2011/2012 CAN – Law 140 Torts – Professor Goold – Page 1 of 24
INTRODUCTION TO TORTS
Defining Torts
1) areas of law recognized as torts
2) private wrongs other then contracts
3) in terms of aims and objectives
Theory: Torts concerned with breach of obligations & restoration to previous state.
-
Idea of overcompensation exaggerated by media and depends on other social nets (ex
US)
Scope of liability expands or contracts depending on legal, social, econ or philosophical
circm
Theory: Importance of definition: lets know which law to go to, affect each other so
defined limits are important (ex concent that neg swallowing K).
Torts v Criminal
1) Compensation v Punishment (also restitution and
retributive princ and sense of moral wrongdoing)
2) Functional difference: Private v Public: Individual
v Community
3) Standard of proof: on the balance of probabilities
v beyond a reasonable doubt
Theory: Procedural differences: T empowers victim
but money matters, protections in crim for D
Theory: can pursue both with same facts, should we?
Crim instrumentalises victim and functions on a
created relationship between state and D.
Torts v Contract
1) Source of primary obligations: circumstances v
by parties themselves (1ary: how ought to act,
2ary how act if 1ary broken)
2) Privity: contract are voluntary so only parties
which choose to be involved are
3) Purpose of Compensation: backwards looking
v forwards looking
4) Misfeasance v nonfeasance: T focus on Mis; K
may find liab for Non
Theory: boundaries blur when think about implied
terms (in K law) and duties of care (in negligent T
law)
- In both cases wrong arises out of obligation
imposed by law regardless of relationship so
this makes thinking of difference in terms of
‘idea of prior agreement’ tricky
- ‘Death of a Contract’
Note: This is a highly condensed CAN for exam reference. I recommend you first read it in conjunction with your
notes. Authority for the proposition is indicated by [#] where # is a reference to the numbered case.
Enjoy! - Sarah McCalla
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 2 of 24
FOUNDATIONS AND OBJECTIVES OF TORT LAW
Descriptive Account
Normative Account
- What does/ Coleman’s analytical theory
- What should do
- Does torts do what it claims to do? (analytical)
- Should torts be about 1,2 or 3? (normative)
- If max Comp (comp insurance scheme, calculations
1. Distributive Justice – critique of corrective
required by fairness are hard to do) then min
Status Quo is not fair. Law should distribute wealth
deterrence
equally and be less sympathetic to claims of those
1. Compensation – T should restore P
who have. Current: distb may distribute equitably but
- Corrective Justice: indiv has duty to repair wrongful
method is illegal v may inequitable but distribute
losses that conduct causes. Return P to state b4.
legally.
Jules Coleman – 1st order duties: not to injure; 2nd
2. Retributive Justice – impose liability on the
order duties: repair
blameworthy to penalize their moral fault.
- Flaws:
- But prob in T is that D may not be the one paying
a) only some cases in certain circumstances
(unlike Crim.)
b) costly for p to start process
- Also, mostly T do not look to motive/blame
c) tort law is inefficient mechanism (PS Atiyah
3. Economic Theory – T should only be involved when it
argues comprehensive insurance better like QU)
leads to rational econ behave and efficient allocation ,
d) reward on basis of luck (lucky enough that
of resources
someone was in the wrong for your harm, torts does 4. Feminist/Classist Critiques
not deal well with accidents)
- Analytical and normative approaches
e) why have elements of torts if focus is damages
- T is good at protecting economic interests but not
2. Punishment – damages as a sanction to reflect
psychological – this is gendered and indir favours men
society’s disapproval. ?s as to whether best left to
- Ts assume prop ownership and require resources to
crim. (not punitive damages!)
bring a case to court – protects class system
3. Deterrence – promotes social goals
5. Better to have Public Negligence
- Specific Det – change behave of D
- No luck, better justice in mass actions, accidents are a
- General Det – change behave of class of poten Ds,
social problem
- Market Det – change behave of producers to
Basis for Imposing Liability
prevent harms and internalize costs to the cheapest
- As move down, gets less fair and punishments less
cost-avoider. Tort law plays a role in determining
extreme
who should bear internalized costs (ex
1. Absolute Liability – liable since engaged in act, no
manufacturers or drivers).
defenses. (ex immigration)
- Flaws:
2. Strict Liability – liable since engaged in act, some
a) D must be aware and cost must be high
defenses: act of god, lack of voluntary control. (ex
b) Not proven effective in crim context
dynamite or speeding)
c) Long time delay in court system
3. Negligence – failure to take reasonable care to
d) Assumes D is one paying damages (vicarious
prevent foreseeable harm (ex recklessness)
liability)
4. Intention – P usually proves, if direct may shift to D
e) Assumes good rational decisions are being made 5. No Liability – even if intentional or careless (ex
f) Instrumentalising people to make a point
pregnant mother not responsible for harm to child)
g) General: need to assume effective communi
- Some conflicting principles: ex duress can be defence
4. Education – change behave of society at large
but not duress of circumstance
T as ombudsman focusing attn. of society on private
wrong that would otherwise not be detected (Linden)
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 3 of 24
PRINCIPLES OF LIABILITY
- Volition and Intent required for intentional Torts
Intent
- Defn: Desire to bring about consequences of act, rather
then desire to do act itself (Subjective)
- does not have a moral element
- example: shooting can in forest and hit another person
in stead
o
o
o
o
Capacity
- D cannot be held liab if did not understand nature and
quality of act (children and mentally disabled) – this is
a crim test
- Can be held liab if did not realize that act was wrong or
unlawful
Mistake, Motive and Accident
Constructive Intent/Imputed
o Motive
- includes unintended consequences that are certain or
Defn: Reason for action – not usually an element of Ts
substantially certain to result
(IINS)
- example: place bomb in building, intent to injure boss
- May be an element of defence or in assessing punitive
expanded to include other ppls injuries
damages
Theory – troubling because hold people liab for things
- Duress not defence – idea that harms should not be
they did not literally intend (forced objective thought on
passed along
what is normally subjective). Assumes a baseline
 GILBERT V . STONE (1648) – THREATS OF HARM DO NOT ACT AS
intellectual capacity. Interpretation is required. Looks
DEFENSE TO THEFT AND TRESPASS
more like strict liability.
- Defence not allowed as there was not way for Gilbert
Opposite issue of Moral luck, where intended to commit
to act against parties who threatened Stone
but did not – should D be held Iiab?
 MISKA V SIVEC (1959) – PROVOCATION TEST – DID P’S ACTION
Issue of impossible crimes, where intended to commit and
CAUSE D TO LOSE SELF -CONTROL ?
did so, but method chosen could not kill (ex thought pills
- factor that may reduce damages, Sivec chased and
were poison but they were not)
shot Miska – Ruling: bad blood doesn’t count as
Justify with need to protect public at large from people
provocation, needs to be right before shooting
who do not think through consequences of their actions.o Mistake
o Defn: Intend Conc of acts but those concs have different
Transferred Intent
factual or legal significance
- intend to commit T against one party but unintentionally - Not recognized as defence
commit against third party instead
 HODGKINSON V MARTIN (1929) – MISTAKE OF LAW IS NOT
- also applies when intends to commit one tort but ends
DEFENCE
up committing another
- nominal damages given as D thought that they could
- example: swing to hit one person and hit another
remove P from premises using reasonable force
instead
(mistake of law)
Theory – justified since D’s conduct is culpable and P is
 RANSON V KITNER (1889) – MISTAKE OF FACT IS NOT DEFENCE
innocent. Should respond to wrongful intention and
- thought dog was wolf so shot him, responsible for
harm caused even if D does not achieve aim
cost of replacing
Volition
o Accident
- Voluntary – D exercised control over act
Defn: harm caused unintentionally and without
 SMITH V STONE (1647) – VOLITION NOT ENOUGH TO ESTABLISH
negligence,
LIABILITY
- no Intent so no tort
- Stone chased onto Smith’s land involuntarily, no intent Epstein’s Theory of Strict Tort Liability
to be there, Court found in favour of Stone.
- if impose SL, would lead to efficiency gains (enough to
 SCOTT V SHEPHERD [1774] {ENGLISH} – SQUIB SHOWS LACK OF
outweigh fairness loss?)
VOLITION FOR MIDDLE THROWERS , CAUSALITY
- Simmons believes it is too broad as would catch
accidents and mistakes
- Where SL has harsh punishments, people tend to
disagree on grounds of process
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 4 of 24
ASSAULT
BATTERY
Elements:
Elements:


HOLCOMBE V WHITAKER (1975) {ALA SC) – ELEMENTS OF
- Man threatened wife, words are not enough but
may give meaning to act, banging on door was key
for directness
1. Direct and Intentional Act
 P proves direct and D has to disprove intentional
- Reverse onus arises from direct causal link
between conduct and violation of P’s right to
personal autonomy
- Once held that D has intent and capacity, they can
beheld liable even if joke

R V IRELAND (1997) {ENGLISH CASE } – SILENCE IS DIRECT
INTENTIONAL ACT AND PSYCHIATRIC INJURY IS HARM
- heavy breathing phone calls, could not tell where
he was, not yet directly accepted in Canada
2. Caused P to apprehend immediate harmful or
offensive bodily contact
- Does not need to be afraid
 Use ‘but for’ causation
 Capable of being carried out at once
Other Stuff:
- Apprehension must be reasonable
- Threats of future harm not sufficient
- Conditional threats do not give raise:

POLICE V GREAVES (1964) {NZCA}– CONDITIONAL THREATS
ARE NOT ASSAULT
- man threatened police to leave property or else
he would knife them
BETTEL V YIM (1978) {ON} – ELEMENTS OF BATTERY
- Shop owner shook P, did not mean to hit but
ruling was that once intentional physical contact
commenced, responsibility is for all ensuing harms
ASSAULT
1. Direct
 Practical question: traps and poisoning not battery
 Onus on P to prove
2. Intentional
 Intend to bring about physical contact, not harm
 Onus on D to disprove
3. Physical Interference with the person of another
 Anything with the person (clothing…xrays?)

