BATTERY
Elements
ASSAULT
FALSE
MALICIOUS
IMPRISONMENT
PROSECUTION
PRIVACY
INTENTIONAL INFLICTION
OF NERVOUS SHOCK
Directness, interference,
Directness,
Directness, Total
Defendant initiated,
Statutory tort BC Privacy Act; Outrageous or Extreme
harm/offence, intent
interference,
restraint, authority,
conclusion in favour of
Common Law tort in Ontario, Conduct, intent to cause,
harm/offence, intent
intent
plaintiff, no reasonable
might be pursued as tort of
or probable cause,
nuisance,
nervous shock
malice, damage
Authorities
Facts speak to intent,
Ellis v Guthierrez;
Restrained in all
Elements:
In BC:
assault v Battery, liable for
Bettel v. Yim
mainland sawmills ltd v IWA- Downton, Purdy v
directions: Bird v.
Nelles v Ontario
consequences: Bettel v. Yim
Jones (false
Special considerations Canada, p 201#3; Milner v.
Requirements for defences:
imprisonment)
for application to
Manufacturers Life Insurance, Obadiak,
Crown, Malice is
p 03#9; Lord v McGregor p
Need physical
manifestation, but not
Ellis v. Guthierrez
Woznesensky, Bielitski v
Self Defence: Wackett v.
Can result from verbal incompetence,
104#10
Calder (force ok), Can help
commands in
negligence, not lack
Creation of new tort in ON: medical evidence:
others: Gambriell v. Caparelli;
subjective/objective
of experience: Miazga
Jones v Tsige
Rahemtulla v Vanfed Credit
not necc. kin: R v Duffy;
authority: Campbell v
v Kvello Estate
as Nuissance: Motherwell v.
Union
burden on D: Mann v
S.S. Kresge Co. (False
Motherwell
broaden def'n of nervous
Balaban; Can strike 1st blow:
Arrest)
shock for emotional harm:
Bruce v Dyer; Exceeding
Tran v Financial Debt
consent: Exceeded in
Recovery Ltd.
hockey: Agar v Canning; Not
Sustained conduct over
exceeded in mud fight:
time sufficient:
Wright v. McLean (implied
Clark v Canada
consent)
Against Trespass: fails if
disproportionate force:
Macdonald v Hees; need
warning against: Bird v
Holbrock
Defences
Imputed intent: wilkinson v
Consent: Requires autonomy & free will,
Legal Authority: Did the defendant have legal
free standing defence,
authority? [ CC citizens: s 494 peace officers: s
burden of proof is on defence side, requires
495]; Was the defendant privileged? [CC s 25];
competency,no duress,no mistake,
Did the defendant meet his/her obligations?
no fraud,might be considered along with public
policy
Case Authorities:
Self Defence: Honest and reasonable belief that a
Citizen invoking legal authority: R v Chen 2010
threat of violence is imminent,
ON; General arrest, police must meet duties:
honest = subjective,
Koechlin v Waugh and Hamilton; Search must
reasonable = objective, complete defence
incidental: R v. Caslake; apparently comitting
Provocation: Not complete defence, In BC can
offence ok: R v Byrons; need reasonable
reduce general, aggravated and punitive damages,
grounds person sought is on property: Eccles v
in ON only reduces aggravated and punitive
Bourque
Discipline: standard of reasonableness: R v.
Dupperon; no force against teens, unless very
prison guards lose legal authority for admin seg.
minimal: R v Swann
by not following statutes: R v Hill
Duress: Latter v Braddell Dissenting judgment –
admin seg. Adminstered improperly, too long:
consent shouldn’t been implied just because the
St. Jacques v. Canada
maid wasn’t overpowered by force or fear of
violence
NOTES
Trespass on the person, actionable per se.
