LGL411PA – Notes
Section A (Friday 1330 – 1615)
Led by Professor XXXX
Word Count: XXXX
2014-08-08
Tort Law
Justin Hedden,
ID: 015476146, jhedden@myseneca.ca

A wrongful act or infringement of a right (other than under contract)
↓ 09 - Introduction to Torts
2014-07-XX
* Extra-contractual – outside of contract
* Doctrine of torts – writings that concern an extra-contractual duty of care
* Cause of action – a set of factual elements that entitle a plaintiff to sue
THE FOUR ELEMENTS: DUTY, BREACH, CAUSATION AND HARM
+ [ 1 ] The existence of a duty of care on the defendant’s part
+ [ 2 ] Breach of that duty of care
+ [ 3 ] Causation
+ [ 4 ] Harm – must be able to be framed in terms of damages else the case is not applicable
DUTY
~ Using gas to driving a car could be argued to harm the interests of every other human
+ If there is no duty, there is no tort – the actions of the person are morally neutral
BREACH
* the defendant’s failure to discharge his/her duty of care to an acceptable standard of care
* Tortfeasor – the person who commits a tort
* Standard of care – legal criteria which a defendant’s conduct is measured to determine whether
he/she has been negligent
+ In contract, breach is when one party fails to properly or fully carry out his/her obligations as
described in the terms of the contract
+ In tort, a breach is when the tortfeasor fails to discharge (carrying out, living up to) his/her duty of care
+ A breach is determined by comparing the defendant’s actions to an acceptable standard of care
CAUSATION
+ Without a causal link between the breach and the harm – there can be no tort
+ All criteria must be satisfied, even if there is a duty of care being breached but no harm
HARM
+ Usually, the plaintiff must allege that the wrongful actions of the defendant cause him/her some kind
of harm compensable by money (~ personal injury, damage to property, reputation, etc.)
+ It is not possible to sue in tort for a “broken heart”, disappointment or other emotional upsets that fall
short of psychiatric illness
CLASSIFICATION OF TORTS
TORTFEASOR’S INTENT
+ Plaintiffs support about intent through inferences drawn from the facts
* Passing-off – a tort; the defendant’s false representation of its goods or services, made with the intent
of confusing consumers that they are the goods or services of the plaintiff
* Direct intent – something done with a conscious purpose
+ There exists a spectrum of levels of intent
THE MAJOR CATEGORIES
* Intentional Torts – wrongs undertaken with the intent to do the thing done, which turns out to be
harmful
- Not always sufficient for mens rea; an intentional tort is based on an intentional act not an
intent to do harm
* Transferred Intent – intent to harm another party (or their property) that results in harm to a 3rd party
+ Negligence – the most common tort, covers a range of intent
* wilful blindness – closing the consciousness
* recklessness – acting without concern for the consequences
* carelessness – acting without sufficient care or thought
* accident – making a honest mistake that could have been prevented
+ Liability
* vicarious liability – the liability of a principal (an employer) for the negligent or tortious acts
of the principal’s agent (an employee) done within the scope of the agent’s authority or
employment
* strict liability – imposed even though no negligence or intentional tort occured
* absolute liability – imposed automatically (usually under a statute) when certain conditions
are met, without reference to negligence or intent
NUISANCE
* a tort based on conditions prevailing or activities carried out on land
+ Can be intentional or negligent
+ The plaintiff occupier of land must prove that conditions prevailing or activities carried out on the
defnedant’s land affect the plaintiff’s use (business or personal) or enjoyment of his/her land
OTHER CLASSIFICATION CRITERIA
+ General categories of intentional torts
- [ 1 ] – torts based on injury to the person, or to reputation (~ battery; defamation)
- [ 2 ] – torts based on harm to chattels ( ~ conversion; detinue )
- [ 3 ] – torts based on interference with land ( ~ trespass and some forms of nuisance )
- [ 4 ] – torts based on interference with rights or the legal process ( ~ false imprisonment;
malicious prosecution; abuse of process )
- [ 5 ] torts based on harm to business interest ( ~ passing-off; inducing breach of contract )
+ Negligence also has other categories ( ~ professional malpractice; negligent misrepresentation )
↓ CASES
SOMMERFIELD v LOMBARD INSURANCE GROUP, 2005 CanLii 8718 (Ont. S.C.)
