Elements of Torts of
Intentional Harm
 A tort will lead the wronged party to try and
recover money as compensation for the loss or
injury suffered, not to punish the person who is
responsible
 Much of the process involves determining who is
at fault and the extent of the damage
 Looks at balance of probability
 4 distinct elements
 Intentional interference: wilful intrusion
 Harm: resulted from wilful acts of one person
 Damages: put person back into a position before
injury occurred
 Defences: can the accused can be excused by a
legal defence
Civil and Criminal Law
1. Harming People
 Damages are given for bodily injury, denial of
personal freedom and injury to reputation
Bodily Injury
 Battery: unlawful, unprivileged touching of
another person
 MacDonald v. Sebastian p1987]
 Assault: person deliberately leads another
person to believe that he/she is about to be
harmed
 Mahal v. Young [1986]
Denial of Personal Freedom
 False imprisonment: false arrest
 Detaining a shoplifter
 Invasion of Privacy: invading someone’s privacy
 Telephone harassment
Injury to Reputation
 Malicious Prosecution: wrongfully commencing
criminal proceedings against someone
 Nelles v. Ontario [1989]
 Defamation: damage to a persons reputation
 Libel: written form and slander: spoken form
2. Abusing Property
 Caused to people when others abuse property:
goods may be stolen, land may be trespassed
and can harm surrounding properties
Goods
 Conversion: taking goods or keeping it when it
should be returned
 Taking a car that belongs to someone else
 Trespass: if goods are damaged by another
person
 Damaged hood of car
Land
 Trespass: owner owns soil, airspace and land, if
someone is on property and causes damage,
they are liable
 Can’t walk into another persons property
 Nuisance: unreasonable disturbance
 Barking dog
 Ont. Ltd. V. Huron Steel Products [1990]
Remedies
 Several remedies a court can give
 Return property
 Injunction [do/stop doing something]
 Compensation [nominal, compensatory, punitive]
1. Nominal Damages
 A token amount paid to the plaintiff
 The court is saying that the plaintiff was
wronged but did not suffer any real hardship
from the wrong
 Range from: $1-$250
2. Compensatory Damages
 Reimburse a person who has been wronged for
all the financial loss suffered
 Include general and special damages
 General damages: unspecified injury
 Special damages: specific losses



George is assaulted and battered by Brian
He may be rewarded general damages for physical
injury, ongoing mental pain, loss of lifestyle
He may be rewarded special damages for broken
glasses, crutches, loss of wage
3. Punitive Damages
 Reserved for situations the courts feels that the
defendant openly wronged the plaintiff
 Are windfall for the plaintiff because the plaintiff
didn’t suffer actual harm
Defences
 Informed consent: person agreed to the
intentional harm
 Person consenting should know they are





consenting
Consent is assumed, but not excessive force
[playing hockey]
Consent cannot be forced [...or you’re fired]
Person doing illegal activities consented to the
possibility of harm [bank robbery]
Consent of goods [given permission]
Consent to use property [pay for towing]
...
 Medical consent: if doctor does something the
patient has not consented to, the patient can start
an action in battery
 Prevent it by obtaining patient’s informed consent
 2 requirements:
1. Consent must be from someone that is able and
competent
2. Made fully aware and consent to all possible
consequences
 Test used: would a reasonable person in the
plaintiff’s condition have undergone the procedure
if he/she had been properly informed
Defences to Torts to Person
 Self-defence: if person is in danger of physical
injury [i.e., battery]
 Force must be reasonable and necessary
 There must be real fear for the life of self/another
 Legal authority: during the arrest must give the
accused an opportunity to submit peacefully
 Koechlin v. Waugh [1957]
 Discipline: disciplining children
Defences to Torts on Goods
 Necessity: necessary to trespass on land for
some good
 Recapture of goods: limited right to trespass
 Retrieve something [i.e., ball]
 Someone wrongfully takes a good and leave it on
another’s property [i.e., Ann takes Bob’s car and
leaves it at Cathy’s]
 Prescription: if trespass occurs for 20+ years,
acquire legal rights
Defenses to Defamation
1. Qualified Privilege
 Used when someone is asked to make
comments/give a report about another
 e.g. an employer giving a reference; a credit
agency giving a credit rating; a teacher giving a
student a report
 Must be made in good faith and believed to be
true
 Usually successful unless the comments made are
malicious
2. Fair Comment
 Used by people whose job requires them to act
as a critic and make comments about the work
of others
 e.g. movie, sports, restaurant critics
 Must be the opinion of the person, but not meant
to be malicious
3. Truth
 This is the best defense, if it can be proven
 Although people may have things they may
prefer to remain hidden, it is not defamation if
they come to light.
4. Absolute Privilege
 Used when statements are made by members of
parliament; the provincial legislature, and all
persons participating in the courts, coroners’
inquests, judicial hearings and boards of review
 Statements given in the confines of these
meetings cannot be used against them as
defamation