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Canadian Torts > Intentional Torts > Flashcards

Intentional Torts Flashcards

1
Q

Does Canada have specific Tort law like the US?

A

No

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2
Q

What is the main difference between Canadian and US Tort law?

A

Canada has different procedures, and has capped non-economic damages.

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3
Q

What results in liability for negligence? 4 things

A

o As a matter of law, the defendant owed the plantiff a duty of care
o This duty was breached by the defendant’s failute to do what the court determins was the appropriate level of care
o The breach caused damge or loss to the plaintiff, and
o The damage done was not too remote a consequence of the consequence of the breach

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4
Q

When does one person owe a duty to another?

A
  • A person is owed a duty of care to anyone of is closly affected by a person’s negligence if they reasonably ought to have that person in their contemplation
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5
Q

Can duties exist between people who do not have a contractual relationship?

A

yes

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6
Q

What is the 2 step test the court uses to determine if there is a new duty of care (one previously not recognized by the court). - Cooper test

A
  • First, one must ask if there is a sufficient relationship/proximity/neighborhood between the parties that in the reasonable contemplation of the defnedent, carlessness on the defendant’s part would be likely to cause harm to the plantiff – this would be a prima facie duty of care
  • If yes, then consider if there are any considerations which ought to reduce the duty owed
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7
Q

Are there damages for pure psychiatric harm?

A

Yes, but earlier there needed to be proof of physical damge

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8
Q

Is there now liability for psychiatric harm with no specific mental illness?

A

yes

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9
Q

Susan is pregnant, and is struck by a bus. Is the bus company liable for any damage done to her unborn child?

A

Depends. If the fetus does not survive, then there is no liability, because Canada does not recognize a fetus as a legal person. However, if the child is born with damage due to the collision, then the bus company would be liable for that damage

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10
Q

Do doctors owe a duty to unborn children?

A

No

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11
Q

When would a person in danger be liable to a rescuer?

A

court generally asks if the defnedent ought to have forseen that someone would likely attempt a rescue, and if the attempt was reasonable, and if harm occurred to the rescuer

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12
Q

What are the 4 questions court asks if it should limit a duty under the Cooper test?

A
  1. Was the defendant’s action the result of a policy decision of a public body?
  2. Is the defendant protected by statute or common law?
  3. Is the defendant excepted from liability by a “good faith” clause in statute?
  4. Is the relationship between parties so distant, or is the plaintiff unknown to the defendant so that it can be said that to impose liability would be unjust?
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13
Q

What are the 4 defences to negligence? provide examples

A
  • Contributory negligence
    o The plaintiff did something wrong too
    o Ex. A ATV passenger is injured. But, passenger refused to wear a helmet
    o Shared fault between parties
  • Voluntary assumction of risk
    o Asking for damage to be incurred
    o Ex. Consenting to receive a tattoo, skiing, scuba diving, skydiving
    o When yu voluntarily engage in a dangerous activity
    o
  • Illegality
    o Operates to deny a claim that would subvert the legal system
    o Ex. A gas station vending machine is leaking, but it is left unattended. Then someone breaks in and slips on the liquid
    o Should we benfit people for their illegal activities?
  • Inevitable
    o Accidents beyond the defendant’s control
    o Acts of god
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14
Q

What is the standard used to determine if conduct is a breach of duty?

A

a “reasonable person” standard. How a reasonable person would have acted in the circumstance

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15
Q

Does a statutory violation automatically mean conduct was negligent?

A

No

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16
Q

When will a reasonable person standard not be used?

A

When a person is operating in a field of expertise. In that situation, they would be judged against what would be expected of a reasonable practitioner

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17
Q

What duties do children owe?

A

Only what would have Benn expected of a reasonable child of the same age

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18
Q

What dues do mentally incompetent people owe?

A

They only owe duties if they are apple to appreciate that the duty exists

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19
Q

what is gross negligence?

A

a very marked departure from the standards which reasonable and competent people govern themselves

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20
Q

Does Canadian negligence use a but for test for the element of cause in fact?

A

yes

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21
Q

What are the 5 elements of negligent misrepresentation?

A
  1. A duty of care based on a special relationship
  2. A misleading misrepresentation
  3. Negligence in making the misrepresentation
  4. Reasonable reliance on the misrepresentation
  5. Damage caused by the reliance
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22
Q

Is forgeability and an omission to prevent harm a breach of duty?

A

No. There must also be a relationship of proximity

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23
Q

What are the 4 components of causation?

A
  1. Defendant owed plantiff a uty of care
  2. Defendant failed to discharge its duty of care by breaching the standard of care expected of a reasonably prudent individual
  3. Plaintiff suffered damages ofr the injury
  4. Damages/injury were factually and legally caused or materially contributed to by the breach of standard care
    - Generally causation is established when it is determined that a foreseeable injury would not have happened but for the substandard conduct of the plantiff
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24
Q

What is material contribution?

