Chapter 4: Intentional Torts and Torts Impacting Business

Question 1

When has a tort been committed?

Answer 1

When one person harms another, either intentionally or carelessly, a tort has likely been committed

Question 2

The Nature of Torts

Answer 2

LO 4.1 Describe the role of tort law as distinct from criminal or contract law

Question 3

Tort definition

Answer 3

an action that causes harm or injury to another person
(harming his person, property, or reputation)

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

Usually the remedy is monetary damages, but may include punitive damages or equitable remedies (such as an injunction)

Separate from a “crime”

Different than a breach of contract

Question 4

Injunction

Answer 4

a court order stopping certain conduct

Question 5

punitive damages definition

Answer 5

an extra award intended to punish the wrongdoer

Exemplary damages are designed to punish the wrongdoer
-Courts rarely award these types of damages but are more likely in the case of intentional torts

Question 6

Purpose of tort law

Answer 6

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

In so doing, it deters the occurrence of such wrongful behaviour and educates society by “making someone pay.”

Question 7

Crimes definition

Crime definition

Answer 7

wrongs that affect society as a whole and are punishable by the state

or

Harmful conduct that is so
serious that it poses a threat to society generally is said to be criminal in
nature.

Question 8

Crimes vs Torts

Answer 8

Crimes:
-carried out by the criminal court to punish the wrongdoer

Torts:

• intended to compensate the victim
• Considered a private matter

Question 9

Can wrongful conduct be both a tort and a crime?

Answer 9

Yes sir

Question 10

Is it easier to sue on tort or crime?

Answer 10

Torts, as the standard of proof is based on a “balance of probabilities” opposed to “beyond a reasonable doubt,”

Question 11

Breach of contract

Answer 11

failure to live up to the terms of a contract

Question 12

Two categories of tortious activity

Two categories of torts

Answer 12

1) intentional (or deliberate)

2) Unintentional (careless)

Question 13

One important difference between deliberate

torts and negligence is in the remedies that the courts are willing to grant to the injured party

Answer 13

When the interference has been intentional, the

courts may be persuaded to grant punitive damages in addition to the more common general and special damages

Question 14

General damages definition

Answer 14

Compensate for estimated future losses, including both:

1) future pecuniary losses (such as loss of earning capacity) and
2) nonpecuniary losses (such as pain and suffering, usually based solely on precedent).

Question 15

Special damages definition

Answer 15

Awarded to cover actual expenses and calculable pre-trial losses

Example, if in a car accident you will miss work and need rehabilitation therapy, etc, and you wont be able to conduct normal work either, special damages encompass all of this
-Anything that I have a receipt for + lost income

Timeline: The date from when the event took place to the day of trial

Question 16

Punitive or exemplary damages

Answer 16

Are designed to punish the wrongdoer and do not
relate to the injury suffered.

To avoid excessive awards, the Supreme
Court of Canada has placed an upper limit of approximately $356 000 on damages that can be awarded to compensate for non-pecuniary losses,
including pain and suffering and loss of enjoyment of life

Question 17

Vicarious liability

Answer 17

liability of an employer for injuries caused by employees while carrying out their employment duties

Examples: An employer can be held
liable for the tortious act an employee commits while at work.

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

Question 18

Intentional Torts

Answer 18

LO 4.2 Identify remedies awarded to redress torts

Question 19

Recall Intentional Torts

Answer 19

where the conduct involved was intended or deliberate

Question 20

Trespass to Person: Assault and Battery

Answer 20

LO 4.4 Distinguish the torts of assault, battery, and trespass to land, listing the relevant defences

Question 21

Assault and Battery (aka trespass to person)

Answer 21

intentional physical interference with another person;

Question 22

Assault definition

‘Credible threat and not the contact’

Answer 22

a deliberate verbal or physical threat; an action that makes a person fear physical interference

Example: If someone fakes a punch, points a gun, or picks up a stone to threaten another person, an assault has been committed

Question 23

Battery

‘the actual physical contact’

Answer 23

unwelcome physical contact; deliberate, non-consensual physical interference to someone’s body

“the least touching of another in anger is battery.”

