Introduction to the Law of Torts

The word tort is derived from the Latin word torquere, which means twisted or crooked. At its most basic, we
can say that torts is the area of law that deals with wrongdoing. Tort law is about conduct and consequences.
Conduct such as:
Intention consequences are desired
Negligence creating a reasonably foreseeable and substantial risk of its consequences
Accident no desire for consequences nor creates a foreseeable and substantial risk of consequences
(strict liability extends liability to accidental conduct)
Objectives of Tort Law
Moralist View
o System of corrective justice based on ethical principle of personal responsibility for damage
caused by wrongdoing
o Reflection and embodiment of intuitively ethical and moral principles
Instrumentalist View
o Compensation
o Punishment
o Deterrence
Specific
An aspect of punitive function of tort law
Deters the individual defendant
General
Market
Most applicable to manufacture of goods and the commercial supply of services
Consumers will buy goods that are safer and cheaper
o Psychological dimensions
o Education
o Ombudsman role
Defendant
But:

The main problem with this definition is that it doesnt provide us with a clear way of
distinguishing torts from other areas of law that are also concerned with wrongdoing. Simply
saying that torts is concerned with wrongdoing is not enough.
Perhaps a better way to start is by focusing on the distinction between public and private
wrongs. According to this approach, in contrast to the criminal law which is concerned with
public wrongs (that is, wrongs against society as a whole) tort law is concerned with private
wrongs (that is, wrongs against a particular individual). If we take this approach based on the
distinction between public and private wrongs then we can define tort law as that area of law
that is concerned with the rights and remedies associated with legal relationships
between individuals.
What is wrong with this definition of torts?
Although it does help to distinguish torts from criminal law, the definition fails to take into
account a number of key aspects of the law of torts.

For example:

So:

A great deal of torts is concerned with what is referred to as strict liability

that is, situations where liability is imposed in the absence of a prior
relationship between the parties or any wrongdoing on the part of the
defendant.

Where does this leave us? How do we define torts?

Can identify three ways in which we can deal with the problems of
defining torts:
(1) Define torts in terms of the areas of law that are recognised by the courts as constituting torts. That is,
torts is the area of law that deals with the various topics that are listed on your syllabus such as the
intentional torts, negligence etc. which have historically been recognised by the courts as constituting
the law of torts.
(2) Define torts as the area of law concerned with private wrongs other than those arising out of contract.
(3) Define torts in terms of its aims and objectives i.e. torts is the area of law concerned with
compensating plaintiffs for the private wrongs committed against them by other individuals.

The difference between torts and criminal Law

According to Osborne there are three main differences:
(1)

The main function of the criminal law is to punish those who have committed offences under the
Criminal Code. In contrast, the aim of tort law is to ensure that those who have suffered injury or
damage are compensated for their losses.
Now: According to Osbourne, punishment is designed to prevent a repeat offence by the defendant
and to deter other citizens from similar antisocial conduct.
Note that this is only partially true criminal punishment is not always about deterrence, but
can also be based on retributive principles (that is, punishing people purely because what they
have done is wrong) or for reasons of restitution (that is, to re-assert the rights of the victim).

(2)

The criminal justice system exists to protect and represent the community at large, whereas tort law
exists to protect the interest of individual claimants. Note that this difference in emphasis is mainly
reflected in terms of who brings the prosecution / action in a given case:

(3)

Criminal prosecutions are brought by the state

Tort actions are brought by the person who suffers the loss

The standard of proof is higher in the criminal law. In criminal law, the prosecutor must establish the
guilt of the accused beyond a reasonable doubt, whereas in torts the plaintiff only has to prove the
case on the balance of probabilities.

The difference between torts and contract

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A great deal has been written on the relationship between contract law and torts, but it is possible to identify a
number of key differences:
(1) The source of primary obligations
Obligations in tort are imposed on the basis of circumstances. For example, a motorist owes a duty of
care to all pedestrians, even if the motorist never agreed to take care or is unaware of the duty.
In contrast: Contractual obligations are generally imposed on the parties by themselves.
(2) The notion of privity
Because law imposes tort obligations, they apply even if the parties do not know each other.
In contrast: Because contractual obligations are voluntarily created by the parties, their
enforcement is subject to the doctrine of privity that is, only the parties to the agreement can sue
or be sued if that agreement is broken.
(3) The purpose of compensation
NOTE: The defendants must be worth suing such as people/institutions with liability insurance, large
corporations/government institutions or the government. Vicarious liability.
Because tort obligations are imposed in order to prevent harm and protect an existing state of affairs,
compensation is torts is backward looking that is, it aims to restore the parties to the position they were
in before the wrong was committed.
In contrast: In contract, agreements are entered into with the intention of bringing about a state
of affairs in the future, and as a result compensation is forward looking that is, it aims to but
the parties in the position they would have been if the contract was performed.
Now: On the surface, it may appear as if the difference between tort and contract is fairly obvious that is, in
the case of a contract the relationship between the parties is defined by a prior agreement, whereas in
torts there is no such formal relationship
In one sense, this is right. However, the waters get a little muddier when you start to think about
implied contractual terms (in contract law) and duties of care in negligence (within tort law).
For example: In some cases, the courts will imply terms into contracts, and therefore in effect
impose an obligation on an individual to behave in a certain way
Compare this with the situation in negligence, where the courts will sometimes say that
an individual owes a duty of care to another person in a particular set of circumstances,
even if there is not prior relationship between the two parties.
Arguably, in both cases the wrong complained of arises out of an obligation that has been imposed by the
law, independent of any relationship that may or may not exist between the parties.
If we think that the main difference between torts and contract is based on the idea of prior agreement, then it
is easy to see how this distinction start to break down in certain situations.

The Foundations and Objectives of Tort Law

Focus of this lecture is the various arguments about the purpose of torts. Asking the questions: Why do we
have torts? What is it that the law of torts sets out to do?
One way to approach this question is to begin with a descriptive account of the functions of tort law (that is,
look at the aims tort law pursues and what tort law does in practice) before then moving on to a normative
account of the functions of tort law (that is, look at the aims tort law could pursue and what tort law should do
in practice)

Descriptive Account
Taking a descriptive approach, we can identify a number of aims and objectives within the law of torts:

(1)

Compensation
To create stability and predictability for victims and also people in society
Allows individuals to organize their own behaviour accordingly to avoid liability
Not have to fear for others wrong actions and being left uncompensated
Return the person back to the original position as if the tort hasnt occurred
BUT this will mean we should only sue people with deep pockets or insurance
Ie. Tort systems provide 64% to victims where no-fault systems provide 88%
o Compensation does not speak of the underlying inequalities between the parties (distributive
justice)
o Rawls on distributive justice
What would the society look like?
Imagine yourself in a room and your position in a society will be randomly allocated
when you walk out of the room
According to Osbourne, the most important function of tort law is to provide compensation for losses
caused by conduct that the courts regard as having fallen below acceptable standards.
o
o
o
o
o

Key:

Central to the notion of compensation is the idea that tort law should aim to restore the plaintiff
to the position that he would have been in if the tort had not been committed.
Result: Compensation is tailored to the particular loss that the individual plaintiff has
suffered, and seeks to provide a full indemnity for the plaintiffs losses.

Although we can argue that society has a legitimate interest in minimizing the disruption caused by
injuries to individuals (i.e. society functions better if people are compensated for their injuries and are
free to continue contributing), we can also argue that the commitment to compensation is reflective of a
broader commitment to what is often referred to as corrective justice.
According to Jules Coleman, corrective justice views tort law as a system of first- and secondorder duties:
(1)

Duties of the first order are duties not to injure.

These duties establish norms of conduct.

(2)

Duties of the second order are duties of repair.

These duties arise upon the breach of first-order duties. That second-order duties so
arise follows from the principle of corrective justice, which says that an individual has
a duty to repair the wrongful losses that his conduct causes.
Note: For a loss to be wrongful in the relevant sense, the wrongdoer does not
need to be morally to blame. The loss is only incident to the violation of
the victim's right not to be injured a right correlative to the
wrongdoer's first-order duty not to injure.

(2)

Punishment
This is the idea that one of the main functions of tort law is to express societys disapproval of the
conduct of wrongdoers who cause harm to other citizens. (retributive justice: punishing for the fact that
the act was wrong, very good support for criminal laws). Holds people accountable for their actions and
making right choices. The key is whether they had control in committing the wrong.
According to Osbourne, an award of damages is not only designed to compensate the plaintiff,
but also acts as a sanction on the defendant.

(3)

Deterrence
This is the idea that one of the functions of tort law is to influence the conduct of citizens, with a view to
promoting certain social goals (such as public safety)
Note: Torts generally seeks to influence behaviour through three main forms of deterrence: specific
deterrence, general deterrence, and market deterrence:

(4)

i)

Specific Deterrence The law aims at changing the behaviour of the defendant who is
the subject of the particular tort action.

ii)

General Deterrence The law aims to change the behaviour of a class of potential
defendants, with a view to preventing future harms. For example, decisions in relation to
medical negligence frequently aim to send a message to the profession as a whole
about the standards of care and conduct expected.

iii)

Market Deterrence The law aims to change the behaviour of the producer of goods so
as to prevent future harms. Note also that one of the other aims of market deterrence is
to ensure that producers properly internalise their costs.

Education
Note that it is easy to confuse this aim with the related aim of deterrence. Main point is that in its
educative role, torts aims to influence the behaviour of society at large, and not just the actions of
potential defendants.

Normative Account
Looking at the question of what it is torts should do.

Note that one of the main critiques of corrective justice is offered by proponents of distributive justice. This
critique is very old goes back to Aristotle, who noted in Book V of The Ethics that under principles of
corrective justice it makes no difference whether a good man has defrauded a bad man, or a bad man a good
one the law looks only at the nature of the damage. Treating the parties as equals.
Key argument is that the law of torts should pay more attention to the principles of distributive justice,
and be less sympathetic to the claims of those who already have a great deal.
In addition to the distributive justice critique, there are two alternative normative theories of torts:
(1) Retributive theory: Argues that torts should aim to impose liability on blameworthy defendants for the
purpose of penalizing them for their moral fault.
(2) Economic theory: Argues that torts should aim to minimize the costs of accidents and the costs of
avoiding them. According to this theory, tort liability should only be imposed where it leads to rational
economic behaviour and an efficient allocation of resources.

Basic Principles of Liability for Intentional Torts

According to Osbourne, there are a number of key distinctions between intentional torts and the tort of
negligence:
(1) Intentional torts have a long history, whereas the tort of negligence is a fairly modern tort. This is
important because it explain why the area of intentional torts appears to be quite static and unchanging
when compared to negligence.
(2) Intentional torts are defined by rules that tend to be precise, narrow and rigid, whereas negligence is
governed by general principles and the use of what Osbourne refers to as discretionary principles
such as reasonableness and foreseeability.
(3) Intentional torts have been relatively stable over time, whereas negligence has been in a state of
development over the last hundred (and particularly the last eighty) years.
(4) Intentional torts are characterised by convention, orthodoxy, and conservatism, whereas the tort of
negligence has been dynamic, expansionary, and largely reflective of current public attitudes and
policies.
(5) Intentional torts are not covered by liability insurance and some have a parallel in criminal law.
(6) Intentional torts require conduct both voluntary and intentional

(1) Intention, volition, and motive

For Osbourne, intent typically refers to a subjective desire on the part of the defendant to bring about a
particular consequence.

Intention
Alternative definition from Solomon: In tort law, the term intent is used to refer to an actors desire to
bring about the result or consequences of his act, rather than his desire to do the physical act itself.
Put another way, we say that A intended X when he wanted X to result from his actions.
The textbooks provide lots of examples of intention in torts, but the point can be easily illustrated
by the following case:
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.
Clearly, A intended to hit the can. But we probably would not say that he intended to hit
B. As a result, A could not be held liable for battery (as the tort requires the harmful
conduct i.e. striking B to have been intentional).
Key Point:

When we are dealing with intentional torts, the central issue is usually whether the defendant
desired to bring about the specific consequence that gives rise to the tort in question.
Important to note that the defendants intent does not need to be hostile or otherwise
blameworthy.

