Torts, Professor Asha James, Winter 2021, Ratio/Test List

Week #2 – Introduction to Tort Law

Contributory Negligence: will be found where the conduct of the victim was a
contributing factor in his/her own injury

Damages: describes the nature and extent of a loss or injury and the monetary
compensation awarded by the court as compensation for a loss or injury

Joint and Several Liability: where each tortfeasor, and all tortfeasors, are held
liable for all of the damages, and the default of any one of the tortfeasors must be
covered by the others

Negligence: failing to do something that a reasonable person would do or doing

something that the reasonable person would not do; conduct that falls below the
requisite standard of care

Thin Skull Rule: applies to impose liability for unforeseeable harm in

circumstances where the personal injury tort plaintiff suffered from an unusual
mental or physical vulnerability that predisposed him or her to unusually serious or
unexpected injury; “take your victims as you find them”

Tort: wrong/fault

Tortfeasor: a person who has committed a tort; wrongdoer

1
 Week #3 – Select Intentional Interferences (Torts)

Intentional Torts:
 Harm to people and reputation
o 1) Malicious Prosecution
o 2) False Imprisonment
 Physical or psychological (Chaytor Et Al v London, New York
and Paris Association of Fashion Ltd and Price)
 Objective analysis
 Similar to arbitrary detention under section 9 of the Charter
 There must be something like personal menace or force
accompanying an obstruction for it to amount to imprisonment
(Bird v Jones)
o 3) Defamation (libel, slander)
o 4) Intentional Infliction of Mental Suffering
 The actions of the defendant have to have been intended to
demean, harass, cause emotional distress, embarrassment, and
damage (Wilkinson v Downton)
 Requires proof of actual intention
 TEST: i) an act or statement, ii) calculated to produce harm,
and iii) actual harm
o 5) Battery
 i) Intentional application of force on the plaintiff’s person
(Bettel Et Al v Yim)
 ii) Force was unwarranted or unwelcome
 iii) Plaintiff suffered harm
 Plaintiff must demonstrate that it was foreseeable that a
reasonable person would sustain injuries as a result of an
incident (Mann v Canadian Tire Corp.)
 Plaintiff must prove direct contact to their body, at which
point the onus shifts to the defendant to prove consent or
that a reasonable person in the plaintiff’s position would
that thought the plaintiff was consenting; plaintiff does
not need to prove that she did not consent to sexual
battery (Non-Marine Underwriters, Lloyd’s of London v
Scalera)
o 6) Assault
 Threat of battery

2
  Intentionally causing another person to fear or apprehend
imminent contact of a harmful nature (Mainland Sawmills v
USW Local 1-3567)
 Physical contact does not need to occur  threat of harm is
sufficient; an attempted assault is still an assault (Bruce v Dyer)
 Fear of harm must be imminent (Warman v Grosvenor)
 Does not matter if the defendant did not have the actual ability
to cause harm as long as a reasonable person would have felt
threatened (Mainland Sawmills v USW Local 103567)
 Online posting/messages constitute assault if they cause an
individual to reasonable apprehend imminent harm (Warman v
Grosvenor)
o 7) Sexual Wrongdoing
 Constitutes a battery but may also include other torts such as
assault, intentional infliction of emotional distress, false
imprisonment and breach of trust

Goshen v Larin: elements of a negligence claim cannot be imported into

intentional torts

3
 Week #3 – Select Defences to Direct and Intentional Interferences (Torts)

 Consent:
o Must consider the nature of the consent (O’Brien v Cunard SS Co.)
o Must be genuine; can be vitiated by fraud or by a strong power
imbalance; cannot be influenced by drugs or alcohol (Norberg v
Wynrib)
o In battery actions, the burden is on the plaintiff to establish
unwelcome contact with the body; the onus then shifts to the
defendant to prove consent (Non-Marine Underwriters, Lloyd’s of
London v Scalera)
o Defence to the torts of assault and battery but within reasonable
grounds; cannot consent to death (Charland v Cloverdale Minor
Baseball Association and Wheeler)  consent in a sports context
o Medical context (Malette v Schulman):
 Doctrine of informed consent with an exception for emergency
situations:
 i) Time is of the essence
 ii) Patient must be unconscious or without capacity to
make a decision; no legally authorized person is available
to act on behalf of the patient
 iii) Under the circumstances, a reasonable person would
consent and on a balance of probabilities, the patient
would likely have consented
 In cases of an emergency “which could not be anticipated”
where a doctor acts “in order to save the life or preserve the
health of the patient”, they should not be “exposed to legal
liability” (Marshall v Curry)
o Defeats the tort (absolute defence); no damages available
 Self-Defence:
o Must be immediate, reasonable, and proportionate to the harm
inflicted (Cockcroft v Smith)
o Defeats the tort (absolute defence); no damages available
 Defence of Property:
o Citizen’s Arrest and Self-Defence Act; Criminal Code
 Section 35.(1): A person is not guilty of an offence if
 a) They either believe on reasonable grounds that they
are in peaceable possession of property or are acting
under the authority of, or lawfully assisting, a person who
4
 they believe on reasonable grounds is in peaceable
possession of property
 b) They believe on reasonable grounds that another
person
o i) Is about to enter, is entering or has entered the
property without being entitled by law to do so
o ii) Is about to take the property, is doing so or has
just done so, or
o iii) Is about to damage or destroy the property, or
make it inoperative, or is doing so
 c) The act that constitutes the offence is committed for
the purpose of
o i) Preventing the other person from entering the
property or removing that person from the
property, or
o ii) Preventing the other person from taking,
damaging, or destroying the property or from
making it inoperative, or retaking the property
from that person, and
 d) The act committed is reasonable in the circumstances
o No person is permitted to do something indirectly that is prohibited
directly (Bird v Holbrook)
 Legal Authority:
o Existence of legislative authority which entitles the defendant to
engage in conduct which otherwise would be considered to be tortious
and actionable (frequent in assault, battery, or false imprisonment
cases)
o Police officers, peace officers, etc.  police also have ancillary
powers (Everett v McCaskill)
o Where police seek to rely upon consent to enter the premises to effect
an arrest, they must rely on a valid consent (Everett v McCaskill):
 It must be given by someone with a privacy interest in the
premises
 The consent must be informed
o Shopkeeper’s Privilege (Mann v Canadian Tire Corp.):
 1) There must be reasonable and probable grounds to believe
that property is being stolen or has been stolen from the
shopkeeper’s place of business. A security alarm triggered

5
 when a person is in the process of leaving the store would be
sufficient to provide such grounds
 2) The sole purpose of the detention must be to investigate
whether any item is being stolen or has been stolen from the
store
 3) The detention must be reasonable and involves inviting the
suspect to participate in a search to resolve the issue. The
privilege does not bestow a power upon the store owner to
search the detainee without consent
 4) The period of detention should be as brief as possible and
reasonable attempts to determine whether an item of property is
being stolen or has been stolen should proceed expeditiously
 5) If the detained suspect refuses to co-operate, the store owner
is entitled to detain them using reasonable force whilst
summoning the police and until the police arrive
o Defeats the tort (absolute defence); no damages available
 Necessity:
o Public necessity: when the defendant interferes with the plaintiff’s
property interests to advance the greater interest of the community at
large;  complete defence
o Private necessity: where the defendant interferes with the plaintiff’s
property interests to protect the defendant’s own private interests
o A traveller who is lawfully using a public road has the right to go
upon private land at places where the public road is impassable
(Dwyer v Staunton)
o There are limits to the necessity defence for property (Vincent v Lake
Erie Transportation Co; Southwark London Borough Council v
Williams and Anderson)
o Defeats the tort (absolute defence); eliminates “nominal” damages but
not compensatory damages

6
 Week #3 – Negligence: Introduction and the Standard of Care

 Negligence Cases:
o Unreasonable risk:
 Bolton & Others v Stone: whether the risk of damage to a
person on the road was so small that a reasonable person in the
position of the appellants, considering the matter from the point
of view of safety, would have thought it right to refrain from
taking steps to prevent the danger
o The reasonable person:
 Vaughan v Menlove: objective person of ordinary prudence
standard (of the defendant)
 Blyth v Birmingham Waterworks Co.: elements outside of the
contemplation of the defedants may reduce or eliminate liability
 Wakelin v The London S.W.RY.Co.: plaintiff has the onus to
prove that the defendants were negligent and that their actions
caused the injury
o Exceptions to the reasonable person (lesser standards, ie. youth):
 Heisler v Moke:
 1) Whether the child, having regard to his age, his
intelligence, his general knowledge and his alertness is
capable of being found negligent at law in the
circumstances under investigation (subjective aspect)
 2) One must ask oneself what a reasonable child of that
particular age could reasonably be expected to do and to
foresee under those particular circumstances
 Fiala v Cechmanek:
 In order to be relived of tort liability when a defendant is
afflicted suddenly and without warning with a mental
illness, that defendant must show either of the following
on a balance of probabilities (mental capacity test):

