Class 3 – Chapter 4 – Intentional Torts

chapter overview

- assault and battery

- invasion of privacy
- false imprisonment
- trespass to land
- interference with chattels
o trespass to chattels
o conversion
o detinue
- defences to intentional torts
o complete defences
o partial defences
number of torts require proof of the defendant’s intention

list of intentional torts

- assault
- battery
- invasion of privacy
- false imprisonment
- trespass to land
- interference with chattels

what are intentional torts?

- they involve intentional rather than merely careless conduct

- example – defendant commits the tort of battery deliberately punching the plaintiff – tort law’s
definition of “intention” states that the plaintiff merely has to prove that the defendant
intended to perform the physical act that is required for an intentional tort – a court will not
demand proof that the defendant also intended to do wrong or cause an injury
o consequences of this definition of intention:
 if you build a fence on my property , you commit an intentional tort of trespass
to land even if you think that land belongs to you – it is enough that you know
that your actions will result in a fence being constructed on that piece of ground
o why has tort law continued to use that definition of intention?
 because tort law wants to strongly protect the interests that people have in
themselves and in their property
o in terms of risk management, lesson is clear – before acting in a certain way, you should
know as much as possible about the potential consequences

1 – type of intentional tort – assault

what is assault?
 - occurs when the defendant intentionally causes the plaintiff to reasonably believe that bodily
contact is imminent
o belief – tort is not based on physical contact – it is based on a reasonable belief that
such contact will occur – it is designed to keep the peace by discouraging people from
alarming others
 example you may commit an assault by swinging your fist at me, even if you do
not actually make contact
 example if you punch me from behind, you do not commit the tort of assault if I
did not know that the blow was coming instead you would have committed the
tort of battery
o reasonable belief – it is enough that the plaintiff reasonably believed that bodily contact
would occur
 example – you may commit an assault by pointing a gun my direction, even if
the gun isn’t loaded – is it enough that a reasonable person would have shared
my belief that a gunshot was possible
o imminent contact – plaintiff must have believed that bodily contact was imminent
 example – you would not commit an assault if you threatened to kick me two
weeks from today – the threat must be more immediate
o offensive contact – an assault can occur even if the plaintiff was not frightened
 it is enough that the defendant threatened some form of offensive contact
 example – you may commit an assault by swinging your fist at me, even if I
know that you are far too small to do any harm

claim for assault is usually joined with a claim of battery – suing alone is normally not worth the trouble
and expense of litigation - (lawsuit, trial, hearing)

2 – type of intentional tort – battery

what does battery mean?

- a battery consists of offensive bodily contact

o contact – it is enough if the defendant causes something, such as knife or a bullet, to
touch the plaintiff – also it is enough if the defendant makes contact with a plaintiff’s
clothing or with something that the plaintiff is holding
o social interaction – not every contact is offensive – normal social interaction is allowed
 example – you do not commit a battery if you gently brush past me in a
crowded elevator or tap my shoulder to get my attention
 however, some contact may still be offensive even if it isn’t harmful – example –
you will commit a battery if you kiss me despite my objections
 will still commit a tort even if you’re actions are highly beneficial – example –
performing a live saving blood transfusion against a patient’s wishes

3 – type of intentional tort – invasion of privacy

- privacy is protected indirectly by several torts

 o trespass to land – example – photographer sneaks into someone’s property to obtain
candid pictures commits the tort of trespass to land
o breach of confidence – example - employees who publish embarrassing details about
their employer’s private life may be liable for breach of confidence
o intentional infliction of mental distress – example – recognized in Wilkinson v Downton
– as a practical joke, the defendant cruelly told a woman that her husband had been
badly injured, knowing that she was likely to be terribly upset – because of the
traditional intentional torts applied, the court created a new cause of action that
requires proof that the defendant
 (i) acted in an outrageous or unjustified manner,
 (ii) either intending to cause emotional distress or callously disregarding that possibility
 (iii) caused the plaintiff to suffer a serious emotional injury

