cannot glean reliance from this) Advice over phone to unidentified caller on pump capacity … Notes and issues At stage 1 of the duty analysis, Canadian cases support the wide “justifiable reliance” approach o Is reliance foreseeable, and if so, would reliance be reasonable? Clear that duty is not limited to professional advice givers … What difference, if any, if one takes “assumption of risk” v “justified/reasonable reliance” approach at stage 1? (thes are policy reasons which she will expect) Narrow o limits prima facie duty to plaintiffs in categories or established categories therefore, narrower scope of duty regardless of stage 2 o Less likely you will even get to stage 2, because stage 1 is narrow o more likely to limit to established professional categories o disclamatory language more likely to be effective Wide (one we take) o wider prima facie duty – limits may be imposed at stage 2. o More flexible, less predictable What is the difference if it was physical or personal damage, rather than PEL? Foreseeable plaintiff can always reasonably expect defendant will avoid personal or property damage. Skipped reasonable reliance step B. How far does duty extend? Is there a limit on the duty? (Stage 2) Having established prima facie duty test, is there a policy reason to limit the duty? … Hercules Stage 2 - Are there policy reasons to negate duty? o General policy concerns Avoiding Indeterminate liability – “liability in an indeterminate amount for an indeterminate time to an indeterminate class” deterrence and incentive to auditors What other concerns have courts considered as policy reasons to limit duty? Is there indeterminate liability? o Class of plaintiffs was known… but o Plaintiff relied on it for reasons other than the reason for which it was prepared (reason for reliance was different from reason of creation) INDERMINATE LIABILITY!--> would never know what our information was used for o Therefore no duty to these shareholders Issues (skipped slide) What other policy reasons could be considered at Stage 2? What if the defendant is a public authority? … C. Relationship between negligent misrepresentation and a contract BG Checo v BC Hydro Right of action in tort is not removed merely because there is a clause in the contract touching on the matter (doesn’t remove tort action)** ONLY TIME- Right to sue in tort can be contractually removed by specific wording waiving the right to sue or limiting liability … What policy factors must be balanced ? - right to private ordering - deterrence - commercial flexibility - protection of innocent plaintiff - predictability - harm to person or property is more heinous - harm to pocketbook is not social harm … Can contract subsume pre-contract misrepresentations? o E.g. “agreement replaces all prior representations” The tort action lives unless specifically ousted by contract (must be so specifically stated, a lot more clear, to get rid of tort liability) Cognos o Misrepresentation was about different matter o Can post-contract misrepresentations alter contract? The tort action lives unless specifically ousted by contract J Nunes Diamonds o Misrep was , inter alia, by a person authorized to vary contract (must be the right authority) Issues and Notes Read the Contract (RTDGC) Contract will be interpreted strictly, especially when bargaining power is uneven Why pursue a contract v tort remedy ( or vice versa) ? o Limitations? Same for contract and tort (used to be different) o Damage amount? Generally higher in tort liability o Evidence? Different evidence and trial strategy that can be used Concurrent liability for tort and contract apply to all tort actions o Rafuse and BG Checo apply to tort actions generally 2. Representation must be untrue or inaccurate or misleading Statements that are clearly untrue – straightforward o Realtor representing incorrect zoning, improper estimating and valuation, bad diagnoses, Omissions or incomplete information may be negligent o Eg Spinks v Canada (not told he could get back pension funds)… missing information can be just as harmful o Particular area of concern for government Failure to inform of change of circumstances o Eg De Groot v St. Boniface Hospital 3. Defendant must have breached standard of care ( i.e. negligent) Same for negligence Cognos o The applicable standard of care should be the one used in every negligence case, namely the universally accepted, albeit hypothetical, “reasonable person”[in the circumstances]. The standard of care required by persons making representations is an objective one.” (parentheses added) o Maker’s belief in the truth is not relevant. For professionals, the professional standard of care applies 4. Plaintiff did, in fact, reasonably rely The plaintiff must have known about the misrepresentation and reasonably acted upon it o Eg. Slide 30 Also (examples of not reasonable reliance) o Purchaser listens to realtor, but goes to lawyer for verification Realtor not liable o Brakes failed. Mechanic had inspected, but plaintiff did not know of inspection. Cant have reliance then! o Plaintiff has as much knowledge as defendant 5. Reliance was cause in fact of damage Plaintiff must have relied to his/her detriment, and damage ensued Damage = pure economic loss Negligent misrepresentation and Contributory Negligence Some argue that inconsistent to apportion negligence to plaintiff in negligent misrep (if you rely, you rely) this was the argument Contributory negligence? Linden says yes, Klar says no (it’s a contradiction)…In Avco financial services, Linden was proved right Courts disagree. Plaintiff can be held partially at fault especially if o Plaintiff could have relied on things other than the misrep o If there are multiple causes of damage, may be CN in regard to one of the other causes o Reliance was reasonable, but plaintiff could have done more to protect self 2. Negligent Performance of Services Generally Similar to negligent misrepresentation cases Types of cases o Plaintiff’s reliance on defendants undertaking to perform service e.g. Government neglects to put proper clauses in tree farm license e.g. BDC v Hofstrand There was no duty because no reasonable reliance This case is different because there was not a direct reliance between a plaintiff and defendant (he used a 3rd party courier) o Disappointed third parties – beneficiaries under wills Not good policy? Mcnary hates it Subsumed in Alberta? Generally, you need to apply the anns/cooper analysis (Hercules) o Apply the Anns/Cooper analysis Stage 1: Is there a foreseeable plaintiff and justifiable reliance? Stage 2: policy reason to limit duty? o Look for contractual terms negating duty or limiting liability If I provide you a service, if you (the defendant) forsee the plantiff will rely, and if the reliance is reasonable, then there is a clear possibility of reliance Cases under this heading are not consistent Difficult to reconcile Best approach o Duty based on foreseeable reasonable reliance o Breach of standard of care o Reliance causes PEL Still does not explain the disappointed beneficiary cases Courts are reluctant to impose duty on volunteers or intermediaries 3. Negligent Supply of Defective products or structures…that are DANGEROUS Concepts Recall policy reasons for limiting PEL Maintaining commercial freedom (enter into agreements, contracts) o caveat emptor (buyer beware) look after yourself principle o Encouraging self reliance Value of private ordering and reliance on contract o Parties can allocate risk of financial losses o Insurance is available Deterring loss of wealth is not as important as deterring personal damage Need for predictability o Avoiding indeterminate liability (if the opening is too big, chaos… no floodgates) If there are gaps in protecting consumers, legislation can fill in Concepts Damage = damage to product itself, not damage resulting from external event o Eg. Faulty foundations causes cracks in wall – PEL Falling tree causes cracks in wall – damage to property – normal negligence rules apply o Problem Where is the line between 1 and 2? Winnipeg case- limestone came off the 9th floor of condo building because of shoddy workmanship. o What would have happened if that piece of stone ACTUALLY hurt somebody (then normal negligence would have applied) o What would have happened if it hit a balcony causing property damage The rule in Winnipeg Condominium Corp Builder, architect and contractors may be liable to subsequent owners for PEL if negligence results in a structure being dangerous o Liability is limited to reasonable cost of repairs o Contractors could be liable to third parties if they were defects in the building Facts: Condominium building designed and built by defendants in 1972 – 74. Subsequently, units all sold and Condo Corp came into existence. In 1989 a piece of tyndall stone fell nine stories from the building. Condo Corp had to repair building. $1.5M No contract between Condo Corp and builders Issue: can Condo Corp sue in tort? YES! Reasoning – LaForest J Stage 1: It is reasonably foreseeable that subsequent purchasers may suffer personal or property damage if a building is designed or constructed