Note that it is important to recognise the difference between a voluntary act and an intentional act. A
voluntary act is one that the defendant was able to exercise control over (person wanted to do it). Examples of
involuntary acts include acts committed while asleep, in the throes of a seizure or epileptic fit etc.

Voluntary
This is important because volition is not usually enough to establish liability, except in cases of strict
liability. Need to also show that the defendant intended the consequences of the involuntary act.
Good example of this is in the very old English case of Smith v. Stone (1647). Here, Smith
brought an action in trespass against Stone, on the grounds that he found him on his land and
had not given him permission to be there.
However:

Stone argued that he was not on the land voluntarily, but rather had been chased
on to the land against his will. Court found in favour of Stone. This case sets the
ground that intentional torts require a voluntary aspect. The person forcing the
act would be the tortfeasor.
Stokes v. Carlson, 240 S.W.2d 132 (Mo. S.C. 1951) deemed involuntary actions
to include reflex reactions, convulsive movements, and movements during sleep
and unconsciousness.

Also need to be clear on the relationship between motive and intent in torts. Generally, they are seen as
distinct, with the primary focus being on intention rather than motive.

Motive
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Praiseworthy motive is not a defense, although can be an element of a valid defense

Gilbert v. Stone (1648) 82 ER 539 (KB)
o Courts usually do not inquire into motive
o Motive tends to come up in duress
o Stone claims he had 12 people threatening him to go to Gilberts property to steal his horses
o If we allow motive to be a defence, we deprive innocent victim from a remedy
o Duress was attempted as a defense, it should be one factor in assessing damages
The key between motive and voluntary would be the choice. Was there an alternative choice?

Key Point:

Motive is not usually an element of a tort action. As a result, while the plaintiff will almost always
have to prove intent on the part of the defendant, they dont have to prove motive.

(2) The distinction between constructive and transferred intent

Constructive Intent
In certain situations, intent can also be inferred in torts as a result of the doctrine of constructive intent
This is the idea that the concept of intent includes not only the desired consequences of the act, but
also the unintended consequences that are certain or substantially certain to result from it.
Example:

Defendant plants a bomb outside his boss office with the intention of injuring him. If he
also injures other employees as a result, we will almost certainly regard those injuries as
intentional as well (because we treat him as if he had intended them).

Why might we be troubled by the idea of constructive intent?

Because it allows us to hold people responsible for things that they may not literally have intended
How do we justify it? By reference to the need to protect plaintiffs and the public at large from
people who dont give enough though to the likely consequences of their actions.

Note: Problem becomes even more difficult when we start talking about the difference between
objective and subjective approaches to imputer intent.
Should we take an objective or subjective approach?
The difficulty of an objective approach may penalize a defendant for something they didnt think about
at all
The objective approach may give the public more protection from thoughtless actions
USA defines constructive intent as the actors own belief in the certainty or substantial certainty of the
consequences which is a subjective pov (Garratt v Dailey) this gives rises to many problems and
lesser protection for plaintiffs. But could this have something to do with the different development of
negligence in the USA?
Constructive intent is based on the criminal law presumption that individuals are deemed to intend the
natural and probable consequences of their acts (Bielitski v Obadiak)

Transferred Intent
In addition to constructive intent, there is also the notion of transferred intent in torts. Refers to the situation
where the defendant intends to commit and intentional tort against one party, but unintentionally commits a
tort against another (the plaintiff).

Note: The doctrine also applies in cases where the defendant sets out to commit one kind of
intentional tort but ends up committing another.
According to Osbourne, the idea of transferred intent is justified on the grounds that the
defendants conduct is culpable and the plaintiff is innocent.
Put another way, it is justified on the basis that we should respond to the wrongful
intention and the harm caused even if the defendant does not achieve his particular
aim.

This might be controversial if we consider in a criminal context. Should the person receive less
punishment because they failed in their intention or ends up hurting someone else?
o Courts are more liberal in the case of torts to give the plaintiff compensation and also because
the defendant is not receiving a penal sentence, just monetary compensation
o Courts are more strict in a criminal case

Using transferred/constructive intent in a suit for intentional torts does not preclude a plaintiff from suing under
other grounds instead, such as gross negligence or negligence if a duty of care was owed.
Having departed from the social standard of conduct, he is liable for the harm which follows from his act,
although he did not intend it (Bettel v. Yim)

(3) The meaning of capacity in tort

Generally, we assume that all adults have the capacity to form the sorts of intentions that we talk about in
relation to intentional torts.
However:

We sometimes make exceptions in the case of children and the mentally disabled.
Basic rule:

A defendant cannot be held liable in tort if he or she did not understand the
nature and quality of their act.

Note: A defendant can be held liable even if they did not realise that the act in question was
wrong or unlawful. prior fault courts will consider your capacity being affected by your own
prior faults and may not be as liberal.

Assault and Battery

When we speak of assault, it usually includes assault and battery because it is blurred (Gambriell v Caparelli
(1974))

Assault
General points
Damages for assault unaccompanied by battery is usually small. (Stephens v Myers (1830))
Defendant being assaulted may provide a basis for defence of consent or self-defence or provocation
(Bruce v Dyer (1966))

According to Osbourne, an assault in tort law is any direct and intentional act that causes a person to
apprehend immediate harmful or offensive bodily contact.

Based on this definition, in order to succeed in a claim for assault a

plaintiff must prove:
(1) The act complained of was direct (prove by plaintiff) and intentional (reverse-onus on defendant); and
(2) Caused the plaintiff to apprehend immediate harmful or offensive bodily contact

(1)

The act complained of was direct and intentional

Directness
In order to satisfy the requirement of directness, the plaintiff must prove that the interference was an
immediate result of the defendants action that is, the interference is a direct consequence of the defendants
act.
Example:

If A raises their hand as if to strike the plaintiff, that would constitute a direct assault.
However, lets say A says to B the next time I see C Im going to hit her like this and
strikes a tree. B then passes this on to C. There is no assault, as the threat isnt direct.

Intentional
Once the plaintiff has proved that there is a direct act, it is for the defendant to prove that he did not intend to
cause the defendant to apprehend immediate harmful or offensive bodily contact.
Q:

Why do we reverse the onus of proof here?

A:

Osbourne says on page 239 that it arises out of the direct causal link between the defendants
anti-social conduct and the violation of the plaintiffs right to personal autonomy.

Now: Also need to note that the principle of transferred intent clearly applies here. For example, if A
walks into a room brandishing a knife yelling Im here to kill David and there are two Davids in
the room, both can sue for assault if the act put them in fear.
However:

What about the situation where the plaintiff misunderstands the defendants acts
and intentions? For example, lets say that the staff at a holiday resort stage a
fake bus hijacking and, using fake guns, pretend to hold everyone in the bus to
ransom, threatening to kill them if their demands for money are not met?
General view:

(2)

Once it has been held that the defendant has the

apparent intent and apparent capacity to carry out the
threat (judged by the standards of a reasonable
person), they can be liable (Kennedy v Hanes [1941]
SCR 384).

Caused the plaintiff to apprehend immediate harmful or offensive bodily

contact

Can break this second element down into three important parts:

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(i)
(ii)
(iii)

Caused the plaintiff to apprehend (but-for test)

Immediate
Harmful or offensive bodily contact

Cause
The first part is usually not hard to prove, and is established by reference to the idea of but-for causation
that is, but for the actions of the defendant, would the plaintiff have immediately apprehended harmful or
offensive conduct. Actually being terrified is not necessary (Brady v Schatzel [1911]). In addition, passive
conduct of the defendant will suffice, does not need to be active conduct.
Immediate
In order to establish immediacy, the plaintiff must be able to prove that they expected the attack or contact to
happen immediately following the threat. Put another way, the threat must be one that is capable of being
carried out at once. There is a degree to the immediacy. Ie. Someone calling and saying they are on their way
can be quiet immediate. Furthermore, the plaintiffs options (ie. Running away) will not be taken into account by
the court
Two important points:
(1) The apprehension of immediacy must be reasonable; and
(2) Threats of future violence will not suffice
Harm
Actual bodily harm can include injury to any part of the body including organs, nervous system and the brain
(R v Chan-Fook [1994] 2 All ER 552)
Note that the Canadian courts have yet to consider whether to adopt the approach taken in the English case of
R. v. Ireland (1997). This case (about making silent phone calls which amounted to assault) is interesting
because the court held that:

Psychiatric injury was capable of being bodily harm.

Words alone (and silence in some circumstances) can constitute an assault.

Silence, depending on the circumstance, could amount to apprehension

Based on projection, words and silence should constitute assault but the jurisprudence in this area is not
well-developed

Psychiatric injury is included but not mere feat, distress or panic

Assault requires fear of an immediate application of force. Such fear could have existed in this case if for
example the victim of the silent caller had feared the possibility of immediate personal violence due to the
callers imminent arrival at her door.

Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975)

Whether conditional threats (coupled with physical presence) amount to assault?
o Prior to this case, words does not amount to assault
o While words standing alone cannot constitute an assault, they may give meaning to an act and
both, taken together, may constitute an assault
o Key is the impression created in the plaintiffs mind

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Battery
According to Osbourne, battery is a direct, intentional, and physical interference with the person of
another that is either harmful or offensive to a reasonable person. No need to show damage, because
there is a right to bodily integrity. Can break this definition down into four key elements (Bettel v. Yim). In
Canada, battery may be committed intentionally or negligently (Cook v Lewis):

Elements
(1) Physical interference
(2) Directness
(3) Intention (defendant must establish lack of intent and negligence (Dahlberg v. Naydiuk (1969))
(4) Harm

(1) Physical interference

Essentially means that there has to be some form of contact or physical interaction with the plaintiff. Physical
interference does not mean the same as physical injury!!
NOTE: Battery must be a positive act. According to English jurisprudence (Wilson v Pringle [1986] CA), there is
implied consent in certain day-to-day social interactions, plaintiff has to establish hostility on the defendants
part to succeed)
Note that the defendant does not have to have actually touched the body of the plaintiff that is, bodily contact
is not required for physical interference (Forde v Skinner (1830) hair cut). Instead, simply grabbing someones
clothing or snatching something from them will be enough to establish physical interference
Note: Osbourne speculates on whether X-raying someone, or exposing them to ultraviolet light in a sun
tanning salon would amount to physical interference for the purpose of battery. He seems to think that
they would, as they constitute interferences with the physical integrity of the person (that is, they have
an effect on the body).
This seems to make sense, in part because these sorts of actions clearly interfere with an
individuals right to determine what happens to their body.
In addition, the argument is also in keeping with the long-standing rule that a plaintiff
does not need to be aware of the battery when it takes place. For example, someone
who is touched without their consent while asleep or unconscious will be able to sue for
battery once they become aware of the interference.
Note that this view is reflected in the decision in Malette v. Shulman (1990) 67 D.L.R.
(4th) 321 (blood transfusion case, illustrates a persons right to self-determination)

(2) Directness
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Has the same general meaning as in assault. Note that as a practical matter, this means that things like traps
or deliberately poisoning someones food cannot be battery. There MAY be a move towards more liberal
interpretation, such as in the USA (Donald v Sebastian (1987) landlord failing to warn about contaminated
water source)
Interfering with something he plaintiff is carrying, wearing or riding on may also be battery (US Case: Morgan v
Loyacomo, 1 So2d 510)

(3) Intention
Intention has the same meaning as in the case of assault, although it is important to remember that you only
have to intend to bring about physical contact you dont have to intend to cause harm or be socially
offensive. Also, as with assault it is for the defendant to prove an absence of intent once directness has been
established.
Bettel v. Yim (1978), 88 D.L.R. (3d) 543 (Ont. Co. Ct.)
case where the kid threw fireworks into the shop and shop owner shook the kid
similar to the criminal concept that we punish for the act/behaviour and not for the consequence.
Because the person did not anticipate the consequence is no excuse for a lesser charge.
Court understands that subjectively he did not intend so, but LEGALLY he is responsible
If physical contact was intended, the fact that its magnitude exceeded all reasonable and intended
expectations makes no difference. The defendant is responsible.
Concept of forseeability ought not to be imported into intentional torts
When something happens as a result of a chain of events deliberately set in motion by the defendant and at
the end there is unintended injury caused, it is not an accident. It is conduct for which the defendant must
assume responsibility. (Gray v Barr [1971] 2 QB 554 (Eng CA))

(4) Harm
Harm does not need to be physical. As the aim of the tort is to protect dignity, harm to ones sense of bodily
integrity will be enough. (Culter v Smith and Malette supra)

Sexual Battery and the Role of Consent

Currently there is no distinct tort of sexual battery in Canada. As a consequence, cases where the offensive or
harmful conduct is sexual in nature are dealt with according to the traditional rules of battery in torts.
According to the decision of the Supreme Court in Non-Marine Underwriters, Lloyds of London v.
Scalera [2000], the plaintiff in a sexual battery case must prove that there has been physical contact of
a sexual nature, but is not required to prove lack of consent.
Note: The decision in Scalera is significant because, by confirming that absence of consent is
presumed in sexual battery cases, the court made clear that the defendant's fault arises from
the intentional violation of the plaintiff's bodily security, and that it is the defendant who bears
the onus of proving consent.
According to Justice McLachlin, it would have been wrong to recognize a new tort of sexual
battery requiring the plaintiff to prove lack of consent.