7
 o 1) As a result of their mental illness, they had no
capacity to understand or appreciate the duty of
care owed at the relevant time, or
o 2) As a result of their mental illness, they were
unable to discharge their duty of care as they had
no meaningful control over their actions at the time
the relevant conduct fell below the objective
standard of care
o Exceptions to the reasonable person (enhanced standards):
 Challand v Bell (doctor):
 1) Surgeon undertakes that he possesses the skill,
knowledge and judgement of the average
 2) In judging that average, regard must be had to the
special group to which he belongs (different standard for
a rural doctor than an urban doctor)
 3) If the decision was the result of exercising that average
standard, there is no liability for an error in judgement
o Reibl v Hughes; Canterbury v Spence (informed consent/disclosure
test)
 Doctor must disclose:
 1) Risks inherent in a given procedure or treatment
 2) The consequences of leaving the ailment untreated
 3) Alternative means of treatment and their risks
 4) The cause of the injury suffered by the plaintiff-patient
 If defendant-physician claims a privilege, expert
testimony is needed to show the existence of:
o 1) An emergency which eliminate the need for
obtaining consent
o 2) The impact upon the patient of risk disclosure
where a full disclosure appears medically
unwarranted
o Brenner v Gregory (lawyer):
 In an action against the solicitor for negligence it is not enough
to say that he has made an error of judgement or shown
ignorance of some particular of the law, but he will be liable in
damages if his error or ignorance was such that an ordinarily
competent solicitor would not have made or shown it
 Inferring Negligence:
o Res Ipsa Loquitur: the thing speaks for itself
8
 o Byrne v Boadle  establishing Res Ipsa Loquitur
o Fontaine v Insurance Corporation of British Columbia  abolishing
Res Ipsa Loquitur (for the most part in Canada)
 May still be used where:
 1) When the thing that inflicted the damage was under
the sole management and control of the defendant, or of
someone for whom he is responsible or whom he has a
right of control
 2) The occurrence is such that it would not have
happened without negligence
 If the above two conditions are satisfied on a balance of
probabilities, the defendant must have been negligent;
then,
 3) There must be no evidence as to why or how the
occurrence took place; if there is, the appeal to Res Ipsa
Loquitur is inappropriate for the question of the
defendant’s negligence must be determined on that
evidence
 Negligence Test:
o 1) Is there a duty of care?
 Whether there is a recognized standard of care (ie. doctor)
 Standard of care of the reasonable person (objective standard)
 Novel claims (Anns/Cooper; application of the Anns/Cooper
test in Hill v Hamilton-Wentworth Regional Police Services
Board)
 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 that person? If so
o Was the harm that occurred the reasonably
foreseeable consequence of the defendant’s act?
 Factors arising from the relationship
between the plaintiff and the defendant
 Policy in the broad sense
 If proximity and foreseeability are
established  prima facie duty of care
arises
 “Proximity”: close and direct relationship

9
  Consider representations and consequent
reliance
 Mere foreseeability is not enough
 2) Are there any considerations which ought to negative
or limit a) the scope of the duty, and b) the class of
persons to whom it owed or c) the damages to which a
breach of it may give rise?
o Are there reasons, notwithstanding the proximity
between the parties established in the first part of
this test, that tort liability should not be recognized
here?
 Residual policy considerations outside of the
relationship  effect of recognizing the
duty on the legal system and other
considerations
o 2) Was there a breach of the standard of care?
 Two Questions:
 1) What is the standard of care?
o Modified objective standard (reasonable person in
the place of the defendant)
o Person of ordinary prudence (Vaughan v Menlove)
o Higher standard/lower standard?
 2) Was that standard breached?
o Fact-specific analysis
o Customs (of the area)  not determinative
o Statute
o Professional Standards
o 3) Did the breach cause the damages (harm)?
 Causation
 Factual:
o Address the actual harm that the plaintiff suffered
o Causation is established with a “but-for” test:
plaintiff needed to establish on a balance of
probabilities that the injuries would not have
occurred but for the defendant’s negligence  one
defendant (Kauffman v TTC)
 Athey v Leonati:
 The “but for” test does not require
that the defendant’s negligence be the
10
 only condition necessary to cause the
plaintiff’s injury. Defendants whose
acts were necessary parts of the causal
sequence will be fully liable to the
plaintiff
 The defendant is only liable for those
injuries caused by his negligent acts.
This does not mean that the defendant
cannot be liable for the subsequent
injuries suffered by the plaintiff that
flow from the defendant’s initial
negligent acts and the immediate
injuries sustained
 Snell v Farrell: causation need not be
determined by scientific precision
o Material contribution  multiple tortfeasors
(Clements v Clements; Cook v Lewis; Fairchild v
Funeral Services)
 Legal: remoteness (were the events foreseeable?)
o Was the harm reasonably foreseeable
(=remoteness analysis)?
o If YES  thin skull rule
 Counter-argument: the plaintiff’s
reaction was not that of a person or
ordinary fortitude (Mustapha v
Culligan)
 The defendant is liable for the full
extent of the injuries even if they are
more serious than expected due to the
pre-existing susceptibility of the
plaintiff (Athey v Leonati)  “take
the victim as you find them”
 Recognizes that the pre-existing
condition is inherent to the plaintiff’s
“original position”
o If NO  the defendant is not liable
o 4) Actual damages (monetary amount) suffered by the plaintiff
 Examine the losses; apportioning damages

11
  Used to rebut negligence (onus is on the defendant): defendant
may bring up defences (illegality  absolute defence,
voluntary assumption of risk  absolute defence, contributory
negligence  partial defence, only reduces damages)
 Crumbling skull: defendant is not required to over-indemnify
the plaintiff

Week #4 – Proof of Causation

 But for causation test: assessed on a balance of probabilities; “but for” the
actions of the defendant, the plaintiff would not have suffered the harm
(Kauffman v TTC; Athey v Leonati; Clements v Clements)

Snell v Farell: causation should not be applied too rigidly with scientific
precision

Clements v Clements; Cook v Lewis; Fairchild v Funeral Services: material

contribution standard for multiple tortfeasors; “but for” test is not available

Clements v Clements:
o 1) As a general rule, a plaintiff cannot succeed unless she shows as a
matter of fact that she would not have suffered the loss “but for” the
negligent act or acts of the defendant. A trial judge is to take a robust
and pragmatic approach to determining if a plaintiff has established
that the defendant’s negligence caused her loss. Scientific proof of
causation is not required
o 2) Exceptionally, a plaintiff may succeed by showing that the
defendant’s conduct materially contributed to risk of the plaintiff’s
injury, where a) the plaintiff has established that her loss would not
have occurred “but for” the negligence of two or more tortfeasors,
each possibly in fact responsible for the loss (joint and severally
liable); and b) the plaintiff, through no fault of her own, is unable to
show that any one of the possible tortfeasors in fact was the necessary
or “but for” cause of her injury, defeating a finding of causation on a
balance of probabilities against anyone
12
Ontario’s Limitations Act, 2002, SO 2002, c 24, Sched B:

Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in

respect of a claim after the second anniversary of the day on which the claim was
discovered. 2002, c. 24, Sched. B, s. 4.

Discovery

5 (1) A claim is discovered on the earlier of,

 a) the day on which the person with the claim first knew,
o i) that the injury, loss or damage had occurred,
o ii) that the injury, loss or damage was caused by or contributed to by
an act or omission,
o iii) that the act or omission was that of the person against whom the
claim is made, and
o iv) that, having regard to the nature of the injury, loss or damage, a
proceeding would be an appropriate means to seek to remedy it; and
 (b) the day on which a reasonable person with the abilities and in the
circumstances of the person with the claim first ought to have known of the
matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred
to in clause (1) (a) on the day the act or omission on which the claim is based took
place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).

