TORTS - TRESPASS

TRESPASS CHECKLIST – DIRECT ACTIONS

All other jurisdictions in the world have drawn a sharp line between intentional torts and negligence.
You can transfer intention between those torts or victims and you will still have action of trespass.
STEP 1: CHECK LIMITATION PERIOD
• 2 years upon the discovery of the Tort (Kamloops v. Nelson/s. 4 of the Limitations Act)
• 1 year for medical professionals
• Ultimate limitation period of 15 years
• No limitation period for sexual assault (Ontario – presumption of incapacity to bring the claim until it is brought) See Limitation Act section 10 The limitation
period established by section 4 does not run in respect of a claim based on assault or sexual assault during any time in which the person with the claim is
incapable of commencing the proceeding because of his or her physical, mental or psychological condition.
• For children, judgment can be continually renewed under Civ Pro rules until payable, subject to 15 year period above
• It is important as a lawyer to always make note of limitation periods. We will assume that in this case the plaintiff is within the limitation period which is
generally set as 2 years upon discovery of the tort (Kamloops v. Nelson or S. 4 of the Limitations Act)
STEP 2: NAME THE PLAINTIFF AND DEFENDANT(S)
• Name the parties – Plaintiff and Defendant(s)
• Joint and Several Liability – Under joint and several liability, a plaintiff may recover all damages from any of the defendants regardless of their individual
share of the liability. To recover from other parties that defendant must seek contribution from the other parties.
• Vicarious liability – Employers will be vicariously liable to third parties for torts committed by their employees in the course of their employment. They
“acting in the course of their employment”?
• If there was no actual damage – “The plaintiff is seeking monetary compensation and it’s appropriate for the following reasons (because it’s actionable
per se)
STEP 3: IS THERE A CRIMINAL CONVICTION AGAINST THE DEFENDANT?
• This may be brought in as prima facie evidence (not proof), despite the different burdens
• Section 22.1 of the Evidence Act: Proof of conviction or discharge: Proof a person has been convicted or discharged anywhere in Canada of a crime is proof
that the crime was committed by the person if (a) No appeal within the time to appeal or (b) An appeal of the conviction was dismissed or abandoned and
not further appeal is available
• SAMPLE: A prior criminal conviction will be prima facie evidence, admissible in a subsequent civil action by the plaintiff if the issues and parties to the
action are substantially the same. However this evidence can be rebutted on its merits by the defendant. If he had every incentive and every

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opportunity to defend himself to the full extent permitted by law and offered nothing new at this stage it seems conclusive (Franco v. White). Section
22.1 of the Evidence Act sets out that: Proof a person has been convicted or discharged anywhere in Canada of a crime is proof that the crime was
committed by the person if (a) No appeal within the time to appeal or (b) An appeal of the conviction was dismissed or abandoned and not further
appeal is available

STEP 4: IS THERE AN APPROPRIATE ALTERNATIVE VENUE IN WHICH TO BRING THIS ACTION?

• Discuss importance of taking the action to the right place, or else you will get sued for negligence
• Can you bring the action under the Charter? If so, damages can flow from s. 24 (1) of the Charter – this is a better option than Tort if available (Jane Doe
case)
STEP 5: IF MULTIPLE PARTIES
• You can transfer intention between those torts or victims and you will still have action of trespass. If the chair leg flies off and hits someone else, it is a
battery on that person but assault on the original person you were threatening. Transfer of torts and victims.
INTENT
• If the actor knows that the consequences are certain, or substantially certain, to result from his act and still goes ahead, he is treated by the law as if he
had in fact desired to produce the result.
• Wilson: thinks you should have to at least intend that apprehension of bodily harm.
• Have to be intending the physical consequences according to Wilson
CAPACITY
• Need to be able to show the plaintiff can appreciate the consequences of his action (Lawson v. Wellesley Hospital).
PARENTAL LIABILITY
• Parental liability legislation only deals with intentional acts to property
• Parents aren’t liable for harm caused by children unless they are negligent in supervising their children for example leaving a gun out on the kitchen
table. (Zellers Case)
DIRECTNESS
• Must be immediate and direct – Linden debates this.
• MacDonald 1987 NSSC: people drank water with arsenal in it. Defendant knew there was arsenal. Court found battery. Never said anything about the
problem with the water. They drank the water with medical consequences and sought damages.