MALETTE V SHULMAN (1990) – PURPOSE OF BATTERY TO
PROTECT BODILY INTEGRITY NOT PHYSICAL HARM
- doctor gave blood transfusion without
permission, no physical harm or awareness at
time necessary
4. That is Harmful or offensive
 To right of bodily integrity
Other Stuff:
- Concerned with protecting indiv dignity
- actionable per se – no proof of damage required
- Need not be aware of event at time (ex if asleep,
Malette)
- Onus of proving intent never on P
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 5 of 24
SEXUAL BATTERY & THE ROLE OF CONSENT
- Not a tort, currently dealt with under Battery
Elements:

NON-MARINE UNDERWRITERS , LLOYD’S OF LONDON V
SCALERA [2000] – ABSENCE OF CONSENT IS PRESUMED IN
SEXUAL BATTERY CASES
- D bears onus of proving consent, as it is their fault
that resulted in violation of bodily security. Torts
aim to protect bodily integrity so it is wrong to have
to prove lack of consent. Violation is implication of
intent.
- McLachlin rejects formal equality of P and Ds in T;
instead she recognized power imbalance and
gendered roles as being important considerations
Sue in Tort? (as compared to crim)
Advantages
- P chooses case, facts, expert evidence and can end it
(not instrumentalized)
- Therapeutic benefits for P and promote healing
- Standard of Proof: lower in civil
Disadvantages
- Cost, delay and stress may make it worse (how much
burden on society via legal aid funds?)
- If action is defended, may be secondary victimization
(possibility of successful defence of constructive
consent)
- Civil lit is expensive and P may not receive damages
- myths and stereotype about women’s sexual behavior
–systematic stereotypes underlie institutions (AdjinTettey)
Constructive Consent:
- Objective: would it have been reasonable for D to think
that P was consenting to battery based on her conduct?
P’s demeanor and surrounding circumstances will be
New Tort?
considered.
- Seen as a victory by feminists as it also rejects that
- Under battery, victim must prove unwanted contact
subjective belief can be used as a defence
but does not need to prove intent
- Problems:
- New would mirror Crim law which has limits on
a) Does D need to give evidence of attempts to
implied consent (response to Scalera)
 EWANCHUK (1999) – CRIM CASE: MISTAKEN BELIEF IN
ascertain consent?
b) P’s perception and experience is irrelevant
CONSENT CAN ONLY OPERATE TO NEGATE THE MENS REA
provided D can prove reasonable basis for
REQUIRED FOR SEXUAL ASSAULT WHERE THE ACCUSED CAN
consent
SHOW THAT THEY BELIEVED THE COMPLAINANT
c) Could lead to situations were courts blame
COMMUNICATED CONSENT TO THE SEXUAL CONTACT IN
victims for failing to resist or inducing Ds – shift
QUESTION .
of focus onto victim rather then accused (Adjin- For:
Tettey)
- makes important crime public (Feldthusen)
d) Based on ideas about ‘normal’ and ‘reasonable’
- if belief in wrongfulness of crime is enough to
– these are discriminatory (Adjin-Tettey)
occasionally convict innocent in crim why isn’t it
e) Could find someone liable who honestly did not
for T
believe they were committing a wrong – big
- Against:
stigma here
- consistent with corrective justice model at heart
of Torts (indiv against indiv) (Feldthusen)
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 6 of 24
FALSE IMPRISONMENT
MALICIOUS PROSECUTION
Elements:
Elements:


BIRD V JONES [1845] – ELEMENTS OF FALSE IMPRISONMENT
- P stopped by police, could have gone any other
direction, must be compete imprisonment
1. Direct Intentional Imprisonment of another person
 P prove direct imprisonment. D has burden of
disproving intent or negligence
a) Actionable w/o Proof of Damage
 It is a violation of personal liberty
b) Restriction must be compete
 Only expected escapes are reasonable escapes,
unclear just how much harm is expected
Other Stuff:
- Does not need to be physical space
 Barriers, threats of force, psychological restraint
- Do not need to know it occurred in English Law,
Canadian likely to take same approach
 Remedy likely avail for kidnapped infants and
Alzheimer adults
- Can be liab if order someone to restrain (indirect FI)
 Turns on relationship between parties (authority)

ROBERTS V BUSTER ’S AUTO TOWING SERVICE LTD (1976) –
INDIRECT FALSE IMPRISONMENT
- Employee (E) directed police to arrest P. Police
had little or no discretion, so E liab for FI. If info
had been given to JP, then no FI for E since JP
exercises own discretion. E may be liab for
Malicious Prosecution
- Whether imprisonment was lawful is treated as
defence – so must be raised by D
False Arrest
- Where restraint placed in name of legal authority

CAMPBELL V SS KRESGE [1976] – FALSE ARREST,
PSYCHOLOGICAL IMPRISONMENT
- Off duty police ask suspected shoplifter to come
with him in order to avoid a scene
- if go freely then no FA
Consensual Arrest
- Consent to restraint under certain conditions

HARD V WEARDALE STEEL, COAL AND COKE CO LTD – ENTER
A PLACE WITH LIMITED EXITS AND YOU HAVE CONSENTED TO
EXIT UNDER CONDITIONS OF ENTRY
- Mine refused to let worker use cage to exit until
end of shift
1.
2.
3.
4.
MIAZGA V KVELLO ESTATE (2009) – ELEMENTS OF
MALICIOUS PROSECUTION
- Prosecutor had subjective doubts about validity
of children’s sexual assault claims against their
parents, but court ruled he was right to continue
based on the objective reasons
D initiated Crim proceedings against P
 Must be driving force (not just providing evid)
 Not appli to Tort as punishments in Crim more
serious and so this warrants MP tort
 Also liable for continuation
The crim proceedings terminated in P’s favour
 Conviction =guilt and innocence is foundation
No reasonable or probable cause for the proceedings
 Used to need subjective belief in guilt and
objective basis for belief, this caused problems
 Now objective only (Miazga – professional not
personal belief)
Malice on the part of the D
 Spite, ill will or improper purpose
 Finding lack of probable cause is not malice, could
be honest mistake or misapplication of prof
judgment (Miazga)

PROULZ V QUEBEC [2001] INFERRED MALICE
- From lack of reasonable or probable cause and
evidence prosecutor’s hiring of former police
officer who was being sued by D for defamation.

NELLES V ONTARIO (1989) – NO MORE IMMUNITY FOR
PROSECUTORS , IF DELIBERATE AND MALICIOUS THEN WILL BE
HELD ACCOUNTABLE
- Very public charge and pretrial for death to 4
babies then charges were dropped. Hard to prove
malice and that there was no reasonable or
probable cause.
5. P sustained Damages
 Different from other torts in that it is not
actionable per se (need to show loss of
reputation, liberty…)
Interests at Play:
- Freedom of individuals from groundless criminal
prosecutions that may result in harm
- Public Interest in effective and uninhibited
prosecution of wrongdoing - Imposing liab on
mistakes would inhibit helpful citizens
- Balance favours Pub interest with this tort offer relief
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 7 of 24
INTENTIONAL INFLICTION OF NERVOUS
SHOCK
Elements:

WILKINSON V DOWNTON [1897] – ELEMENTS OF
INTENTIONAL INFLICTION OF NERVOUS SHOCK
DISCRIMINATION
-
- Message that wife should go collect broken
husband from pub resulted in wife needing
medical attention
1. Outrageous or extreme conduct
 Question of fact, reference to standard of
reasonable people
 Court more likely to find if P was vulnerable and D
was aware of this


CLARK V R – CONDUCT IN IINS CAN BE A COURSE OF
CONDUCT NOT JUST ISOLATED INCIDENTS
- series of sexual harassment incidents against
female police officer by male colleagues
2. Intent (or constructive intent) to cause
 Must have intent to cause impact on psyco
 Intent can be inferred based on seriousness of
conduct (constructive intent ok)
3. Nervous Shock
 Not actionable Per Se
 Anguish, worry and emotional distress are
insufficient

RADOVSKIS V TOMM (1957) – EMOTIONAL DISTRESS IS NOT
SUFFICIENT FOR IINS
- Mother had no evidence of illness due to sexual
assault on daughter, pre-existing bad nerves

SAMMS V ECCLES (1961) – AGGRAVATED CONDUCT ALLOWS
COURT ACTION
- Series of sexual propositions

RAHEMTULLA V . VANFED CRIDIT UNION (1984)– CAN HAVE
IINS IF THERE ARE SYMPTOMS OF DEPRESSION AND BEHAVIOR
WAS OUTRAGEOUS
-Fired after false accusation of theft, suffered
from depression and could not find work
Difficulties:
- Assessing Damages in absence of physical harm:
Evidential worries
- Concern with false and numerous actions: flood gate
- Concern that socially acceptable conduct may cause
harm for sensitive individuals : Extreme pre-existing
vulnerability
Innominate Intentional Tort Idea: - all unjustified,
intentionally inflicted bodily injuries, would not fall within
usual nominate torts, so would give courts recourse
without disturbing other tort principles
Not a Tort
Covered by s15 of Charter
If covered by Statute, courts have been taking
position that it is not normally covered in Torts


-
BHADAURIA V . BOARD OF GOVERNORS OF SENECA COLLEGE
OF APPLIED ARTS AND TECHNOLOGY (1979) –
DISCRIMINATION IS COVERED UNDER STATUTE ALREADY
- Teacher applied and did not receive interviews.
- CofA (Justice Wilson) thought there should be a
tort action as commissions often do not have the
resources. Common law right to non-discrim.
- “The mere fact that the claim is novel will not of
itself operate as a bar to the remedy.”
- Already recognize respect for fundamental
human rights in statute so why not in tort?
Statutes reflect development in common law?
- SCC appealed to floodgate argument (but could
frame it!)
Freestanding tort of discrimination:
Statute could help courts balance equality with other
legal interests (ex freedom of contract)
Empowers individuals and frees up govt commissions
Rights Discussion:
If rights are fundamental, makes sense law and tort
recognizes them
If see rights as created by law, then tort not
necessary, ‘right’ becomes an argument to use at
commission
Non-derogable rights – perhaps torts only protects
these, but who decides which are which (white man
who has never experienced discrim)
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 8 of 24
STALKING
HARASSMENT
-
-
-
Not a Tort
S 264(1) Crim Code defines it: person intentionally or
recklessly harasses another in a manner that leads
them to fear for their safety
Idea is that you can sue under other remedies
Counter idea for an independent tort:
 Piecemeal approach does not address real nature of
wrong – the indiv acts may appear insignificant
 Labeling question – if not assault don’t call it such.
Law looks out of touch and people lose confidence.
 Symbolic reassertion of rights
 Compensation question – position of celebs
 Timing – if T faster then Crim could get injunction
faster then restraining order
-
Not a Tort
Distinction between Stalking and Harassment
 Action causing fear for safety is stalking, action
causing distress/annoyance/disturbance/upset is
harassment
Not really covered by traditional torts (maybe IINS)
 Courts only willing to consider when P is clear target
and suffers severe mental distress
 This leads to confusion:

CHAPMAN V 3 M CANADA – NO TORT IF CLAIM COVERED
UNDER A COLLECTIVE AGREEMENT
- Wrongful dismissal based on discrimination
Statutory Protection of Privacy
- protected by charter, prov and fed leg

HOLLINSWORTH V BCTV – STATUTE PROTECTS BCTV
- Awkward TV clips released, BCTV told consent had
been given
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 9 of 24
INTENTIONAL INTERFERENCE WITH LAND
Elements:

ENTICK V CARRINGTON (1765) – EVERY INVASION IS TRESPASS
REGARDLESS OF DAMAGE , ONUS ON D TO PROVE DEFENCE
1. Direct
 Indirect may be actionable in negligence
 Evidential requirement to simplify cause of action
and provide solutions to everyday problems
 Get rid of: Unique problems cause artificial
distinction, would simplify
 Keep: Fairer, indirect should not be punished,
action through negligence
2. Intentional or Negligent
 Burden of proof on D once P prove direct
interference
 No intent of harm necessary
 Constructive intent applies

