BU 231 Midterm Flashcards
1
Q
Define Assault
A
The threat of violence
2
Q
What are the 4 elements of Assault?
A
- Intentional?
- Uttering of a threat
- Is likely to cause a reasonable apprehension of imminent physical harm
- Is it against a person or an identifiable group?
3
Q
Define Battery
A
The actual physical contact
4
Q
What are the 3 elements of Battery?
A
- Intentional?
- Applying unlawful force
- Without consent
5
Q
Define Trespass
A
Entering upon another person’s land without permission, no point in suing unless the landowner can establish some loss
6
Q
What are the 3 elements of Trespass?
A
- Intentional?
- Entering the property
- Without consent
7
Q
Define Defamation
A
The making of untrue statements that causes injury to the reputation of another person
8
Q
What are the 2 types of defamation?
A
- Libel (written)
- Slander (spoken)
9
Q
What are the 3 elements of defamation?
A
- The material is defamatory - it lowers the plaintiff’s reputation in the eyes of a reasonable person
- The material must refer to the plaintiff
- The material must be communicated or published to at least one other person
10
Q
For defamation, when might the court award for damages?
A
If the plaintiff can demonstrate that the defendant’s remarks taken as a whole would discredit the plaintiffs reputation in the mind of an ordinary person
11
Q
What do defamation torts require?
A
Publication - meaning the communication of the offending statement to someone other than the person defamed
12
Q
What is a defence for defamation?
A
It must be proven that the alleged defamatory statements are honestly believed to be true.
13
Q
Define Inducing breach of contract
A
intentionally causing one party to breach their contract with another
Usually if A convinces B to break his contract with C. C will sue B for the breach of contract. C may also sue A for the tort of inducing breach of contract
14
Q
Unlawful interference with economic relation
A
Attempting by threats or other unlawful means to induce one person to discontinue business relations with another
15
Q
Elements of Unlawful interference with economic relation
A
- Existence of the business relationship
- Knowledge about the relationship
- Intentional interference - which has to be illegal
- There must be a loss
16
Q
What are considered intentional torts?
A
- Trespass
- Defamation
- Battery
- Assault
- Interference with Contracts/Business Relations
17
Q
What are the 2 Strict Liability Torts?
A
- Public nuisance: protects the public interest and access to public places
- Private nuisance: protects an occupier’s right to the reasonable use and enjoyment of their own land – without substantial interference from direct and indirect activity on neighbouring property
EX. Noxious fumes, excessive noise, or contaminating liquids poured into rivers or seeping through the soil
18
Q
Define Vicarious Liability
A
strict liability of an employer to compensate for torts committed by an employee during the course of his or her employment
19
Q
What are the 2 public policy reasons for taking this approach?
A
- Although the employee is personally liable for the torts he commits while acting for himself or his employer, employees often have limited assets available to pay compensation for the potential harm they can cause
- It seems only fair that the person who makes the profit from an activity should also be liable for any loss
20
Q
What are the 3 types of Damages?
A
- Special (pecuniary): quantifiable damages (e.g. sales losses). Example: medical bills, lost wage, etc.
- General: not quantifiable (e.g., pain and suffering), the judge may quantify based on past cases
- Punitive (rare): punishment for egregious conduct, these are rare in Canada
21
Q
What are some defences to a tort action?
A
- Contributory negligence – The plaintiff contributed to their own injuries and is therefore unable to fully recover damages, You can get some compensation
- Voluntary assumption of risk – The plaintiff knew of a risk and voluntarily assumed it, barred from recovery, You get zero compensation
- Ex turpi causa – a plaintiff is barred from recovery if injured while in the midst of an illegal activity, You should also get zero compensation
- Consent – if the plaintiff consents to a tortious, no wrong is committed and the plaintiff is barred from recovery, Zero compensation
22
Q
Define Fiduciary Duty of Care
A
When a person is in a “special” vulnerable relationship with a professional, the law imposes a fiduciary duty on that professional, e.x. a parent, a doctor, a trustee.