+ A student of Upper Canada College launched a $15 MM lawsuit against the school and four teachers
alleging sexual assault between 1986 and 1990
+ The teachers were declined insurance; the insurer claimed their acts were intentional torts
+ The statement of claim and teachers allege there are two classes of harm: intentional harm (sexual
assault) and negligence (failure to report the wrongful acts of fellow teachers)
+ The OSCJ rules with the teachers; the insurers had a duty to defend the teachers against negligence
but their liability for intentional harm was excluded
↓ 10 - Intentional Torts
2014-07-XX
* A tort that, once proved, is presumed to have been deliberately committed
BASICS OF INTENTIONAL TORTS
THE ROLE OF INTENTION
+ Presumption – the tort was committed intentionally
+ Rarely rebutted
- A tort lawsuit is a civil action not a criminal prosecution, the plaintiff need only prove his/her
allegations on a balance of probabilities
- If the defendant could successful disprove his/her intention to commit the tort, he/she
would simple be found liable in negligence for the same act
- Historically, it’s focus on a defence (~ prove the plaintiff consented to the act complained of)
DUTY OF CARE AND STANDARD OF CARE
+ A defendant’s duty of care is dependent largely on foreseeability: whether the defendant was (or
should have been) aware of the consequences of his/her actions before taking them
- With intentional torts, it is nearly impossible to argue the defendant could not foresee the
implications of their actions
+ For the plaintiff to recover, the defendant need not have foreseen every detail of the resulting harm,
its extent or even the identity of the plaintiff
+ Legislation prohibits many acts that form the basis of torts; the defendant has a duty to obey the law
and breaking the law, breaches his/her duty of care because the legal standard of care in these cases is
to not commit them at all
INTENTIONAL TORTS AS FORMULAS
+ A plaintiff must establish that the facts that led to the alleged harm fall within certain strict
parameters
+ If facts deviate from the formula, you may have to rely on the doctrine of negligence (to evaluate the
duty and standard of care)
INTENTIONAL TORTS AND PROOF OF HARM
+ Presumption – damages; if the tort can be proven, there is presumed to be harm (unless required by a
formula); # the tort is the harm
* Nominal damages - Where the damage is trifling or cannot be measured, a court may order a low
amount of token damages (~ $1 – 1000)
+ Commonly awarded in cases involving harm to the person or reputation (~ assault or defamation)
INTERPERSONAL TORTS
ASSAULT
* the intentional creation of the apprehension of imminent harmful or offensive contact
+ Crime assault requires the application (or attempt) of force to another
+ Tort assault is much closer to “threatening”
+ Required elements:
- [1] the defendant intended to create apprehension – not accidentally
- [2] the plaintiff’s fear or expectation was that physical contact was going to occur – not verbal
- [3] the contact feared must have been capable of being carried out imminently – not later
+ Elements not required:
- an actual threat (there need only be the reasonable apprehension by the plaintiff)
- any follow-through on the threat
- harm ( #presumed unless the assault caused actual harm )
BATTERY (“TRESPASS TO THE PERSON”)
* Any non-consensual physical contact or touching by the defendant to the plaintiff’s physical person
+ Touching – can be sexual or non-sexual; involve any part of the defendant’s body; include an
unwanted kiss or hug or spitting on someone; occur with or without a weapon; involve the use of any
other kind of instrument including a plant, an animal or a liquid; include any thrown object; and even go
unnoticed by the plaintiff at the time it occurs
+ Person – hair, clothes, shoes, even if the person does not sense the contact
+ Common for lawsuits arising from medical procedures performed with no consent or invalid consent
- Exception – emergency; free (un-coerced), full, and informed consent is required before a
medical practitioner can deliver treatment unless the nature of the situations makes obtaining
consent impossible or threatens life
- obtaining flawed consent is negligence
INTENTIONAL INFLICATION OF MENTAL SUFFERING
* An act or (false or misleading) statement that is calculated to cause mental anguish, results in a
disturbance in the plaintiff’s health, and is capable of being diagnosed or confirmed by a physician
+ Required elements:
- [1] the performance of an act, or the making of a statement (probably false) that is calculated
to cause mental anguish and, in fact causes mental anguish
- [2] the act or statement cannot be accidental or innocent but must be intentional
- [3] in general, if the tort is based on a statement, the statement must be a lie or at least
calculated to mislead; and
- [4] the plaintiff’s reaction must be more than just a temporary upset: it must amount to a
disturbance in health capable of being diagnosed or confirmed by a physician, though it need
not be a recognized psychiatric disorder
FALSE IMPRISONMENT
* Confinement within a fixed boundary of a person against that person’s will
* Psychological confinement – barrier-free confinement of a person against his/her will
+ Presumption– harm; award nominal damages
+ Required elements:
- [1] confinement must be intentional
- [2] the person confined must not have consented
- [3] the person confined must believe that serious consequences would follow an attempt to
escape (usually the plaintiff must fee either application of force self or 3rd party; serious bodily
harm; or a criminal charge resulting from escape)
- [4] The confinement must occur without lawful authority
- either an arrest warrant or officers with reasonable and probable grounds
- Exception – RIDE program
+ Elements not required:
- barriers (only control of movement)