negligently. Therefore, it is reasonable to extend builders’ duty of care to include cost of prevention of personal or property damage. He said yes, it is forseeable Stage 2: Any policy reasons to limit this duty? No. Indeterminate liability? o No – Because subsequent occupiers are a limited class Life of the building is limited Eventually, the building will deteriorate anyway Cost of repair limited to reasonable cost of restoring to non dangerous state Caveat emptor principle – common law says no implied warranty of fitness o Should not apply because subsequent purchaser cannot always find latent defects in complex structures U.K. courts completely reject this view o D & F Estates v Church Commissioners HL(1993) – defective plaster in apartment building No liability for PEL for dangerous or defective buildings or products Creates a warranty using tort law (they could be liable forever) Legislature better suited to deal with this issue Cost of repair of defective chattel is not recoverable in tort, Can be managed with insurance, contract No cases where Wpg Condominium principle applied to defective products… Issues and Questions 1. What about non dangerous defects? A building is built and sold and supposed to last 50 years. After 25 years the building is declared no longer usable due to shoddy building materials and workmanship… o What arguments for the owner for duty of care (plaintiff)? Shoddiness is negligent Could be inherently dangerous On stage 2, it would not be indeterminate liability COULD BE negligent misrepresentation o What arguments for the contractor against duty of care? There was no contract so why would they be liable Who would you sue if they are dead, the estate? Bad for policy reasons…don’t want cloud hanging over head If he was not negligent at the time, then why would he be now? Owner – o Stage 1 - Foreseeable that would be impacted by shoddiness, no control o Stage 2 – known class of plaintiff Contractor – o Stage 1 – not close in time, too remote, too many intervening factors, what is “shoddy?” o Stage 2 – tort law does not create warranty, indeterminate scope of liability, risk can be managed contractually, not the kind of harm tort law protects 2. Imminence of danger or harm – how imminent? What if the harm is possible, probable, merely speculative? What are the issues here? o How imminent is it going to happen tomorrow, or in 50 years o Limitations of action policy (policy considerations in relation to limitations) Discoverability of harm Drop dead rule (10 years to discover harm) Repose for defendants Social stability (we don’t want lawsuits all over the place) Problems of proof (defendants die, cant prove anything) o Definition of “danger” or harm is difficult 3. In Winnipeg – Court said scope of recovery limited to reasonable cost of removing dangerous defects – what should be covered? Issues o Scope of cost Loss of business? Cost of alternate accommodation? Lower property value? WHAT STUFF DO WE COVER, how far does it go? o What if risk is low, but cost of repair is high? 1 % chance, but 100,000 dollars? o Contributory negligence or other causes – if you don’t repair, its your fault Eg danger aggravated by bad weather? What is the difference between negligent performance of a service and negligent creation of dangerous structure? Duty test - some nexus of reliance required for negligent performance of service Issues To call this category “defective products and structures” is overly broad o ITS ABOUT DANGEROUS STRUCTURES May be liability for PEL for reasonable cost of repair of dangerous structures in order to prevent damage to person or property o Plaintiff must prove negligence o Not clear that this applies to products o Not applied to merely shoddy or defective structures 4. Relational Economic Loss …difficult but possible 1. Property damage causing relational loss A negligently causes property damage to B. ... As a result, C suffers a loss of business. Issues (if C wants to collect for PEL) - massive indeterminacy, there could be many C’s - disproportionate punishment- sure A is at fault, but does he have to pay for everything - over-deterrence – clogging courts - floodgates - do not use negligence to circumvent contract terms Clear the law will not allow claims for relational PEL based on foreseeability alone. Liability must be determinable. Therefore, cases where there is no nexus at all between B and C creates too much indeterminability to be considered. To even start analysis, the cases involve some nexus – usually a contract between B and C Atleast some contract between B and C CNR v Norsk SCC 1992 CN has contract with Crown to use bridge. Norsk’s tugboat negligently damages the bridge. CN sues for relational economic loss Split court found prima facie duty at stage 1 and no indeterminate liability (or other policy limit) at stage 2. The plaintiff was foreseeable and proximate, and liability could be clearly limited to the contract holder’s losses. Therefore no reason to limit duty Dissent: policy dictated against considering REL in this case Two theories (arising out of norsk) Negligence is only about foreseeable property and personal damage (la forest) o Relational Economic Loss is outside the realm of negligence law and even if there is foreseeable damage and duty, should never be permitted except under very limited exceptions o Consistent with pre-Hedley Byrne and traditional tort law o LaForest in Norsk Negligence is about any foreseeable damage o If damage is foreseeable, and there is a prima facie duty of care, then REL it should be included unless there is a strong policy reason to oust it. - McLachlin in Norsk Bow Valley Husky 1997 ***** “reconciled” the positions on the principles that 1. REL is recoverable only in strict circumstances 2. Can be defined by reference to categories new categories are established via the Anns two stage test (there is foreseeability and proximity, and reasons to limit policy) 3. Categories are not closed Three established categories of possible REL arising from property damage 1. Joint ventures between B and C Can argue that B and C are in same position Claimants are determinate 2. Averaging cases ( maritime law ) ..can ignore 3. C has possessory or proprietary interest in the damaged property (n bow valley, that was NOT the case) Claimants are determinate C has suffered some property loss 2. Per quod servitium amisit Relational economic loss to a third person as a result of negligence causing personal harm o I.e. A negligently harms C’s servant, B (or lawyer loses paralegal) This action is abolished in some provinces. Technically still alive in Alberta and others. o Seems outdated and demeaning o Servants as chattels Similar to per quod consortium amisit - the abolished action for loss of consortium Historically for loss of wifely domestic services o Extended to the loss of companionship, relationship Abolished or inconsequential in most provinces o Alberta – Domestic Relations Act contained a right to sue for loss of consortium, repealed in 2004. o Prof. Klar may disagree that it is abolished Other odd – abolished - actions Family Law Act section 103 – 108 Family Law Act RSA 2000 http://www.canlii.org/en/ab/laws/stat/sa-2003-c-f-4.5/latest/sa-2003-c-f-4.5.html Seduction Harboring Unity of person Right to pledge husband’s goods Review – the evolution of the duty analysis, broadening the scope of negligence Review – the 2 stage duty analysis Evolution of the “Categories” approach Pre D v S – recognized categories or privity Donoghue v Stevenson 1932 – neighbour principle – property or personal damage Hedley Byrne 1963 PEL negligent misrep Anns v Merton London Borough Council 1978 Public authorities where no private law analogy Kamloops v Neilson 1984 Anns applied in Canada – policy operational at stage 2 BDC v Hofstrand 1986 No duty owed by intermediary who serves negligently Just v B.C. 1989 Public authority – policy operational at stage 2 CNR v Norsk 1992 Duty to Plaintiff who suffers Relational economic loss Queen v Cognos 1993 Negligent misrep Winnipeg Condominium v Bird1995 Duty to subsequent owner who suffers PEL Hercules Mgt v Ernst & Young 1997 No duty for neg misrep to shareholders at stage 2 Bow Valley 1997 No duty to plaintiff who suffers PEL… categories of PEL clarified Cooper v Hobart 2001 at p 295 (Klar) – categories which pass the two stage test … Whether there is a duty Look for the category first Foreseeable plaintiff, damage to person or property is a category Then, if no category, apply the two stage duty test Whether there is liability for negligence Determine duty and then the rest of the elements of negligence Defamation Quick Elements 1.Would the material lessen the reputation of the subject of the statement in the mind of a reasonable person? • Including the context in which they were spoken • Sample problem “Your father smells of elderberries” What would a reasonable person think? Too ridiculous to take seriously? Or dad is a drunk? 2.Does the material refer to the plaintiff? • Yes, if Father is suing What if the King (i.e. the son) is suing? 