Land:
- Surface area and everything attached to it and below to
a reasonably useable depth
Reason for Tort
- Civil remedy to help protect possessor of land from
violent intrusion or eviction and protect peaceful
enjoyment
- Power to control entry is essential in order to use land
in whatever way possessor wants
- Without power to control entry – would have to keep
fit for others to use
Three Basic Forms:
- Enter land in possession of another without permission
- Place object on P’s property (doctrine of continuing
trespass – allows successive actions)
- Possessor revokes a visitor’s permission or licence to be
on property
TURNER V THORNE (1960) ON HC - MISTAKE IS NOT DEFENCE
- delivery to unlocked garage where used to deliver
is trespass
3. Physical Intrusion
 Smog, fumes, smoke, noise or odour are not
 Actionable per se – no damage necessary
Onto land in Possession of another.
Defenses
1. Consent (Licence)
- Express or Implied
- Gratuitous licences revocable at will, Contractual
licences revocable upon misconduct
- To indiv or group or world
2. Necessity
- Emergency and T necessary to prevent harm to: Public,
Trespasser, possessor of land or a third party
- Prompted by imminent peril and necessary in the light
of the advantage to be gained and the absence of other
available options.
- D must show danger must significantly outweigh the
damage or loss caused to P
3. Legal Authority
- Statutory authority given to gov agents
Actionable by Person in legal possession
- Not: Owner of leased property or person with only a
licence to be on property (ex hotel guest)
- Exception: doctrine of trespass by relation: P can sue it
they were not in possession at time of interference,
provided that no one else was and they subsequently
take possession

HARRISSON V . CARSWELL (1976) – POSSESSORY INTEREST IN
COMMON AREAS HELD BY OWNER OF MALL
- private owner has absolute right to deny entry to
anyone and revoke licence of entry - Malls are
private
Trespass v Nuisance
1. T is actionable per se where nuisance requires
proof of loss
2. T protects possession, N protects quality of
possession
3. N concerned with effect of D’s conduct on P’s use
and enjoyment of land not with the nature of
conduct: indirect intrusions (snow blowing, trees
growing (but natural uses that do not pose
foreseeable risk usually are not actionable),
pollution) may be actionable under nuisance but
are not under trespass

KERR V REVELSTOKE BLD MATERIALS LTD – 1976 – ABSC –
DISTINCTION BETWEEN TRESPASS AND NUISANCE
- physical invasion of sawdust and ash from new
mill across street = trespass; noise affected
enjoyment of land and business = nuisance
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 10 of 24
INTENTIONAL INTERFERENCE WITH
CHATTELS
-
Defences same as Trespass to Land
A. TRESPASS TO CHATTELS
Elements: (1) Directly and intentionally interferes with
chattel in (2) possession of P.
- Usually: damage, unauthorized movement
- Aim: Protect from damage to items in physical control –
avoid wrongful taking, avoids self-help by taking it back

-
COSTELLO V CHIEF CONSTABLE OF DERBY SHIRE CONSTABULARY
[2001] – POSSESSION IS ENTITLED TO SAME LEGAL PROTECTION
WHETHER OBTAINED LAWFULLY OR NOT
-
Elements: (1) intentionally interferes with the chattel in
such as way as to (2) seriously harm the plaintiff’s rights to
it.
- Usually: severe interference so seeking damages
- Examples: taking, withholding, transferring, destruction
- Intent – not avail for negligent interference
- Key Test: Damage is such that D is responsible for full
value: forced judicial sale to D so no returning required

FOULDES V WILLOUGHBY (1841) – AUTHORITY ON TRESPASS
TO CHATTELS
- movement of chattel without intent to make
further use of it was not serious enough for
conversion so is trespass to chattels
Protects possession, so wrongful possessor may sue

C. CONVERSION
- stolen car must be returned to unlawful possessor
P – prove interference with possession; D – prove
absence of intent
Mistake is no defence (A: 384238 Ontario Ltd (1983))
Remedy – always damages – reduction in market value
or cost of repair
Actionable w/o damages?
 Yes: no touching valuable items, remedy for moving
or temp use
 No: damage should be essential: dignitary interest
in the inviolability of chattels
MACKENZIE V SCOTIA LUMBER CO (1913) IS A CONVERSION
BUT D CANNOT HAVE BOTH FULL DAMAGES FOR CONVERSION
AND PROPERTY BACK .
- rafts returned to their owner with one additional
one by mistake.

-
-
-
FOULDES V WILLOUGHBY (1841) – NOT SEVER ENOUGH
DAMAGE FOR CONVERSION
Mistake no Defence: innocent seller and purchaser
both liable
 Exception: packing, storing, carrying with no know
P must replace as soon as practicable (mitigate loss)
Court will consider:
 The duration of the interference
 The kind of interference
 The purpose of the interference (motive/mistake no
defence but will be considered in remedy)
 The amount of damage inflicted
Damages calculated at time of taking

AITKIN V GARDINER (1956) ON HC - SHARES
D. ACTION ON THE CASE TO PROTECT A
B. DETINUE
REVERSIONARY INTEREST
Elements: (1) P with right to immediate possession
requests item and (2) D refuses to return it
- Usually: unique goods or not easily replaced
- Aim: protects the plaintiff’s right to the chattel and
focuses on the defendant’s denial of the plaintiff’s
rights by refusing to return it
- Rule: P must ask and D must refuse; return: action ends
- Remedy:
 Order to return (dif from trespass and conv)
 Damages for it’s value and retention
- Assessed at time of judgment (continuing tort)
Elements: (1) chattel has been destroyed or permanently
damaged by the intentional or negligent act of D
- P does not have possession or immediate right to
possession but wants to protect goods from damage

AITKIN V GARDINER (1956) ON HC – FACT THAT NO LONGER
IN POSSESSION IS NOT A DEFENCE – AUTHORITY FOR DETINUE
- shares converted, can sometimes also claim
consequential losses
Other Points:
Replevin
- Not a tort, is a procedure for speedy recovery to the P
pending results of trial when timeliness important
Recaption
- Not a tort, limited legal right of self-help: person with
strongest possessory right may use reasonable force
Remedy of Distress Damage Feasant
- Owner of land can seize chattle if it is causing damage,
cannot sell but can demand compensation
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 11 of 24
II WITH ECONOMIC INTERESTS
-
Not role of torts to protect from market losses (econ
argu: force actors to internalize own costs) – contrary
to usual corrective justice model,
Idea is to protect fairness, line btw autonomy & deceit
A. DECEIT
Purpose: Protect P from fraud and protect D from unfair
stigma

DERRY V PEEK (1889)– AUTHORITY ON DECEIT: IF RECKLESS
AS TO TRUTH , YOU COULDN ’T HAVE BELIEVED IT WAS TRUE ;
MISTAKEN BELIEF MAY BE DEFENCE (DOES NOT HAVE TO BE
REASONABLE )
- tramway shares sold on steam belief
- Statement is false due to lack of care (not) vs.
Statement is false and made without care (deceit)
1. D made false statement
- usually written or spoken but may be for actions

2.
3.
4.
-
-
ABEL V MCDONALD [1964] – SILENCE IS NOT ACTIONABLE IN
DECEIT , BUT THERE MAY BE AN OBLIGATION TO SPEAK
- Seller of house, obligation to disclose if dangerous
or uninhabitable
D had knowledge that statement was false (or was
objectively reckless to truth or falsity of stmt)
P show D acted dishonestly or objectively reckless
Honest mistake is denial of recklessness
Statement made with intent to mislead P (or
substantially certain it would)
Merely intention to mislead, do not need cheat/injure
Onus on P to show that D intended P to act or rely
If reasonably foreseeable – constructive intent
P suffers loss from reasonable reliance
Reasonable People: recognize salespeople exaggerate,
less likely to rely on predictions of the future (no one
can tell the future), less likely to rely on opinions (they
are subjective and open to interpretation)
D show P would have acted anyways, deceit fails
Does not need to be sole reason for P’s actions, but
should be material

GRAHAM V SAVILLE [1945] – DECEIT W NONECON LOSSES
- pain of preganancy, he said he was single


PASLEY [1789] - DECEIT DEPENDS ON REASONABILITY OF
RELIANCE ; REMEDY AGAINST DECEITOR
P V B [2001] – DECEIT MAY APPLY IN FAMILY RELATIONSHIPS
B. PASSING OFF
Purpose: Protect reputation and good will of producers and
prevent consumers from being deceived (unregi trademks)

CIBA -GEIGY CANADA LTD V APOTEX [1992] – AUTHORITY FOR
PASSING OFF; PROTECT PRODUCERS AND CONSUMERS
- drugs look same as P should confuse someone
Existence of Goodwill
May be for brand name, trade descript or labeling
Power to attract customers and retain loyal cust
Exists where goods or services may be identified as Ps
Deception of the public due to misrepresentation
May be intentional or not, leads public to believe that
goods are those of the P
- Does not apply when only people misled is a ‘moron in a
hurry’ (Morning Star Coop v Express Newspaper [1979])
3. Actual or Potential Damage to the P
- Examples of misreps: goods of D are goods of P; goods
of P are goods of D; origins of goods; quality of goods;
business relationship with P
1.
2.
-
C. INTIMIDATION
-
Just identify – focus on contract
Only need show threat was made, not carried through


CENTRAL CAN POTASH V GOV SK (1979)- TWO PARTY
INTIMIDATION – A THREATENS B (WITH TORT YES , WITH
CONTRACT NO , HAS REMEDY ALREADY IN CONTRACT )
ROOKES V BARNARD [1964] – T HREE PARTY INTIMIDATION – D
THREATENS A WITH BREACH OF CONTRACT UNLESS A CAUSES
DAMAGES TO P ( WHO HAS NO CONTRACTUAL REMEDIES )
1. Defendant threatened to commit an unlawful act, such
as a crime, a tort or, in some circ, a breach of contract
2. The defendant’s threat was effective in that it induced
someone to act in a particular way; and
3. The plaintiff consequently suffered a loss.
D. CONSPIRACY
Purpose: act indep and not push out better for business

ALLEN V FLOOD (1897)– NOT TORTIOUS TO DESTROY A
BUSINESS

CANADA CEMENT LAFARGE V BC LIGHTWEIGET (1983) –
AUTHORITY FOR TWO TYPES OF CONSPIRACY
1. Conspiracy to Injure (Dom Purpose to hurt P)
2. Conspiracy to Commit an unlawful act
 Scheme directed at plaintiff
 Should have known scheme would harm P
- Not limited to business dealings
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 12 of 24
ONUS ON D: DEFENCES
-
Not mutually exclusive
A. CONSENT

NON-MARINE UNDERWRITERS V SCALERA [2000] – CONSENT
IS FREESTANDING DEFENCE
-For D to prove not for P to disprove as element
Needs to be specific to the tort
Freely and voluntarily given
Complete defence (justification not excuse)
Can be explicit or implicit (from behavior, participation
or demeanor, or where P fails to object or withdraw)
Implied Consent:
- Look to all facts
-