- knowledge of the confinement at the time it occurred
- proof of harm
MALICIOUS PROSECUTION
* Initiation of a criminal proceeding with malicious intent for no reasonable or probable cause
+ Required elements:
- [1] the defendant initiated a criminal proceeding against the plaintiff;
- [2] in so doing, the defendant was motivated by “malice or a primary purpose other than that
of carrying the law into effect”;
- [3] there was no reasonable or probable cause for bringing the proceeding; and
- [4] the proceedings were ultimately terminated in the plaintiff’s favour
+ The defendant cannot be found liable if mistakenly convinced, he or she must be motivated by malice
or an improper purpose
+ Rare, would constitute a failure of the justice system given how many checks are place
+ May have to established independent, quantifiable harm
DEFAMATION
* intentional harm to a person’s reputation in the community
* Libel – making a defamatory statement by publishing or broadcasting it
- damages are “at large” (automatic; need not to be specifically proven)
* Slander - making an oral defamatory statement
- damages “at large” under specific circumstances:
- statements discredit the plaintiff’s pursuit of his/her business/profession
- statements falsely suggest that the plaintiff has committed a criminal offence
- statements that suggest that the plaintiff has a “loathsome or contagious” disease
- statements suggest that a woman is “unchaste”
+ Ontario Libel and Slander Act, R.S.O. 1990, c. L.12
- defines “broadcasting”; extends privilege to certain types of communications, restricts access
to nominal damages under certain circumstances, prescribes limitation periods, and
establishes rules relating to evidence and costs
+ Publication – anything in print writing (even electronic writing); no need to be commercial
+ Broadcast – any form of wireless radio electric communication; cables, wires or lasers
+ Elements required:
- [1] the alleged slanderous statement or libel must have been made to a 3rd party
- [2] the alleged slanderous statement or libel must specific enough that the 3rd party can
reasonably infer that it referred to the plaintiff specifically
- [3] the alleged statement must be untrue or false and lower the person in the estimation of
right-thinking members of society
DEFENCES TO DEFAMATION
* Truth – a true statement cannot be defamation
* Absolute privilege – statements made in a court, parliament (but not lying), or between spouses (about
3rd parties)
* Qualified privilege – statements made while fulfilling a duty without malice with the proper discretion
so as to minimize the potential to harm the reputation of the plaintiff
* Fair comment – individuals and organizations whose mandate is the dissemination of information to
the public
- [1] the report must be on a matter of public interest
- [2] the comment must be based on fact
- [3] on the basis of the true facts, could any person reasonably agree with the opinion?
- [4] must lack malice
INTERFERENCE WITH POSSESSIONS (“TRESSPASS TO CHATTELS”)
* Chattels – possessions other than land
+ Must take possession of the chattel and in doing so deprive the owner of its use
DETINUE
* wrongful possession of a chattel that belongs to another
* Bailment – an agreement between parties that one will store the goods of the other
* Bailee – the party who holds or stores goods for another
* Bailor – the party who has handed over goods for storage to another
+ Remedy – return the goods or damages equal to the value
CONVERSION
* wrongful possession that includes exercise of rights of ownership, preventing the actual owner from
exercising such rights
+ “Rights of ownership” include:
- [1] using the chattel as if it were one’s own
- [2] making changes to the chattel
- [3] using the chattel to earn income
- [4] taking the plaintiff’s chattel and selling it to a 3rd party
+ Remedy – return the goods (plus damages for conversion) or damages equal to the value and nominal
damages for the act of conversion; may include loss of earnings
# Accessing private records is theft of privacy, not the chattel itself
INTERFERENCE WITH REAL PROPERTY
* Real property/estate – land or permanent structures on the land
TRESSPASS
+ Completely replaced by statutory provisions in all Canadian jurisdictions
+ Automatically compensable; without property damage the nominal damages are very low
NUISANCE
* the cause of action of choice where the conditions prevailing on land, or activities being carried out on
land, negatively affect another land occupier’s use and enjoyment of his/her own land
+ Can be but does not need to be an intentional tort
~ noise; excessive shade/light; odours or air pollution; polluting waterways or projectiles
+ If the harm is trivial, so will the damages be
INTERFERENCES WITH BUSINESS OR CONTRACTS
* Intellectual property – the legal rights that result from intellectual activity in the industrial, scientific,
literary, and artistic fields
FRAUD (DECEIT) AND FRAUDULENT MISREPRESENTATION
* intentional misrepresentation that causes another to suffer damages
* intentional fraud that causes another to enter into a contract
* Fraudulent concealment – deliberate hiding, non-disclosure, or suppression of a fact or circumstance
with intent to deceive or defraud in a contractual agreement
+ Usually parallel criminal (punishment) and civil (compensation) proceedings take place
+ If the plaintiff fails to prove fraud, they may have to pay “double costs”
INTIMIDATION
+ Elements required:
- [1] the defendant had the intention to make the plaintiff obey his/her wishes or cause harm
- [2] the defendant made a threat such that the plaintiff’s non-compliance would result in the
defendant committing an illegal act
- [3] the plaintiff complied with the defendant’s wishes to avoid the threat
- [4] the threat, the compliance, wishes or both cause the plaintiff actual harm
INDUCING BREACH OF CONTRACT
