1
INTRODUCTION TO TORTS .................................................................................................................................................................3
DEFINING TORTS ........................................................................................................................................................................................ 3
TRESPASS AND CASE: A BRIEF REVIEW OF THE CASE LAW ................................................................................................................................... 3
EPSTEIN, “INTENTIONAL HARMS” .................................................................................................................................................................. 4
DESCRIPTIVE ACCOUNT OF AIMS OF TORT LAW ................................................................................................................................................ 4
1. Compensation ............................................................................................................................................................................... 4
2. Punishment.................................................................................................................................................................................... 5
3. Deterrence ..................................................................................................................................................................................... 5
4. Education: Promoting model behaviour for society at large ......................................................................................................... 5
5. Appeasement and Vindication ...................................................................................................................................................... 5
NORMATIVE ACCOUNT OF AIMS OF TORT LAW ................................................................................................................................................ 5
BASIC PRINCIPLES OF LIABILITY ...................................................................................................................................................................... 5
BASES FOR IMPOSING LIABILITY IN TORT.......................................................................................................................................................... 7
Absolute Liability ............................................................................................................................................................................... 7
Strict Liability ..................................................................................................................................................................................... 7
Negligence ......................................................................................................................................................................................... 7
Intention ............................................................................................................................................................................................ 7
No Liability......................................................................................................................................................................................... 7
COLEMAN, “THEORIES OF TORT LAW”............................................................................................................................................................ 7
TRESPASS TO PERSON .......................................................................................................................................................................8
ASSAULT ................................................................................................................................................................................................... 8
**Holcombe v. Whitaker 1975 ........................................................................................................................................................................... 8
Police v. Greaves [1964] N.Z.L.R. 295 (C.A.) ....................................................................................................................................................... 8
BATTERY ................................................................................................................................................................................................... 9
**Bettel v. Yim (1978) Ont. ................................................................................................................................................................................ 9
SEXUAL BATTERY ........................................................................................................................................................................................ 9
FALSE IMPRISONMENT ............................................................................................................................................................................... 10
**Bird v. Jones (1845), 115 E.R. 668 (Q.B.) ...................................................................................................................................................... 10
**Campbell v. S.S. Kresge Co. (1976), 74 D.L.R. (3d) 717 (N.S.S.C. (T.D.)) ........................................................................................................ 11
Herd v. Weardale Steel, Coal and Coke Co. Ltd. [1915] A.C. 67 (H.L.) .............................................................................................................. 11
MALICIOUS PROSECUTION.......................................................................................................................................................................... 11
**Nelles v. Ontario [1989] 2 S.C.R. 170 ............................................................................................................................................................ 12
INTENTIONAL INFLICTION OF NERVOUS SHOCK ............................................................................................................................................... 12
**Wilkinson v. Downton [1897] 2 Q.B. 57 ....................................................................................................................................................... 12
Radovskis v. Tomm (1957), 9 D.L.R. (2d) 751 (Man. Q.B.) ................................................................................................................................ 12
DISCRIMINATION ...................................................................................................................................................................................... 13
Bhadauria v. Board of Governors of Seneca College of Applied Arts and Technology ..................................................................................... 13
STALKING AND HARASSMENT ...................................................................................................................................................................... 13
TRESPASS TO LAND ......................................................................................................................................................................... 13
Entick v. Carrington (1765) ............................................................................................................................................................................... 15
**Turner v. Thorne (1960) Ont. H.C. ................................................................................................................................................................ 15
Harrison v. Carswell [1976] 2 S.C.R. 200 .......................................................................................................................................................... 15
INTENTIONAL INTERFERENCE WITH CHATTELS ................................................................................................................................ 15
1. TRESPASS TO CHATTELS.......................................................................................................................................................................... 16
**Fouldes v. Willoughby (1841), 151 ER 1153 (Ex. Ct.) .................................................................................................................................... 16
2. DETINUE ............................................................................................................................................................................................. 16
**Aitken v. Gardiner (1956), 4 DLR (2d) 119 (Ont. H.C.) .................................................................................................................................. 16
3. CONVERSION ....................................................................................................................................................................................... 17
**Mackenzie v. Scotia Lumber Co. (1913), 11 DLR 729 (NSSC) ........................................................................................................................ 17
4. ACTION ON THE CASE TO PROTECT A REVERSIONARY INTEREST ........................................................................................................................ 17
2
373409 Alberta Ltd. (Receiver of) v. Bank of Montreal (2002), SCC ................................................................................................................. 17
Gen & Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd., [1963] 1 WLR 644 (CA) ........................................................................................ 18
INTENTIONAL INTERFERENCE WITH ECONOMIC INTERESTS ............................................................................................................ 18
1. DECEIT (FRAUD) ................................................................................................................................................................................... 18
**Derry v. Peek (1889), 14 AC 337 (HL) ........................................................................................................................................................... 18
2. PASSING OFF ....................................................................................................................................................................................... 19
**Ciba-Geigy Canada Ltd v. Apotex Inc. (1992), 95 DLR (4th) 385 (SCC) .......................................................................................................... 19
3. INTIMIDATION ...................................................................................................................................................................................... 19
Central Can. Potash v Govt. of Sask. (1979), 88 DLR (3d) 609 (SCC)................................................................................................................. 19
4. CONSPIRACY ........................................................................................................................................................................................ 19
Posluns v Toronto Stock Exchange (1964), 46 DLR (2d) 210 (Ont. H.C.) ........................................................................................................... 20
5. OTHER BUSINESS TORTS......................................................................................................................................................................... 20
Reach MD Inc. v Pharmaceutical Manufacturers Assn. of Canada (2003) Ont. C.A. ........................................................................................ 21
DEFENCES ........................................................................................................................................................................................ 21
DEFENCE OF CONSENT ............................................................................................................................................................................... 21
**Wright v McLean (1956) ............................................................................................................................................................................... 21
**Agar v Canning (1965) .................................................................................................................................................................................. 22
Malette v Shulman (1987), Ont. C.A................................................................................................................................................................. 22
C. v. Wren (1986) ............................................................................................................................................................................................. 22
Factors that Eliminate Consent ....................................................................................................................................................... 22
Latter v Braddell (1880).................................................................................................................................................................................... 23
Marshall v Curry [1933] .................................................................................................................................................................................... 23
SELF-DEFENCE ......................................................................................................................................................................................... 23
**Wackett v Calder (1965), (BCCA) .................................................................................................................................................................. 24
DEFENCE OF THIRD PARTIES ....................................................................................................................................................................... 24
**Gambriell v. Caparelli (1974) Ont. Co. Ct. .................................................................................................................................................... 24
DEFENCE OF DISCIPLINE ............................................................................................................................................................................. 25
R v. Dupperon (1984), (Sask. C. A.) ................................................................................................................................................................... 25
DEFENCE OF LEGAL AUTHORITY ................................................................................................................................................................... 25
Koechlin v. Waugh and Hamilton (1957), Ont. C.A. ......................................................................................................................................... 25
DEFENCE OF REAL PROPERTY ...................................................................................................................................................................... 26
Macdonald v. Hees (1974) NSSC ...................................................................................................................................................................... 26
Bird v. Holbrook (1828) CP ............................................................................................................................................................................... 26
DEFENCE AND RECAPTION OF CHATTELS........................................................................................................................................................ 26
DEFENCE OF PUBLIC AND PRIVATE NECESSITY ................................................................................................................................................ 26
Surocco v. Geary, Cal. S.C. 1853 ....................................................................................................................................................................... 26
Vincent v. Lake Erie TPT. Co., Minn. S.C. 1910 ................................................................................................................................................. 27
REMEDIES ........................................................................................................................................................................................ 27
DAMAGES ............................................................................................................................................................................................... 27
Nominal Damages ........................................................................................................................................................................... 27
Compensatory Damages ................................................................................................................................................................. 27
Aggravated Damages...................................................................................................................................................................... 27
Punitive Damages............................................................................................................................................................................ 28
Disgorgement Damages .................................................................................................................................................................. 28
INJUNCTION............................................................................................................................................................................................. 28
DECLARATION .......................................................................................................................................................................................... 28
ORDER OF SPECIFIC RESTITUTION................................................................................................................................................................. 28
DEFAMATION .................................................................................................................................................................................. 29
**Sim v Stretch [1936] ..................................................................................................................................................................................... 29
DEFENCE OF JUSTIFICATION ........................................................................................................................................................................ 30
Williams v Reason ............................................................................................................................................................................................ 30
3
DEFENCE OF ABSOLUTE PRIVILEGE ............................................................................................................................................................... 30
Dowson v The Queen (1981) FCA ..................................................................................................................................................................... 30
Hung v Gardiner (2003) BCCA .......................................................................................................................................................................... 30
DEFENCE OF QUALIFIED PRIVILEGE ............................................................................................................................................................... 31
Hill v Church of Scientology of Toronto............................................................................................................................................................ 31
DEFENCE OF FAIR COMMENT ...................................................................................................................................................................... 31
**WIC Radio Ltd v Simpson [2008] SCC ........................................................................................................................................................... 32
DEFENCE OF RESPONSIBLE COMMUNICATION ON MATTERS OF PUBLIC INTEREST .................................................................................................. 32
**Grant v Torstar Corp [2009] SCC .................................................................................................................................................................. 32
DEFENCE OF CONSENT ............................................................................................................................................................................... 33
Jones v Brooks (1974) Sask. QB ........................................................................................................................................................................ 33
THEORETICAL CRITICISM OF TORT LAW ........................................................................................................................................... 33
DETERRENCE ........................................................................................................................................................................................... 33
COMPENSATION ....................................................................................................................................................................................... 33
THEORIES OF TORT LAW BASED ON CONCEPTS OF JUSTICE................................................................................................................................ 34
SCHWARTZ, “FEMINIST APPROACHES TO TORT LAW” ...................................................................................................................................... 34
PRIEL, “A PUBLIC ROLE FOR THE INTENTIONAL TORTS” .................................................................................................................................... 34
Introduction to Torts
Defining Torts
 Torts: Area of law concerned with remedying individuals for the wrongs committed by another through a breach
of the obligations of legal interpersonal relationships
Tort Law
Criminal Law
Private wrongs between individuals
Public wrongs (Crown represents the people)
Remedies harm, returns P to original state
Deterrence, retributivism, restitution
Proves on a Balance of Probabilities (BoP)
Finds D’s guilt beyond a reasonable doubt (BARD)
B brings action after A causes him loss
R brings prosecution; B = repository of evidence
Can find justice even without prosecution
Achieving justice limited to Crown’s decision
 Retributivism (punishing for the harm done) and Restitution (reasserting rights of the victim)
Tort Law
Contract Law (K)
Involuntary involvement
Voluntary involvement
Obligations from circumstances, duty of care
Contractual obligations imposed by parties on self
Obligations can apply to all society
Privity: applicable only to parties in the agreement
Backward looking, imposed after the harm
Forward looking, meant to predict the future
 There are some implied terms in Contracts that are similar to Torts obligations on behaviour
 Cannot enjoy double recovery if several paths for lawsuits are possible
 Case-based Torts progresses incrementally; doesn’t want a new decision to overstep the mark
 Nominate actions: those that acquired specific names (e.g. battery, assault); innominate if not
 Early tort law focused on directly vs. indirectly caused injuries; after 1850’s, focus shifted to fault (due to either
intent or negligence) as a prerequisite for determining liability in most tort areas
Trespass and Case: A Brief Review of the Case Law
 Actions on the case are taken for indirect injuries than wilful invasion of another’s property/person (trespass)
 Scott v Shepherd: He who does the first wrong is answerable for all the consequential damages. Intermediates
acted reasonably and out of necessity imposed on them by D, so set off a chain reaction
o Dissent: Stone that hit window analogy: Damage is done once it hit window, but rock is full of potential
for mischief; if it’s picked up and used for further damage, trespass lies on the new thrower
4



Leame v Bray: Since P got injured as a direct result of what D did (wilfully guiding the horse forward, not wilfully
causing harm), P’s subject to an action of trespass.