Question 24

The test to determine whether an assault has taken place

Answer 24

look to the victim and ask whether he was fearful of or anticipated unwanted physical contact.

If the defendant’s conduct would cause a reasonable
person to feel threatened with imminent harm or even simply unwanted contact, it constitutes an assault

Even threats made online can constitute
an assault

Question 25

There are several defenses that can be raised against an assault or battery claim.

Answer 25

Discussion starts after these slides

Question 26

Consent 1 /2 defenses to assault and battery

Answer 26

permission or assent to conduct that would otherwise constitute a tort such as assault and battery; can be expressed or implied; informed consent constitutes a defence to torts such as assault and battery Example: Boxing match has consent so this is consensual, but if the boxer pulls a knife than its not consensual

Question 27

Self-defense 1 /2 defenses to assault and battery

Answer 27

the right to respond to an assault with as much force as is reasonable in the circumstances The law entitles people who are being attacked to use necessary force to defend themselves, CANNOT use excessive force

Question 28

Trespass to Land Intentional tort

Answer 28

an unauthorized, intentional intrusion upon or direct breach of the boundaries of another’s land or going onto another person’s property without having either the lawful right or the owner’s permission to do so. Such a trespass is an actionable wrong, even when no damage or injury takes place and even if the intruder does not know he is trespassing When a person leaves or throws some item on another’s property, or erects a sign without the occupier’s permission, a trespass has taken place

Question 29

Continuing Trespass Continuous trespass

Answer 29

a permanent incursion onto the property of another

Question 30

Trespass to Chattels, Conversion, and | Detinue

Answer 30

LO 4.5 Describe three torts that deal with wrongful interference with goods (chattels)

Question 31

Trespass to chattels Chattel = personal property

Answer 31

direct, intentional interference with another’s rights to possess his personal property Examples: when vandals smash the windshield of a car or kick the door in, they have vindictively committed trespass to chattels and are liable to pay compensatory and possibly punitive damages to the victim. They may also face criminal charges.

Question 32

Conversion

Answer 32

intentional appropriation of the goods of another person for the appropriator’s own purposes In essence, it is a wrongful taking, using, or destroying of goods or asserting control over them, with intent to deprive the owner of title In addition to being crimes, theft of goods or acquiring possession of goods through deceit are also actionable under the tort of conversion Example: I take your laptop, sell it, and get money for it Remedy: Forced sale (which is the equivalent of damages calculated at the time of trial as this is a continuing tort) If your good is declining in value (depreciating) you will want to sue for this as the trial could take months or years

Question 33

Detinue

Answer 33

a wrongful retention of goods, that may have been legally obtained but subsequently not returned in response to a proper request Detinue deals with situations where the person is wrongfully retaining the goods Examples: Borrowing someone's lawnmower and never giving it back Remedy: Forced sale (which is the equivalent of damages calculated at the time of trial as this is a continuing tort) If your good is appreciating in value, you want to sue for this as the trial could take months or use and allows the item to appreciate in value to award you more

Question 34

The three torts involving wrongful interference with goods

Answer 34

1) Trespass to chattels 2) Conversion 3) Detinue

Question 35

False Imprisonment

Answer 35

LO 4.6 Contrast the torts of false imprisonment, malicious prosecution, private and public nuisance, defamation, and injurious falsehood

Question 36

False Imprisonment Definition (including false arrest) not in criminal case but civil case

Answer 36

holding people against their will and without lawful authority The second requirement is that the restraint be unlawful

Question 37

Malicious Prosecution Very rare in Canada and not successful

Answer 37

a tort action based on criminal or quasi-criminal prosecution motivated by ill will toward the accused and lacking reasonable evidential grounds for proceeding the plaintiff must establish that the prosecution was motivated by malice and that there were no reasonable grounds to proceed with the criminal action in the first place.