o abuse of private information – example - supermodel was able to sue a newspaper that
published a photograph of her coming out of an anonymous meeting
o misappropriation of personality – example – example a company that makes
unauthorized use of a celeb’s picture to sell its own products
o negligence – example – newspaper that ignores a judge’s instructions and publishes the
name of a police officer who had been sexually assaulted during an undercover
investigation may commit the tort of negligence

voyeurism – committed by secretly observing or recording a person “in circumstances that give rise to a
reasonable expectation of privacy”, if that person is engaged in sexual activity or is partially or fully nude
– example – paparazzi recording models sunbathing topless – crime committed by anyone who “prints,
copies, publishes, distributes, circulates, sells, advertises or makes available” a prohibited recording

intrusion upon seclusion – dramatic development in the protection of privacy interests

4 – false imprisonment

- occurs when a person is confined within a fixed area without justification

- would be true if the plaintiff for example is physically dragged to a prison and thrown into a
locked cell
o confinement
 actual prison is not necessary
 tort can be committed if a person is trapped in a car, locked in a room, or set
adrift in a boat
 but in any event the confinement must be practically complete
  defendant does not commit a false imprisonment by obstructing one path while
leaving another reasonable path nor is the tort committed if the plaintiff can
easily escape
o psychology
 physical force is not necessary – detention may be psychological
 a tort may be committed for example, if a shopper accompanies a security guard
to a backroom in order to avoid public embarrassment – confronted by a person
in uniform who is making a serious demand, many people feel that they have no
choice but to do as they are told – the perception may be reinforced for
example if a theft device triggers an alarm when a customer leaves a store
 in that case, the judge has to decide whether the plaintiff voluntarily
chose to go to the backroom – therefore no liability or whether the
plaintiff believed that there was no practical option – liability
o risk reduction
 police officer has more power than a private citizen so a business person may
reduce the risk of liability by calling a police officer instead of directly arresting a
suspect – this tactic however does not eliminate the risk – the business may still
be held liable if it directed the officer to make the arrest rather than merely
state the facts and let the officer draw the conclusion
o malicious prosecution
 so even if business did not direct the police officer to make a arrest so therefore
cannot be held liable for false imprisonment – it may instead be liable for
malicious prosecution
 malicious prosecution occurs when the defendant improperly causes the
plaintiff to be prosecuted – focus is no criminal proceedings and not on
detention or imprisonment
 example – business concocted a story about shoplifting and persuaded
the Crown to lay charges against the plaintiff
 malicious prosecution is hard to prove the court has to be satisfied with two
things
 (i) the defendant started the proceedings (ii) out of malice, or for some
improper purpose, and
 (iii) without honestly believing on reasonable grounds that a crime had
been committed, and that
 (iv) the plaintiff was eventually acquitted (cleared) of the alleged crime

false imprisonment continued…

- defendant will not be held liable if the plaintiff agreed to be confined

- consent – complete defence to all intentional torts
- examples of when false imprisonment cannot occur:
o bus passengers cannot complain if the driver refuses to make an unscheduled stop
o a company that operates a mine is entitled to leave a worker underground until the end
of shift
 o traveller at any airport may be detained for the purpose of a search
o same rule applies to customer in store if store gave advance warning
o even though false imprisonment may be committed by wrongfully detaining someone’s
property, the tort does not arise if the plaintiff agreed to that arrangement
o a person cannot remove a vehicle from a car park without paying the appropriate fee
when is a false imprisonment false?

- only if it is done without authority

basic rules found in Criminal Code

- police officer – may arrest anyone who is reasonably suspected of

o being in the act of committing a crime or
o having committed a crimes in the past
 if the test is satisfied, the police officer cannot be held liable, even if the person
who arrested was actually innocent
- citizen
o private citizen – much narrower rules
o private citizen is entitled to make an arrest only if a crime is actually being committed by
the suspect
o if no crime is being committed, the arrest is unjustified – unjustified arrest may lead to
tort liability even if the person who made the arrest acted honestly and reasonably

law favours a customer’s freedom of movement over a store’s desire to protect its property

example – if a person objects to the price of a meal and tries to leave the restaurant without fully paying
– they are committing a breach of contract – so what role does law play in this?