23
Q
What makes someone a fiduciary? What are the 3 characteristics?
A
(1) Has the scope for the exercise of some discretion or power;
(2) Can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests;
(3) The beneficiary is peculiarly vulnerable to, or at the mercy of, the fiduciary holding the power or discretion.
24
Q
What are the Fiduciary Duties owed?
A
Must place the beneficiary’s interest before the fiduciary’s interest or any other interest except the law.
Must not have conflict of interest
25
What is needed to impose liability for breach of fiduciary duty?
1. Establishing the relation is a fiduciary one
2. Determining if the professional's behaviour breached the fiduciary obligations
26
If an employee commits a tort during employment, is the employer liable at all? If so, what is this called?
Vicarious liability: the strict liability of the employer concerning torts committed by an employee during their employment
27
What is the key difference between intentional and unintentional torts?
Intentional torts are done deliberately (on purpose, with intent, etc)
Unintentional torts are caused by accidental behaviour
28
Vicky owns the entire 275 Larch Building F. Without permission, Joey walks into the building to go and steal her charger back that Vicky took yesterday.
What is James' potential cause of action?
What are the elements to prove here and does this case have any elements at all?
If a cause like this does not have all the elements, can the claim still go forward?
Cause of Action for Vicky: Trespass
Elements
1. Intention
2. Entering property
3. Without consent
4. Causing harm
It could be argued there is no cause of harm here given that James might not have needed the charger.
You could have argued that the aspect of it was not consented to and therefore the trespass did cause harm
If one of these elements were missing, the case may not proceed
29
In a trespass case, where is the onus?
The burden of proof is on the plaintiff to prove the elements of the cause of action
30
After seeing that Joey had returned her charger, Vicky visited Joey at Laz the next day. She was furious she did not have Joey's charger. Joey said she needed it but Vicky wasn't having it. She lifted her fist and gestured it towards Joey.
Is there a cause of action?
What is this tort called?
What does it require?
There is a cause of action: Assault
- The threat of violence to a person
Requires: the apprehension by the defendant of imminent bodily harm
31
Joey goes home, shocked at Vicky's reaction. Joey muttered under her breath, I'm going to guillotine this woman.
When Joey said this, another person was on call with her and this person told Vicky that Joey said this.
Vicky wanted to get back at Joey by suing her for assault.
Does she win?
Vicky can't win.
Assault requires the apprehension by the defendant of imminent bodily harm.
Joey was not near Vicky and Vicky only heard about it later.
Joey could also argue in court that she does not own a guillotine and therefore the harm is not imminent.
32
Suppose Vicky took action at Laz and punched Joey int he neck. Joey's the bigger woman and Vicky is pretty weak so Joey was ok after the punch.
Regardless, Joey believes he has a cause of action, what might this be?
Vicky defends against this cause of action by stating that Joey could take it, she's a strong woman.
Is Vicky's defence valid?
The cause of action is battery, the unlawful touching of another person. (The physical act itself)
Vicky's defence is not valid.
Joey does not need to show damages in court, only that the touching was unconsented. This is called "Actionable per say"
33
Joey's Pizzeria business throws out all of its waste into the local park.
Joey believes that since pizza waste smells like pizza, she's not doing anything wrong. Is she?
She is.
Public nuisance: the unreasonable interference with the lawful use of public amenities or public interest
34
Say Vicky's subway shop also enjoys putting waste into the local park like Joey's pizzeria.
Can Vicky claim public nuisance on Joey?
No because Vicky was also doing something unlawful.
The city, however, could claim public nuisance on both of them.
35
Vicky owns a solar panel installation on a commercial rooftop.
One day she finds that Joey's plant on top of his Pizzeria has started to encroach on the solar panels and now Vicky's solar panels can't produce electricity!
Does Vicky have a cause of action?
If so, what does Vicky need to do to prove that Joey is liable?
Cause of action: Private nuisance
To prove Joey is liable: nothing. It's a strict liability tort.