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TRESPASS ACTIONS
• The purpose of the original trespass torts was to keep peace. To frame this action under the original five trespass actions, we must first establish that the
tort was direct. You have to ask:
1. Does the alleged wrongful conduct fit within the definition of one of the five original trespass actions – assault, battery, false imprisonment, trespass to
chattels or trespass to land?
2. If the answer is yes then determine if the injury resulted directly from the act of the alleged wrongdoer (Southport Corp v. Esso Petroleum)
a. An injury can be described as being directly produced by the defendant’s act when it flows naturally from it, without the necessity of an
intervention by another independent factor.
b. Test of directness: Would the result have occurred had it not been for the intervention of another independent agency?
3. If the answer to questions 1 and 2 is yes the action can be brought in trespass. On the other hand if the harm is indirect, even if intention, the action
cannot be framed as one of the five original trespass torts. Linden disagrees – he says you can have an indirect battery
4. What is the significance of being allowed to frame the action in trespass? ADVANTAGES
a. The burden of proof shifts to the defendant who will be required to disprove both intention and negligence.
b. Trespass is actionable per se, that is, without proof of damage
c. In a trespass action, the concept of proximate cause is not available to limit liability, that is, the tortfeasor will be liable for all losses that flow
from the commission of the trespass. There may be an argument that proximate cause should apply in the case of negligent trespass
d. Punitive damages are generally reserved for intention torts but sometimes in negligence
5. If the conduct does not fit within the definition of one of the original trespass torts, or if the harm was not caused directly, the action can be framed
under one of the other tort actions, for example intentional infliction of nervous shock, invasion of privacy, malicious prosecution, defamation or
nuisance.
a. If conduct was intentional but indirect you could try to frame the action in negligence on the theory that the intentional infliction of harm
shows conduct that falls below the standard of the reasonable person. Or as suggested by Osborne – indirect intentional acts probably remain
independently actionable under a residual and innominate tort.
b. Finally if the conduct was negligent, and damage resulted, you can frame the action in negligence, regardless of whether the harm was direct or
indirect
1. BATTERY

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• General Requirements for a Battery:

• Intentionally bringing about a harmful or offensive contact with another person. Talking about integrity of person also extended to anything attached or
identifiable with the person. (example: car, clothing, hat, horse). Even trivial things are actionable
• Direct (proven by plaintiff on BOP above), un-consensual positive or affirmative act/touching, person doesn’t have to know awareness is not essential,
motive inconsequential (Cole v. Turner), can apply to person’s accessories/clothing, no actual damage need be proven (actionable per se)
• The plaintiff need only prove that the defendant directly interfered with his person in a harmful or offensive way (use reasonable person test).
Defendant must show on a BOP that their actions were neither intentional or negligent (go through both analyses if appropriate)
§ If there is a third party seeking damages, state that with intentional torts there is no case law outlining what their recourse is against the
original tortfeasor
• On directness, Linden thinks the contact doesn’t have to be brought about by the direct application of force. If you simply put something in motion that
ultimately produces the result that can constitute a battery. Putting out a trap of poisoning food – though most academics disagree.
• When is Battery action brought?
• Battery is used most often in shooting and sporting accidents
• It may not be used in automobile accidents where negligence is the only cause of action
• If Battery is proven, what is the defendant liable for?
• Bettel and Yim (ON 1978): proximate cause isn’t available in intentional torts. The concept of foreseeability is not part of the law of intentional torts. If a
person has committed an intentional tort they will be responsible for all of the consequences even though they weren’t foreseeable, weren’t intended
etc. Conflicts with the next case…
• Plouffe and Roy: used proximate cause the test of reasonable foreseeability (legal causation to limit extent of the damages). Unforeseen intervening act
of teasing; was a break in the chain of causation.
• Pires Ferrera v. Ayotte, 2010 Ont CA: Approved Bettel v. Yim but used factual causation to limit the damages recognizing they can’t use proximate
cause.
• Wilson hits you and you have to go to hospital, while at the hospital another patient causes you significant injury. Is Wilson a factual cause? Yes.
Wouldn’t have happened but for. Is there proximate cause? Probably no.
NEGLIGENT BATTERY
• When the defendant causes a direct, offensive, physical contact with the plaintiff as a result of negligent conduct. The defendant’s negligence consists
of unreasonably disregarding a foreseeable risk of contact even though the contact was neither desired nor substantially certain to occur.
• Plaintiffs in negligent battery cases have the same advantages as those involved in the intentional torts. Plaintiffs need prove only that the battery was
committed by the defendant, who must then disprove it was done negligently