Question 38

Private Nuisance

Answer 38

the use of property in such a way that it foreseeably interferes with a neighbour’s enjoyment of her property Examples: When a commercial building, such as a mill, is built near a residential neighbourhood, and the resulting odour and noise interfere with the neighbours’ enjoyment of their yards, it is appropriate for them to sue for nuisance

Question 39

When to file a nuisance claim Where the plaintiff claims interference with the use or enjoyment of his or her land, she will need to establish that this interference was

Answer 39

(1) substantial and (2) unreasonable in light of all the surrounding circumstances

Question 40

CASL

Answer 40

Canada’s Anti-Spam Legislation

Question 41

Public nuisance

Answer 41

unreasonable interference with public property or creating conditions that negatively affect a community or a considerable number of people Examples: Protesters blocking a road or park or a mill polluting a river

Question 42

Defamation definition

Answer 42

a derogatory, false statement published to a person’s detriment general damages in defamation are not capped (meaning they can cost a lot of money) 5 part test to prove 1) derogatory (cannot be flattering) 2) must be false 3) Published (transmitted to 3rd party + word of mouth) 4) Refer specifically to plaintiff and not entire group) 5) Has to led to damages (Monic you are a crook (isn't damaging) but if Monic gets fired (now damaging)

Question 43

“to publish” something for defamation to take place

Answer 43

means that the statement had to be communicated to a third party. Publication could have occurred in a newspaper, in the broadcast media, on the internet, or simply by word of mouth

Question 44

Cyber libel

Answer 44

defamatory posts on the internet or published in emails; a statement that is untrue and damaging relating to another individual that is published digitally

Question 45

Slander (one type of defamation)

Answer 45

spoken defamation

Question 46

Libel (one type of defamation)

Answer 46

the written or more permanent form of a defamatory statement

Question 47

Once it has been established that a defamatory statement has been made, several defences are available to the defendant, such as:

Answer 47

1) Truth (Defense of justification) 2) Absolute privilege 3) Qualified privilege From Lecture: 4) Fair comment (what stops artists from suing critics) 5) Public interest - responsible journalism (public interest)

Question 48

1) Truth (Defense of justification)

Answer 48

the accuracy of a statement, applied as a defence to a defamation action;

Question 49

Justification

Answer 49

the truth of a statement, applied as a defence to a defamation action

Question 50

Innuendo

Answer 50

an implied statement that is detrimental to another

Question 51

2) Absolute privilege

Answer 51

exemption from liability for defamatory statements made in some settings (such as legislatures and courts), without reference to the speaker’s motives or the truth or falsity of the statement

Question 52

3) Qualified privilege

Answer 52

exemption from liability for defamatory statements made pursuant to a duty or special interest, so long as the statement was made honestly and without malice and was circulated only to those having a right to know

Question 53

Fair comment

Answer 53

a defence available when defamatory statements are made about public figures or works put before the public Examples: A food critic expressing a negative opinion of a restaurant and a cartoonist ridiculing a political decision or politician