o it could either let the business detain the customer or the customer’s property until it
receives payment however this would violate the customer’s freedom of movement or
the law could allow the business to sue the customer for breach of contract but usually
the amount in question is too small to justify the expense of a lawsuit
 conclusion - Although neither solution is perfect, the law prefers the latter.
Consequently, while the restaurant is entitled to take down the patron’s name
and sue for breach of contract, it may be liable for false imprisonment if it tries
to detain the customer
 even if a business is authorized to make an arrest, it must not use more
force than is necessary. In most situations, the customer should be
given an opportunity to surrender peacefully. And in any event, the
arrested person should be turned over to the police as soon as possible.

5 – trespass to land
- occurs when the defendant improperly interferes with the plaintiff’s land
- can be quite obvious but can also be arise innocently
- example – if I kick a ball that lands into your yard or if a lawn care company mistakenly
cuts your grass instead of your neighbour’s – its all about intention – rmbr what
intention means – it is enough if I intended to do the act, even if I did not intend to do
wrong or cause damage – the law wants to protect property interests
- “giant carrot theory of ownership – person has right to a particular piece of property
also has rights to the air above it and ground beneath it – theory suggests landholder’s
right extend from the centre of the Earth and up through the skies
o modern courts however say the rights are only available to a reasonable extent
 example you cannot just sue cause a jet flies overhead
 instead if like a construction company allows its building crane to swing
over its plaintiff’s land, or if metal rods are inserted beneath the
plaintiff’s land in order to support a building on a neighbouring plot then
damages may be available
- when is tort of trespass not committed/by who?
o by a person who has legal authority to be on a property
 example – police officers are entitled to enter premises under a search
warrant – other public officials like building inspectors and meter readers
may do what is reasonably necessary to carry out their duties
- tort law takes a common sense approach to normal human interactions
o example – no trespass if a customer walks into a place of business during its
regular hours – assumed that the business consented to the intrusion and it
implicitly invited the customer onto the property – a business can revoke its
consent and when it does the customer who remains on property becomes a
trespasser – read page 92
Interference with Chattels
what are chattels?
- chattels are moveable forms of property such as horses, books and cars
- 3 torts that protect chattels
o trespass to chattels
o conversion
o detinue

1 – type of tort to protect chattel – trespass to chattels

what is trespass to chattels?
- occurs when the defendant interferes with the plaintiff’s chattels
- how is element of “interference” satisfied? -satisfied if the defendant damages,
destroys, takes, or uses the plaintiff’s goods
- may even be a trespass if the defendant merely touches the plaintiff’s property at least
if that property for example is a priceless painting that requires protection
what is the usual remedy for trespass to chattels?
- compensation is the usual remedy for trespass to chattels
- amount depends upon the circumstances – example – if you completely destroy my car,
you will pay its market value – in contrast if you merely damage my car, damages will
equal either the lost value or the cost of repair whichever is less
2 – type of tort to protect chattel - tort of conversion
what is the tort of conversion?
 - occurs when the defendant interferes with the plaintiff’s chattel in way that is serious
enough to justify a forced sale – may be true if the defendant takes, detains, uses, buys,
sells, damages or destroys the plaintiff’s property
what is the usual remedy for tort of conversion – how does court respond?
- court usually responds to that situation by effectively imposing a sale on the parties
- defendant must pay the chattel’s market value to the plaintiff – the rights to the chattels
are transferred from the plaintiff to the defendant
difficulty with tort of conversion?
- hard to know whether the defendant’s actions are serious enough to justify a forced
sale? courts need to consider all facts including:
o the extent to which the defendant exercised ownership or control over the
chattel
o the extent to which the defendant intended to assert a right that was
inconsistent with the plaintiff’s right to the property
o the duration of the defendant’s interference
o the expense and inconvenience caused to the plaintiff