3.Was it published? That is - communicated to at least one person who was not defamed ? • If dad is plaintiff, then publication to King and his men • If King is plaintiff, then publication to who? General Concepts Value protected: reputation, reputation, reputation Human dignity, moral autonomy, which are protected through our reputation Nothing to do with protecting security of person or their property History – Hill v Church of Scientology Manning and Church of Scientology held a press conference to publicly announce criminal contempt proceedings they were starting against Hill, a Crown attorney. Found liable for libel at trial. Held: Charter values (in private litigation) are balanced differently than Charter rights. There is no formal s.1 analysis. Courts always have power to modify common law to bring into conformity with the Charter. Policy balance Freedom of speech v. protection of reputation They are incompatible- as to the extent you protect one, you limit the other The courts task is not to prefer one over the other, but rather for reconciliation Klar thinks Canada has protected reputation more than free speech Charter and defamation law Why is/was this an issue? Early post Charter cases wondered about it…should we really tell people they cant say stuff Current law Charter does not apply to private parties Actions between private parties are not covered, BUT Charter values do shape all common law, including defamation (hill) Charter values include freedom of expression and dignity of the person Courts are content that current private law of defamation law properly balances Charter values If it were otherwise (freedom of speech is constrained too much), what would happen? Freedom of expression “chill”, people would be afraid to speak, newspapers wouldn’t report Law could respond with legislation or courts could balance this and make it a high standard Lawyers’ reputations (Hill) Are extremely important, its our stock and trade its what we live on and careers will suffer without good reputations Law Society Code of Conduct Rule 6.02 (1) A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice. Commentary…A lawyer should avoid ill-considered or uninformed criticism of the competence, conduct, advice or charges of other lawyers (cant criticize other lawyers) 6.02 (6) A lawyer must not, in the course of a professional practice, send correspondence or otherwise communicate to a client, another lawyer or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer. Defamation of dead people If plaintiff dead when defamation occurs, no action available only the living can be defamed Defamation is an action “in personam” (to one person, doesn’t survive by me after I die, in rem meant against the word, even when dead) If death occurs after defamation, but before claim resolved (you defame, are sued and you die) Survival of Actions Act allows action to be made or continued, scope of damage limited Can continue to sue you the estate would sue you Defamation by dead people (before they died) Estate may be sued by plaintiff , and their damages are not limited SAA Survival of actions act Defamation of/by Corporations Corporate entities have reputations and may be defamed Municipalities/gov’t agencies can be defamed Government officials can be defamed • Would a federal/provincial gov’t sue ? They have lots of resources Seditious libel? People plotting against the government Defamation by Corporations: Corporate entities may defame others Time Limits Limitations Act applies (2 years from discovery, or 10 after it happened) PLUS Defamation Act s 13 13(1) No action lies unless the plaintiff has, within 3 months after the publication of the defamatory matter has come to the plaintiff’s notice or knowledge, given to the defendant, in the case of a daily newspaper, 7, and in the case of any other newspaper or when the defamatory matter was broadcast, 14 days’ notice in writing of the plaintiff’s intention to bring an action, specifying the defamatory matter complained of.(2) The notice shall be served in the same manner as a statement of claim. Allows for mitigation of damage: issue apology, undo the harm Why do we have a difference between these two, why do we need this? What is defamation The nature and elements of the tort Defamation v negligent misrepresentation Careless words can cause damage – either pure economic loss or physical damage Can plaintiff claim in both negligence and defamation? On one hand, if there is a duty of care owed by defendant then no reason to oust negligence claim just because there is also defamation On the other hand, if the harm is just to reputation, then why not use the specific reputation tort? Law not settled in Canada, though leans to allowing both Double recovery of damages would not be allowed Libel v slander Common Law Libel – written material Slander – spoken material Different elements – slander requires proof of special damage Alberta Defamation Act s.7 abolished the difference Damage is presumed in either case Tort of Defamation- Elements 1.Would the material lessen the reputation of the subject of the statement in the mind of a reasonable person? 2.Does the material refer to the plaintiff? 3.Was it published? That is - communicated to at least one person who was not defamed ? Element #1. What is defamatory?--> Objective Reasonable Person Test Overall threshold is very low- very wide definition in the abstract, could it lower reputation Various formulations Murphy v LaMarsh, Youssoupoff v MGM – Lamarsh (politician) wrote a book, which said murphy was “detested by other members of press gallery” held to be a defamatory because people would think there was something wrong with him Encompasses words, pictures, gestures that (but waayyy more) Bring the person named into hatred contempt or ridicule…or causes them to be shunned or avoided Tend to lower the plaintiff in the estimation of right thinking … society generally Right thinking persons can and probably will properly interpret … as defamatory the reasonable reader… would conclude there was something wrong with the person… Is a false* statement about a person to her discredit *falseness is presumed NOTHING in the first stage is considered to be true, falseness is presumed, defence will have to rebut that Two stages 1. Question of law: Is the material capable of a defamatory meaning ? “heartily detested by the Press Gallery..” capable of being defamatory? Is “Mother is a hamster” capable of being defamatory? Father smells of elderberries? possibly 2. Question of fact: Would a reasonable person find the material defamatory? (this is put to the jury, trier of fact) The reasonable person (at this stage) Does not care whether there was actual harm to plaintiff’s reputation about the bona or mala fides of the defendant (?) Decides whether the material could harm a reputation Does not care whether the receiver believed it about the actual truth of the statement Decide whether material is generally believable Takes general context into account Was it heat of moment? Banter? Comedic intent? Considers the ordinary, natural meaning What about special meaning known only to recipient?? Innuendo and meanings dependent on knowledge of specific facts If there is a “hidden” meaning – plaintiff must plead and prove this Must Allege the meaning in the Statement of Claim Bring evidence to prove the meaning Quack: referring to a doctor is defamatory (warren v green) …what would the reasonable person say about this? VanderZalm v Times Publishers 1980 BCCA He was the premier of BC, very colorful guy. He sued over the cartoon that showed him picking off wings off flies. Would a reasonable person think this would hurt reputation? Just because he is a politician figure doesn’t make it a higher standard (but hard not to take it into account) Trial level said no, it was defamatory but in the end, there was a defence Critique of test of defamation Favors plaintiff at expense of defendant (if reasonable assessment at stage 1 is low, then free speech is infringed) Should there be a requirement of proof of damage? Should as LeBel J said in WIC Radio there be factual consideration of Whether plaintiff was known by public and how much Nature of the specific audience Element #2: Material must refer to plaintiff On the exam, we just answer if it refers to plaintiff Can be express or implied doesn’t have to mention name and don’t have to be aware its referring to someone Kind of SL A question of law and fact 1. Law: Is the material capable of being applied to the plaintiff “Your mother is a hamster” What if the King is the Plaintiff? Mother? 