Question 54

``` Injurious Falsehood (Product Defamation) ```

Answer 54

protects an interest in a person’s property, products, or business When a person spreads a false rumour that the wine manufactured by a competitor is adulterated with some other substance, or that a rival’s business is about to become bankrupt, they have committed an injurious falsehood

Question 55

Public interest responsible journalism defence

Answer 55

a defence to defamation excusing incorrect statements on matters of public interest where despite responsible journalism, erroneous statements were made

Question 56

Injurious falsehood, trade slander, and product defamation are different names for the same __________

Answer 56

tort

Question 57

To succeed with this action, the plaintiff must prove: Building off slide 56

Answer 57

(1) a false statement was made by the defendant, disparaging the plaintiff’s business, goods, or property; (2) it was published to a third person; (3) maliciously and without just cause or excuse; and (4) it resulted in special damages in the form of pecuniary loss

Question 58

Successfully Establishing a Tort Claim

Answer 58

See Table 4.1 Simplified Ingredients for Torts for a breakdown of all torts covered so far

Question 59

Other Torts Impacting Business

Answer 59

LO 4.7 Delineate the following torts: inducing breach of contract, unlawful interference with economic relations, conspiracy to injure, fraudulent misrepresentation (deceit), passing-off, misuse of confidential information, and intrusion upon seclusion

Question 60

Inducing Breach of Contract definition

Answer 60

encouraging someone to break her contract with another usually involves an employer persuading an employee of another business to leave that employment and work for him. more common when that employee has special knowledge about trade secrets or customer lists

Question 61

Examples of improper interference in business and unfair competition include

Answer 61

one business seeking confidential information from the employees of another, intimidation to discourage someone from opening a business in an area, or one business positioning its employees near the door of its competitor to redirect customers to the first

Question 62

Unlawful interference with economic relations definition example: bribery

Answer 62

a tort consisting of unlawful competitive practices, such as inducing breach of contract Must be some other unlawful conduct associated with the complain such as bribery or defamation

Question 63

“unlawful means” tort

Answer 63

an intentional tort that allows a plaintiff to sue a defendant for economic loss, resulting from the defendant’s unlawful act against a third party; also known as “intentional interference with economic relations”

Question 64

Intimidation *business tort

Answer 64

a threat to perform an illegal act that is used to force a party to act against its own interest Example: Illegal strike

Question 65

Intentional infliction of mental suffering

Answer 65

a tort constituted by harassment or deliberate acts or pranks that cause nervous shock Example: Harassing an ill employee for justified absences, after he has already been given notice of termination or the improper activities of a collection agency, including harassment and the threat of physical violence, to encourage repayment of a loan

Question 66

Deceit (Fraudulent Misrepresentation)

Answer 66

the fraudulent and intentional misleading of another person causing injury; This is where one person lies to another, causing loss One of the few situations where the court will entertain an application for punitive damages

Question 67

Conspiracy to injure definition *aspects of collude / collusion

Answer 67

the coordinated action of two or more persons using illegal or improper methods to harm the business or other interests of another Example: When a group of employees work together to get another employee fired, a conspiracy is involved For there to be a conspiracy, however, there must be an agreement to act in concert (either lawfully or unlawfully) with the purpose of harming the plaintiff

Question 68

Passing-Off definition Example: Fake purses, watches, knock-offs

Answer 68

the tort of misleading the public about the identity of a business or product Examples: When imitation Rolex watches are sold as the real thing, or when a restaurant adopts the golden arches logo leading the public to believe it is part of the McDonald’s chain when it is not

Question 69

Confidential information

Answer 69

private information, the disclosure of which would be injurious to a business; a type of intellectual property

Question 70

Misuse of Confidential Information

Answer 70

Key employees, agents, and others who do business with that company have a duty not to disclose its confidential information to others or to use it for their own purposes. Persons can be sued where they fail in that duty Occurs when: 1) Information was confidential in nature 2) The information was given in confidence 3) It was misused by the person to whom it was conveyed

Question 71

A fiduciary duty

Answer 71

arises when one party places a considerable amount of trust in another, making himself particularly vulnerable to any wrongful actions of that trusted party

Question 72

Privacy

Answer 72

LO 4.8 Detail how privacy is protected in Canada

Question 73

Privacy Definition

Answer 73

the right to be let alone; to protect private personal information; and to be free of physical intrusion, surveillance, and misuse of an image or name Examples: physical intrusion, surveillance, misuse of an image or name, or access to information Until recently there was no common law tort of invasion of privacy

Question 74

The federal Privacy Act

Answer 74

gives people the right to access their personal information held by the government and government agencies and severely restricts how that information can be disseminated to others

Question 75

The Personal Information Protection and Electronic Documents Act (PIPEDA)

Answer 75

applies to personal information held by private organizations It applies in all jurisdictions in Canada requires private organizations to account for their activities; identify the purposes for which the information is being collected; inform and get the consent of the individuals involved; and limits the use, disclosure, and retention of the information

Question 76

Canadian Standards Association (CSA)

Answer 76

The CSA code, entitled the Model Code for the Protection of Personal Information,” sets out 10 privacy protection principles

Question 77

Evolution of Tort Law

Answer 77

The tort of intrusion upon seclusion, for example, is recognized in the United States and has been recently asserted in Ontario (Jones v. Tsige) Similarly, the tort of spoliation is finding its way north of the border

Question 78

Spoliation

Answer 78

currently refers to the intentional destruction of relevant evidence when litigation exists or is pending

Question 79

Online Torts

Answer 79

LO 4.9 Identify issues surrounding torts committed in the online environment

Question 80

Product defamation

Answer 80

Is where someone attacks the reputation of another person's product or business