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• Cook v. Lewis – plaintiff was shot by one of two hunters; unable to establish by direct evidence which of the two had hit him, and attempted to reverse
burden of proof. He was not able to do this using tort of negligent battery because he could not establish who was responsible however the court
established:
o Except for highway accidents, where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact
and the onus falls upon the defendant to prove that such trespass was utterly without his fault.
• Examples: errant golf balls, projectiles and bullets
• Where negligent battery the plaintiff (1) does not have to prove damage and (2) does not have the burden of proving negligence; burden of disproof
on the defendant
• Wilson suggests may have proximate cause in negligent battery using the test of reasonable foreseeability. Wilson: are cases that get around this issue
by using causation (Plouffe v.Roy)

2. ASSAULT
• Where you cause someone an apprehension of imminent bodily harm. Apprehension takes on different meaning that fear; man knows martial arts and
wasn’t afraid of man approaching with crowbar, court found assault (Freitas v. Defraga)
• The person must know about it (i.e. can’t be sleeping). Awareness is required.
• It is purely mental disturbance. Don’t have to show anything physical
• The harm must be feasible and immediate – must be possible to carry out (Stephens v. Myers).
• The effect of threatening words: very fact-specific (Richard Warman Case) Threats for future events may or may not constitute assault
• If action is in pursuit of your own legal rights (property, etc.), then it’s not a tort
• What intention do you need?
• Linden suggests it may be sufficient if you intended the physical act instead of the consequence. Conduct may be considered intentional even if
where defendants act by mistake (mistake is not a defence)
• If you intend to do something which causes an apprehension of imminent bodily harm your conduct should be seen as intentional. Wilson
thinks this is ridiculous. He could see an action in negligence. He thinks only if you intended to cause an apprehension.
• If you point a gun at someone and it isn’t loaded it’s going to cause an apprehension of imminent bodily harm, under this decision there is no
assault which Wilson thinks is ridiculous.
• Focus should be on the state of mind of the plaintiff.
SEXUAL ASSAULT
• In sexual assault bring action in both assault and battery; no separate tort of sexual assault

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• Little separates liability for battery in a sexual context from ordinary battery. The sexual aspects of the claim go only to damages.
• In a civil trial the victim unlike the criminal trial is a party to the proceedings and because you are a party to the proceedings those documents are going to
be subject to discovery. You need to tell your client we were successful in barring access to records in the criminal trial but if you go ahead with the civil
trial council for the defendant may have access to your records.
3. FALSE IMPRISONMENT
• Must be a total restriction of liberty of movement directly caused by the defendant, no proof of damage, length of confinement doesn’t matter, MAY
have to know about it (Boil says you don’t, Miriam says you do), no malice needed, Bird v. Jones – must be actual restraint (can’t just turn around and
go the other way)
• Test: Whether there is another route for the person being obstructed to take to get to final destination. If there is then NOT false imprisonment, but
if there isn’t then this would constitute false imprisonment but may be malicious prosecution
• Mere blocking of someone’s path does not constitute FI
• Burden on Defendant to show their actions were utterly without fault
• Consider the issue of psychological imprisonment – look to notes if necessary
• Possible to have negligent false imprisonment – hypo being locked in library