WRIGHT V. MCLEAN (1956) – CONSENT TO TAKE ORDINARY
RISKS OF SPORT IN WHICH ENGAGED ( NO MALICE OR ILLWILL )
Onus on P: Factors Vitiating Consent:
a) Fraud
1. D must be aware or responsible for P’s
misapprehension
2. Fraud must be directly related to the nature of the act
(not a collateral matter)

NO CONSENT
- Thought sex was singing lesson

ELLIOTT V AMPHITHEATRE [1934] – CONSENT WHEN P AWARE
OF THE RISKS
- Amateur hockey player hit by puck
Exceeding Consent:
- Consent exists but action goes beyond

THERE IS CONCEALMENT OF SIGNIFICANT RISK OF SERIOUS
BODILY INJURY
- Consent to sex vitiated by undisclosed HIV status
in crim context
b) Mistake
1. D must be responsible for creating the belief

ORDINARY RISK OF INJURY BUT THERE SHOULD BE A LIMIT ON
PLAYER ’S IMMUNITY .
MISTAKEN BELIEF
HEAT OF THE GAME ACTIONS CANNOT BE
- Exceeded Consent when illegal check in retaliation
Competency to Consent:
- Capable of understanding nature and consequence
-
C (JS) V WREN (1986) – NECESSARY CAPACITY AND MATURITY
FOR MINORS .
- nurse gave injection to child under belief that
parents consented
c) Duress

d) Public Policy
- parents attempted an injunction abortion
Factors: age, physical or mental illness, intoxication
Consent to criminal act:



HALL V HEBERT [1993] – PURPOSE OF PRINCIPLE THAT PERSON


MARSHALL V CURRY [1933] - IMPLICIT CONSENT TO
NECESSARILY INCIDENTAL TREATMENTS ( TESTICLE )
MALETTE V SHULMAN (1987) –REFUSAL DOES NOT NEED TO BE
INFORMED , IT MAY BE ABSOLUTE
LANE V HOLLOWAY [1968] – CANNOT CONSENT TO BEING
KILLED OR SERIOUSLY INJURED
- Clear that elderly person no match for fight
R V JOBIDON [1991] – NO D OF CONSENT IF SERIOUS PHYSICAL
HARM WAS INTENDED AND CAUSED
- even in fair fight
PROTECT THE INTEGRITY OF THE LEGAL SYSTEM
- Rarely applies for P seeking comp for injuries, but
will apply if attempting to profit financially
Consent to medical treatment:
- Full and frank disclosure, more then just a form
- May be withdrawn at any time
LATTER V BRADDELL (1880) – CONSENT AS A RESULT OF
DURESS IS NOT VALID
CANNOT RECOVER FOR CONC OF ILLEGAL OR IMMORAL ACT IS TO
-
R V CUERRIER (1998) – FRAUD VITIATES CONSENT WHERE
TOEWS V WEISNER (2001) – D’S MISTAKEN BELIEF THAT P
CONSENTED , IS DIFFERENT FROM P’S CONSENT DUE TO
AGAR V . CANNING (1965) – SPORT PLAYERS CONSENTING TO
JUDGED ON POLITE SOCIAL INTERCOURSE

HEGARTY V SHINE (1878) IRELAND – FRAUD TO HARMFUL
CONC OF D’S ACT WOULD NOT VITIATE CONSENT *REJECTED *
- consent to sex not negated by transmission of STD

-mud fight in which a stone was thrown at the P

R V WILLIAMS [1923] – DECEIVED AS TO NATURE OF ACT, SO

NELITZ V DYCK (2001) – TWO PART TEST TO DETERMINE
WHERE A POWER IMBALANCE VITIATES CONSENT
1) proof of inequality (usually power dependency)
2) proof of exploitation (in light of community
standards)
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 13 of 24
B. SELF-DEFENCE
1.
2.
-
Complete defence (justification not excuse)
Social contract theory (give up rights, but if protection
fails, right re-emerges)
Honestly and Reasonably believed that Assault was
Imminent
Honest: subjective, Reasonable: objective, Imminent:
modified objective test
Amount of force was reasonable in the circumstances
Look to nature of force and all surrounding
circumstances, should be proportionate (minimal)

WACKETT V CALDER (1965) – D DOES NOT NEED TO MEASURE
EXACT FORCE OF BLOW (GIVEN IMMEDIACY , NOT MUCH TIME
FOR REFLECTION ); DISS: REQUIREMENT TO WALK AWAY
- Bar fight, second punch enough to end the fight
- Walk away: Law holds ppl to ideal, duty to leave
problematic, role to stop bad not encourage good,
self assertion: why walk away from infringement on
right to bodily integrity

BROWN V WILSON (1975) – IF FORCE REASONABLE , DO NOT
NEED TO CONSIDER CONSEQUENCES ( DEBATE ON THIS LAST )
- Bear hug is reasonable even if led to death (trip)

Defence of Reception of Chattels
- Not applicable if already dispossessed, too risky and
puts D in position of aggressor
Elements 1) be in possession 2) attempting to immediately
regain possession or in hot pursuit 3) if innocently
picked up, must be requested before force used
Defence of Provocation
1. Conduct that causes a reasonable person to lose
control and act in way they did
- exam, flag it as an issue, run through the issue and
state that it is unlikely to be relevant in torts as courts
very loath to allow provocation in
Defence of Discipline
- Common law rule and section 43 of cc (according to
Solomon, CDN courts tend to use crim for civ)
- “Every schoolteacher, parent or person standing in the
place of a parent is justified in using force by way of
correction toward a pupil or child, as the case may be,
who is under his care, if the force does not exceed
what is reasonable under the circumstances.”
1. Force used by way of correction (educational)
2. Force used was reasonable in the circumstances

BECKFORD V R [1987] – TEST IS FROM PERSPECTIVE OF D AND
THEN WHETHER A REASONABLE PERSON WOULD HAVE USED THE
- Was educational but not reasonable for this child
SAME LEVEL OF FORCE


GAMBRIELL V CAPARELLI (1974) – HONEST MISTAKE OF FACT
DOES NOT PRECLUDE DEFENCE OF SELF -DEFENSE
- Mother hits son’s attacker with reasonable force
Defence of Real Property

MACDONALD V HEES (1974) – E LEMENTS OF DEF OF PROPERTY
- Enter hotel room believing they were invited,
excessive force used


R V LAVALLEE [1990] – EVIDENCE ON BATTERED WIFE
SYNDROME IS ADMISSIBLE & APPROPRIATE TO CONSIDER A
WOMAN ’S EXPERIENCE AND PERSPECTIVE WHEN DECIDING ON A
REASONABLE PERSON ’S SELF -DEFENSE .
Defence of Third Party
1. Same elements
BIRD V HOLBROOK (1828) – INTENT TO CAPTURE NOT
ACCEPTABLE
- a gun was rigged to protect tullips, fence hen
1. Request to leave and opportunity given to do so
2. Reasonable force used to remove
R V DUPPERON (1984) – AUTHORITY FOR DEFENCE OF
DISCIPLINE
R V BAPTISTE (1980) – INTERPRET S 43 IN LIGHT OF
PREVAILING SOCIAL STANDARDS AND CUSTOMS RATHER THEN
THOSE OF D
- Drop out of use for battery? Still use for false I.

-
CANADIAN FOUNDATION FOR CHILDREN, YOUTH AND THE LAW
[2004] – SECTION 43 IS CONSTITUTIONAL WITHIN LIMITS
sober, reasoned, and address actual behaviour
child must be able to understand and benefit (not <2yr)
the force must be transitory and trifling, must not harm
or degrade the child, and must not be based on the
gravity of the wrongdoing. (so no teens as that may
encourage aggressive or antisocial behave)
- not be applied using objects or to the head.
- not reasonable in schools, although teachers may use
force to remove children from classrooms or to ensure
that they follow instructions.
Extra Judicial Damages (used as defences):
1. Recapture of Chattles – can use reasonable force to
regain when someone takes if from them tortiousely
2. Reentry onto land – needs to be a reasonable force to
reenter land and regain possessory interest in land reasonable infringement of property rights
3. Abatement of uses – reasonable force to stop or
prevent a nuisance ex remove a dead tree branch
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 14 of 24
C. ASSERTION OF LEGAL AUTHORITY
REMEDIES
- Defence in a range of statutes
Criminal Code and Charter
- s495(1)(b) CC - authorizes peace officers to arrest
(without a warrant) anyone whom they have
reasonable grounds to believe has committed or is
about to commit and indictable offence.
- S25(1) CC (if he acts on reasonable grounds, justified in
doing what he is required or authorized to do and in
using as much force as is necessary for that purpose)
- S25(3) (force intended or likely to cause death or
grievous bodily harm limited to self preservation of
preservation of indiv in protection)
- S25(4) (as much force as necessary in preventing flight
– including deadly per solomon)
- s1 (limits in free and democratic society)
- s8 (unreasonable search and seizure)
- s9 (arbitrarily detained or imprisoned)
- s24(1) (any remedy court sees fit)
- s24(2) (exclude evidence if bring admin of justice into
disrepute)
Rights in Arrest Process
no great detail – just indicate that you are aware of
what remedies are available – will not be central
issue in fact patterns
1. Damages
- Aims: Retribution, Deterrence, Vindication/Educative/
Upholding Law & Fostering Respect
- Judges should give reasons according to aims
a) General/non pecuniary – damages for non monitary
harms: physical and emot suffering, loss of rep…
b) Special/pecuniary – damages for monitary losses
1) Nominal – The Mediana [1900]
2) Compensatory - Dodd Properties Ltd. v
Canterbury City Council [1980]
3) Punitive – not about harm

–

PUNITIVE DAMAGES
KOECHLIN V WAUGH AND HAMILTON (1957) – RIGHTS IN
ARREST PROCESS
-
(1) No general right to ask individuals to identify
themselves. Must rely on a recognized power, such as
that inferred from S450 (need to have reasonable and
probable grounds to suspect).
- (2) Police need to tell the individual why they are being
arrested – i.e. they are entitled to know on what charge
or on suspicion of what crime they are being arrested.
- (3) Failure to inform the individual of the reasons for
arrest can give rise to a claim for false imprisonment.
- (4) If the individual is not informed, they are entitled to
resist the unlawful arrest.
CL power to Search following Lawful Arrest

2.
3.
-
R V CASLAKE [1998] - SEARCH ONLY JUSTIFIABLE IF PURPOSE
OF THE SEARCH IS RELATED TO THE PURPOSE OF THE ARREST
(THIS APPLIES TO ITEM LIMITS AND TEMPORAL LIMITS)
CL power to Enter to Search for Wanted Person