2. Fact: Does the material refer to the plaintiff Would a reasonable person conclude it referred to plaintiff? What if the plaintiff is a member of a group, and the words are directed at the group? Same test: are the words capable of being directed at the plaintiff? Would a reasonable person in the circumstances they were intended to refer to the plaintiff? Individual person can sue and say they were harmed Can a group sue for defamation? Unincorporated groups do not have the rights of a natural person What about hateful statements toward a minority? Gap filled by legislation, human rights law Eg. Sask Human Rights Commission v Whatcott 2013 SCC Penal statutes require intention Element #3: Material must be published (policy in here) Does not mean “published” but rather that it was communicated in some method to a third party o Not defamatory to say something to someone’s face if someone hears only responsible if it was forseeable Crookes v Newton 2011 SCC Facts: Crookes was a politican, Newton published on his website articles that could be seen as defamatory, and other hyper links which were defamatory o Usually, Material must be published to at least one person who is not the plaintiff • Issue: Is a hyperlink, by itself, publication? • Held: a hyperlink to defamatory material is, in itself, not publication Analysis – Crookes The manner of publication is irrelevant provided the defendant has acted in some way conveyed the material to someone other than the plaintiff E.g. Pointing at a sign Formerly, it did not matter the actor did not know of the material – e.g. operator of print machine liable These people are not liable anymore “Defendant must have knowing involvement in the process of publication of the relevant words” MUST KNOW WHATS IN THE MATERIAL but people can still be liable if they didn’t know it was defamatory Policy considerations – Crookes Telling people that content exists is distinct from controlling the content (there a letter in your inbox (telling) vs I wrote the letter) People do not necessarily control the insertion of hyperlinks People inserting the hyperlink do intend readers to move to the defamatory content - however readers know and choose to move to a different site Hyperlinks are content neutral, they only direct to other content Reasonable balance of freedom of expression and protection of reputation Do not want information-sharing “chill” Plaintiff still has a remedy against creator of material Context surrounding hyperlink should be assessed – is there defamatory material “surrounding” it? Fault and knowledge of defendant relevant at this stage Final points on publication Each publication is a new claim DA s. 7 But please consolidate the actions! Knowledge and fault of defendant is relevant at this stage Knows the content and knew or reasonable to know that the material will be conveyed Doesn’t have to be defamatory Innocent conveyance is not publication Damage is not required At common law and see s. 2 Defamation Act The purpose is general protection of reputation Intent – innocent or otherwise - of defendant not relevant Defendant need not even be aware of the plaintiff Actual damage is relevant at assessment of compensation stage Defences to Defamation 1. Truth- Also called “justification” All defamatory material is presumed to be false, until proven otherwise If the defendant can prove the statement is true, that is a complete defence If 99% right, that’s probably good enough because its substantially true Cannot say “someone told me its true” have to prove it Policy: Interest in truth is paramount to reputation Encourages fact checking Discourages publication from “unnamed sources” Is this a good or bad thing? Factual Statements Father really does smell of elderberries Straightforward – may be defamatory, but if true, then no liability Opinions “I think your mother is a hamster” veracity not so clear 2. Absolute Privilege Regardless of truth, malice… some situations require absolute freedom of speech and/or have other protection Communication is vital—Speakers must be free to say what they wish and for whatever reason Absolute protection from liability for defamation- Even malice wont stop it 1. Communications between spouses (you can defame whoever you want) 2. Statements during parliamentary, legislative proceedings • At least in the chamber and in committees • Not necessarily outside the House – e.g. with journalists (probably not absolute privilege) • Reports of parliamentary proceedings are protected ONLY IF “they were fair and accurate” 3. Statements made in judicial proceedings During trial and court proceedings Pre trial communications eventually disappears (hill) Lawyer client communications Preparation of reports and proof of evidence Judges have AP, some broader than others See s.12 defamation act 4. Acts of high officials (high executive) in the performance of their duties Statement by one officer of state to another Relating to state matters Made in the course of official duties Note on Absolute Privilege Section 12 Defamation Act Absolute privilege is given for reports of judicial proceedings As long as its neutral Only for newspaper and broadcasting It’s a statutory privilege that extends absolute privilege http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-d-7/latest/rsa-2000-c-d-7.html 3. Consent Can consent to publication of a defamation, but Narrowly construed Consent to one publication ≠ consent to a separate publication 4. Qualified Privilege (most common defence) Policy Sometimes the importance of communicating overrides the need to protect reputation Its ok or justified to reduce someone’s reputation Characterized by publisher having moral or legal duty who has an reciprocal interest in hearing it Myriad situations where QP can be claimed Starting point for QP : material is untrue, but plaintiff honestly believed them (If material is true, what is the difference?) its truth anyways What kind of situations? A situation where A reasonable person would agree the publisher (defendant) had a moral, social, legal duty to convey information and the recipient had a reason to receive it Reciprocity is a key element A social value in passing the information. Even though there’s a risk if its false. It is a question of law (not fact) whether the relationship of the parties and the conditions of publication are sufficient to support the defence of QP Court will look at the situation alleged, and will decide if its sufficient to say its qp (reciprocity, importance) Hill v Johnston and Canada Safeway Johnston had back problems and his friend was a gynecologist he had a letter but pharmacies let all other pharmacies thought he was getting prescriptions from his friend “Fan out” by pharmacy alerting of possible drug forgery Situation of QP admitted by defendant were published on occasion of QP and not defeated by malice and stayed within bounds Pharmacist has duty to inform of abuse, and other pharmacists to know about it… The information was false, but they did honestly believe it Wimpy argument by defendant that fan out not sanctioned by pharmacist association policy What did court say regarding this? Pure legality or conformity with practice does not equal the test needed QP requires only a general legal or social duty, no need for enforceable duty Other Rough categories (examples) of qualified privilege • • • • Protection of self – defendant has honest belief in false material; duty to protect self; reciprocal relationship with those to whom attack was published. • Both economic and personal • Can protect your character, or character of employer • Not an excuse to abuse the attacker Tucker eg. • I defame you by publishing in newspaper run by Kwame. Me and Kwame have reciprocal obligation to protect ourselves…so I can publish through Kwame refuting this and replying back Common interest/mutual concern – defendant has honest belief… ; social/moral duty to further common concern; reciprocal relationship with those who share concern has to be in interest of both • Shareholders of a company, business owners (common business interest to discuss mutual economic concern talk about customers, employees) • Creditors of a specific debtor (can exchange info) • Hospitals to labs and emergency rooms (about a guy with infectious blood)- has to be of interest to both!! • Allegations of abuse among family members or to therapist • Church or fraternity affairs (to discuss church affairs) Moral/legal duty to protect another – defendant had honest belief in false material; reciprocal relationship between defendant and the one to whom duty/obligation owed • Inquiries; Ex. Job references • I will provide the information and this will be a qualified privelege • Not for profit credit agencies (note profit makers not protected by QP) • Interests of children Public interest – defendant has honest belief…; reciprocal relationship ? To the public at large? • Very idiosyncratic category • Reporting crime to police, teacher to school board • Lawyers talking about how cops were being racist • Note the difference in between right and duty: • no “right” to publish defamatory material • public’s right to know – is not a sound justification for defamation • “Public interest” does not justify a free for all … • there is no right to know, cant just claim public interest whenever youre in trouble Reporting public documents and proceedings • By statute, privilege automatic for reporting public documents and proceedings • Defamation Act s. 10 http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-d-7/latest/rsa-2000-c-d7.html • Only for newspaper and broadcasting • QP is available at Common law for reporting of public documents and proceedings • Defendant publishes account of public document or proceeding; has