13
 Week #4 – Duty Part I

Anns/Cooper Test for novel claims:

o 1) Is there a prima facie duty of care?
o Foreseeability + Proximity
o 2) Do policy considerations negate the prima facie duty? (Hill v Hamilton-
Wentworth; R v Imperial Tobacco Canada)

Donoghue (M’Alister) v Stevenson: you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour

R v Imperial Tobacco Canada: Proximity in regard to the public as a whole will

not establish proximity for a novel claim duty of care, but when made to certain
companies, that allows for a recognition of a legal obligation

Palsgraf v Long Island Railroad Co: no negligence without a duty of care, and no
duty of care without foreseeable risk

Hay (Or Bourhill) v Young: the defendant must be able to foresee that his or her
actions could cause harm to the plaintiff to be found liable; duty is not to the world
at large, but rather, there must be neglect of the use of care towards a person whom
the defendant owes the duty of observing care; the plaintiff must have been present
and there has to have been some close relationship between the plaintiff and the
person harmed

14
Dobson (Litigation Guardian of) v Dobson: a foetus is not owed a duty of care and
is not protected by any maternal duty of care

Horsely v Mclaren: there is no general duty owed to rescue a person in peril (but
exceptions do exist based on certain types of relationships)

Jordan House Ltd v Menow and Honsberger: if an establishment can foresee the
tortious loss, they owe a duty to prevent it from happening and must take
reasonable measures  duty of care in a relationship of economic benefit

Childs v Desormeaux: there is a lesser duty of care owed by social hosts at private
parties

Oke v Weide Transport Ltd and Carra: even if a defendant is under a legal duty to
take responsibility for negligent actions, a failure to act (nonfeasance) to prevent
future harm is not negligence if the type of harm that occurred was not foreseeable
 Courts today use the dissent from the case: When the defendant participates
in the creation of a hazard, has an obligation to do something about it

Zelenko v Gimbel Bros: if a person undertakes rescue, they come under a duty to
complete the rescue with reasonable care

15
 Week #5 – Duty Part II

Paxton v Ramji: application of Anns/Cooper test; doctor did not owe a duty of care
to the unborn and unforeseen child

Fullowka v Pinkerton’s of Canada Ltd: the standard of care for security personal is
the standard of care for the role. They are not expected to go beyond their
contractual duty and become rescuers. When it comes to the standard of care,
sometimes obtaining legal advice can suffice to meet this standard

16
 Week #5 – The Scope of Liability

Carpenter v Beck (Litigation Guardian Of): a defendant is not liable for every
conceivable consequence of his behaviour. Lines must be drawn

Wagon Mound (No. 1) Overseas Tankship (UK) Ltd v Morts Dock & Engineering
Co. Ltd: liability is based on the reasonable foreseeability of the outcome. It is the
foresight of a reasonable man which alone can determine responsibility; direct
consequence test from Polemis is bad law
o Whether the kind of damage the plaintiff suffered was reasonably
foreseeable by the defendant at the time of the breach
o No longer relevant

Hughes v Lord Advocate: as long as general foreseeability can be established, the

damage (harm) will not be found to be too remote; liable for all of the damages
reasonable in the circumstance, does not matter how extensive they are

Wagon Mound (No. 2) Overseas Tankship (UK) Ltd v The Miller SS Co. Pty. Ltd:
if a reasonable person can foresee and prevent the risk, then they are liable for
foreseeable damages

Mustapha v Culligan of Canada Ltd: there must be a real risk of damage (harm)
o Current state of the law
o Successful action in negligence requires that a plaintiff demonstrate:
o 1) That the defendant owed him a duty of care
o 2) That the defendant’s behaviour breached the standard of care
o 3) That the plaintiff sustained damage

17
 o 4) That the damage was caused, in face and in law, by the defendant’s
breach
o Defendant’s conduct must be negligent and in breach of the standard of care
set by law

Smith v Leech Brain & Co: the test is not whether these employers could
reasonably have foreseen that a burn would cause cancer and that he would die 
the question is whether these employers could reasonably foresee the type of injury
he suffered, namely, the burn; “take your victims as you find them” (thin skull
rule)

Saadati v Moorhead: lowered the standard for psychological damage; no longer

need medical or legal evidence to prove that psychological injuries rise to a formal
diagnosis

Thin-Skull Rule: assessed at remoteness stage (legal causation); pre-existing

condition is inherent to the plaintiff’s original position

Charter Section 7 Violation: ordinary fortitude standard

18
 Week #6 – Defences to the Negligence Action

o Contributory Negligence: partial defence, only lessens damages

o Used to be treated as an absolute defence (Butterfield v Forrester;
Davies v Mann), now treated as a way to mitigate damages
o Seatbelt Defence: duty of care on the part of the driver is to ensure that
passengers under 16 are wearing seatbelts; this duty is not negated by the
presence of parents (Galaske v O’Donnell)
o Voluntary Assumption of Risk: absolute defence (Niedermeyer v Charlton)
o Illegality: becomes a defence when the plaintiff tries to profit from their
illegal conduct (Hall v Hebert)
o British Columbia v Zastowny: People are not able to recover lost
income due to incarceration except in very limited circumstances (ie.
malicious prosecution or wrongful conviction)

Negligence Act:

Extent of liability, remedy over

1. Where damages have been caused or contributed to by the fault or neglect of

two or more persons, the court shall determine the degree in which each of such
persons is at fault or negligent, and, where two or more persons are found at fault
or negligent, they are jointly and severally liable to the person suffering loss or
damage for such fault or negligence, but as between themselves, in the absence of
any contract express or implied, each is liable to make contribution and indemnify
19
each other in the degree in which they are respectively found to be at fault or
negligent. R.S.O. 1990, c. N.1, s. 1.

Recovery as between tortfeasors

2. A tortfeasor may recover contribution or indemnity from any other tortfeasor

who is, or would if sued have been, liable in respect of the damage to any person
suffering damage as a result of a tort by settling with the person suffering such
damage, and thereafter commencing or continuing action against such other
tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court
that the amount of the settlement was reasonable, and in the event that the court
finds the amount of the settlement was excessive it may fix the amount at which
the claim should have been settled. R.S.O. 1990, c. N.1, s. 2.

Plaintiff guilty of contributory negligence

3. In any action for damages that is founded upon the fault or negligence of the
defendant if fault or negligence is found on the part of the plaintiff that contributed
to the damages, the court shall apportion the damages in proportion to the degree
of fault or negligence found against the parties respectively. R.S.O. 1990, c. N.1,
s. 3.

Where parties to be deemed equally at fault

4. If it is not practicable to determine the respective degree of fault or negligence

as between any parties to an action, such parties shall be deemed to be equally at
fault or negligent. R.S.O. 1990, c. N.1, s. 4.

Adding parties

5. Wherever it appears that a person not already a party to an action is or may be

wholly or partly responsible for the damages claimed, such person may be added
as a party defendant to the action upon such terms as are considered just or may be
made a third party to the action in the manner prescribed by the rules of court for
adding third parties. R.S.O. 1990, c. N.1, s. 5.

Jury to determine degrees of negligence of parties

6. In any action tried with a jury, the degree of fault or negligence of the respective
parties is a question of fact for the jury. R.S.O. 1990, c. N.1, s. 6.

20
When plaintiff may be liable for costs

7. Where the damages are occasioned by the fault or negligence of more than one
party, the court has power to direct that the plaintiff shall bear some portion of the
costs if the circumstances render this just. R.S.O. 1990, c. N.1, s. 7.

Week #6 – Invasion of Privacy

Jones v Tsige:
 The key features of the cause of action of intrusion upon seclusion are:
o 1) That the defendant's conduct must be intentional (which includes
recklessness);
o 2) That the defendant must have invaded, without lawful justification,
the plaintiff's private affairs or concerns;
o 3) That a reasonable person would regard the invasion as highly
offensive, causing distress, humiliation or anguish.
o Proof of harm to a recognized economic interest is not an element of
the cause of action
 Unless you can prove actual harm, the top end of your damages is
$20,000.00
o Given the intangible nature of the interest protected, damages for
intrusion upon seclusion will ordinarily be measured by a modest
conventional sum. The appropriate range is up to $20,000. Awards of
aggravated and punitive damages may be appropriate in exceptional
cases, but are NOT to be encouraged

21
 Week #7 – Tort Liability of Public Authorities

Crown Liability and Proceedings Act: provincial legislation; suing the government

Notice of claim for damages required

18 (1) No proceeding that includes a claim for damages may be brought against the
Crown unless, at least 60 days before the commencement of the proceeding, the
claimant serves on the Crown, in accordance with section 15, notice of the claim
containing sufficient particulars to identify the occasion out of which the claim
arose. 2019, c. 7, Sched. 17, s. 18 (1).