ECCLES V BOURQUE [1975] - BROAD PRINC OF SANCTITY OF
HOME SUBJECT TO EXEMPTION UPON PROPER DEMAND
-
Elements: 1) need reasonable and probable grounds for
the belief that the person sought is within the premises
(hearsay is ok) and 2) proper announcement is made
prior to entry (otherwise could give rise to violence)
WHITEN V PILOT INSURANCE CO [2002] – PRINCIPLES IN
4.
-
- Only serious misconduct; appellate courts may
reduce; not limited to specific categories of cases;
fact of crim puni just one factor to be considered…
4) Disgorgement (restitutionary)
c) Aggravated Damages - Recognition that 1)
malicious, highhanded or outrageous action of D
may have 2) resulted in additional humiliation, loss
of dignity and embarrassment (Rookes v Banard
[1964] accepted in Vorvis v Insurance [1989])
Injunction
a) Prohibitive – stop (ex nuisance: damages/fines are
license after the fact, so injunction more useful)
b) Mandatory – do something (ex specific
performance in contracts)
equitable remedies – need clean hands
Declaration
give a preliminary ruling on a point, clarify a legal
position without litigating
- Ex: insurance policy – declaration whether the
policy covers x or not
- Ex: declaration of paternity – want to do a paternity
test and have the court declare results
Order of Specific Restitution/Disgorgement
court tries to prevent someone from profiting from a
wrong, asking for delivery up of profits

B.(P.) V. B.(W.) (1992) - NON- P COMP DAM
(VICTIMIZATION , SHAME , LOSS OF SELF -ESTEEM ); AGGRAVATED
DAM (GROSS BREACH OF TRUST); PUNITIVE DAM (RAPE WHEN
SHE WAS 20)
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 15 of 24
DEFAMATION
-
Actionable per se (strict Liability)
Function: Protect Loss of reputation (often a
commercial interest in reputation)
- Balance with Freedom of expression (easy to prove but
lots of defences avalib)
- Damages based on loss of reputation (need one)
- Old: Libel written and actionable per se & Slander
spoken and needs damages
Elements:

SIN V STRECH [1936] – ELEMENTS OF DEFAMATION
- Fact that a ‘small debt is owing to servant’ is not
1. Material is Defamatory? (Question of Law)
- in the mind of a ‘right thinking person’ (list on p936)
a. Plain meaning – includes normal meaning and those
things that an ordinary person would infer (b&c)
b. Ref to extraneous cirs (legal innuendo) – special
knowledge of P or circ required (he is married)
c. False innuendo – ordinary person without special
knowledge could infer


SLIM V DAILY TELEGRAPH [1968] CONTEXT IMPORTANT :
COURTS VIEW PUB AS A WHOLE INCL HEADLINES , PHOTOS .
VOGEL V CBC [1982] – FACIAL EXPRESSSIONS , GESTURES AND
TONE OF VOICE PART OF CONTEXT


COLOUR YOUR WORLD CORP (1998) – RIGHT THINKING IS
PROB ORDINARY IN CANADA
DENNIS V SOUTHAM (1954) – NOT INTENDED AND GOOD
MOTIVE IRRELEVANT
2. Reference to the P
- burden on P
- not usually for large groups, ord person would not belie

KNUPPFER V LONDON EXPRESS [1944] – REFERENCE MAY BE
SASTIFIED IN TWO CONDITIONS


Statement capable of ref to P (Q of law)
Statement would lead reasonable person to thing it ref
to P (Q of fact)
3. Publication
- must be communicated to 3rd party who understands



-
B. DEFENCES
- D has burden of proof
1. Justification
- Whole of statement is substantially true
- Motive irrelevant (truth should not be actionable)


MEIER V KLOTZ (1928) – SUBSTANTIALLY TRUE
WILLIAMS V REASON (1983) – JUDGE RULES WHAT CAPABLE
OF MEANING AND EVIDENCE TO DISPROVE THIS ALLOWED
- Took boot money before allegation of hypocrisy
2. Absolute Privilege
- Statement falls into protected category: value candid s
- a) by executive officers relating to affairs of the state

-
DOWSON V THE QUEEN (1981) – EXECUTIVE AB PRIV AUTHO:
I ) MADE BY ONE OFFICER TO ANOTHER II ) RELATE TO STATE
MATTERS III ) MADE IN COURSE OF OFFICIAL DUTY
b) made during parliamentary proceedings
c) in course of judicial or quasi-judicial proceedings


STARK V AUERBACH [1979] – JUDICIAL AB PRIV AUTHO
HUNG V GARDINER (2003) – PROTECTION TO PERSON
PROVIDING INFO TO QUASI JUDICIAL BODY ( PWR TO DETERMINE
LEGAL RIGHTS AND AFFECT STATUS OF MEMBERS)
3. Qualified Privilege
- Moral, social or legal duty
- No def if malicious
a. Public Duty
 Protection of own interests (Adam v Ward [1917])
 Protection of another’s interests (Watson v Longsdon
[1930] – P’s infidelity told to wife)
 Furtherance of common interest if there is reciprocal
interest (McLoughlin v Kutasy [1979] doc report)
- Not usually media – need reciprocal duties:
publish and receive
 Protection of public interest (Campbell v Jones (2002)
lawyer can report on racial motivation for search)
b. Fair and Accurate Reporting – reports of
proceedings that are open to the public

LAMBERT V THOMSON [1937] - EVERY REPUB IS ACTIONABLE
WENNHAK V MORGAN (1888) NO PUB WHERE ABOUT SPOUSE
MCNICHOL V GRANDY [1931] NO PUB WHERE OVERHEARD
HILL V CHURCH OF SCIENTOLOGY [1995] – NEED ACTIVE
MALICE IN DEF; Q PRIV ATTACHES TO OCCASION OF
COMMUNICATION NOT COMMU ITSELF & RIGHT TO
PROCEEDINGS IS PRE -TRIAL INFORMATION TOO
ENTIRELY BY ACCIDENT
- lawyer made statements at press conference
Originator not liable unless: i) gave express or implied
authority ii) made the remark to someone who they
knew had a moral or legal responsibility to publish it iii)
republication is the natural and probable consequences
of their actions
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 16 of 24
4. Fair Comment
- Reflects importance of free speech

EARLY CASE: CHERNESKEY V ARMADALE [1979] – EDITORS
NEED TO AGREE WITH LETTER AND WRITER MUST SUBMIT IN
GOOD FAITH .

DISS: CHILLING EFFECT
WIC RADIO V SIMPSON [2008] – FAIR COMMENT IS AN
OBJECTIVE HONEST BELIEF TEST: ELEMENTS AND NOTES
- Stated factual basis of comment helped (tape)
a. Material was a comment (not an accusation of
allegation of fact)
b. Which any person could honestly express
c. Based on facts that are true
d. Pertaining to a matter of public interest
 Note:
i. Court not required to assess proportionality of
statement
ii. Fairness not an element (in eyes of beholder)
iii. Honesty test is a low threshold (just needs a base in
the facts)
iv. Evidence of malice may defeat the defence (hard to
find malice in media)
5. Responsible communication on matters of public
interest
- To plug Gap, if making a statement of fact (not opinion)
that could not be proven true on BoP, and not under
duty

GRANT V TORSTAR [2009] – ELEMENTS OF RESP COMMU ON
MATTERS OF PUB INTEREST, JUSTIFIED ON BASIS OF
DEMOCRATIC DISCOURSE AND TRUTH -FINDING
a. Publication must be based on public interest (decided
by court)
b. D must show publication was responsible (or was
diligent in trying to verify the allegation)
- Will look at seriousness, public importance, urgency of
matter, status and reliability of source, P’s side sought
and reported accurately, inclusion of defm justifiable,
where pub interest lay in fact that it was made (rather
then truth)
6. Consent
- Narrow to protect from nonconsensual republishing
- When stmts put into circulation by P or P’s agent, or
where reasonable to conclude that P consents, or
where P asks D a question where def remark is invited
or anticipated

JONES V BROOKS (1974) – COMMUNICATION OF DEF TO AN
AGENT IN RESPONSE TO AN INQUIRY IS CONSENT
- Secret agents asked for the Def to be
communicated to them
C. REMEDIES
1. Injunction
- Given pretrial rarely if: a) clearly defamatory and b) D
does not plead justification or it is impossible for def of
justification to succeed

CANADA METAL V CBC (1975) – INJUNCTION CRITERIA FOR
DEFAMATION
2. Damages

HILL V CHURCH OF SCIENTOLOGY [1995] – DAMAGES FOR
DEFAMATION MAY BE G ENERAL , AGGRAVATED AND PUNITIVE –
NO CAP , UP TO THE JURY
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 17 of 24
HISTORY OF NEGLIGENCE
ELEMENTS OF ACTION IN NEGLIGENCE
Writs:
1. Trespass vi et armis - strictly liable for direct, forceful
interferences with another indiv’s person or property
2. Trespass on the case - the award of a remedy where the
interference was not direct or forceful
 Onus on p to prove that the loss was a direct result of
the intentional or careless conduct of the d
 Harmonization: later also needed to show failure to
meet standard and that harm was a direct result
 Categories: user of public roads, doctor, keeper of
animal or other inherently dangerous thing
 Limitation: only categories previously accepted
1. The Duty of Care
- Did the defendant owe a duty of care to the plaintiff?
- Existence, nature and scope of obligation determined
by court

DONOGHUE V STEPHENSON – SOURCE OF MODERN NEGLIGENCE
LAW ; LIABILITY BASED ON THE FORESEEABLE PLAINTIFF ;
REASONABLE RELIANCE AND INSPECTION
-

Lord Aitkin – must take reasonable care to avoid
acts or omissions which you can reasonably foresee
would be likely to injure your neighbour: judicial
law making based on Christian principles or
recognition of underlying princ in other cases?
Buckmaster D – floodgates
Tomlin D – remoteness: scope of liab and where
there is a direct causative link
Mod Neg from (Winfield):
a. Nuisance
How limit exposure:
- Failure to meet pre-existing duty
- Some other limiting factor (interest in land)
- Aitkin is revolutionary since based on
foreseeable claimant not physical
neighbourhood
b. Control of dangerous things (Ryland v Flecther)
c. Duties voluntarily assumed
d. Duties on bailees and those in common calling

DUNSMORE V DESHIELD (1977) – CONTRIBUTORY NEG
DEFENCE . DISTRIBUTOR ACCEPTS NEG LIAB WHEN FAILS TO TEST
BUT COULD HAVE
-
Broken glasses were not impact resistant version
2. The Standard of Care and Breach
- What was the standard of care owed by the defendant
to the plaintiff, and did the conduct in question fall
short of that standard?
- Usually that of a reasonable person, except some
professionals
3. Causation
- Was the loss suffered by the plaintiff caused by the
defendant’s failure to meet the required standard of
care? Was the breach the cause of the loss?
4. Remoteness of Damage
- Was the loss suffered sufficiently proximate? Was the
loss reasonably foreseeable, or was it instead too
remote?
- Usually limited to foreseeable consequences of actions
(unlike I torts which is all damages)
5. Actual Loss; and
- Was the loss in question recognised by the courts as
recoverable?
- Death and grief are not recognizable in common law
but are under legislation
6. Defences
- Is there a defence available to the defendant - such as
contributory negligence or a voluntary assumption of
risk on the part of the plaintiff?
- Other considerations, general defences
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 18 of 24

DUTY OF CARE
- Question of Law
Functions
1. Establish liability: overall framework for range of sits
where liab could arise
2. Limit on liability: boundaries of liab for concs of careless
behave
3. Allocates risks in society

