Intentional Torts
REMEMBER INTENT CAN BE TRANSFERRED
Assault
Any direct and intentional act that causes a person to apprehend immediate physical harm or offensive bodily contact—this
apprehension must be reasonable (objective test) Holcombe v Whitaker
Battery
Direct & intentional and physical interference with the person of another that is either harmful or offensive to a reasonable person
Bettle v Yim
Sexual Battery
Currently there is no distinct tort of sexual battery in Canada. Court usestraditional rules of battery
Intentional Infliction of Nervous Shock
An act or statement plainly calculated to produce harm Wilkinson v. Downton
False Imprisonment
Direct and intentional imprisonment of another person. Bird v. Jones
Malicious Prosecution
Proceedings initiated without reasonable or probable cause by D with malice that caused damage to P who was found
innocent.Nelles v. Ontario,
Discrimination, Stalking & Harassment
No discrete tort in these areas, but laws are changing: discrimination; harassment; stalking
Trespass to Land
Direct and intentional (or negligent) physical interference with the land in possession of another Turner
Trespass to Chattels
 Decide which one to use is driven by remedy the plaintiff wants (work backwards)
A) Trespass
Direct and intentional (negligent) interference with chattels in the physical possession of another.
*Minor harms; anything more significant will be a conversion* Fouldes v. Willoughby
Remedy: damages. The measure of damages for a damaged chattel is the reduction in its market value or the cost of repairs (where that
is less).
B) Detinue
 Cases of wrongful detention P has right to immediate possession. They ask D for return of the chattel but they refuse. Fouldes v.
Willoughby
 Remedy: specific performance (court order of return of chattel) OR pay for its value and pay damages for its
C) Conversion
Defendant’s wrongful appropriation (taking) of the Plaintiff’s chattel (essentially theft).
*More serious harms; but argue trespass in alternative* Fouldes v. Willoughby
 Remedy: forced judicial sale (full value of the good)
D) Action on the Case to Protect a Reversionary Interest
 This tort is available where the plaintiff does not have possession or an immediate right to possession,
E) 2 Procedures by which a Plaintiff can Recover a Chattel (besides detinue)
1) Replevin:.
2) Recaption:
Intentional Interference with Economic Interests (Business Torts)
A) Deceit (Fraud)
Proof of false statement made either knowingly, without belief or recklessly, with the intention of misleading the plaintiff. The plaintiff must
have reasonably relied on the statement and suffered damages. Derry v Peek
 Remedy: damages (put P back in position as if deceit hadn’t occurred, not in position they’d be in if statement true)
B) Passing Off
Plaintiff has a good will and reputation attached to the good they supply and the goods are recognized as specifically the plaintiff’s
product. The defendant misrepresents services to the public such that they leads public to believe that the goods they offer are those of
the plaintiff – but this does not need to be intentional. Plaintiff must suffer damages Ceiba-Geigy
Defence to Intentional Torts
Burden of proof: defendant must prove the defence in order to escape liability. Not mutually exclusive; can raise multiple defences at
the same time (note on exam!)
Consent
A complete defence that is framed in terms of the specific tort D must PROVE P consented
Implied
2) Exceeding Consent
3) Competency to Consent
4) Factors Vitiating Consent
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a) Fraud; b) Mistaken belief; c) Duress; d) Public policy
Self- Defence
Self defence is a justification (what person did was not wrong);
Defence of Third Parties
Gambriell vCamprielli
Defence of Real Property
Test (Macdonald v Hees):
It is lawful for an occupier of land to use a reasonable degree of force to prevent a trespasser from entering, or to
eject him after entry. Look to circumstance to determine what is reasonable.
Necessity
1) Public
 Public necessity allows one to intentionally interfere w the property rights of another in order to save lives or protect public interest
from external threats of nature (fires, floods, storms etc.)
2) Private