Taylor v Canada: the nature of any representation made by the regulator and the
nature of any reliance on those representations should be considered and assessed
as a whole in examining proximity (under duty of care analysis)

R v Imperial Tobacco Canada: proximity in regards to the public as a whole will

not establish proximity under the Anns/Cooper test, but when made to certain
companies, a legal obligation may be made out
 Core policy government decisions protected from suit are decisions as to the
course or principle of action that are based on public policy considerations,
such as economic, social and political factors, provided that they are neither
irrational nor in bad faith

22
Roncarelli v Duplessis: discretion is not unchecked. No administration/executive
has unlimited arbitrary power for any purpose. Exercising an unchallengeable right
(ie. to post bail) irrelevant to the legislation is beyond conferred discretion. Created
the tort of misfeasance in public office

Odhavji Estate v Woodhouse: whether or not the tort of misfeasance in public

office can apply to cases where no action was taken  YES as long as the failure
to discharge a statutory duty is deliberate and the test is fully satisfied
 Tort of Misfeasance in Public Office TEST: i) public officer must have
engaged in deliberate and unlawful conduct in his/her capacity as a public
officer and ii) the public officer must have been aware both that his or her
conduct was unlawful and that it was likely to harm the plaintiff
o Question is whether the alleged misconduct is deliberate and unlawful
 Tort of misfeasance in public office can arise in one of two ways:
o Category A: involves conduct that is specifically intended to injure a
person or class of persons
 The fact that the public officer has acted for the express purpose
of harming the plaintiff is sufficient to satisfy i) and ii) as the
public officer does not have the authority to exercise his/her
powers for an improper purpose
o Category B: involves a public officer who acts with knowledge both
that he or she has no power to do the act complained of and that the
act is likely to injure the plaintiff
 Plaintiff must prove i) and ii) independently of one another

Vancouver (City) v Ward: an investigative detention must be brief in duration and

cannot become a de facto arrest. An investigative detention turns into a de facto
arrest after the detention becomes unnecessary. Charter damages can be awarded
for a Charter breach but a plaintiff cannot “double dip” (a concurrent action in tort,
or other private law claim bars s. 24(1) damages if the result would be double
compensation). In some circumstances, the behaviour is so egregious that there
needs to be denunciation in the form of Charter damages
 TEST:
o 1) Establish that a Charter right has been breached
o 2) Show why damages are a just and appropriate remedy, having
regard to whether they would fulfill one or more of the related
functions of compensation, vindication of the right, and/or deterrence
of future breaches

23
 o 3) The state has the opportunity to demonstrate, if it can, that
countervailing factors defeat the functional considerations that support
a damage award and render damages inappropriate or unjust (ie. if the
claimant can bring a concurrent tort claim, good governance)
o 4) Assess the quantum of the damages

Week #7 – Tort Liability of Public Authorities Continued

Nelles v Ontario: tort of malicious prosecution

 Test:
 a) The proceedings must have been initiated by the defendant
o Can bring a malicious prosecution against private persons
o Catalyst for the action
 b) The proceedings must have terminated in favour of the plaintiff
o Stay of proceedings, charges withdrawn, or acquittal
o Participating in diversion before the charges are withdrawn is not a
finding in favour of the accused
o Peace bonds are not finding in favour of the accused
 c) The absence of reasonable and probable cause (legal question for the
judge)
o Will differ case-by-case
o Ie. domestic assault will be different than misappropriation of funds
o Low Threshold
o Must be logical
o Reasonable grounds: subjective and objective test
 Crown believes there is sufficient evidence to lead the charge
(subjective)

24
  A reasonably prudent and cautious person would find that the
evidence if valid, supports the inference of guilt
 There must be both actual belief on the part of the prosecutor
and that belief must be reasonable in the circumstances
 R v Storrey (criminal law)
 d) Malice, or a primary purpose other than that of carrying the law into
effect (factual question for the trier of fact)  hardest element to prove
o Tampering with evidence (ie. changing the witness’s testimony)
o “Tailoring” the evidence
o “Tunnel vision”
o Simple negligence is NOT enough to establish malice
o Crown counsel has a duty to lay all of the credible evidence before the
trier of fact (Stinchcombe; Boucher)  failure to disclose may rise to
the level of malice depending on the facts
 Must have ALL of the elements in order to be successful; onus is on the
plaintiff

Section 5(6) Ontario Proceedings Against the Crown Act: exempts the Crown from
any proceedings in respect of anything done or omitted to be done by a person
while discharging or purporting to discharge responsibilities of a judicial nature or
responsibilities that he/she has in connection with the execution of judicial process.
However, this absolute immunity does not extend to the AG and Crown Attorneys
in respect of malicious prosecution

Miazga v Kivello: modified the test for prosecutors

 1) Public prosecutors are not required to have a subjective belief that an
accused person is guilty, and
 2) A lack of reasonable and probable grounds does not create an inference
that a public prosecutor had malicious intent

25
 Week #8 - Tort Liability of Public Authorities Continued

Henry v British Columbia (AG): test for liability for wrongful non-disclosure; s.
24(1) of the Charter authorizes a court of competent jurisdiction to award damages
against the Crown for prosecutorial misconduct absent proof of malice
 TEST:
o At trial, a claimant would have to convince the trier of fact on a
balance of probabilities that:
 1) The prosecutor intentionally withheld information
 2) The prosecutor knew or ought reasonably to have known that
the information was material to the defence and that the failure
to disclose would likely impinge on his or her ability to make
full answer and defence (relevant to a matter at issue in the
case)
 3) Withholding the information violated his or her Charter
rights, and
 4) He or she suffered harm as a result
o Causation: regardless of the nature of the harm suffered, a claimant
would have to prove, on a balance of probabilities, that “but for” the
wrongful non-disclosure he or she would not have suffered that harm.
This guarantees that liability is restricted to cases where the
intentional failure to disclose was actually the cause of the harm to the
accused
26
  The “but for” causation test may, however, be modified in
situations involving multiple alleged wrongdoers. For example,
where the claimant alleges that a wrongful conviction was
caused in part by the failure of police to provide material
information to prosecutors, and in part by the Crown’s failure to
disclose, then a showing of “but for” causation will not be
necessary. In this scenario, the causation requirement will be
satisfied if the claimant can prove that the prosecutorial
misconduct materially contributed to the harm suffered
(Clements v. Clements)

Crown Liability and Proceedings Act:

Limitations on Crown liability

9 (1) The Crown is not liable for torts committed by,

(a) Crown agencies;

(b) Crown corporations;
(c) transfer payment recipients; or
(d) independent contractors providing services to the Crown for any purpose.

Same

(2) Nothing in this Act subjects the Crown to a proceeding in respect of,

(a) anything done in good faith in the enforcement of the criminal law or of the
penal provisions of an Act; or
(b) anything done or omitted to be done by a person while discharging or
purporting to discharge responsibilities of a judicial nature vested in the person or
responsibilities that the person has in connection with the execution of judicial
process.

Extinguishment of causes of action respecting certain governmental functions

Acts of a legislative nature

11 (1) No cause of action arises against the Crown or an officer, employee or agent
of the Crown in respect of any negligence or failure to take reasonable care while
exercising or intending to exercise powers or performing or intending to perform

27
duties or functions of a legislative nature, including the development or
introduction of a bill, the enactment of an Act or the making of a regulation.

Regulatory decisions

(2) No cause of action arises against the Crown or an officer, employee or agent of
the Crown in respect of a regulatory decision made in good faith, where,

(a) a person suffers any form of harm or loss as a result of an act or omission of a
person who is the subject of the regulatory decision; and
(b) the person who suffered the harm or loss claims that the harm or loss resulted
from any negligence or failure to take reasonable care in the making of the
regulatory decision.

Same, purported failure to make

(3) No cause of action arises against the Crown or an officer, employee or agent of
the Crown in respect of a purported failure to make a regulatory decision, where,

(a) a person suffers any form of harm or loss as a result of an act or omission of
another person; and
(b) the person who suffered the harm or loss claims that the harm or loss resulted
from any negligence in a purported failure to make a regulatory decision in respect
of that other person.

Policy decisions

(4) No cause of action arises against the Crown or an officer, employee or agent of
the Crown in respect of any negligence or failure to take reasonable care in the
making of a decision in good faith respecting a policy matter, or any negligence in
a purported failure to make a decision respecting a policy matter.

Same, policy matters

(5) For the purposes of subsection (4), a policy matter includes,

(a) the creation, design, establishment, redesign or modification of a program,

project or other initiative, including,

(i) the terms, scope or features of the program, project or other initiative,

28
(ii) the eligibility or exclusion of any person or entity or class of persons or
entities to participate in the program, project or other initiative, or the requirements
or limits of such participation, or

(iii) limits on the duration of the program, project or other initiative, including any
discretionary right to terminate or amend the operation of the program, project or
other initiative;

(b) the funding of a program, project or other initiative, including,

(i) providing or ceasing to provide such funding,

(ii) increasing or reducing the amount of funding provided,

(iii) including, not including, amending or removing any terms or conditions in

relation to such funding, or

(iv) reducing or cancelling any funding previously provided or committed in

support of the program, project or other initiative;

(c) the manner in which a program, project or other initiative is carried out,
including,

(i) the carrying out, on behalf of the Crown, of some or all of a program, project or
other initiative by another person or entity, including a Crown agency, Crown
corporation, transfer payment recipient or independent contractor,

(ii) the terms and conditions under which the person or entity will carry out such
activities,

(iii) the Crown’s degree of supervision or control over the person or entity in
relation to such activities, or

(iv) the existence or content of any policies, management procedures or oversight

mechanisms concerning the program, project or other initiative;

(d) the termination of a program, project or other initiative, including the amount
of notice or other relief to be provided to affected members of the public as a result
of the termination;
(e) the making of such regulatory decisions as may be prescribed; and
(f) any other policy matter that may be prescribed.
29
Definition, “regulatory decision”

(6) In this section,

“regulatory decision” means a decision respecting,

(a) whether a person, entity, place or thing has met a requirement under an Act,
(b) whether a person or entity has contravened any duty or other obligation set out
under an Act,
(c) whether a licence, permission, certificate or other authorization should be
issued under an Act,
(d) whether a condition or limitation in respect of a licence, permission, certificate
or other authorization should be imposed, amended or removed under an Act,
(e) whether an investigation, inspection or other assessment should be conducted
under an Act, or the manner in which an investigation, inspection or other
assessment under an Act is conducted,
(f) whether to carry out an enforcement action under an Act, or the manner in
which an enforcement action under an Act is carried out, or
(g) any other matter that may be prescribed.