NOVA MINK V TRANS CANADA AIRLINES [1951] – CONC OF LAW
IS REALLY A CONC OF POLICY : NEG DECIDES RISK ALLOCATION .
LIAB ONLY IMPOSED IF IT CAN DETER HARMFUL BEHAV NOT JUST
FOR COMPENSATE PEOPLE DESERVING
- Damage to minks unforeseeable
Reasonably Foreseeable P Test: (Donoghue’s)
1. Reasonably foreseeable
2. Proximity: Would be closely and directly affected
- 2 stage good per G: not restricted to those physically
close & proximity important within range of things that
affect reasonably foreseeable

-
KAMLOOPS V NIELSEN [1984] – CANADA ACCEPTS 2 STAGE
ANNS TEST
-
City did neg house inspect

COOPER V HOBART (2001) – SCC ACCEPTS 2 STAGE ANNS
TEST ; NOT REQUIRED IF EXISTING CATEGORY
-
Combo of foreseeability and proximity in stage 1
have practical effect of shifting onus to P? SCC
favour incremental approach?
Approach in Canada (Anns as accepted in Cooper v Hobart)
1. Harm reasonably foreseeable and sufficient degree or
proximity to justify imposition of duty of care? (P)
- RF: Objective since not concerned with blame

MOULE V NB POWER (1960) – COINCIDENCE OF EVENTS VERY
UNLIKELY MEANS LESS FORESEEABLE . FORESEEABILITY
RELEVANT TO DUTY , STANDARD , AND REMOTNESS .
-
Chain involving high climbing unforeseeable

AMOS V NB POWER (1676) - FORESEEABLE RISK OF INJURY
DUE TO INACTION
-
Lack of preventative actions by d are key

PALSGRAF V LONG ISLAND RY CO (1928) – NEG IS BREACH OF
ANNS V MERTON LONDON BOROUGH COUNCIL [1978] – DUTY
DUTY TO A PARTICULARE CLASS OF PERSONS
OF CARE FACTORS
-
P unforeseeable to guards when they pushed
Council could owe duty for cracked walls and floors
Critique: starts with assumption of duty of care
then looks to negate it
Counter: Cdn judges happy to balance policy; did
not actually lead to flood of cases

NESPOLON V ALFORD (1998) – UNFORESEEABLE THAT
Anns Approach (is not really a test):
1. There is a sufficient relationship of proximity based
upon foreseeability; and
2. There are no principled reasons why the court should
not recognise a duty of care: a) scope of duty b) class of
ps c) damages to which a breach may give raise

CAPARO INDUSTRIES V DICKMAN [1990] – BRITISH
APPROACH: ADDS THIRD LIMITING FACTOR THAT IT MUST BE
‘FAIR, JUST AND REASONABLE ’ FOR COURT TO IMPOSE A DUTY
-
False statement, loss after buying more shares
Presumption shifts against finding of duty
Return to conservative and incrementalist
approach
DROPPING INTOXICATED TEEN OFF WOULD EVENTUALLY CAUSE
NERVOUS SHOCK TO SOMEONE IN P’S POSITION

-
HALEY V LONDON ELECTRICITY (1964) – PROBABILITY ALONE IS
NOT DETERMINANT OF FORESEEABILITY .
- Owe duty to blind man
Proximity

ODHAVJI (2003) – PROX: COMMONSENSE NOTION OF LINKING
BTW THE PARTIES
-
Common sense connection between low quality of
invest into police shooting and family’s harm
2. Policy: situation on in which a new duty of care should
be recognized?
a. Law already provide a remedy? (Martel)
b. Spectre of unlimited liab to unlimited class?
(Osterlind)
c. Other reasons of broad policy? – operational not
political.

JUST V BC [1989] – GOV CAN MAKE POLICY DECISION NOT TO
IMPLEMENT , BUT IF DO IMPLEMENT MUST NOT BE NEG
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 19 of 24
Affirmative Action
3. Duty owed to Rescuers
 HORSLEY V MACLAREN (1969) – DUTY WHEN FAULT CREATES
- Hesitation to impose liability on non-feasance
NEW DANGER THAT INDUCES RESCUER TO ACT
a. Offends against personal autonomy/individualism
b. Ideological commitment to capitalist notions of
4. Duties owed to unborn children
choice
1) Pre-conception wrongs – injury to parent causes harm
c. + obligs to act more intrusive then - obligs not to
to child before conception. Child must then be born.
d. Just a linguist diff bet non and mis – failure to apply
 PAXTON V RAMJI (2008) – RULE: NO DUTY OF CARE TO CHILD
breaks just as harmful as failure to save from
WHICH HAS NOT YET BEEN CONCEIVED 1) INSUFF PROXIMITY
drown. Resolve misf=worsening P’s position;
BTW PHYS AND POTENTIAL CHILD 2) WOMAN HAS COMPLETE
non=failing to improve.
AUTONOMY , CANNOT SUE HERSELF . A) DUTY CAN NEVER BE
1. Duty to Rescue
OWED FROM PHY TO CHILD OF PATIENT , CONFLICT OF INTEREST

OSTERLIND V HILL (1928) – NO DUTY TO RESCUE IN CL
-
Let man drown per autonomy argument

STEVENSON V CLEARVIEW (2000) – NO DUTY ON OFF -DUTY
AMBULANCE . POLICY : ONEROUS , WOULD AVOID CAREER .
-
Arguments in favour
a. Reflects common sense understanding of morality
b. Removes inconsistency (why special but not gen?)
c. Utilitarian argument (Bentham) – benefit out
weighs cost = net gain for society
Exceptions
- Duty Established by statute & once commenced

MATTHEWS V MACLAREN (1969) – DUTY TO RESCUE FROM
STATUTE AND WHERE SPECIAL RELATIONSHIPS EXIST 1) ONCE
COMMENCED RESCUE DUTY EXISTS 2) DRUNKENNESS OF
PASSENGERS IRRELEVANT 3) ONUS ON P TO SHOW D ’S NEG WAS
EFFECTIVE CAUSE OF HARM
B ) WOMEN DO NOT OWE A DUTY TO THEIR FUTURE CHILDREN

2) Wrongful birth and wrongful life – doc fails to warn of
high likelihood of child with disabilities and so she
cannot make informed decision
- Rule – dealt with in duty of doc to inform of risks
3) Wrongful pregnancy – careless abortion or sterilization
- Rule – general princ of med liab
- 1) what damages 2) cost of child until when? 3)
more for disabled child?


4) Pre-natal injuries


ZELENKO V GIMBEL BROS (1936) – ONCE UNDERTAKE A TASK
SUCH AS FIRST AID , CANNOT THEN OMIT TO DO WHAT AN
ORDINARY PERSON WOULD ( SUCH AS SUMMON AID )


2. Voluntary assumption of duty/duty to control actions
of others
-
OCCURRED DURING PREG

HOLLIS V DOW CORNING CORP (1995) – WARNINGS MUST BE
COULD SUFFER INJURY
COMMUNICATED AS TO RISKS OF NORMAL USE SINCE MANU HAS
CHILDS V DESORMEAUX (2006) - DUTY OF CARE IN SOCIAL
HOSTS NEGATED BY POLICY . PROXIMITY : 1) COM GREATER
ABILITY TO MONITOR 2) SOC NOT REGULATED 3) SOC NO PROFIT
MORE KNOW ( MORE RISK /MORE DUTY ).
FROM SALE

BOURHILL V YOUNG (1943) –NO SPECIAL DUTY OF CARE TO
PREGNANT WOMEN ( NOT FORSEEABLE P )
DUVAL V SEGUIN [1972] – PREG WOMEN ARE FORESEEABLE
MONTREAL TRAMWAYS V LEVEILLE [1933] - BORN ALIVE
RULE : ONCE BORN CAN LOOK BACK TO DAMAGES WHICH
 DOBSON V DOBSON (1990) – MOTHER OWES NO DUTY
JORDAN HOUSE V MEWNOW (1973) – DO NOT OWE A DUTY OF
CARE TO DRUNK PEOPLE MAY FIND DUTY WHERE A ) THERE IS A
5. Health Professional’s Duty to Warn
PREXISTING RELATIONSHIP ( INVITEE /INVITOR ) OR B)
 HAUGHIAN V PAINE (1987) – DUTY TO INFORM OF MATERIAL
STATUTORY DUTY EXISTS
RISKS A ) HIGH RISK /LOW HARM OR LOW RISK /HIGH HARM B ) TO
Invitor-invitee relation btw hotel and patron
PARTICULAR P C ) P MUST SHOW THEY RESONABLE PERSON
CROCKER V SUNDANCE (1988) – LIABILITY FOR THE
WOULD HAVE REFUSED
INTOXICATED : APPLY ANNS DUTY NOT TO PLACE ANOTHER IN A
6. Manufacturer’s duty to warn
POSITION WHERE IT IS REASONABLY FORESEEABLE THAT THEY

KRANGLE V BRISCO [2002] – DAMAGES FOR PAIN AND
SUFFERING OF GIVING BIRTH TO DISABLED CHILD TO MAJORITY
Master of vessel has statutory duty to rescue

JOSHI V . WOOLEY (1995); SUITE V . COOKE [1995] – CAN
AWARD DAMAGES FOR HEALTHY CHILD
-

WINNIPEG CHILD AND FAMILY SERVICES V G [1997] – WOMAN
HAS COMPETE AUTONOMY , CHILD SEPARATE AT BIRTH
JANE DOE V METRO TORONTO POLICE (1998) – DUTY TO
WARN DEPENDS ON THE FACTS OF THE CASE
LEARNED
INTERMEDIARY RULE : INTERM SAME KNOW AS MANU .
7. DUTY OF CARE OWED by Barrister

DEMARCO V UNGARO (1979) – REASONABLE CARE , SKILL AND
KNOWLEDGE IN THE CONDUCT OF LITIG AND MUST BE PROPERLY
DILIGENT IN PROSECUTION OF THE CASE .
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 20 of 24
8. Pure Econ Loss
- Categories not closed but reluctant to expand (Martel)
a. Negligent Misrep –Anns w/ Hedley in 2nd per Hercules
- Generally hesitant to comp for neg misstatements
a. Chilling effects on social relationships
b. Indeterminacy problem
c. Law expects business people to protect from losses
by using contracts and insurance

ULTRAMARES V TOUCHE (1931) – PRIMARY POLICY
CONSIDERATION : LIABILITY IN AN INDETERMINATE AMOUNT FOR
AN INDETERMINATE TIME TO AN INDETERMINATE CLASS


MURPHY V BRENTWOOD (1991) – INJURY TO PERSON OR
PROPERTY REQUIRES REMEDY , ECONOMIC LOSS DOES NOT
Hedley Byrne v Heller (1963) – AUTHORITY FOR NEG
MISSTATEMENT . COURT STILL LOOKS TO OTHER FACTS WHEN
ESTABLISHING A DUTY OF CARE .
c. Negligent performance of a service – apply Anns in 2nd
consider whether there has either detrimental reliance
or voluntary assumption of responsibility, duty if yes

BCD V HOFSTRAND (1986) –NORMAL ANNS, NOT DENIED ON
POLICY IF THERE IS SUFFICIENT PROXIMITY
-
Here prox fails – unforeseeable plaintiff to deliver