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She argued that because the purpose of battery is to protect personal autonomy rights, it
would be wrong to expect a person whose bodily integrity has been violated in such a
fundamental way to then have to prove the contact was non-consensual.
Note:In this sense, Justice McLachlin's decision marks a rejection of the formal equality
of plaintiffs and defendants that underlies most civil litigation
Instead:

She explicitly recognized the power imbalance present in sexual

abuse as well as its often gendered nature, the inherent wrong to
victims of sexual abuse, and more generally, persons who have
suffered intentional invasions of their personal autonomy and dignity.

Consent
In NZ and England, plaintiff must prove absence of consent (Ceristopherson v Bare). In Australia, this is not the
case (Sibley v Miltinovic).
Note that the court can also refer to the idea of constructive consent when faced with an absence of clear
evidence.
That is:

The court asks whether it would have been reasonable for the defendant to believe that the
plaintiff was consenting to the battery
Put another way:

Hence:

Constructive consent is to be objectively determined based on

whether the complainant's conduct lent itself to a reasonable
inference of consent to sexual contact.

There must be a reasonable basis for the defendant's belief in the plaintiff's
consent; a reasonable person in the defendant's position should have believed
the plaintiff consented to sexual contact in the particular circumstances.
Note: In order to determine whether there was consent or not, the court will
consider the plaintiffs demeanor as well as the surrounding
circumstances at the time of the alleged assault.

Now: The reason why this decision was seen as a victory for feminists was because, by rejecting a subjective
assessment of belief, the court also rejected the idea that a honest, mistaken (but unreasonable) belief
could be a defence.
However: Can be argued that because Scalera didn't go into great detail n the question of constructive
consent, there are a number of problems with this approach:
(1) It is unclear as to whether the defendant needs to adduce evidence about reasonable
efforts to ascertain the claimant's consent.
(2) The objective approach means that the plaintiffs perception of events and experience
of sexual violation is irrelevant provided the defendant can show that there is a
'reasonable' basis for their belief in her consent.
(3) Employing the idea of constructive consent could lead to a situation in which the courts
in effect blame victims for having behaved in ways that induced defendants into
believing consent was present, or for failing to resist in circumstances where a
reasonable person would have protested.

14

(4) Constructive consent is premised on common sense ideas about 'normal' or

'reasonable' behaviour or responses to unwanted sexual advances.
There are a number of potential advantages of suing for sexual battery in tort:
(1) The plaintiff can control the case, choose what facts are brought before the courts, and what expert
evidence is presented; and
(2) Taking a civil approach may have therapeutic benefits for the plaintiff, and promote healing.
There are also a number of possible disadvantages:
(1) Civil litigation has the potential to make matters worse. Cost, delay and stress may undermine the
therapeutic benefit of civil litigation.
(2) When the action is defended, there is a real risk of secondary victimization.
(3) Civil litigation is expensive, and the plaintiff may not receive full, or even partial, damages
Note: One solution might be to have a new tort of sexual battery which mirrors the approach taken in the
criminal law i.e. does not allow for the defence of implied consent (as per the decision of the Supreme
Court in Ewanchuk [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193).
Ewanchuk severely limits the situations where an accused person can claim an honest but
mistaken belief in consent to sexual contact.
Rule: Mistaken belief in consent can only operate to negate the mens rea required for sexual
assault where the accused can show that they believed the complainant
communicated consent to the sexual contact in question.

False Imprisonment and Malicious Prosecution

False Imprisonment
Definition:

False imprisonment is the direct and intentional imprisonment of another person.

Here, the terms direct and intentional have the same meaning as in torts such as assault and
battery. However, in the case of false imprisonment, the plaintiff must prove intent.
Note: Two main points to remember:
(1) The tort is actionable without proof of damage; and
(2) There must be a complete restriction on the plaintiffs physical liberty.

Elements
1. Direct
2. Intentional

15

3. Complete restriction on physical liberty

a. As regards the requirement of restraint, it is important to note that physical imprisonment in a
room or a building is not necessary. Restraint may be imposed by:
i. Barriers
ii. An implicit or explicit threat of force
iii. An explicit assertion of legal authority
iv. Partial obstruction not imprisonment (Bird v Jones) if the person has opportunity to go
another direction
v. Psychologically (Campbell v S.S. Krege Co)
Threat of arrest or embarrassment is enough to cause psychological restraint
b. Lack of a reasonable means of escape (ie. Crossing a third partys land is unreasonable but
there is case law in 1699 that shows otherwise, Wright v Wilson)
i. Courts have to determine whether the means of escape was reasonable (Hanson v
Waynes Cafe Ltd)
c. No need to be conscious of being falsely imprisoned (no case law in Canada but some mention
of this J.(M.I.) v Grieve). There is English and USA case on this (Murray v Ministry [1998])
i. Result:
A remedy is probably available to kidnapped infants and mentally
incompetent adults who, because of age or an illness such as Alzheimers disease, are
unaware of their detention.
d. Prisoner being placed in solitary confinement is false imprisonment (Hill v British Columbia)
which is different from the UK perspective (Hague v. Deputy Governor of Parkhurst Prison
[1991] HL)
Note: The issue of whether the imprisonment was lawful (or false) is treated as a defence by the court,
rather than as an element of the tort (that is, it must be raised by the defendant).
One can be liable for false imprisonment for ordering another to do so (if that person had no discretion/control)
Reid v Webster (1966) PEISC

Question of indirect false imprisonment

Consider the case of Roberts v. Busters Auto Towing Service Ltd. (1976), 70 D.L.R. (3d) 716 (B.C.S.C.):
Facts: Employee (E) reports incident to the police, and asks them to apprehend the plaintiff (P). Police
apprehend plaintiff and take him to the police station.
This is false imprisonment because E directed the police to apprehend P argument seems to be that
the police had little or no discretion as regards the question of whether to apprehend or not.
However:

E gives information to justice of the peace (JP) who then orders P be held in
custody.
No false imprisonment by E because JP exercised their own discretion when
deciding whether to place P in custody or not.
However:

E could be liable for malicious prosecution (Hinde v Skibinski

(1994)).

Indirect false imprisonment involves how much discretion the action-taker has in the
imprisonment of the individual
o If there was no discretion, the action-taker cannot be held liable for false
imprisonment but rather the person giving the order/information

16

If there was discretion, there may be liability for the action-taker

Malicious Prosecution
According to Osbourne, two interests are in tension in the tort of malicious prosecution:
(1) The freedom of individual citizens from groundless criminal prosecutions that may result in damage to
their reputation, a loss of liberty, and financial loss
(2) The public interest in the effective and uninhibited prosecution of criminal wrongdoing.
Note: The tort of malicious prosecution strongly favours the public interest by protecting prosecutors
from liability unless the prosecution was brought maliciously and without reasonable and
probable cause.
Not only for criminal prosecutions but also by-law infractions taht can lead to imprisonment (Delancey v Dale &
Co. Ltd (1959))
Wrongful initiation of disciplinary proceedings against professionals (Khanna v Royal College of Dental
Surgeons)
Continuation of charges that are known to be error is also considered malicious prosecution (Oniel v
Metropolitan Toronto Police Force)
Failure on malicious prosecution does not mean plaintiff cannot sue on negligent prosecution and negligent
investigation which is a lower burden (Hill v Hamilton-Wentworth Regional Police Services Board [2007] SCC
41)

Elements of the tort:

The plaintiff must prove that
(1) Defendant initiated the proceedings against the plaintiff
(2) The proceedings terminated in the plaintiffs favour
(3) There was no reasonable and probable cause for the proceedings
(4) There was malice on the part of the defendant
(5) The plaintiff sustained damage.

(1)

Institution of the Proceedings by the Defendant

Rule: The defendant must have instigated the proceedings. This means that the defendant must have
been actively instrumental in bringing a prosecution.
Note: Merely providing information to the police is normally not sufficient unless a false report
is deliberately given to the police for the purpose of prompting a wrongful prosecution.

17

(2)

Termination of the Proceedings in the Plaintiffs Favour

Rule: A conviction indicates that there was reasonable and probable cause for the proceedings.
Hence:

(3)

A conviction that has not been set aside will prevent an action in malicious
prosecution.

Lack of Reasonable and Probable Cause

Traditionally, this requirement was seen as having two elements: subjective and objective

Subjective element = an actual belief in guilt

Objective element = a rational basis for that belief

In practice, this means that the plaintiff had to show that:

a) The defendant did not honestly believe assuming that the facts of the case are true that that
the plaintiff was guilty; and
b) No reasonable person, placed in the position of the defendant, would have come to the
conclusion that the plaintiff was guilty
However: The position appears to have changed as a result of the decision in Miazga v. Kvello Estate
[2009] SCC 51
Facts: Prosecutor (M) prosecuted two parents for sexual assault, who had been accused of the crime
by their three children (they also accused a range of other people, including the foster parents).
M had doubts about the credibility of the children, and consulted with his head office, who
advised him to continue the prosecution if he believed the essential elements of the children's
story of the accusations.
Now: Parents were convicted, but then it later emerged that the children had been lying.
Parents sued M for malicious prosecution. M was convicted, and the trial judge
addressed the third step of the test, and noted that M never testified whether he believed
the children, and even if did believe the children it would not have been reasonable.
M appealed to the Supreme Court, which considered the subjective requirement of the
test
Held: The Court found that "reasonable and probable grounds" is concerned with the
Crown's professional, not personal opinion about the merits of the case.
Key:

Lack of a subjective belief of the plaintiff's guilt is inconsistent with the role
of a public prosecutor in upholding the public interest.
The Court also noted that in reviewing whether there were reasonable
and probable grounds, the court should only consider the facts available
to the prosecutor at the time the decision was made, not the facts that
later came out.

18

Rule: No need to consider subjective belief. Only consider objective at this stage, then
move to malice test.

(4)

Malice
Rule: Malice includes the notion of spite, ill will, and vengeance
But:

Also extends to any improper purpose. The proper purpose of a prosecution is to bring
an offender to justice and to enforce the criminal law. Examples of improper purpose
include: Instigating a prosecution to secure a private collateral benefit; coercing a
person into a desired course of conduct; and shifting the blame for causing damage to
property to an innocent person.