Proceedings barred

(7) No proceeding may be brought or maintained against the Crown or an officer,

employee or agent of the Crown in respect of a matter referred to in subsection (1),
(2), (3) or (4).

Proceedings set aside

(8) A proceeding that may not be maintained under subsection (7) is deemed to
have been dismissed, without costs, on the day on which the cause of action is
extinguished under subsection (1), (2), (3) or (4).

Common law defences unaffected

(9) Nothing in this section shall be read as abrogating or limiting any defence or
immunity which the Crown or an officer, employee or agent of the Crown may
raise at common law.

No inference of policy matters as justiciable

30
(10) Nothing in this section shall be read as indicating that a matter that is a policy
matter for the purposes of subsection (4) is justiciable.

Proceedings re misfeasance, bad faith

17 (1) This section applies to proceedings brought against the Crown or an officer
or employee of the Crown that include a claim in respect of a tort of misfeasance in
public office or a tort based on bad faith respecting anything done in the exercise
or intended exercise of the officer or employee’s powers or the performance or
intended performance of the officer or employee’s duties or functions. 2020, c. 11,
Sched. 7, s. 1.

Leave to proceed required, automatic stay

(2) A proceeding to which this section applies that is brought on or after the day
section 1 of Schedule 7 to the Smarter and Stronger Justice Act, 2020 comes into
force may proceed only with leave of the court and, unless and until leave is
granted, is deemed to have been stayed in respect of all claims in that proceeding
from the time that it is brought. 2020, c. 11, Sched. 7, s. 1.

Documents on motion for leave

(3) On a motion for leave under subsection (2), the claimant shall, in accordance
with section 15 if applicable, serve on the defendant and file with the court,

(a) an affidavit, or such other document as may be prescribed, setting out a concise
statement of the material facts on which the claimant intends to rely; and
(b) an affidavit of documents, or such other document as may be prescribed,
disclosing, to the full extent of the claimant’s knowledge, information and belief,
all documents relevant to any matter in issue in the proceeding that are or have
been in the claimant’s possession, control or power. 2020, c. 11, Sched. 7, s. 1.

Response by defendant

(4) On a motion for leave under subsection (2), the defendant may serve on the
claimant and file an affidavit, or such other document as may be prescribed, setting
out a concise statement of the material facts on which the defendant intends to rely
for the defence, but is not required to do so. 2020, c. 11, Sched. 7, s. 1.

Limit on examinations

31
(5) No person may be examined or summoned for examination on the contents of
an affidavit or prescribed document referred to in subsection (3) or (4) or in
relation to the motion for leave, other than the maker of the affidavit or prescribed
document. 2020, c. 11, Sched. 7, s. 1.

No discovery of defendant

(6) The defendant shall not be subject to discovery or the inspection of documents,
or to examination for discovery, in relation to the motion for leave. 2020, c. 11,
Sched. 7, s. 1.

Requirements for leave

(7) The court shall not grant leave unless it is satisfied that,

(a) the proceeding is being brought in good faith; and

(b) there is a reasonable possibility that the claim described in subsection (1)
would be resolved in the claimant’s favour. 2020, c. 11, Sched. 7, s. 1.

Costs

(8) Each party to the motion for leave shall bear its own costs of the motion. 2020,
c. 11, Sched. 7, s. 1.

Effect of granting leave

(9) The granting of leave under subsection (2) lifts the stay of the proceeding.
2020, c. 11, Sched. 7, s. 1.

Effect of refusing leave

(10) If leave is not granted under subsection (2),

(a) the proceeding is rendered a nullity; or

(b) if the proceeding contains any claims other than the claim described in
subsection (1), the proceeding is rendered a nullity in respect of the claim
described in that subsection and the stay is lifted with respect to the remainder of
the proceeding. 2020, c. 11, Sched. 7, s. 1.

Waiver of leave requirement

32
(11) Despite subsections (2) and (10), the Crown may waive the application of
subsection (2) in relation to a proceeding by giving notice of the waiver in writing
to the claimant. 2020, c. 11, Sched. 7, s. 1.

Same

(12) The Crown may exercise its discretion under subsection (11) at any time
before the hearing of a motion for leave under subsection (2), including before an
intended proceeding is brought. 2020, c. 11, Sched. 7, s. 1.

Same

(13) If the Crown exercises its discretion under subsection (11) after a proceeding
has been brought,

(a) the stay of the proceeding is lifted once notice of the waiver is given to the
claimant; and
(b) the Crown shall give notice of the waiver in writing to the court. 2020, c. 11,
Sched. 7, s. 1.

Non-application to Crown claimant

(14) This section does not apply if the claimant is the Crown. 2020, c. 11, Sched. 7,
s. 1.

Transition

(15) This section, as it read immediately before the day section 1 of Schedule 7 to
the Smarter and Stronger Justice Act, 2020 came into force, continues to apply
with respect to a proceeding for which a motion for leave was made under this
section before that day, except that the Crown may, at any time before the hearing
of the motion, waive the requirement for leave by giving notice of the waiver in
writing to the claimant and to the court. 2020, c. 11, Sched. 7, s. 1.

Same

(16) For greater certainty, if a proceeding for which leave was required under this
section was brought without leave before the day section 1 of Schedule 7 to
the Smarter and Stronger Justice Act, 2020 came into force, the proceeding was a
nullity in respect of the claim described in subsection (1) from the time the
proceeding was brought. 2020, c. 11, Sched. 7, s. 1.

33
Same

(17) For the purposes of any applicable limitation period,

(a) a proceeding to which subsection (15) applies shall be considered to have been
commenced in respect of the claim described in subsection (1) when the motion for
leave was made, despite any waiver of the leave requirement by the Crown; and
(b) a proceeding to which subsection (16) applies shall, despite being a nullity in
respect of the claim described in subsection (1), be considered to have been
commenced when the proceeding was brought. 2020, c. 11, Sched. 7, s. 1.
Section Amendments with date in force (d/m/y)

Notice of claim for damages required

18 (1) No proceeding that includes a claim for damages may be brought against the
Crown unless, at least 60 days before the commencement of the proceeding, the
claimant serves on the Crown, in accordance with section 15, notice of the claim
containing sufficient particulars to identify the occasion out of which the claim
arose. 2019, c. 7, Sched. 17, s. 18 (1).

Additional particulars

(2) The Attorney General may require such additional particulars as in his or her
opinion are necessary to enable the claim to be investigated. 2019, c. 7, Sched. 17,
s. 18 (2).

Extension of applicable limitation period

(3) If a notice of claim is served under subsection (1) before the expiry of a
limitation period applicable with respect to the claim but the 60-day period referred
to in that subsection ends after the expiry of the limitation period, the limitation
period is extended to the last instant of the seventh day following the end of the 60-
day period. 2019, c. 7, Sched. 17, s. 18 (3).

Exception, breach of duty respecting property

(4) Despite subsection (1), no proceeding that includes a claim for damages may be
brought against the Crown under clause 8 (1) (b) unless the notice required by
subsection (1) is served on the Crown in accordance with section 15 no later than

34
10 days after the occurrence of the event out of which the claim arises. 2019, c. 7,
Sched. 17, s. 18 (4).

Non-application

(5) This section does not apply with respect to a counterclaim, crossclaim or claim
by way of set-off. 2019, c. 7, Sched. 17, s. 18 (5).

Failure to give notice

(6) For greater certainty, failure to give notice of a claim as required by this section
renders a proceeding brought without such notice a nullity in respect of the claim,
from the time the proceeding is brought. 2020, c. 11, Sched. 7, s. 2.