JAMES V BC (2005) – IF NO DETRIMENTAL RELIANCE ,
VOLUNTARY ASSUMPTION OF RESPONSIBILITY ON THE PART OF
THE DEFENDANT IS SUFFICIENT
d. Negligent supply of shoddy goods or structures: Anns
- Usually where loss but no privity

WINNIPEG CONDO V BIRD (1995) – APPLY ANNS, NO INDETER
ISSUE WITH ESTABLISH DUTY FROM SUBCONTRACTOR TO CONDO
INHAB BASED ON FORESEEABLE LOSSES .
CAVEAT EMPTOR DOES
NOT APPLY ( REASON IS TO ENCOURAGE INSPECTION ).
- a) class restricted to inhabitants b) amount limited
- Take away waiver and duty would have held
to reasonable fix c) time limited to life of building
5 stage test for neg misstatement: (Hedley per Hercules)
e. Relational economic loss: closed, open, closed cycle
1) There must be a duty of care based on a “special
- Pure econ loss relating to 3rd party
relationship” between parties
 CPR V NORSK (1992) – ANNS WILL PROTECT FROM INDETERM .
- three-stage Reid test
DISS: SHOULD BE DENIED EXCEPT IN VERY LIMITED CASES
a. Possession of a special skill by the defendant;
 BOW VALLEY HUSKEY V SAINT JOHN SHIPBUILDING (1997) b. Reliance on the exercise of that skill by the plaintiff;
RECOVERY ONLY AVALIB IN 1) CLAIMANT HAS A POSSESSORY OR
c. Knowledge or awareness of the possibility of
PROPRIETARY INTEREST IN DAMAGED PROPERTY ; 2) G ENERAL
reliance on the part of the defendant
AVERAGE CASES ( AVERAGING OUT LOSES INVOLVED – VERY
2) The rep must be untrue, inaccurate or misleading
SPECIFIC TO THROWING GOODS IN WATER ); AND 3) JOINT
3) The rep.tor must have acted neg.ly in making the rep
VENTURE . NOT CLOSED BUT CHANGES WILL BE INCREMENTAL.
4) The rep.tee must have relied on the rep
5) The reliance must have resulted in detriment/damages 9. Negligent Infliction of nervous shock
- Generally – no coverage a) Suspicious of psyco injury b)
 HERCULES V ERNST & YOUNG (1997) – CANADIAN POSITION :
Flood gate worries c) Assessment of damages difficult
1) NEG MISREP IS NOT SEPARATE AREA SO SHOULD USE ANNS 2)
d) Psyco harms some how less then phys
CONSIDER THE HEDLEY RULES IN THE 2ND STAGE
1)
Injury
must fall into category of nervous shock
- Knowledge of the P is dealt with in the policy stage
Manifest
as physical disord or recog psyco ill; not upset
b. Independent liability of statutory public authorities
2) Rsb Fsc and sufficient degree of Proximity
 MARTEL BUILDING V CANADA (2000) – TORT SHOULD NOT BE
- No indeterm or flood worries if harm direct to p
AVALIB IN PRE -CONTRACTUAL SETTINGS FOR FIVE REASONS
- More issues in cases of relational victim: floodgates!
a. Always winners and losers in nego. No econ loss to
 ALCOCK V YORKSHIRE POLICE [1991] - BRITISH: PROXIMITY
society, just movement of wealth.
CONDITIONS 1) TEMPORAL 2) RELATIONAL 3) LOCATIONAL
b. Observed that useful social and economic relations
- 1) need immed aftermath, forecloses on gradual
might be discouraged: “hard bargaining” is good.
shock 2) ‘close ties of love and affection’ (family,
c. Argued that tort law should not be used as an
spouses), prove others 3) ‘own unaided senses’,
insurance scheme for unsuccessful negotiations.
mediated info not necess less shock
d. Argued it would result in the courts examining
 PAGE - REJECTED IN CND – PSYCO INJURY DOES NOT NEED TO
every detail of pre-k nego while doctrines of undue
BE FSB OR MATERIALISE FOR PRIMARY VICTIMS
influence and economic distress deals with this.
 MUSTAPHA V CULLIGAN (2008) – RSB FSB DAMAGE TO PERSON
e. Court worry: encouraging unnecessary litigation.
OF ORDINARY FORTITUDE : ALCOCK CRITERIA SHOULD BE
BROUGHT INTO SECOND STAGE OF ANNS TEST
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 21 of 24
STANDARD OF CARE
2) People with Disabilities
- Mod Obj test
Question of Fact & Law
General Standard: that expected of a reasonable person
in like circumstances
- Objective
- Public protection over fairness
- Feminist critique – rsb man
- Objectivity critique – rsb judge

fell on way out of restaurant

FIALA V CECHMANEK (2001) – SUDDEN MENTAL ILLNESS:
1) NO CAPACITY TO UNDERSTAND DUTY OF CARE 2) NO
HUDCHINS – MEETING WITH GOD IS NO M CONTROL
ROBERTS – KNEW OF STROKE , DROVE ANY WAY : LIAB
3) Professionals

BREACH NOT HINDSIGHT
Qualifications/Limits of Rsbness
1. Probability and severity of the harm
- Greater risk/potential harm: greater standard

-


BLYTHE V BIRMINGHAM WATERWORKS (1856) – RSBL
ARLAND V TAYLOR (1955) – CDN AUTHORITY
ROE V MINISTER OF HEALTH (1954) – ASSESSED AT TIME OF
CARROLL AND CARROLL V CHICKEN PALACE (1955) – RSB
PERSON WITH SAME DISABILITY . R ECOG PHYSICAL
LIMITATIONS AND NOT TAKE UNRSB RISKS .
MEANINGFUL CONTROL OVER ACTIONS TO DISCHARGE DUTY
PERSON



WHITE V TURNER (1981) – STANDARD OF PROFESSION
-
breast reduction without standard check

LAYDEN V COPE (1984) – GP: RSB COMPETENT GP INCL
KNOWING WHEN NEED A SPECIALIST

BOLTON V STONE (1955) – TAKE ALL RSB PRECAUTIONS IN
TER NEUZEN V KORN (1995) – SPECIALISTS IN LIGHT OF
OTHER SPECIALISTS
THE CIRCUMSTANCES TO AVOID LIKELY DAMAGE
-
Jury cannot know to tell profs how to behave
LAW ESTATE V SIMICE (1994) – DUTY TO PATIENT
-
Cricket: don’t have to guard against far fetched;
there are always risks in life
If risk too high and unavoidable, then prohibit


PARIS V STEPNEY BOROUGH COUNCIL (1951) – RSB PROB OF
-
HARM AND SEVERE INJURY THEN IT IS UNRSB RISK
- One eyed man should have goggles: lo cost, hi risk
2. The cost of risk avoidance

OUTWEIGHS DUTY TO BUDGET
CAUSATION
-

VAUGHN V HALIFAX-DARTMOUTH BRIDGE COMM (1961) –
COST OF PRECAUTION LAW , LIKELY FIND NEG

WATT V HERTFORDShIRE COUNTY COUNCIL (1954) – SOCIAL
UTILITY OUTWEIGHED COSTS
- saving life justifies risk
Special Standards
1) Children
- Modified objective: care to be expected of child of
like age, intelligence and experience (about capacity
not culpability)
- Elderly: stigmatizing, don’t lack experience, variation




MCELLISTRUM V ETCHES (1956) – MODIFIED STANDARD
JOYAL V BARSBY (19565) – ACCEPTS MODIFIED STANDARD
HEISLER V MOKE (1971) (ONHC) – TENDER AGE : NOT
CAPABLE OF APPRECIATING RSB RISK (TILLANDER V G OSSELIN )
AND ABOVE TENDER AGE : MODIFIED STANDARD
RYAN V HICKSSON (1974) – CHILD HELD TO ADULT
STANDARD WHEN ENGAGING IN ADULT ACTIVITY

THOMAS V HAMILTON (1994) – CAREGIVER ONLY LIAB IF
INJURY IS A RESULT OF FAILURE TO CONTROL CHILD’S
CONDUCT : RSB PARENT OF ORDINARY PRUDENCE
KAUFFMAN V TORONTO TRANSIT (1960) – NO EVIDENCE
THAT AN ALTERNATIVE WOULD HAVE STOPPED HARM

- Paint blowing on cars
3. Social utility or value of the conduct

Factual – P show that D’s acts caused harm
Test: Would loss have occurred but-for the neg?:
- Relies on hypotheticals


-
BARNETT V CHELSEA & KENSINGTON HOSPITAL (1969) –
NEG DELAY DID NOT CAUSE /AVOID MORE HARM
REEVES V COMMISSIONER OF POLICE (2000) – MERE
CONDITIONS ( NO AGENCY ) NOT BUT -FOR
COTTRELL (2003) – NO LOSS OF CHANCE
RINTOUL V X-RAY (1956) – D COULD NOT AVOID ACCIDEN
Causal Indeterminacy Problem
1. Evidential Insufficiency – impossible to determine

WALKER ESTATE V YORK -FINCH (2001) – MATERIAL
CONTRIBUTION TEST : OUTSIDE DE MINIMIS RANGE
- HIV screening pamphlets
2. Multiple insufficient Causes – no single cause suff

ATHEY V LEONATI (1996) – THIN SKULL RULE ALLOWS D TO
TAKE 100% LIAB – BUT FOR ACCIDENT , NO HARM
- Pre-existing back problems
3. Multiple Suff Causes – either could have caused

LAMBTON V MELLISH – SIGNIFICANT OR SUBS FACTOR TEST
4. Materially increased Risk – inference of causation
where scien imp to prove cause & know with doc

SNELL V FARRELL (1990) – INFERENCE OF CAUSATION MAY
BE DRAWN UNLESS REBUTTED BY DEFENDENT
-
Optic surgery breach standard, cause blindness?
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 22 of 24
REMOTENESS
-
-
Legal – limitation of liab for fairness and policy
Is the loss reasonably foreseeable?
Separation from Duty:
- Btw parties (limits neigh) fsb, indeterminacy VS
- Btw act and loss (limits causation) – directness,
immediacy, fairness, probable outcome
- Duty limits scope; Rmt limits logical imp of causat
Old Directness test
- Unfair: resp for all direct losses, like strict liab, not
resp for fsb indirect losses/stress remot not fsb

-
RE POLEMIS (1921) – CLOSE , TEMPORAL AND SPATIAL CONN
BTW D ’S BREACH AND P ’S LOSS
Current test: Type of harm reasonably foreseeable?