Private necessity allows one to intentionally interfere w in order to protect their own interests
Discipline
CL still recognizes the defence of discipline that parents and guardians can invoke to privilege use of force when dealing w kids. The defence
also exists in Criminal Code (s.43). Dupperon,
Legal Authority
Entitles the defendant to engage in conduct which would otherwise be tortious and actionable.
1) Canadian Charter of Rights & Freedoms
2)Authority & Privilege to Arrest without a Warrant
3) Rights & Obligations in the Arrest Process
 Police officers arresting w/out a warrant must inform of grounds of offence; (Koechlin,
4) A Peace Officer’s CL Power of Entry to Search for a Wanted Person
There is no unrestricted right to enter in search of a fugitive. Must be reasonable grounds and announcement of entry Eccles
5) CL Power to Search Pursuant to Lawful Arrest
Remedies in Intentional Torts
Plaintiff can ask for and receive more than one type of remedy simultaneously.
A) Damages
grants the plaintiff a legal right to money that can put them in the place they would have been
B) Injunction
Directs someone to do or not do something. Most typically granted in cases of nuisance
C) Declaration
Very unusual. A formal statement issued in order to settle dispute or an issue of a person’s legal rights.
D) Order of Specific Restitution
 Makes the person restore a “pre-existing condition or return an object”(p.24)
2) Types of Damages
** Cite Vorvis for all types of damages
A) Nominal Damages
B) Compensatory Damages
3) Aggravated Damages
 compensatory. They recognize that the malicious, outrageous and high-handed nature of the defendant’s conduct (TWNA v Clark)
D) Punitive (Exemplary)

Designed to punish the defendant; used for retribution and deterrence. (Vorvis, B.(P.),
E) Disgorgement

Takes away from the defendant benefits that he obtained as a result of his own wrongdoing.
Nuisance
 Aim of the law of nuisance is to protect a plaintiff’s interest in and enjoyment of land from unreasonable interference (Huron Steel)
Private Nuisance
 Any activity which results in an unreasonable and substantial interference with the right of use and enjoyment of land (Pugliese).
1) Physical Damage
 Courts tend to take a very strict approach to physical damage to property, and as such will almost always regard it as an unreasonable
interference
 Also important to note that there is no need for the interference to be continual an isolated incident causing physical damage can be
enough (Tock)
2) Defendant Interferes with the Plaintiff’s Enjoyment of their Land
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Factors to consider when determining reasonableness (Huron Steel):
1) Character of the neighbourhood
2) Intensity of the interference
3) Duration of the interference
4) Time of day and the day of the week
5) Zoning designations
6) Utility of the defendant’s conduct
7) Nature of the defendant’s conduct
8) Sensitivity of the plaintiff.
Defences to Nuisance
Defence of Statutory Authority
 Ryan v. Victoria court says for the defence to apply, the defendant must show that it was practically impossible to avoid creating a
nuisance
Consent
Although very unusual for this defence to succeed, it is a defence to nuisance if you can show that the defendant consented to the conduct or
actively encouraged it
Prescription
Where a defendant has carried out the activity continuously and uninterrupted for more than twenty years – and the plaintiff has been
aware and not tried to prevent
Contributory Negligence
Remedies for Private Nuisance
1) Injunction
2) Damages
3) Abatement
Defamation
The law of defamation seeks to protect the reputation of individuals against unfounded and unjustified attacks, but must be balanced
with the need to protect freedom of speech. Consistent with Charter protection of individual dignity and self-worth.
Libel or Slander?
Slander: Defamation by the spoken word (transitory)
Libel: Defamation by concrete forms of expression” (such as written defamation, films, and pictures).
3 Elements of Defamation
(1) Material was Defamatory
Objective Test: Words tending to lower the plaintiff in the estimation of right-thinking members of society generally (Sim v Stretch)
(2) Material Refers to the Plaintiff
(3) Material must be Published
Defences to Defamation
Justification
Truth is a complete defence to defamation
Note: Key here is that the defendant must be able to show that the “whole of the defamatory matter is substantially true” (Meier v.
Klotz (1928)).
Absolute Privilege
Absolute Privilege is a complete defence to defamation even if material was malicious and P proved all 3 elements.
Qualified Privilege
The defendant will have a defence of qualified privilege (complete defence) if they can show that they had a moral, social or legal duty to
make the statement. (Toogood v. Spring, 1834).
Fair Comment
Fair Comment is a COMPLETE DEFENCE allows ppl to comment on matters of public interest even if their comments are defamatory. No
need to show the comments were fair as long as honest and in good faith (ie no malice) criticism McQuire
Consent
Consent is a complete defence to defamation.
D can use consent if he can show that the statements originated with the plaintiff, or by someone acting on the plaintiff’s behalf.
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