Quiz 1 - Oct 1.2021

Question 1

Why have certain societies chosen to organize their legal rules in the form of a comprehensive written code

Answer 1

Imposing certainty on the law
Organizing the law
Making the law readily accessible to anyone who can read.

Question 2

If the Charter does not apply to contracts between private individuals, why must we learn about it in a book about contracts and torts?

Answer 2

Because many contracts are not between private individuals, and may be made in the context of government action. For example, the Charter would apply to a government’s supply-tendering process and would prohibit the violation of Charter rights within that process.

Question 3

List at least three reasons that have led individual branches of contract or tort law to be codified into statute form.

Answer 3

1. Codification is required to address/support a shift in societal values and government priorities with respect to a topic.
2. The common law has evolved inelegantly or poorly, with internal contradictions, entrenched ambiguities, or other flaws.
3. The government wishes to “overrule” an area of the common law.

Question 4

How do common law case decisions influence statute law?

Answer 4

First, common law doctrines often form the basis of codified statutes. Second, common law decisions made under statutory provisions help to interpret, clarify, narrow, or expand the application of those provisions.

Question 5

Why is the common law different in various common law jurisdictions—for example, why does the Canadian common law differ in some ways from the British common law?

Answer 5

Because common law is governed by the rules of precedent, it evolves differently in each jurisdiction into which it is imported because the fact situations that arise in each jurisdiction and that judges must address are different. As cases based on unique facts accumulate, the common law tends to diverge in each common law country.

Question 6

What factors does the Crown typically consider when deciding whether or not to charge and prosecute an offence?

Answer 6

How serious was the wrong?

How easy will it be to prove?

Is charging/prosecuting important to protect the public?

Does the offence merit public vindication for the victim, or punishment for the offender?

Question 7

What factors does a plaintiff typically consider when deciding whether or not to sue in tort over harm suffered?

Answer 7

How substantial are the damages?

How difficult will the harm be to prove/what is the likelihood of success?

How much money and effort will need to be spent to litigate, and is it worth it when compared to the damages and prospects for success?

Will bringing a lawsuit lead to a chance of settlement out of court?

Are there any factors, such as moral vindication, that make a lawsuit worthwhile?

Question 8

Why do certain statutes seek to impose limits on freedom of contract?

Answer 8

Sometimes, one party in a contract (often the consumer) has much less bargaining power and/or sophistication than the other party. This creates the potential for contracts to be drafted inflexibly and unfairly against the weaker party. To offset the potential for exploitation, governments have stepped in to regulate certain contracts by imposing certain limits on the freedom of contract.

Question 9

Place the following levels of intent in order on the spectrum, from highest to lowest:

• recklessness
• vicarious liability
• transferred intent

Answer 9

Transferred intent
Recklessness
Vicarious liability.

Question 10

How does a court determine whether a defendant is in breach of his or her duty of care?

Answer 10

This determination is made by comparing the defendant’s actions to an appropriate standard of care; the usual standard is the standard of the reasonable person.

Question 11

List at least one form of harm that is not compensable under the law of tort.

Answer 11

Emotional harm that falls short of diagnosable psychiatric disorder—for example, a “broken heart” is not compensable in tort.

Question 12

If a person owes a duty of care to another and breaches that duty of care, but no harm actually results, can he or she be sued for the breach?

Answer 12

No. Even though the purported defendant has breached his or her duty in this case, there was neither harm nor causation—two essential elements in a tort claim.

Question 13

Can a defendant owe a duty of care to someone that he or she has never met? How?

Answer 13

To find a duty of care, the law requires simply that the tortfeasor be able to reasonably foresee harm to another person as a result of his or her actions. There is no requirement that the tortfeasor intend or foresee harm to any particular known person, just the potential for harm to any person.

Question 14

Define what constitutes a “breach” in the context of tort law.

Answer 14

Breach in tort law refers to the breach of a duty of care, and is the defendant’s failure to discharge his or her duty of care to an acceptable standard of care.

Question 15

Explain the difference between direct intent and transferred intent.

Answer 15

Direct intent describes a situation in which the target and the victim of a tortfeasor’s actions are the same. Transferred intent describes a situation in which the tortfeasor’s actions harm someone or something other than the intended “victim.”

Question 16

Explain how the concept of “those who profit must pay” underlies most forms of vicarious, strict, and/or absolute liability in modern tort law.

