C15 - Intentional Torts

Intentional Torts

• intentional torts: actions intended to cause injury to others
• intent: the desire to commit an act for a specific purpose
• It is still an intentional tort if
  • you meant to injure one person but end up injuring another person

Important Image — Intentional Tort → Trespass to Land (Property)

Someone who commits an intentional tort must intend, by his or her actions, to bring about a specific consequence. What consequences might result from this action?

Intentional Torts and Criminal Acts

• Events that are criminal acts may end up also having intentional tort cases
• Purpose of Criminal Court: Bring accused to justice and protect society from further offences
  • proof must be beyond reasonable doubt
• Purpose of Civil Court: Compensate victims for loss or injury
  • proof is based on a balance of probabilities

If one person	it is the crime of	and also the tort of
hits another	assault	battery
holds another against his or her will	forcible confinement	false imprisonment
breaks into another’s house (with the intent to steal)	break and enter	trespass to land
takes another’s belongings	theft	conversion or trespass to goods
kills another	homicide	wrongful death

Intentional Interference with the Person

Assault

Assault Example: Threatening with Stick

Would this be considered an assualt? Explain.

assault: offensive act that threatens imminent harm to another person where the plantiff believes the threat was genuine

i.e. If I threaten someone with a knife and say “I will kill you if you mess with my pussy again”, that is a tort of assault

Battery

battery: intentional, unauthorized physical contact that victims finds harmful / offensive

Someone can also be liable for just touching, even if there is no injury, as long as victim finds touch offensive

Sexual Abuse

• victims seek compensation in civil courts
• also seek their assailants to be publicly exposed for their wrongdoing

Case: F.H. v. McDougall (2008), S.C.C. 53 (CanLII)

• F.H. was resident at Sechelt Indian Residential School in B.C.
• McDougall was…
  • Oblate Brother
  • junior and intermediate boys’ supervisor
  • from 1965-1969
• Assaults alleged to have occurred when children were brought one-by-one into the washroom for cleanliness inspection
• F.H. told no one about assaults until 2000 when he told his wife
• Trial judge found F.H. to be credible witness
• Court of Appeal overturned conviction
  • Testimony from adult victims about long-time-ago events required independent corroboration
• S.C.C. Appeal
  • Question: Should standard of proving liability in civil cases involving wrongdoing be as high as it is for proving criminal guilt?
  • Decision
    • Restoration of trial Judge’s decision
    • Decision based on which party presented case w/ greater likelihood of fact
    • Little evidence typically in sexual assault torts
    • If on balance of probabilities, assault did happen, sufficient to rule for plaintiff and make defendant pay
    • Even in criminal sexual assault cases, corroborating evidence not required

Medical Battery

medical battery: performing wrong medical procedure or performing a procedure without the patient’s consent

i.e. Doctor operates on wrong disc, does operation again, but doesn’t let patient know of original mistake

• May not always be possible to obtain patient’s consent, i.e. life-threatening emergencies where patient is unconscious
• Certain measures are to not be taken even in life-threatening circumstances for religious reasons (card)
  • i.e. Jevoah’s witnesses don’t accept blood transfusions

False Imprisonment

false imprisonment: detention of a person without consent and without legal authority

• Plantiff must show liberty has been restrained
• Defendant must show restraint is legally justified to avoid liability
• Cannot sue if you “consent” to the arrest
  • i.e. security guard arrests you and you “consent” to avoid an embarassing scene

Malicious Prosecution

malicious prosecution: trying someone wrongfully without reasonable and probable cause

malice: desire to harm another

Conditions

• Someone has to be charged with a crime when there are no reasonable grounds for the charge
• The individual instigating or continuing the proceedings must be motivated by malice
• Proceedings against the defendant must be resolved in defendant’s favour
• The defendant suffers damages as a result of wrongful proceedings

Nervous Shock and Mental Suffering

intentional infliction of nervous shock or mental suffering: deliberately shocking someone, causing the victim to suffer physical / mental harm

Pranks count if the victim suffers…

Invasion of Privacy

• People increasingly concered about legal protection of privacy
• Governments reluctant to push privacy legislation for fear of…
  • interfering with certain freedoms like
    • freedom of the press
    • freedom of expression
• Must seek balance between privacy and public’s legimate interest in info.
• Provinces deal w/ it differently
  • i.e. Alb.; Ont. Personal Health Information Privacy Act, but privacy invasion not a tort
  • others like B.C., Manitoba, NFL, and Sask. make privacy invasion a tort

Issue: Have we traded privacy for technology?