Cases
• Bird v. Jones – limiting someone’s direction does not constitute FI but Wilson thinks you could recover under another tort
• Chaytor et al. v. Paris Association of Fashion – When you can characterize situation as police acting as agent, directly on the information of another, you
may have a FI. FI against the person who summoned them. When the police are called and then make an independent decision to arrest, the situation
may be described as indirect harm at that point
• Campbell : police officer working as a security officer in a store. Someone told him they saw someone put something in pocket. Officer detained the
person. Court found amounted to FI.
Malicious Prosecution à see other checklist
4. TRESPASS TO LAND
• No damage necessary (actionable per say), constructive intention allowed, voluntariness required, doesn’t matter if there’s a mistake as to ownership
• You go on someone’s land, throw something onto someone’s land, cause someone else to be on property or if given a license to be on land if you don’t
leave when it expires
• Trying to protect possessory interest, not ownership. Trivial invasion is actionable

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• Linden: Not necessary for defendants to realize infringement of legal rights of others only intention to cause the physical consequences. Wilson thinks
should be a category of accidental harm
• BOP on defendant to show lack of intention or negligence
• Note: likely legislation with inference with real property.
• Petty Trespass Act may apply – prosecutor requires consent from plaintiff, and they seek compensation up to $2k fine $1k damage (optional –
could pursue action privately)
• If indirect interference with land you’re looking at nuisance – Anderson v. Skender (fir trees; branches over property line). Nuisance is not a trespassory
tort
• Continuing trespass when asked to move but refuses – Johnson et al v. BC Hydro & Power Authority
5. TRESPASS TO PROPERTY (CHATTEL – MOVEABLE PERSONAL PROPERTY)
• Interference with possessory interest.
• Deliberate, direct, interference with property (possession is key), mistake is not a valid defence
• May or may not be damage – academic debate
• Everitt and Martin – there is an academic debate as to whether damage is required for it to be actionable per se. Larry says harm is likely not needed,
but more than a mere touching (some sort of negative interference)
1. Trespass to Chattels (2) Detinue (3) Conversion (4) The Action on the Case to Protect the Owner’s Reversionary Interest (5) Replevin à see below
for Osborne: Intentional Interference with Chattels

DEFENCES AND MITIGATING FACTORS

CONSENT (TECHNICALLY NOT DEFENCE BUT WE WILL TREAT IT AS ONE)

• Given the facts of the case, is there any issue of consent (seen as a defence)?
o Consent can be express or implied (trade and custom – i.e. easements)
§ If someone needs critical care dealing with implied consent
§ O’Brien – didn’t want the shot but held up arm; implied consent
o Silence can constitute consent (O’Brien Steamship)
o Defendant must show on a BOP that plaintiff consented to the tort
o With consent we are looking at the conduct not the end result (someone dying for ex)

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o If you engage in sporting event you don’t consent to egregious bodily harm but you do consent to contact. You consent to a violation of rules due
to penalties etc. but there is a line where you move beyond consent. At some point it becomes criminal.
o Jobidon – if you engage in criminal activity, difficult to bring a civil action though there have been some cases with prisoners.
o Norberg v. Wynrib – consent can be vitiated where: there is relationship of dependency, duress, actual force, look to relationship and position of
power.
• Is there an issue of consent to medical treatment? (Keep in mind limitation period)
• All treatments require express consent, unless there is an issue of incapacity in which there is implied consent under the HCCA
• Marshall v. Curry – Included consent – there is implied consent only for procedures stemming directly from the first one
• Jehovah’s Witness – regardless of how dire, if consent can be given it must be prior to procedure(Malette v. Shulman)
• Even non-negligent, diligent, expert care cannot be performed without consent
• Does anyone have HIV in the Hypo? Is consent vitiated?
• Currier - Consent will be vitiated if the fraud goes to the nature and quality of the act
• Leone – HIV case in which parents, police, health dept. Etc. knew HIV pos. Man was bringing people home and having consensual unprotected sex.
How can you recover from the parents? Occupiers’ liability (otherwise parents aren’t responsible)
• Is there an issue of consent with a minor?
• Common law has no set age for determining when they can make their own decisions
• Wren: 16 year-old allowed to have abortion because she was competent
• Courts will find psychologists to say the child is not competent when they don’t want the decision to be carried out
• Some provinces have legislation allowing the child to make own decisions. That said, the more grave the consequences the more scrutiny applied.
Courts can adopt Parens Patrau
• Mistake is not a defence (Young v. Arnyek)
SELF-DEFENCE – A COMPLETE DEFENCE
• Burden on the party raising defence on a BOP, must show the threat was real, sufficient/proximate, response must be reasonable & force must be
proportionate & necessary (reasonableness is key)
• It is a complete defence. Not to be confused with Provocation – fact that you were provoked may have impact on damages (mainly punitive or aggravated
not compensatory)
• If you’re out on the street and are threatened with death of grievous bodily harm, if you can retreat safely you should probably do that. If you’re in your
home it is a different situation, castle doctrine.