Same

(7) Subsection (6) applies with respect to a proceeding brought before, on or after
the day section 2 of Schedule 7 to the Smarter and Stronger Justice Act,
2020 comes into force. 2020, c. 11, Sched. 7, s. 2.

Week #9 – Business Torts

*Businesses must show actual damages

Tort of Deceit

Derry v Peek: tort of deceit

 TEST:
o 1) To sustain an action of deceit, there must be proof of fraud; nothing
short of fraud will suffice
o 2) Fraud is proved when it is shown that a false representation has
been made:
 a) Knowingly
 b) Without belief in its truth OR recklessly/careless claim
whether it be true or false (can defend by claiming honest
belief)
o 3) If fraud is established, then motive of the guilty party is immaterial
 MODIFIED TEST:
o i) There must have been a false representation or statement

35
 o ii) It must have been knowingly false
o iii) It must have been made with the intention to deceive the plaintiff
o iv) It must have materially induced the plaintiff to act (fact specific)
o v) It must have resulted in damage (harm)
o May be defeated by an honest belief in the statement  reasonable
person standard

Young v McMillan Et Al: plaintiff must show that “but for” the representation
(representation was material), the plaintiff would not have acted

Inducing a Breach of Contract

Lumley v Gye:
 TEST:
o 1) Defendant knew of the contract’s existence
o 2) Defendant knew that their conduct could lead to its breach
o 3) Defendant must desire/intend to cause a breach of contract, as
either an end or a means to an end (SAR Petroleum)
 Intentional tort  negligence alone will not suffice

Defence of Justification to Inducing a Breach of Contract

Brimelow v Casson: fact specific when the defence applies; is there a moral or
social obligation for inducing the breach of contract?

Tort of Intimidation

Rookes v Barnard:
 Tort can take two forms:
o 1) Intimidation of the plaintiff him/herself
o 2) Intimidation of other persons to the injury of the plaintiff
 At least two cases in which such intimidation may constitute a
cause of action:
 i) When the intimidation consists in a threat to do or
procure an illegal act

36
  ii) When the intimidation is the act, not of a single
person, but of two or more persons acting together in
pursuance of a common intention
 TEST:
o 1) There must be a threat by one person to use unlawful means so as
to compel another to obey
o 2) The person so threatened must comply with the demand rather than
risk the threat being carried out
o The threatened act must be unlawful

Tort of Conspiracy

Canada Cement Lafarge Ltd v British Columbia Lightweight Aggregate Ltd:

 TEST:
o 1) Whether the means used by the defendants are lawful or unlawful,
the predominant purpose of the defendant’s conduct is to cause injury
to the plaintiff
o OR
o 2) Where the conduct of the defendants is unlawful, the conduct is
directed towards the plaintiff (alone or together with others) and the
defendants should know in the circumstances that injury to the
plaintiff is likely to and does result
 Intent to cause injury is not necessary but the defendants ought
to have known that their actions would cause injury (test is
subjective)  predominant purpose was to cause injury to the
plaintiff
o In both situations, the plaintiff must have suffered actual damage

Tort of Unlawful Means

A.I. Enterprises Ltd v Bram Enterprises Ltd:

 The tort will be available in three-party situations in which the defendant
commits an unlawful act against a third party and the act intentionally causes
economic harm to the plaintiff
 Unlawful conduct: if it would be actionable by the third party or would have
been actionable if the third party had suffered loss as a result
 Tort is not only available if no other cause of action is available

Tort of Wrongful Termination

37
Wakesdale v Swegon North America Inc: if one provision of the employment
contract breaches the Employment Standards Act, then the whole contract is void

Week #9 – Defamation

Hill v Church of Scientology of Toronto: balancing freedom of expression and

reputation

Grant v TorStar: freedom of expression is not absolute

Libel and Slander Act:

 Libel: written defamation
 Slander: spoken defamation
o Meldrum v Australian Broadcasting Co Ltd

Notice of action

38
5 (1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff
has, within six weeks after the alleged libel has come to the plaintiff’s knowledge,
given to the defendant notice in writing, specifying the matter complained of,
which shall be served in the same manner as a statement of claim or by delivering
it to a grown-up person at the chief office of the defendant. R.S.O. 1990, c. L.12,
s. 5 (1).

Where plaintiff to recover only actual damages

(2) The plaintiff shall recover only actual damages if it appears on the trial,

(a) that the alleged libel was published in good faith;

(b) that the alleged libel did not involve a criminal charge;
(c) that the publication of the alleged libel took place in mistake or
misapprehension of the facts; and
(d) that a full and fair retraction of any matter therein alleged to be erroneous,
(i) was published either in the next regular issue of the newspaper or in
any regular issue thereof published within three days after the receipt
of the notice mentioned in subsection (1) and was so published in as
conspicuous a place and type as was the alleged libel, or
(ii) was broadcast either within a reasonable time or within three days
after the receipt of the notice mentioned in subsection (1) and was so
broadcast as conspicuously as was the alleged libel. R.S.O. 1990,
c. L.12, s. 5 (2).

Limitation of action

6 An action for a libel in a newspaper or in a broadcast shall be commenced within

three months after the libel has come to the knowledge of the person defamed, but,
where such an action is brought within that period, the action may include a claim
for any other libel against the plaintiff by the defendant in the same newspaper or
the same broadcasting station within a period of one year before the
commencement of the action. R.S.O. 1990, c. L.12, s. 6.

Application of ss. 5 (1), 6

7 Subsection 5 (1) and section 6 apply only to newspapers printed and published
in Ontario and to broadcasts from a station in Ontario. R.S.O. 1990, c. L.12, s. 7.

Tort of Defamation

39
  TEST: onus is on the plaintiff
o 1) The material was defamatory
 Can rebut this by proving an alternate meaning that is not
defamatory
 Where it is clear that a reasonable person can and probably will
interpret the words as defamatory and that the estimation of the
plaintiff in the mind of the reasonable person (Murphy v
Lamarsh Et Al)
o 2) The material referred to the plaintiff
 If not directly identified, the plaintiff must prove that a
reasonable person would be able to identify the plaintiff
o 3) That the material was published
 McNichol v Grandy:
 1) Must be broadcast to a third party
 2) Defendant must have intended that it be broadcasted to
the third party
 Objective test
 Vizetelley v Mudie’s Select Library Ltd:
 Where a person who is not the printer or the first work or
main publisher of a work which contains libel, but only
has taken a subordinate part in disseminating it, in
considering whether there has been a publication of it by
him, the particular circumstances under which he
dissented the work must be considered. If he did it in the
ordinary way of his business, the nature of the business
and the way in which it was conducted must be looked at,
and if he succeeds in showing:
o 1) That he was innocent of any knowledge of the
libel contained in the work disseminated by him
o 2) That there was nothing in the work or the
circumstances under which it came to him or was
disseminated by him which ought to have led him
to suppose that it contained libel, and
o 3) That when the work was disseminated by him, it
was not by any negligence on his part that he did
not know that it contained the libel
 Then, although the dissemination of the work by him was
prima facie publication of it, he may nevertheless, on
proof of the facts, be held not to have published it

40
 Week #10 – Defences to Defamation

 Truth:
o Substantially true
o Absolute defence
o Ontario Libel and Slander Act:
 Justification: 22 In an action for libel or slander for words
containing two or more distinct charges against the plaintiff, a
defence of justification shall not fail by reason only that the
truth of every charge is not proved if the words not proved to be
true do not materially injure the plaintiff’s reputation having
regard to the truth of the remaining charges. R.S.O. 1990,
c. L.12, s. 22.
 Absolute Privilege:

