Introduction to Tort Law Principles

INTRODUCTION TO TORT LAW
TORT DEFINED
Tort Law: Concerned with things that have gone wrong, or with the breach of obligations.
Public Wrongs: Addressed through criminal law. The wrongdoer breached an obligation with society.
Private Wrongs: What tort law is concerned with. The wrongdoer breached an obligation to an individual.
TORT VS CONTRACTS
A plaintiff is entitled to sue simultaneously for several causes of action but, if successful on several grounds, the
claimant must normally elect between the options.
Double Jeopardy: The courts will not allow for double recovery for the same loss.
Relationship Between Torts and Contracts
1) Structure (same)
a. Primary Obligation: How people ought to act.
b. Secondary Obligation: Remedial – how people must act after their primary obligations have been
broken.
2) Sources of Primary Obligations (different)
a. Tort: Imposed by law based on circumstances.
b. Contracts: Generally created by the parties.
3) Enforcement (same)
a. The law may insist the performance of a primary obligation in addition/instead of the secondary
obligation.
b. Specific performance and injunctions are limited to exceptional circumstances.
4) Compensation
a. Tort: Events should not have happened. The compensation looks backwards.
b. Contract: Based on promises that should happen. The compensation looks forward.
HISTORY OF TORT LAW
Writ System: Standardize pleading issued by the Chancery Clerks on behalf of the King stating that the defendant
had committed certain unlawful acts.
 To initiate action in the Kings common law court, the plaintiff had to allege facts that would bring the case
within the standard form of the writ.
 The King’s court was initially limited to violent acts: vi et armis et contra pacem regis (those done with
force of arms and against the Kings peace)
 Torts were classified as trespass
Pack of Lies: The plaintiff would plead trespass vi et armis et contra pacem regis even if no force of arms or breach
of the peace was involved. The Clersk would honor the fiction to assume jurisdiction.
Trespass on the Case (1300): Widened the liability in tort. It required proof that the plaintiff’s loss had been caused
by some wrongdoing of the defendant.
Trespass vi et armis: To prove liability, needed to show that the defendant directly applied force. Proof of damages
were not required (liability per se).
Trespass on the case: To prove liability, needed to show the defendant caused an indirect/consequential injury.
The effect did not immediately follow the cause, but proof of damages was required.
Plaintiffs could only choose one form of writ and could not change it once it was chosen. If they chose the
wrong form of action, the defendant could claim non-suit.
SCOTT V SHEPARD (1773) – LEGAL FICTION; HISTORY OF TRESPASS AND CASE; STARE DECISIS
Facts: D threw a squib in a crowded market. The squib was thrown away by other people and ended up exploding
and taking out P’s eye. P sued for trespass and assault. The solicitor brought a claim in trespass vi et armis.
Issue: Is this a direct application of force?
Ratio (Nares J): “Wherever, therefore, an act is unlawful at first, trespass will lie for the consequences of it”
Holding: Judgement for P.
Reasons (Nares J): The throwing of the squib was unlawful in the first place. When the stem act is unlawful, all the
consequences are the result of the actor. “He is the one who gave the mischievous faculty to the squib. The
mischievous faculty remained in it until the explosion.”
Note: But the squib is an inanimate object, so it doesn’t have faculty. This is an example of a legal fiction. The judge
is inventing an illogical rationalization to obtain the desired holding (to allow the plaintiff to recover damages even
though the solicitor chose the wrong form of writ).
Dissent (Blackstone J): “The solid distinction is between direct or immediate injuries on the one hand and mediate
or consequential on the other, and trespass never lay for the latter. If this be so, the only question will be whether
the injury which the plaintiff suffered was immediate, or consequential only; and I hold it to be the latter”.
Note: Blackstone is defending the rule of law by following stare decisis (the doctrine of precedent). Judges are not
to apply their moral considerations.
FUNCTIONS OF TORT LAW
1) Compensation
a. Failings: Provides compensation to a relatively small number of people; significant financial
investment; the plaintiff must form fault and the tortfeasor must have assets or insurance.
2) Appeasement and Vindication (nominal damages)
3) Punishment (punitive damages)
4) Deterrence
a. Discouraging the defendant (specific deterrence) and others (general deterrence) from repeating
the wrongs.
5) Market Deterrence
a. Allocating accident costs to the producers of those accidents so that the costs are internalized in
the price of a product or activity.
6) Justice
a. Corrective justice accepts the existing distribution of wealth and is concerned with correcting
improper deviations from that pattern.
The Right Theory: Tort law is viewed in terms of rights, rather than being employed as a means to an end. Parties
are joined in private relationships of correlative rights and obligations. Liability is imposed as vindication of the
party’s moral relationships, not on the aim of fulfilling a goal.
 Non-Instrumentalist: Maintains that private law does not exist to promote external goals.
 Structuralist: Rights underlie and inform the entire subject.
 Formalist: Rules must govern.
 Individualist: The rules reflect the narrow relationship between the parties.
PRECONDITIONS TO LITIGATION
0) Victim must consciously recognize that a wrong has been committed and seek council.
1) Liability (prima facie): Intent vs. Negligence
2) Damages
3) Economic Viability
LITIGATION PROCESS
1) Statement of Claim: The factual basis of the cause of action. Sets forth the legally relevant facts and
related laws. Must file a statement of claim to start the litigation process.
a. Prepared by the lawyer and registered with the courthouse.
b. Asks the state to intervene to enforce rights and obligations
2) Statement of Defence
3) Negotiation
4) Discovery
a. Maximum Transparency: Both parties have the right to examine all the evidence (costly and
lengthy)
5) Trial
Alternative Disputes Resolutions: Settlements can occur at any stage.
Mediation: Mediator is a neutral party (bargain facilitator). Not legally binding.
Arbitration: Arbitrator has a legal authority to impose legal obligations.
Adversarial Litigation: The plaintiff bears the legal and evidentiary burden of proving the allegations. Must build a
prima facie case establishing liability. The defendant has the opportunity to defend themselves
Line of Defence
1) Rebuttal (challenge the evidence; challenge the elements of the tort)
2) Defence/Privilege
3) Mitigation
Burden of Proof
 Legal Burden: On a balance of probabilities (vs. crim law: beyond a reasonable doubt)
 Evidentiary Burden: Must adduce enough evidence to make a case in liability/damages
o Expert and witness evidence
o Only required for litigation
LIBERALISM
Philosophical and constitutional rights of persons to form their own private and commercial ends and to pursue
them. Pursuit of happiness is a fundamental part of a liberal society. Every person has the capability to assess risk
and are therefore culpable for their actions. A system of liability that is not merely cause-based but fault-based
aligns with a liberal society. It is a faulty mismanagement of risk which causes a loss.
FEASANCE (ACTION)
1) Malfeasance: An intentional act

a. Precondition for intentional torts. Having an intention/desire to bring about consequences of
harm, but the intent doesn’t always have to be wicked
2) Misfeasance: An accidental act
a. Precondition for negligence (unintentional tort). There is no liability for just causing a loss. The
risk-management conduct must have fallen below a reasonable level of care.
3) Nonfeasance: Non-action.
a. Rare basis for liability. Failure to act/omission of action. Not actionable unless there is a legal
relationship, or the defendant had a role in putting them in the situation (legal duty to act).
BASES OF TORT LIABILITY
Absolute Liability: Defendant is liable for simply engaging in proscribed behaviour, thereby causing the plaintiff to
suffer a loss. It is not required to prove intent or negligence.
 Does not exist in Canadian tort law (fault-based system of liability).
Strict Liability: If there was no jurisdiction for the benefit the defendant received from the plaintiff, liability would
arise even if the defendant was innocent in the transfer. Very limited in Canadian tort law. It is the exception to the
fault-based system.
 Vicarious Liability: Doctrine allows the courts to hold one person responsible for a tort committed by
another. Strict liability for the actions of an actor in employment. The agent “is” the employer while they
are working.
Negligence: Failure to take reasonable care to prevent foreseeable harm to another person.
Intention: Liability for intentionally inflicted harm based on fault.
No Liability: Some types of harm are not recognized under any rule of tort liability, even if the person who caused
the harm did so intentionally or carelessly.
LIABILITY EQUATION
Plaintiff Side of the Equation