WAGON MOUND NO1 (1961) – FAIRNESS FROM
FORESEEABILITY
-
Fire damages unforeseeable

WAGON MOUND NO 2 – RSB FSB : RSB PERSON IN D ’S
POSITION WOULD HAVE FORESEEN AS A REAL RISK , ESPECIALLY
IF ACTION TO REMOVE EASY
-
Increasing Flexibility – easier for P
1. Shift from manner of accident to type of harm

HUGHES V LORD ADVOCATE (1963) – OUTCOME , NOT
SEQUENCE , TO DETERMINE RSB FSB
- Depends on how characterize harm
2. Treat as sequence of discrete events and ask
whether each step is f/s: AC if ABC

ASSINIBOINE SOUTH SCHOOL DIVISION V WINNIPEG GAS
(1971) – DANGEROUS ITEM RUN LARGE: BROAD FSB
- Depends on how you slice the action
3. Increasingly focused on fairness
- Few cases stop here, incoherent rule, get rid?
Thin Skull Rule
- If rsb fse injury, then full recovery for all harms of
extra sensitive – speaks to quantum

SMITH V LEECH BRAIN (1962) – VICTIM IRRELEVANT
-
Burnt lip gives cancer

MARCONATO V FRANKLIN (1974) – HARM TRIGGER
PREDISPOSED PSYCO ILLNESS
-
-
Current Intervening Causes: within scope of risk/fsb
test: Could original rsb fse the intervening act?


BRADFORD V KANELLOS (1973) - MORE CULPABLE , LESS
FORESEEABLE – USE TO MAKE POLICY DECISIONS
PRICE V MILAWSKI (1977) – FIRST LIAB FOR NEW
DAMAGES FROM 2ND WHEN RSB FSB CONC OF ORIG NEG
-
Xray foot; used fsb as poss but same really

HEWSON V RED DEER (1976) - DELIBERATE , ILLEGAL AND
WRONGFUL MAY STILL BE RSB FSB
-
tractor on dirt pile
DEFENCES
1. Contributory Negligence
- Old: if P could have prevented, then 100% liab. Easy
for judges, but now mechanisms to be consistent.
Not fair. But they were last but-for. No good
reason to make all for nothing – so must be unfair
- Legislation allows courts to divide fault
- Negligence Act: apportionment based on fault
- Fault cannot be deter=equal (s1)
- Damages offset if both parties at fault (s2)
- Legal costs apportioned as well (s3)

BOW VALLEY HUSKY – ABOLISHED RULE REGARDLESS OF
LEGISLATION
-
Conduct carelessly contributed to harm suffered:
1. P did not take reasonable care of him/herself
2. Lack of care contributed to injury

WALLS V MUSSENS (1969) - RSB IS WHAT IS EXPECTED IN
THE CIRCUMSTANCES – MAYBE NOT IF FAIL TO SOLVE EMERG
-
Can’t judge actions in emergency from rsb if no

GAGNON V BEAULIEU – RSB IS ALL PRECAUTIONS OF
ORDINARY PRUDENCE ( OBJECTIVE )
-
Seatbelt beliefs irrelevant

MORTIMER V CAMERON (1994) – LACK OF MAINTENANCE
NOT WITHIN RSB FSB
2. Volenti (Vol Assumption of Risk)
- Complete, but rare since inflexible; maybe sport
1. Knew of and understood precise risk occurring
2. Voluntarily assumed the risk

DUBE V LABAR (1986) – INFORMED EXPRESS OR IMPLIED
Crumbling Skull: onset hastened: resp to extent that
CONSENT TO BOTH PHYSICAL AND LEGAL RARE IN CANADA
worsened (Athey)
3. Public Policy/Criminal Act
Intervening Causes
- Complete, so narrow interp
- Traditional Last Wrongdoer Doctrine: convenient,
1. P stands to profit from illegal activity
understandable, common sense, accords w/ linear
2. Comp would amount to avoidance of crim
model - But: unfair
sanction
- Next: Category approach: (define 2&3? Moral Luck?)
 HALL V HERBERT (1993) – BETTER TO DEAL IN DEFENCES
1. Naturally occurring: liab as long as fsb (not unusual)
THEN NEGATE DUTY
2. Neg intervening acts: breaks chain
4. Inevitable Accident – deal with in causation
3. Delib wrongful or illegal: always breaks chain
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 23 of 24
LIABILITY OF PUBLIC AUTHORITIES
STATUTORY TORTS AND DUTIES
-
1) Statute may create an indep cause of action
- Creates a duty or describes a standard
-
Not generally liable for Legislative or Judicial
(Wellbridge Holdings (1970)
May be liable for administrative
Legislative: Statutory immunity to parliament; Court
given immunity for margin of legit error in bylaws
- Harm always occurs when legislating
Judiciary: Immunity if acting in good faith
- Broad protection for tribunals, jps…
- BC Prov Court Act s 27.3 and s42
- Landslide: but could set standard at gross neg
- Add to or take away from institution trust?
- Don’t give to anyone else, why just here?

-
TRACHSLER V HALTON – STATUTE DEFINED SCOPE

R V SK WHEAT POOL (1983) – NOT A NOMINATE TORT ,
DEAL WITH IF CL DUTY OF CARE EXISTS

GALASKE V O’DONNELL (1994) – STATUTE INDICATES
UNRSB CONDUCT TO BE CONSIDERED IN DUTY
BRADLEY V FISHER (1872) – JUDGES IMMUNE AS REQUIRED
-
Duty on driver supported by motor vehicle act
BY INDEP OF JUDICIARY

RYAN V VICTORIA (1999) – STANDARD OF CARE MAY BE
Administrative and Operational: only liab is here
1. Decision made to fulfill statu duty
- Liab only if carelessly or fail to do (clear leg intent)
2. Decision with statu discretion
- Liab for operational not policy

JUST V BC (1989) – POLICY IS BROAD ALLOCATION OF
FUNDS, NARROW SO AS NOT TO BLOCK SUITS
-
Look at in 2nd branch Anns, look at budget in
standard

BROWN V BC – CONSIDERATIONS INFORMING THE DECISION ,
NOT WHO IS MAKING IT , IS KEY TO CHARACTERIZATION
- Organize shifts according to resources
Misfeasance in Public Office
1. Conduct specifically intended to injure a person or
class of person


2) Statute may change/limit the operation of cl
duty/tort
- Indirect, SP  CLDC  CLCA (Canada – allows
Anns policy considerations and no strict liab)
- Inferred, SP  CLCA (UK) – not in CND SK Wheat
RONCARELLI V DUPLESSIS (1959) - MISFS IS A TORT
2. Conduct where the officer knows their action is
outside of the power granted by the public office
and that it is likely to injure the plaintiff

ODHAVJI ESTATE V WOODHOUSE (2003) – 1) DELIBERATE
AND UNLAWFUL 2) AWARE THAT IT IS AND THAT WILL INJURE
-
Police violated statutory duty to cooperate
STRICTER THEN STATUTORY STANDARD
-
Impact of the Charter
a) May inform CL causes of action and defences
b) Rights violates = express statu CA under s24(1)

VANCOUVER V WARD (2010) – DAMAGES UNDER 24(1) IF
APPROPRIATE AND JUST AND FULFILL COMPENSATION ,
VINDICATION OR DETERRENCE
2011/2012 CAN – Law 140 Torts – Professor Goold – Page 24 of 24
OCCUPIERS’ LIABILITY
STRICT LIABILITY
- Does not fall under Neg historically
1) Occupier – direct control
-

PALMER V ST JOHN (1969) – DEFN OCCUPIER
2) Premises
3) Visitor
1. Trespasser – no permission – refrain from intent or
reck injuring (children usually licensee)

Movement to fault based, so getting rare
Advantages: admin efficient, powerful deterrent,
predictable, consistent with compensatory model,
promotes enterprise liability (intern costs)
- Problems: imprecision of elements and fairness
Dangerous Item on Land

VEINOT V KERR-ADDISON MINES (1975) – OUGHT TO HAVE
FSN A TRESPASSER
SOMETHING DANGEROUS ONTO LAND AND IT ESCAPES
-
-
Duty not onerous, not to inspect; depended on
degree of danger, age, reason, knowledge of
occupier, cost of preventative measures
2. Licensee – permission, no bene – protect from
unusual or hidden dangers which occupier has
knowledge of

Elements – see changes to mitigate harshness
1. Non-natural use of land – ‘danger’: extraordinary
and not of benefit to the community
- Water in bulk, explosives, nuclear, biological
- Degree of danger, utility and normality, circ of
time and space = looks like negli
2. Escapes and caused mischief

MCERLEAN V SAREL (1987) – UNUSUAL IS OBJECTIVE – NOT
USUALLY FOUND IN CARRING OUT TASK
-
Blind curve in gravel pit not usual

BARTLETT V WEICHE APTS (1996) – LICENSEE , NOW
DANGERS WHICH OUGHT TO KNOW TOO
3. Invitee – Permission, bene – unusual dangers
knows or ought to know – closest to Neg
4. Contractual entrant – premises fit for purpose

FINIGAN V CALGARY (1967) – VISITOR PRACTICE RSB CARE
TOO
Occupiers Liability Act
- Static, predictable, harmonize w/ negligence
- S1: defn occupier (can be >1) and premise (moveable)
- S3: Standard: rsb care in the circ to ensure entrants
are rsb safe on the property
- Considers: 1) f/s of damage 2) degree of risk of
injury 3) gravity of threatened injury 4) kind of
premises 5) burden of preventative measures 6)
practice of other occupiers 7) purpose of the visit
- Limit: Rural, Criminal
- S4: Contractually restrict
1) rsb notice, only privy – 3rd party/no priv=s3 std
2) not for those empowered to enter w/o consent
- S5: Duty to indp contractors
- No liab if rsb to have retained ic to do the work
and rsb care taken in selection and supervision
- S6 – landlord is occupier, liab if not do lease repairs

WALDICK V MALCOLM (1991) – STATUTORY – CIRC DO NOT
INCL LOCAL CUSTOM
RYLANDS V FLETCHER (1868) – STRICT LIABILITY IF BRING
READ V LYONS (1947) – ESCAPE MEANS FROM PLACE
WHERE D HAD CONTROL
3. Damage – fsb conc of use (Cambridge Water)
- Defences
- Consent – Liberal interp, suff that knew and
stayed, may be implied Peters v Prince of Wales
- Common benefit – Carstars v Taylor (1871)
- Default of the P – partially fault of p: no liab for
d. (like old Neg) Dunn v Birmingham Canal
- Act of God - so unfsb that d could not have
guarded - Nochols v Marsland – contra strict liab
- Act of Stranger – deliberate and unforeseen –
Rickards v Lothian (1913)
- Statutory authority – Benning v Wong (1969)
VICARIOUS LIABILITY
-
Mechanism where one person becomes liab for the
actions of another
- Answer Neg, then deal with this
Employee/Employer
- Elements
1. Employee or Contractor? Direct control

671122 ON V SAGAZ (2001) – KEY TEST IS PERF BUSINESS
ON OWN ACCOUNT : EQUIP , SUBK , OP PROFIT , OP FOR LOSS
2. Harm during course of employment?
- Broad Interp: Emp best able to regulate; more
likely to recover; emp gets benefit
- Express prohibitions only effective when
prohibit, not regulate, activity (Lockhart)

BRAZLEY V CURRY (1999) – EMP CAN BE LIAB FOR INT
TORTS IF THEY PLACE EMPLOYEE IN SIT THAT INCREASES RISK
OF WRONGFUL ACT