* intentional incitement to terminate a contract prematurely
+ The defendant is usually not a party to the contract
+ Plaintiff must show that the defendant’s actions were without legal justification
SLANDER OF GOODS1 AND SLANDER OF TITLE2
1
* false or misleading statements intended to decrease a competitor’s market share
2
* false or misleading statement intended to deter another from entering into a transaction
+ Not restricted to oral statements
+ The common law states there is no presumed harm but s. 17 of the Ontario Libel and Slander Act
award “special (nominal) damages”
+ Elements required:
- [1] the defendant makes a statement it knows to be false;
- [2] the statement is made for an improper purpose; and
- [3] the plaintiff suffers financial loss as a result
PASSING-OFF
* when a person attempts to benefit from the plaintiff’s business by bringing to market goods of its own
that are confusingly similar to those of the plaintiff
MISCELLANEOUS TORTS
CONSPIRACY
* An agreement between or among parties to deceive, mislead, or defraud others of their legal rights, or
to gain an unfair advantage
+ Elements required:
- an agreement made between two or more people to commit a lawful or unlawful act by lawful
or unlawful means that was directed at the plaintiff or has, as a predominant purpose, harmed
the plaintiff or his/her property
+ Not required to prove harm
+ Remedy – nominal damages for the making of the agreement
ABUSE OF PROCESS
* malicious use of the court process for an improper purpose
+ Distinguishable from malicious prosecution
- [1] it can related to either criminal or civil proceedings;
- [2] the plaintiff need not demonstrate that there was a lack of reasonable grounds on which to
base the proceedings; and
- [3] the plaintiff need not establish that the proceedings ended in his/her favour
+ Must prove that the defendant was motivated not by any “normal” reasons for bringing litigation
- does not count intimidation, antagonism or impoverishment
↓ CASES
PRINZO v BAYCREST CEBTER FIR GERUATUC CARE, 1992 CanLII 45005 (Ont. C.A.) [# MENTAL SUFF]
JONES v TSIGE, 2011 ONSC 1475 (CanLII), 2012 ONCA 32 (CanLII) [# DEFAMATION]
NEFF v PATRY , 2008 BCSC 163 (CanLII) [# ABUSE OF PROCESS]
2014-07-XX
↓ 11 – Defences to Intentional Torts
* Defence – the collected facts and method adopted by a defendant to protect against and counter a
plaintiff’s action; true defence eliminates all liability whereas a partial defence reduces damages
CONSENT
+ True defence
+ The defendant must prove that the plaintiff consented (expressly or implicitly)
+ Consent is given when the person engages voluntarily in an activity but not unusual contact for that
activity
+ Sports - Battery usually only concerns acts with no penalty in the game itself
+ Medical treatment – either the consent was never asked for; the plaintiff was not competent to
consent or the plaintiff consented without having even a basic understanding of the nature of the
treatment that was being done
- Battery concerns cases where there treatment was unjustified or against the persons religion
SELF-DEFENCE
* justifiable self-protection when a person reasonable perceives a threat and responds in a reasonable
manner
PURPOSE OF SELF-DEFENCE
+ True defence
+ Does not apply to non-aggressive types of harm
+ Real Property – the law permits the use of reasonable force to remove a trespasser from one’s real
property as long as the trespasser has been first asked to leave and given a reasonable opportunity to
do so
REASONABLE FORCE
+ The defendant must use “reasonable” force; if excessive, the defence fails
DEFENDANT’S HONEST BELIEF
+ The defendant must believe that the plaintiff is likely to become aggressive imminently
PROVOCATION
* A defence where a sudden act or an insult was made that would make a reasonable person lose selfcontrol
* Mitigating factor – a defence where a defendant who was provoked into committing an alleged tort in
which the court still finds the defendant liable, but may reduce the damages to reflect the plaintiff’s
share of fault
+ Often combined with self-defence claims
+ Partial defence – reduces punitive damages but not necessarily compensatory
+ Element required:
- objectionable conduct by the plaintiff that affected the defendant’s self-control occurred
immediately prior to the defendant’s wrongful act and provoked the defendant’s wrongful act
NECESSITY
+ True defence
+ Elements required:
- the defendant committed what would otherwise be a tort against the plaintiff in an effort
to avoid a much more serious harm
DURESS
* the state of feeling compelled to do something as a result of external pressures
+ May be necessity, may negate consent
LEGAL AUTHORITY
+ Still requires reasonable or probable grounds
LIMITATION PERIOD
* a period defined by statute within which a plaintiff must commence his/her claim
+ Usually two years
+ Short Periods – usually concerns municipalities who in turn impose strict limitation periods
+ Long Periods – applicable to sexual assaults
THE DISCOVERABILITY RULE
* a rule that allows plaintiffs to sue outside the limitation period where the information need to support
a suit was unavailable within that period
+ Limitations begin the day on which the person with the claim first knew or a reasonable person ought
to have known; presumption of awareness the day the incident took place unless otherwise state
+ Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
↓ DIAGRAM
DEFENCE
Consent
Self-defence or
defence of others
using only
reasonable force
Self-defence or
defence of others
using unreasonable
force
Provocation using
reasonable force
Provocation using
unreasonable force
Necessity
Legal authority
TRUE
DEFENCE
PARTIAL
DEFENCE
NO
DAMAGES
X
X
X
X
X
X
REDUCES
DAMAGES
X
X
X
(arguable)
X
(arguable)
ELIMINATES
“NOMINAL” BUT NOT
COMPENSATORY
DAMAGES
X
X
↓ 12 – Negligence: The Basics
2014-07-XX
THE FIRST ELEMENT: WRONGFUL CONTACT
WHAT MAKES CONDUCT WRONG?