Williams v Holland: Gave P choice to bring action in trespass or on case since it was a direct, negligent act
Holmes v Mather: If act isn’t wrongful, due to intent, or due to negligence (i.e. it was full accident), no action is
maintainable. If act is wrongful, trespass is proper form of action (since it’s either wilful or due to negligence)
Epstein, “Intentional Harms”
 “Deliberate harms” more than just “specific end desired by person inflicting harm”, extends to:
1. Person might know that his actions cause harm, even though he doesn’t wish for them to occur
2. Person knows that his actions might cause harm, but is either reckless or indifferent about it
 Created a set of rules for accommodating both accidental and intentional harms into single theory, allowing
“intent to harm” to defeat any allegations by D that it was merely accidental
 Wanted to develop a reformative theory of torts that takes into account individual responsibility
 These rounds refer to an analytical framework that he developed for accident cases; his aim is to give a coherent
account of tort law allowing them to approach any case from a single POV
o 1st round: plaintiff establishes prima facie case against defendant (intention to harm no matter)
o 2nd round: defendant provides his Defence; “it was an accident!”
o 3rd round: plaintiff can spring “intent to harm” as trump card
o 4th round: common excuses (e.g. necessity, self-defence, consent)
 Hand formula negligence test: liability depends on whether B (burden of adequate precautions) is less than L x P
(gravity of harm x probability of it occurring)
o If B < L x P, then defendant is liable if he doesn’t taken those precautions
o If B > L x P, then it’s out of defendant’s hands
 Conclusions: tort law can’t be just based on utilitarian measures; it must recognize its irreducible ethical base
 Boils down to: 1. Is there harm? And 2. Is there causation for that harm? If so, then liable; if you want to argue
against that, bring it up in the structured framework
 Simmonds’ commentary: Private law (including tort) is composed of discrete transactions, not collective
projects, and thus shouldn’t be transformed in the direction of public regulatory goals
 EAL (economic analysis of law), citing Ronald Coase, believes that causality is fully reciprocal in legal disputes:
choice between two harms, which boils down to what would you rather have more of (e.g. if A’s cattle tramples
B’s crops, should harm be done to A to stop his cattle’s wandering or to B to destroy his crops)
Descriptive Account of Aims of Tort Law
 Descriptive account: the aims that torts pursues and what it does in practice
1. Compensation
 Generally thought of as the primary function of tort law
 Minimizes disruptions accompanying an injury, to restore plaintiff back to where he was before
o Compensation tailored to P’s particular loss, and seeks full indemnity for those losses
 Coleman: Tort law as corrective justice, whose principle is based on a system of duties:
o First-order: Duty not to injure; establishes norm of conduct
o Second-order: Duty of repair when first-order duty breached
 Compensation when repair is not an option
o Seeks to correct improper deviations from the existing distribution of wealth, but assumes this
distribution was fair to start with (Bill Gates analogy)
 Focus on compensation ignores fault, protects victim’s right not to be injured
 Takes away the urge to “take matters into your own hands” to get your own justice
 P will only recover damages if tortfeasor (D) has enough assets/insurance to pay
5


Moral luck big problem in torts; sometimes people cause harm because they’re just unlucky
Problem of no-fault compensation in torts: no accountability so people more willing to take risks
2. Punishment
 Crim justice system: most morally blameworthy conduct that would warrant punishment in torts  federal or
provincial offence
 Tort law is like a criminal sanction without the higher standard of proof, not interested in casting moral
judgment on an offender’s character
 Can provide some emotional compensation
 Sanction on the wrongdoer and express society’s disapproval of his conduct
3. Deterrence
 Specific deterrence: aims to change the future behaviour of the defendant
 General deterrence: aims to change behaviour of a class of potential defendants
 Market deterrence: aims to change behaviour of the producer of goods to prevent future harms
o “Optimum” number of accidents: where benefits of product > cost of accident it could cause, so that
accident costs are allocated throughout the market
o Contentious about using tort law to redistribute wealth
 Torts has greater impact on premeditated conduct, but most cases are now of negligence
 Might not be a factor for offenders with greater means
 Assumes that people behave rationally and will consider the consequences of their actions, and that they will
heed deterrence of behaviour; not always the case (e.g. offence done under influence of mental issues,
intoxication, extreme emotion)
4. Education: Promoting model behaviour for society at large
5. Appeasement and Vindication
Normative Account of Aims of Tort Law
 Normative account: the aims that torts could pursue and what it should do in practice
 Distributive justice: critiques corrective justice for looking at nature of damage instead of morality of the
parties, and aims to redistribute wealth
 Retributive theory: liability on blameworthy D to penalize them for their moral fault
 Economic theory: impose liability to spur rational economic behaviour (i.e. minimize cost of accidents and costs
to avoid them) and efficient allocation of resources
Basic Principles of Liability
Intentional Torts
Negligence
Long history, so static
Fairly modern tort, more fluid
Defined by narrow rigid rules
Governed by general and discretionary principles
Conservative, orthodox
Dynamic, reflects current public attitudes/policies
 Example: Imagine A is in a forest and, thinking that he is completely alone, decides to use a tin can for rifle
practice. Shoots at the can and hits it. The bullet, however, ricochets off the can and hits B, who is walking
through the forest but out of sight of A.
o A intended to hit the can, but did not intend to hit B (unintended effect)
o Intent: A intended X when he wanted X to result from his actions.
 Basic intent: actor’s desire to do that act; “I’ve intended to do a thing”
 Specific intent: actor’s desire to bring about the results/consequences of his act; “I’ve intended to maim you
with my attack.”
 Volition: If D exercised control over his physical actions by his conscious mind
o E.g. sleepwalking, epileptic fits, some disorders are involuntary
6











o Strict liability just requires a voluntary act
o Most other liabilities require that D intended the consequences of the involuntary act
Smith v Stone: Judge ruled that the driver of the cattle carrying D is committing the trespass onto P’s land, not
the owner (D himself) who did it involuntarily
Reasonable person: with an objective standpoint; helps decide cases of intent and negligence
o Sometimes, people with a particular knowledge set have a standard of a reasonable person in their
profession (e.g. surgeons held to standard of a reasonable surgeon)
o Some of these other factors could be age (e.g. cases of incapacity), gender (e.g. domestic violence),
personal history (e.g. sexual abuse cases)
Imputed (constructive) intent: If D did not desire the consequences to occur, but they were substantially
certain/practically unavoidable to result from his act (as judged by a reasonable person), then he’s treated AS IF
he intended the result
o E.g. If A places a bomb in an outer office with intent to injure his boss, and the bomb goes off and injures
other coworkers, then intent is imputed to him for their injuries
o Justified for the sake of public protection, even though society holds people responsible for things they
may not have literally intended
Transferred intent: meant to commit an intentional tort against one party, but unintentionally commits an
intentional tort against the plaintiff (both can sue for assault)
o Or intends to commit one tort against P but unintentionally commits another
o Justified on the grounds that D’s conduct is culpable and caused harm, and P is innocent
Motive: Reason for committing the act, or reason for wanting the consequence of that act
o Example: friend moving your car for you vs. practical joker hiding it vs. thief stealing it all have the intent
to move your car, but their motives differ
o Generally not an element of the cause of action, since occurrence > reasoning
Ashwood/Duff example: Company sent D to plant a bomb on a plane for the motive of collecting the cargo
insurance; if it goes off, it will kill everyone on board. Is there intent to kill?
o Duff: D could succeed without deaths, so no intent to kill; separating motive and intent
o Ashwood: it’s almost certain that people will die if the defendant succeeds
Exceptions for determining volition and intent in children and the mentally disabled (capacity)
o Rule: D is not liable in tort if he did not understand the nature and quality of his act.
o Supervisors (e.g. parents, teachers, nurses) cannot be held vicariously liable for children/MC people’s
actions, unless they were party to the offender’s wrong or negligent in supervising/controlling their
behaviour
Duress (under force) is one factor courts may consider in assessing damages, not a defence in of itself, nor will it
negate volition/intent
o Gilbert v Stone: D pleaded that he committed the trespass to land because 12 armed men threatened to
wound him if he didn’t; Since P couldn’t get satisfaction from the threatening party, defendant is liable
In self-defence, there must be proportionality; the response must not be greater than the act of aggression (i.e.
you can’t shoot someone who tries to steal your TV)
Self-defence due to provocation requires evidence of annoyance, uncontrolled passion, or lack of self-control to
succeed
o Miska v Sivec: P threatened D with weapons and chased him. D shot P.
 The previous bad blood between the parties wasn’t an immediate provocative act to stir up P’s
passion, so there is no evidence of provocation.
Mistake: when D intends the consequence of his act, but those consequences have a different factual/legal
significance than that contemplated; generally a voluntary act without an intention
7
o

Hodgkinson v Martin: D had bodily removed P from D’s office under the mistaken belief that he was
justified in doing so to protect the interests of the Crown, and not to exclude P [the custodian] from
those premises
o Since it was a mistake, judge ruled that P would receive nominal damages from D
o Ranson v Kitner: D shot P’s dog after mistaking it for a wolf on a wolf hunt; D was held him liable for the
value of the dog, notwithstanding that he was acting in good faith
Accident: any situation in which D unintentionally and without negligence injured P; can’t be held liable for
accident; absence of intent distinguishes it from mistake
Bases for Imposing Liability in Tort
Absolute Liability
 Status offences
 Defendant did something proscribed (illegal), which caused the plaintiff to suffer loss
 Intent and negligence don’t matter; generally no act
 Not a useful modern model
Strict Liability
 No intent or negligence applicable or required, but an obligation was breached
 But if Ps loss was due to a third party, an unforeseeable act of God, or the inevitable result of D doing something
legal and authorized, then no damages awarded
 Just need to prove that the defect caused the harm, that the act happened
 Vicarious liability: like if an employer is legally responsible for torts committed by employees
 Coleman: Even though D would bear costs regardless of fault, it’s still rational to take precautions that <
expected cost
Negligence
 D failed to take reasonable care to prevent the thing that causes the harm
 Burden of proof on P to prove lack of this care
Intention
 P must prove actual subjective intent of the defendant
 Burden of proof on D to disprove intent and negligence
No Liability
 Despite causal connection between action and loss, it could be outside of the scope of torts
 Examples: business not to blame for ruining the competition if it acts lawfully; pregnant woman not liable for
injuries her negligence may have caused the baby in utero
Coleman, “Theories of Tort Law”
 Two main types of duties:
o Duty not to injure (in something inherently dangerous; e.g. using dynamite); conduct governed by strict
liability
o Duty not to injure recklessly, negligently, or willfully (in something normal like driving); conduct
governed by fault liability
 Fault liability can be undermined by justification
o When cost of precaution < expected injury: cost-justified precaution  rational  reasonable  taking
this precaution would not be evidence of negligence
o Victim, assuming D took the rational cost-justified precautions, must suffer the losses by himself, just
like the injurer in strict liability
8







Analytical theories  interpret and explain tort; Normative theories  justify or reform tort
Instrumental theories believe tort’s features help explain an overarching purpose: some believe it aims to
allocate costs efficiently, others believe fairly
Non-instrumental theories identify tort’s central concepts as rights, wrongs, and redress
Retributive justice not good for explaining tort law because:
1. “Outcome responsibility”, not moral
2. Tort damages can be repaid by third parties, but not criminal damages
3. Can’t guard against liability for committing a crime (i.e. can’t buy insurance)
Legitimate distribution of resources may not be fully just
Civil recourse theory doesn’t offer guidance on what redress is appropriate for a given situation, so it doesn’t
cover the subtleties of tort law
Issue with moral goal of law: To compel someone to be good doesn’t equal them actually being good; infringes
upon their autonomy
Trespass to Person
Assault
Elements of the tort of assault:
1. Direct (Interference was an immediate result of D’s action)
o But when A tells B he wants to hurt C and B tells C, that isn’t direct
2. Intentional act (Not intent of outcome, just intent to do the action)
o Burden of proof on D to show there was no intent
3. Causing apprehension of (Linear, but-for causation)
o Reasonable apprehension is not fear; it’s understand or perceive
4. Immediate (The threat must be capable of being carried out at once)
5. Harmful or offensive conduct (Physical or psychological)
o Passive conduct can be enough for assault; e.g. roommate sitting with a shotgun on his lap, staring
angrily at you
o Assault: D stage a hijacking for a prank, P being fake-robbed has reasonable fear of getting hurt
o Conditional threats or threats of future violence usually don’t count
o **R v. Ireland: No contact but silence is a direct, intentional act and psychological injury is harm.