The plaintiff must plead and prove on a balance of probability:
1) That the impugned act of the defendant was intentional (that the defendant desired to bring about the
consequences using subjective (i.e., testimony) and objective (i.e., reasonable person) evidence)
a. For intentional torts (for actions in negligence, intent is not required).
2) + The elements of the pleaded tort
3) + that the defendant’s act was causally connected to the interference/injury to the plaintiff’s protected
legal interests
4) + (typically) that the defendant’s tort caused the plaintiff to suffer an actual compensable loss to person,
reputation or property. (damages)
= liability proved prima facie, subject to the defendant’s factual rebuttal or substantive defence/privilege.
Defendant Side of the Equation
The defendant will pleas and seek to prove on a balance of probability:
1) Any claim of non-volition with respect to the act, or
2) Any rebuttal of the plaintiff’s pleading/evidence (rebuttal in fact) or regarding intent or a specific legal
element (rebuttal in law) of tort or damages in claim, or
3) Any formal or substantive defence/privilege (i.e., they committed the tort prima facie, but they bear no
liability because they were justified).
= No liability or legal obligation to pay damages.
4) Mitigations: When the defendant pleads/proves that the impugned act was influenced by circumstances
(i.e., provocation, duress, mistake, motive), it can mitigate or foreclose the plaintiff’s claim for certain
damages
= final finding on damages.
INTENTIONAL TORTS
INTENT & VOLITION
The defendant can only be held liable for an intentional tort if their conduct if both:
1) Voluntary
2) Intentional
Volition: An act is voluntary if it is directed by the defendant’s own will/conscious mind.
 Volition is assumed. The defence must plead and prove non-volition.
 Smith v Stone (1647): “he that drive the cattle into another mans land is the trespasser against him, and
not I who am the owner of the cattle.”
Intent: The plaintiff must prove intent. It is satisfied when it’s proved that the defendant intended to bring about
the consequence of interfering with another person.
 Does not require malice/malfeasance, the motive bears no significant to intent.
Subjective Intent: The testimony to the historical state of mind.
Objective Intent: What a “reasonable person” would have intended. Assessment of the subjective testimony
and the surrounding evidence.
Imputed Intent: The defendant didn’t desire the consequences to occur, but they were certain to result from
the act.
Transferred Intent: The defendant intended to commit an intentional tort against one party, but
unintentionally committed it to another party.
Liability of Children and Those with Mental Illness: Whether D was capable of appreciating the nature and quality
of their actions.
 Parents/teachers are not vicariously liable at common law. Those supervising can only be liable if they are
a party to the wrongful conduct or they negligently failed to monitor/control them.
MOTIVE & DURESS & PROVOCATION
Motive: Reason for wanting a result to occur. Not required to prove the motive was blameworthy. A well-intended
motive does not matter if the consequences were intended.
Duress: Fear for one’s well-bring. Motive of self-preservation is not a defence for an intentional action. May be
considered in assessing damages (mitigating factor).
 Gilbert v Stone: “I may not do a trespasse to one for fear of threatening of another”
Provocation: Taken into account when assessing damages. Prevents the plaintiff from collecting punitive damages
(mitigating factor).
To show provocation, the defence must prove that:
1) The plaintiff acted in a way that caused the defendant to lose self-control, and
2) The defendant’s reaction was immediate.
MISKA V SIVEC (1959) – ELEMENTS OF PROVOCATION

Facts: P threatened D with a knife. D ran home, P followed. D intentionally shot P. P sued for injuries. D was found
guilty at trial. D appealed that provocation was not considered in assessing damages.
Issue: Is there evidence of provocation?
Ratio: “The conduct of the plaintiff to be capable of being considered provocation must have been such as to cause
the defendant to lose his power of self control and must have occurred at the time or shortly before the assault.”
Holding: There is no evidence of provocation. Appeal dismissed.
Reasons: D’s conduct was careful and deliberate. He didn’t lose his power of self-control.
MISTAKE & ACCIDENT
Mistake: The defendant intended the consequences of their act, but those consequences had a different factual or
legal significance than that contemplated.
 Mistake is not recognized as a defence or relevant in establishing a cause of action. It can be a mitigating
factor.
Mistake of Fact: e.g., I thought it was my wallet.
Mistake of Law: e.g., I thought I was legally allowed to take the wallet.
Accident: There is an absence of intent. The defendant cannot be held liable in intentional torts or negligence.
HODGKINSON V MARTIN (1929) – MISTAKE OF LAW; NOT A DEFENCE BUT CAN BE A MITIGATING
FACTOR
Facts: D (police) pushed P out of the office because he though P was guilty. D didn’t use more force than was
necessary. P brought an action in battery. D claimed he believed that he had the legal authority.
Ratio: “while the sincere yet mistaken belief of the defendant in the propriety of his illegal action is no excuse
therefore yet it is a mitigation of his liability which must be taken into consideration”
Holding: Judgement for P but with reduced damages.
RANSON V KITNER (1889) – MISTAKE OF FACT DOES NOT REMOVE INTENT

Facts: D killed P’s dog because he mistakenly believed it was a wolf.
Ratio: “Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in
good faith.”
ASSAULT
Definition: The intentional creation in the mind of another of a reasonable apprehension of immediate physical
contact.
Elements: 1) Intent; 2) Reasonable Fear; 3) Imminence of Contact
Reasonableness Requirement: Given the circumstances, was it reasonable to expect imminent physical harm?
 Objective test
 Consider the circumstances (i.e., how far away was the defendant?)
Rarely a stand-alone tort because the damages are typically minimal.
HOLCOMBE V WHITAKER (1975) – WORDS ALONE CANNOT CONSTITUTE ASSAULT

Facts: P wanted an annulment from D. D said: “if you take me to court, I will kill you” and tried to pry open her
apartment door. P sued for assault.
Issue: Can a conditional threat of violence constitute assault?
Ratio: “While words standing alone cannot constitute an assault, they may give meaning to an act and both, taken
together, may constitute an assault.”
Obiter: “On the other hand, a show of force accompanied by an unlawful or unjustifiable demand, compliance with
which will avert the threatened batter, is an assault.”
Reasons: D’s words when combined with his actions was sufficient to create a reasonable apprehension of
immediate harm. P’s relevant testimony of her subsequent actions (i.e., not leaving her apartment, asking friends
to stay the night, nailing the windows closed) helped prove a real fear.
POLICE V GREAVES (1964) – CONDITIONAL THREATS CONSTITUTE ASSAULT

Facts: The police responded to a call where a woman was being attacked by D. Upon arrival, D threatened that
unless they got off his property, he would stab them with the knife he was holding. The police sued for assault.
Issue: Can a conditional threat constitute assault?
Ratio: “if the other conditions of the definition were met… there is no reason why a conditional threat should not
constitute an assault.”
Holding: Judgement for the police.
Reasons: It was enough that the menacing attitude of D caused the police to retire. There is nothing to show that
being presented with an alternative would prevent the threat from constituting assault.
BATTERY
Definition: The direct and intentional bringing about of physically harmful or socially offensive physical contact
with another person.
Elements: 1) Intent; 2) Directness; 3) Physical/Offensive contact
 Requires the intent to make physical contact, but not the intent to cause harm/offend.
Directness Requirement: Must be the “immediate consequence of a force” that the defendant set in motion
(Scalera)
 e.g., D put drugs in P’s drink
 The plaintiff need not be aware of the physical contact at the time of occurrence (e.g., D kissed P in her
sleep)
Offensive Requirement: Would a reasonable person find the contact offensive? (objective test)
BETTEL V YIM (1978) – D IS LIABLE FOR ALL THE CONSEQUENCES OF THIER INTENTIONAL ACT
Facts: D shook P to extract a confession. D’s forehead accidentally hit P’s nose causing injury to P. P sued for
damages in battery.
Issue: Whether an intentional wrongdoer should be liable only for the reasonably foreseeable consequences of his
intentional application of force or for all the consequences which follow from the act.
Sub-Issue: Whether the doctrine of foreseeability as found in the law of negligence is applicable to the law of
intentional torts?
Ratio: “The logical test is whether the defendant was guilty of deliberate, intentional and unlawful violence or
threats of violence. If he was, and more serious harm befalls the plaintiff than was intended by the defendant, the
defendant, and not the innocent plaintiff, must bear the responsibility for the unintended result.”
Sub-Ratio: “… the concept of foreseeability as defined by the law of negligence is a concept that ought not to be
imported into the field of intentional torts.”
Policy: “But as a matter of sound social policy, it is clearly better that the risk of such unintended and
unforeseeable consequences should fall on the intentional wrongdoer than on his victim. The former is a tort-
feasor and the latter is innocent. The wrongdoer, thus, should bear the loss.”
“In the law of intentional torts, it is the dignitary interest, the right of the plaintiff to insist that the defendant keep
his hands to himself, that the law has for centuries sought to protect.”
Obiter: “When something happens as a result of a chain of events deliberately set in motion by the defendant and
at the end of that chain of events some act is done by the defendant that causes an unintended injury, it is not an
accident. It is conduct for which the defendant must assume responsibility.”
FALSE IMPRISONMENT
Definition: Intention to cause a total restraint on liberty.