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• If in the home, the Castle Doctrine applies – you can use more force, but it still must be somewhat reasonable. “Drag dead trespassers into the home”. If
you kill must have been threatened with death or grievous bodily harm
• R v. Ford ONCA – when someone is attacked in their own home, retreating from the premises us not required; self-defence will still apply even if there was
another way out of the house. Home owners are expected to exercise a reasonable amount of force when dealing with home intruders but don’t have to
act perfectly
• Alter Ego Rule: You assume the responsibilities and obligations of the party you’re attempting to defend. That said, if it’s reasonable and you actually
thought you were helping you’ll likely be fine – it’s all reasonableness
• Defence of third person: people are entitled to defence other people who are being attacked or threatened, even if operating under a mistake as long as
reasonable and no excessive force
DEFENCE OF PROPERTY
• Protecting possession not ownership, reasonableness is key. Should first make a request for person to stop unless very dangerous.
• Never reasonable to cause death or bodily harm to protect property (says Osborne) but may be justified if under personal threat
• Problem where removing someone from property puts them in serious danger (CN railway worker threw bum off the train while moving – not justified)
• The law is less clear in respect of injuries caused by mechanical devices and other strategies designed to protect property and deter intruders. Best guide is
reasonableness
o Section 247 of criminal code – criminal offence to set a trap to cause death or bodily harm.
o Criminal code may help determine what is reasonable
• Dogs: section 2 of Ontario dog owner’s liability act states owner is liable for damages of bite or attack of another person or animal 2(3) states liability of
the owner doesn’t depend on the knowledge of the propensity of dog or fault or negligence of the owner…Section 3(2) where person on premises with
intention of committing criminal act and receives damages by being bitten by a dog, not liable unless unreasonable for the purpose of protection of person
or property
• Re-capturing chattels: Court says unless matter of urgency, we would like you to resort to the courts rather than fight your way back into possession. Must
be emergency, property going to be destroyed etc. Should make a request for return of property unless dangerous. Reasonableness
NECESSITY
• You must show you have the privilege to protect your person, property or someone else's, or some societal interest despite causing intentional harm to
others’ property
• USUALLY AN EMERGENCY SITUATION
• Public Necessity – Full/Complete Privilege

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• Must be in good faith, acting reasonably, you have the privilege to act in this manner - you could burn something down to prevent public disaster,
for example
• Owner then pays for the damages
• Deliberately cause damage to protect significant injury to public without liability – PQ ice storm
• Court said no to Greenpeace in protecting public good; not emergency (Verchere 2004 BC)
• Private Necessity – Partial Privilege
• You are only liable for the damages caused, not the tort itself
• A key factor determining between the two types of necessity is the number of people involved
• To save your own life or property; have to pay for this privilege; if protecting a private interest you are liable for actual damage (Vincent v. Lake Erie
Transportation)
LEGAL AUTHORITY
• Criminal Code doesn’t tell us our civil rights however it is useful for guidance as to what reasonable conduct is
• Private Citizens have the power of arrest for someone committing an indictable offence, once they are detained must bring them to police.
o If situation on reasonable ground you believe that they have committed any offence, summary or indictable, and they are escaping from lawful
authority you can arrest that person.
o Under legislation don’t have power to arrest someone committing a non-indictable offence. It seems unfair. Courts have looked at this with
conflicting decisions – all over the place.
• Walmart case: so long as you have reasonable and probable grounds you are okay (although cannot detain someone for summary conviction)
• Courts have significantly expanded the powers of police to arrest – no longer require reasonable and probable grounds for arrest. Reasonable suspicion
is likely all you need.
o Have been battery actions against police when searching
MEDICAL CONTEXT
See Healthcare Consent Act!! Where you have an unconscious patient section 25 of healthcare consent act will allow you to assume consent.
CONSENT IN MEDICAL CONTEXT
• Malette v. Shulman – to transfuse a Jehovah’s Witness in the face of her explicit instructions to the contrary violates her right to control her own body and
show disrespect for religious values by which she has chosen to live her life
Impact of Signed Consent Forms
• They are very general and thus often useless. Osborne says it is useful evidence of consent but not conclusive