Answer 16

Vicarious, strict, and absolute liability can in some circumstances be imposed where the tortfeasor did not intend harm and where he or she may have had little or no knowledge of the harm.

However, in most cases where these tortfeasors are found liable, they stood to profit economically from the harm; for example, in a vicarious liability case, a tortfeasor employer may be held liable for the harmful actions of his employee because the employee’s work benefits the employer, and the harm occurred in the process of creating that benefit.

Question 17

Is nuisance an intentional tort or a form of negligence? Explain.

Answer 17

Nuisance can be either—or neither—an intentional tort or negligence. It is different from many other torts because intention is not an important element; instead, liability in nuisance is driven almost completely by the issues of causation and harm, and the intention of the tortfeasor is often irrelevant.

Question 18

Is there a tort of invasion of privacy in Canada? Explain.

Answer 18

While a few cases have attempted to create one, there is not one according to the current law.

Question 19

If you answered “no” to question (a), how might a Canadian plaintiff obtain legal redress for an alleged invasion of privacy?

Answer 19

A plaintiff who feels that his or her privacy has been invaded may, where legislation applies, bring a complaint to a privacy commissioner under privacy legislation. In situations where no such legislation applies, the plaintiff may have a remedy in some other tort—for example, defamation, or possibly, depending on the facts of the case and how the law unfolds in that area, “electronic trespass.”

Question 20

What is meant by the suggestion that courts have been conservative in applying the doctrine of intentional infliction of mental suffering?

Answer 20

When the tort was first introduced, some critics questioned the wisdom of allowing recovery for “mental anguish” because that state is difficult to define and establish objectively. However, courts have taken a strict approach to the tort, and have required that the plaintiff lead evidence, usually medical evidence, establishing measurable harm to physical or mental health.

Question 21

What is the rationale for restricting the availability of recovery on the basis of intentional infliction of mental suffering?

Answer 21

The rationale for restricting recovery is to protect defendants against frivolous and vexatious claims based on mild or transient emotional upsets.

Question 22

Compare and contrast the torts of slander of goods and passing-off.

Answer 22

Both slander of goods and passing-off are torts committed in the hope of selling more of one’s own products; however, they involve very different approaches.

In slander of goods, the defendant attempts to gain a greater market share by devaluing the plaintiff’s goods in the eyes of consumers to reduce the plaintiff’s market share. In passing-off, by contrast, the defendant attempts to take advantage of the plaintiff’s strong market position by copying the plaintiff’s goods, and benefiting from consumers’ goodwill toward the plaintiff’s business.

Question 23

If the facts of a scenario may support either slander or libel, why might a plaintiff choose to frame his claim in libel?

Answer 23

The reason for the choice relates to damages. Provincial libel and slander legislation typically recognizes an automatic right to damages where libel is proved, but where the claim is framed in slander, there is an automatic right to damages only where the slanderous statement falls into a defined category

Question 24

Explain why there is a presumption of damages in the case of intentional torts, even where the harm done to the plaintiff is trifling or cannot be measured.

Answer 24

The rationale for presumption of damages is that a defendant who intentionally harms another person should not be permitted to escape liability simply on the ground that the harm done is minimal. If this were permitted to happen, the legal system would not be seen as sufficiently opposed to those who deliberately wrong others.

Question 25

What evidence must be included in a pleading based on the tort of assault?

Answer 25

Such a pleading must include evidence that (1) the defendant intended to create apprehension; (2) the plaintiff had a fear or expectation that physical contact was going to occur; and (3) the defendant was capable of carrying out the contact imminently, not at a later time.

Question 26

Why is the tort of malicious prosecution a rare one?

Answer 26

This tort is fairly rare because it can be argued only in relation to criminal proceedings, and one individual, in this case, the person motivated by an improper purpose to have someone prosecuted, is generally not capable of single-handedly bringing about such proceedings on the basis of an unreasonable charge. A criminal charge requires support of various kinds from witnesses, the police, the Crown, and the judge and it is unlikely that an unreasonable charge will receive support from all of those quarters of the justice system.

Question 27

Define the tort of nuisance and identify some of the criteria that must be met for a nuisance to be actionable.

