LAWS 207 - Contract + Tort Law PT1 Flashcards
What is a tort
A type of civil wrong committed by one person against another
Define contract
A legally enforceable agreement between 2+ parties
How are torts/contracts within the paralegal scope?
Small claims deals with tort/contacts with claims up to $35,000
What are torts committed against
A person’s body, reputation, property or business interests
What is the purpose of tort law?
Discourages harmful action and provides victims with the ability to seek compensation from a wrongdoer regardless if the person had been punished criminally
What jurisdiction is property and civil rights law
Provinces
What are types of property and civil rights
Private rights, including torts and contracts
Cause of action
Set of factual elements that entitle a plaintiff to sue
Statement of claim
The document setting out the cause of action and supporting facts that a plaintiff typically prepares and files to initiate a lawsuit
Statement of defence
Document prepared and filed by a defendant in response to a statement of claim
Balance of probabilities
in civil cases, the burden of proof the plaintiff must meet to prove their, case specifically that it is more likely than not that the defendant committed the tort
What are intentional torts
The tortfeasor intends the conduct that gives rise to the tort
Other than with business torts this means that the tortfeasor only needs to intend to commit the physical act itself but does not necessarily need to intend to commit a wrong or to cause damage
What is negligence
Unintentional tort
A person that acts negligently does not commit an act intentionally but due to carelessness or recklessness.
Occurs when someone who owes you a duty of care acts unreasonably or carelessly and in doing so causes you reasonable foreseeable damages.
What are strict liability torts
The defendant may be held liable even if the defendant did not intend the conduct that caused harm to the plaintiff and did not act carelessly (thus was not negligent).
Assault - Intentional tort example
Swinging your fist at someone’s head, where the person sees the punch coming
Battery - Intentional tort example
Making contact with the person’s head
Intentional infliction of mental suffering - Intentional tort example
Harassing and humiliating someone in a way that causes them to suffer injuries
False imprisonment - Intentional tort example
Locking someone in a room against their will
Malicious prosecution - Intentional tort example
Calling the police and accusing someone of a crime for malicious reasons when you know they are innocent
Abuse of process - Intentional tort example
Suing your neighbor in order to harass her so that she’ll move
Two types of interference with real property
Trespass to land - eg person who entered another’s property with person but then refuses to leave (?really?)
Nuisance - eg noise, excessive shade, odours, and air pollution.
Trespass to Chattels
Interference with possessions other than land
Conversion
Wrongful possession of a chattel where the defendant exercises rights of ownership and prevents the actual owner from exercising those rights
Ex: stealing a friend’s laptop
Detinue
Wrongful possession of chattel that belongs to another
Ex: refusing to return your friend’s watch after being asked
Deceit
A defendant commits deceit when:
- they make false representation
- they know the representation was false
- the plaintiff relies on the defendant’s statement
- the plaintiff suffers a loss
Ex: lying to get a discount you are not entitled to
Defamation
Plaintiff must establish:
- the defendant’s words “lowered the plaintiff’s reputation in the eyes of a reasonable person.”
- the words specifically referred to the plaintiff
- the words were published
What are the different types of defamation?
Libel: a defamatory statement that is published or broadcast
Slander: an oral defamatory statement
What are defences to defamation?
Justification, absolute privilege, qualified privilege, fair comment, responsible communication.
(truth)
What is injurious falsehood
False statements harming a person’s products or services
What is slander of title
False statements regarding the plaintiff’s real property - form of injurious falsehood.
What is passing off
Deception of the public due to misrepresentation
Needs he existence of goodwill and actual or potential damage to the plaintiff.