36
Vicky always asked Joey to hop in her trunk instead of sitting in the seat like a normal person.
One day, Joey offers for Vicky to sit in the trunk. They drive to Vicky's subway shop.
Here, Joey leaves Vicky in the trunk overnight. She didn't know what was going on
What might the cause of action be if Vicky is not dead?
WHat's the key thing Vicky has to prove?
Potential cause of action: False imprisonment
Key thing to prove: whether or not Joey did it intentionally.
37
What are the two kinds of defamation
1. Libel (written defammation)
2. Slander (spoken defammation)
38
Vicky writes a diss track about Joey to beat him in a rap beef. In it, Vicky says Joey is like Satan.
Vicky releases her song on all streaming platforms.
Following this, Joey gets banned from all churches.
Does Joey have a cause of action?
What are the elements of this cause of action and does this case include them all?
What might Vicky's defence be?
Cause of action: Libel and slander
Libel for the lyrics
Slander for the spoken (or sung) defamation
Elements
1. Material is defamatory, lowers reputation
2. Material must refer to the plaintiff
3. Material must be communicated or published to another person
Vicky's defence: Truth.
39
In the early days of the Pizzeria, Joey hired Mia as her global operations consultant. Mia worked at the pizzeria for over 5 years before deciding to move on to co-found Subway Industries with Vicky.
During their co-founding, Vicky called Joey to ask how Mia was as an employee and partner. Joey gave a review both negative and positive.
Unfortunately one of the things Joey said turned out to be false.
Mia sued Joey for slander.
Given Joey's position as Mia's previous employer, does Joey have a defence?
Joey does. It is called qualified privilege. Given that the statement was ade in good faith
40
What is the difference between absolute privilege and Qualified?
Absolute privilege: is complete immunity from liability for defamation
Qualified privilege: required that the statement be made in good faith
41
Joey's Pizzeria recently got a special order for 5000 pizzas.
The special order came from Hazel. Hazel signed a standard form agreement already as well.
In the midst of this, Vicky comes into Hazel's office and convinces her to purchase her subs instead by saying the pizzas were probably too spicy.
Hazel agrees.
What potential cause of action exists between these 3 parties?
Is there enough for each claim to go through?
Joey can sue Hazel for Breach of contract
Joey can sue Vicky for inducing a breach of contract
Joey can sue Vicky for unlawful interference with economic relations but this is unlikely since there's no evidence of unlawful means at play.
Joey can sue Vicky for product defamation: provided Joey's pizzas were not spicy.
42
What are the 4 elements of negligence?
1. Duty of care
2. Standard of Care
3. Causation
4. Damages
43
What test can we use to determine whether or not causation exists in negligence?
We can use the "but for test": "but for" the actions of the defendant, the damages to the plaintiff would not have occurred.
44
What are the 2 key elements that establish a duty of care?
1. Proximity
Is it reasonably foreseeable that the defendant's conduct could harm the plaintiff
2. Predicatability
Is it reasonably foreseeable that someone in the defendant's position would have foreseen the risk of harm to the plaintiff
45
What is the difference between the duty of care and the standard of care?
The duty of care has to do with the closeness and predictability of the defendant and the defendant's conduct to the plaintiff
The standard of care has to do with eh defendant's conduct, whether or not it fell below the reasonable level of care that a defendant in their position would have
46
A babysitter to a child. It is reasonably foreseeable that the actions of the babysitter during and slightly before/after could affect the child.
Which care is this?
Duty of care
47
The level of care expected of a reasonable babysitter. Which care is this?
Standard of care
48
Who's job is it to prove whether or not the defendant fell below the standard of care?
The plaintiff must show that the defendant fell below the level of care that a reasonable person would have had in equivalent circumstances to the defendant's position
49
When might the "but for" test be not applicable?
In that case, what do courts do?
In the case of multiple defendants in which the court is not able to establish causation by one particular defendant, we use the "material contribution to risk test:
establishing causation went the type of injury incurred by the plaintiff is that for which the behaviour of the defendant created an unreasonable risk
EX. 2 hikers throwing stones carelessly. One of the stones hit a biker, the biker gets hurt.