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• Court must be convinced of reality of consent. Takes into consideration mental capacity, language of the form, explanation given to the patient to decide if
it is an informed consent.
Good Samaritan Act
• Section 1: defines health care professional
• Section 2(1) Health care professional who voluntarily and without reasonable expectation of compensation provides services, not liable for damages
that results from the person’s negligence in acting or failing to act, unless it is established the damages were caused by gross negligence
• Section 2(2)(a) It applies to healthcare professional providing emergency health care services and 2(2)(b) non-professionals
• Section 2(3) Reasonable reimbursement shall be deemed not to be compensation
REFUSING TREATMENT/END OF LIFE
• Law is fairly clear concerning withdrawal or withholding potentially life-sustaining treatment: Health care professional must respect refusals of
treatment from competent adults and made by substitute-decision makers on behalf of incompetent persons.
• Advance directives: prior-expressed wishes of previously competent adults should be respected when it comes to end-of-life decision making
• Both assisted suicide and voluntary euthanasia are quite clearly illegal in Canada
• Sue Rodriguez case: doctors can’t be required to assist end of life treatment. Allowed to increase pain medications where you in effect realize it will end
up causing someone’s death
• Rasouli – going to shift treatment need consent from family. Doesn’t mean doctors can never turn off the machines in fact they can. Here they were
going to move the person from one regime to another need the consent from patient or substitute decision maker.
• The Act doesn’t set an age, question is competence (Wren case - abortion)
Rasouli v. Sunnybrook Health Sciences Centre
• Patient in a persistent vegetative state; doctors wanted to take him off life support; wife who was substitute decision maker didn’t want to. Court of
Appeal: physicians proposal to withdraw life support and place him on end-of life care constituted “treatment” under the Health Care Consent Act for
which consent was required.
• Summary: Doctors Can’t Unilaterally Cut off Life Support – Ontario doctors cannot withdraw life support from comatose patients whose substitute
decision makers object, unless the Consent and Capacity Board first gives them clearance
• Where consent was withheld and the treating physician was not satisfied that the substitute decision-maker had complied with the requirements of s.
21 of the Act then he had to resort to s. 37 of the Act to refer the matter to the Board for determination
• Because the removal of a ventilator and the administration of palliative care are integrally linked they are a “treatment package” under the Act
requiring consent.

Nancy Case
• If competent patient wishes doctor not the start treatment or discontinue treatment then doctor has to listen even if the result is death.

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Mature Kids Under 16 May Refuse Treatment: SCC – AC v. Manitoba

• Children under 16 may make life and death decisions about their medical treatment if a court deems them capable of “mature independent” judgment
about their health, the SCC has ruled.
• This allows children under 16 to refuse medical treatment. Here 15 yr old
• Intervener for the Justice for Children and Youth in Toronto said the decision won’t affect Ontario where capacity rather than age is the critical issue in
consenting to medical treatment
• If after careful analysis the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of
maturity exists, it seems to me necessarily to follow that the their views ought to be respected
• Judge has to weigh: their intellectual capacity and degree of sophistication to understand the information relevant to making the decision and to
appreciate the potential consequences; the stability of their views and whether they are a true reflection of his core values and beliefs; the potential
impact of their lifestyle, family relationships and social affiliations; existence of emotional vulnerabilities