**Holcombe v. Whitaker 1975
Facts
P gave D a conditional threat. When she filed a suit, he banged on her door and repeated the threat.
Issue
Is a conditional or a future threat enough to constitute an assault?
Discussion
- D: only conditional threat, no overt action; no assault if there’s no immediate danger
and Analysis - Condition placed on P was in no way a legal obligation she had to follow and thus couldn’t explain
away his threat to harm her
- Words may give meaning to an act and, when taken together, may constitute an assault
Ratio
D’s violent actions were sufficient to arouse P’s apprehension of harm. AUTHORITY for Assault.
Holding
D’s words and not-violent act were sufficient to constitute an assault.
Police v. Greaves [1964] N.Z.L.R. 295 (C.A.)
Facts
D was drunk and scared his neighbours. He threatened to stab police if they didn’t leave his property.
Issue
Is a conditional threat enough to constitute an assault?
9
Discussion
- P: Police were present lawfully and their entry was barred, and then legitimate threats were made
and Analysis - P: No difference between threats that require immediate action to avoid it and those that do not
Ratio
Conditional threats are not assault.
Battery
Elements of the tort of battery:
1. Physical interference (Some sort of contact or physical interaction with P, grabbing their belongings/clothes)
o Examples: kissing someone, spitting on them, cutting their hair, blood transfusion without consent
o Awareness of the non-consented contact is not necessary (Malette v Shulman)
2. Directness (See above)
o Things like traps or deliberately poisoning someone’s food is not battery
3. Intention (To bring about physical contact, not harm or to be socially offensive)
o Burden of proof is on D to establish absence of intent once directness has been established
4. Harm or offence (As considered by a reasonable person, includes any harm to dignity or bodily integrity)
 In delayed childhood sexual abuse claims, limitation periods were extended until victims were psychologically
able to understand and deal with the abuse and its consequences
 Wilson v. Pringle [1986]: Battery involved an intentional touching with hostility, but not intent to cause harm.
**Bettel v. Yim (1978) Ont.
Facts
P and friends mess about and set fire to D’s store. D grabbed P with both hands and shook him. In
the tussle, D’s head accidentally struck P’s nose. D helped him to his feet and called the police.
Issue
Should an intentional wrongdoer be liable only for the reasonably foreseeable consequences of his
action, or for all possible consequences?
Discussion
- D Intended to bring about offensive contact by grabbing and shaking P (defendant’s own evidence);
and Analysis crossed the moral threshold; Separation, however, between this and the purely accidental headbutt
- P: not necessary to intend to cause bodily harm; even frightening is enough
Ratio
The intentional grabbing and shaking set off a chain of events that led to all ensuing harms, even
though the injury was not intended. AUTHORITY for Battery.
Holding
For all possible consequences. D must bear responsibility for injury suffered by P.
Sexual Battery
 No freestanding tort of sexual battery in Canada, so it gets traditional battery treatment
 Burden of determining consent placed on D instead of on P (Scalera, McLachlin, J.)
o Wrong to require P to prove lack of consent, so determination is objective (would the reasonable person
assume there was consent?) instead of subjective (if D believed there was consent, then there was)
o McLachlin explicitly recognized the power imbalance in sexual abuse and the inherent wrong to victims’
personal autonomy and dignity; not just sexual, but acts of domination/control
o Rejected the idea that an honest, mistaken (but unreasonable) belief could be a defence
 Constructive consent: if it can be determined that the complainant’s conduct and demeanour led to a
reasonable inference of consent to sexual contact; a reasonable person in D’s position acted “as if” P consented
 Problems with the constructive consent approach:
o It is unclear whether D needs to adduce evidence about reasonable efforts to ascertain P’s consent.
o The objective approach means P’s perception of events and experience of sexual violation is irrelevant
provided D can show there is reasonable basis for his belief in her consent.
10
o




It could lead to a situation in which the courts in effect blame the victims for behaving in ways that
induced D into believing consent was present, or for failing to resist in circumstances where the
reasonable person would have protested.
o It is premised on common sense ideas about “normal” or “reasonable” behaviour or responses to
unwanted sexual advances. The “reasonable person” = middle-class, somewhat educated white man
Statutory rape: sex with someone who has “given consent”, but cannot legally give consent
Advantages of suing for sexual battery in tort: P can control the case and choose what evidence is presented,
and it could be therapeutic jurisprudence (getting therapeutic relief from torts litigation to promote healing)
Possible disadvantages: Costs and stress of civil litigation could undermine any therapeutic benefit; High costs
with chance of not receiving full damages; Secondary victimization
o In some cases of domestic violence, the male perpetrator has more financial resources than the female
victim and will spend money to try to drag the trial out as long as possible (maybe for punitive reasons?)
Possible solution raised in Ewanchuk: New tort of sexual battery which mirrors the approach in crim – severely
limits situations where D can use the defences of implied consent or honest and mistaken belief
o Rule: Mistaken belief in consent can only operate to negate the MR for sexual assault if accused can
show he believed the complainant communicated consent to the sexual contact
False Imprisonment
Elements of the tort of false imprisonment:
1. Direct
 Indirect false imprisonment: Roberts v Buster’s; Employee directed police to apprehend P (false
imprisonment), but also gave info to Justice who orders P be held in custody (J’s discretion)
2. Intention to restrain (Proved by P)
3. Complete restraint (Either by barriers/physical means, implicit/explicit threat of force, psychological means, or
implicit/explicit assertion of legal authority)
 Actionable without proof of damage
 The issue of whether imprisonment was lawful or false must be raised by D
 Awareness of the confinement by P is not necessary; based on English case law
 Awareness of possible confinement by D is necessary
 Doesn’t count if you have a reasonable means of escape (aka without injury)
 One can be liable in false imprisonment if one orders another person to restrain someone (“stop that thief!”),
but not if one merely provides information (“I think that man has my wallet”)
 False arrest: subcategory involving restraint imposed by an assertion of legal authority
 Large punitive damages now awarded for false imprisonment cases (e.g Nagy, Beaulieu)
**Bird v. Jones (1845), 115 E.R. 668 (Q.B.)
Facts
P wanted to pass along a public highway. D and his policemen prevented him from it. No threat of
violence, but it was expected the policemen would execute such commands with all necessary force.
Issue
Is obstruction of one’s right to pass along a particular road a case of false imprisonment?
Discussion
- Confusing imprisonment (total restraint of person’s liberty) with loss of freedom/partial obstruction
and Analysis of his will, since this “prison” doesn’t have a clearly defined boundary
- Dissent: D unlawfully obstructed road and hired men to extort money from travellers
Ratio
If P had the option to take another route, there wasn’t true imprisonment.
Holding
Majority supports that it isn’t imprisonment. Jury supports opposite view.
11
**Campbell v. S.S. Kresge Co. (1976), 74 D.L.R. (3d) 717 (N.S.S.C. (T.D.))
Facts
Informant told off-duty cop D that P was seen putting something into her pocket at the store. In the
parking lot, he asked her to come with him into the office to avoid an “embarrassing” scene. When
inside, the informant was gone and P offered to have her belongings searched, so D was satisfied
that she wasn’t shoplifting and let her go. P is suing for the tort of false arrest.
Issue
Is it false arrest if an accused shoplifter is physically detained (without force or contact) by a law
enforcer against her will?
Discussion
- Defence of legal authority was rejected by the court
and Analysis - D was acting as he would to apprehend any shoplifting suspect, but when informant was gone
when he brought P inside, he had less of a basis to apprehend her
Ratio
As a member of the police, D gave P sufficient reason (fear of disrepute, embarrassment,
consequences) to allow herself to be detained, hence false arrest.
Holding
Yes. P is awarded damages of $500.
Herd v. Weardale Steel, Coal and Coke Co. Ltd. [1915] A.C. 67 (H.L.)
Facts
R had prevented A from using the cage to leave the mines because they found him guilty of a breach
of contract in refusing to do work he was ordered to do. A claimed false imprisonment. P/A; D/R.
Issue
Is it false imprisonment if an appellant entered the mine willingly?
Discussion
- Doesn’t matter A’s reason for refusing to work (he thought it dangerous)
and Analysis - No breach of contract since R never refused to bring A up at the ordinary time; just refused to bring
him up when he wanted to
Ratio
Since A walked into the mine of his own free will, he is held to conditions that he had to accept when
he was allowed in.
Holding
It is not false imprisonment.
Malicious Prosecution
Elements of the tort of malicious prosecution to be proved by P:
1. D initiated proceedings against P (Active role in bringing about a prosecution, like giving false report or
withholding exculpatory evidence)
2. Proceedings terminated in P’s favour (Otherwise, conviction = reasonable and probable cause for proceedings)
3. No reasonable/probable cause for the proceedings (P must prove absence of one or both elements)
 Subjective element: D did not actually believe P was guilty
 Objective element: No reasonable person in D’s position would have concluded that P was guilty
4. Malice on the part of D
 Example: In use of office by the AG or a Crown Attorney; includes spite, improper purpose, vengeance
5. P suffered damage (Examples: financial, reputational, constitutional)
 Tension between freedom of citizens from groundless prosecutions and public interest in uninhibited
prosecution of criminal wrongdoing
 Actual Belief?  Yes  Reasonable Belief?  Yes  Tort fails
Actual Belief?  Yes  Reasonable Belief?  No  Element proved
Actual Belief?  No  Reasonable Belief?  No  Element proved
Actual Belief?  No  Reasonable Belief?  Yes  Element proved
Non-actual (i.e. no honest) belief + Unreasonable (i.e. Malice) belief = liable in tort
 Absolute immunity provided for Crown prosecutors, AG, etc. to encourage public confidence in their
impartiality; unfair to victim of malicious prosecution
12



No-immunity rule much more fair for everyone, holds Crown attorneys personally liable
Unlike malicious prosecution, the tort of abuse of process is focused on the misuse of civil proceedings
(independent of litigation) for an illicit/collateral purpose, causing loss to P (burden of proof on P)
**Miazga: Parents accused by children of sexual abuse; prosecutor M had doubts about the credibility of the
children but carried on with the investigation anyways; later turns out they were lying, and the parents won the
malicious prosecution claim they brought against M
o SC: There’s no reason to consider prosecution’s subjective belief, since just the malice of the children
was enough. The prosecutor should only consider facts available at the time the decision was made.
**Nelles v. Ontario [1989] 2 S.C.R. 170
Facts
P was charged with first degree murder of babies, but charges later dropped due to lack of evidence.
Discussion
- Court rejected arguments for the immunity rule
and Analysis - Hard to prove malice and that there was no reasonable or probable cause. Judgment for P.
Ratio
No more immunity for prosecutors. If deliberate malicious action, then they’ll be held accountable.
Intentional Infliction of Nervous Shock
Elements of the tort of IINS:
1. Outrageous or extreme conduct
 Clark v R: A series of incidents of sexual harassment that cause P’s nervous shock is sufficient.
 Inversely proportional to amount of proof needed for nervous shock
2. Intent (actual or constructive) to cause a severe impact on P’s psychological well-being
 Often inferred from the seriousness of D’s conduct, reasonable foreseeability of P’s mental distress, extent
and duration of harassment (Clark)
3. Nervous shock: Recognizable psychiatric illness, best if tied to some physical harm
 **Rahemtulla: Employee who was fired after false accusation of theft was depressed and unable to sleep
afterwards and suffered mental anguish because she could not obtain subsequent employment
o Evidence not needed since she had clear depression symptoms and D’s behaviour was “outrageous”.
**Wilkinson v. Downton [1897] 2 Q.B. 57
 Established an innominate intentional tort claim for all unjustified, intentionally-inflicted bodily injuries
Facts
D, in a practical joke, told P that her husband was injured and that she had to go fetch him home. P,
of normally sound health and mind, suffered a violent shock to her system and became physically ill.
She sought compensation for damage caused by fraud.
Issue
Was the nervous shock an intended effect of the defendant’s actions?