Elements: 1) Intent; 2) Total Restraint
 The plaintiff does not need to be conscious of their imprisonment at the time. Awareness is not an
element of the tort.
Total Restraint: Restraint must be total even if it is only momentary. Must be a substantial restraint on liberty,
not simply a partial one.
 Restraint may be imposed by physical means, implicit or explicit threat of force or assertion of legal
authority.
 The plaintiff’s belief that they were confined to a boundary must have been reasonable (objective test).
 If there is a safe and practical means of escape, then there was no imprisonment.
Imprisonment: When jailed/imprisoned, you must be released when it is safe and practicable, otherwise you
will have a claim for false imprisonment.
 Ex. You demand a bus to stop but the driver says no. There is a prima facie case for false imprisonment,
however the driver is privileged by your implied consent in riding the bus.
Voluntary Confinement: An individual has the right to end their voluntary confinement when it is safe and
practical to do so.
 Volenti non fit injuria: A person cannot bring an action for tort if they willingly placed themselves in a
position where harm might result (i.e., if there was a voluntary assumption of risk).
BIRD V JONES (1845) – THERE MUST BE A BOUNDARY TO WHERE P IS CONFINED

Facts: P was not permitted to cross a bridge in a certain direction due to the orders of D, a policeman. P sued for
false imprisonment.
Issue: Is prohibiting movement in a single direction enough to constitute false imprisonment?
Ratio: “A prison may have its boundary large or narrow, visible and tangible, or, though real, still in the conception
only; it may itself be moveable or fixed: but a boundary it must have; and that boundary the party imprisoned
must be prevented from passing; he must be prevented from leaving that place, within the ambit of which the
party imprisoning would confine him, except by prison-breach”
Policy: “it is one part of the definition of freedom to be able to go whithersoever one pleases; but imprisonment is
something more than the mere loss of this power; it includes the notion of restraint within some limits defined by
a will or power exterior to our own.
Holding: Judgement for D
Reasons: P was not confined to a boundary. He was at liberty to move and go anywhere else at his free will.
Obiter (Patteson J): To be imprisonment, D must have been restricted from moving anywhere on the highway. It is
also not imprisonment if his car (the chattel) was imprisoned, he must also have been imprisoned.
HERD V WEARDALE STEEL, COAL AND COKE CO LTD (1915) – CONSENSUAL RESTRAINT; NOT A
USEFUL PRECEDENT; VOLENTI NON FIT INJURIA
Facts: D was a miner and wanted to leave the mine. The foreman told him tat he must wait until the end of his shift
to go back to the surface. P sued for false imprisonment. D argued that they were justified because P breached his
contract.
Issue: Was D privileged in his false imprisonment of P?
Ratio: “it is not false imprisonment to hold a man to the conditions he has accepted when he goes down a mine.”
Holding: Judgement for D.
Reasons: D was privileged. P willingly went down the mine. It was implied in the contract that he wouldn’t be
brought up until the end of his shift.
Context: This case was heard during WW2. Coal was the principal source of energy that was required to support
the war effort. Unions were on the rise, but the country could not afford the consequences of a union strike.
Note: This is no longer good law. Today, an individual has the right to end their voluntary confinement when it is
safe and practical to do so.
FALSE ARREST
Definition: Intention to cause a total restraint of movement is brought about by an implicit or explicit assertion of
legal authority.
Elements: 1) Intent; 2) Total Restraint; 3) Assertion of Legal Authority
Total Restraint: Was it reasonable to believe that the plaintiff had no other option but to comply?
(Campbell)
For false arrest to amount to false imprisonment, P must be arrested and detained.
CAMPBELL V SS KRESEGE CO (1976) – A REASONABLE THREAT OF ARREST CAN AMOUNT TO A

TOTAL RESTRAINT
Facts: P left the store where D, a police officer, worked as security while off-duty. D was suspicious of P’s
shoplifting and asked P to come back to the store after showing her his police badge. P went back and left when
she was advised that she could P sued for false arrest. D argued he didn’t arrest her, but if he did, he was privileged
by his legal authority.
Issue: Was P under arrest?
Ratio: “The plaintiff being confronted by a member of the police force and being invited inside to avoid
embarrassment would have felt that she was obligated to follow the request.”
Reasons: In the mind of D, he was not arresting her, but he was using the force of his position as a police officer to
take her in a direction she did not want to go. She did not consent to going in that direction, but rather went out of
fear of the consequences if she refused. He was not on duty, so he had no privilege of legal authority.
MALICIOUS PROSECUTION
Nelles Test
a) The proceeding must have been initiated by the defendant
b) The proceeding must have terminated in favour of the plaintiff
a. Acquittal, withdraw or stay of proceedings are considered a favourable outcome for the plaintiff
c) The absence of reasonable and probable cause
d) Malice, or a primary purpose other than that of carrying the law into effect.
a. Negligence or incompetence is not enough to amount to malice intent.
b. i.e., they knew P wasn’t guilty but charged them anyways or had an “improper purpose” in
commencing proceedings.
The plaintiff must establish damages.
Complainant Defendant: A person cannot be held liable for malicious prosecution for providing information to the
police or for testifying.
A complainant may be treated as a prosecutor if (Orwin)
1) They had malicious intent
2) The facts were impossible to investigate
3) The complainant lied or withheld information
Immunity of the Crown: Only the core elements of prosecutorial discretion are immune from malicious
prosecution (i.e., decision to prosecute, enter a stay of proceedings, accepting a plea to a lesser charge, or
withdrawal from proceedings). The Crown can be liable for wrongful initiation and/or wrongful continuation of
criminal charges.
NELLES V ONTARIO (1989) – THE CROWN CAN BE LIABLE FOR MALICIOUS PROSECUTION
Facts: P was charged with first degree murder in the death of four babies at a hospital. The charges were dropped
due to lack of evidence at the preliminary hearing. P brought an action against the Crown for torts including
malicious prosecution.
Issue: Can the Crown be found liable for malicious prosecution or does the Crown enjoy absolute liability?
Ratio: “In my view this burden on the plaintiff amounts to a requirement that the Attorney Genera or Crown
Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office
and the process of criminal justice.”
Policy: Public confidence in the office of prosecutor suffers when the person is shielded from civil liability when
they abuse the process through malicious prosecution. Granting absolute immunity to prosecutors would be the
same as granting a license to subvert individual rights.
FITZPATRICK V ORWIN (2012) – REQUIREMENTS FOR THE INITIATION OF PROCEEDINGS

Facts: D (squires) found a dead cayote on their car. D called the police who came, investigated, and took
testimony. They decided to lay criminal charges. The charges were later dropped. P sued D for malicious
prosecution. D counter sued in IIMS.
Ratio: “the complainant may be treated as the prosecutor in exceptional circumstances, including the following: 1)
The complainant desired and intended that the plaintiff be prosecuted; 2) The facts were so peculiarly within the
complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any
independent discretion or judgment; and 3) The complainant procured the institution of proceedings by the
professional prosecutor, either by furnishing information which he knew to be false, or by withholding information
which he knew to be true, or both.”
Reasons: The claim fails the Nelles test because the police initiated the criminal proceedings, the squires had
reasonable cause to make a complaint to the police and malice was not present.
INTENTIONAL INFLICTION OF MENTAL SUFFERING (IIMS)
Orwin Test
1) Conduct that is flagrant and outrageous
a. Conduct that is conspicuously offensive to norms of everyday conduct.
b. Flagrant: Readily apparent to the senses.
c. Outrageous: Contrary to norms.
2) Calculated to produce harm
a. Must have been intended or known to be substantially certain to follow.
b. Ned a high level of intent, but it can be imputed. (Wilkinson)
c. Subjective in law, but in practice there is an objective aspect.
3) Resulting in visible and provable injury.
a. Can be psychological harm (Saadati)
WILKINSON V DOWNTON (1897) – IMPUTED INTENT

Facts: D lied to P about a serious injury to P’s husband. Immediately after hearing the news, she went into shock
and PTSD followed.
Issues: Can a claim in IIMS be made out if only words were used, and the injuries are mostly psychological?
Ratio: “One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind
which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the
fact that the effect was produced on a person proved to be in an ordinary state of health and mind… The other
question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence
for which the defendant is answerable.”
Reasons: “It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail
to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore
an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was
done than was anticipated, for that is commonly the case with all wrongs.”
After objectively considering the act and its consequences, it’s reasonable to say that D has the intent, or ought to
have known, that his actions would have caused serious harm. He might not have intended to cause long term
harm, but that intent is imputed.
Note: P relied on the fact that this was a moral wrong and that the judge would be sympathetic. The judge
essentially created a new tort.
SAADATI V MOORHEAD (2017) – THRESHOLD FOR STANDALONE PSYCHOLOGICAL HARM