Negligent Doctors and Religious Freedom

• Woman wanted hysterectomy and came to hospital. Told them she was a Jehovah’s Witness and cannot have blood transfusion. They operated on the
woman and hit an artery and she began to bleed. They didn’t have enough substitute they chose to do nothing, the patient died and family sued for
negligence. Doctor argued she had voluntarily assumed the risk of negligent treatment by not willing to be saved. Courts found the doctors negligent,
can’t use someone’s inability to give consent as an excuse for harm caused by negligence. Negligence by the surgeons triggered the need for the
transfusion.
HEALTH CARE CONSENT ACT
• Section 4&9: Capacity
o 4(1) Person is capable if the person is able to understand the information that is relevant to making a decision about the treatment and able to
appreciate the reasonably foreseeable consequences of a decision or lack of decision.
o 4(3) A person is entitled to rely on the presumption in 4(2) unless he has reasonable grounds to believe that the other person is incapable
o 9 “substitute decision maker” is a person who is authorized under section 20 to give or refuse consent on behalf of someone incapable
• Section 10-14 &20-21: Consent to Treatment
o 10. A health practitioner shall take reasonable steps to ensure that treatment is not administered unless: (a) he is capable and have given
consent or (b) he is incapable and substitute decision maker has given consent
o 11(1) Elements required for consent of treatment: (1) must relate to the treatment (2) must be informed (3) must be given voluntarily (4) must
not be obtained through misrepresentation or fraud
o 11(2) Consent to treatment is informed if, before giving it they: (a) received information about the matters set out in subsection (3) that a
reasonable person in the same circumstanced would require in order to make a decision about the treatment and (b) the person received
responses to his requests for additional information

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o 11(3) Matters referred to in (2) are: (1) nature of treatment (2) expected benefits (3) material risks (4) material side effects (5) alternative
courses of action (6) likely consequences of not having treatment
o 11(4) consent can be express or implied
o 12 Unless not reasonable, health practitioner is entitled to presume that consent to a treatment includes:
§ Consent to variations or adjustments to the treatment is benefits, material risks and material side effects are not significantly different
§ Consent to the continuation of the same treatment in a different setting if there is no significant change to expected benefits, material
risks or side effects
o 14 Consent may be withdrawn at any time by (a) the person is capable (b) the person’s decision-maker if incapable
o 20(1) If a person is incapable consent may be given/refused by (1) guardian of the person (2) attorney for person care (3) representative
appointed by the board under section 33 (4) spouse or partner (5) child or parent or a children’s aid society (6) parent with right of access (7)
brother or sister (8) any other relative
o 20(2) A person described in section above must be (a) capable (b) 16 years or older unless parent (c) not prohibited by court order from having
access (d) is available (e) is willing to assume responsibility of giving or refusing consent
• Section 25-27: Emergency Treatment
• Section 29: Protection from Liability
o SEE HANDOUT NOT TYPING IT OUT

REMEDIES
Apportionment of liability
Jointly and severally liable
• If you are found to be responsible to the plaintiff it is possible for the plaintiff to execute their judgment in its entirety to any one of the parties – “joint
and severable liability”. Often plaintiffs will go after the party with the deepest pockets to recover 100% of their loss
Compensation types
Settlement Agreement
• If entering a settlement agreement ensure they sign a release so that client is exempt from being held liable to any subsequent actions involving the
same tort
OSBORNE: INTENTIONAL INTERFERENCE WITH CHATTELS
• Chattel: an item of tangible movable or immovable property except real estate and things (as buildings) connected with real property
• Mistake isn’t a defence (Hollins v. Fowler)
• 1. Trespass to Chattels – oldest – Damage to property (not as major as conversion)