Discussion
- Wilful injuria is in law malicious, although no motive of spite needed
and Analysis - Such a statement made suddenly and with apparent seriousness couldn’t fail to produce a result as
serious as the one P experienced, so intent to produce that effect is imputed
Ratio
Such special damage to P should be accounted as serious harm that could have been prevented.
Holding
Yes, there was cause to foresee the injurious effects of the lie. P was awarded damages.
Radovskis v. Tomm (1957), 9 D.L.R. (2d) 751 (Man. Q.B.)
Facts
P was raped by D, who was convicted. P’s parents sued D for trespass to her person. Her mother
sought to recover damages for nervous shock blamed on the attack.
Issue
Is nervous shock in reaction to an attack on a child considered measurable damage?
13
Discussion
- Mother didn’t have good nerves to begin with, but were bad since the rape; but still insufficient
and Analysis - If there had been illness, it would have been the measurable damage, not the shock itself
Ratio
No visible or provable illness as natural and direct consequence of the rape.
Samms v. Eccles 358 P.2d 344 (Utah S.C. 1961)
Facts
D kept harassing P to propose an affair with P. She claimed wounded feelings, anxiety and fear for
her personal safety, and severe emotional distress for which she asked for $1,500 in actual damages.
Issue
At what point does causing emotional harm become a tort?
Discussion
- Need to find that D had the purpose of inflicting emotional distress, that the reasonable person
and Analysis would have known such a result would occur, and that D’s actions would be considered outrageous
and intolerable and offensive to accepted standards of morality and decency
- Generally speaking, “there is no harm in asking” (as long as there’s no trespass or assault)
Ratio
P’s aggravated circumstances are distinguishable from situations where conduct is tolerated.
Holding
P’s action should not be dismissed. D was liable.
Discrimination
 Not a definite tort of discrimination, since it’s covered by the Criminal Code
 Key challenge in balancing equality with legitimate legal interests (e.g. freedom of contract)
 Standard of proof in human rights cases should be similar to that of civil cases
Bhadauria v. Board of Governors of Seneca College of Applied Arts and Technology
 Wilson, J. (decision overturned by SCC): Statutes can and should affect the development of the common law.
Facts
P claimed discriminatory hiring by D due to her ethnic origin. She met all the requisite qualifications,
yet had applied for 10 openings over 4 years without even an interview granted. P/A; D/R.
Issue
Can this action be brought under common law or under civil law?
Discussion
- Cited Constantine v. Imperial London Hotels (D had violated a common law right of P by not giving
and Analysis him a room due to his colour, and that violation had caused injury, so he won nominal damages)
Ratio
No need to develop a parallel tort since the HRC protects her already, so action better through HRT.
Misc.
Procedural History: Trial judge: In favour of D (since there is no tort of discrimination). Ontario Court
of Appeal allowed P’s appeal. SCC now.
Stalking and Harassment
 Stalking: Where a person knowingly or recklessly harasses another person to cause them to fear for their safety
 Harassment: Lesser complaint, generally more upsetting or annoying but not actually causing fear
o Examples: Minor sexual harassment, bullying, govt officials harassment, abusive/racist communications
o Courts only willing to consider it if P is clear target of the harassment and suffers severe mental distress
 No established tort of stalking; instead, it’s closer to criminal harassment (Criminal Code s. 264(1)); and some
cases of stalking can be dealt with through other torts (e.g. privacy, assault, trespass)
 Chapman v 3M Canada: Wrongful dismissal based on discrimination
o Ratio: No tort if claim covered under a collective agreement.
Trespass to Land
Elements of the tort of trespass to land: (Actionable per se)
14
1. Direct intrusion
 Indirect intrusion: forces of Nature (e.g. snow or seeds blown from another property); these (as well as nonphysical intrusions) are more likely for causes in action in nuisance or negligence
2. Intentional or negligent interference: D intended to conduct self in certain way, exercised his volition to do so
 Mistake is not a defence, and intension to cause harm does not need to be proved
3. Physical interference
4. Land in the possession of P
 “Land’ includes anything affixed to the surface area
 Three ways to commit this tort:
o Where a person enters land in possession of P without permission
o Where a person places objects on P’s property
o Where the possessor of land revokes a visitor’s permission or license to be on the property; P is allowed
to use reasonable force to remove someone who resists exiting
 Williams: A new cause of action accrued every day that the trespassing chattel remained on P’s land.
 Townsview v Sun Construction: Action fails if the trespassing excavation occurred before P acquired possession.
 Trespass protects those who possess, use, and control land (squatters even, without legal rights or titles) rather
than owners, but not those who are merely using the land or those who possess Crown land
o Penney v. Gosse: Any form of clear, exclusive, intentional possession is sufficient to support an action for
trespass against a wrongdoer, except when up against someone with a better claim of possession.
 Doctrine of trespass by relation: permits someone with an immediate right to possession when a trespass
occurred to sue retroactively in trespass once they acquire possession
o Example: A owns a land and doesn’t visit it for several years. B squatted on it. A can sue as soon as he
comes back to reacquire possession of his land
 Main defences to trespass to land:
o Consent: Where P had consented to D entering his land (license)
 Express: “Yeah, come on in” vs. Implied: Waving someone into your house
 Both of these can be split into contractual (usually has money attached) and gratuitous (no
money involved); this matters since K’tual one is likely harder to revoke
o Necessity: Trespass necessary to prevent harm to D’s self, the public, possessor of the land, or 3rd party
 Imminence of D’s peril determines defence’s effectiveness and damages; Example: Ben is chased
by 5 year olds with pillows. Court is less likely to believe trespass is needed to escape them.
o Legal Authority: Entry onto land authorized by statute; E.g. city worker can enter property for repairs
 Jus tertii defence (that a third party authorized D’s trespass on P’s land) can only be raised in an ejectment
action (where P wants to kick D off of his land)
 Canadian courts can award punitive damages in trespass cases where D has been a jerk: Horseshoe Bay v SIF
 Russo v. Ontario Jockey Club: Court upheld D’s absolute right to deny entry to anyone under CL and legislation
 Charter guarantee of freedom of peaceful assembly and association don’t cover private persons and associations
in CL tort action but overrule any prov. or fed. trespass laws that limit Charter rights
 Implied license to the public to shop in a mall is revoked for a shoplifter (Hudson’s Bay v. White)
 Davidson v. Toronto Blue Jays: P had license to enter stadium pursuant to buying ticket, and met implied terms;
When D asked him to show ticket again beyond those terms, he shouldn’t have been arrested when he refused
 Trespass actions can’t address natives’ longstanding land claim grievances
 Costello v. Calgary: P then sued D in trespass for the 11 years that D improperly possessed P’s land
 *Rylands v Fletcher: A person who for his own purpose brings on his lands and collects anything likely to do
mischief, if it escapes he must keep it in at his peril. If he does not, he is prima facie answerable for all damage
that naturally flows from the escape.
15
Entick v. Carrington (1765)
Facts
D claimed warrant from Sec of State to break into P’s house and take papers. P sued in trespass.
Issue
Was D trespassing upon P’s land?
Discussion
- The right to secure one’s own property is sacred and incommunicable in all instances where it has
and Analysis not been abridged by public law for the good of the whole
Ratio
Every invasion of private property, despite no damage or minute invasion, is a trespass.
Holding
P has an action to sue.
**Turner v. Thorne (1960) Ont. H.C.
Facts
D had parcels to deliver to Gas Machinery Co. D knew they operated in a garage behind some private
property, so when they arrived they assumed P’s house was GM. No one answered D’s knocks, but
he found the garage unlocked so he unloaded the cartons. When P came home that evening, he
sustained serious injuries from tripping over the cartons in his garage. He sued for damages.
Issue
Was D liable for the injuries P suffered?
Discussion
- Trespass counts also for any chattels left by D on P’s lands without his approval
and Analysis - That trespass resulted from an innocent mistake does not relieve D of liability in subsequent harm
Ratio
A trespasser is liable for any harm to the possessor if such harm was caused by the actor’s presence
on the land, irrespective of whether it was caused by conduct that would have subjected him to
liability if he wasn’t a trespasser.
Holding
D was liable for trespass and needed to pay P damages.
Harrison v. Carswell [1976] 2 S.C.R. 200
Facts
PPSC’s owner had asked D to not enter the premises to picket peacefully in support of a lawful strike,
yet she did on 4 separate days. P/A: Manager of Polo Park Shopping Centre; D/R.
Issue
Can the owner of a public space bar a peaceful picketer from his property?
Ratio
Anyone who trespasses upon another’s land, upon or through which he has been requested by the
owner not to enter, is guilty of an offence.
Misc.
Procedural History: *SCC: Another appeal, but allowed by 6-3 margin*
Dissent (Laskin): If no justification in D’s actions for being asked to leave P’s premises, then P should
not be able to kick her out on a whim. There were no challenges to P’s title, possession, privacy.
Intentional Interference with Chattels
 Replevin: procedure by which a court can order the return of a chattel prior to resolution of the action of a tort
o Not a tort; Typically ordered where P has an apparent right to immediate possession
 Recaption: Not a tort, a legal right; Person with the strongest rights of possession is allowed to use reasonable
means/force to prevent theft of a chattel
o If you get into a fight with a thief trying to steal your bike and they sue you for battery, you can use the
defence of property
 Defences from trespass to land apply to trespass to chattels
 Remedy of distress damage feasant: right to seize goods of another that are causing damage on one’s own land
o A’s cow comes onto B’s land and tramples B’s vegetables. B is allowed to hold the cow (not liable in
trespass to chattels) until A has compensated him for the damaged vegetables.
16








Intentional property torts protect the right to possession, not ownership: Costello v. Chief Constable: P, a
suspect of selling stolen cars, won a claim of conversion since he’s the possessor of the (stolen) vehicle
o This is because, in the absence of law, it might lead to violence to get something back
Damages usually either how much the chattel has depreciated as a result of your conduct, or the cost for
repairing it (restitution)
Even if a chattel was used to cause someone harm, if the chattel itself wasn’t harmed then there is no tort
Bailment: lending of a thing
Chose in action (e.g. debt) can be enjoyed only through legal action; a tangible record carries the same value
Chose in possession (e.g. cow) can be enjoyed through physically; only type conversion applies to (OBG v Allan)
Four intentional torts that are responses to different forms of interference with chattels.
Example: A steals B’s laptop and uses it recklessly. B can sue in detinue if he just wants it back, sue for trespass
to chattel if he wants damages, or sue for conversion if he wants A to own it and get market value for it.
1. Trespass to Chattels
 Trespass to chattels: direct and intentional (or negligent) interference with chattels in the possession of another
o Actionable without proof of loss; even moving chattel is enough
 Mistake or not knowing interference is wrongful are not defences
 Once P has established there was interference with possession, D must prove absence of intent
 Remedy: Award of damages, dependent on the reduction in its market value or the cost of repairs (the lesser)
**Fouldes v. Willoughby (1841), 151 ER 1153 (Ex. Ct.)
Facts
P got on D’s ferry with two horses but was banned from bringing them on board. So D left them with
his brother. When P asked for them back, D refused unless he sent for them and paid for their keep.
Issue
Was D’s actions considered conversion? Was it trespass to chattels?
Discussion
- Later court: D putting P’s horses on the shore did not constitute conversion for his own use
and Analysis - D: Wanted to keep the horses on shore to induce P to stay on shore since he was being rowdy
Ratio
In order to constitute a conversion, it is necessary either that the party who took the goods wanted
to use them or that they got destroyed while he used them.
Holding
No conversion of the horses. They were returned to P without damage.
2. Detinue
 Detinue: wrongful detention after P has asked for its return, or when D lost the chattel
 P has to have asked for the chattel back, and D has to have refused before the case is brought to Court
 Remedy: Order to give the chattel back or award of damages for its value and arising from deprivation (e.g. if
you take my laptop, I can’t do my work anymore); Even if D returns the chattel before the court gives judgment,
D could still have to pay damages for the deprivation of it
o Damages for the value of the chattel assessed at time of judgment, not time of initial refusal to return it
 Generally chattel has sentimental value, is unique, or if it’s increasing in value
**Aitken v. Gardiner (1956), 4 DLR (2d) 119 (Ont. H.C.)
Facts
D bought some share certificates without knowing they had been stolen from P, and then sold them
by the time the action came to trial.