honest belief in content of report; report not true Hill v Johnston and Canada Safeway also brought up what could destroy QP • What defeats QP? • Excessive Publication • Negligence? • Malice Excessive Publication - Overreaching the duty, comments are outside the situation protected 1. Too much information: defendant published more information than needed to fulfill duty • E.g. Tucker v Douglas • Both politicians in sask, mr douglas accused mr tucker with fraud and high interest rates. Only interest rates were true. Mr douglas said there was qualified privilege courts said your false statement did not go to the duty, it was just revenge • In hill v Johnston, • He said it was too much information cause you didn’t need to use my name-> courts said no, the interest was high enough 2. Over-delivery: Some recipients did not have a duty to receive communication • Publication to intermediaries in ordinary course of business does not defeat QP • What about to parents of defendant? • What if published in the Edmonton Sun? • Jones v Bennett Sure, you could have qualified privilege to your supporters, but you didn’t have to give it to the media, especially because there was no real duty to the media and you knew they were these • If recipient has no duty to receive info and not an intermediary – QP is lost Adam v Ward: • Hill v Johnston; hill said clerks and other people instead of pharmacist will see this but it doesn’t matter, it’s a course of business Negligence • • • • QP defence not necessarily defeated by negligence of defendant Negligence requires defendant’s recklessness or indifference as to the truth of the material Different from “honest belief in the truth” • If the belief is honest, does not matter how it was reached** • Johnston honestly held the belief (so it didn’t matter how she got to it) But there can be an independent negligence claim • If plaintiff establishes duty of care, breach and damages Malice and QP Malice trumps QP defence Its ill will If jury finds defendant malicious (if the purpose of the communication is malicious) – QP is lost (even after its established) Malice will kill the defence of QP What is malice? A question of fact In order for jury to consider malice, judge must find probable cause – i.e. sufficient evidence that jury could find malice It is high handedness (showing no respect, no attempt to mitigate or understand, self centred). Malice defeats the policy for which QP was created Malice is proven if Dominant motive is ill will or spite No honest belief in material What if belief is real, but unreasonable? Cases are split, but see Hill v Johnson, supra Indirect or alternate motive Mom alleging child abuse in therapy; motive is custody of child not treatment Exceeding privilege trumps QP and is evidence, but not proof of malice “over publishing” – publishing to those with no duty to receive giving too much information – more [false] information than needed to fulfill duty This is for the benefit of the plaintiff Malice has to be proven by plaintiff as a fact Exceeding privilege is a matter of law raised in the course of establishing the defence – less onerous for plaintiff Jones v Bennett 5. Responsible Communication in Matters of Public Interest – A defence specific for the media ALSO KNOWN AS RESPONSIBLE JOURNALISM Grant v Torstar 2009 SCC created new defence for media Facts: Torstar publishes story unfavorable to Grant. Grant wanted to develop golf course, and neighbors didn’t want it. So Torstar said “it’s a done deal” Issue: Allegation in story is unprovable, not clear if is allegation of fact or opinion, QP may not apply Discussion QP is a difficult defence for media to establish – no reciprocity Reporters may have bona fide checked facts, but may Be unable to prove them in court or, Find facts are untrue, despite best efforts Creates chill for media and freedom of expression Law seemed to favoured reputation over free speech At cost to public debate, search for truth, democratic governance Court reviewed options, two ends of the spectrum Traditional QP defence (have to honest belief, reciprocity, and cant check facts) US approach - public figures must prove malice to succeed in defamation Alternative “middle road” is new defence for public media including bloggers, on line and traditional media Including non journalists Two Aspects Publication in public interest Publication was responsible: diligent attempts to verify In public interest Legitimate interest about which public or some sector of public has substantial concern Not gossip affects the welfare of citizens or has attracted substantial public notoriety or controversy (Vellacott at para 76) Not just government, not just public figures, …the test is not limited to well-known persons. Matters of curiosity or prurience do not suffice. The public, or some portion thereof, must have a genuine and legitimate interest or stake in wanting to have information about the subject matter of the allegedly defamatory publication. There is no exhaustive list of such matters; each case turns on its facts. (Vellacott at para 76) Responsibly made Considerations Seriousness of allegation Diligence should be in direct proportion to severity Public importance Urgency what did reporter know or ought to have known Status and reliability of sources Whether Plaintiff’s side was sought and accurately told Whether inclusion of defamatory statement was justifiable Reportage: did the public interest in the statement lie in the fact it was made or in its truth? Other… Tone, multiple meanings, 6. Fair Comment Generally QP and Responsible Communication Focus on fact – they allow untrue facts to be repeated Fair Comment Honest opinion based on truth (a true fact) = fair Fair ≠ reasonable We are free to be unreasonable in our opinions All you need is that someone has to honestly hold it Terminology alert: “comment” = “opinion”, “observation” Elements of the defence of Fair Comment WIC Radio v Simpson 2008 SCC The comment must Must be on a matter of public interest Some sort of harm or value (arts, science) Must be based on fact (i.e. truth) Known to the audience already or given by the defendant May include inferences of fact, but must be recognizable as comment Must satisfy the objective test: could any person honestly express the opinion on the proved facts? WIC changed the law Honesty of belief used to be subjective test Elements of FC, put another way the comments are actually comments and not statements of fact; they are made honestly and in good faith; they are made regarding facts which are true; and a matter of public interest is involved Opinion/comment v statement of fact For Fair Comment to succeed Truth must accompany the comment or be otherwise known To say someone is dishonorable is a fact, whereas to say a person did this, and thus they are dishonorable is a comment Dr X is a quack ✖ Dr X took out my gall bladder without permission, he is a quack-✔ HAS TO BE TRUE THOUGH Where comment looks like a statement of fact - Reasonable person must be able to discern whether it is a comment, not a statement of fact Mary Smith is a son of a bitch = comment Mary’s dog is a son of a bitch=statement of fact Your mother is a hamster = ? … Examples- Sam v Al - Fair comment? Al tweets “ Sam is a quack – she nearly killed me with an APEX shot” Assuming its true, this is an opinion Al tweets “That surgeon Dr X is a quack. “ This is not a fair comment Creative Salmon Co v Staniford 2009 BCCA Para 58: The facts must be truly state or at least substantially true. They must not be patently distorted. Comment must be sufficiently distorted to suggest it’s not a true statement of fact. Republication and Fair Comment Re Cherenesky v Armadale at p 707 Created a problem for the media to have the honest belief of the original speaker Fixed by Defamation Act s 9 – a person who re-publishes a defamatory comment may rely on the honest belief of the original speaker to establish fair comment Malice and Fair Comment • Actual malice by defendant completely defeats fair comment • Onus on plaintiff to prove malice • Evidence of malice • Willfully misrepresenting facts • Dominant purpose was spite, vindictiveness, high-handedness • Motive something other than public interest • The malice must defeat the purpose of the defence • See Creative Salmon Co v Staniford 2009 BCCA Defamation remedies … damages and injunction Seldom any special damages i.e. pecuniary, out of pocket expenses If you can prove your business suffered, then you could For general damages Hard to quantify loss of reputation Usually modest - Punishment, deterrence and restoration of dignity are policy controls No caps however – Hill v Church of Scientology Mitigation encouraged Apology or withdrawal will reduce damage awards Incumbent on the plaintiff to mitigate (go tell them to issue apology) Punitive damages awarded if Malice, high handedness, conduct of case, repetition Some punishment is already considered in general damages No double dipping! Hill v Church “insidious, pernicious, persistent malice..” Injunction Occasionally granted to prevent repetition, as interim measures Defamation Act Slander of Goods Elements… 