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o Intentional damage to a chattel in the physical control of the plaintiff usually remedied by conversion or negligence
o Defendant directly and intentionally (or negligently) interferes with a chattel in the possession of the plaintiff;
o Protects possession rather than ownership; Person in wrongful possession may bring an action against anyone except for the rightful owner.
Stress on possession – owner out of possession such as bailor cannot sue in trespass
o Any direct interference with a chattel is actionable including damage, destruction, taking or movement of
o Knowledge that the interference is wrongful is not required and mistake is no defence.
o It is not clear if trespass to chattels continues to be actionable without proof of damage
o Intel Corp. v. Hamidi – disgruntled employee sent mass emails to employees. No tort was committed because there was no evidence that there
was any significant impairment in the operation, value, or processing capacity of the plaintiff’s server. Challenges the notion that trespass to
chattels is actionable per se
• 2. Detinue – Ask for it back (need to also seek damages or not a tort)
o Defendant refuses to return the plaintiff’s chattel. A person with a right to the immediate possession of a chattel has requested its return from
a defendant who has possession of the chattel or who had possession of it but lost it as a result of a wrongful act
o The demand for the chattel and refusal by defendant are essentially components of this tort.
o Unlike trespass and conversion, detinue may be remedied by an order for the return of the chattel. Action may be defeated by the defendant
returning the chattel before judgment is given.
o 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. This is
contrasted with conversion where damages are assessed at the time of the conversion.
• 3. Conversion – most recent – Forced Sale (when MAJOR INTERFERENCE)
o Defendant has taken the plaintiff’s chattel – Three central elements to the Tort:
§ A. Protects persons who are in possession of chattels or who have a right to the immediate possession
§ B. Restricted to the intentional interference and dealing with chattels (not negligent damage/destruction)
§ C. So seriously interferes with the plaintiff’s rights to the chattel that the defendant may, in fairness, be required to pay its full value
o The payment of damages is equivalent to the full value of the chattel. The defendant is treated as if he had bought the chattel and he can keep
it. Explains why the plaintiff didn’t make a request for it back as in detinue.
o Chattels can be converted in a number of ways: taking during criminal activity, intention destruction of a chattel, unauthorized disposition of
another’s chattel by way of sale or pledge
o Mistake is no defence – both an innocent seller and purchaser are liable in conversion
o Sometimes difficult to decide if temporary taking, movement or use of a chattel is conversion – have to look at surrounding circumstances
including duration of interference, kind of interference, purpose and damage inflicted.
§ Test is to look to see whether or not the interference is sufficiently serious to warrant a forced sale
o Fouldes v. Willoughby – defendant let plaintiff’s horse of the ferry and released them court held not liable in conversion, at most trespass to
chattels.
o If the interference is short in duration and the chattel is returned unharmed, it is unlikely a conversion.

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o Conversion v. Detinue
§ Conversion may be committed by refusing to comply with a request to return a chattel to the rightful owner
§ The plaintiff may choose the more advantageous action – conversion damages are calculated at the time of conversion whereas
detinue damages are calculated at the time of judgment. Detinue is preferable in a time of a rising market and conversion in a falling
one.
§ Some situations where the bailee has negligently lost the chattel. Has no claim in conversion but claim in detinue
• 4. The Action on the Case to Protect the Owner’s Reversionary Interest
o Permanent damage to the plaintiff’s chattel which occurred when the chattel was in the possession of someone else.
o Trespass, detinue and conversion protects the possession or right to immediate ownership. This is usually bailment
o Mears v. London & South Western Ry Co – negligently caused serious damage to a barrage that was owned by plaintiff by leased to a third party
o Rarely arises – is often brought in negligence
• Penfold’s Wines Pty. Ltd. v. Elliott
o Plaintiff sold win to customers in returnable bottles; defendant refilled bottles at hotel with his own wine; intentional inference with another’s
chattel but impossible to fit into one of these head.
o Not trespass to chattels as they surrendered possession to customers. Not detinue as no demand for return of bottles. No conversion as he had
not acted in defiance with plaintiff’s ownership rights. Not action in case not damaged or destroyed.
• Recovery of Chattels
o 1. Replevin – procedure that permits the speedy recovery of a chattel subject to an ultimate judicial resolution of the dispute. The court may
order seizure of the chattel and its return to the plaintiff. (rule 44 of civil procedure section 104 of CJA) not a tort
o 2. Recaption of Chattels – a person may use reasonable force to recapture a chattel that has been wrongfully taken from him. The recaptor
may trespass on the land to recapture a chattel that was wrongfully taken, a request for its return has been denied, provided that the entry is
peaceable and the recapture is carried out without any breach of peace
• Defences – usually consent or legal authorization.
• Distress Damage Feasant – An occupier of land may seize a chattel that is unlawfully on his land and has caused or is causing damage – requirement of
damage is essential.

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