Issue
Does detinue apply here? What damages should be awarded?
Discussion
- D liable for conversion for sold certificates or for detinue for unsold certificates
and Analysis - Detinue applies when someone who once had has improperly parted with possession of a chattel
17
Ratio
Conversion of those shares has deprived P of an opportunity to reap the benefits of increased value.
Holding
D could either return share certificates of the same kind to P or pay damages equal to their value at
the date of trial. D could sue in either conversion or detinue.
3. Conversion
 Trover: D’s wrongful appropriation of claimant’s chattel, now superseded by conversion
 Conversion: Intentional interference with tangible chattel in such a way as to serious harm P’s rights to it
 Examples: converting to D’s own, destroying it, refusing to return it; Generally for serious damage to chattel
o Example of transferring possession: If B receives A’s laptop innocently but without A’s permission and
then sells it to C, then both C and B could be held liable in conversion vis a vis A
 Damage assessed when conversion occurred or when P was aware of the chattel lost
o Damages = Forced judicial sale of the chattel to D, allows for damages at market value
 Not related to negligence, nor defendable by mistake (except in cases where D is packing, storing, or carrying
goods for P who doesn’t have title to the goods and D wasn’t aware of that)
 P can take steps to mitigate damage, like replacing the chattel as soon as is practical
 When considering if an interference is a conversion, Court looks at duration of interference, kind of interference,
purpose, and amount of damage (this last one is the forte of just trespass to chattels)
**Mackenzie v. Scotia Lumber Co. (1913), 11 DLR 729 (NSSC)
Facts
P’s insecurely tied raft drifted and hit D’s 2 and were stranded together. D’s servants thought all 3
were D’s and brought them back to D. D didn’t know he had P’s raft. P sued for conversion. P/A; D/R.
Issue
If someone takes another’s chattel by mistake and returns it to the owner immediately when they
realized it, can they be held liable for conversion?
Ratio
Innocent mistake is not a defence for conversion.
Holding
Appeal allowed with costs. Judgment for P for nominal damages.
4. Action on the case to protect a reversionary interest
 P can bring an action on the case to protect reversionary interest when the chattel has been destroyed or
permanently damaged by the intentional or negligent act of D
 This tort available where P does not have possession or an immediate right to it, but nonetheless wants to
protect his owned goods from possible destruction or damage
 Example: A owns car, leases car to B. C damages car. Even if B doesn’t sue C, A can sue C under negligence.
373409 Alberta Ltd. (Receiver of) v. Bank of Montreal (2002), SCC
Facts
R shareholder added to his cheque payee “/Legacy” (his other co.) and deposited it in Legacy’s acct
at A. A credited Legacy’s account with the cheque’s proceeds. When R later went into liquidation, it
sued A for conversion for having deposited their unendorsed cheque in Legacy’s account. P/R; D/A.
Issue
Was A authorized by R to deal with the cheque as it did?
Discussion
- For A to be liable, must be unauthorized payment upon the cheque made to someone other than
and Analysis the rightful holder; Alteration had no effect on R’s sole entitlement to the cheque and must be
deemed authorized by R since shareholder was R’s sole agent
Ratio
Dealing with another’s chattel in a manner authorized by the rightful owner is consistent with the
owner’s right of possession, and does not qualify as wrongful interference.
18
Gen & Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd., [1963] 1 WLR 644 (CA)
Facts
P had claims both for return of their mobile crane from D in detinue and for damages in conversion.
Discussion
- Detinue: Demand for delivery up of the chattel
and Analysis - Damage in conversion: Can sue for wrongful delivery of the chattel to third party, but not for its loss
Ratio
P could elect which cause of action to pursue, if the chattel is still in the possession of the D,
depending on whether he wants the chattel returned or its value in damages.
Intentional Interference with Economic Interests
 Want courts to stay out of ordinary business practices and out of the market; business torts is the one exception
to the overall torts goal of corrective justice since business is a personal interest with an inherent risk of loss
1. Deceit (Fraud)
Elements of the tort of deceit:
1. D made a false statement/ misrepresentation (Written, oral, or misleading actions)
o Abel v McDonald: Seller of a property knew that damage had occurred to the premises after the making
of the contract for sale. Later actively prevented that knowledge from coming to the notice of the
purchaser, by refusing to let the purchaser inspect the premises. Held to be deceit.
o Silence can be actionable if there is an obligation to speak up to prevent harm
2. D knew the statement was false (or was objectively reckless to the truth or falsity of the statement)
o Defence to deceit: Honest mistaken belief
3. Intention to mislead P (or was substantially certain the statement would deceive P, not intent to injure P)
o P must prove that D intended P to rely on the false statement; a suspicion is not enough
4. Loss to P as a result of reasonably relying on the statement
o Situations without reasonable reliance: salespeople, predictions about future, opinions
o No deceit if D can show that P would have acted the same without any fraudulent representation
 Harms in this tort are deceit directed at P, instead of lies directed at third persons that harm P
 Damages must return P to position he’d have been in if there was never a misrepresentation, not the position he
would be in if the representation was true
 Test of recklessness: Objective test = where a reasonable person would have thought to look at the truth of the
facts more closely; Subjective test: when someone is blind to all risks and thoughtless
 If A and B were in a relationship and then broke up and A asked B for child support, and then it turns out that B
wasn’t the father and A knew it all along, it’s considered to be deceit; Canadian case as the authority
 Raju v. Kumar: D duped P into marrying him, in order to help him immigrate to Canada; she sued successfully for
deceit, and was awarded damages for loss of childbearing years, etc.
**Derry v. Peek (1889), 14 AC 337 (HL)
Facts
A company was trying to open a tramline. The directors (D) issued a prospectus saying they had the
rights to use steam/mechanical power instead of horses, which they honestly believed. But a
regulatory body said they’re not allowed to do that, which led to the company’s machinery losing
value on the market. Its shareholder (P) sued in deceit.
Issue
Does deceit require that you knowingly deceive someone, or is it enough to be reckless to the truth?
Ratio
Making a false statement through want of care falls short of deceit; if you honestly believe
something is true it is not deceit. Distinction between honest mistake and recklessness.
Holding
D not liable.
19
2. Passing Off
Elements of the tort of passing off:
1. Goodwill of the injured brand (ability to attract or maintain customers; recognizable brands) attached to the
goods/services being passed off
2. Deception of the public due to a misrepresentation (Except where deception occurred to a “moron in a hurry”)
 Strict liability tort; Deception may not be intentional, and D may not even be aware of P’s product
3. P suffered actual or threatened damage due to someone’s erroneous belief caused by D’s misrepresentation
 Passing off: Stating that goods or services that D are selling are those of P, to protect unregistered trademarks
o Example: D creates laptops called Appfel; D is passing off their own line based on Apple’s goodwill
o Reverse passing off: If D buys an Apple computer and re-labels it as an Appfel
o Other examples: misrepresentation that D’s goods are P’s standard, or that they had business relations
**Ciba-Geigy Canada Ltd v. Apotex Inc. (1992), 95 DLR (4th) 385 (SCC)
Facts
D’s had mimicked details of a product made by P. P/A; D/R.
Issue
Did the appearance of the competing products infringe upon P’s trademark?
Discussion
- P needed to show that its product had acquired a secondary meaning with its customers so that any
and Analysis competing product = confusion
Ratio
See the elements. The public was likely to confuse the products.
3. Intimidation
 Intimidation: threat was made; doesn’t matter if it was never acted on
o Objective test: was it effective enough to get someone to act a certain way?
o Elements: 1. Threat of unlawful acts with intention to injure; 2. Induced P’s action; 3. Damage
 Two-party intimidation: D threatens unlawful acts that directly compel P to act to his detriment
o If A and B have a contract, and it’s breached, and A threatens B, then B shouldn’t feel intimidated since
B has contractual remedies
 Three-party intimidation: D threatens unlawful means to coerce a third person to damage P; Very rare, person
suffering the loss and person being threatened are separate
o Rookes v Barnard: D threatened BOAC with strike unless P was fired; strike was in breach of a no-strike
clause in D’s employment contract, but BOAC still submitted and lawfully terminated P’s employment
 Defence of justification limited to cases where wrongdoing is minor or purpose of threat was to achieve some
beneficial social purpose
Central Can. Potash v Govt. of Sask. (1979), 88 DLR (3d) 609 (SCC)
Facts
P accused D of intimidation: reduce P’s production or possibly see its mineral lease cancelled.
P/A; D/R: SK govt representing its Deputy Minister.
Issue
Was there intimidation?
Ratio
Intent to induce compliance with an existing legislative scheme is acceptable. Appeal dismissed.
4. Conspiracy
 If two or more people act together to hurt someone or commit an unlawful act, it’s a simple conspiracy
o Pre-emptive action: don’t need to act on the plan
o Remedy: damages
 Mogul Steamship v McGregor: D’s utilized legal, but unfair, practices for the chief purpose of advancing their
own economic interests, even though P got screwed
20



Allen v. Flood: D asked an employer to fire P, or risk starting a lawful strike; jury found D’s action was malicious,
purely motivated by desire for P’s punishment for previous conduct
Conspiracy to injure by unlawful means: completed once conspirators acted on the agreement and harmed P
Elements:
1. Combination
2. Unlawful activity: includes criminal conduct, independent tortious acts, breach of contracts, breach of
legislation, civil wrongs
3. Intent or likelihood of damage
Posluns v Toronto Stock Exchange (1964), 46 DLR (2d) 210 (Ont. H.C.)
Facts
D thought that P had engaged in trading without D’s approval. D told P’s employer Daly that P was no
longer entitled to act in any capacity for any firm in the TSE. Daly fired P. P sued D for conspiracy.
Issue
Did the Board members of D commit conspiracy against P?
Ratio
This was not a conspiracy, since P had impliedly agreed that as long as he worked under the
protection of D, he would submit to any control properly exerted by it.
5. Other Business Torts
 Elements of Injurious Falsehood (lying disparagingly about the business or trade of others which leads people to
not want to deal with them):
1. False statement made of or concerning P’s business, trade, or property
2. Publication of that statement to a third person
3. Malice (need min. knowledge that statement is false or reckless about its truth, and damage intended or
was natural/probable result of publication)
4. Actual pecuniary loss caused by D
 OK: Disparaging statements about a competitor’s products that are true, or puffing up one’s own goods
 Elements of Misappropriation of Personality (claiming that your goods or services are endorsed or used by an
identified person):
1. Intentional use of P’s name or likeness or other recognizable aspect of personality (e.g. voice, visual image)
2. Unauthorized use to promote D’s commercial interests
3. Damage: normally assessed on fair market value of use of P’s name/likeness (lost user fee)
 Protects commercial and privacy interests in exploitation of name/likeness for commercial purposes
 Elements of direct inducement to breach a contract:
1. Direct inducement to breach the contract: incentives, cajoling, threats; not providing info neutrally
2. Knowledge of the contractual link on D’s part (wilful blindness may suffice)
3. Intention to secure a breach of contract: not just intent to cause harm
4. Damage
 Possible defence: justification (e.g. inducement to protect an equal and competing contractual/property right),
or if they are acting within their scope and for best public interests
 Lumley v Gye: Miss W was under an exclusive contract to sing at P’s theatre, but D persuaded her to break this
contract and sing at his instead; D held liable for directly inducing her to change her mind
 Elements of indirect inducement to breach a contract mirrors parent tort
 Elements of interference with a contract by unlawful means without causing breach:
1. Proof of D’s knowledge of the contract
2. Intent to interfere with the contractual performance by illegal means
3. Economic harm
 Elements of Intentional Interference with Economic Interests by Unlawful Means:
1. Intention to injure P’s economic interests
21
2. Interference in those interests by illegal or unlawful means: done independently
3. Economic harm
Reach MD Inc. v Pharmaceutical Manufacturers Assn. of Canada (2003) Ont. C.A.
Facts
P sold calendars featuring drug company ads in them. D told its members that these ads violated its
Code of Conduct, which was untrue. P soon went out of business. P sued. P/A; D/R.
Issue
Was there intentional interference with economic relations?