1. Statement made concerning goods of plaintiff 2. Statement is false 3. Statement published with malice - improper motive or dishonestly 4. Special damage must occur – that is pecuniary loss 1. Some measure of loss is required Occupiers Liability Act Definitions 1 In this Act, (a) “common duty of care” means the duty of care of an occupier of premises to visitors provided for in section 5; (b) “entrant as of right” means a person who is empowered or permitted by law to enter premises without the permission of the occupier of those premises; (c) “occupier” means (i) a person who is in physical possession of premises, or (ii) a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises, and for the purposes of this Act, there may be more than one occupier of the same premises; (d) “premises” includes (i) staging, scaffolding and similar structures erected on land whether affixed to the land or not, (ii) poles, standards, pylons and wires used for the purpose of transmission of electric power or communications or transportation of passengers, whether or not they are used in conjunction with the supporting land, (iii) railway locomotives and railway cars, (iv) ships, and (v) trailers used for, or designed for use as, residences, shelters or offices, but does not include aircraft, motor vehicles or other vehicles or vessels except those mentioned in subclauses (iii) and (iv) or any portable derrick or other equipment or movable things except those mentioned in subclauses (i) and (v); (e) “visitor” means (i) an entrant as of right, (ii) a person who is lawfully present on premises by virtue of an express or implied term of a contract, (iii) any other person whose presence on premises is lawful, or (iv) a person whose presence on premises becomes unlawful after the person’s entry on those premises and who is taking reasonable steps to leave those premises. Application of Act Effective date 2 This Act applies only in cases where the cause of action arose after January 1, 1974. Liability of employer 3 This Act does not apply to or affect the liability of an employer in respect of the employer’s duties to employees. Act inapplicable to highways or private streets 4(1) This Act does not apply to highways, other than leased road allowances, (a) where a Minister of the Crown in right of Alberta has the administration of, or the management, direction and control of, the highway, (b) where the Crown in right of Canada has the administration and control of the highway, or (c) where a municipal corporation or Metis settlement has the management, direction and control of the highway. (2) This Act does not apply to private streets as defined in section 78 of the Law of Property Act. Liability of Occupier to Visitors Duty of care to visitors 5 An occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there. When common duty of care applies 6 The common duty of care applies in relation to (a) the condition of the premises, (b) activities on the premises, and (c) the conduct of third parties on the premises. Recreational users 6.1(1) The liability of an occupier to a person who uses the premises described in subsection (2) or a portion of them for a recreational purpose shall be determined as if the person was a trespasser unless the occupier (a) receives payment for the entry or activity of the person, other than a benefit or payment received from a government or government agency or non-profit recreation club or association, or (b) is providing the person with living accommodation on the premises. (2) Subsection (1) applies to the following: (a) rural premises that are (i) used for agricultural purposes including land under cultivation, (ii) vacant or undeveloped premises, and (iii) forested or wilderness premises; (b) golf courses when not open for playing; (c) utility rights-of-way excluding structures located on them; (d) recreational trails reasonably marked as such. Risks willingly accepted 7 An occupier is not under an obligation to discharge the common duty of care to a visitor in respect of risks willingly accepted by the visitor. Variation of duty of care 8(1) The liability of an occupier under this Act in respect of a visitor may be extended, restricted, modified or excluded by express agreement or express notice but no restriction, modification or exclusion of that liability is effective unless reasonable steps were taken to bring it to the attention of the visitor. (2) This section does not apply with respect to a visitor who is an entrant as of right. Effect of warning 9 A warning, without more, shall not be treated as absolving an occupier from discharging the common duty of care to the occupier’s visitor unless in all the circumstances the warning is enough to enable the visitor to be reasonably safe. Contract not to affect strangers 10 When an occupier of premises is bound by a contract to permit strangers to the contract to enter or use the premises, the liability of the occupier under this Act to a stranger to the contract may not be enlarged, restricted or excluded by that contract. Liability of independent contractor 11(1) An occupier is not liable under this Act when the damage is due to the negligence of an independent contractor engaged by the occupier if (a) the occupier exercised reasonable care in the selection and supervision of the independent contractor, and (b) it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken. (2) Subsection (1) does not operate to abrogate or restrict the liability of an occupier for the negligence of the occupier’s independent contractor imposed by any other Act. Liability of Occupier to Trespassers Liability of agricultural disposition holder 11.1 The liability of a holder of an agricultural disposition issued under the Public Lands Act in respect of a person who, under section 62.1 of the Public Lands Act and the applicable regulations, enters and uses the land that is subject to the agricultural disposition shall be determined as if the person entering the land were a trespasser. Trespassers 12(1) Subject to subsection (2) and to section 13, an occupier does not owe a duty of care to a trespasser on the occupier’s premises. (2) An occupier is liable to a trespasser for damages for death of or injury to the trespasser that results from the occupier’s wilful or reckless conduct. Child trespassers 13(1) When an occupier knows or has reason to know (a) that a child trespasser is on the occupier’s premises, and (b) that the condition of, or activities on, the premises create a danger of death or serious bodily harm to that child, the occupier owes a duty to that child to take such care as in all the circumstances of the case is reasonable to see that the child will be reasonably safe from that danger. (2) In determining whether the duty of care under subsection (1) has been discharged, consideration shall be given to (a) the age of the child, (b) the ability of the child to appreciate the danger, and (c) the burden on the occupier of eliminating the danger or protecting the child from the danger as compared to the risk of the danger to the child. (3) For the purposes of subsection (1), the occupier has reason to know that a child trespasser is on the occupier’s premises if the occupier has knowledge of facts from which a reasonable person would infer that a child is present or that the presence of a child is so probable that the occupier should conduct himself or herself on the assumption that a child is present. General Liability re personal property 14(1) Subject to subsections (2) to (4), the liability of an occupier under this Act to a visitor or trespasser extends to destruction or loss of, or damage to, property brought on to the occupier’s premises by the visitor or trespasser, as the case may be, whether or not it is owned by the visitor or trespasser or by any other person. (2) An occupier is not liable under this Act in respect of a loss of or damage to property of any person resulting by reason of the act of a third party. (3) When a person in an action under this Act claims damages in respect of the destruction or loss of, or damage to, property of which the person is the owner and that was brought on to the occupier’s premises by some other person either as a visitor or trespasser on those premises, the occupier is entitled to raise any defence to the claim that the occupier would be entitled to raise if the claimant were the visitor or trespasser, as the case may be. (4) This Act does not apply to or affect any liability of an occupier of premises in respect of personal property arising by virtue of (a) a contract of carriage, (b) a bailment, or (c) the Innkeepers Act. Application of other Acts 15(1) When the occupier does not discharge the common duty of care to a visitor and the visitor suffers damage partly as a result of the fault of the occupier and partly as a result of the visitor’s own fault, the Contributory Negligence Act applies. (2) When an occupier is liable under section 12(2) or 13, and the trespasser or child trespasser, as the case may be, suffers damage partly as a result of the fault of the occupier and partly as a result of the trespasser’s or child