+ Must find that the defendant had a duty of care and that they breached that duty
DUTY OF CARE
* the legal obligation to exercise care in favour of a plaintiff and his/her interests
+ Elements required:
- [1] It was reasonably foreseeable that the defendant’s actions (or omission’s) could cause
harm to a person or property
- [2] at the time of the impugned action (or omission), a person or property was sufficiently
proximate to the defendant to suffer harm
STANDARD OF CARE
* how well, how carefully, or how thoroughly a person carried out the duty of care owed to another
* reasonable person standard – has reasonable skill in what he/she does; ordinary intelligence; acts with
reasonable prudence; but is not perfect
+ dangerous activities – a person is expected to take special precautions to address the elevated risks
associated with the activity
+ experts – a person who is reasonably competent in the work about which he or she professes
expertise; there is no standards variance between new and old experts
+ minors or impaired persons – not applicable; instead compared to similar persons
THE SECOND ELEMENT: CAUSATION
+ Both types of causes must be proven on a balance of probablities
CAUSE IN FACT: THE “BUT FOR” TEST
* the factual link between one person’s actions and another person’s harm
+ Did the person commit the act? Even if they aren’t solely responsible
+ The defendants actions must have been an essential factor contributing to the harm
CAUSE IN LAW: THE REMOTENESS/PUBLIC POLICY TEST
* the proximity or remoteness of one person’s actions in causing another person’s harm
+ allows the court to limit liability in negligence where public policy reasons – and fairness – demand it;
could it be anticipated?
CASES WITH COMPLEX CAUSES
* multiple causative factors, including possible contributory negligence on the part of the plaintiff
and/or conditions not caused by plaintiff or defendant
THE THIRD ELEMENT: HARM
ACTUAL HARM TO A LEGALLY RECOGNIZED INTEREST
+ Applicable - damage to goods or real property that can be seen/measured/proved; devaluation of real
property that can be proved; pain and suffering (even if it has eased); lasting or permanent injuries; loss
of income or opportunity related to an injury; future economic losses related to an injury; psychological
harm that is provable; “nervous shock”; provable damage to reputation or business interests
+ Not Applicable – mental anguish, grief, stress, hurt feelings, embarrassment; pure economic loss;
losing certain “rights”
PROVING HARM
+ Almost always through witness evidence
+ Establish the before and after states of the plaintiff (or his property)
REMOTENESS OF HARM AND THE “THIN SKULL” RULE
+ If any harm is foreseeable to the defendant, the defendant is liable for any harm that occurs
* “Thin Skull” rule - the defendant is liable for whatever degree of harm his actions cause the plaintiff
whether or not they could see the degree of harm
PROVING NEGLIGENCE: A REVIEW
+ Plaintiff’s objectives – prove a wrongful act (duty of care and breach thereof), causation and harm
+ Defendant’s objectives – refute the plaintiff’s evidence of the three elements and prove a specific
defence
* Balance of probabilities – civil standard of proof; 51% change that the facts are true
↓ 13 – Defences, Limits on Liability and Remedies
2014-07-XX
DEFENCES TO NEGLIGENCE
LIMITATION PERIODS
+ Barred by statute unless the discoverability rule requires otherwise
VOLUNTARY ASSUMPTION OF RISK
* Volenti non fit injuria (“no harm is done to someone who is willing”) – true defence; negates the
defendant’s liability based on the plaintiff’s understanding and acceptance of the risks
+ Elements required:
- [1] the plaintiff understood and accepted (either expressly or impliedly) the virtually certain
risk of injury that was involved in the activity
- [2] both plaintiff and defendant understood that the defendant assumed no responsibility to
take due care for the safety of the plaintiff, and the plaintiff did not expect the defendant to
assume that responsibility
- [3] the plaintiff must have accepted not only the physical risks of the activity but also the legal
risks
ILLEGALITY
* Ex turpi causa non oritur action (“ an action does not arise out of a shameful cause”) – true defence;
eliminates the defendant’s liability based on the action’s illegality
+ The plaintiff will not be permitted to profit from an illegal act or to be reimbursed for the payment of a
criminal penalty
CONTRIBUTORY NEGLIGENCE
* partial defence; reduces the defendant’s liability on the basis of the plaintiff’s own negligence
+ Ontario Negligence Act, R.S.O. 1990 c. N.1 – where there is contributory negligence, the damages will
be apportioned (* based on the contribution of each negligent party) among all negligent parties
+ Must prove that the plaintiff was negligent; the plaintiff has a duty to their own safety
APPORTIONING LIABILITY AMONG MULTIPLE TORTFEASORS
+ Liability usually discussed in terms of percentage
* Joint and several liability – the principle that all tortfeasors are collectively and individually liable for the