Facts: P sued for psychological injuries after a traffic collision.
Ratio: “To establish mental injury, claimants must show that the disturbance is serious and prolonged and rises
above the ordinary annoyances, anxieties and fears that come with living in civil society. Expert evidence can assist
in determining whether or not a mental injury has been shown, but where a psychiatric diagnosis is unavailable, it
remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a
balance of probabilities the occurrence of mental injury. It also remains open to the defendant, in rebutting a
claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any
mental injury known to psychiatry”.
Policy: A more onerous threshold for psychological injury is no longer sustainable – psychological injury can now
be diagnosed just as easily as physical injury.
BOUCHER V WAL-MART CANADA CORP (2014) – APPLICATION OF THE IIMS TEST

Facts: P had a very good employment record but under the supervision of her manager, she was subjected to
belittlement and humiliation. P invoked D’s internal review mechanisms, but it was not properly implemented. P
became depressed and resigned. P brought a suit against D for breach of contract and IIMS (vicarious liability). D
was found guilty at trial and appealed.
Reasons: Intent is a subjective test, and the jury must find that he (in his own mind) intended to cause harm.
However, intent can be imputed out of inference. Applying the facts: there was flagrant and outrageous behaviour
(demoralizing, profane, demeaning), D should’ve known that his acts would lead to mental suffering/phycological
harm, and P suffered psychological injury.
Note: P served a jury notice (i.e., requested a jury trial) likely because she was someone a jury would sympathize
with (single mom vs. large corporation).
INVASION OF PRIVACY
There is no generalized tort for invasion of privacy. Courts are reluctant to recognize one because privacy is
ambiguous and complex, it’s not clearly defined. Furthermore, public figures (i.e., politicians) don’t want to be
investigated, but they should be.
Prosser’s 4 Privacy Torts
Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:
1) Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs. (Jones v Tsige)
2) Public disclosure of embarrassing private facts about the plaintiff.
3) Publicity which places the plaintiff in a false light in the public eye.
4) Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.
Elements of Intrusion Upon Seclusion (Jones v Tsige)
1) The defendant’s conduct must be intentional or reckless
2) The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns
3) A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish
Damages are not required to make out a claim. Damages are nominal.
MOTHERWELL V MOTHERWELL (1976) – ADAPTATION OF AN EXISTING TORT

Facts: D continually harassed P by making false accusations by phone and by mail. P sued for invasion of privacy
and nuisance. P won at trial but D appealed.
Issue: Does the common law recognize the tort of invasion of privacy?
Ratio: “I think that the interests of our developing jurisprudence would be better served by approaching invasion
of privacy by abuse of the telephone system as a new category [of private nuisance], rather than seeking by
rationalization to enlarge the third category…”
Policy: A nuisance must interfere with the comfort of convenience of living and the “telephone system is so much
the part of daily life of society that many look on it as a necessity… and its abuse by invasion of privacy is a matter
of general interest.”
Reasons: While receiving mail may not be a nuisance, there are valid claims for the invasion of privacy through the
abuse of the phone system.
NEW NOMINATE TORTS
Before considering pleading a new nominate tort, look for:

1) Precedent (an existing tort)
2) A reasonable adaption of an existing tort (Motherwell)
3) A new nominate tort.
Recognition of a New Nominate Tort (Nevsun)
1) The courts will not recognize a new tort where there are adequate alternative remedies
2) The courts will not recognize a new tort that does not reflect and address a wrong visited by one person
upon another
3) The courts will not recognize a new tort where the change wrought upon the legal system would be
indeterminate or substantial
JONES V TSIGE (2012) – INTRUSION UPON SECLUSION; RECOGNITION OF A NEW NOMINATE TORT
Facts: D was looking at P’s banking records without her permission or knowledge. D brought an action against P for
invasion of privacy.
Issue: Whether there is a common law right of action for intrusion upon seclusion?
Ratio: “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs
or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to
a reasonable person. The key features of this cause of action are, first, that the defendant’s conduct must be
intentional, within which I would include reckless; second that the defendant must have invaded, without lawful
justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the
invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized
economic interest is not an element of the cause of action.”
Policy: Courts have left it open to recognize the tort, there is foreign literature/jurisprudence supporting it. The
quasi-criminal law in other provinces have begun to regulate this area and the wrong “cries out for a remedy”.
“recognition of such a cause of action would amount to an incremental step that is consistent with the role of this
court to develop the common law in a manner consistent with the changing needs of society.”
“Somwar v. McDonald’s Restaurants of Canada Ltd (2006)… Stinson J. reviewed the Ontario case law and observed
that while the cases were not entirely consistent, even where the courts did not accept the existence of a privacy
tort, they rarely went so far as to rule out the potential of such a tort.”
“While there appears to be no appellate decision from another province definitively establishing a common law
right of action for intrusion upon seclusion, dicta in at least two cases support the idea.”
MERRIFIELD V CANADA (ATTORNEY GENERAL) (2019) – RECOGNITION OF A NEW NOMINATE TORT

Facts: D brought an action against the RCMP for constructive dismissal, IIMS and the alleged tort of harassment. At
trial, the judge recognized the new tort and held in favour of P. D appealed the decision.
Issue: What is required for a new tort to be recognized or established?
Ratio: “Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and
dramatically… courts may not be in the best position to address problems in the law; significant change may best
be left to the legislature… confirming the existence of the tort rather than simply creating it.”
Reasons: There is no tort of harassment. The trial judge erred in both fact and application of the IIMS test. The trial
judge provided no precedent or scholarly literature to support the existing tort of harassment and the proposed
tort was encompassed by other torts, such as IIMS. The evidence is clear that the RCMP acted in good faith.
NEVSUN RESOURCES LTD V ARAYA (2020) – RECOGNITION OF A NEW NOMINATE TORT

Ratio (dissent): “Three clear rules for when the courts will not recognize a new nominate tort have emerged: (1)
The courts will not recognize a new tort where there are adequate alternative remedies… (2) the courts will not
recognize a new tort that does not reflect and address a wrong visited by one person upon another… and (3) the
courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or
substantial… Put another way, for a proposed nominate tort to be recognized by the courts, at a minimum it must
reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration.”
The “necessity” rule “acknowledges at least three alternative remedies: another tort, an independent statutory
scheme, and judicial review. If any of these alternatives address the wrong targeted by the proposed nominate
tort, then the court will decline to recognize it… a difference merely of damages or the extent of harm will not
suffice to ground a new tort…”
The premise of the second rule is “well-established and is reflected in the courts’ resistance to creating strict or
absolute liability regimes…” It requires that the facts “cry out for a remedy”.
The final rule “reflects the courts’ respect for legislative supremacy and the courts’ mandate to ensure that the law
remains stable, predictable and accessible…”
BREACH OF CONFIDENCE
Elements
1) The information was confidential in nature
2) It was disclosed in circumstances creating an obligation of confidentiality and
3) Its unauthorized use was detrimental to the confider.
Provides a remedy for the wrongful use and/or disclosure of confidential information with (generally) a relation to
commercial interests.
Breach of confidence has been used on some cases of breach of private information (i.e., revenge porn). It’s
different than intrusion upon seclusion because the access to the information was authorized (vs. unauthorized
access).
 The distributor of the information had authorized access but betrayed the plaintiff.
DISCRIMINATION
Definition: Unfair or irrational form of choosing based on recognized differences.

 Not a viable tort because the legislature has chosen to implement a statutory remedy (Bhadauria).
SENECA COLLEGE V BHADAURIA (1979) – LEGISLATIVE SUPREMACY

Facts: P had strong qualifications to be employed by D but each time she applied she didn’t receive an interview. P
believed she was being treated unfairly due to her race. P could have filed a complaint under the Human Rights
Code but, she probably wouldn’t have received significant compensation so, she pled and attempted to establish a
tort of discrimination.
Issue: Do the facts give rise to a cause of action in discrimination?
Holding: There in no cause of action available.
Reasons: Once the legislature occupies a field, the common law must yield. P must seek a remedy through the
HRC. There is evidence that the tort of discrimination does exist, but it is not viable.
Note: Today, the HRC can award large damages. It acts as a quasi-common law court.
DEFENCES
DEFENCE OF CONSENT
Volenti non fit injuria: One you’ve consented to an act you cannot withdraw your consent if you don’t like the
consequences.
When a person consents to an act, they are generally viewed as consenting to the risks normally inherent in the
act. Consent may be given expressly or implicitly.
 The defence must be framed narrowly in terms of whether P consented to the specific act that gave rise
to the tort.
Analytical Framework
1) Examine/Isolate Each Act
Distinguish between the various acts, determine which one gave rise to the tort.
What were the nature and quality of each act? (e.g., a doctor examining a patient vs. giving a vaccine)
Nature: The type of act, the level of intrusion to the person
Quality: The level of risk
If the nature and quality of the act were consented to, the consent cannot be revoked because of the motive
or consequences (i.e., if you consent to getting a vaccine to go to school, you cannot sue the school for battery
because your motive was to attend class).
2) Capacity and Competence
Consent is valid so long as the person who consented had the capacity and competence to evaluate the nature and
quality of the act.
Capacity: The ability to appreciate the nature and quality of the act.
 Assumed among adults, the burden is on P to prove that they lacked capacity.
Competence: Determined by statutes which place restrictions on the capacity of certain persons to give legally
valid consent.
 i.e., persons under 16 years of age cannot consent to certain acts with adults.
3) Nature and Scope of the Consent
Nature: Implied or express consent.
Implied: Indicated by an action (i.e., walking into a doctor’s office)
Express: Verbal or written consent (i.e., signing a medical waver)
Scope: The boundaries/ambit of the consent
Determined by examining the context the consent was given in.
 i.e., When entering a doctor’s office there is an implied consent to examination, but getting a vaccination
is outside of the ambit of consent.
Vitiation: When consent is proven prima facie, certain factors will vitiate consent.
 Vitiation of consent is pleaded by the plaintiff and if successful, it negates the defence of consent.
 If consent is vitiated, the defendant will be held liable as if there had been no consent to begin with
MOORE V BERTUZZI (2012) – IMPLIED CONSENT; APPLICATION OF THE FRAMEWORK