Note: The court in Miazga v. Kvello Estate [2009] SCC 51 also had things to say about the
requirement of malice (Malice cannot e inferred from absence of belief in a reasonable
and probable cause alone):
Held: Malicious intent (wilfully) requires an improper purpose that was inconsistent with the
office of the Crown attorney. An honest (and negligent) but mistaken belief that there
were reasonable and probable grounds does not support a finding of malicious intent.
Also: Court found that while the lack of a subjective belief of reasonable and probable
grounds is a relevant factor in determining malice, it does not automatically
equate with malice. It may be the result of inexperience, incompetence,
negligence, recklessness or gross negligence - none of which are the same as
malicious intent.
Some US Jurisdictions put the burden of proving malice on the defendant and plaintiff only need to
show there was some other motive other than justice (no need to prove malice), but is not the case in
Canada as stated above and also in England (Moulton v Chief Constable of the West Midlands)

(5)

Damage
Rule: Malicious prosecution is not actionable without proof of actual damage
Examples of actionable damage:

Loss of reputation
Loss of liberty
Financial loss

Intentional Infliction of Nervous Shock

Like malicious prosecution, intentional infliction of nervous shock (IINS) is a tort usually defined in terms of its
elements. According to Osbourne, the plaintiff must prove:
(1) Outrageous or extreme conduct coupled with actual or constructive intent to cause a severe impact on
the plaintiffs psychological well-being; and
(2) Nervous shock, defined as recognizable psychiatric illness or physical harm.

19

TEST GIVEN IN SAMMS v ECCLES (Utah SC 1961)

1. Purpose of inflicting emotional distress
2. Where any reasonable person would have known that such would result; and his actions are
considered outrageous/intolerable

Can simplify this formulation as follows:

Outrageous or extreme conduct

Intent (or constructive intent) to cause

o

(1)

Nervous shock
o

As long as it is recognized that some distress will be caused, it doesnt matter if the
consequences are more severe than anticipated (moral threshold)
The part where courts usually use to restrict this tort

Outrageous or extreme conduct

This is largely a question of fact, to be determined by the court with reference to the standards of
reasonable people.
Osbourne gives a number of examples of outrageous conduct:

The circulation or communication of shocking and false information about the plaintiff or their
family.

Unwarranted accusations of criminal wrongdoing or immorality made to the plaintiff.

Threats of future violence.

Serious harassment, stalking, and other terrifying conduct.

Note that the court is more likely to find that the conduct is outrageous if the plaintiff was
vulnerable (and the defendant was aware of that vulnerability).
Note also that the act does not need to be an isolated incident can be a course of
conduct.
Clark v. R.:

(2)

Court held that a series of incidents involving the sexual harassment of a

female police officer by her male colleagues and supervisors which
caused her to suffer from her nervous could be enough to warrant
imposing vicarious liability on the Crown.

Intent (or constructive intent) to cause

Rule: Ds conduct must have intended to have serious implications for Ps psychological well-being

20

Note: Intent is often inferred from the seriousness of Ds , and may also be inferred where
mental distress to P was reasonably foreseeable (for example where P witnesses violent
attack on immediate family member(s) - Purdy v. Woznesensky)

Note also that intent to inflict mental distress may also be inferred from the extent
and duration of harassment (as was in Clark).

Finally:

(3)

D need not have foreseen the full extent of Ps injury as long as

some psychological injury was intended

Nervous shock
Nervous shock is defined in this context as a recognizable psychiatric illness or physical harm. Usually
dont take into account the circumstances of the defendant (ie. Easily shocked people), some courts
take into account age/gender.

Note: Anguish, worry, and emotional distress are insufficient to support an action. (Heighington
v Ontario 1987))

Radovskis v. Tomm:

However:

Plaintiff failed in claim for IINS against an offender who had

committed a serious sexual assault on her five-year-old
daughter - on the grounds that she presented no evidence
of illness.

Note the decision in Rahemtulla

Facts: P wrongly fired by D after a false accusation of theft (money in bank went missing). P
suffered mental anguish (depression, sleeplessness, stopped eating) as P could not
obtain employment after the incident due to defamation. Medical evidence to support
plaintiffs claim was not introduced

Held: Can have IINS where no medical evidence of mental illness exists, provided
that there are symptoms of depression present and the behaviour of D is
outrageous. Defendant need not intent nervous shock if the defendant acted
recklessly or there is foreseeable mental distress.

Note: Osbourne argues that in recent years there has been some relaxation in the interpretation of nervous
shock, and that the courts are edging towards recognizing severe emotional distress as sufficient
damage (particularly where the defendants conduct is utterly outrageous).

21

Key Case:

Wilkinson v. Downton
Facts: Defendant, by way of a practical joke, told the plaintiff that her husband had been
seriously injured in an accident and that he was lying in a tavern with both of his legs
broken. The defendants statements were false. The plaintiff became seriously ill from
the shock to her nervous system and she suffered serious and permanent physical
consequences.
Held: D was liable on the basis of his constructive intent to shock and harm the plaintiff.

Stalking, Harassment, and Discrimination

Discrimination
One of the key questions for the courts in recent years has been whether there should be a freestanding tort
of discrimination
As Osbourne notes, some courts have been attracted to the idea because it would complement
existing equality protections established by federal and provincial human rights legislation.
Note:

The key challenge for such a tort would be to balance equality (and the right to be free
from discrimination) with other legitimate legal interests, such as freedom of contract
Osbourne:

Argues that this wouldnt actually be that difficult, as existing legislation

could serve as a guide to the courts when it comes to the balancing
process

However: For the time being at least, it appears that the Supreme Court is unwilling to recognise a tort of
discrimination. See the decision in Seneca College of Applied Arts & Technology v. Bhadauria (case has
been used to strike out harassment claims. Although sexual harassments have had some success and
some not Lojoe v Kelly, Sulz v BC).
Key point:

Although at trial the court upheld an application to strike out the statement of claim as disclosing
no cause of action, the Ontario Court of Appeal later held that the plaintiff had a common law
right not to be discriminated, which was independent of statutory obligations and remedies
Note: Justice Wilson begins by citing Prossers Handbook of the Law of Torts, 4th ed.
(1971), in which he argues that:
The law of torts is anything but static, and the limits of its development are never set.
When it becomes clear that the plaintiff's interests are entitled to legal protection against
the conduct of the defendant, the mere fact that the claim is novel will not of itself
operate as a bar to the remedy.
Then: Goes on to argue that because the Human Rights Code makes clear that respect
for fundamental human rights is part of the policy of the Province, then it is
appropriate that to protect these rights through the common law

However:

The Supreme Court overturned the Court of Appeal decision, on the basis that the Ontario
Human Rights Code already provided a comprehensive and exhaustive vehicle for protection
against discrimination, and that as a result there was no need to recognize and develop a
complementary tort remedy.

22

Note that Laskin C.J.C. actually says that the Code forecloses on the possibility of
recognising a common law right / cause of action
Solomon seems to suggest that Wilsons interpretation of the law is more accurate than Laskins (ie. Horsley v
MacLauren [1972] SCR 441) argues that she is right to say that statutes can and should affect the
development of the common law
Note: Important to remember that the decision in Seneca only excludes tort actions that are founded on a
breach of a human rights code. Courts in some cases sidestep an provides remedy on the basis of
wrongful dismissal or IINS (Keays v Honda Canada)
As a result:

Possible to argue that an action based on an independent tort such as an assault or

intentional infliction of nervous shock should work

Stalking
Stalking is where a person knowingly (i.e. intentionally) or recklessly harasses another person in a manner that
leads that other person to fear for her own safety referred to as criminal harassment in the Criminal Code
and prohibited by under section 264(1).
Note: There is no independent common law tort of stalking.
Rule: Although a victim of stalking could possibly sue in tort for assault, battery, intentional infliction of
nervous shock, trespass to land, nuisance, or defamation, it can be argued that this piecemeal
approach does not really address the real nature of the wrong.
However:

As Osbourne points out, this approach has the disadvantage of focusing

attention on the various discrete acts of the stalker, and this may have the result
of making them appear relatively insignificant when examined in isolation from
the complete pattern of behaviour.

Harassment
The main distinction between stalking and harassment is that where the conduct causes a person to fear for
her own safety, it will be stalking. In contrast, where the conduct is seriously annoying, distressing, pestering,
and vexatious, it will typically be defined as harassment.
According to Osbourne, examples of harassment include:

Minor sexual harassment

Bullying
Harassment by creditors or governmental officials
Abusive or racist communications

Key point here is that the activities are disturbing and upsetting, but not necessarily frightening
Now: Key problem here is that this sort of conduct is not really covered by the traditional intentional torts
(although it may be possible to bring an action for intentional infliction of nervous shock).

23

Key point:
Courts are only really willing to consider the question of harassment where the plaintiff is
the clear target of the harassment and suffers severe mental distress. However, even where this is the
case, the approach taken varies between:

Basing liability on a previously recognized tort

Providing a remedy through consumer protection legislation
Recognizing a new tort of harassment.

As Osbourne notes, the problem with the current situation is that it produces uncertainty and
confusion, as illustrated by the case of Chapman v. 3M Canada Inc(courts strike out harassment
claim because of statute existing)
In England, Protection From Harassment Act 1997 (1997, c.40) was enacted to create an offense of
harassment. The Act defines what is harassment in Section 1 and 1A and in my view provides significant
protection because it is an offense if a person pursues conduct which he OUGHT to KNOW amounts to
harassment, which is an objective standard. They also provide protection for putting people in fear of violence
for more than 2 occasions. This unifies individual assault claims into another tort of harassment. In Canada, we
have not gone to that extent yet. Perhaps due to limitations placed by the separation of legislative jurisdiction in
our Constitution which may require that such legislation be enacted by individual provinces rather than the
federal parliament.

Intentional Interference with Land

Definition:

Trespass to land is defined as the direct, intentional (or negligent) and physical
interference with land in the possession of the plaintiff.
According to Osbourne, the tort was originally designed to protect landholders from
violent intrusion or eviction from their land. Here the central idea was that the
development of a civil remedy would reduce the chance of violence and protect the
possessors interest in the peaceful enjoyment of his property.
However:

The tort has evolved over time, and is now justified for a range of
additional reasons:
Now the argument is that the power to control entry onto land is an
essential if the possessor of land is to be able to use the land in whatever
ways they want.
Without the power to control entry, the landholder would have to
make sure that the land was fit for others to use.

The tort can be committed in three main ways:

(i)

Where a person enters land in possession of the plaintiff without permission.

(ii)
Where a person places objects on the plaintiffs property. There is also continuing trespassing (Johnson
v BC Hydro (1981))
(iii)

Where the possessor of land revokes a visitors permission or licence to be on the property.

24

It is important to note that the action is available to anyone who is in legal possession of land. This means
that the following cannot usually sue in tort for trespass to land:

Owner of leased property (because they have effectively surrendered possession of the land to the
tenant for the term of the lease)

A person who only has a licence to be on the property (such as a live-in nanny or a hotel guest)
Note: There is a key exception to the general requirement of possession. Referred to as the
doctrine of trespass by relation.
Basic rule:

Plaintiff can sue in trespass even if they were not necessarily in

possession of the land at the time of the interference provided that no
one else was in possession and they subsequently take possession. Most
common example of this is where D trespasses onto vacant land owned
(but not occupied or controlled) by the plaintiff. Once P retakes
possession, they can sue in trespass.

Elements of the tort (actionable without proof of damage)

(1)

The intrusion onto the land must be direct

(2)

The interference must be intentional or negligent

(3)

The interference must be physical

(1)

The intrusion onto the land must be direct.

Put another way the intrusion must be a direct result of the actions of the defendant.
As Osbourne notes, the requirement of directness means that a plaintiff cannot sue for
intrusions like oil spills or situations where something washes up on to their land.
Note: Such situations (indirect trespass) are usually dealt with by the tort of private nuisance
(Anderson v Skender(1993)).

(2)

The interference must be intentional or negligent

Key point:

The burden of proof is on the defendant.

That is:

Once the plaintiff has proved that there has been direct interference, the
defendant must prove a lack of intention or negligence. In practice, the
tort of trespass to land is usually only used for intentional interferences
law of negligence has essentially made the old tort of negligent trespass
to land redundant.

25

Note: It is not necessary for the plaintiff to prove that the defendant intended to
cause harm to the land or the plaintiff instead, all that is required is an
intention to intrude onto the land or interfere with it.
Note also that mistake is no defence (Basely v Clarkson). Doesnt
matter if, for example, that you thought you had permission to enter the
land or that the land was yours. See Turner v. Thorne, (1960) (Ont. HC)
the postal work her case.
Trespass from an innocent mistake does not relieve liability or any results thereof (Kopka et ux v. Bell
telephone Co. Of Pennsylvania(1952)). Trespasser becomes liable not only for personal injuries that result
directly and proximate, but also for indirect and consequential results.