plaintiff’s loss; a single tortfeasor can pay for all harm but may sue other tortfeasors for their portion
REMEDIES
PURPOSES OF TORT REMEDIES
+ Compensation; denunciation (* formal or public expression of disapproval of an act or omission) of the
wrongful act; deterrence (* a sanction imposed by the court upon a defendant designed to reduce the
likelihood to reoffend); punishment
COMPENSATORY REMEDIES
* Special remedies – damages that are known and described at the time of trial (~ repair costs; medical
bills; law income for injury)
* General damages – estimated damages unsupported by evidence of value; compensation for the
unknown; (~ pain and suffering, loss of quality of life, loss of unmeasurable income, loss of life
expectancy, loss of business reputation)
* Punitive damages – awarded by the court for purposes beyond compensation; requires flagrantly
malicious conduct (~ denunciation; deterrence)
* Aggravated damages – awarded where the defendant’s flagrant actions cause severe harm; where the
harm is more severe than it would have been otherwise
MAJOR PERSONAL INJURY CLAIMS
+ The defendant may be required to pay massive damages designed to compensate the plaintiff for
losses that extend until death; also accounts for interest and inflation
FATAL ACCIDENTS
+ Ontario Trustee Act, R.S.O. 1990, c. T.23
+ If the plaintiff dies, his/her dependants or estate becomes the appellant
PREVENTIVE REMEDIES
* Injunctions – a court order intended to prevent future harm, enjoining a defendant to cease an activity
or not to do it at all; the plaintiff must prove damage is irreversible or could be greatly reduced
* Declaratory Orders – an order “declaring” with the force of the law, a certain fact; states that a certain
person has a certain legal right
* Ex Parte Orders (“Without the defendant”) – in the case of emergencies; orders may be granted to
prevent potential harm
↓ 14 – Special Classes of Liability
2014-08-XX
OCCUPIER’S LIABILITY
* the duty of care that those who occupy real property owe to people who visit or trespass
+ Governed by statute
EVOLVING VIEWS ABOUT ENTRANTS’ RIGHTS
+ Modern Canada – our rights to protect our property are subordinate to our duty to promote safety
THE OLD SYSTEM
+ Common law
- define occupier
- classify entrants (to determine their duty of care owed)
- Trespassers – cannot set traps on them
- Licensees – post signs concerning unusual risks
- Invitees – protect from known risks
- Contractual entrants – regular inspection and other significant measures
- impose duties of care on the entrant
OCCUPIERS’ LIABILITY STATUTES
+ Occupiers’ Liability Act, R.S.O. 1990, c. O.2
* Occupier (not the title holder) – a person who is in physical possession of premises or person who has
the responsible for and control over the condition of premises or the activities there carried on, or
control over persons allowed to enter the premises
* Premises – lands and structures, or either of them includes water, ships and vessels, trailers and
portable structures designed for residence, business or shelter, trains, railway cars, vehicles except while
in operation
OCCUPIER’S DUTY OF CARE TO ENTRANTS
+ An occupier’s duty of care concerns not only people but also the property
+ Right to limit liability – occupiers can post signs or request waivers
+ Exception for wrongdoers – the duty of care does not apply in respect of risks willingly assumed by the
person who enters on the premises; a person who is on premises with the intention of committing, or in
the commission of, a criminal act shall be deemed to have willingly assumed all risks
HARD-TO-MONITOR PROPERTY AND BENIGN TRESPASSERS
+ Benign passengers are subject to the same standard of care as burglars particularly if the property is
“hard-to-monitor”
+ Hard to monitor – rural premises that is used for agriculture, vacant or undeveloped, forested or
wilderness, gold courses not open, un-open road, private roads, trails)
* Attractive nuisance – a dangerous condition of property that may arouse the interest of children; the
occupier will be liable for trespassing children
PRODUCT LIABILITY
+ Provides a back-up cause of action where these is no contract between the parties
+ Allows the plaintiff to recover damages for losses that contract law does not cover
DEFINING PRODUCT LIABILITY: SOURCES
* Negligent manufacture – where the finished product is found to have deviated from the intended
design and, as a result, to have harmed the plaintiff
- Standard of care– industry codes; statutory regulation
* Negligent distribution – something goes wrong in the distribution process and harm results
- Standard of care– what happens when things don’t go wrong
* Negligent design – when something about the way a product is conceived or designed makes it
dangerous to the end user, and the designer knew or ought to have known that this danger existed, or
else failed to sufficiently research the product’s safety before bringing it to market
- Standard of care– what happens when things don’t go wrong
PROFESSIONAL LIABILITY AND MALPRACTICE
A CLAIM IN CONTRACT OR IN TORT?