examples
- conversion is clearly committed if a thief steals my property or if a vandal destroys it
- tort may also occur if you habitually use my umbrella without my permission but not if
you use it only once because you were caught in a downpour – although you do not
commit a conversion if you borrow my umbrella for a short time, you do commit the
tort of trespass to goods
- trespass used for less serious goods and conversion can be used for serious matters
tort can be committed even though the defendant didn’t intend to do anything wrong – its
enough that they intended to do anything in the first place – example – it is enough that
you intended to exercise control over a particular piece of property, even if you thought you
were entitled to do so
this is a risk to businesspeople – as a matter of risk management, it means that you should
use every reasonable effort to ensure that you buy goods from people who are actually
entitled to sell them
 3 – type of tort to protect chattels – detinue
- tort of detinue occurs when the defendant fails to return a chattel that the plaintiff is
entitled to possess
- this tort is based on wrongful detention – plaintiff is required to demand possession of
the property before bringing an action – this requirement is removed if the demand
would obviously be refused
what are the usual remedies available to plaintiff?
- returned chattel – tort comes to an end as soon as the defendant returns the property
to the plaintiff – at that point the plaintiff is normally limited to compensation for losses
that were suffered during the detention as well as any harm done to the chattel
- juridical restoration – if the property has been returned by the time of trial, the plaintiff
can ask the court to compel the defendant to do so
o court gives defendant option of either giving the property back or paying
damages – judge may require the property to be returned if it is special or if
damages would not satisfy the plaintiff
*detinue is the only tort that generally allows a court to order the defendant to return a chattel
to the plaintiff
- some situations – plaintiff may not need the court’s help – right of “recaption” – allows a
person to simply take property back
example - For instance, a shopkeeper may be entitled to grab a stolen watch away from a
shoplifter
who is trying to leave the store? That right, however, should be exercised very carefully.
The owner is entitled to use only reasonable force while recovering the property. Anything
more will expose the owner to the risk of liability for battery.
Defences to Intentional Torts
- so far, we have seen…
o damages for battery may be reduced if the victim provoked the attack
 o false imprisonment does not occur if the plaintiff consented to being confined
o public authority does not commit a trespass by entering onto a property with
legal authority
- there is never a defence to plead a mistake**
o a trespass to land occurs even if the defendants thought they owned the
property
o conversion is committed even if the defendants honestly thought that they were
buying goods from the true owners
o as a matter of risk management, the intentional torts require you to not only be
careful but also be correct!
Complete Defences
- most defences to intentional torts are classified as complete defences
- what are complete defences?
o protects the tortfeasor from all liability – even though the plaintiff demonstrated
the existence of a tort, the defendant will not be held responsible
- the 4 complete defences are:
o consent
o legal authority
o self defence
o necessity