(3)

The interference must be physical

Intrusions caused by smog, chemical fumes, smoke, noise, or odour are unlikely to satisfy this element
and again are likely to be dealt with via the tort of private nuisance.
Note also that trespass to land is actionable without proof of damage.

Defences
There are three main defences to trespass to land:
(1) Consent
(2) Necessity
(3) Legal authorization

(1)

Consent
Basic Rule:

There is no liability in trespass to land where the possessor has consented to another
entering his land.
Note: Consent to enter property is commonly known as a licence. As Osbourne notes,
the licence may be express or implied, contractual or gratuitous, and given to
an individual, a group, or the world.
If a third party gave such license, the third party must have better right of
possession than the plaintiff.

(2)

Necessity (complete defense?)

Basic Rule:

A trespass to land may be justified where there is an emergency and it is necessary for
the defendant to trespass in order to prevent harm to themselves, the public, the
possessor of the land, or a third party.
Also: The wrongful acts must be prompted by imminent peril and must be necessary in
the light of the advantage to be gained and the absence of other available
options.

26

And:

(3)

Defendant must be able to show that the danger significantly outweighed

the damage or loss caused to the innocent plaintiff by the trespass.

Legal Authority
Basic Rule:

Where entry onto land is authorized by statute for example, by virtue of a search
warrant issued under Part XV of the Criminal Code (Section 488) then there is no
trespass.

In particular, some provinces such as BC have legislation dealing with trespass such as Trespass Act
[RSBC 1996] CHAPTER 462 which creates many definitions of trespass and reiterates the common
law defences. One point that caught my attention was that it is trespass if you do not leave if asked by
the occupier. The statutory tort appears to be a disregard of whether a license has been previously
given and whether it is revocable. Under common law, a license is only revocable if the person breaks
the rules of the establishment (Davidson v Toronto Blue Jays) but under this statutory regime, it is
silent on whether the consent can be revoked.

Intentional Interference with Chattels

There are four intentional torts that can be used to protect interests in chattels:
(1)
(2)
(3)
(4)

Trespass to chattels (designed for cases of wrongful taking)

Detinue (designed for cases of wrongful detention)
Conversion (cases of wrongful disposal)
Action on the case to protect a reversionary interest

As Osbourne notes, although these are all separate torts, they overlap considerably.
However:

Best way to understand the distinction between them is to see them as responses to
different forms of interference with chattels.

UK Jurisprudence
Trespass and conversion has been codified by Torts (Interference with Goods) Act 1977 c. 32 as wrongful
interference with goods. Detinue has also been abolished explicitly. The Act codifies many of the rules with
respect to the damages available and double liability.

(1) Trespass to Chattels

Definition:

Trespass to chattels is where the defendant directly and intentionally (or negligently) interferes
with a chattel in the possession of the plaintiff.
Example:

Where a D intentionally damages a chattel in the physical control of the plaintiff.

Important to remember that trespass to chattels protects possession rather than
ownership. (illustrated in the wine bottle case of Penfolds in Penfolds Wines
Proprietary LTD. v. Elliot (1946))
As a result:

Even a person in wrongful possession may bring an action in

trespass (except against an owner with a right to immediate
possession). These people can also be trustees, personal reps,
and franchise owners (The Law of Torts, Fleming 9th ed)

27

Also: Not necessary for the defendant to know that the

interference is wrongful

Key points about the tort:

(1)

Any direct interference with a chattel is actionable, with the result that damage, destruction, taking, or
movement of the chattel can all provide a basis for the tort. simple asportation of a chattel, even
without intention of making further use of it as sufficient for an action in trespass, not in conversion
(Foulds v Willoughby (1841))
However:

In practice, trespass is most commonly used where a chattel has been damaged or
where there has been some minor unauthorized use or movement of the chattel.
Note: The destruction or taking of chattels is usually remedied by the tort of conversion
or the tort of negligence.

(2)

Once the plaintiff has established that there was an interference with possession, then it for the
defendant to prove an absence of intent.

(3)

Knowledge that the interference is wrongful is not required. Mistake is no defence. (Cameron v
Morang (1978))

(4)

Not clear if trespass to chattels is still actionable without proof of damage.

Two main views:

No damage should be required, as making the tort actionable per se enables it to play a role in
preventing people from touching valuable art and museum pieces. Also ensures that there is a
remedy for the unauthorized moving or temporary use of chattels.
There are no Canadian cases in relation to computer systems, but in California in the Intel v Hamidi
case, it was held that there must be direct harm to the chattel as an essential element of trespass in
chattels.
Unless goods are taken, damage should be an essential element of liability (there is dignitary
interest in the inviolability of chattels).
Note:
On page 117, Solomon argues that the better view is that the tort is actionable per se
(William Leitch & Co v. Leydon [1931] AC 90 (HL)). This is from the USA where they distinguish
dispossession (considered sufficient damage) and mere interference (not actionable without
proof of loss). (Restatement of Torts 1965)

(5)

The remedy for trespass to chattels is an award of 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). An alternative to
claiming compensation could be to receive the defendants gains. (Neate v Harding (1851))

28

(2) Detinue
Definition: Detinue is available where the plaintiff who has a right to the immediate possession of the chattel
has asked the defendant to return it. Note that the action is also available where the plaintiff
has lost the chattel as a result of his wrongful act. Actionable per se (Williams v Peel River Land
& Mineral Co ltd (1886)). Can seek defendants gains as compensation. (According to Lord
Denning in Strand Electric & Engineering Co. V. Brisford Entertainments )
Note:The tort protects the plaintiffs right to the chattel and focuses on the defendants denial
of the plaintiffs rights by refusing to return it. (There is an exception if the plaintiff
can clearly show that the demand would have been refused (Baud Corp. NV v
Brook (1973) 12 AR 311(CA))

Key Rules
(1)

Plaintiff must first ask for the item back (and the defendant must refuse) before the action can be brought
before the court.

(2) Main remedies are an order from the court (requiring the defendant to return the chattel) or an award of
damages for its value (and detention). There is no right to the chattel, it is up to the court to make the
order. (Cf Schentag v Gauthier (1972))
Three Main Remedies (Gen & Finance Facilities LTD v. Cooks Cars (Romford) LTD. [1963 1W WLR 644
(CA))
1. Value of the chattel + damages for detention
2. Return of the chattel + damages for detention
3. ????
Note:

The fact that the court may order return of the chattels in detinue is what distinguishes the tort
from trespass and conversion.
When should a plaintiff sue in detinue rather than conversion or trespass to chattels?
Where the good in question is unique or not easily replaced i.e. an heirloom, jewellery, or
unique industrial or commercial machinery.
Note: An action in detinue will fail if the defendant returns the chattel before judgment is given.
Also: Because the tort is a continuing one arising out of the persistent failure of the
defendant to comply with the request to return the chattel, damages for the value
of the chattel are assessed at the time of judgment rather than the date of the
initial refusal to return it. (Gen & Finance Facilities LTD v. Cooks Cars (Romford)
LTD. [1963 1W WLR 644 (CA)) Contrast this with the general rule in conversion
that damages should be assessed at the time of the conversion.

(3) Conversion
Definition: Conversion is where the defendant intentionally interferes with the chattel in such as way as
to seriously harm the plaintiffs rights to it i.e. by taking, destroying, or refusing to return

29

the chattel. The person converting should intend some use to be made of it. (Foulds v
Willoughby, the horse case)
Note: Conversion is a relatively new tort, and has gradually expanded in scope so that it now
covers many situations that would have previously been dealt with by trespass to
chattels and detinue.
Note also that in conversion the plaintiff is seeking damages, whereas in detinue they
are seeking return of the chattels. Also important to remember that the plaintiff is allowed
to chose which action they want to pursue.
Examples of conversion (Solomon, pages 125-126):

Taking possession:

Withholding possession:

Transferring possession:
A, acting as an agent of B, buys goods from C (which were originally
stolen from D). If A delivers them to B, then A and C will be liable for conversion.

Destruction:

A takes Bs car without his consent.

A refuses to return Bs good (which he is storing for him).

A destroys Bs car.

Key Rules
(1)

The tort is restricted to intentional interferences with possession (or an immediate right to possession).
As a result, the tort of conversion is not available for negligent interferences.

(2)

The act of conversion must be one that so seriously interferes with the plaintiffs rights to the chattel
that the defendant should be held liable for its full value. Some authorities say that it is not actionable
unless plaintiff establishes existence of a loss. (various law reform reports and torts textbooks),
historically actionable per se.
In effect:

(3)

Conversion allows for the forced judicial sale of the chattel to the defendant. This
explains why orders for the return of the chattel are not made in a conversion action. The
defendant is treated as if he had bought the chattel and he can keep it.

Mistake is no defence to conversion. (Irvington Holdings ltd. v. Black (1987))

Therefore:

An innocent seller of stolen goods and the innocent purchaser can both be liable in
conversion.
However: There are various exceptions to this rule (involuntary bailee) (Hollins v.

Fowler):

(4)

Packing, storing, or carrying goods for someone who lacks title to the goods will not
give rise to conversion provided the person responsible is not aware of the lack of
title.

Damages are assessed at the time of conversion or when the plaintiff became aware of the conversion

30

(5)

Plaintiff must attempt to mitigate his loss by replacing the chattel as soon as is practical

(6)

When considering whether the temporary taking, movement, or use of a chattel is a conversion, the
court will look at all of the surrounding circumstances, including:

The duration of the interference

The kind of interference
The purpose of the interference
The amount of damage inflicted

Key test is whether the interference was sufficiently serious to warrant a forced sale of the chattel to the
defendant. If the goods are returned after mistakenly taken it will result in nominal damages.
(Mackenzie v Scotia Lumber co)

(4) Action on the case to protect a reversionary interest

Definition:

Plaintiff can bring an action on the case to protect their reversionary interest when the chattel
has been destroyed or permanently damaged by the intentional or negligent act of the
defendant.
Point: This tort is available where the plaintiff does not have possession or an immediate right
to possession, but nonetheless wants to protect their goods from possible destruction or
damage.
Example:

A leases his car to B. The car is then damaged by C, while still under
lease / in the possession of B. Here A can only bring an action on the
case to protect the reversionary interest.
Note: The tort is now rarely used in Canada, as an action would more
commonly be brought in negligence.

Final points.
(1)

Although recovery of a chattel is usually only possible through an action for detinue, there are two
procedures by which a plaintiff may be able to recover a chattel.
Replevin:

This is not a tort, but a procedure by which the court can order the return of a chattel
prior to the resolution of an action in tort. Typically ordered by the court in cases where
the plaintiff has an apparent right to immediate possession.

Recaption:

This is not a tort, but a legal right. Basic idea is that the person who has the strongest
right to possession is allowed to use reasonable means to recover the chattel.
For example:

(2)

An owner who sees his bicycle being stolen can use reasonable
force to prevent the theft or recover it.

Defences from trespass to land apply to trespass to chattels

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(3)

Need to be aware of the remedy of distress damage feasant

Rule:

An occupier of land can seize a chattel that is on his land if it has caused or is causing
damage. Basic idea here is that the chattel can be held until compensation is paid. Note
that the occupier of land is not allowed to sell the chattel only hold it.

Intentional Interference with Economic Interests

These torts are often referred to as the business torts. Important to recognize from the outset that modern tort
law is based on the idea the law should, wherever possible, stay out of the market and not seek to provide
remedies for losses that arise from the ordinary business practices or relationships.
Put another way:

It is not the role of torts to provide compensation for losses that could be regarded as an
inevitable reality of the rough and tumble of the free market.
Worth noting that this general position runs contrary to the broader proposition that torts
is about corrective justice.

(1) Deceit
There are four elements to the tort:
(1) The defendant must have made a false statement;
(2) The defendant must have known the statement was false (or was [objectively] reckless to the truth
or falsity of the statement);
(3) The defendant must have made the statement with the intention of misleading the plaintiff (or have
been substantially certain that the statement would deceive the plaintiff); and
(4) The plaintiff must have suffered a detriment as a result of reasonably relying on the statement.