41
 o House of Commons, judicial proceedings, Parliamentary proceedings,
spousal communication
o A plaintiff who consents to the publication of defamatory material
about him/herself will be barred from recovery
 Qualified Privilege:
o Whether the defence applies is a question of law for the judge and
whether there is malice is a question of fact for the trier of fact
o Applies to protect defamatory material published on certain occasions,
NOT to the communication itself
o Requirement: there has been NO malice on the part of the publisher
o Once an occasion of qualified privilege has been shown to have
existed, the plaintiff has the onus to defeat the defence by proving
malice
o Malice, irrelevant statements to the duty, and if the material is
published too widely can defeat the defence
o Malice can be express or implied
o Sun Life Assurance Co. of Canada Et Al v Dalrymple: the slander, if
utterly beyond and disproportionate to the facts, may provide evidence
of express malice. One piece of evidence tending to establish malice
may be enough on which a jury could find for the plaintiff
o Bereman v Power Publishing Co: the judge should stop the case if the
defendant honestly believed the plaintiff’s conduct to be such as he
described it; the mere fact that he used strong words in so describing it
is no evidence of malice to go to the jury
o TEST:
 If the communication is fairly made on a privileged occasion by
a person in the discharge of some public or private duty or for
the purpose of protecting some private interest, provided it is
made to a person who has some corresponding interest in
receiving it and is not disseminated too widely  difficult for
newspapers to use
o Watt v Longsdon:
 Privileged occasions: the allegation that the speaker has
“unlawfully and maliciously published” is displaced by proof:
 1) A public or private duty to communicate, whether
legal or moral (ie. fiduciary duty, statutory requirements,
common law obligations)
 2) That the communication should be “fairly warranted
by any unreasonable occasion or exigency”
42
  3) Or a statement in the conduct of his own affairs where
his interest is concerned
 BUT communications made on these occasions may lose their
privilege:
 i) They may exceed the privilege of the occasion by
going beyond the limits of the duty or interest, OR
 ii) They may be published with express malice, so that
the occasion is not being legitimately use, but abused
o The Globe and Mail Ltd v Boland: the more something is publicized,
the less likely the defence of qualified privilege will apply
 Responsible Communication of Matters of Public Interest:
o Grant v TorStar:
o TEST:
 1) The publication must be on a matter of public interest
 Publication as a whole
 If the evidence is legally capable of supporting the
defence, the judge should put the case to the jury for
the ultimate determination of responsibility
 Must consider an individual’s reasonable expectation
of privacy when determining whether the matter is of
public interest
 Enough that some segment of the community would
have a genuine interest in receiving information on
the subject
 2) The defendant must show that the publication was
responsible, in that he/she was diligent in trying to verify the
allegation(s), having regard to all the relevant
circumstances
 The degree of diligence must increase with the
seriousness of the allegation(s) and their effects on the
person defamed
 What is the public importance of the matter?
Sometimes tied to urgency
 The less trustworthy the source, the greater the need
to use other sources to verify the allegations (and
corroborate the story)
 Was the plaintiff’s side of the story sought?

43
  Was the inclusion of the defamatory statement
necessary to communicating on a matter of public
interest? → for the jury to decide
 Repeating a libel has the same legal consequences as
originating it
o BUT this does not apply to fairly reported
statements whose public interest lies in the fact
that they were made rather than in their truth or
falsity (reportage)
 If a dispute is itself a matter of public
interest and the allegations are fairly
reported, the publisher should incur no
liability even if some of the statements
made may be defamatory and untrue,
provided:
 1) the report attributes the
statement to a person, preferably
identified, thereby avoiding total
unaccountability,
 2) the report indicates, expressly or
implicitly, that its truth has not
been verified,
 3) the report sets out both sides of
the dispute fairly, and
 4) the report provides the context
in which the statements were
made
 Not an exhaustive list of factors to consider
 Fair Comment:
o Comment must be fair and relevant on matters of public concern or
public interest (ie. government activity, political debate, proposals by
public figures, public affairs, works of art, theatrical performance,
music, literature)
o WIC Radio Ltd v Simpson; McQuire v Western Morning News Co:
 TEST:
 1) The comment must be on a matter of public interest
 2) The comment must be based on fact
 3) The comment, although it can include inferences of
fact, must be recognizable as comment

44
  4) The comment must satisfy the honest belief test (ie.
could any person honestly express that opinion on the
proved facts), AND
 5) Even though the comment satisfies the honest belief
test, the defence can be defeated if the plaintiff proves
that the defendant was actuated by express malice
 The defendant must prove the four elements of the
defence before the onus switches back to the plaintiff to
establish malice
o As long as the comment represents a legitimate opinion honestly held,
it will be protected

Week #10 – Anti SLAPP Suits

Ontario Courts of Justice Act s.137.1:

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

45
(a) to encourage individuals to express themselves on matters of public interest;
(b) to promote broad participation in debates on matters of public interest;
(c) to discourage the use of litigation as a means of unduly limiting expression on
matters of public interest; and
(d) to reduce the risk that participation by the public in debates on matters of
public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally

or non-verbally, whether it is made publicly or privately, and whether or not it is
directed at a person or entity. 2015, c. 23, s. 3.

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall,

subject to subsection (4), dismiss the proceeding against the person if the person
satisfies the judge that the proceeding arises from an expression made by the
person that relates to a matter of public interest. 2015, c. 23, s. 3.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding
party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result
of the moving party’s expression is sufficiently serious that the public interest in
permitting the proceeding to continue outweighs the public interest in protecting
that expression. 2015, c. 23, s. 3.

No further steps in proceeding

46
(5) Once a motion under this section is made, no further steps may be taken in the
proceeding by any party until the motion, including any appeal of the motion, has
been finally disposed of. 2015, c. 23, s. 3.

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to
amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the
proceeding; or
(b) if the proceeding is dismissed under this section, in order to continue the
proceeding. 2015, c. 23, s. 3.

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is
entitled to costs on the motion and in the proceeding on a full indemnity basis,
unless the judge determines that such an award is not appropriate in the
circumstances. 2015, c. 23, s. 3.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding
party is not entitled to costs on the motion, unless the judge determines that such
an award is appropriate in the circumstances. 2015, c. 23, s. 3.

Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the
responding party brought the proceeding in bad faith or for an improper purpose,
the judge may award the moving party such damages as the judge considers
appropriate. 2015, c. 23, s. 3.

1704604 Ontario Ltd v Pointes:

 s.137.1(3): onus is on the defendant to prove that the comment was on a
matter of public interest  threshold burden
 s.137.1(4): onus switches to the plaintiff
 TEST:
 S. 137.1(3) places an initial burden on the moving party (the defendant in
a lawsuit → underlying proceeding), to satisfy the motion judge that the
47
 proceeding initiated against them arises from an expression relating to a
matter of public interest (threshold burden) → must be met before
proceeding to s. 137.1(4) for the ultimate determination of whether the
underlying proceeding should be dismissed
o “Satisfies”: balance of probabilities
o “Arises from”: broad and liberal interpretation
o “Expression”: expansive
o “Relates to a matter of public interest”: broad and liberal
interpretation
o No qualitative assessment at this stage
o Contextual interpretation as per Grant v Torstar
 S. 137.1(4): plaintiff (responding party → plaintiff in the underlying
proceeding) must satisfy the motion judge that:
o a) There are grounds to believe that their underlying proceeding
has substantial merit and the defendant has no valid defence
(merits-based hurdle) → legally tenable, weighs more in favour of
the plaintiff AND
 Standard is higher than required for a motion to strike but
less than the test for summary judgement
 Limited weighing of the evidence
 “No valid defence” → absolute “no”
 From the motion judge’s perspective
 (a)(i): real prospect of success → NOT likely to succeed
standard but weighs more in favour of the plaintiff (but NOT
“a strong likelihood of success”)
 Not an adjudication of the merits of the underlying
proceeding
 Even if a lawsuit clears the merits-based hurdle, it remains
vulnerable to summary dismissal as a result of the public
interest weighing exercise under s. 137.1(4)(b)
 “Substantial merit” and “no valid defence” should be seen as
constituent parts of an overall assessment of the prospect of
success of the underlying claim
 S. 137.1(4)(a)(ii) operates, in effect, as a burden-shifting
provision in itself: the moving party (ie. defendant) must put
potential defences in play, and the responding party (i.e.
plaintiff) must show that none of those defences are valid in
order to meet its burden

48
 o b) The harm likely to be or have been suffered and the
corresponding pubic interest in permitting the proceeding to
continue outweighs the public interest in protecting the expression
 Burden is on the plaintiff to show on a balance of
probabilities that it likely has suffered or will suffer harm,
that such harm is a result of the expression established under
s. 137.1(3), and that the corresponding public interest in
allowing the underlying proceeding to continue outweighs
the deleterious effects on expression and public participation
 Core of the analysis
 i) harm and ii) causation (defendant’s expression)
 Can be monetary or non-monetary harm
 Plaintiff does not need to prove harm or causation, just
needs to provide evidence to the motion judge
 Public interest must be relevant to specific goals: quality of
the expression and the motivation behind it are relevant
(consider the core considerations of s. 2(b) Charter)
 Consider: the harm suffered or potentially suffered by
the plaintiff, the corresponding public interest in
allowing the underlying proceeding to continue, and
the public interest in protecting the underlying
expression
 Stage is fundamentally a public interest weighing exercise
and not simply an inquiry into the hallmarks of a SLAPP
o If either a) or b) are not met = the underlying proceeding will be
dismissed
o If both are met, then the proceeding will be allowed to continue

Subway Franchise Systems of Canada Inc v Canadian Broadcasting Corporation:

the continuation of the action should not deter others from expression, but should
deter others from making remarks without first taking reasonable steps to
substantiate the veracity of those remarks (responsible communication defence)

49
 Week #11 – Damages Part I

Types of Damages

 Compensatory Damages:
o General Damages (Non-pecuniary; “Non-Economic Damages”):
 Non-monetary losses
 Pain and suffering, loss of companionship (FLA),
physical disfigurement, mental anguish, and a general