Facts: D skated up behind P, grabbing his jersey he punched him in the back of the head and rode him down to the
ice. P’s head and neck made contact with he ice. P suffered serious injury.
Issue: Did D’s actions exceed the ambit of implied consent?
Reasons:
1) The grabbing of the jersey was consensual, it was a normal course of the game.
2) The punch to the head was no within the implied consent. It was a violent punch from behind with a
definite resolve to cause injury and collective premeditation.
a. The defence might have brought in expert witnesses to rebut that fighting is part of the game’s
customary norms.
3) Riding P down to the ice was outside the ambit of consent. The act was violent and done with definite
resolve to cause harm.
a. Capacity and competence were not at issue, however an argument could be made for capacity if
P was unconscious after he was punched in the head.
WRIGHT V MCLEAN (1956) – IMPLIED CONSENT

Facts: P and D were playing and throwing mud balls at each other. D picked up and threw a rock by accident,
injuring P as a result.
Ratio: “in sport where there is no malice, no anger and no mutual ill will, the combatants consent to take the
ordinary risks of the sport in which they are engaged.”
Holding: Judgement for D. Action dismissed.
Reasons: There was no ill will. No liability arises apart from culpable carelessness.
AGAR V CANNING (1965) – EXCEEDING CONSENT; CORE LAW GOVERNING CONSENT IN SPORTS
Facts: P accidentally hit D in the back of the neck during a hockey game. D retaliated and intentionally hit P in the
face with his stick. P suffered injuries and brought an action in battery.
Issue: What is the limit that must be placed on a player’s immunity from liability?
Ratio: “The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be
judged by standards suited to polite social intercourse…But injuries inflicted in circumstances which show a
definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game,
should not fall within the scope of the implied consent.”
Policy: “A person who engages in this sport must be assumed to accept the risk of accidental harm and to waive
any claim he would have apart from the game for trespass to his person in return for enjoying a corresponding
immunity with respect to other players… But a little reflection will establish that some limit must be placed on a
player's immunity from liability. Each case must be decided on its own facts…”
Holding: Judgement for P
Reasons: D intentionally hit P.
FRAUD/DECEIT – VITIATION
Definition: The defendant knowingly makes a false statement, makes a statement in total disregard as to its truth,
or knowingly creates a misleading impression by omitting relevant information.
Elements
1) The defendant was aware of, or responsible for, the plaintiff’s misapprehension.
2) The fraud must relate to the nature and quality of the act as opposed to a collateral matter.
Fraud regarding a collateral matter will not vitiate consent. It must have something to do with an inherent part
of the act (i.e., must have changed the nature or quality of the act).
 Consent must be the result of a free and informed will (Maboir)
Ex. P asked D if he was married, and he said no. They engaged in sexual acts and eventually got engaged. P then
found out D had lied and sued in battery and deceit.
P failed on her battery claim because the deceit had nothing to do with the nature or quality of the act. D
was only fraudulent regarding a collateral matter. Knowing that he was married doesn’t change the act, it changes
the motivation for the act.
R V MABOIR (2012) – CHANGES TO THE QUALITY OF THE ACT DUE TO FRAUD

Facts: Maboir was engaged in a sexual relationship with someone. He then found out he was HIV positive but
didn’t tell his partner and continued to have sex with the.
Ratio: Fraud as to the possible harmful consequences of an act will negate consent if the fraud physically harmed
the complainant or exposed them to a significant risk of serious bodily harm.
Holding: The fraud vitiated the consent.
Reasons: Maboir being HIV+ changed the quality (i.e., risk) to the point where it could no longer be considered the
same act. The consent was the result of fraud and not of their free and informed will.
DURESS/COERCION – VITIATION
The plaintiff felt like they had no other option but to comply. (i.e., false arrest)
LATTER V BRADDEL (1880) – NOT A GOOD PRECEDENT

Facts: P’s employer, D, sent for a doctor to inspect P to make sure she wasn’t pregnant. The doctor told her she
had to undress for the examination, but she refused. P finally gave in and reluctantly complied while crying. Even
though she was not pregnant, she was discharged from the household. P sued for battery.
P argued that there was duress (economic implications and obedience, she thought she was obliged to comply).
She had no other choice.
The defence argued that there was no duress, because there was no threat of physical force.
Reasons: “The plaintiff had it entirely in her own power physically to comply or not to comply with her mistress’s
orders, and there was no evidence whatever to show that anything improper or illegal was threatened to be done
if she had not complied.” “There was… no evidence of any force or violence, nor any threat of force or violence,
nor of any illegal act done or threatened…”
Dissent: “A submission to what is done, obtained through a belief that she is bound to obey her master and
mistress; or a consent obtained through a fear of evil consequences to arise to herself, induced by her master’s or
mistress’s words or conduct, is not sufficient. In neither case would the consent be voluntarily given…”
Context: P was a woman servant and, at the time, would have been at the bottom of the hierarchy. Further, if she
was dismissed from her job, she would not have had any other job prospects. Today, the holding would follow
more closely the dissent.
PUBLIC POLICY – VITIATION
Elements for Imbalance of Powers (Norberg)

1) Inequality between the parties
2) Exploitation of the vulnerable party
Consensual Fights: Consent is vitiated if the defendant both intends and causes serious hurt or non-trivial bodily
harm. (R v Paice (2005))
Individuals cannot consent to harm being imposed upon them except for a “generally approved social
purpose”. (R v Welsh (2005))
NORBERG V WYNRIB (1992) – POWER IMBALANCE BASED ON RELATIONSHIP

Facts: P became addicted to prescription drugs. D, a doctor, offered to supply her with drugs in exchange for sexual
services. P sued for battery, negligence and breach of fiduciary duty (quasi-tort).
Ratio: “principles of public policy will negate the legal effectiveness of consent in the context of sexual assault if it
can be shown that there was such a disparity in the relative positions of the parties that the weaker party was not
in a position to choose freely.”
Policy: “In certain circumstances, consent will be considered to be legally ineffective if it can be shown that there
was such a disparity in the relative position of the parties that the weaker party was not in a position to choose
freely.”
Holding: D is liable in battery.
Reasons: There was consent (addiction does not create volition) but there are public policy reasons to negate her
consent. Therefore, consent is vitiated.
LANE V HOLLOWAY (1968) – POWER IMBALANCE BASED ON STRENGTH

Facts: P and D engaged in a fight where P was injured. D was much younger and stronger than P.
Reasons: Consent was vitiated because the elderly P was clearly no match for the young D.
R V JOBIDON (1991) – CONSENT TO FIGHTS
Facts: The accused fought with the victim and hit him while he was unconscious. The victim died from the injuries.
Ratio: “In a consensual fight between adults, the combatant’s consent is vitiated if they intentionally “apply force
causing serious hurt or non-trivial bodily harm”
Policy: “It is not in the public interest that adults should willingly cause harm to one another without a good
reason.”
SELF-DEFENCE
Self-defence is a complete defence.