Ex: knockoff purse with well known logo on packaging
What must be established to prove intimidation
- defendant’s intention to injure the plaintiff or third party
- defendant made a threat such that the plaintiff’s non-compliance would result in the defendant committing an illegal act
- as a result of the threat the plaintiff does something they wouldn’t have done otherwise
- the plaintiff or third party suffers damages
Inducing breach of contract
- plaintiff has a valid and enforceable contract with third party
- the defendant is aware of the existence of this contract
- defendant intended to and did procure the breach of the contract
- the plaintiff suffered damages as a result
2 conditions for unlawful means tort
- defendant uses unlawful means against a third party
- defendant intended to harm the plaintiff through the use of the unlawful means
Ex: burning your competitor’s supplier so that your business improves
2 types of conspiracy
Predominant purpose conspiracy - ex organizing a boycott of a store for the purpose of reducing its business
Unlawful means conspiracy - ex acting with others to break into and vandalize a store
What is a defence
Collected facts and method adopted by a defendant to protect against and counter a plaintiff’s action
True/complete defence
Defence that eliminates all liability
Defence - what must the defendant prove of their defence
All elements of the defence
Consent - forms + defence
Complete defence and may be express (written waiver or oral) or implied
Consent to sexual touching can be difficult to determine due to assessment of credibillity
Implied consent
If a plaintiff engages voluntarily in an activity in which contact is trivial and normal, the plaintiff has given implied consent to contact
Medical battery
Consent to medical treatment must be full and informed
Medical battery may occur where patients consent was never asked for, the patient was not competent to consent, or the patient consented without having a basic understanding of the treatment
Taylor v Hogan, 1994 CanLii 9740
Consent in sports
Implied consent - based on the rules of the game and waiver of the participants
R v Bertuzzi, 2004 BCPC 472
Defence of self, others or property - general
A person who injures another who is committing an offence against
What is self defence
Justifiable self-protection when a person reasonably perceives a threat and responds in a reasonable manner
Defence of others
Justifiable protection when a person reasonably perceives a threat to another person and responds in a reasonable manner
Defence of property
Justifiable protection when a person reasonably perceives a threat to their property and responds in a reasonable manner
Three requirements for self defence
Purpose - action taken in self-defence must be taken for the purpose of protecting the defendant from the plaintiff
Force - the defendant is not entitled to use more force than is necessary in the circumstances
Honest belief - defence has been successful where the defendant had an honest belief that the plaintiff was going to harm them even though this was not the case
What is provocation
Mitigating factor - a defence available to a defendant who was faced with a sudden actor insult that would make a reasonable person lose control
What must be proven for provocation
- objectionable conduct by the plaintiff
- the conduct affected the defendant’s self control
- occurred immediately prior to the defendant’s wrongful act, and
- provoked the defendant’s wrongful act
Defence of necessity
Rarely used. May relieve a person from liability for trespass or conversion if that person, having no alternative, harms another’s property in an effort to protect life or health.
Even when met they may still be required to compensate the plaintiff.
Proof needed for defence of necessity
- committed what would otherwise have been a tort against the plaintiff
- the act was committed to avoid more serious harm
Legal authority defence
Even though acts may have been tortious they were permitted by legal authority.
Full or partial defence, often used by law enforcement
What is a limitation period
Period defined by a statute within which a plaintiff must commence their action. Of the plaintiff does not bring his action in the required time frame the claim is “statute barred”
What is the discoverability rule
Allows a plaintiff to sue outside the limitation period where the information needed to support the suit was unavailable within the period.
Absolute privilege - defense to defamation
Statements made in a court, parliament or between spouses
Qualified privilege - defense to defamation
Statements made while fulfilling a duty, without malice and where the information is delivered in a way to minimize potential harm to plaintiff
Fair comment - defense to defamation
Used by individuals or organizations whose mandate is the dissemination of information to the public, content is based on fact, expressed as opinion and not motivated by malice
What is negligence
An unintentional tort where someone carelessly causes foreseeable harm to a person to whom they owe a duty of care
Ex: Driving carelessly in a parking lot and colliding with your classmate
What are the elements of negligence (5)
- Duty of care
- Standard of care
- Damages
- Causation in fact
- Causation in law
What must be proven for negligence (5)
- The defendant owed the plaintiff a duty of care
- The defendant breached the duty by acting in a way that fell below the standard of care
- The plaintiff suffered damages
- The plaintiff’s damages were caused in fact by the defendant’s breach
- The plaintiff’s damages were caused in law by the defendant’s breach
Duty of care
The plaintiff must prove that the defendant had an obligation to take reasonable care to keep the plaintiff safe from harm
What is the Anns Test
Two-pronged test used to determine whether a duty of care should be recognized in novel cases
Foreseeability and proximity
What is the standard of care
The standard, based on reasonableness, against which a person’s conduct will be compared in determining negligence
Focuses on the conduct of the defendant
What is the reasonable person test (4)
A person who…
Has reasonable skill, and ordinary intelligence, and acts with reasonable prudence but is not perfect.
How does the standard of care change with professionals and experts
They will be measured against the standard of a reasonably competent person in their field
Ex: a doctor’s conduct will be measured against the standards of a reasonably competent doctor
What is the standard of care of minors
Individual basis - depends on the action
Ex: A minor engaging in an adult activity like operating a motor vehicle will be held to the same standard as an adult
What types of damages can result of negligence
- personal injury (physical and psychological
- property damage (real and personal property)
- Economic loss (eg, due to slip and fall the plaintiff is unable to work)
What is causation in fact
Factual link between one person’s actions and another person’s damages
What are the two tests to prove causation
“But for” test
Material contribution of risk test
What must the court determine in order to determine the causation in law
Reasonable foreseeability and if it is too remote and not recoverable
What does the “crumbling skull” doctrine do
Intended to avoid putting the plaintiff in a better position than they were prior to the incident
Limitation periods - defenses to negligence
Claims filed after the limitation period are “statute-barred” (not actually a “defence”)
Voluntary Assumption of Risk - defenses to negligence
True defence that negates defendants liability based on the plaintiff’s understanding and acceptance of the risks
What must the defendant prove for the voluntary assumption of risk
- plaintiff understood and accepted the risk
- plaintiff understood that the defendant assumed no responsibility for the risk
- plaintiff must have communicate that he was giving up the right to sue in negligence
Illegality - defenses to negligence
True defence, plaintiff cannot profit from an illegal act
Contributory negligence - defenses to negligence
Partial defence, reduces the defendants liability on the basis of the plaintiff’s own negligence. If successful damages are apportioned among all negligent parties. Defendants who cause harm to a plaintiff are jointly and severally liable.
