Chapter 4 Intentional Torts and Torts Impacting Business

1. Tort - committed when one person causes injury to another, harming his person,
property, or reputation.

- A social or civil wrong that gives rise to the right to sue and to seek one of
several remedies

- It aims to compensate victims, requiring the party at fault to bear the burden of
the loss suffered

- It deters the occurrence of such wrongful behaviour and educates society by

“making someone pay

- It serves a psychological function by providing some appeasement to those

injured by wrongful conduct

- Is a body of law that compensates injured parties wherever wrongful conduct is

involved.

- considered a private matter where the victim of the injurious conduct sues the
person responsible for the injury.

2. Crimes - Harmful conduct that is so serious that it poses a threat to society

generally is said to be criminal in nature.

- The prosecution for such acts is carried out by the state in a criminal court
where the focus is to punish the wrongdoer, not to compensate the victim.

- With many crimes, the victim also has the right to sue for tort, even if the
prosecution results in an acquittal

- wrongful conduct is often both a crime and a tort

3. Criminal Code - For example, a driver who is racing on city streets and causes
an accident resulting in injury could be charged with criminal negligence and face a fine
and imprisonment. But regardless of whether the criminal charges result in a conviction or
acquittal, that driver could also be sued in a civil action for the tort of negligence. If found
liable, the driver would be ordered to compensate the injured parties.
4. Breach of contract - An act that breaches a contract might not be inherently
wrong, but the breach entitles the victim to a remedy.

- A tort, on the other hand, is inherently wrongful conduct that is either deliberate
or falls below a minimal social standard.

- When the victim sues, the court examines who was at fault and who caused the
injury, and determines who should bear the loss for the injuries suffered. Ultimately,
the court assesses the amount that should be paid to the victim.

5. intentional tort (or deliberate) acts and unintentional tort (or

careless) negligent acts

- difference between deliberate torts and negligence is in the remedies that the
courts are willing to grant to the injured party

- When the interference has been intentional, the courts may be persuaded to
grant punitive damages in addition to the more common general and special
damages

6. Vicarious Liability - An employer can be held liable for the tortious act an
employee commits while at work..

- limited to torts committed while carrying out employment duties

- The employer will not be vicariously liable when the employee is off doing his or
her own thing, even if done during working hours, instead of doing the employer’s
business

- Cannot be overemphasized in the business world

- Owners are liable for damage and injury caused by people whom they allow to
drive their car

7. Risk avoidance or risk management. - the habit of mind that anticipates

and avoids legal problems.

8. Managing risk responsibly - avoiding the problem in the first place

9. Intentional Tort - conduct involved was intended or deliberate, as opposed to
discussion of negligence, where the conduct is inadvertent.

- does not mean that the wrongdoer intended to do harm, only that the conduct
itself was willful as opposed to inadvertent

- wrongdoer must be demonstrated, but when we examine intentional torts as

discussed here, that fault is embodied in the willful act of the wrongdoer.

10. Trespass to person - involve the intentional physical interference with another
person.

- concern particularly to businesses whose employees serve the public.

- To recognize the right of each person to control her body and who touches it.
Damages are awarded when this right is violated.

11. Assault - If someone fakes a punch, points a gun, or picks up a stone to threaten
another person, an assault has been committed

- often used to refer to both assault and battery

- If the defendant’s conduct would cause a reasonable person to feel threatened

with imminent harm or even simply unwanted contact, it constitutes an assault. Even
threats made online can constitute an assault

12. Battery - when someone intentionally makes unwanted physical contact with
another person.

- Assault and battery are actionable, even where there is no injury: “the least
touching of another in anger is battery.

13. Consent - when informed and voluntary, operates as an effective defence to many
of the torts discussed in this chapter and the next.
14. Excessive violence - For example, Mike Tyson faced liability after biting his
opponent during a boxing match. Excessive violence may also be a crime

15. Informed Consent - For consent to act as a defence, it must be an

- people must know what they are consenting to.

16. Self-defence - can also be raised to counteract an assault and battery accusation

- law entitles people who are being attacked to use necessary force to defend
themselves

- The test asks whether the force used was reasonable

- An attack is not a licence to respond with unrestrained violence

- use of excessive force may result in liability on the part of both the bouncer and
the occupier of the premises.