(1)

The defendant must have made a false statement

Key point here is that the statement must be untrue. Although it is usually the case that it has to be
spoken or written, liability can be imposed for misleading actions.
Example:

Abel v. McDonald [1964] 2 O.R. 256-260: 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. This was held to be deceit.
Note that although silence is not actionable in deceit, there are cases where the law
imposes an obligation to speak up.

32

For example:

(2)

The courts have held that a person has an obligation (fiduciary

duty) to disclose a defect in a house for sale if that defect would
make the house dangerous or uninhabitable.

The defendant must have known the statement was false (or was
[objectively] reckless to the truth or falsity of the statement)
Note: Based on the decision in Derry v Peek, in practice this means that the plaintiff needs to show
that the defendant acted dishonestly in order to succeed in an action for deceit.
Note also that proving someone was (objectively) reckless as to the truth of a statement
can satisfy this requirement. This follows from the decision in Derry because the court argues
that if you are reckless or careless as to the truth of the statement, then it flows that you couldnt
have believed it was true.
Also: Mistaken belief can be a defence to deceit (and on the face of the decision in Derry, it
doesnt have to be a reasonable mistake).
Courts use a reasonable perspective to see if the person actually honestly believe the
statement.

(3)

The defendant must have made the statement with the intention of
misleading the plaintiff (or have been substantially certain that the
statement would deceive the plaintiff)
Note: Merely has to be an intention to mislead. According to the court in Derry, there doesnt have to
be intention to mislead for a particular purpose, nor to cheat or injure the person to whom the
statement was made.
However:

It is not enough that the defendant merely suspects a person may rely on the
statement. The plaintiff must also prove that the defendant intended for them the
person to act on or rely on their false statement
Also: Where an event is a reasonably foreseeable result, it is likely that a court
will assume that the defendant intended that consequence.

(4)

The plaintiff must have suffered a loss as a result of reasonably relying

on the statement
Once plaintiff establishes the false statement was made with intention to deceive, defendant must
prove it was no relied upon. Sidhu Estate v Bains (1996) 25 BCLR 93d) 41 (CA))Court will ask whether
a reasonable person would have relied on the statement in question. Based on this general
rule,
the courts have stated:

Reasonable people recognise that salespeople exaggerate;

Reasonable people are less likely to rely on predictions about the future because they recognize
that no-one can accurately predict the future; and

33

Reasonable people are less likely to rely on opinions, because they recognize that they are
subjective and open to interpretation.
Important to note a number of other points:

If the defendant can show that the plaintiff would have acted in the same way even if there had
been no fraudulent representation, the action in deceit will be dismissed. Rule is that the attempt
to deceive must be successful

No requirement that the representation is the sole statement on which the plaintiff relied but it
must make a material contribution to his actions / decision.

(2) Passing off

Purpose of the tort is to protect a plaintiffs business by preventing the defendant from presenting their
goods and services as being those of the plaintiff. Can demand compensation or paying up of the
defandants wrongful gains (Draper v Trist (1939))
More specifically:

The tort aims to protect the reputation and goodwill of producers, and to prevent
customers from being deceived.
Also: Can define passing off as a tort that protects unregistered trade marks.
Essentially, a trader must not sell their own goods under the pretence that
they are the goods of another trader.

Elements of the tort:

According to Lord Oliver in Reckitt & Colman Products Ltd. v. Borden Inc. [1990] (as cited in Ciba-Geigy
Canada Ltd.), the plaintiff must establish:
(1) Good-will or reputation attached to the goods or services which he supplies in the mind of the
purchasing public by association with the identifying "get-up" (whether it consists simply of a brand
name or a trade description, or the individual features of labelling or packaging;
(2) A misrepresentation by the defendant to the public (whether or not intentional) leading or likely to
lead the public to believe that goods or services offered by him are the goods or services of the
plaintiff; and
(3) He has suffered or is likely to suffer damage by reason of the erroneous belief engendered by the
defendant's misrepresentation that the source of the defendant's goods or services is the same as
the source of those offered by the plaintiff.
Now:

According to the Supreme Court in Kirkbi AG v Rtvik Holdings Inc [2005] 3 SCR 302
(lego blocks case) these elements can be summarized as follows:
(1)
(2)
(3)

The existence of goodwill

Deception of the public due to a misrepresentation
Actual or potential damage to the plaintiff

34

(1)

Goodwill
Goodwill is defined as the power to attract customers and the power to retain loyal customers. Is held to
exist where goods or services can be identified as belonging to the plaintiff.

(2)

Deception of the public due to a misrepresentation

Note that the deception does not need to be intentional. All that is required is an act of passing off that
is, presenting your goods as being associated with or from the plaintiff. Line needs to be drawn
between marketing and deceiving.
Note: Court will ask: Did the defendant present his goods as being associated with or from the
plaintiff?
However:

The courts have also held that deception will not apply where the only person
likely to have been misled is a moron in a hurry. (See Morning Star
Cooperative Society v Express Newspapers Limited [1979] and Newsweek
Inc. v. British Broadcasting Corp. [1979] R.P.C. 441 as per Lord Denning)

Examples of passing off:

Misrepresentation that the goods of a trader are the goods of the plaintiff

Misrepresentation as to the origins of the goods

Misrepresentation that a trader's goods are of the same standard as the goods of the plaintiff

Misrepresentation that the trader has a business relationship with the plaintiff

Misrepresentation that the plaintiff's goods or services are the goods or services of the trader.

Intentional Torts: Defences (1)

Once the plaintiff has established that a tort has been committed, the defendant then has an opportunity to
raise defences before liability will be imposed.
Can divide defences into three main categories:
(1) Consent
(2) Protection of person or property
(3) Assertion of legal authority
Important to note that defences are not mutually exclusive that is, in many cases the defendant can
raise a number of defences simultaneously.

35

Example (from Solomon): P sues D in battery for pushing P during a fight over a disputed fence.
Depending on the facts, D may have a defence of consent, defence of real property, and selfdefence.

(1) Consent
Basic principles:
(1) The Canadian courts have tended to treat consent as a freestanding defence, rather than as an
element of a particular tort. For example, in Non-Marine Underwriters [2000], the Supreme Court
unanimously agreed that consent is a defence in what they referred to as traditional battery
cases.
Why does this matter?

Note:

Because if consent is a defence, then it is for the defendant to

plead and prove no question that this is something that the
plaintiff needs to address in the course of establishing that the tort
has been committed.

In earlier cases, consent was sometimes treated as an element of the tort i.e. the
plaintiff would have to prove, on a balance of probabilities, that there was an absence of
consent.

(2) The defence of consent is typically framed in terms of the tort complained of. Put another way, the
defendant will have to prove that the plaintiff consented to the specific act that gave rise to the tort
action in question.
For example:

If consent is being raised in relation to battery, then the defendant must be able
to show that the plaintiff consented to the act of physical interference.
Note: When a person consents to an act, it is generally assumed that they have
also consented to the risks normally associated with that act.

(3) Note that once established, consent is a complete defence.

(4) Consent can be given in a range of ways. Examples of explicit consent include consent in writing,
verbal consent, or consent by way of gesture (such as nodding).
Also:

Consent can be given implicitly through participation, demeanour, or behaviour.

Implied consent
Basic rule:

In some cases, participation, demeanour, or behaviour on the part of the P can provide the
basis for a claim on implied consent. Equally, failure to object to an act, failure to withdraw from
a situation, or passivity can also be viewed as providing implied consent to a tortuous act.
Now: For obvious reasons, it is much more difficult to determine whether there has been
implied consent. No clear rule in such cases, and the courts have generally held that it is

36

necessary to look at all the facts of the cases before deciding on whether there has been
implied consent.
Note: The leading case in this area is Wright v. McLean (1956) mud ball fight
provides a good example of an ordinary situation which raises quite complicated
questions of implied consent.
Key:

According to Justice MacFarlane, provided there is no malice, anger, or

mutual ill will, then the court will assume that those participating in a sport
or game are consenting to the ordinary risks associated with that activity.

Now: One of the questions that is raised in Solomon is whether spectators implicitly consent to injuries
sustained while watching sporting matches.
General Rule:

The question of whether there is implicit consent will depend on whether the
plaintiff was aware of the risks and the protections customarily provided.
Key case:

Elliott [1934] Spectator hit by a puck that flew off the ice and
into the seats. Court held that because the P was an amateur
hockey player, he was aware of the risks when he attended the
match.

Exceeding consent
Related to these cases are those situations where consent is exceeded. That is, a situation where there is
clearly consent, but where the action complained of allegedly goes beyond what was agreed to.
Main cases in this area are sports cases, where the question is whether participation in a game
amounts to implied consent to certain types of conduct outside the ordinary rules of the game.
General rule (from Agar Manitoba CA case) is that someone who plays a sport is assumed to
be consenting to the ordinary risk of injury. Note that the court in Agar also held that because
the conduct of a player in the heat of a game is often instinctive and unpremeditated, it should
not be judged by the standards of polite social intercourse. A breach of the rules + intention to
injure will exceed implied consent.
However:

There must be a limit on the players immunity from liability, and have to
look at the facts in each case to determine whether the conduct went
beyond what could normally be expected.

BC uses a more pro-plaintiff approach and framed such complaints under negligent principles, a reasonable
person test.

Competency to consent
Rule: In order for consent to be valid, the person giving it must be capable of understanding the nature and
consequence of the act.
Key:

If they cannot understand the nature and consequences of the act due to age, physical or
mental illness, intoxication or some other reason, then the consent is not valid.
Now: Also important to note that in certain cases, valid consent can be invalidated as a result
of Ds actions. Typically this happens in cases of fraud, mistake, duress, and public
policy.

37

There may also be conduct that is too dangerous for people to consent to. (R v. Bertuzzi (2004))
Consent is negated when there is force causing serious harm with intention. (R v Jobidon [1991] 2 SCR
714, R v Paice)

(1)

Fraud (Deceit)

There are two main requirements when it comes to the question of whether the Ds fraud will act to cancel
out consent from the P:
(a)

The defendant must have been aware of (or responsible for) the plaintiffs misapprehension;
and

(b)

The fraud must be directly related to the nature of the act, not a collateral matter.
As regards the second point, the key question is to ask whether the fraud goes to the nature
of the act or to some collateral matter related to the act.
The distinction is illustrated by R. v. Williams [1923]: Singing teacher was convicted of
rape after convincing his 16 year old student to have sex with him on the grounds that
intercourse would improve her voice. Key point here was that she was deceived as to
the nature of the act i.e. she didnt realise she was engaging in a sexual act.
See also:

Hegarty v. Shine (1878) (Ireland CA): Consent to sex is not negated by

the transmission of an STD because it was collateral. Based on this case,
it has generally been held that fraud as to the harmful consequences of
the Ds act would not vitiate consent.
However:

(2)

This approach has been rejected by the Canadian

Supreme Court in R. v. Cuerrier (1998), which held that
consent to sex was vitiated by undisclosed HIV status in
the criminal context. Fraud vitiates consent where there is
concealment of a significant risk of serious bodily injury.

Mistake

General Rule:

Ps consent is only vitiated by a mistaken belief if the defendant is responsible for

creating that belief.
Note: Have to distinguish between where P consents due to a mistaken belief, and
where D mistakenly believes P has consented. (Parmley v Parmley [1945] SCR
634)
Toews v. Weisner (2001) (BC SC): A nurse who administered an injection to a
child on the basis of a mistaken belief that the parents had consented was still
liable.

(3)

Duress

General Rule:

Consent procured as a result of duress (i.e. the use of force) is not valid (Latter v.
Braddell (1880))

38

(4)

Public Policy

General Rule:

Consent can be vitiated in some cases for reasons of public policy. For example, a
person cannot consent to being killed or seriously injured (Lane v. Holloway; R. v.
Jobidon). Also, a person cannot consent to someone exploiting a position of authority
(as in the case of sex with parents, doctors, teachers, etc.) (M.(M.) v. K.(k.) (1989 38
BCLR (2d) 273 (CA))
According to the court in Nelitz v. Dyck (2001) (Ont. CA), there is a two-part test to
determine where a power imbalance vitiates consent. Must provide:

Proof of inequality, usually in the context of a power dependency relationship; and

Proof of exploitation considers the type of relationship in light of community

standards.