50
 loss of enjoyment of life that results from diminished
wellness
 Capped at $100,000 adjusted for inflation (Andrews v Grand &
Toy Alberta Ltd)  EXCEPT for: torture, defamation, wrongful
imprisonment
o Special Damages (Pecuniary; “Economic Damages”):
 Monetary compensation for quantifiable losses suffered as a
result of a defendant’s negligent actions
 Loss of past and future earnings (Maccabe v Westlock
Roman Catholic Separate School District No.110),
medical costs, care expenses, out-of-pocket expenses that
are incurred as a direct result of the tort, cost to repair
and/or replace any damaged property, housekeeping and
home maintenance expenses
 Non-Compensatory Damages:
o Punitive Damages (Whiten v Pilot Insurance):
 When a party has committed egregious behaviour which the
court wishes to punish and deter
 Extraordinary circumstances where the defendant’s behaviour
was particularly shocking
 Punish the defendant
o Aggravated Damages:
 Where the defendant’s conduct has caused the plaintiff
particular distress, grief, or humiliation
 Compensate the plaintiff
o Nominal Damages:
 When the defendant only slightly infringed the plaintiff’s rights,
the plaintiff failed to prove actual damage (harm), or the
plaintiff failed to mitigate
 Charter Damages:
o S.24(1): Vancouver (City) v Ward
 *Courts may deny a plaintiff’s damages when:
o 1) Legal Causation (Remoteness)
o 2) Factual Causation (“But-For”)
o 3) Plaintiff failed to mitigate

Andrews v Grand & Toy Alberta Ltd: special and general damages
 In determining appropriate future care costs, look at inability to perform:
housekeeping, caregiving, attendant care, ability to return to work in the

51
 same or different capacity. There must be a reliance on outside help which
would result in out-of-pocket expenses into the future, which warrants the
payment of future care costs in personal injury cases such as this. With
respect to work, there must be an unavoidable income loss into the future
 The plaintiff should be put into the position he would have been but for the
accident but there is a reasonable expectation that the plaintiff has the
obligation to mitigate damages
 Cap on general damages: $100,000 adjusted for inflation
o Does not apply to torture, defamation, wrongful incarceration, sexual
assault
 Get interest on the damages under the Courts of Justice Act
o Pre-judgement and post-judgement interest
o General damages: 5% annum.
o Pecuniary damages: different formula (compounded interest)

Maccabe v Westlock Roman Catholic Separate School District No.110: loss of

future earnings
 Assessing damages for loss of future earning capacity involves the exercise
of predicting a person’s future had they not been injured. This becomes more
difficult when the individual is young and without an established learning
pattern from which to make a projection. This also requires an individual
approach on a case-by-case basis

Whiten v Pilot Insurance Co: punitive damages

 Punitive damages are awarded “if but only if” the compensatory award is
insufficient
 Principles of punitive damages:
o 1) The appropriate control is achieved not by restricting punitive
damages to certain categories, but in rationally determining the
circumstances that warrant the addition of punishment to
compensation in a civil action
o 2) The general objectives are punishment, deterrence, denunciation
o 3) The primary vehicle of punishment is the criminal law and punitive
damages should be resorted to only in exceptional cases
o 4) The use of pejorative phases such as “high-handed”, “oppressive”,
“vindictive”, provide insufficient guidance to the judge or jury
o 5) The court should relate the facts of the particular case to the
underlying purposes of punitive damages and implement the lowest
award with regard to whether it will further the objectives of the law
52
 o 6) It is rational to use punitive damages where compensatory damages
would amount to nothing more than a license fee to earn greater
profits through outrageous disregard of the legal or equitable rights of
others
o 7) Punitive damages do not have to be fixed by ratio to the
compensatory damages, because the focus is on the defendant’s
behaviour not the plaintiffs loss
o 8) The overall award should be rationally related to the objectives for
which the punitive damages are awarded
o 9) Juries can and should receive more guidance and help from judges
in terms of their mandate
o 10) There is substantial consensus that punitive damages are not at
large and that an appellate court is entitled to intervene if the award
exceeds the outer boundaries of a rational and measured response to
the facts of the case
 Punitive damages:
 Awarded against a defendant in exceptional cases for “malicious,
oppressive, and high-handed misconduct that “offends the court’s sense
of decency”
 The test limits the award to misconduct that represents a marked
departure from the ordinary standards of behaviour
 The objective is to punish the defendant rather than compensate the
plaintiff (whose just compensation will have already been assessed)
 Punitive damages straddle the frontier between civil law (compensation)
and criminal law (punishment)
 Rationale:
 “The appellate review should be based upon the court's estimation as to
whether the punitive damages serve a rational purpose. In other words,
was the misconduct of the defendant so outrageous that punitive damages
were rationally required to act as deterrence?”
 This test applies to both whether punitive damages should be awarded
and if so, how much
 Proportionality (key to the permissible quantum of damages):
 Proportionate to the blameworthiness of the defendant’s conduct
 Proportionate to the degree of vulnerability of the plaintiff
 Proportionate to the harm or potential harm directed specifically at the
plaintiff
 Proportionate to the need for deterrence

53
  Proportionate, even when taking into account the other penalties, both
civil and criminal, which have been or are likely to be inflicted on the
defendant for the same misconduct
 Proportionate to the advantage wrongfully gained by a defendant from
the misconduct
 *Police Services Act (s.50): makes police boards liable for the actions of
police employees

P.A.D. v A.E.H: damages for sexual battery

 To prove past loss of opportunity (pecuniary damages) a plaintiff must
establish that she has been rendered less capable overall, from earning
income, as a result of these sexual assaults; that she is less marketable to
potential employers; that she has lost the ability to take advantage of
employment opportunities; and that she is less valuable to herself as a person
capable of earning income in a competitive market

Week #11 – Damages Part II

Family Law Act (Loss of Care, Guidance, and Companionship):

Right of dependants to sue in tort

54
61 (1) If a person is injured or killed by the fault or neglect of another under
circumstances where the person is entitled to recover damages, or would have been
entitled if not killed, the spouse, as defined in Part III (Support Obligations),
children, grandchildren, parents, grandparents, brothers and sisters of the person
are entitled to recover their pecuniary loss resulting from the injury or death from
the person from whom the person injured or killed is entitled to recover or would
have been entitled if not killed, and to maintain an action for the purpose in a court
of competent jurisdiction. R.S.O. 1990, c. F.3, s. 61 (1); 1999, c. 6, s. 25 (25);
2005, c. 5, s. 27 (28).

Damages in case of injury

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or
killed;
(b) actual funeral expenses reasonably incurred;
(c) a reasonable allowance for travel expenses actually incurred in visiting the
person during his or her treatment or recovery;
(d) where, as a result of the injury, the claimant provides nursing, housekeeping
or other services for the person, a reasonable allowance for loss of income or
the value of the services; and
(e) an amount to compensate for the loss of guidance, care and companionship
that the claimant might reasonably have expected to receive from the person
if the injury or death had not occurred. R.S.O. 1990, c. F.3, s. 61 (2).

Contributory negligence

(3) In an action under subsection (1), the right to damages is subject to any
apportionment of damages due to contributory fault or neglect of the person who
was injured or killed. R.S.O. 1990, c. F.3, s. 61 (3).

 Family Law Act plaintiffs cannot sue for aggravated or punitive damages 
way around this is to sue for the tort of intentional infliction of emotional
distress

To v Toronto Board of Education:

 A child does not hold economic gain but “companionship”; the particular
circumstances (evidence of guidance, care and companionship) of the family

55
 must be taken into account by the trier of fact in an objective manner. The
damages cap for non-pecuniary general damages in personal injury cases
(Andrews v Grand & Toy Alberta Ltd) does not apply to damages for loss of
guidance, care and companionship
 An appellate court may not interfere only on the basis that it would have
given a lower award than a jury. An appellate court may only interfere if the
jury’s assessment is inordinately high (or low) as to constitute a wholly
erroneous estimate of the guidance, care and companionship loss

Fiddler v Chiavetti:
 A new trial in a civil case will only be ordered where the interests of justice
plainly require it (Arland and Arland v Taylor)
 The damages cap for non-pecuniary general damages in personal injury
cases (Andrews v Grand & Toy Alberta Ltd) does not apply to damages for
loss of guidance, care and companionship (To v Toronto Board of
Education)
 In the absence of an error in the charge, the jury’s assessment must be so
inordinately high (or low) as to constitute a wholly erroneous estimate of the
guidance, care and companionship loss
 Each case must be considered in light of the evidence and circumstances and
in light of the particular family relationships involved in that case
 An appellate court will not interfere merely because it would have come to a
different conclusion

56