Real-Life Situations

• 14-year-old girl murdered on jan. 1, 2008
  • identity of two teens accused of killing her immediately on social network, contrary to privacy protection of YCJA
• young executive loses dream job when his prospective employer sees drunken behaviour pictures at party on same site

George Orwell’s 1984

• written in 1948 by George Orwell
• predicted world where state security more important than personal privacy
• “BIG BROTHER IS WATCHING YOU” from book
• Should people be concerned?

Yes: Privacy Lost in Electronic World

• companies use specialized cameras to take photos of streets and sell them to sites / brokers
• Danger Example: woman fleeing from abusive relationship
  • car carrying cameras drives by her street and records her in front of her new home
  • husband later sees image on Google Maps
• smartphone tracks us and knows where are at all times
  • GPS on: precise location
  • GPS off: cellular network triangulation

Is Information Technology Safe?

• no point in human history, so much personal info. been collected and share
• unprecedented access into our private lives could have harmful consequences
• i.e. gov’t. of UK proposed a database that would store info on every…
  • phone call
  • email
  • Internet visit
  • purpose: combat terrorism
• CCTV cameras used for surveillance, watching our every move
• soon, we won’t be able to meet anyone anonymously in public place
• gov’ts can shut down protests and ID protesters any time

No: Privacy Is Adequately Protected

• 1999: Scott McNealy, chairman of Sun Microsystems said…
  • “you have zero privacy anyway. Get used to it.”
• Right to privacy a modern concept
• People had little privacy throughout history
• Suspicious to crave privacy back then
• People…
  • lived together in caves
  • shared homes w/ extended family
  • lived in small towns and villages where everyone knew everyone else’s business
• No one forced to post profile on social media
• Ann Cavoukian, Ontario Privacy Commissioner, says we have the primary responsibility of protecting our privacy
• We choose to give up some of our privacy in exchange of convenience, knowledge, and instant communication

Does Technology Protect Us?

• concern over CCTV misplaced
• cameras do not prevent crime, but make it easier for police to find criminals
• cellphones with GPS used to located people lost in remote places
• we should be vigilant about info. we choose to give out and gov’ts. enacted legislation to protect us
• privacy-protecting legislation, examples
  • Ontario: Freedom of Information and Protection of Privacy Act (guidelines about how info. and images can be used)
  • Schools, parents, and police warn of Internet dangers
  • Laws to prosecute pedos, cyberbullies, and others who use net w/ criminal intent

Intentional Interference with Property

Trespass to Land

• trespass: unlawful interference with the person, property, or rights of another
• trespass to land: intentionally entering one’s property without permission or legal authority
  • if licensee refuses to leave when you tell them to → trespasser
  • you must ask trespasser to leave, and only use reasonable force if they refuse
  • “intent” = “intent to go on the land”

Nuisance

• private nuisance: unreasonable, substantial interference with one’s right to enjoy their property
  • form of trespass
  • if neighbour had party and played loud music all night long
    • you must prove some damage
  • if loud parties become a nightly event
    • Court decides activity is private nuisance
• public nuisance: unreasonable, substantial interference with interest affecting community at large
  • i.e. public health and safety
  • oil spills, accidental pollution of drinking water
  • gov’t. usually sues for you
  • rare cases: plantiff gets harmed in a unique way, they bring action

Trespass to Chattels

• chattel: moveable personal property
  • i.e. clothes, jewellery, cars, bikes, furnitures, art, CDs
  • no need to damage chattel to be sued, but no point
  • harassment by constantly trespassing to your chattel → warrants action

Conversion

conversion: unauthorized, substantial interference with another’s property, which deprives owner of its use

• i.e. theft, “borrowing” w/o permission
• defendant simply has to “convert” your property to his or her own use
• i.e. taking someone else’s bike and taking it on a three-day bike trip

Defences to Intentional Interference

Defences to Interference with the Person

Consent

consent: permission granted voluntarily for a specific act

• i.e. Jeremy consents to having pies thrown at his face for charity
• Charlene angry at Jeremy laced pie w/ pepper
• Jeremy didn’t consent to having his eyes burned by the pepper on the pie
• Charlene liable for battery

Self-Defence

self-defence: legal right to use reasonable force to protect yourself against injury from another

Must prove:

• defendant was in immediate danger of actual or threatened harm
• use of force necessary to prevent personal injury
• force used was not excessive
• threat of physical violence must be real
  • unreal: John says he’ll beat up Gadi from across the stadium
  • real: John shows up besides Gadi with his fists clenched

Defence of a Third Party

defence of a third party: legal right to use reasonable force to protect someone else from injury

i.e. some guy threatens a bus driver with a bat, I’m a good supreme leader and I beat up the guy before he whacky whacky the bus driver