Answer 27

The tort of nuisance occurs when the conditions prevailing on the defendant’s land or activities taking place on that land negatively affect another land occupier’s use and enjoyment of his or her land. For a nuisance to be actionable, some kind of concrete consequence must flow from it, and it must constitute more than an occasional or minor annoyance. Although there have been exceptions to this rule, generally the nuisance must represent an unreasonable use of the defendant’s land.

Question 28

Identify the two forms of trespass to chattels and explain the difference between them.

Answer 28

The two forms of trespass to chattels or interference with possessions are:

1. Detinue
2. Conversion.

Detinue is the wrongful possession of a chattel that belongs to another person—in other words, taking possession of another person’s goods.

The tort of conversion begins the same way as detinue, that is with the defendant taking possession of something that belongs to the plaintiff, but it involves an additional element. With conversion, the defendant must not only possess the plaintiff’s goods but “convert” it in some way—for example, by using it, making changes to it, using it to earn income, or selling it to a third party.

Question 29

Why is litigation involving the interpretation of waivers not very common in the context of intentional torts?

Answer 29

The reason for this is that there are only a few contexts in which a plaintiff of sound mind would consent to conduct—for example, being struck by another person—that would otherwise constitute an intentional tort. Violent sports represent one such context.

Question 30

What is the formula for the defence of necessity, and why is it a rarely used defence in tort?

Answer 30

The defendant must establish that the harm he or she caused the plaintiff, which would qualify as a tort under most circumstances, was committed in an effort to avoid a much more serious harm. It is a rarely used defence in tort because the circumstances needed for this defence formula rarely arise. The kinds of lawsuits that might elicit a necessity defence are themselves rare, perhaps because a person’s causing harm to an innocent party in order to prevent greater harm to someone else seems reasonable to most people.

Question 31

Why is sorting out consent to sexual touching a difficult task?

Answer 31

It is difficult for two reasons: (1) human beings don’t normally communicate to each other the precise limits of their consent before they engage in sexual contact, and (2) sexual contact normally happens in private, without witnesses.

Question 32

Under what conditions does the law permit a person to use force in removing a trespasser from his or her real property, and what is an example of a situation where “defence of property” might be used as a defence?

Answer 32

The law permits a person to use reasonable force, usually very minor force, in removing a trespasser from his or her real property, such as land or building, so long as the trespasser has first been asked to leave on his or her own power and has been given reasonable opportunity to do so. This defence is sometimes used by bouncers who are being sued for forcibly ejecting rowdy patrons from nightclubs.

Question 33

What must a defendant prove to establish provocation, and what aspect of provocation can be contentious at trial?

Answer 33

To establish provocation, the defendant must prove (1) objectionable conduct by the plaintiff that (2) affected the defendant’s self-control, (3) occurred immediately prior to the defendant’s wrongful act, and (4) provoked the defendant’s wrongful act. It is the third of these ingredients—immediacy—that can be contentious at trial.

Question 34

Explain why the kinds of actions that typically lead to penalties in sport—for example, fighting in hockey—do not give rise to charges of battery, though these actions are tortious in other contexts.

Answer 34

The rules of a sport inform prospective players that while these actions will normally result in a penalty or sanction against the offending player, these actions regularly occur, and that is why the rules address them. In other words, these otherwise tortious actions constitute a kind of normal contact within the context of the sport.

Question 35

Under what circumstances is consent not required for medical treatment and a claim in medical battery not available to a victim of medical mistreatment?

Answer 35

This is the case where the plaintiff requires emergency medical treatment and is unable to consent, and there is no guardian or relative able to consent for him or her.

Question 36

Why are the limitation periods for suing municipalities particularly short?

Answer 36

The limitation periods for suing municipalities are short because municipalities are frequent targets of lawsuits, owing to their broad responsibility for public facilities and to their being perceived as “deep-pocket defendants.” If these lawsuits were without limits, municipalities would lose the financial capacity to provide the services we expect from them.

Question 37

What is the rationale for not strictly enforcing statutory limitation periods in cases involving physical injury or illness?

Answer 37

The rationale here is that the full extent of an injury or illness may not be obvious until long after the incident or condition that caused the harm, as when a person’s workplace exposure to a carcinogenic substance leads to cancer 30 years down the road. If limitation periods were always strictly enforced, victims of slow-developing illnesses and injuries would be denied compensation not because of procrastination on their part but because of the nature of their disease.