Material contribution gives liability to both hikers.
50
After their previous issues relating to the Pizzeria. Joey decides to confront Vicky.
After a verbal spat between both parties, Joey decides to strike Vicky with a fist right in the stomach.
Vicky had 6 of her ribs broken.
What cause(s) of action does Vicky have against Joey?
Given these cause(s) of action the court decides Joey was liable for the costs of repairing Vicky's ribs
Joey claims Vicky is far too weak than an ordinary victim and would not have been this effected.
Therefore, Joey shouldn't have to cover those damages. Is she right?
Cause(s) of action: Assault and Battery
Joey is not right.
According to the "thin skill doctrine", a defendant compensates a plaintiff "as-is". Even though an ordinary plaintiff may have been less affected.
Vicky must be restored back to show she was before
51
What are the 4 key defences to defamation
1. Truth
2. Qualified or Absolute Privilege
3. Responsible communication on matters of public interest
4. Fair Comment
52
Vicky and Mia are hanging out at the DC basement when after receiving a poor grade, Vicky tells Mia to shoot her.
Mia, not understanding it was a joke, pulls out a gun and shoots Vicky in the shoulder.
Vicky sues Mia for what cause of action
Mai claims Vicky consented to being shot. Is this right?
It could be argued that getting shot is a "consent" to severe bodily harm.
In this case, one cannot consent to this and it cannot be used as a defence.
Mia would still be liable for battery.
53
What are the 5 main defences to intentional torts?
1. Consent
2. Incapacity
3. Involuntariness
4. Necessity
5. Self-defence
54
Distinguish between the following:
1. Punitive damages
2. General damages
3. Special damages
1. Punitive
: damages awarded to punish a wrongdoer
2. General damages
: money for injuries not easily expressed
3. Special damages
: money for quantifiable injuries
55
What are the 2 main defences to negligence?
1. Contributory negligence (a partial defence)
2. Voluntary assumption of risk
: the plaintiff was aware of this risk and proceeded with the activity anyways
56
An old lady goes to visit a long lost nephew. The lady has a herniated disc and other hop issues.
Upon arriving she notices there are steps leading up to the door. She notices there is a sign that says "caution: stair is faulty",
The lady walks up the steps, falls, causing her to be paralyzed.
She the lady have a cause of action?
If so what?
Would she win?
WHat would be different for her to win or lose?
Cause of action
: negligence, in particular a cause of occupiers liability
The lady is an invitee and therefore the nephew has a duty of care
One could argue he met his standard of care. And therefore the key defence is that there was a voluntary assumption of risk.
Had the sign not been there, one could argue that the nephew fell below the standard of care. Therefore in that case perhaps the lady would win
57
To prove product liability, what must a plaintiff show?
need only prove the uncharacteristic malfunction of the product is the most likely cause of injury
58
3 basic types of product liability?
1. Negligent design
2. Negligent manufacture
3. Failure to warn
59
If Mia, Joey's latest employee at her Pizzeria, negligently leaves the floor greased up with pizza and causes Callie, a customer to slip, fall and injure herself. Will Mia's broke ass have to pay all those damages?
No, due to vicarious liability, Joey would be liable for the damages, given that Mia did this during the course of her employment.
60
What are the 6 steps in establishing negligent misrepresentation?
1. A statement was made
2 The statement is false
3. The maker of the statement owes the hearer of the statement a duty of care
4. The hearer must reasonably act on that statement
5. The statement fell below the standard of care
6. The hearer of the statement must suffer a loss as a result of acting on the statement
61
Hazel recently opened up a financial advisory business.
After a consultation, she recommends that Joey invest a small portion of her portfolio into Sephora candle stocks. She makes the claim that these candle stocks are likely to increase in value over the next year. Joey converts her entire portfolio into Sephora candle stocks and it loses over 30% in value.
Does Joey have a cause of action?