Ratio
All the elements of the tort were satisfied.
Defences
 Go through elements of the tort, and then you provide defences, and then liability is determined
o Defence usually framed in the context of the tort being complained of
 Types of wrong:
o If excuse: then the action was still wrong, but not fully liable
o If justification: then the action was not wrong, and no liability; e.g. duress, self-defence
 Duress of circumstances: like if A is poor and hasn’t eaten in two weeks and steals food from a grocery store, he
could plead this; courts tend to reject this since 19th century
 Partial defence: dictates a reduction in damages; e.g. provocation, contributory negligence
 Complete defence: can lead to full release from liability; e.g. consent
 Freestanding defence: elements of this defence does not have to be proved by D during the trial of the tort
Defence of Consent
 Consent may be express (e.g. gesture, words, writing) or implied (e.g. mutual conduct) from P’s conduct
o Court will assume absence of consent unless proven otherwise; burden of proof is on D
 Elements of consent:
o Conduct that a reasonable person would believe meant that P was consenting to the interference
o Freely and voluntarily given
o Able to comprehend what is being consented to (which rules out factors like intoxication, youth, mental
incapacity) as well as all risks associated with consenting to the act
 In some cases, participation, demeanour, or P’s behaviour can provide the basis for implied consent; also
includes failure to object or withdraw or passivity
 Elliott: Got hit in the head by a puck while watching a hockey game; the court found that he should have
anticipated it, both as a spectator and as an amateur hockey player himself
 General rule for implied consent in contact sports: all cases of battery on sports arena except where D intends to
cause injury and when it’s a breach of rules (Agar); was the action complained of the action consented to
 At CL, if a patient has mental illness and thus lacks capacity to give proper consent, a close family member
probably has the power to make decisions either consistent with patient’s past wishes or ones in good-faith
determinations of the patient’s best interests
**Wright v McLean (1956)
 Implicit in the engagement of horseplay are: agreement to not go beyond behaviour that is normally expected
and good faith; Examples: If A threw a mud ball at B and noted its unusual heaviness but didn’t care or stood
over B and laughed, it would be malicious and an injury to B’s dignity, which compounds the liability
Facts
Four boys were throwing mud and lumps of clay at each other. D came by and asked to join. They
assented. P got hit in the head by dirt with rocks in it.
22
Issue
Was this a battery if all the participants consented to the fight?
Discussion
- No malice or anger in the fight, agreed upon by all involved parties
and Analysis - D was invited to join the game (this was acknowledged by the boys)
Ratio
Harm suffered by consent is, within limits, not a cause of civil action.
**Agar v Canning (1965)
 Hockey fights are premeditated and follow well-established rituals (e.g. chirps, gloves drop, asking), so there is
implicit consensual consent to it, even though it’s incidental to the game
Facts
Injury sustained during a hockey match. P hooked D in the neck. D retaliated and hit P in the face
with a hockey stick.
Issue
Was there implied consent for causing injuries during a hockey match?
Discussion
- Conduct of a player in the heat of the game is instinctive and unpremeditated and should not be
and Analysis judged by standards suited to polite social intercourse
- Getting hit by puck or other players implicit in game; no duty of care to take care of each other
Ratio
Injuries in circumstances which show a definite resolve to cause serious injury to another, even in
the heat of the game and there’s provocation, should not fall within the scope of implied consent.
Holding
This action went beyond the limit marking exemption from liability.
Malette v Shulman (1987), Ont. C.A.
 A physician must be alert to any evidence that a card is not a reliable reflection of a patient’s wishes (e.g. old,
unclear/extravagant instructors, membership in unknown sects/cults)
o Following directions contained in a card that no longer reflects P’s true wishes means the physician
cannot be found liable for battery, and can thus act how he thinks best to preserve patient’s life/health
Facts
After an accident, P was admitted to hospital where it was found on her a signed card stating she
was JW who did not want blood administered to her. D ignored the directive and administered blood
in the reasonable belief that it was necessary to preserve her health. P sued for battery.
Issue
Were D’s actions a violation due to lack of P’s consent?
Ratio
The JW tenets are well known and there was no issue of authenticity of the card, so the patient’s
calculated decision to reject blood transfusions in her treatment ought to have been honoured.
C. v. Wren (1986)
 Mature minor rule in determining capacity to consent to medical treatment: minor has capacity and intelligence
to understand the nature of the proposed medical treatment, risks and potential benefits, and risks of refusing it
Facts
Intervener got pregnant and chose to terminate it. Parents sued the doctor. A/P: Parents; R/D: Dr.
Issue
Does the mature minor rule apply here?
Ratio
At her age and level of understanding, the law permits her to consent to termination of pregnancy
without deferring to parental authority.
Factors that Eliminate Consent
1. Fraud
 For D’s fraud will cancel out P’s consent: D must have been aware of (or responsible for) P’s misapprehension,
and fraud must be directly related to the nature of the act, not a “collateral matter”
23

R v Williams: Music teacher told student that sexual activity would improve her voice. Since she didn’t realize
she was doing a sexual act, there was no consent and he was guilty. If she mistakenly thought sex acts would
improve her voice, then he would likely not be liable for rape
 Consent to sexual intimacy based on fraudulent misrepresentations of D’s marital status, wealth, or degree of
affection are valid; these are collateral matters (which do not negate the consent), so remedy sought in fraud
 Fraud regarding D’s concealment of having STI’s  Ignorance of the danger is sufficient to vitiate the consent 
Warrants liability in battery or negligence for concealment
o Not disclosing HIV infection to sexual partners is a serious harm, can be criminal assault
2. Mistake
 D responsible for creating a mistaken belief, which would vitiate P’s consent
 Toews v Weisner: Nurse wrongfully but not intentionally believed that a child’s parents gave permission for her
to receive a shot, so she injected the girl. Mistake still made her liable.
3. Duress
Latter v Braddell (1880)
Facts
P, a housemaid, was fired by the D family because they had heard a rumour that she was pregnant.
They brought in a doctor who coerced her into undressing so he could examine her.
Issue
Did duress impact the consent P gave to be examined?
Discussion
- Minority: Reasons to possibly believe there was duress: fear of evil consequence, obedience to
and Analysis master and mistress, P swore continuously that she did not give consent
- D responsible for doctor: no evidence that he did anything beyond necessary test for pregnancy
Ratio
Reluctant obedience to a master’s orders is distinguished from having no consent. Consent incurred
through duress (e.g. threat of use of force) would not valid.
4. Public Policy
 Individuals don’t always know what’s best for themselves: one cannot consent to being killed or seriously
injured (Lane), or consent to someone exploiting a position of authority (e.g. sex with parents, doctors, teachers)
 To prove power imbalance (which vitiates consent), must provide proof of inequality and of exploitation (Nelitz)
Marshall v Curry [1933]
Facts
While P was under anaesthetic, D while operating on him for a hernia removed his testicle without
his knowledge or consent. D thought it would be dangerous to P’s future health.
Issue
Was D liable in assault for removing the testicle without P’s express consent?
Discussion
- Implied consent through patient visiting the doctor’s office does not extend to any examination
and Analysis more intimate than what the patient desires
Ratio
If the extent of the surgery exceeded what the patient had expected or agreed to (or surgeon had
not properly disclosed all the info), there could be a withdrawal of consent.
Holding
Court agrees though that there was no express (and possibly no implied) assent from P for the deed.
Self-Defence
 Complete defence that must establish: (on balance of probabilities)
1. Honest and reasonable belief that an assault and/or battery was imminent
 Honest but not reasonable belief: B thinks A picking up her mug is trying to assault B.
 Reasonable but not honest belief: A is waving a kitchen knife around B, but B trusts A not to hurt B.
2. Amount of force used to avert the risk was reasonable in all of the circumstances
24







Person is permitted to use reasonable force to repel actual violence (battery) or threat of immediate violence
(assault); deadly attack  deadly force
Proportionate Test is both objective and subjective: did the defendant honestly believe his response was
proportionate, and was it actually proportionate?
Brown v. Wilson: P was trying to hit D, so D put P into a bear hug. P fell down and died.
o Self-defence should rely on the amount of reasonable force involved, not on the result
o Moral threshold: you shouldn’t assault people, you take that risk
Social Contract Theory: give up some of your own rights in exchange for state’s protection; but this surrender
doesn’t always help, so you’re allowed to protect bodily integrity with some force
Cases of provocation: (A says something extremely upsetting to B, and elements that can justify B assaulting A)
1. X needs to be such that it would cause a reasonable person to lose self-control
2. B actually lost self-control
3. Immediacy: lose self-control immediately after the provocation
Generally, you’re allowed to make a pre-emptive strike (between show of assault and the actual battery) in selfdefence; it might minimize the harm
R v. Awallia: D suffered many years of abuse from her husband. One night she doused him in petrol and set him
on fire. No immediacy, but brought up the slow-burn principle: it’s not an immediate response to a threat, but a
gradual development toward loss of self-control.
**Wackett v Calder (1965), (BCCA)
 Argument against D: He could have kept trying to walk away from the fight; that is the best thing to do, but
you’re not obliged to (especially not if P isn’t well-behaved himself)
Facts
P insulted D and invited him to fight. He tried to hit both D and D’s brother but, being drunk, didn’t
hurt them. D punched him in the face and turned to leave, but P kept going at him, so D hit him
harder and then returned inside, leaving P on the ground. P/R; D/A.
Issue
Was D’s use of force excessive under the circumstances?
Discussion
- P, though intoxicated, could still do some serious damage; he was big and belligerent
and Analysis - D’s first blow insufficient to stop P’s attack; second blow was well-justified to end the fight
Ratio
An attacked person defending himself and confronted with a provoking situation is not held down to
measure with exactitude or nicety the weight or power of his blows.
Holding
Appeal allowed. Action dismissed.
Defence of Third Parties
 Same test as for self-defence, but requires that the use of force be reasonable
 R v. Lavallee: D was serially abused by her boyfriend. He threatened to kill her that evening if she didn’t kill him.
As he walked out of the room, she shot him dead. Issue: Was this self-defence?
o Prospect of serious future threat, but not an immediate one (Men and women see immediate threat
differently): battered wife syndrome
o Psychiatric opinion was admissible evidence: Desperate act of a woman who sincerely believed she
would otherwise be killed that night. SCC supported her acquittal.
**Gambriell v. Caparelli (1974) Ont. Co. Ct.
Facts
D’s son and P got into a brawl in a back lane. D, afraid her son was being choked and unable to
understand English, hit P over the head with a hoe.
Issue
Was D liable in battery?
25
Ratio
One can use reasonable force to defend a third person from violence or threat of immediate violence
if more moderate conduct may have been insufficient to protect them.
Defence of Discipline
 The law recognizes a privilege of parents to use a minor corrective force of a trifling and transitory nature to
discipline children
 S. 43 of Criminal Code provides same protection against criminal prosecution for parents, guardians, and
teachers as long as force is within reasonable standards; according to social standards, not D’s (R v Baptiste)
 Criteria for interpreting s. 43 very narrow according to Canadian Foundation for Children:
1. Force applied must be corrective, aimed to restrain a child or express symbolic disapproval
2. Child must have the capacity to understand why the discipline is applied; this prevents use of force against
children under two and those with mental disabilities
3. No use of force that could reasonably be expected to harm a child (no objects or head shots)
4. Proportionate force that is not degrading or inhuman
5. Research indicates that corporal punishment of teens is likely to lead to harmful/antisocial behaviour
6. Teachers cannot use force as corporal punishment; just to remove a child from a classroom or to secure
compliance with instructions
 Privilege of captains to exercise reasonable force to ensure the safety of their craft or passengers only arises
when the craft is at sea or in the air; captains act in police’s stead
R v. Dupperon (1984), (Sask. C. A.)
Facts
D’s 13-year-old son was grounded, but broke curfew. D hit him on the butt with a belt. 3-4 strokes
were intended only, but then the son used foul language, which prompted 5-6 more strokes. Total
strokes did not exceed 10. They left bruises. D/A.
Issue
Was the force used in response to a perceived need for correction? Did it exceed what was
reasonable under the circumstances?
