Chapter 4: Intentional Torts and Torts Impacting Business Flashcards
When has a tort been committed?
When one person harms another, either intentionally or carelessly, a tort has likely been committed
The Nature of Torts
LO 4.1 Describe the role of tort law as distinct from criminal or contract law
Tort definition
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
Injunction
a court order stopping certain conduct
punitive damages definition
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
Purpose of tort law
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.”
Crimes definition
Crime definition
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.
Crimes vs Torts
Crimes:
-carried out by the criminal court to punish the wrongdoer
Torts:
- intended to compensate the victim
- Considered a private matter
Can wrongful conduct be both a tort and a crime?
Yes sir
Is it easier to sue on tort or crime?
Torts, as the standard of proof is based on a “balance of probabilities” opposed to “beyond a reasonable doubt,”
Breach of contract
failure to live up to the terms of a contract
Two categories of tortious activity
Two categories of torts
1) intentional (or deliberate)
2) Unintentional (careless)
One important difference between deliberate
torts and negligence is in the remedies that the courts are willing to grant to the injured party
When the interference has been intentional, the
courts may be persuaded to grant punitive damages in addition to the more common general and special damages
General damages definition
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).
Special damages definition
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
Punitive or exemplary damages
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
Vicarious liability
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
Intentional Torts
LO 4.2 Identify remedies awarded to redress torts
Recall Intentional Torts
where the conduct involved was intended or deliberate
Trespass to Person: Assault and Battery
LO 4.4 Distinguish the torts of assault, battery, and trespass to land, listing the relevant defences
Assault and Battery (aka trespass to person)
intentional physical interference with another person;
Assault definition
‘Credible threat and not the contact’
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
Battery
‘the actual physical contact’
unwelcome physical contact; deliberate, non-consensual physical interference to someone’s body
“the least touching of another in anger is battery.”
The test to determine whether an assault has taken place
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
There are several defenses that can be raised against an assault or battery claim.
Discussion starts after these slides
Consent
1 /2 defenses to assault and battery
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
Self-defense
1 /2 defenses to assault and battery
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
Trespass to Land
Intentional tort
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
Continuing Trespass
Continuous trespass
a permanent incursion onto the property of another
Trespass to Chattels, Conversion, and
Detinue
LO 4.5 Describe three torts that deal with wrongful interference with goods (chattels)
Trespass to chattels
Chattel = personal property
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.
Conversion
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
Detinue
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
The three torts involving wrongful interference with goods
1) Trespass to chattels
2) Conversion
3) Detinue
False Imprisonment
LO 4.6 Contrast the torts of false imprisonment, malicious prosecution, private and public nuisance, defamation, and injurious falsehood
False Imprisonment Definition (including false arrest)
not in criminal case but civil case
holding people against their will and without lawful authority
The second requirement is that the restraint be
unlawful
Malicious Prosecution
Very rare in Canada and not successful
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.
Private Nuisance
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
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
(1) substantial and
(2) unreasonable in light of all the surrounding
circumstances
CASL
Canada’s Anti-Spam Legislation
Public nuisance
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
Defamation definition
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)
“to publish” something for defamation to take place
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
Cyber libel
defamatory posts on the internet or published in emails; a statement that is untrue and damaging relating to another individual that is published digitally
Slander (one type of defamation)
spoken defamation
Libel (one type of defamation)
the written or more permanent form of a defamatory statement
Once it has been established that a defamatory statement has been made, several defences are available to the defendant, such as:
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)
1) Truth (Defense of justification)
the accuracy of a statement, applied as a defence to a defamation action;
Justification
the truth of a statement, applied as a defence to a defamation action
Innuendo
an implied statement that is detrimental to another
2) Absolute privilege
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
3) Qualified privilege
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
Fair comment
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
Injurious Falsehood (Product Defamation)
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
Public interest responsible journalism defence
a defence to defamation excusing incorrect statements on matters of
public interest where despite responsible journalism, erroneous
statements were made
Injurious falsehood, trade slander, and product defamation are different names for the same __________
tort
To succeed with this action, the plaintiff must
prove:
Building off slide 56
(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
Successfully Establishing a Tort Claim
See Table 4.1 Simplified Ingredients for Torts for a breakdown of all torts covered so far
Other Torts Impacting Business
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
Inducing Breach of Contract definition
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
Examples of improper interference in business and unfair competition include
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
Unlawful interference with economic relations definition
example: bribery
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
“unlawful means” tort
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”
Intimidation
*business tort
a threat to perform an illegal act that is used to force a party to act against its own interest
Example: Illegal strike
Intentional infliction of mental suffering
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
Deceit (Fraudulent Misrepresentation)
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
Conspiracy to injure definition
*aspects of collude / collusion
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
Passing-Off definition
Example: Fake purses, watches, knock-offs
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
Confidential information
private information, the disclosure of which would be injurious to a
business; a type of intellectual property
Misuse of Confidential Information
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
A fiduciary duty
arises when one party places a
considerable amount of trust in another, making himself particularly
vulnerable to any wrongful actions of that trusted party
Privacy
LO 4.8 Detail how privacy is protected in Canada
Privacy Definition
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
The federal Privacy Act
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
The Personal Information Protection and Electronic Documents Act (PIPEDA)
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
Canadian Standards Association (CSA)
The CSA code, entitled the Model Code for the Protection of Personal Information,” sets out 10 privacy protection principles
Evolution of Tort Law
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
Spoliation
currently refers to the intentional destruction of relevant evidence when litigation exists or is pending
Online Torts
LO 4.9 Identify issues surrounding torts committed in the online environment
Product defamation
Is where someone attacks the reputation of another person’s product or business