1 – type of complete defence – consent

- consent is the most important defence
- what is consent?
o exists if a person voluntarily agrees to experience an interference with their
body, land or goods
o this defence applies in a wide range of circumstances – example:
 allows a person to borrow a friend’s car without committing the tort of
conversion
 explains why a bus company is not liable for false imprisonment when it
refuses to let a passenger out between schedule stops
 ensures a company’s clients do not commit a trespass to land when they
visit the company’s premises
 since every sexual act involves interference with another’s body – it is
only the defence of consent that protects lovers from being held liable in
battery
o consent can be expressed or implied
 example – a surgeon will insist upon a detailed, signed consent form from
operating – consent is implied by the circumstances
  example – hockey game – for instance, a person agrees to being hit in the
normal course of the play – but not a vicious attack that goes beyond the
sort of behaviour that referees normally penalize
o whether it is expressed or implied – it is only effective when it is free and
informed
o the defence will not apply if the apparent consent was given because the plaintiff
was tricked or threatened – nor can consent be given by a person who lacks legal
capacity because they are too young or because they suffer from a mental illness
 medical consent form is effective only if the physician properly informed
the patient of the risks and benefits involved in a certain procedure
o consent is revocable in most circumstances
 even if you allowed a group of people onto your property, you may
withdraw your consent so that they will become trespassers if they
refuse to leave
2 – type of complete defence – legal authority
- comes after consent
- what is legal authority?
o provides a person with lawful right to act in a certain way – acts that are legally
authorized cannot lead to liability in tort
o examples:
 in context of false imprisonment – legal authority allows police officers
and sometimes other individuals to exercise a power of arrest
 in context of trespass to land – public officials such as mete readers and
by law enforcement officers, are entitled to enter onto land to perform
their jobs
 although many of those situations traditionally involved common law
rules, legal authority today is more often provided by statute
3 – type of complete defence – self defence
- self defence is tied to only battery and assault*
- what is self defence?
o consists of the right to protect oneself from violence and the threat of violence
o available only if a person was at immediate risk
o act of self defence must be reasonable having the regard to the nature of threat,
the presence of weapons, the possibility of a nonviolent resolution
o a person under attack “is not required to ‘measure may apply even if, in the heat
of the moment’ the force necessary to repel the attack” – defence therefore may
apply even if in the heat of the moment the defendant reasonable used more
force than was strictly necessary
 o same rules generally apply if the defendant, having been sued for battery or
assault, pleads defence of a third party – example parent may use reasonable
force to protect a child – case of Gambriell v Caparelli – mother who believed
that her son was being choked was not liable for hitting the attacker on the head
with a garden rake
why are self defence and defence of a third party are broadly defined?
- because they are aimed at protecting human life and well being
- because property interests are considered less important, the rules regarding the
defence of property are less generous
examples:
- nonthreatening trespassers normally must be given an opportunity to leave peacefully
before any force is used
- fences, barbed wire and guard dogs may be used to keep intruders out, but a landowner
will likely be held liable for injuries that trespassers suffer as a result of loaded trips or
attack dogs
- if threat is only to land or chattels, it may never be reasonable to deliberately cause
death or serious injury
- in case of R v Szcerbaniwicz – Supreme Court of Canada – a woman grabbed her
husband’s diploma and smashed it to the ground – man became enraged and in an
effort to protect his property – he pushed his wife hard against a staircase – he was
convicted of criminal assault – the court held that while he was entitled to defend his
diploma, he used excessive force in doing so
3 – type of complete defence – necessity
- very rare but important defence
- what is the defence of necessity?
o applies if the defendant’s actions were justified by an emergency
o this consequence was restricted to situations in which immediate action is
required in order to avoid some calamity – court must consider all the
circumstances and decide whether the benefits flowing from the defendant’s
conduct outweigh the harm that was caused
o example – the defence may protect a physician who provides urgent medical
care to an unconscious patient, or a person who tore down a neighbour’s house
in order to prevent the disastrous spread of fire
- although defence of necessity is a complete defence – defendant may not entirely
escape responsibility in every instance
o example –
Partial Defences
- allows a court to reduce damages on the basis of the plaintiff’s own responsibility for a
loss or an injury – even though the defendant committed a tort, the plaintiff is partly to
blame
- two types of partial defences:
o provocation
o contributory negligence

1 – type of partial defence – provocation

- closely tied to the torts of assault and battery
- narrower version of the general defence of contributory negligence
- what is provocation?
o consists of words or actions that would cause a reasonable person to lose self
control
o the defendant “snaps” after being taunted and insulted by the plaintiff
o defendant is held liable for the physical attack, but the plaintiff is not entitled to
full compensation
o this defence strikes a balance – the legal system cannot condone violent
behaviour so it imposes a liability – the legal system recognizes that the
plaintiff’s boorish behaviour caused the attack and that even a reasonable
person can be pushed only so far, it reduces damages
2 – type of partial defence – contributory negligence
- what is contributory negligence?
o occurs when the plaintiff is partially responsible for the injury that the defendant
tortiously caused
 o because responsibility is shared between the parties, the defendant is held
liable, but damages are reduced to reflect the plaintiff’s contribution to the
injury
- contributory negligence is not equally available across the country – legislation differs
between provinces and territories
- some statutes appropriation – divide the responsibility on the basis of parties’ “fault” –
definition broad enough to cover every type of tort
- other statutes refer instead to the party’s “negligence” – since this term does not
naturally fit the intentional torts – some courts have found it difficult to apply the
defence of contributory negligence to cases of battery, trespass etc.