A

When multiple parties negligently harm another, but it is unclear who actually inflicted the harm

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25
Q

Is a reverse onus on the defendants to disprove they were a material contribution to the harm appropriate?

A

According to Snell case, no

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26
Q

Where the but for test is unworkable, does the plaintiff need to prove that only one defendant was responicble?

A

No

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27
Q

What are the 2 components of the material contribution test?

A
  1. It must be impossible for the platiff to prove that the defendant’s negligence caused the plaintiff injury using but-for – due to factors beyond the plantiff’s control (ex. scientific knowlage limits)
  2. It must be clear that the defendant breached a duty of care awed to the platiff, exposing the plantiff to an unreasonable risk of injury, and the plantiff must have suffered that form of injury.- the plantiff injury must falls within the ambit of risk created by the breach
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28
Q

Is the material contribution test used for determining factual causation?

A

No. It’s only used for legal causation, if there is a sufficient relationship between parties in order to impose liability

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29
Q

What are the 3 alternatives to the but-for test?

A
  1. Multiple negligent defnedent’s rule
  2. The leanred intermediary rule
  3. The informed consent rule
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30
Q

What is the learned intermediary rule?

A

if a defendent engages in negligence, then a third party comments an inemendent act of negligence that results in the harm to the plantiff. If the intervening third party act was foreseeable, then the defendant will be liable. If the intervening act was not foreseeable, then there will be no liability

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31
Q

What is the exception to forgeability?

A

Thin skull rule. Even if a decedent cannot forsee that their actions will harm the plaintiff, but it does due to an unknown medical condition ,the defendant will still be liable

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32
Q

What does res ipsa loquitur mean?

A

it speaks for itself

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33
Q

What is remotness/

A

If harm is too far removed form the acts of the defendant, the defendant will not be liable

34
Q

what are the 3 main defences to negligence, and what do they focus on?

A

o 1. Contributory negligence
o 2. Consent
o 3. Illegality

focus on the conduct of the planitff

35
Q

When does contributory negligence happen and what is its effect?

A
  • Arises when the plaintiff fails to exercise reasonable care and this failure is the casue of the injury

used to be a complete bar, but now only reduced damages

36
Q

What is the test for contributory negligence?

A

is whether the plaintiff behaved as a reasonable person would have in the situation, with the same capacities as the palntiff – therefore reasonable foreseeable

37
Q

What is the defence of consent?

A

If the plaintiff consented, then there is no harm done. Operates as a complete defecne

38
Q

Can consent be implicit and explicit?

A

yes

39
Q

what is the general test fr waivers?

A

If the planitff genuinely understood and appreciated the waiver, it will be upheld

40
Q

What is the defence of illegality? give an example

A
  • If the plantiff was performing an illegal act at the moment the defendant was negligently injured, that can be a defnece
  • Ex. driving a car while intoxicated, and hits another drunk driver
41
Q

What are the 5 things that will generally void a waiver?

A
  1. The signer through no carlessness on their part is mistaken as to the document’s nature and character.
  2. Fraud of misrepresentation
  3. Objective lack of consensus – where is is unreasonable to belive that the signer assented to the terms
  4. If the contract was formed in unconscionable circumstaces
  5. Overriding public policy
42
Q

Difference between joint and severable liability?

A
  • Joint Allows for a plaintiff to recover the entire claim form one of several negligenct defendents - joint
  • Several is when a defendant is only liale for the damge they are responcible for
43
Q

Difference between Ontario and BC rule?

A
  • In Ontario libilty is joint and several regardless of fault
  • In BC, it’s broken down. If the plantiff is found contributory negligent, they then the liability is several only
44
Q

Where in Canada are waivers void outright?

A

Quebec

45
Q

when is a waiver unconscionable?

A

when the parties are on unequal footing

46
Q

How does battery work?

A
  • Battery involves the direct application of force to antoehr person
  • Once the plaintiff establishes that the force was applied without consent, the burden shifts to the defendant to establish a lack of intention, or negligence – that the contact occurred without fault
47
Q

How does assault work?

A
  • Assault is generally thought of as a nincomplete battery – as a result the defednent doesn’t actually strike the victim, but does instil a reasonable fear that they will be struck or otherwise physically harmed
  • Unlike Battery, an Assault can only occur if the victim is aware that something is happening
    must be an act that would inspire fear in a person of ordinary courage
48
Q

How does false imprisonment work?

A
  • False imprisonment/arrest involes the unlawful restraint of antoehr person’s freedom of movement – this requires the complete prevention of the victim from going where they wish
  • The “false” element means not fraud, but that the defendant has acted without lawful excuse or justification – the imprisonment was wrongfully done
49
Q

When is intentional infliction found?