Even acceptable if defendant mistook a threat

Legal Authority

legal authority: the right to perform an act that would otherwise be a tort

• i.e. police officers can arrest and detain someone on reasonable grounds
• s. 43 of Criminal Code, parents and teachers have legal authority to discipline their students / children as long as they don’t use excessive force
• firefighters, paramedics, and other medical personnel may be given authority to restrain someone / use force to protect themselves or others

Defences to Interference with Property

Consent

• Someone gave you consent to be on their property
• You are not liable unless you damaged property or abused purpose for which you were allowed
• i.e. neighbour hires you to cut her grass
  • she has consented to you on her lawn cutting grass
  • she has not consented to you going in her bedroom to look for spicy tapes

Legal Authority

• some people have legal authority to trespass
• i.e. police officers if they have a search warrant
• i.e. public officials to check value of land for taxing or checking compliance w/ building codes

Statutory Authority

statutory authority: legislation grants someone authority to perform an act that could cause a nuisance (inevitable result)

i.e. a bus route is approved on your street, you will hear noise from moving buses

Defamation of Character

defamation: actions causing injury to a person’s reputation or good name

Slander

slander: oral statement / gesture that damages a person’s reputation

Plaintiff must prove

• statements were made to someone other than the plaintiff
• statements referred to the plaintiff
• statements lower the plaintiff’s reputation in the eyes of a “reasonable person”
• special / actual damages, like loss of income

If person overhears defamatory comment, statement is “published”

Libel

• libel: defamation in a permanent form
• Permanent Form
  • writing
  • printing
  • recording
  • films / videos
• considered far more serious than slander
• i.e. Woo writes an article about how Zara is a filthy cheater and plagiarizer

Defences to Defamation

mindmap
	{{Defences to Defamation}}
		(Truth)
		(Fair Comment)
		(Qualified Priviledge)
		(Absolute Priviledge)

Truth

truth: defences where comments alleged to be defamatory are verified and established facts

• strongest defence to defamation
• plaintiff will not succeed if defendant can prove statements are true
• Court must balance right to freedom of speech w/ person’s right to have his / her reputation protected
• true statements can be very damaging
  • person devoted life to public service
  • same person convicted of selling drugs as a teenager

Fair Comment

• fair comment: defence where comments / opinions were honest and made without malice
• malice: improper / ulterior motive for publishing a defamatory statement
• i.e. music critic negatively reviews a concert

Absolute Privilege

absolute privilege: protection from liability for statements made in Parliament, in a legislature or courtroom, at a military hearing, or before a tribunal

• allows certain people like state officers, soldiers, and politicians to speak openly about others w/o fear of legal action
• protection ensures best interests of society are served

Qualified Privilege

qualified privilege: protection from liability for statements made in certain situations as long as they were made w/o malice

• app. when someone has duty to make statement or an interest to protect
• person receiving statement has duty / interest in receiving it
• i.e. employers and teachers often asked to write letters of reference for former employees and students
  • allows them to be honest and forthright on their assessment
  • employers may be sued for negligence if they do not tell the truth
  • courts favour freedom of speech over protection of reputation

Case: WIC Radio Ltd. v. Simpson, [2008] S.C.C. 40 (CanLII)

Background

• Rafe Mair well-known and sometimes controversial host of show on WIC Radio
• Kari Simpson widely known social activist against positive portrayals of gay lifetstyle
• controversial debate on radio: Should materials dealing with homosexuality be introduced in public schools?
• Mair FOR: he believed it would promote tolerance
• Simpson AGAINST: she argued it would promote homosexual lifestyle
• Mair compared Simpson to Hitler, Ku Klux Klan, and skinheads

Trial

• Simpson sues for defamation
• Mair at trial testified that he had not implied that Simpson condoned violence toward gay communities
• Mair simply wanted to convey that Simpson was an intolerant bigot
• Trial Judge dismissed complaint noting that defence of fair comment applied
• Court of Appeal reversed trial Judge’s decision
  • no evidence that Simpson had ever promoted / condoned violence against gays
  • Mair didn’t testify that he had honest belief that Simpson would condone violence

Legal Question: What is the objective test that would grant a defence of fair comment?

Decision (S.C.C.)

• S.C.C. restored trial Judge’s decision
• Mair did make defamatory comments about Simpson
• comments protected by fair comment bcz.
  • a) The comments were on a matter of public interest;
  • b) They were based on fact;
  • c) The comments were recognized as comment; and
  • d) The person who made the comment believed them to be true
• Court ruled that last test should be modified to read “if any person could honestly express that opinion based on the same facts”

Source

Law in Action 2nd Ed., Pearson