Before analyzing the elements, separate the acts of both parties.
 An individual’s right to invoke the defence ends once the danger has passed.
Elements
1) An honest and reasonable belief that the defendant was about to be struck
Honest: What was the actual state of mind of D? (subjective test)
Reasonable: What should have been the state of mind of D? (objective test)
Imminence: Required that the defendant believed the harm was to happen immediately.
2) The amount of force used to protect themselves was reasonable in all of the circumstances.
Proportionality: Rough proportionality between the peril being faced and the reaction of the defendant.
Proportionality need not be exact (Wacket)
While other means available are not part of the definition of the defence, if there was a more reasonable
means to use, the defence will be weakened. Similarly, if D is responsible for the need to defend themselves, the
defence will also be weakened (i.e., the cleaner the hands of the defendant, the better the defence).
Criminal Code (circumstances to consider)
34(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the
relevant circumstances of the person, the other parties and the act, including, but not limited to, the following
factors:
(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to
respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any
prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
WACKET V CALDER (1965) – PROPORTIONALITY; OTHER MEANS AVAILABLE
Facts: P invited D to fight. D left the fight, but P came back after him and D hit him one more time. P suffered
injuries and sued in battery. The trial judge held in favour of P, finding that the use of force was excessive. D
appealed.
Issue: Were the two blows by D more than reasonably necessary under the circumstances?
Ratio: “It has long been held that an attacked person defending himself and confronted with a provoking situation
is not held down to measure with exactitude or nicety the wright or power of his blows.”
Policy: “It is the policy of the law to discourage violence.”
Reasons: “The first blow was insufficient to stop the respondent’s attack on the appellant… the second more
forceful blow was well justified to put an end to the episode.”
Dissent: There were other means available to D. He could have walked away and not engaged in a fight to begin
with.
R V FORCILLO (2016) (YATIM) – SEPARATING THE ACTS; IMPORTANCE OF CONTEXT

Facts: Yatim was on drugs and brandishing a knife on a streetcar. The driver and the passengers all got off. Forcillo,
the officer on scene, fired three shots and then another six when Yatim was on the ground. Yatim died. D argued
that he was privileged by self-defence and his legal authority.
Holding: D was convicted of attempted murder but acquitted of first-degree murder.
Reasons: The use of force prior to Yatim being on the ground was reasonable. But after he was down, there were
other lawful means available to respond. The circumstances lacked imminence when he was hit the second time.
Note: It could also be argued that there lacked imminence for the first round because Yatim was at a distance from
anyone and only had a knife, not a gun (the nature and quality of the threat makes it difficult to establish a
reasonable belief that they were about to be struck). Proportionality could also have been argued.
R V KHILL (2020) – APPLYING CONTEXT TO SELF-DEFENCE

Facts: Khill, a former military officer, woke up in the middle of the night to someone outside messing around with
his car. He grabbed a gun and snuck out of his house towards the car. When the intruder turned towards him, Khill
shot and killed the intruder. The jury acquitted Khill at trial. The Crown appealed.
Holding: Appeal allowed.
Reasons: The jury was inadequately addressed on the factors. There was no honest or reasonable belief that he
was about to be struck because of the distance between them. Furthermore, it was no reasonable under the
circumstances because there were other alternatives available.
Note: The intruder was far away, unarmed, and Khill shot him in the side. Further, this happened outside. Khill had
to leave his home to confront the intruder. He could have called the police instead. He also went to grab his gun.
He introduced violence to the situation.
DEFENCE OF THIRD PARTIES

Definition: A reasonable apprehension that another person was experiencing physical violence or threat of
violence.
 An adaption of self-defence; uses the same analytical factors.
 Violence/threat of violence does not need to be real, only a reasonable apprehension. (objective test)
The defence is not limited to protecting a family member, but more leeway is given when there is a close personal
relationship. The defence can be raised by anyone who appears on the scene (R v Duffy).
GAMBRIELL V CAPARELLI (1974) – HONEST BELIEF OF IMMENENCE

Facts: D’s son left his car in the way of P. This started an argument which led to P hitting and strangling D’s son. D
then hit P with a garden tool to make him stop. P suffered injuries and brought a suit in battery.
Ratio: “where a person in intervening to rescue another holds an honest (though mistaken) belief that the other
person is in imminent danger of injury, he is justified in using force, provided that such force is reasonable; and the
necessity for intervention and the reasonableness of the force employed are questions to be decided by the trier
of fact”.
Reasons: The fact that it was her son made it easier to make out the defence. She used options to short of violence
and there was an honest belief that her son needed immediate intervention. AS soon as the danger had passed,
she stopped. She had nothing personally to do with the situation; she did not provoke the fight. Overall, she was
within the ambit of privileged force.
DISCIPLINE DEFENCE
S 43 of the Criminal Code

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of
correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is
reasonable under the circumstances.
Limited Ambit: Only minor corrective force of transitory and trifling nature is allowed (Canadian Foundation for
Children, Youth and the Law v Canada (2004))
 Teachers are no longer allowed to use force as a form of correction at common law.
 The motive must be corrective, reasonable force must be used and the child must be capable of
understanding why the force is being used. The defence doesn’t apply to those under the age of 12.
Exception: Ship captains, pilots and others alike can use force, or invite an agent to use force, to maintain order
and discipline while at sea/in the air.
DEFENCE OF REAL PROPERTY
Elements
1) Must be an owner/lawful occupier or agent thereof.
2) Must have exhausted all other options
Re-enforced by statute: Petty Trespass Act
Before violence is used, the owner is obligated to use every option short of physical force (i.e., ask them to
leave, call the police, bring a claim under the Petty Trespass Act, quasi-criminal law).
3) Must have used a reasonable degree of force.
Technical Trespasser: Often have a legitimate reason to be there but are not causing more harm than a technical
breach of the right.
 A landowner/lawful occupier cannot use violence against this type of trespasser.
Injurious Trespasser: Actively engages in conduct likely to cause harm to the property or is motivated by an illicit
purpose.
A landowner must tolerate a persons’ trespass if it would be dangerous for them to leave.
Judges a reluctant to privilege actions of people hurting others to protect property because the law values human
integrity more than property preservation.
MACDONALD V HEES (1974) – REASONABLE FORCE; EXHAUSTED OTHER OPTIONS

Facts: P entered D’s hotel room uninvited. P and D met that day and P wanted to introduce D to someone. P
knocked and thought that D said to come in. D forcibly ejected P from the room. P sued.
Ratio: “It is clear, however, that a trespasser cannot be forcibly repelled or ejected until he has been requested to
leave the premises and a reasonable opportunity of doing so peaceably has ben afforded him”
Reasoning: Although P technically did trespass, D didn’t request him to leave, he just threw him out with excessive
force. P also didn’t use any force to enter (the door was unlocked) and he honestly thought he was invited in.
DEFENCE AND RECAPTURE OF CHATTELS
Elements
1) Need a legal right to immediate possession of the chattel
2) Must immediately effect the repossession and give the plaintiff the opportunity to give it back.
Animals are a special kind of property; we have a special bond with them. The privilege would likely be generous in
this case.
NEGLIGENCE
Definition: Accidental acts that cause a ham. Requires the defendant to have had a legal duty. A fault-based tort.
ANALYTICAL FRAMEWORK
1) Duty of Care
Foundation of Liability in Negligence: Was the defendant under a legal obligation to exercise care with respect to
the plaintiff interests? If so, what was the nature and scope of this obligation?
Physical acts that lead to physical harm usually give rise to a legal duty of care.
The plaintiff has a right to reasonable care, the defendant has an obligation to take reasonable care. Legal
Rights and obligations are imposed on the parties irrespective of their knowledge/previous relationship.
2) Negligence (i.e., carelessness)
Standard of Care: Measures the performance against the community expectations of an average/reasonable
performance (objective test).
 The plaintiff must prove that the conduct fell below the standard of care.
 Some professionals who have special training or qualifications will be expected to meet the standards of
their professional colleagues.
Fault: The defendant’s negligence must have caused the plaintiff’s loss (causation).
In technically difficult cases, the plaintiff will consult experts to determine the standard of care and causation.
3) Causation in Fact
Remoteness of Damages: Was the relationship between the breach and the injury too tenuous, or remote, to
warrant recovery?
“But For” Test: But for the actions of the defendant, the harm would not have occurred.
Liability is generally limited to those losses that were foreseeable consequences of the defendant’s negligent
act (vs. intentional torts where the defendant is liable for all the consequences, whether foreseeable or not).
4) Damages
Negligence is not actionable per se, the plaintiff must have experienced a loss.
DEFENCES TO NEGLIGENCE
Complete Defences
1) The defendant didn’t owe a duty of care
2) The defendant didn’t fall below the standard of care
3) The defendant didn’t cause the loss
4) Voluntary Assumption of Risk: The plaintiff consented, there was a liability contract (volenti non fit injuria)
5) Illegality
6) Inevitable accident
Partial Defences
7) Remoteness Argument: The defendant didn’t cause all of the losses claimed. Not all the consequences
were foreseeable.
8) Contributory Negligence: The plaintiff contributed to their own losses.
HISTORICAL APPROACH TO DUTY OF CARE
Legal responsibility did not flow inexorably from moral responsibility. The courts respected precedent and the
absence of precedence.
Political View: Courts had a limited role in imposing liability outside the confines of common law precedents.
Legal Obligations: Acts were more culpable than omissions (misfeasance vs nonfeasance)
Value of Interests: Physical injuries were broadly compensable, but emotional harms and pure economic losses
were not.
LANGRIDGE V LEVY (1837) – ESTABLISHED FRAUD AS A NEW DOC THEORY