A

when the defendant’s condict was flagrent, outrageous, intentional, or calculated to cause the effect it produced
- Proof of a sustained pattern of behavior will strengthen a claim
- While greif, worry, anguish and emotional distress will be insufficient for a claim ,the plantiff does not need to prove they have a recongized psychiatric illness – they only need to to demonstrace a visible and provable illness

50
Q

What determines if a young person will be fund liable?

A

the wrongdoer must have had the capacity to understand what they were doing and form the required intent for he tort
o The closer a perpetrator is to the age of majority, the more likely tier actions will attract lliability

51
Q

Will people with mental disorders be exempt from liability?

A

o Defendents suffering form mental disorders may be except from liability
o This is dependent on of their mental condition prevented them from forming the intent to injure the victim, or understanding the nature of their actions

52
Q

For intentional torts, does the planitff have to desire a specific outcome?

A

yes

53
Q

When does defamation occur?

A
  • Occurs when a defendent:
    o makes a statement
    o That injuriously affects the reputation or lowers ordinary people’s opinion aobut the plaintiff
54
Q

What are the defences for defamation?

A

o Qualified privillage
o Fair comment
o Respioncible communicaton in public interest

55
Q

What is the difference between liable and slander?

A
  • Libel
    o Defamatory statemnts that are written or in permanent form
  • Slander
    o Spoken statements or those that are more transitory in nature
56
Q

When are slander and libel generally actionable?

A
  • Liable is actionable per se with no evidence needed that the plantiff had endured any damage
  • Slander is not generally actionable without proof of “special damage” – a material loss distinct form the damage to the plantif’s reputation that would ordinarily be sustained by the victim
57
Q

What are the 3 elemtns to defamation, and their detials?

A

a. Defamatory statemtn
i. A statement will be defamatory if it tends to make ordinary people think less of the plaintiff. This can include almost anything fomr allegations of criminal activity, dishonesty and so on
ii. Courts will consider community stnadards to determine if a statement is defamatory. Ex. in a Muslim community, it might be considered defamatory to alledge that a person has lost their virginity before marriage
iii. Courts also consider the context of the statement being made and the mode in which it is publishedsome statemtns will be defamatory on their rface whereas others are impolicit through “legal inuendo”
iv. Whether or not a statement is cpable of being defamatory is amatter of law
b. Reference to plantiff
i. The alleged defamatory statement must refer to the plantiff in some way
ii. Statements are only defamatory if they apply to a particular person
iii. A non-obvius attack on a platiff wuldo nly be actionable if people reasonable and legitimately associated the statement with the plantiff. Ex. not reffering to a specific restuanrt that has bad food wouldn’t satisfy this requirement
iv. “class defmation” can ppose issues. Ex. “all lawyers are jerks” is difficult. If the category of persons is very large, then no member of the group can sue even if the stamtne is defamatory. Ex. in a case, the SCC dismissed a class action suit by Montreal Cerole and aArabic taxie drivers after statements were made that they were dishonest. Given the size of the group (100) this was too manypeople
v. But, if a group is small enough, it could be that evey member of that group is able to sue
c. Publication
i. Publication of derogatory statmes are absoluty required
ii. A defamatory statement is not actioanlbe unless it is ulbied
iii. Publication does not rewuire publication to the entire world – it only requires publication to any person other than the plaintiff. A publication to the spuse of the planitff would crete a potentially actionable situation, but not to that souse directly
iv. Making a defamatory statmet on a website is genrally considered to be published
v. Publication may be considered unintentional wen a defednetn is speaking to the planitff and is overheard by a third party. In this case there is no action unless the defendant was negligent in not realizing that he converstation might be overheard

58
Q

Can a person’s estate sue for defamation?

A

No. Only living people (and corporations) can sue for it

59
Q

Can the government sue for defamation?

A

no

60
Q

What is the defence of justificaition for libel?

A

a. Justification
i. Once a planitff has proven that the defnedents statements werte defamatory, the statmens will be presumed to be false
ii. The defnedent can then raise the defnece of justifiaciotn – sometimes called the defnece of truth
iii. If the defendant can prove that the statements are true, then they will not be actionable, even if thery were harmful. The idea is that the planitfplaitiff is not entitled to a better reputation than what they’ve done
iv. The defnece of justification is a heavy burden of fthe defnedent. It is not enough to prove that they honestly bellived the statements tobe true when they made them
v. Defendents will not sucsesd even if they prove thatg the information was literally true if they created a flase impression
vi. This defnence can also redult in the allegation being “doubled down” because of this defnece is unsucsessful, they can be charged again with making another defamory statement by virtu of making their defnece

61
Q

What are the defences of absolute and qualified privilege for libel?