Discussion
- Appeal judge: Ten strokes is a lot, especially on an emotionally disturbed boy
and Analysis - To use the defence, D needs to prove that the force was reasonable and was by way of correction
Ratio
To determine reasonableness, factors: the nature of the offence, age and character of the child,
likely effect of the punishment, gravity of the punishment, and the injuries suffered.
Holding
Will not reverse the trial finding.
Defence of Legal Authority
 Used to protect officials performing their obligatory or legal duties: Was the action within the legal scope of the
role? (Example: peace officers arresting people)
 Don’t want to exercise obstruction of a police officer’s legal duties too lightly
 Very limited capacity for private citizens to make arrests (which are false imprisonments unless there could be a
defence of legal authority proved); generally for someone who’s committed an indictable offence or someone
reasonably believed to have committed one
Koechlin v. Waugh and Hamilton (1957), Ont. C.A.
Facts
D asked for P and his friend’s names. P refused to give his and a scuffle broke out. P fell into a deep
ditch. D used force to detain P without telling him the reason for his arrest. P was later charged with
assault of a police officer. P/A; D/R.
Issue
Were D justified in their treatment of P?
26
Discussion
- Appeal judge: Suspicion of D isn’t sufficient warrants to arrest, and P was justified in refusing to
and Analysis identify himself when asked (even though it’d have been wise)
Ratio
Police officers must neither use force to compel someone to identify himself, nor withhold from an
accused about why he’s being arrested (or else risk false imprisonment case).
Defence of Real Property
 If unlawful entry is peaceable:
1. Preliminary request by possessor that the trespasser leave
2. If refused, use reasonable force to eject him from the property
3. If trespasser resists, force may be increased as required to eject him
 If unlawful entry is forcible, or creates a fear of immediate violence: Not necessary to make a preliminary
request, proceed directly to force
 Reasonable use of deterrent property-protecting stratagems and devices ensures that trespassers cannot
recover for the minor injuries sustained if they try to break through those
Macdonald v. Hees (1974) NSSC
Facts
P approached two motel units D had booked. P knocked on one door, heard someone call from the
adjoining unit and assumed he was invited to enter the first unit. D had not expressly invited them in,
nor had he invited anyone to visit him in his unit. D forcibly ejected P. P sued for assault.
Issue
Did P unlawfully enter D’s possessed property?
Ratio
No forcible entry by P of the motel unit, so D’s use of force was not justified, but was excessive.
Bird v. Holbrook (1828) CP
Facts
To protect his garden, D set up a spring gun and trip wires across it. No notice was posted since he
wanted to catch the villain. The neighbour’s peahen landed in the garden. P jumped in, got shot.
Issue
Was D justified to protect his property in this manner?
Ratio
Setting spring guns without giving notice is an inhuman act. If injuries ensue, D is liable to redress the
sufferer. No man can do indirectly what he is forbidden to do directly.
Defence and Recaption of Chattels
 Remedy of recaption/recapture:
1. Individual with an immediate right to possession
2. After a request for the chattel’s return
 Use of reasonable force to recapture a chattel only when an individual wrongfully gained possession and then
refused to hand it over after being requested to do so
 If A’s chattel landed in B’s land accidentally or was left there by A, A could enter the property to retake it,
provided he did not use force or cause a breach of the peace
Defence of Public and Private Necessity
 Generally courts are reluctant to sanction intentional interference on the ground of necessity
 Justified when benefit > wrong to such an extent the wrong must be forgiven; Example: EMT provision to
maintain life or health of an unconscious patient; reasonable restraint of mentally incapable patients
Surocco v. Geary, Cal. S.C. 1853
Facts
D blew up P’s house in order to prevent the spread of a fire to other buildings.
Issue
Was there a defence of public necessity?
27
Ratio
Individual’s private rights yield to the considerations of general convenience and of society in fires.
Vincent v. Lake Erie TPT. Co., Minn. S.C. 1910
Facts
D’s steamship was moored to P’s dock. A storm developed. No tug could be summoned to tow the
ship away, so she was held tied to the dock. The dock was damaged. P/R: Owner of the dock; D/A.
Issue
Is P entitled to compensation?
Ratio
Compensation must be made for cases of private necessity.
Misc.
Dissent in appeal: P built a dock and had contract with D to moor there, so P takes the risk of damage
to his dock in events where damage could not have been avoided in the exercise of due care.
Remedies
 Remedies are only considered after P has proven the commission of the tort and D has failed to establish a valid
defence
 Nature of the remedy will influence P’s decision to even bring an action; Looking at the law of tort backwards
 Extrajudicial remedies: self-help remedies
o Can do no more than what is necessary to recapture chattel
o Re-entry onto land = reassert your property rights using reasonable force to remove squatters
o Can use reasonable force to carry out abatement of nuisance within reasonable time and giving due
notice to D; P obliged to avoid any unreasonable or unnecessary damages
 Losses can be pecuniary or non-pecuniary (Court needs to ascertain the quantum of the harm)
 For non-pecuniary compensation, usually some sort of scale or scheme to follow that quantizes every possible
injury, OR what a reasonable person thinks is sufficient, OR estimated loss of earnings (if there’s missed work)
Damages
 Damages can be special (pecuniary; exactly quantifiable at time of trial; need to be strictly pled and proven) or
general (incapable of such)
Nominal Damages
 Nominal damages are for protection of legal rights even in the absence of an actual harm (The Mediana)
o Vindicates P’s legal right to exclusive possession, condemns the accused
o For torts that are actionable per se
 A trifling sum (may look similar to nominal damages) may be awarded as a contemptuous damage to express
judge’s disapproval with P’s claim despite its technical validity
o Dering v. Uris: P awarded a halfpenny for D’s defamation re: P’s Nazi concentration camp collaboration
o Also in disapproval of P’s claim, court can deny costs to a successful P, or even award costs against P
Compensatory Damages
 Compensatory damages: “That sum of money which will put the party who has been injured, or who has
suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now
getting his compensation or reparation” (Livingstone v. Rawyards Coal Co.)
Aggravated Damages
 Aggravated damages: awarded in the case where the tortfeasor caused so much harm to P that extra damages
are necessary; Augmentation to compensatory damages
 Courts look at D’s particularly repugnant conduct and predict that it has a particularly bad effect on P’s feelings
 Vorbis: Aggravated damages are compensatory in nature and may only be awarded for that purpose.
28
Punitive Damages
 Punitive damages: to punish D not only for a tort wrong, but for moral wrong (Vorbis)
o Also meant to be a deterrent, to tell society at large that “this is bad conduct”
 Punishment looks backwards (damages quantified in regards to D’s moral blameworthiness)
o Deterrence looks forward (damages quantified in regards to size of a financial disincentive)
 B(P) v. B(W): A girl was sexually abused by her father while still a child (ages 5-18), and raped again as an adult. It
impacted her ability to form relationships with people.
o $100,000 non-pecuniary damages: for the psychological damage she suffered long-term afterward
o $75,000 aggravated damages: father’s conduct especially gross and egregious; he was also in a position
of authority/responsibility and violated her trust
o $50,000 punitive damages: for the unsanctioned rape; but some of father’s actions were criminally
sanctioned (i.e. criminal charges dropped, possibly as a result of a plea deal)
 Whiten v Pilot: Binnie’s conclusions
o Unlike in the UK, punitive damages in Canada not limited to just certain types of scenarios; they can be
used to punish D, denounce, deter, or prevent unjust enrichment
o Doesn’t want to comment on motive or type of behaviour in this conduct, but only serious misconduct
should warrant punishment, deterrence, etc. and thus punitive damages
o Most likely awarded in intentional torts, but can also be in nuisance, negligence, and other tort actions
o Not precluding punitive damages awarded for criminal behaviour
o Punitive damages should be awarded with restraint, only if other means are insufficient to punish D
o Amount of damage = lowest sum needed to accomplish the underlying goal
o Important to instruct jury on the functions of punitive damages
o Appeal court can step in if it seems the amount of punitive damages is excessive (contradicts Vorbis)
Disgorgement Damages
 Disgorgement (restitutionary) damages: profits you gain from wrongdoing that you have to give up
 P don’t always have the option of claiming disgorgement
 Penarth Dock v Pounds: D gained no benefit from removing P’s pontoon 7 months after the deadline to do so,
and P suffered no loss
Injunction
 Injunctions are granted by courts of equity; they’re discretionary so only available when CL remedies inadequate
 Failure to observe a civil law injunction  Charged with contempt of court  Possible jailtime
 Interim injunction: injunction ordered to stop a harm from getting worse while the Court figures out who is
responsible for it
 This remedy is discretionary; the court is not obliged to impose an injunction, even if liability is established
 Usually ordered to stop an action that causes a nuisance, but can’t be ordered if the nuisance is a result of your
own actions/harm
 Courts are reluctant to interfere with the individual liberty of a person, so they prefer handing out damages
instead of injunctions
Declaration
 Declaration: formal statement or court decision usually issued to settle a dispute or an issue of legal rights
 Examples: Determining a property line, Const. challenge, Paternity, Whether an event is covered by insurance
 Don’t usually see this remedy in torts
Order of Specific Restitution
 Order of specific restitution: direct a party to restore a pre-existing condition or return an object
 Usually sought on the way to another action
29

Unjust enrichment; if D profits from a tort (e.g. charging people to trespass on P’s property), D can be ordered to
give P those profits. You can’t profit from your own wrongs.
Defamation
Elements of the tort of defamation (protection of reputation from unjustified attack): (on BoP)
1. Defamatory Statement (Effect of lowering esteem for P in the minds of “ordinary” members of a respectable
segment of society or of his community; almost all uncomplimentary comment)
2. Reference to the Plaintiff (Gross exaggerations don’t count)
o Knuppfer: Can the statement be referring to P? (Question of law) Would the statement lead a reasonable
person who knows P to conclude it does refer to P? (Question of fact)
3. Publication to someone other than P who understands it
o Every repetition of the defamation is a new publication (Lambert), so all intermediates are actionable
o Person who made the original statement is liable for repetitions only if:
o He gave express/implied authority for republication (accidental overhear =/= publication; McNichol)
o They made the remarks to someone with a moral, legal, or social obligation to republish them, OR
o The republication is a natural and probable consequence of the original publication
 Based on two historical torts that have now been combined together into defamation, yet are considered
distinctly in terms of determining damage: slander (spoken; requires proof of financial or reputational loss) and
libel (written; damage is presumed)
o Types of slander historically actionable per se: Imputations of committing a crime, having a gross
disease, women’s lack of chastity, or unfitness to practice own trade
 Defamation still uses civil juries to help guard against indirect censorship by the state, if P is a public official
 Other than establishing defamatory statement in plain and ordinary sense, there are two ways of establishing
defamatory meaning when the words used are innocent:
o True/legal innuendo: apparently innocent reference to something beyond the publication but likely to
be known by whoever receives the publication. Example: A is married to B. C tells D that A was having a
romantic evening with his girlfriend E. This is defamatory to both A and E since it is implied that A is
cheating on B based on the language used.
o False/popular innuendo: what an ordinary person would infer to be defamatory (Sim v Stretch)
 Slim v Daily Telegraph Ltd, [1968]: To gauge defamation, must read something in its entire context, not just in
isolated passages
 **Vogel: Tone of voice, gestures, facial expressions all matter in determining defamatory remarks.S
 Dennis: Irrelevant if D had a commendable motive
**Sim v Stretch [1936]
 Would the words tend to lower P in the estimation of right-thinking (i.e. part of majority) members of society?
o Osbourne argued that Canadian courts have replaced this with the “ordinary person” test (**Color)
 To decide if material is defamatory, first judge must decide whether there is evidence of a tort, and then
whether the material is in fact defamatory in the particular case
Facts
P didn’t want to be seen to be so poor that she had to borrow money from a maid. She sued D for
defamation for putting such a notion in a telegram.
Issue
Are the words in their ordinary signification capable of being defamatory?
Ratio
Words complained of are incapable of having a defamatory meaning.

Burden of proof on D to establish defence on a BoP, which makes a comment not actionable if:
- Proven to be based on truth (fair comment)
- Can be proved to be too vague
30
- Wasn’t published to anyone other than P
Defence of Justification
 The comment perceived to be defamatory is wholly or substantially true (Truth Defence): Meier
 Campbell v The Mirror
 London Computer v BBC: D cannot justify a defamatory allegation by proving that P was engaged in other
reprehensible behaviour.