Intentional Torts: Defences (2)

Self-Defence
To invoke the defence of self-defence, defendant must establish on a balance of probabilities that:
(1)

He or she honestly and reasonably believed that as assault was imminent; and

(2)

That the amount of force that he or she used to avert the risk was reasonable in all of the
circumstances.

Note: Self-defence provides a complete defence, on the grounds that the defence is one of
justification rather than excuse.
When determining whether the force used was reasonable or not, courts will look at the nature of the force
used, and all of the surrounding circumstances. Basic idea is that the force should be proportionate to the
threat or likely harm.
Note: In Wackett, the court was clear that the defendant is not required to weight the niceties of the blow
i.e. court recognises that there may not be much time for reflection given the immediacy of the threat.
Defendant also does not have a duty to retreat.
However:

It is unclear as to whether the defendant has to consider the injuries likely to result from
the use of force. Brown v. Wilson (1975) suggests that provided the force was
reasonable, the defendant is not responsible for the consequences.
Also: Note that the test has both an objective and a subjective dimension. Need to look
at the situation from the perspective of the D, and then judge whether a
reasonable person would have used the same level of force (Beckford v. R
[1987])

Pre-empting an attack can be used as self defence. Plaintiffs reputation for violence can be used as
justification. (R v Scopelliti (1981))

39

Take into account the reasonable person IN THAT CIRCUMSTANCE (R v Lavalee [1990] 1 SCR 852
battered women syndrome)
Bona fide mistake of fact can still use self-defence as a defence (R v Reilly [1984] 2 SCR 396)

Defence of another / third parties

Basic Rule:

The same rules as in self defence, with the requirement that the use of force be reasonable.
Gambriell v. Caparelli (1974) ([Link].) defending son in fight with neighbour

Important to consider the decision in R v. Lavallee [1990] battered women

Court:

Held that expert evidence on battered wife syndrome was admissible. According to Wilson J.,
expert evidence can be adduced where the jury may be inclined to refer to myths and
stereotypes.
Note: Also argued that it is appropriate for the jury to consider a woman's experience and
perspective when deciding on what deciding on what constitutes a reasonable person's
standard for self-defence.

Defence of discipline
Basic Rule:

At common law, parents and guardians can use force when dealing with children.
This common law rule is mirrored in Section 43 of the Criminal Code, which states:
Every schoolteacher, parent or person standing in the place of a parent is justified in
using force by way of correction toward a pupil or child, as the case may be, who is
under his care, if the force does not exceed what is reasonable under the
circumstances.
Note: According to Solomon (page 213), the Canadian courts have tended to assume
that Section 43 governs both the civil and criminal defences of discipline.

Now: According to the decision in Dupperon- strapping a 13 year old, in order to establish the defence, the
defendant needs to prove:
(1) That the force was used by way of correction i.e. that it was for the benefit of the education of
the child; and
(2) That the forced used was reasonable in the circumstances.
Note: It has been held that Section 43 should be interpreted in light of prevailing social standards and
customs, rather than according to those of the defendant (R. v. Baptiste (1980))
Most recent case on the question of discipline is Canadian Foundation for Children, Youth and the Law
[2004], in which the Supreme Court considered whether Section 43 is unconstitutional on the grounds that it
violates a childs right to security, their right to equality, or constitutes cruel and unusual punishment.

40

The majority held that Section 43 was constitutional. In particular, the court held that:
(1) In order to be within the scope of Section 43, the use of force must be sober, reasoned, and
address actual behaviour. In addition, it must be intended to restrain, control, or express symbolic
disapproval. Key point here is that the child must also have the capacity to understand and benefit
from the correction. As a consequence, force against children under two (or those with particular
disabilities) cannot be justified under Section 43.
(2) In order to be reasonable under the circumstances, the force must be transitory and trifling, must
not harm or degrade the child, and must not be based on the gravity of the wrongdoing.
Note:

Based on this reasoning, the court also concluded that force should not be used in
relation to teenagers, as there is a danger that it will induce aggressive or antisocial
behaviour.

(3) Force may not be applied using objects (such as rulers or belts) or applied to the head.
(4) Corporal punishment is not reasonable in schools, although teachers may use force to remove
children from classrooms or to ensure that they follow instructions.

Defence of Legal Authority

Defence of legal authority can be raised in response to actions in battery, trespass to chattels, trespass to land,
conversion, and other intentional torts.
Note: The defence is established by a range of statutes including the Criminal Code and is used to
protect officials such as the police for actions in torts.
Example:

Section 495(1)(b) of the Criminal Code authorises peace officers (as defined in
Section 2 of the Code) to arrest (without a warrant) anyone whom they have
reasonable grounds to believe has committed or is about to commit and
indictable offence.

Important to note that if a peace officer violates a Charter right such as Section 8 (right to be secure against
unreasonable search and seizure) or Section 9 (right not to be arbitrarily detailed or imprisoned) then it is for
the government to justify that violation under Section 1.
Section 1:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
Note: If the government cannot satisfy the requirements of Section 1, then it is open to the
judge in the case to grant a remedy under Section 24(1) or exclude evidence under
Section 24(2).
Section 24:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by

41

this Charter, the evidence shall be excluded if it is established that, having regard to
all the circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute.
Okay: Want to end by going through some of the rights and obligations in the arrest process.
Key case:

Koechlin v. Waugh and Hamilton (1957)

Some rules that emerge from this case:
(1) The police do not have a general right to ask individuals to identify themselves.
Instead they must rely on a recognized power, such as that inferred from Section
450 of the Criminal Code (need to have reasonable and probable grounds to
suspect the individual questioned).
(2) Police need to tell the individual why they are being arrested i.e. they are entitled
to know on what charge or on suspicion of what crime they are being arrested.
(3) Failure to inform the individual of the reasons for arrest can give rise to a claim for
false imprisonment.
(4) If the individual is not informed, they are entitled to resist the unlawful arrest.

Note that the amount of force that can be used to affect an arrest is stipulated in Section 25(1) of the Criminal
Code.
Section 25(1):

Every one who is required or authorized by law to do anything in the administration or

enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized
to do and in using as much force as is necessary for that purpose.

Important to note the qualifications provided in subsections (3) and (4):

25(3) Subject to subsection (4), a person is not justified for the purposes of subsection (1) in using force that
is intended or is likely to cause death or grievous bodily harm unless he believes on reasonable
grounds that it is necessary for the purpose of preserving himself or any one under his protection from
death or grievous bodily harm.
25(4) A peace officer who is proceeding lawfully to arrest, with or without warrant, any person for an offence
for which that person may be arrested without warrant, and every one lawfully assisting the peace
officer, is justified, if the person to be arrested takes flight to avoid arrest, in using as much force as is
necessary to prevent the escape by flight, unless the escape can be prevented by reasonable means in
a less violent manner.
Note: Courts have held that the police may be entitled to use deadly force to prevent the escape of a fleeing
suspect (see Solomon, pages 251-252)

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Remedies in Intentional Torts (1)

Judicial remedies
(1) Damages
These are available in most tort actions. In keeping with the focus on corrective justice,
damages in tort are usually awarded in order to return the claimant to the position they would
have been in had the tort not taken place. Note that damages in tort are usually divided into
two different types:

General (non-pecuniary) damages

These are damages for non-monetary harms aim to compensate the claimant for such
things as pain, suffering and loss of amenity arising from the tort. Examples include
physical or emotional pain and suffering, disfigurement, loss of reputation, loss or
impairment of mental or physical capacity, loss of enjoyment of life, etc.

Special (pecuniary) damages

These are damages for monetary losses aim is to compensate the claimant for the
quantifiable monetary losses suffered as a result of the tort. Typically, special damages
aim to compensate for lost earnings and, cost of repairing (or replacing) damaged
property.
Note: Pecuniary actually means: consisting of or measured in money.
Now: Can divide the class of special damages into five main headings:
(a) Nominal damages
(b) Compensatory damages
(c) Aggravated
(d) Punitive Damages
(e) Disgorgement (restitutionary) damages

Injunction
An injunction is a court order that requires a person to do something. Can divide injunctions
into two types:

(i)

Prohibitive injunctions requires a person to stop doing a particular act.

(ii)

Mandatory injunction requires a person to do a particular act. Note that this is very
similar to an order of specific performance in contract law.
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Note: Failure to comply with an injunction places a person in contempt of court, which can in
turn lead to imprisonment. Typically granted in cases of nuisance, or where there has
been some sort of ongoing trespass to land / chattels.

Key Point:

Because injunctions are an equitable remedy, they are subject to the principles of
equity. In practice, this means two things:

(1) The remedy is a discretionary one that is, the court is not obliged to
impose an injunction, even though liability may have been established;
(2) The clean hands principle applies - i.e. the court will not assist a claimant
who is himself in the wrong or acting for improper motives; and
(3) An injunction will not normally be granted where damages would be an
adequate remedy.

Declaration
This is a remedy where the court issues a formal statement setting out a persons rights legal
status. Also referred to as a declaratory judgment. Note that declaratory relief is usually only
granted in very specific circumstances for example, where there is dispute over paternity in a
family law case, or a question of whether a particular event is covered by an insurance policy.
Dont usually see this remedy in torts.

Order of Specific Restitution

This is a remedy where the court makes an award that aims at preventing someone from
profiting from a wrong. Based on the idea of unjust enrichment, a restitutionary award may be
granted where the defendant has profited as a result of the tort, and the profit may exceed the
amount that would have been paid in damages.

Extra-judicial remedies
Recapture of chattels
Basic rule is that a plaintiff is allowed to use reasonable force to regain or recapture his or her
personal property when the defendant tortuously took the chattel from the plaintiffs
possession, or obtained it as a result of duress or fraud.

Re-entry onto land

Basic rule is that a plaintiff is allowed to use reasonable force to re-enter land where the
defendant has - by way of trespass entered and taken possession of the land.

Abatement of nuisance
Basic rule is that a plaintiff may use reasonable force to prevent or stop a nuisance. Note that
the privilege must be exercised within a reasonable time, and that the plaintiff should give
notice to the defendant. Plaintiff is also obliged to avoid any unreasonable or unnecessary
damages.
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Remedies in Tort (2)

Aggravated Damages
Definition:

Aggravated damages are a form of compensatory damages that are awarded to

compensate the plaintiff for additional injuries to dignity and similar feelings arising from
the defendants reprehensible conduct.

According to the BC Court of Appeal (in T.W.N.A. v Clark, 2003 BCCA 670),
aggravated damages are awarded to compensate for intangible emotional
injury where there has been aggravation of an injury by the defendants high
handed conduct.

Note: Aggravated damages are intended augment an award of compensatory

damages for non-pecuniary loss.

Now: In order for an award of aggravated damages to be made, the court has to be satisfied that:

(1) The plaintiff suffered some damage to his or her feelings as a result of the tort; and
(2) The defendants conduct was not merely tortious, but also highly offensive or repugnant.
Note: As Solomon points out on page 32, often the courts will simply infer (1) from (2) i.e. if
the conduct is particularly outrageous, they will assume that the plaintiffs feelings have
been injured.

It is important to consider the decision in Vorvis v. Insurance Corp. of British Columbia [1989]. As
Solomon notes, the court follows the earlier decision of the House of Lords in Rookes v. Barnard
[1964], and notes that aggravated damages are compensatory in nature and may only be awarded
for that purpose.

McIntyre, J.: Aggravated damages are awarded to compensate for aggravated damage. As
explained by Waddams, they take account of intangible injuries and by definition
will generally augment damages assessed under the general rules relating to the
assessment of damages. Aggravated damages are compensatory in nature and
may only be awarded for that purpose. Punitive damages, on the other hand, are
punitive in nature and may only be employed in circumstances where the
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conduct giving the cause for complaint is of such nature that it merits
punishment.

Key question:

Should awards of aggravated damages be based on a subjective assessment of

the plaintiffs loss?

Probably. Makes sense if you consider the fact that the aim is to compensate for
the additional harm caused to the plaintiffs feelings.