A

i. There are 2 kinds of privillage
1. Absolute
a. This grants protection to the defamer even if they are deliberately tlling somrh=thing untrue about the party defamed, even if they are goingout of their way to defame
b. This is limited to important govenrental functiosn such as judges and polititiions when in political debate
2. Qualified
a. The defamer is proteted only if they ereee acting without malice
b. This is granted when the speaker has a duty to make the statement and the recipient has a duty to revice it. This applies to chrachter or credit reffernces, or when the defendant is under a legal obligation to make such statmens. Ex. a teacher reporting suspected child abuse.
c. Qualified privillage will be lost if the defnedent engages in “over publication”. Publishing more than is necessary for the protected communication
d. Qualified privillage may be revoked if it is proven that the speaker acted with lalice which must be proven by the plaintiff

62
Q

What does the defendant have to show to use the defence of responsible communication on matters of public interest for libel?

A

defnednt must establish that the matter was of public interest and that the publication nwas “responcible” – meaning that the ublisher was dillignt in attempting to verify the alleged defamtatory remarks

63
Q

What is the defence of fair comment?

A

i. Fair comment applies to statmens of the defedents opinon
ii. The defendant must show that the statement in question was a comment (as opposed to an allegation of fact) that anyone could honestly express based on underlying facts that are true and pertain to public interest
iii. Fair comment will not protect things of a private concern or are of very limited interest
iv. Fiar comment will be unalvalilbe of it is proven that the defnednet acted with malice
v. However, the comment need not be “fair” so long as it reflects a belif that antone could honestly hold

64
Q

For libel are damages presumed?

A

yes - financial loss directly attributable to the publication

65
Q

What is the scienter doctrine?

A
  • Basedo n the premise that a person who chooses to keep an animal that is known to be dangerus should bear the ocst of any damage that animal does
66
Q

What is the distinction between wild and domesticated animals?

A
  • There is a districiotn between wild (ferae) and domesticated (mansuetae) animals
  • Wild animals invlide species that are not native to Canada, and those that are notive, but haven’t been domesticated
  • Domesticated animals invcludeds animals that are recularly kept as pets and those commonly found on Canadian farms
67
Q

Is the distinction between wild and feral determined per animal or per species?

A

Per species

68
Q

What are the 3 elemtns of scienter?

A

o The defedent owned/possessed the animal that caused the plaintiff’s loss
o The animal had a dangerous propensity, and
o The defedent knew of that propensity

69
Q

Are domesticated animals presumed to be harmful?

A

No. Thye are presumed harmless unless proven otherwise, and to succeed, the plaintiff must prove that the animal owner knew their animal was dnagerous

70
Q

What is trespass to cattle?

A
  • Tort of trespass invoes a direct phuscial act against another perons’s chattle
  • It is not nessessary to establish damge to the chattle, but such proof an increase the reward
  • Trespass to goods can be established by the iproper handling of chattles, depriving the planitff of possession of a chattle for some time, damaging the chattle, or sometimes completely destroying the chattle
71
Q

Is trespass to chattle intentional or negligent?

A

it can be either or both

72
Q

Is mistake an excuse for trespass to chattle?

A

no

73
Q

What is vicarious liability?

A
  • Vicarious liability is a relationship where the liability of one person will automatically transfer onto another entitiy, such as from an employee to an employer
  • It is indirect liability
74
Q

What 2 things need to exist for the imposition of vicarious liability?

A

o A sufficiently close relationship between the tortfeasor and employer, and
o The tort must be sufficiently connected to the conduct authpirzed by the employer

75
Q

Is there a universal test to determine if there was a sufficiently close relationship between tortfeasor and employer?

A

No

76
Q

What is the main test for a sufficiently close relationship for employer liability?

A

whether or not the presumed employer had control over the employees activities. So, there is no need to prove an actual contract between the parties, or even compensation. A volunteer if sufficiently controlled could confer vicarious liability upon the controlling entity

77
Q

What is the other test for employer liability?

A

o Was the person engaged performeing services as a person in buissness on their own account? To determine, control is one of a few factors. Also consider if the worker hires their own employees, and degree of finaincial risk they take

78
Q

What group has court determined are not employees for employer liability?

A

franchisees, union members and so on are contractors and not employees ofr the puporses of viacarius liability

79
Q

When will the conduct be sufficiently close for employer liability?

A

o acts authorised by the emplpyer, or
o unauthoirized acts that are so connected with acts that the emplpyer has authoirzedthat they might be regarded a modeds of doing what was authorized, this is fulfilled if the unauthoirzed act is
 negligent
 fraudulent
 an intentional tort committed in an attempt to perfrom the contract of the employment

80
Q

Can an employer be liable for a contractor?

A

depends. a employer of a contractor can be liable if there was nelgieence in the selection of the contractor, if the employer failed to appropriately supervise the contractor or if an act authorized by the employer was itself torteous – this is direct and personal liablity

81
Q
A

Canadian Torts (1 decks)

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