17. Trespass to Land - going onto another person’s property without having either the
lawful right or the owner’s permission to do so

- trespass is an actionable wrong, even when no damage or injury takes place

and even if the intruder does not know he is trespassing

- Ignorance of the location is a trespass. Only if the intruder had no control of

where he was would there be a defence.

- struck by a car and thrown onto the property, there would be no trespass.

- running away and went onto the property to escape a threat, it is still a trespass
and he would be responsible for any damage caused.

- “bruising of the grass” is trespass; but if only nominal damages are likely, why
sue?

- If such visitors become unruly or dangerous to other patrons they can be asked
to leave. In fact, visitors can be required to leave even though they have done
nothing wrong, so long as the reason does not violate human rights legislation (such
as refusing entry to persons based on their race or religion)
18. Trespass to chattels - the plaintiff has possession or a right of possession, and
those rights are wrongfully interfered with by the defendant, a trespass to chattels has
occurred.

- the remedy for trespass to chattels is compensatory damages

- when vandals smash the windshield of a car or kick the door in, they have
vindictively committed trespass to chattels and are liable to pay compensatory and
possibly punitive damages to the victim. They may also face criminal charges.

19. Conversion - involves one person intentionally appropriating the goods of another
person for her own purposes.

- it is a wrongful taking, using, or destroying of goods or asserting control over

them, with intent to deprive the owner of title

- takes place when someone sells or otherwise wrongfully disposes of goods

belonging to someone else.

- When goods are damaged or destroyed to the extent that they are no longer of
any value to the rightful owner, the wrongdoer should have to pay the market value
at the time of the tort.

- consists of interference with the plaintiff’s chattels in such a way that a forced
sale is justified, with the person converting the goods being forced to purchase them

20. Detinue - it involves the wrongful possession of someone else’s goods

- deals with situations where the person is wrongfully retaining the goods

- defendant may have come into possession of them legally but is now, after a
proper request, refusing to return them

- wrongful detention that gives the plaintiff the ability to sue. For example, if
Nicole lends Henry her lawnmower and Henry refuses to return it, Nicole could bring
an action in detinue for compensation.

21. False Imprisonment - occurs when people are intentionally restrained against
their will and the person doing the restraining has no lawful authority to do so. This may
be in the form of complete imprisonment, where the person is held in a cell or room, or in
the form of an arrest.

- Even a person who submits to authority or threat can be considered imprisoned

- the restraint be unlawful

- When a security guard arrests someone found committing a crime, there has
been no false imprisonment. A security guard, like a private person, has the power to
make an arrest, but only when she finds someone in the process of actually
committing a crime, such as shoplifting

22. Malicious Prosecution - Sometimes the criminal justice system is improperly

used. When this happens, the victim may be able to sue for the tort of malicious
prosecution

- The defendant in the tort action must have initiated a criminal or quasi-criminal
prosecution in which the accused was subsequently acquitted or the prosecution was
abandoned

- the plaintiff must establish that the prosecution was motivated by malice and
that there were no reasonable grounds to proceed with the criminal action in the first
place.

- Successful malicious prosecution actions may involve prosecutors who have

chosen to ignore important evidence or complainants who have lied or manufactured
evidence used to improperly support the charges.

23. Private Nuisance - when an individual or business uses property in such a way
that it causes damage to property or interferes with a neighbour’s use or enjoyment of her
property. Such interference is usually ongoing and continuous

- building, such as a mill, is built near a residential neighbourhood, and the

resulting odour and noise interfere with the neighbours’ enjoyment of their yards, it is
appropriate for them to sue for nuisance

24. Public Nuisance - if he is able to show that the conduct harmed him particularly,
and more than other members of the general public.