+ Customer can sue in contract (easier to win) or under the doctrine of professional liability (greater
damages)
THE STANDARD OF CARE FOR PROFESSIONALS
+ Standard of care – a reasonably careful and competent practitioner practising in similar circumstances;
whatever is the general or accepted practice
+ Sources – professional codes of conduct; regulatory body guidelines; legislation and regulations
MEDICAL NEGLIGENCE
+ Negligence – when a patient consents to treatment but the treatment is given incompetently
+ Battery (intentional tort) – when a patient does not consent to the treatment
* Informed consent – a legally capable patient’s consent to a specific medical treatment, in which the
patient is informed by the practitioner of the nature and the purpose of treatment, its risks and benefits,
and the risks of not proceeding with it
+ Simple consent is not sufficient; informed consent is required
+ Defence of therapeutic privilege – the patient was not in a position to communicate his/her best
interests, but the physician made a decision about what those best interests were and proceeded
LEGAL MALPRACTICE
+ The plaintiff must show harm caused by the lawyer (~ damages lost in a case)
+ Would the case have been won if the lawyer was competent
NEGLIGENT MISREPRESENTATION
* a careless representation made by a defendant while having no reasonable basis to believe it to be
true
+ Elements required:
- there must have been a duty of care based on a special relationship between the parties; the
advice given must have been untrue, misleading, or inaccurate; the adviser must have been
negligent; the advisee must reasonable have relied on the advice; and the advice must have
resulted in a financial loss
STRICT LIABILITY
* Liability that is imposed even though no negligence or intentional tort occurred
THE RULE IN RYLANDS v FLETCHER
+ A textile mill floods a mine shaft
+ If a person makes unnatural use of land, and that use causes harm to another, then liability will follow
MODERN APPLICATION
+ Elements required:
- [1] the defendant brought something capable of causing harm on his/her land
- [2] the defendant made use of the thing for his/her own profit or benefit; and
- [3] the use of the thing, in addition to being dangerous, was unusual or non-natural
- [4] the thing usually needs to have, through unnatural and hazardous use, escaped on
neighbouring land
DEFENCES TO STRICT LIABILITY
+ If the plaintiff consented, the defendant cannot be liable
+ If the plaintiff is caused the escape, strict liability is foregone (# unless contributory negligence)
+ If the escape was an act of God
+ Defence of statutory authority (if the statute regulates the dangerous activity)
VICARIOUS LIABILITY
* makes on person liable for the wrongful act of another person
+ Not automatic
AGENCY RELATIONSHIP
+ An agent does something at the request and for the benefit of another person, the principal; the
principal is made to pay for the wrongdoing of the agent
BASIS FOR VICARIOUS LIABILITY
+ Was the wrongdoer really an agent?; was the agent an independent contractor or an employee?; If the
agent was an employee, was the wrongful act done in the course of employment?
CASES
Donoghue v. Stevenson, [1032] All E.R. Rep. 1, [1932] A.C. 562 (U.K.H.L)
+ Established the theoretical basis for negligence
+ Friend bought a woman a ginger beer; woman finds a snail in it and sues for “nervous shock”
+ No privity of contract – the friend bought it
+ The manufacturer could foresee harm to a person other than the purchaser, the manufacturer could
be liable to that harm based on having foreseen it
Anns v. Merton, London Borough Council, London Borough Council, [1978] A.C. 728
+ Combings proximity and foreseeability; adds a “public-policy” test
+ A block of townhouses collapsed because of structural deficiency; the town council had the power to
inspect the foundations but was not required to, and so they did not
+ [1] there must be a sufficient relationship of proximity based upon foreseeability; and [2] there must
not be “any considerations which ought to negative, or to reduce or limit the scope of the duty or the
class of person to whom it is owed or the damages to which a breach of it may give rise”
+ Forcing council to change its policy would be contrary to public policy and exceed the council’s
capacity
+ Ruling against the council would counter the equitable principle “he who profits should pay”
+ Later overruled
Childs v. Desormeaux (SCC), 2006 SCC 18
+ The host held a BYOB party; the host served little alcohol but guests brought their own; a guest left the
party and crashed his vehicle
+ SCC rules the host is not liable; the decision to drive and consume alcohol are person and it would be
against public policy to demand all hosts to inspect guests
# A commercial host is liable for their patrons (# equitable)
Edwards v. Law Society of Upper Canada, 2001 SCC 80 (CanLII)
+ Adds a relationship “threshold” step
+ Edwards Test - Does the relationship fall within one of the recognized categories of duty of care? If not
are the parties proximate that the harm would be foreseeable? Are there public policy reasons not to
impose a duty of care in this novel situation?