trespasser’s own fault, the Contributory Negligence Act applies. (3) When in an action brought under this Act 2 or more occupiers of the same premises are each found to be at fault, the Tort‑feasors Act applies. Crown bound 16 The Crown in right of Alberta is bound by this Act. Class Proceedings and Mass tort claims Concepts Means for large number of plaintiffs with similar claims to efficiently pursue the action o Also means for defendants with similar defences to bring together common defences o Davids v Goliath NOT a substantive right, procedural rights only Used for all civil causes of action, not just tort Basically o Representative case is pursued o Remedy is binding on all similar cases Examples o Pine shakes, sterilization claims, Seniors Advocates, Child welfare cases, …. Policy issues o You want access for poor people o Efficient use of judicial resources – don’t want 800 trials o Access to remedy for plaintiffs o Not onerous for defendants – don’t have to prove that much proximate cause, not as crushing to defendants if they lose Parties can design own system or use CPA Class Proceedings Act: History History – there was no CPA o Mass claims always been possible o Inefficiencies identified o ALRI and ULCC recommended improvements The Class Proceedings Act passed in 2003, cif Apri1 1 2004. Process Identify potential common claims Obtain Court order to “certify” a class o Based on commonality of claim o Must be substantial similarity Notification to potential class members o Membership is “opt-out” o Anybody who is in alberta and is sent a notice, you have to opt out Judicial management of the proceedings Representative case – decision binding for all members of class May be subclasses May be interjurisdictional Some issues with class proceedings Once class is certified, often does not go to trial o Few actual trials o Once line is drawn its easier for defendant to see who they are u against and settle Interjurisdictional issues o Identification, notice and communication to parties o Class actions in more than one jurisdiction Funding for plaintiffs – expensive to pursue o Contingency fee arrangements o Third party funding Sell your chance of winning to a third party funder o Defendant funding Damages Compensation for injury caused by tort Generally o “Damage” v “Damages” o Mitigation of Damages o Tort-Feasors Act Compensatory damages for personal injury o Note, we are not covering the details of Damages for economic loss Damages for property loss o Special versus General Damages o Assessing damages for non-catastrophic injury o General damages for Catastrophic injury - the Trilogy and the Cap o Miscellaneous issues Collateral Sources of support for victim Periodic payments, annuities Damages for sexual battery Dead Victims Punitive damages o General concepts o Aggravated damages Damages – Generally Governing Principles restitutio in integrum – restore the whole o Exceptions: death, dismemberment o To the condition that existed before the injury, not to perfection Fairness to defendant Main Heads of Damage… Realty and chattels o replacement with real value at time of loss o loss of use o cost of repair Personal injury o Special o General Pecuniary Non-Pecuniary Reputation o Damages at large Pure Economic o Financial losses Mitigation of Damages Plaintiff’s duty – limit damage (Andrews v grand and toy) o Limit avoidable injury – reduce injury as much as you can Seek medical help, turn off the water to the leaking pipe o Minimize the injury if possible Damages: Once injury is established, must be reasonable about quantum o But don’t have to take less than your full loss Contributory Negligence Act Joint and several liability of defendants Court can apportion fault amongst defendants and plaintiff If its not apportioned, defendants are liable for 100% Contributory fault/negligence causes defendants’ share to be reduced Just because you were contributorily negligent, doesn’t mean you cant have an action!--> you still do! Calculate damage award first, then deduct the % of contributory fault Tort-Feasors Act More than one tortfeasor o Plaintiff can sue one for all the damages Can subsequently sue the others, but recovery cannot exceed damages assessed in first action And no costs to plaintiff o Tortfeasors can recover from each other Right to claim for loss of consortium if spouse is physically injured by tort o Wife has right to sue for husband Compensatory Damages for personal injury Heads of Damage - Personal injury Special damages Costs incurred before trial – loss of income, medical and other bills, Time between accident and trial Quantifiable Sometimes called pecuniary special damages General damages – Look forward and more of a guess Non fatal injuries Pecuniary – almost quantifiable o Loss of income o Cost of care Non-Pecuniary – never quantifiable o Pain and suffering o Loss of enjoyment and expectation of life Damages for Non-Catastrophic personal injury Special and general damages “Tariff” system – finger for 5000, arm for 20,000 Damages for catastrophic injury The “trilogy” o Andrews v Grand &Toy, Teno v Arnold, Thorton v Prince George are authority for Procedure for assessing General Damages for catastrophic injury Pecuniary and Non-Pecuniary Financial cap for Non-Pecuniary General Damages Young person with catastrophic injury = highest Pecuniary General Damages Future Care = (A x B x C%) + D o [(Annual cost of care) x (Life expectancy ) x (%discount for contingencies)] + (Cost of special equipment) Loss of Earnings = E = (F x G x H%) - J o Loss of earning capacity = [(years of earning capacity) x (expected income ) x (% deduction for contingencies)] – (cost of necessities) Adjustments - General Considerations o Capitalization – inflation and interest income o Tax allowance Cost of Future Care = (A x B x C%) + D A = Annual cost of care Issue in Andrews: home care or institution? Principles o Resitutio in integrum – back to whole o Includes caregivers, care, meds o Includes necessities - food, clothes, shelter (because you need special clothes and shelter) o Look for reasonable options, in the circumstances, taking into account Plaintiff’s preference Medically preferable Psychologically preferable Reasonable person Social cost – how much does insurer/taxpayer pay? ** Reasonable = what a reasonable person with means would pay for Not just basic subsistence Plaintiff does not have to accept less than what the harm is worth Mitigation goes to reducing the injury, not the damages B = Life Expectancy Test: What is plaintiff’s present life expectancy given current situation? o Based on evidence – question of fact C% = Contingencies Percentage deduction for contingencies Care contingencies - relate to health and matters of care, duration of care ( compare to employment contingencies) Life has ups and downs Contingencies could be positive or negative D = Cost of special equipment Use expert evidence to establish needs and cost Loss of Earnings = E = (F x G x H%) - J E = earning capacity Loss is not the loss of wages, it is loss of capacity Assess as if an asset lost Based on plaintiff’s reasonable income expectations for working life and retirement Are you an executive at a company or making money at a gas station All based on evidence F = length of working life No deduction for shortened life expectancy – Because its an asset! Why? G= Expected Income o All based on evidence H% = Contingencies Percentage deduction Contingencies relating to employment o E.g. job injury, economic downturn Percentage amount varies by circumstances: o Nature of plaintiff’s work o Not all contingencies are adverse o Some contingencies taken into account when assessing lost capacity o Precedent Should call evidence on this J = deduction for cost of necessities What plaintiff would have paid for necessities if no injury Cost of post injury necessities included in A No double dipping Other Considerations for Pecuniary General Damages Return on investments (interest) and inflation o Call expert evidence o Must consider both inflation and interest rates Tax impact o No adjustments for income tax in this case o Call experts to review Use self-extinguishing sum for cost of future care o Not about building up estate for plaintiff’s heirs o Annuity can be purchased lumpsum dies with the plaintiff Non-Pecuniary General Damages Three possible approaches o A “bot” or tariff system (one leg- 5000, one finger- 500) o Personal – try to measure plaintiff’s loss of happiness o Functional – “solace” approach - try to provide alternate means of happiness ✓ Non-Pecuniary General Damages – Functional solace Approach o Create opportunities, ease life o Make up for damage to feelings, breach of trust o Can include a component for “aggravated damages” – alleviation of particular psychological harm or insult o Impossible to quantify accurately The “Cap” Cap for Non-Pecuniary General Damages = $100,000 in 1978 Increased with inflation - 2013 – $340,000 SCC has declined to revisit the concept Social cost is a dominant policy Applies only to personal physical injury claims Eg Did not apply in Hill v Church of Scientology – defamation S.Y. v F.C.G. (BCCA) – sexual