What are the elements in this cause of action?
Does Joey win?
Cause of action: negligent misrepresentation
It could be argued that her decision as not reasonable, such as completely flipping over her portfolio
In that cause she did not win.
62
What are the 5 steps in establishing fraudulent misrepresentation
1. The statement was made
2. The statement was false
3. The defendant knew the statement was false
4. The hearer acts reasonably on the statement
5. The hearer suffers a loss because of their acting
63
What are the 3 main relationships that create liability?
1. Contractual
2. Fiduciary
3. Tort
64
What are the 3 conditions for a fiduciary? List some examples.
1. Fiduciary undertakes to act in the best interest of their beneficiary
2. The beneficiary is vulnerable/at the mercy of the fiduciary's control and discretion
3. Legal or practical interest of the beneficiary could be harmed by exercise of fiduciary control
EX. Docot patient, lawyer client, parent child
65
In the context of professional liability, 3 conditions are placed on a professionals concerning their clients.
What are these 3?
1. Act honestly, in good faith and only in client's best interests
2. Avoid all conflicts of interest
3. Account for all property held/administered on behalf of a beneficiary
66
What are the 3 elements of a contract's formation?
1. Offer
2. Acceptance
3. Consideration
67
What's a standard form contract?
List the risks and benefits
Offer prepared in advance, "take it or leave it".
Benefits: fast and efficient
Risks: inequality of bargaining power and no room to negotiate terms
68
Callie offers to shovel the snow outside of Joey's Pizzeria in exchange for free pizza this afternoon. Imaad says "yes for sure". The next day, Joey notices that Callie did not shovel her snow. She decides to sue Callie for breach of contract. Callie claims that there was no written offer, so the contract is void. Is she right? Also, would Joey win?
Callie is not right. This offer does not have to be in writing.
Joey would win. A contract was performed and Callie did not perform her duties of the contract
69
What's the difference between a bilateral and unilateral contract?
bilateral: both offeror and offeree have a promise to fulfill in the future to each other. They are bound to perform after the acceptance of the contract
unilateral: acceptance is done by performance of one of the parties
70
Define consideration
The price for which the promise of the other is bought
71
Suppose that Joey receives a gratuitous benefit (a gift) from Hazel. Hazel then goes on to claim that Joey should be bound to ultimately repay her if it was something nice Hazel did for her. Is Hazel right?
She's not. This is what is called past consideration and is not considered to be a consideration
72
If consideration may not be applicable, is there still a way to make the contract binding? What's that called?
Yes, It is called agreements under seal
73
What test do we apply to determine whether two parties had intention to create legal relations?
the reasonable bystander test: did the outward conduct of the parties lack serious intention to create legal obligations?
74
What's the difference between contracts that are void, voidable and unenforceable?
Void: the contract never existed
Voidable: the contract EXISTS, but CAN be made void at the option of a party
Unenforceable: the contract exists, but the courts will not enforce it.
75
What are the 3 conditions for equitable estoppel to be used as a defence?
1. SOME legal relation exists between 2 parties already
2. One party promises to release another from some or all legal duties to him
3. The other party relies on such a promise, alters his position and would make a real hardship if the promisor falls through.
76
When are minors bound to their contracts? And, what even are minors?
Minors in the context of contract law are those that are less than 18 years old.
They are bound by 2 kinds of contracts:
1. necessaries (essential goods/services)
2. beneficial contracts of service (apprenticeships, employment, etc.)
77
There are 4 acts that were mentioned in class with respect to when contracts are deemed illegal, what were they>
1. Criminal Code
2. Income Tax
3. Competitions
4. Law Society
78
In the context of contract law, what 4 things can mistakes relate to?
1. Terms of Contract
2. Subject matter
3. Identity of party(ies)
4. About nature of the signed document
79
Within the 3 relations about mistakes, what are the 3 types? List and define them.
Common mistake: both parties believe in same erroneous fact
Mutual mistake: both parties.mistaken, believe something else
Unilateral mistake: other knows truth
80