When done by police Trespass on the case, not Statutory Tort actionable per
= false arrest
actionable per se
se,high threshold
Not actionable per se
BATTERY & CONSENT
INTENTIONAL INTERFERENCE W/LAND
DEFAMATION
NON-TORTS
Must have informed
Trespass: Direct, Intentional, Physical Interference,
Defamatory Statement, Reference to P, Publication
DISCRIMINATION,
consent. Exceptions:
with land All except intent are burden on P (burden
HARASSMENT,
emergency; implied consent;
on D to show no intent) Nuisance: Requires proof of
STALKING
therapeutic privilege
loss, protects use & enjoyment, not necc. intent., not
MEDICAL SETTINGS
Elements
necc. negligent Strict Liability: non-natural use of
land, escape, damage
Authorities
Statory Scheme governs:
Trespass: Low threshold, any invasion no matter how
Elements: Would the statement lower the
Cuthbertson v Rasouli ;16
insignificant, is tresspass: Entick v Carrington; trespass
estimation of P in right thinking person?: Sim v
y/o girl’s consent not
by continued presence of chattel, renewal of
Stretch; Reference to P found despite general
Discrimination:
vitiated not considering
limitation period: Turner v Thorne; any possession is
comment about many: AUPE v Edmonton Sun;
Bhardauria v
ethical issues: C v Wren; 13
sufficient unless someone has a better right: Penney
Reference not found, comment too general: Bou
Seneca College
y/o boy lacks independence,
v Gosse; Natural processes blowing chattel onto land
Malhab v Diffusion Metromedia
(final word)
insufficient capacity to
insufficient for trespass: Hoffman v Monsanto;
withdraw consent: R v
distinguish public/private property: Harrison v
QP: Professional Organization quasi-judicial: Hung
Fowler v Canada
Dueck; JW girl lacked
Carswell Nuisance: trespass & nuisance together:
v Gardiner; QP in courtroom steps press
(Attorney General)
capacity to refuse
Kerr v Revelstoke; principles & criteria of nuisance:
conference, but unsuccesful defence b/c of malice:
Stalking:
transfusion: AC v Manitoba,
Huron Steel; noise can be nuisance: Hollywood Silver
Hill v Scientology; lawyer insinuates police is racist,
Osborne,
Anoerexic girl lacked
Fox Farm v Emmett
successful QP: Campbell v Jones FC: honesty/good
Philip,The Law of
capacity to refuse tube
Strict Liability: Elements: Rylands v Fletcher;
faith is objective test: WICO Radio v Simpson
Torts 3d p 258-
feeding: C(L) v Pinhas;
Extraordinary/dangerous use: Gertsen v Toronto
RCMPI Recognize new defence: Grant v Torstar
262
Harassment:
hysterectomy to prevent
Corp;
preganancy ok if for overall
Hyperlinks not necc. re-pub: Crookes v Newton
well-being of patient: Re: K
Defences
and Public Trustee; not ok
Trespass: public neccessity: Surocco v Geary
Fair Comment: matter of public interest, based on
to prevent pregnancy for
Nuisance: ; statutory authority: Tock v St. John’s;
fact, comment (not fact), honesty/good faith
parent’s convenience: E v
effort to minimize nuisance can mitigate, not
Eve;
complete defence: Huron Steel
Consent,
Woman consented to care
Strict Liability: consent, common benefit, default of
Justification
by calling 911, consent not
P, act of god, statory authority
Absolute Privilege,
vitated by “loutish”
Qualified Privilege,
behaviour: Battrum v BC;
Emergency testitcle removal,
Responsible Communication on Matter of Public
consent found as legal
Interest: matter of PI, diligence in verifying
fiction: Marshall v Curry;
No Such Torts
Emergency blood
transfusion to JW, no
requirement of informed
refusal: Malette v
Shulmann; emergency not
found in tying tubes to
prevent future pregnancy:
Murray v McMurchy
Notes
Trespass = Actionable per se with low threshold
Nuisance = requires damages
Miscellaneous:
Consent & Sexual Battery: Norberg v Wynrib; Non-Marine Underwriters v Scalera;
Damages: General (non-pecuniary) & Specific (pecuniary); Nominal or Compensatory, Aggravated and Punitive. Hill v Scientology
Goals of Tort Law: Compensation, Appeasement, Punishment, Deterrence, Justice: Jones v Tsiage, Scalera, Norberg v Wynrib