Facts: P’s father bought a gun for his son that was warranted to have been made by Nock. D knew it wasn’t a safe
and well-made gun. The gun exploded and mutilated P’s hand. P brought a suit in negligence.
Issue: There was no privity of contract, but did D still owe a duty of care?
Ratio: If there was fraud that resulted in a loss, then the court will impose a duty of care.
Fraud: D intended to deceive/materially mislead P and could foresee a risk. P relied on D’s assurance and it was a
detrimental reliance. D must have known of the risk and foreseen it.
Holding: Judgment for P.
Reasons: P cannot sue in contract because of privity of contracts and there would be no compensation for the loss.
The theory of P is that there is a social contract, that the deliberate misrepresentation of the gun created a
foreseeable risk of harm.
Context: This was probably wrongly decided at the time. Levy was Jewish and therefore had a low social status
compared to P. Every contested fact was found against him (i.e., he argued he had a good faith belief it was a
Nock).
Note: There was no precedent for this finding. The court created a legal fiction to expand the duty of care bubble.
WINTERBOTTOM V WRIGHT (1842) – REFUSAL TO EXPAND THE SCOPE OF DOC

Facts: P was delivering mail in a coach when it malfunctioned and he was injured. P sued the sub-contractor in
negligence. P argued that he owed him a DOC according to Langridge. D argued that Langridge is restricted to cases
where there is fraud.
Issue: Is there a duty of care in the absence of fraud and privity of contract?
Reasons: There is no contract and no fraud. To decide that there was a DOC in this case is without precedent. P’s
argument is based entirely on foreseeability (i.e., that D should have known that people would be using the
carriages, so he had a responsibility to make them properly). But Langridge is not just based on foreseeability, the
main aspect of that duty is fraud.
LONGMEID V HOLLIDAY (1851) – INHERENTLY DANGEROUS THINGS (IDT); PRODUCTS LIABILITY

Facts: D sold a lamp to P’s husband. The lamp malfunctioned, seriously injuring P.
Issue: P had no privity of contract and there was no fraud involved.
Reasons: There is no existing DOC theory that applies to the facts.
Obiter: There is a DOC in inherent or immediately dangerous things (ex., TNT or poison are inherently dangerous in
their use. Individuals use the very best of care in their use/production, you don’t need to add negligence to make it
dangerous). With objects that aren’t IDT, they need to be misassembled, misdesigned, or misused to become
dangerous.
Note: The court expanded the DOC to foreseeable users, not just those in privity of contract.
Context: Social and legal shift in the perception of risk. There are now products that we buy based on good faith
that they are free of defects. While some defects are visible, others are latent and there is no way to determine if
they are there until we use the product.
GEORGE V SKIVINGTON (1896) – MISAPPLICATION OF LANGRIDGE

Facts: P’s husband bought her shampoo. P used it and lost her hair and suffered burns. P argued a combination of
fraud principles in Langridge and the IDT theory.
Reasons: Appling Langridge, the court said that the case satisfied the precedent because there was foreseeability
that flowed from the knowledge.
Note: The justice misread/misused Langridge because it required both knowledge and foreseeability of harm.
There was no fraud in this case. However, he was right in policy (i.e., that there is a DOC to the purchaser and the
person for whom it was bought).
HEAVEN V PENDER (1883) – OCCUPIERS LIABILITY DOC THEORY

Facts: P was a painter who had a contract with a sub-contractor. P used the scaffolding supplied by D, the main
contractor, which was in disrepair and failed. P suffered serious injuries and brought an action against D. P argued
that D had invited P onto his premises and that said invitation implied a DOC.
Issue: There was no privity of contract.
Ratio: invitees are owned a DOC by those who invite them (occupier’s liability).
Obiter: “Whenever one person is by circumstance placed in such a position that if he did not use ordinary care and
skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or
property of another, a duty arises to use ordinary care and skill to avoid such danger.” (early attempt at the
neighbour principle).
Reasons: Given the nature of the invitee inviter relationship, the foreseeability of the risk and the physical harm
that resulted, there was a DOC.
Notes: Common law judges are not supposed to synthesize or extrapolate the law.
MACPHERSON V BUICK MOTORS CO (1916) – CORE LAW IN AMERICAN PRODUCT LIABILITY

Facts: P bought a car manufactured by D from a dealership. While driving, the wheel malfunctioned, and the car
crashed. P brough a claim in negligence through the IDT theory, relying on the confusion between things such as
TNT and cars.
Issue: Whether D owed a DOC to anyone who would foreseeably use the vehicle, not just those privileged by
contract.
Ratio: “If the nature of a thing such that it is reasonably certain to place life and limb in peril when negligently
made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If there is added
knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then,
irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully…”
i.e., if a product is reasonably expected to be dangerous if negligently made, a DOC exists to any foreseeable risks.
Inherent Danger Theory: Inherently dangerous nature and the product was negligently made.
Policy: Society needs a remedy. The structures of risk have changed so, so should the law. Duties must expand
beyond purchasers. Those who bear the most risk deserve a legal recourse.
Reasons: D knew of the Danger and that the car would be used by persons other than the purchaser. D is
responsible for the finished product and subjecting it io tests before putting it on the market. The more probable
the danger, the greater the need of caution. If danger was to be expected as reasonably certain, there is a duty to
be vigilant, no matter if the danger was inherent or imminent.
Dissent: This goes against precedent.
MULLEN V BARR (1929) – PRODUCT LIABILITY

Facts: D packaged ginger beer in dark bottles, consumers could not inspect the drink beforehand. P drank a ginger
beer that had a decomposed mouse in it and fell ill. P argued that D owed them SOC to ensure that the drink was
not tainted because D could have foreseen that if they didn’t take reasonable care, they could cause physical harm
to a consumer. P argued that un-inspectable food/drinks are inherently dangerous (used Skivington as principal
authority). D argued that Skivington misinterpreted Langridge.
Issue: Was there a DOC?
Reasons: The precedents are clear that there is no DOC unless there is fraud or IDT.
Dissent: Accepted the DOC and negligence theory put forth by P.
MODERN DUTY OF CARE
The Neighbor Principle applies to misfeasance only (not nonfeasance)

Pure Omission: An omission that does not worsen/affect the condition of another. Had nothing to do with
the harm, just omitted to confer a benefit onto them (e.g., walking past an injured stranger). DOC does not apply.
Misfeasance Omission: Risk-taking omission. The omission contributed to the persons condition (e.g.,
omitting to inspect a bottle and a mouse ends up on it). DOC applies.
Application of the Neighbor Principle is limited by the Proximity Concept (reasonable foreseeability and
closeness/directness)
Proximity: Vaguer and more ambiguous than physical proximity.
1) Physical Closeness (i.e., Shared space and time)
2) Relational Proximity: An inherently normative question. It boils down to what an appropriate level of
responsibility is.
Kamloops/Anns Test
In determining whether a duty of care should be recognized, two questions should be asked:
1) Is there a sufficiently close relationship between the parties so that, in the reasonable contemplation of
the defendant, carelessness on its part might cause damage to the plaintiff?
a. i.e., foreseeability + proximity (directness + closeness)
2) If so, are there any policy considerations which ought to negative or limit: (raised by the defence)
a. The scope of the duty
b. The class of persons to whom the duty is owed, or
c. The damages to which a breach of it may give rise
Framework of the test is plaintiff-friendly and inherently expansive.
DONOGHUE V STEVENSON (1932) – GENERAL PRINCIPLE OF DOC; PRODUCT LIABILITY
Facts: P poured the ginger beer, manufactured by D, on her ice cream. She was distracted and ate it without
noticing that there was a decomposed snail. She later fell ill and went to the hospital. P argued that there should
be a narrow expansion of the DOC doctrine, limited to consumer products with latent defects. D argued that there
was no precedent for the claim.
Issues:
1) Do manufacturers owe a DOC to foreseeable consumers (products liability)?
2) Is there a General conceptualization for a principle regarding DOC?
Ratios:
1) “A manufacturer of product, which he sells in such a form in which they left him with no reasonable
possibility of intermediate examination, and with the knowledge that the absence of reasonable care in
the preparation or putting up of the products will result in an injury to the consumer’s life or property,
owes a duty to the consumer to take that reasonable care.”
2) “The rule that you are to love your neighbor becomes in law, you must not injure your neighbor; and the
lawyer’s question, who is my neighbor? Receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who,
then, in law is my neighbor? The answer seems to be persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected when I am directing
my mind to the acts or omissions which are called in question.” (Neighbor Principle)
Note: Lord Atkins was a devout Christian. He applied the maxim: Do onto your neighbour as you would have done
onto you. He relied heavily on a moral argument but recognized that there were limits.
Policy:
1) It is a public health issue. We cannot allow manufacturer’s to be negligent towards their consumers and
there is currently no disincentive.
2) “in English law there must be, and is, some general conception of relations giving rise to a duty of care, of
which the particular cases found in the books are but instances.” “The liability for negligence… is no doubt
based upon a general public sentiment or moral wrongdoings for which an offender must pay.”
Note: Lord Atkins recognized that it wasn’t enough that there is a compelling policy objective and therefore, it
needed doctrinal precedents. He used the following:
1) George v Skivington: If there is a foreseeable risk of harm to a third party, then there is a DOC.
2) Heaven b Pender: The obiter united individual DOC propositions.
Reasons: A legal DOC is owed because the bottle could not have been inspected. There is a tension between the
compelling policy (what ought to be the law) and the doctrinal foundations (what is the law).
Dissent (Lord Buckmaster): The precedents are against the decision. Imposing a general DOC to manufacturers
would open the floodgates of litigation.
1) George v Skivington was wrongly decided because it substituted negligence for fraud in relation to
Langridge v Levy
2) Heaven v Pender is also a weak precedent because what Atkins cites is obiter from Master of the Roles
which was later retracted.
3) Winterbottom v Wright: Manufacturers of any article are not liable to third parties injured by negligent
construction. The case refused to expand the DOC. (should have been used)
4) Mullen v Barr: Only distinguishable because it was a mouse not a snail. (should have been used)
Note: Buckmaster was a judicial conservative. He argued that the theories Lord Atkins relied on have extreme
defects. It was a legal fiction. This was a difficult case because Mullen had similar facts and had just been litigated.
While the majority was correct in policy, the dissent correctly applied the law.
Context After the Case: Misconception that lord Atkins’ speech revolutionized the common law. There was no
judicial consensus or scholarly authority for nearly 40 years following the Donoghue v Stevenson case (WWII and
Great Depression) and when litigation resume in full force in the Commonwealth, the courts were also reluctant to
extend Lord Atkin’s test for some time.
Precedential impediments to the ratio’s application: 1) The great depression (environment not conducive to
innovative litigation); 2) WW2 (lawyers joined the war efforts)
HEDLEY BYRNE & CO V HELLER & PARTNERS LTD. (1964) – NEGLIGENT ADVICE
Facts: P lent advertising services to a third party based on D, the third party’s bank, assurance that they were credit
worthy. P gave their services on credit and never got paid. P argued that they suffered a loss due tot heir
detrimental reliance on D’s advice. P claimed that D should have foreseen that if they didn’t take reasonable care,
a proximate party would suffer a detrimental reliance.
Holding: The neighbour principle applies. Duty of care can be imposed for negligent advice.
Reasons: There was foreseeability of harm, proximity and detrimental reliance.
Note: Novel case because they claimed that mere words and not physical action, caused their loss and their loss as
purely economic (not a derivative economic or physical loss).
HOME OFFICE V DORSET YACHT CO (1970) – STATE NEGLIGENCE