assault Young v Bella – a Hedley Byrne – type claim Issues in Damages for personal injury Girl work or boy work? Assessment of loss of income capacity o Take into account women earn less or have different job prospects? minorities? Volunteer caregivers – family and friends o value of these services can be claimed o Similarly – loss of opportunity to have spouse/AIP Cost of financial advisor recoverable Collateral Sources of support for victim o May be private or public plan to assist Eg AISH May be legislative or contractual terms saying who is first/law payor Should you Double recover? – plaintiff gets windfall Subrogate? Right answer! Set – off? - gives defendant a windfall o Subrogation There is an equitable right to subrogate based on equity Insurers are always subrogated by contract or statute Crown can recover against defendant for some costs E.g. Hospital bills – Crown’s Right of Recovery Act Periodic payments, annuities o Structured settlement – amount can be invested to produce income stream o Designed to terminate when plaintiff dies o Formerly could only be done by consent of parties o Court has jurisdiction to order - 2004 Judicature Act s 19.1 Damages for sexual battery – P.A.D. case (1989) o Severe psychological damage o Pecuniary Damages included Loss of past opportunity Loss of future opportunity Cost of therapy o Non-Pecuniary General Damages Note use of precedent Note aggravated damage component “heinousness” considered $85,000, Dead Victims o Fatal Accidents Act Special Damages until death Funeral expenses and grief counselling Fixed amount for grief to spouse, AIP and children o Punitive Damages Punitive damages o Relatively rare, usually modest o Outrageous or high handed behavior Malice, wantonness, insult, persistent, vindictive, capricious, remorseless, mean o Designed to punish When aggravated and general are insufficient o Whiten v Pilot Insurance Contract case $1,000,000 punitive damages upheld at SCC Battery Definitions • A person who intentionally causes harmful or offensive contact with another person is liable for battery. • Battery is … bringing about intentionally an offensive or harmful contact with [to] another person.” Policy: – personal security, dignity, – discourage violence Elements of Battery • Requires an act • Presumption: any touching of the body is wrongful, except 1. involuntary 2. jostling 1. Intention • Motive is irrelevant • Same reverse onus 2. Cause/”directness” • The harmful or offensive contact must be the direct consequence of the act. – No intervening act • The compensation is only for the harm that is directly resulting. – One of the only limits in tort action – It limits the harm that is compensable in a way that negligence does not – This is why actions of the case developed, because trespass was limited compensation. 3. Harmful or offensive… • Actual injury or • Offensive contact – All contact is prima facie offensive – The harm is to the integrity of the person’s body (as soon as you touch somebody, you are interfering with the integrity of the body) • Delicacy • Beneficial, offensive conduct • Plaintiff does not have to be aware – Eg Kiss (or worse ) while asleep – Awareness – it is still assault if a person does not become aware. – If it is a battery, the person does not have to be aware of the battery. Someone could go into coma, or has no awareness. … Contact • some "force" directed at the plaintiff - something more than mere everyday jostling – Careful of “force” • Does not have to be much – as long as a positive act • Person to person, or through a medium or weapon Actual damage - Is NOT an element of trespass torts, including battery - Plaintiff does not have to experience any harm, prima facie all contact is offensive/ wrongful - But what remedy if no damage? - Well first 99.9 don’t go to trial - Strategic advantage of the prima facie rule The doctrine of informed consent • AKA “duty to disclose” • There is a duty on doctors to ensure consent is “informed” – failure to inform patient fully of the risks/consequences is a matter of breach of duty/negligence (not battery or assault!!) • Doctrine not applied to battery actions Failure to inform does not vitiate consent to a trespass Fraud does! Battery - is there consent to the specific touching? • Reibl v Hughes SCC 1980; but see Malette v. Schulman 1990 Reibl hughes is the asolute law Vicarious Liability 3 elements of VL 1. Employer/employee relationship** Does not include … parent/child relationship, union/ employee relationship, independent contractors, franchises/franchisees What is the test for employment relationship? Sagaz Whose enterprise is it? Control test (control of actions)-> traditional test. What degree does the employer control what the person does Bought own equipment or not Was the business run on his own account Workers opportunity for profit Degree of financial risk Whether he hired his own helpers or not Whose locations is it performed now Note on page 564 even when you borrow servants or employees, you are liable The list is open!!! Remember the** ? Some independent contractors have been liable because policy considerations were fulfilled. 2. Acting in the course of employment The original test 1. employee acts authorized by employer OR 2. wrongful / unauthorized mode of doing act authorized by the master Limitations of this test Employees never authorize intentional torts No employer ever authorizes intentional abuse “Strong connection test” – 1999 Bazley v Curry 4. Relationship between the wrongful act and auth’d conduct – does it justify vicarious liability ? • Yes if there a significant connection between creation of risk and accruing wrong 5. A strong connection between what the employer is asking for and the wrongful act 6. Connection is determined by looking at • Opportunity • Link with employer aims • Related to intimacy, conflict if there is more intimacy, there is more liability and risk • Power balances -> between employee and the victim • Vulnerability victim • Time and place??? page 567, middle the time and place can be held relevant though. Opposite can occur though, can negate connection if you don’t have time or place Wrong must sufficiently connected to the wrongdoer’s assigned tasks that the wrong can be seen as a “materialization of the risks created by the enterprise” (KLB) How did this play out in Bazley? It was definitely connected because his job gave him the time and place to do it. It was part of his job to be intimate In Jacobi? There was no VL because it occurred in his own home, there was no connection. It was not part of his job to tuck them in or touch them, or dress them, Everything he did he did on his own. Hammer? Hammer case: it was not part of his job to touch or interact with children, so not sufficient connection between wrongdoing and his authorized job (cleaning the school) In KLB? KLB: No VL, because foster homes are supposed to have a certain amount independency. Looked at the connection test, and the degree of control. Note: what did the court say about precedent in Bazley? We are going to apply the strong connection test if there is no precedent for these situations So first figure out if there is a precedent, then if it’s a no, then well consider a connection test 3. Imposition of liability must conform to policy purpose Tests not applied mechanically, but in consideration of the underlying policies of fair compensation and deterrence (Bazley) Other examples – Charitable and non profits can be vicariously liable Including independent contractors? Small business? Liability for children in care… Recourse for children in care who are abused History - institutional abuse Not particularly heartwarming history, abuse was rampant Alternate strategies Mass settlement (residential school settlements) Ex gratia payments – movement to not go to a lawsuit at all and just pay them Parens patriae and alternatives to money maybe suing is not the best idea Avoidance Other points Must be tortious activity Have to have a definable tort to be charged with VL What if employee is immune from suit? What If there is legislation protecting them? If it is a tort, they still may be liable Limitations would apply though, for tort and vicarious liability More than one employer 2 employers can be held vicariously liable Employee liability Related rules Non delegable duty You can get someone to do the work for you, but you cannot ditch the liability What kind of criteria do they use? “The duty may be a duty to ensure care is taken. “ usually found in interpretation of the underlying statute. Lewis v. Govt of BC Hire contractors to bld roads. Rocks fell down and injured lewis, and the independence contractor was responsible for inspection, damages. Lewis sued BC, but BC said no, this as an indepeendant contractor, so case closed. BUUUT, this was a non-delegable duty, meaning some things cant be delegated to a contractor, so govt is liable Hammer and foster parent cases School boy said school board had a non delegable duty over the janitor Statutory vicarious liability Drivers and car owners Owners of cars are liable for any drivers that use that car Other - legislation