+ Automatic duty of care relationships: ~ driver and fellow drivers; parent and child; employer and
employee; professional and client; neighbours
+ Selling agent encouraged the appellants to purchase goal and to pay funds to a trust account but no
mines existed and no gold was ever produced; the Law Society had a duty to ensure the solicitor
operated his trust account according to the regulations of the Society; case dismissed (no duty of care)
Saccone v. Fandrakis, 2002 BCSC 73 (CanLII)
# Case turned on “But-for(if not for)” test
+ Leaving a movie, Saccone heard a noise and saw his van pushed into a snowbank and a white mustang
pulling away; Saccone pursued and injured his knee when jumping; Fandrakis was not fleeing, merely
moving out of the way; Saccone argues for the “rescuer” doctrine
+ Court finds Fandrakis not liable because the accident was not an emergency; Saccone was not a
rescuer; Frandrakis’s collision was not the cause in fact of Saccone’s knee injury
Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. Ct. App. 1928)
# Cause in law
+ Plaintiff standing near railroad tracks next to a large and heavy commercial weigh scales; a railway
guard boosted passenger onto a departing train causing him to drop explosives which knocked the
scales therein injuring the plaintiff; plaintiff sues the rail employee
+ Court rules that the employee was the cause in fact but not the cause in law because the
consequences of the railway guard’s actions were not foreseeable to him
Athey v. Leonati, (1996), 140 D.L.R. (4th) 235
# Complex causation – applied to each defendant; #Thin Skull
+ Athey suffered back injuries in two successive car acidents and had a disc herniation during exercise; a
pre-existing condition did not cause the injury (only made it worse)
+ When preexisting conditions would not have caused the injury but for the defendant's actions, then it
is the "thin skull" rule that applies and the defendant will be totally liable for the plaintiff's losses.
+ [1] Apply the “but for” test
+ [2] Address multiple causes
- the defendants need not be the only cause for liability
- where another cause was not a tort the defendant bears the full responsibility
- where another defendant contributed to the harm, liability should be divided
- where the plaintiff’s actions are one of the causes, apply the principles of contributory
negligence
+ [3] Each defendant is liable only for the injuries cause by the defendant
+ [4] Apply the “thin skull” rule
+ [5] The defendant is liable only for the injuries and losses that the plaintiff suffered as a result of the
defendants negligence – not cumulative harm from the past
Jordan House v. Menow (SCC)
# Commercial host liability
+ A bar owner has a duty to reasonably ensure their intoxicated patrons are able to make it home safely
+ Menow was banned from the Jordan Hosue Hotel for drunken behaviour; was allowed back; drank for
three hours until he was ejected again; was hit by a car and claimed the hotel violated their duty of care
+ The hotel assisted his intoxication
Mustapha v. Culligan of Canada Ltd. (SCC)
+ In order to make a successful claim of recover for psychiatric harm you must prove all the necessary
elements of any negligence claim, however, the damage will be seen as too remote if the breach would
not have resulted in the psychiatric harm of a reasonable person
+ If the defendant knew that the plaintiff had a particular vulnerability to psychiatric harm before the
breach, then psychiatric harm is reasonably foreseeable
+ Mustapha had purchased bottled water from Culligan for 15 years. He witnessed a dead fly in one of
the unopened bottles during delivery. This image severely scarred him, causing significant psychological
harm. He sued for the psychiatric harm claiming he could no longer drink, shower, or have sex as a
result. He was successful at trial, but this was overturned by the Court of Appeal stating that the injury
was not reasonably foreseeable.
Hunt v. Sutton Group (Ont. Sup. Ct)
+ Linda Hunt was employed as a secretary for Sutton Group Incentive Realty Inc. in Barrie, Ontario. After
attending an office Christmas party where alcohol consumption from an open bar was not monitored,
she went to a pub, and then she drove home. On the way home, she was seriously injured in a motor
vehicle accident. Hunt sued Sutton and the pub for negligence, alleging that the defendants owed her a
duty of care in the circumstances. At the jury trial, the trial judge granted Hunt's application that the jury
be discharged because of complexity and public comments. The trial judge found Hunt 75% responsible;
the pub the and Sutton jointly and severally liable for 25% Sutton appealed on the following grounds: (1)
the trial judge erred in discharging the jury; (2) Sutton was not guilty of any negligence which was the
proximate cause of the accident; and (3) the trial judge erred in permitting plaintiff's counsel to crossexamine two lay witnesses with respect to the standard of care of commercial hosts. The court agreed
with Sutton.
Crocker v. Sundance (SCC)
+ Crocker and a friend entered a tubing competition, and signed waivers while intoxicated. After
drinking heavily and winning the first heat, they drank more. The owner of the resort asked rocker if he
was ok to compete and Crocker said yes. While at the top, Crocker was visibly drunk (inner tube fell,
etc). Manager of the resort suggested that they shouldn’t continue in the competition. Crocker and his
friend competed anyway and hit a mogul on the way down. Crocker injured his neck and was rendered
quadriplegic. Crocker sued and in the original trial Sundance was held liable for 75% of damages
suffered. Crocker was found contributory negligent.
+ Sundance must accept the responsibility, as the promoter of a dangerous sport, for taking all
reasonable steps from allowing an intoxicated person from participating.
Snushall v. Fulsang (Ont. CA)
+ Carol Snushall, a passenger in the accident vehicle, sustained closed head and back injuries. Neither
Snushall nor her boyfriend, who was the driver, ever used the shoulder belt. The applicable regulations
require the wearing of a seat belt, but do not specify that a shoulder belt is mandatory
+ The allocation of responsibility between a plaintiff and a defendant should not be based on causation
but rather must be based on blameworthiness. Contributory negligence, solely for failing to wear a
seatbelt, should not exceed 25%