 Bank of BC v CBC: D cannot succeed by showing that defamatory comments were literally true if they were
expressed in a way to create an overall false impression.
 Thomson v Herman: If a discrepancy in material facts changes the reader/listener’s overall impression of the
truth, then it would defeat a claim of justification.
 Makow v Winnipeg Sun: D will remain liable for any statements not yet justified, and these unjustified
statements could reflect on P’s reputation in awarding damages.
Williams v Reason
Facts
P, an amateur rugby player, was accused by sports correspondent D of playing amateur rugby while
taking money from outside sources. D/A; P/R.
Issue
Is this new evidence relevant to D’s plea of justification?
Discussion
- D’s new evidence: that P accepted “boot money” from Adidas
and Analysis
Ratio
Any facts should be presented that could be relevant to justify the words in any meaning which they
are capable of bearing.
Defence of Absolute Privilege
 There are certain types of conduct and speech (e.g. parliamentary proceedings, judicial proceedings, senior
police officers, senior executive members) cannot be defamatory
 Conditions for absolute privilege (Chatterton):
1. Statement made from one officer of state to another
2. It must relate to state matters
3. It must be made by an officer of state in the course of his official duty
 Rybachuk v Dyrland: Low threshold for relevancy of statements uttered in court (just need some nexus to the
proceedings), which are protected by absolute privilege
 Peak v Pacific Rim: Defamatory statements made to a solicitor before trial that are directly concerned with
contemplated proceedings are covered by abs. priv.
Dowson v The Queen (1981) FCA
Facts
Deputy Director General of the RCMP and Chief Superintendent met to discuss RCMP investigation
into NDP members in the Ont. LA. During this meeting, comments were made about P, especially
suggesting that the NDP might support change through “violent and undemocratic means”. P/A; D/R.
Issue
Are these comments supported by absolute privilege?
Ratio
Chatterton conditions  Absolute privilege
Hung v Gardiner (2003) BCCA
Facts
P/A: Hung, member of CGA Ass.; D/R: Director of Ethics for ICABC (another R), whose Committee
investigated and reprimanded P’s supervisor as a result of her actions. It informed CGA and LSBC
about P’s conduct, and both declined to investigate further or take disciplinary action against P.
31
Issue
Is a person who provides information to a professional disciplinary body about the conduct of one of
its members liable for defamation?
Ratio
There is absolute privilege and the Doctrine of Immunity surrounding statements made to a
disciplinary body. LSBC and CGA are quasi-judicial bodies to which absolute privilege still applies.
Defence of Qualified Privilege
 Applies to cases where statements are made by P to protect his own or another’s interests, or made in public
interest (i.e. duty to report, and recipient has duty to receive); not in cases where comment is made maliciously
 Complete defence, but tends to be a last resort when you can’t attempt the other defences
 Fair and accurate reporting applies to proceedings that are open to the public and available at CL as long as
reporting is fair and accurate
 Example: A is a senior govt official and thinks members of the Cabinet are substantially threatening national
security. If A publishes this and it turns out not to be true, A can plead qualified privilege and a moral obligation
to let people know in order to protect the lives of citizens.
 Chidley-Hill v Daw (2010 ON): Media needs to be fair and accurate in publishing a report on the case, but doesn’t
need to consult all parties mentioned in a judgment or review court files. Defence isn’t invalidated just because
a judge reversed the decision in a later case.
 Smith v Cross (2009 BCCA): Defence of qualified privilege defeated if D acted with malice.
 McGarrigle v Dalhousie University (2007, NSSC): Defence of QP lost by “over-publication” (more than what is
necessary, or to parties who have no duty to receive the info).
 Angle v LaPierre (2008 ABCA): Defence of QP fails if defamatory statements are made to the world (i.e. posted
on a public website).
 Young v Bella [2006, SCC]: Circumventing defence of GP by a claim in negligence
Hill v Church of Scientology of Toronto
Facts
P was defamed in regards to his performance of his professional duties.
Issue
Was the recitation of the contents of the notice of motion by D at a press conf. an occasion of
qualified privilege? If so, did that privilege get exceeded?
Discussion
- Once P proved that D’s statements were defamatory, they are presumed to be false and burden of
and Analysis proof shifts to D to prove otherwise.
Ratio
High-handed and careless, if not malicious, conduct by a legal professional removes his qualified
privilege and exceeds any legitimate purpose a press conference could have served.
Holding
P won and received compensatory, aggravated, and punitive damages. AUTHORITY
Defence of Fair Comment
 Elements of the defence of fair comment:
1. A comment, not an accusation or allegation of fact
2. Made honestly and in good faith (i.e. NOT reasonable or balanced)
3. Based on facts that are true
4. On a matter of public interest
 Hard to determine what is public interest; does the public have a right to know it? Can there be a privacy claim?
o Not the same as “Public is interested” (which justifies celebrity news)
o But if something undermines a public figure’s credibility (e.g. he’s caught being a hypocrite), it is more
deserving to be “public interest”
 Vander Zalm v Times: Test for opinion not facts: whether the comment is recognizable to the ordinary
reasonable man as a comment, not a bare statement of facts.
32







o Defence of FC not available for defamatory comments about private life of a public official
John v Kim: Defence of FC will not apply if facts and comment are intermingled.
Murphy v LaMarsh: If D fails to establish that comments were opinions, they will be treated as facts  D must
now satisfy defence of justification or some other privilege
Creative Salmon v Staniford: D can omit relevant facts, as long as that doesn’t provide a false or twisted account
Pressler v Lethbridge: Facts sufficiently notorious to become public knowledge do not need to be provided as
long as they’re clearly identifiable. Rumours are not facts.
Leech v Leader Publishing: No need to show that D had made a correct inference on the facts
Christie v Westcom Radio: FC will fail if P can prove (on BoP) that comments were made or published for an
improper motive or reason
Masters v Fox: If D had imputed “corrupt or dishonourable motives” on P, then these comments will be
protected only if the imputations are warranted on the facts.
**WIC Radio Ltd v Simpson [2008] SCC
Facts
P is a well-known activist who opposed material dealing with homosexuality in public school
curricula. In a radio broadcast, D stated that P condoned violence against homosexuals.
Issue
Was D liable here for slander?
Discussion
- At trial: D said he had no honest belief in that view and couldn’t satisfy a subjective test of fairness
and Analysis - Rejected decision in the much-reviled Cherneskey case in favour of Dickson: It’s unrealistic to
expect newspapers to only publish opinions they agree with (so honest belief should matter less)
- Evidence of malice can be used to defeat the FC defence
Ratio
See elements above. Tested whether anyone could honestly have expressed the defamatory
comment on the proven facts. Held that defence was established.
Defence of Responsible Communication on Matters of Public Interest
 To succeed with this defence, D must show that:
o Publication was a matter of public interest
o Defamatory comm. was published responsibly (or that D was diligent in trying to verify allegations)
 To determine this, Court will look at:
 Seriousness, public importance, urgency of the matter
 The status and reliability of the source
 Whether P’s side of the story was sought and accurately reported
 Whether inclusion of defamatory statement was justifiable
 Reportage: if statement’s public interest was due to being made rather than truth
 Reaburn v Langen: D had not acted responsibly, because he had accepted suspect’s story as true, failed to follow
up with witnesses, used inflammatory language, and omitted facts that could have made more balanced account
**Grant v Torstar Corp [2009] SCC
Facts
D reported that P wanted to extend his private golf course to include more holes. Local residents
objected. The report also mentioned some residents’ suspicions that P was improperly exercising
political influence to get govt approval for this.
Issue
Is D’s action protected by a defence in regards to being a public interest issue?
Discussion
- SCC changed defence to “responsible communication on a matter of public interest”
and Analysis
Ratio
33
Holding
Appeal dismissed.
Defence of Consent
 P (or someone on his behalf) gave permission for the publication, or statements were made in response to P
 Syms v Warren: D of Consent fails if D exceeded the scope of P’s consent
 Grimmer v Carleton Rd: P sued for defamatory statements in employer D’s letter, which court found was not a
publication since confidential. This letter was governed by D of C, despite P not anticipating all its allegations
Jones v Brooks (1974) Sask. QB
Facts
Lawyer P was removed from a project when he had a financial conflict of interest. His legal practice
began to suffer, and he suspected that D’s (Mayor and Councillor) were circulating defamatory
remarks about him. He hired private eyes to elicit and record such remarks from D’s, which they did.
Issue
Does coaxing defamatory comments out of D equate consent for publication?
Discussion
- Detectives’ purpose: Get D to make slanderous remarks about P and record them on tape as
and Analysis evidence for this action that P had suspected. Their words/manner provoked and invited D’s words
Ratio
Volenti non fit injuria: Knowing consent of P to D’s wrong, which P expected. After assuming the risk
of being slandered, P cannot say that D exceeded their privilege or were malicious. They now have
absolute privilege.
Holding
What was said by D constituted publication, regardless that they were provoked by P’s agents.
Theoretical Criticism of Tort Law
 Two types:
o Analytical: basic concepts of tort law, supposed functions, foundational concepts
 Work can be empirical (observational investigations of the actual operation of tort systems) or
philosophical (rigorous investigations of the internal logic of concepts)
o Normative: moral evaluation of torts concepts and systems, how they confirm to concepts of “justice”,
morality of some decisions/doctrines in terms of consequences
 Critique: tort law has been less willing to recognize other types of harm (e.g. psychological damage,
interpersonal relationships) since it focuses mainly on property
Deterrence
 Most people who commit torts aren’t the easily deterred (e.g. high risk takers; spontaneity)
 If you make the penalties larger, more severe, that could make more successful deterrence
 Cost of injury in US lessened for P; helped by lawyers taking contingency fees (cut of rewards if they win the
case, but no charge if they lose)
 Long delay between the tortious conduct and the imposition of liability may lessen the law’s deterrent effect
 Ways in which tort law serves as a deterrent:
1. It can internalize costs  Price system determine level of accidents for which society is willing to pay
2. It can allocate liability to the cheapest cost-avoider  Reduce total accident costs
Compensation
 Starting off with “People who have been injured should be entitled to compensation”, but how?
 Administrative costs of tort law systems > amount of compensation (85:15)
 Can move to a system of insurance, including no-fault insurance
- Con: could create a moral hazard (with insurance, people more likely to take risks)
- Pro: deters risky behaviour with greater premiums
34
Theories of Tort Law Based on Concepts of Justice
 In corrective justice, to shift a loss to D, P must prove D committed a wrong that caused P’s loss
 In wrongs, the factors that made D’s conduct wrongful toward P = Factors that caused P’s loss
 “Rights-based” approach to tort is a modern variation on corrective justice theory
Schwartz, “Feminist Approaches to Tort Law”
 “Reasonable man” POV and standards could be different from those of “reasonable woman”
o Female judges are statistically more likely to have experienced or worked with cases of harassment that
make them more qualified to deal with those cases than male judges
 Some feminist critics of tort law have argued that tort law concepts like injury and harm are determined on a
patriarchal basis, where male judges can’t easily put themselves in a female’s shoes
 Sometimes, a minority group is more punitive to members of their group; e.g. in rape cases, older women could
be more likely to fault the victim for causing her own harm
 Supported keeping men also accountable instead of separating them from the cases of female victims; turn a
male-on-female rape case into a human-on-human violation case
 We expect judges to sort of KNOW how a “reasonable person” would react to the cases, instead of relying on
empirical evidence
Priel, “A Public Role for the Intentional Torts”
 Tries to justify the difference between intentional torts and tort of negligence
 Damage caused by intentional torts (covers more limited harm, with causation) is almost like a subset of the
damages resulting from the tort of negligence (covers all kinds of harm)
 Ashley v Chief Constable of Sussex Police: Moved the discussion to the damage done by firing the gun, not the
actions and scenarios that led up to it
 Negligence = “You had a duty to do something and you didn’t” v. “You did something wrong”
 Supports holding public authorities more to account; e.g. saying they’re liable for trespass is different from
saying they’re liable for negligence