- takes place when some public property is interfered with

 - The Supreme Court of Canada found that such a public nuisance had occurred
when a forest company in British Columbia allowed a controlled burn to escape

25. Defamation - a published false statement that is to a person’s detriment

- As stated by the Supreme Court of Canada: A plaintiff in a defamation action is

required to prove three things to obtain judgment and an award of damages

- (1) that the impugned words were defamatory, in the sense that they would tend
to lower the plaintiff’s reputation in the eyes of a reasonable person

- ; (2) that the words in fact referred to the plaintiff

- (3) that the words were published, meaning that they were communicated to at
least one person other than the plaintiff

- If these elements are established on a balance of probabilities, falsity and

damage are presumed, . . . The plaintiff is not required to show that the defendant
intended to do harm, or even that the defendant was careless

26. Cyber libel - when someone posts on the internet or emails a statement that is
untrue and damaging relating to another individual.

27. Slander – Spoken defamation or libel

- libel is easier to prove because there is no requirement to show that special

damages have been sustained

- more deliberate and more permanent than slander, thus causing more harm

28. Truth - also called the defence of justification , is an absolute defence. But even
when a statement is technically true, it can still be derogatory if it contains an innuendo or
is capable of being interpreted as referring to another person about whom the statement
is false

29. Innuendo - an implied or hidden meaning. A statement may appear perfectly

innocent on the surface, but when combined with other information it may take on a more
sinister meaning. For the defence of truth, substantial truth is sufficient. If the defendant
claimed that the plaintiff had stolen $300 000 when in fact he had stolen only $250 000,
justification would still be an effective defence.
30. Absolute Privilege - Anything discussed as part of parliamentary debate on the
floor of the legislature, in Parliament, or in government committees, and statements made
or documents used as part of a court procedure cannot give rise to a defamation action,
no matter how malicious, scandalous, or derogatory they are.

31. Qualified Privilege - When a statement is made to a third party honestly and
nonmaliciously pursuant to a duty or special interest, there is no action for defamation.

- statement must be circulated only to those having a right to know

32. Fair comment - People are free to comment—even negatively—about public

figures or matters of public interest, so long as their comments are statements of opinion,
based on facts, and are not made out of malice

- . To successfully use this defence, the critic or editorial writer must be able to
show that what was said was a matter of opinion, drawn from true facts that were
before the public, and was not motivated by malice or some ulterior motive

33. Public Interest Responsible Journalism Defence - operates to protect the

media from liability so long as it acts responsibly in communicating on matters of public
interest.

- the Supreme Court recognized a new defence that the media can raise

34. Inducing Breach of Contract - involves an employer persuading an employee of

another business to leave that employment and work for him.

- more common when that employee has special knowledge about trade secrets
or customer lists, or has a special relationship with customers that enables her to
bring them to the new job

35. Unlawful interference with economic relations - is actionable whether or not

a breach of contract has taken place, but there must be some other unlawful conduct
associated with the complaint, such as bribery or defamation

- unlawful conduct must have been intended to cause harm and, in fact, harm
must have resulted (as in the Polar Ice case just discussed)
36. Unlawful means tort - emphasizing that it extends civil liability without creating
new actionable wrongs.

37. Intimidation - The threat of violence or some other illegal activity, such as an illegal
strike, can constitute the tort of intimidation if it forces a party to do something that harms
it

38. Intentional Infliction of Mental Suffering (or nervous shock) - alleged

where such threats are involved

- Harassing an ill employee for justified absences, after he has already been
given notice of termination

- improper activities of a collection agency, including harassment and the threat

of physical violence, to encourage repayment of a loan

39. Deceit - fraudulent and intentional misleading of another person causing damage.
This is where one person lies to another, causing loss.

- an intentional tort and one of the few situations where the court will entertain an
application for punitive damages

40. Conspiracy to Justice - two or more persons act together using unlawful means
to injure the business interests of another.

- When a group of employees work together to get another employee fired, a

conspiracy is involved

- conspiracy to injure involved the wrongful act of creating false and misleading
documents and was thus an actionable tort

41. Passing-off - a business or product is presented to the public in such a way as to

lead the public to believe that the product is being provided by another business
 - imitation Rolex watches are sold as the real thing, or when a restaurant adopts
the golden arches logo leading the public to believe it is part of the McDonald’s chain
when it is not

42. Privacy - may take the form of a physical intrusion, surveillance, misuse of an
image or name, or access to information.