However:

Note that Rookes (which is mostly endorsed in Vorbis) notes that

you have to look at the damage to the plaintiffs proper feelings of
dignity or pride. Suggests that they feelings of hurt have to be
proper or be in some sense reasonable.

Punitive Damages
Definition:

According to the decision in Vorbis, punitive damages are punitive in nature and may
only be employed in circumstances where the conduct giving the cause for complaint is
of such nature that it merits punishment.

Point: This statement reflects the traditional approach to punitive damages taken by the
Canadian courts. According to Solomon (page 33), they have tended to limit
punitive damages to situations where the defendants conduct warrants
punishment.

However:

Can be argued that the courts are increasingly coming to see

punitive damages as having a deterrence function. That is, they are
awarding them for the purpose of preventing conduct like that of the
defendants in the future.

Note: As a general rule, punitive damages are only awarded very rarely, and only if the award of
compensatory and aggravated damages is insufficient to punish the defendant.

Consider the decision in B.(P.) v. B.(W.) (1992), where the Court awarded damages as follows:
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(1) Non-pecuniary damages ($100,000) for the vicitimization / shame / harm to selfesteem and self-worth.
(2) Aggravated damages ($75,000) for violation and loss of trust essentially awarded
for the gross breach of trust.
(3) Punitive damages ($50,000) for the unsanctioned rape.
Key points to take away from this case?

That although questions of aggravation can be taken into account when determining the
amount of non-pecuniary general damages, but they can also be considered separately;
and

In awarding punitive damages, the court must be careful not to create a situation of double
jeopardy. That is, must avoid punishing the defendant for something they have already
received a criminal sanction for.

Also important to look at the general principles laid down in Whiten v. Pilot Insurance Co.
[2002]. In this case, Binnie, J. makes a number of points about the operation of punitive
damages in contract and torts in the case, which can be summarised as follows:

(i)

Unlike in the UK, punitive damages in Canada are not limited to certain types of
cases or scenarios. Can be awarded to punish the defendant, deter the
defendant (and others), denounce the defendant (and others), or strip the
defendant of profits.

(ii)

Doesnt believe that characterising defendants misconduct as malicious, vicious,

or high-handed is helpful. However, it is clear that only very serious misconduct
warrants punishment or deterrence and therefore punitive damages.

(iii)

Punitive damages are most likely to be awarded in intentional torts, but can also
be used in nuisance, negligence, and other tort actions.

(iv)

The fact that the defendant may also have received a criminal sanction does not
preclude an award of punitive damages.

(v)

Punitive damages should be awarded with restraint, and only if an award of

compensatory and aggravated damages is insufficient to punish the defendant.

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(vi)

No cap on punitive damages, but the award must be based on the underlying
goal and should be the lowest sum necessary to accomplish that end.

(vii)

Juries should be informed of the function of punitive damages, as well as the

factors that determine the award and final amount of the damages.

(viii) Appellate courts can intervene if an award of punitive damages exceeds the
outer bounds of a rational and measured response to the facts of the case.

Defamation
Basic purpose of the tort of defamation is to protect reputation from unjustified attacks.

Important to note that the existing law of defamation is based on two preciously separate torts:
slander and libel.

Slander is confined to words (spoken defamation), whereas libel covers what Solomon refers
to as concrete forms of expression (such as written defamation, films, and pictures).

Note: The distinction between slander and libel was important because although slander was
only actionable on proof of damage, libel was generally actionable per se.

However:

Certain types of slander were actionable per se such as imputation of the

commission of a crime, infection with a loathsome disease, lack of chastity
(for women only), and unfitness to practice a trade or profession.

Elements of Defamation
In order to succeed in an action for defamation, the plaintiff must prove on the balance of probabilities
that the impugned statements were:

(1) Defamatory;
(2) Made reference to the plaintiff; and
(3) Were published or disseminated

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Note: According to the Supreme Court in Hill v. Church of Scientology [1995], once the
plaintiff has proven that the defendants statements were defamatory, they are
presumed to be false and the burden of proof then shifts to the defendant (to prove
otherwise). Also important to remember that the tort does not require any proof of
intention (and so is in effect a tort of strict liability).

Also: Important to note that the tort of defamation is unusual in that it continues to
make use of civil juries. According to Solomon (page 930), this is justified on two
main grounds:

(1) Helps to guard against the prospect of indirect censorship by the state (where
the plaintiff is a public official); and
(2) Is necessary given that defamation actions frequently demand some
reference to community standards and the question of whether the
defendants remarks would have damaged the plaintiffs reputation in the
eyes of a reasonable person.

(1)

Defamatory material
Basic rule: Three ways in which the defendant can establish that the material in question is
defamatory:

(i)

Allege that the statements were defamatory in the plain and ordinary
sense (i.e. by reference to their literal meaning).

(ii)

By reference to extraneous circumstances (i.e. matters beyond the

publication) that are known to those receiving the publication and which
would give it a defamatory meaning.
Note:

In essence, the plaintiff is seeking to establish that the

statement is defamatory by on the basis of legal innuendo
(also referred to as true innuendo)

Example:A statement referring to X as the plaintiffs girlfriend

(when it is well-known that the plaintiff is married)
would be defamatory by way of legal innuendo.

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(iii)

By establishing that an ordinary person would infer a defamatory meaning

from the remarks or statement, even without special knowledge of the
plaintiff or their circumstances.
Note: This is referred to as false innuendo

A good example of false innuendo can be found in the case of Sim v. Stretch [1936]. Case is
important because Lord Aitkin provides a test for determining whether material is defamatory
or not: [W]ould the words tend to lower the plaintiff in the estimation of right thinking members
of society?

Note: Lord Aitkin is clear that whether the material is capable of being defamatory is a
question of law. As a result:

(i)

Judge first decides whether there is evidence of a tort (i.e. is the material is
capable of being defamatory?); and then

(ii)

Jury decides whether the material is in fact defamatory in the particular case.

Note that the distinction between an ordinary person and a right thinking person is not
entirely clear, although courts seems to have interpreted the phrase to mean right thinking by
reference to the general views of the community. Put another way, a right thinking person
would be someone whose views are in keeping with those of the wider community.

However:

As Solomon notes on page 935, commentators have criticized the test of right
thinking on the grounds that it is impractical in a modern pluralistic society.

Also: Osbourne argues (pages 388-9) that the Canadian courts have
essentially replaced the right thinking person test with an ordinary person
test. Unfortunately, he doesnt offer much in the way of authority for this
argument (other than the Ontario Court of Appeal decision in Color Your
World Corp. (1998)).

Now: There are a number of key points to keep in mind when considering whether the material is
defamatory:

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Court will look at both the context of the words and the mode of publication. According to
Solomon (page 935), the courts will normally focus on the publication as a whole, rather
than focus on isolated pages (see: Slim v. Daily Telegraph Ltd. [1968]).

Where defamatory remarks are made as part of a radio or television broadcast, the court
will consider gestures, facial expressions, and tone of voice (see: Vogel v. Canadian
Broadcasting Corporation [1982]).

The fact that the defendant may not have intended the statement to be defamatory is
irrelevant, as is the existence of a good motive (see: Dennis v. Southam Co. (1954)).
Note:

It is worth looking through the list of things in Solomon (page 936) that have
been held to be defamatory by Canadian and other courts. Include:

(2)

Saying someone has a venereal disease;

Calling someone dishonest;
Calling a doctor a quack
Calling someone ugly
Claiming that a politician is habitually drunk

Reference to the plaintiff

Basic rule: Plaintiff must show that, on a balance of probabilities, that the defamatory
statement made reference to the plaintiff.

Note that if the statement does not refer to the plaintiff by name, the court will ask
two questions (Knuppfer [1944]):

(3)

(i)

Can the statement be regarded as capable of referring to the plaintiff?

(Question of law)

(ii)

Would the statement in fact lead a reasonable person (who knows the
plaintiff) to conclude that it does indeed refer to him? (Question of fact)

Publication

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Basic rule: Defamatory remarks are not actionable unless they are communicated to
someone other than the plaintiff. Plaintiff must show that, on a balance of
probabilities, the statement was communicated to a third party who understands
the statement.

Important:

Every repetition of a defamatory remark is considered to be a new

publication, and hence independently actionable (Lambert v.
Thomson [1937]). Follows from this that if you repeat a defamatory
statement made by someone else, you may also be held liable.

Also: Any party who played a part in the communication of a

defamatory statement (i.e. by printing it) may also be held
liable. Note that the person who made the original statement
will only be liable for these repetitions if it can be shown that:

(i)
(ii)
(iii)

They gave express or implied authority for the

remarks to be republished; or
They made the remarks to someone who had a
moral, legal or social obligation to republish them; or
The republication is a natural and probably
consequence of the original publication.

Key points to keep in mind when considering whether the defamatory material has been
published:

No publication where a person makes a derogatory remark about his or her spouse
(Wennhak v. Morgan (1888)).

No publication if the statement is overheard entirely by accident (McNichol v. Grandy

[1931]).

Defences to Defamation
Five main defences:

(1) Justification
(2) Absolute privilege
(3) Qualified privilege
(4) Fair comment
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(5) Consent
Note that in each case, the burden of proof is on the defendant to establish the defence (on a
balance of probabilities).

(1)

Justification
Basic Rule: The defendant will have a defence of justification (complete defence) if they can
show that the statements, although defamatory, were true.

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)).

Also: Doesnt matter if the defendant acted maliciously or there was no

public interest at stake intention isnt relevant to the operation of
the justification defence.

(2)

Absolute privilege
Basic Rule: The defendant will have a defence of absolute privilege (complete defence) if
they can show that the statements feel into one of three protected categories:

(3)

(i)

Statement by an executive officer relating to affairs of the state;

(ii)

Statement made during parliamentary proceedings; or

(iii)

Statement made in the course of a judicial or quasi-judicial proceeding .

Qualified privilege
Basic Rule: 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.

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According to Solomon (page 954), there are no clear rules as to when a defence
of qualified privilege will apply. It is possible, however, to identify a number of
situations in which the defence is likely to be available:

(i)

Where the statements are made by the plaintiff in order to protect his own
interests (i.e. in order to defend their reputation);

(ii)

Where the statements are made to protect the interests of another person;

(iii)

Where the statement is in the public interest. Note that the key here is the
existence of some duty to publish the information. In addition, the recipient
must have a duty to receive the information.

Note that there is an additional form of qualified privilege: fair and accurate reporting. As
noted by Solomon (page 955), the defence applies to proceedings that are open to the public,
and is available at common law so long as the reporting is fair and accurate.

Key Case:

Hill v. Church of Scientology [1995]

Held: The Supreme Court reaffirmed the decision in RWDSU v. Dolphin

Delivery Ltd. [1986] and argued that although the common law had to
develop in line with Charter values (which included freedom of expression
under Section 2), it did need to follow the approach taken by the US in
New York Times Co. v. Sullivan and require active malice in cases of
defamation.

(4)

Fair comment
Basic Rule: The defendant will have a defence of fair comment (complete defence) if they
can show that the material in question was:

(i)

A comment (as opposed to an accusation or allegation of fact);

(ii)

Made honestly and in good faith;

(iii)

Based on facts that are true; and

(iv)

On a matter of public interest

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Note: No need to actually show that the comments were actually fair. Instead, the focus is
often on the question of whether the defendant made the comments honestly and in
good faith.

Key Case:

Cherneskey v. Armadale Publishers Ltd. [1979]

Held: The defence of fair comment was unavailable as the editors did not
agree with the opinion expressed in the letter, and there was no
evidence to suggest that the authors of the letter submitted it in
good faith.

Note: In dissent, Dickson J. argued that it was unrealistic to expect

newspapers to only publish opinions they agree with, and
that imposing such a requirement could have a negative
effect on the free and general discussion of public matters.

(5)

Consent
Basic Rule: The defendant will have a defence of consent (complete defence) if they can
show that the statements originated with the plaintiff, or by someone acting on
the plaintiffs behalf.

Also: Defence will apply if the statements were made in response to the plaintiff
(i.e. where they were instigated by the plaintiff).

55