Facts: P’s boat was vandalized by boys who escaped from a juvenile detention center. P sued the state in charge of
the detention center arguing that they had a duty of care to reasonably control the center.
Issue: Can the state owe a duty of care?
Holding: Public authorities can be held liable in negligence with respect to their statutory functions and operations.
ANNS V MERTON LONDON BOROUGH COUNCIL (1977) – THE ANNS TEST

Facts: P purchased public housing from the state. When P moved in, they found significant foundational issues. The
state never notified them of the issues. They were at risk of losing a significant amount of money. P argued that
Dorset and Hedley provided precedent in applying the neighbour principle.
Ratio: “The question has to be approached in two stages. First one has to ask whether, as between the alleged
wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to
cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is
answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative,
or to reduce or limit the scop of the duty or the class of persons to whom it is owed or the damages to which a
breach of it may give rise.”
Notes: The Anns test sets out an approach for analyzing existing categories of negligence and for recognizing new
categories in novel situations. The test applies to any situation and does not require precedent. The second part
creates a reverse onus; the defendant has the opportunity to prove that it is not a good idea in matter of policy to
accept the duty or to limit the availability of damages.
It’s criticized as leading to capricious results, providing unworkable tests of liability, unduly expanding the scope of
liability and lacking any foundation in established principle.
The test was used to instigate a rapid expansion of DOC in Canada. English authorities found that the court went
too far. It was too rapid an expansion of liability, so they moved for a more incremental approach instead.

Introduction to Tort Law Principles

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Introduction to Tort Law Principles

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INTRODUCTION TO TORT LAW

HISTORY OF TORT LAW

FUNCTIONS OF TORT LAW

1) Malfeasance: An intentional act

BASES OF TORT LIABILITY

Plaintiff Side of the Equation

INTENT & VOLITION

MOTIVE & DURESS & PROVOCATION

MISKA V SIVEC (1959) – ELEMENTS OF PROVOCATION

MISTAKE & ACCIDENT

RANSON V KITNER (1889) – MISTAKE OF FACT DOES NOT REMOVE INTENT

HOLCOMBE V WHITAKER (1975) – WORDS ALONE CANNOT CONSTITUTE ASSAULT

POLICE V GREAVES (1964) – CONDITIONAL THREATS CONSTITUTE ASSAULT

Definition: Intention to cause a total restraint on liberty.

BIRD V JONES (1845) – THERE MUST BE A BOUNDARY TO WHERE P IS CONFINED

CAMPBELL V SS KRESEGE CO (1976) – A REASONABLE THREAT OF ARREST CAN AMOUNT TO A

FITZPATRICK V ORWIN (2012) – REQUIREMENTS FOR THE INITIATION OF PROCEEDINGS

INTENTIONAL INFLICTION OF MENTAL SUFFERING (IIMS)

WILKINSON V DOWNTON (1897) – IMPUTED INTENT

SAADATI V MOORHEAD (2017) – THRESHOLD FOR STANDALONE PSYCHOLOGICAL HARM

BOUCHER V WAL-MART CANADA CORP (2014) – APPLICATION OF THE IIMS TEST

MOTHERWELL V MOTHERWELL (1976) – ADAPTATION OF AN EXISTING TORT

NEW NOMINATE TORTS

Before considering pleading a new nominate tort, look for:

MERRIFIELD V CANADA (ATTORNEY GENERAL) (2019) – RECOGNITION OF A NEW NOMINATE TORT

NEVSUN RESOURCES LTD V ARAYA (2020) – RECOGNITION OF A NEW NOMINATE TORT

Definition: Unfair or irrational form of choosing based on recognized differences.

SENECA COLLEGE V BHADAURIA (1979) – LEGISLATIVE SUPREMACY

MOORE V BERTUZZI (2012) – IMPLIED CONSENT; APPLICATION OF THE FRAMEWORK

WRIGHT V MCLEAN (1956) – IMPLIED CONSENT

R V MABOIR (2012) – CHANGES TO THE QUALITY OF THE ACT DUE TO FRAUD

LATTER V BRADDEL (1880) – NOT A GOOD PRECEDENT

PUBLIC POLICY – VITIATION

Elements for Imbalance of Powers (Norberg)

NORBERG V WYNRIB (1992) – POWER IMBALANCE BASED ON RELATIONSHIP

LANE V HOLLOWAY (1968) – POWER IMBALANCE BASED ON STRENGTH

Self-defence is a complete defence.

(a) the nature of the force or threat;

R V FORCILLO (2016) (YATIM) – SEPARATING THE ACTS; IMPORTANCE OF CONTEXT

R V KHILL (2020) – APPLYING CONTEXT TO SELF-DEFENCE

DEFENCE OF THIRD PARTIES

GAMBRIELL V CAPARELLI (1974) – HONEST BELIEF OF IMMENENCE

S 43 of the Criminal Code

DEFENCE OF REAL PROPERTY

MACDONALD V HEES (1974) – REASONABLE FORCE; EXHAUSTED OTHER OPTIONS

DEFENCE AND RECAPTURE OF CHATTELS

HISTORICAL APPROACH TO DUTY OF CARE

LANGRIDGE V LEVY (1837) – ESTABLISHED FRAUD AS A NEW DOC THEORY

WINTERBOTTOM V WRIGHT (1842) – REFUSAL TO EXPAND THE SCOPE OF DOC

LONGMEID V HOLLIDAY (1851) – INHERENTLY DANGEROUS THINGS (IDT); PRODUCTS LIABILITY

GEORGE V SKIVINGTON (1896) – MISAPPLICATION OF LANGRIDGE

HEAVEN V PENDER (1883) – OCCUPIERS LIABILITY DOC THEORY

MACPHERSON V BUICK MOTORS CO (1916) – CORE LAW IN AMERICAN PRODUCT LIABILITY

MULLEN V BARR (1929) – PRODUCT LIABILITY

MODERN DUTY OF CARE

The Neighbor Principle applies to misfeasance only (not nonfeasance)

HOME OFFICE V DORSET YACHT CO (1970) – STATE NEGLIGENCE

ANNS V MERTON LONDON BOROUGH COUNCIL (1977) – THE ANNS TEST

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