What are the goals of remedies in negligence law (4)
Compensation, deunciation, deterrence, punishment.
What are damages
The usual compensatory remedy
What are special damages
Damages that are known and described at the time of trial (eg. medical bills for treatment received)
What are general damages
Estimate damages unsupported by evidence of value (eg. future cost of medical care)
What are punitive damages
Awarded for denunciation and deterrence
What are aggravated damages
Awarded where the defendant’s flagrant actions caused severe harm
Major personal injury claims - damages
- assessment of damages can be complex
- damages may be required for future losses
- award must be adjusted for interest
How are remedies handled in fatal accidents
When a plaintiff dies as a result of a tort, his or her estate becomes the plaintiff in the lawsuit against the defendant
What are preventative remedies
Where the plaintiff seeks remedies for the prevention of future harm. Can include injunctions, declaratory orders, and ex parte orders.
What are injunctions
Court order that prohibits someone from doing some act or compels someone to do an act in order to prevent future harm.
What are declaratory orders
Declaring with the force of law a certain fact (ex a certain person has a certain legal right)
What are Ex Parte Orders
Defendant not before the Court often because of urgency
What are the subcategories of negligence (3)
- occupiers liability
- product liability
- liability attributed to commercial and social hosts
What is occupiers liability
The duty of care that those who occupy real property owe to those that enter the premisies
What is a occupier - occupiers liability act
- a person who is in physical possession of premises
- a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises
What are occupiers duty of care under the OLA
- general duty of care
- duty does not make occupiers liable for any and all injuries that occur on their premises
- occupiers may “ restrict, modify, or exclude” their duty by taking reasonable steps to bring the restriction, modification, or exclusion to the attention of entrants.
What is the duty to wrongdoers and those who assume risks?
Where a person enters the occupier’s property with the intention of committing a crime (eg. trespassing at night) the occupier does not have to take reasonable care but only had to avoid creating a danger with the deliberate intent of causing harm (ex: setting up a trap to injure a burglar)
Commercial host liability
- duty to take reasonable care to ensure guests get home safely and to protect people who may encounter intoxicated guests
- also applies to office hosts and their employees
Social host liability
Currently no recognized duty to protect guests or third parties
Categories of product liability (3)
- negligent design
- negligent manufacture
- failure to warn
Negligent design - product liability
- defendant must have acted reasonably in the circumstances
- use a “risk-utility” analysis to weigh the benefits and risks of a design
Negligent manufacture - product liability
- a product that was properly designed is defective because something went wrong in manufacturing
- tends to only affect specific batches of a product rather than the entire inventory
Failure to warn - product liability
Manufacturer has a duty to warn consumers of danger inherent in use of the product
What is strict liability
Liability imposed in limited circumstances even though no negligence or intentional tort occurred.
What must be established to succeed in a strict liability case
- defendant used property in a “non-natural” manner
- defendant brought something onto property that would likely have caused mischief if it has escaped
- the thing brought onto the land escaped
- foreseeable damage was caused as a result of escape
What are defences to strict liability (3)
- consent
- “default of the plaintiff” (based on plaintiff’s own actions)
- “act of god” (beyond human foresight)
What is vicarious liability
- a person may be held liable for the actions of another due to their relationship (often employer/employee relationships)
- required no proof of wrongdoing on the part of the person held vicariously liable
What questions identify vicarious liability (2)
- was the worker and employee?
- was the wrongful act done in the course of employment?
What is a limitation period
A period of time, defined by statute, within which a plaintiff must commence their claim
What is the relevant limitation act + period for tort actions
Ontario’s limitations Act, 2002 provides a basic limitation period of two years from discovery of the claim.
Insurance compensation schemes - impediments to tort actions
Legislation restricting the right to sue in certain circumstances in exchange for compensation through an insurance scheme (eg. ontarios no-fault automobile insurance system, civil actions arising from a vehicle collision are limited under the insurance act)
What is the purpose of tort remedies
To obtain compensation for the damages suffered
What are the types of monetary damages
Compensatory damages 9pecuniary, non-pecuniary, aggravated damages) and Punitive damages
What non-monetary remedies can be received as compensation for a tort
Injunctions, declaratory orders, ex parte orders.
