Tort Law Flashcards
Define the tort of negligence
inadvertent or careless conduct that causes injury or damages to others
For a successful action under the tort of negligence, the plaintiff must establish the following five elements:
- def. owed a duty of care to pl.
- def. breached the standard of care
- harm caused to the pl. was caused by the def. actions
- harm suffered was not too remote
- pl. suffered damages
The concept of a duty of care is that
a person must take REASONABLE care to avoid acts or omissions that they can reasonably foresee would likely injure another
The standard of care that is generally imposed is
that of a reasonable and prudent person. Certain situations impose a specific duty of care on specific groups, such as professionals
An individual with a physical disability is held to a standard of care
of a reasonable person with a similar disability.
the effect of mental disability on the standard of care is that
a defendant will not be liable where a mental disability caused them to operate as an automaton (acting unconsciously, unable to control their actions
The requisite standard of care for a child is
that of a reasonable child of similar age, intelligence and experience
Professionals or individuals who implicitly or explicitly suggest that they have certain skills/training are held to what standard?
A higher standard than that of a reasonable person, the standard of a reasonable prudent professional or individual w similar training
The material contribution test (but for test) is applied
in cases involving multiple tortfeasors where the plaintiff is able to meet three criteria
What are the three criteria for the “but for” test?
- pl. establishes their injury would not have occured BUT FOR the negligence of two or more defendants that could each be responsible for the injury
- the pl., due to factors outside of the pl.’s control, is unable to prove that any one of the defendants’ negligence caused the pl. injury
- it is clear that the def’s breached a duty of care owed to the pl. and exposed the pl. to unreasonable risk of injury, and the pl. suffered injury
in terms of remoteness, the defendant will only be liable for negligent harm if
The harm is a reasonably foreseeable consequence of the def.’s negligence
The one exception to the remoteness/reasonable foreseeability principle is
the thin skulled rule, which is that a defendant must take the victim as the defendant finds them. The plaintiff is responsible for compensating the pl. for all injuries.
The purpose of compensatory damages is
to restore the pl. to the position they would have been in had the tort not bee committed
Compensatory damages can be for
both pecuniary and non-pecuniary losses
Define pecuniary loss
any financial or material loss, past or future, whether or not precisely calculable. (lost earnings, repair costs, cost of future care, lost future earning capacity
define non-pecuniary loss
any loss that does not diminish a person’s financial or material assets. (pain and suffering, permanent impairment of physical/mental capacity, loss of expectation of life)
how was the cap for non-pecuniary losses in a personal injury case set?
A trilogy of SCC cases in 1978 set the cap at $100,000 ($400,000 today after adjusting for inflation)
What are punitive damages?
Damages awarded against a defendant in exceptional cases for malicious, oppressive and high handed misconduct that “offends the court’s sense of decency” Whiten v Pilot Insurance Co.
What is the objective of punitive damages?
to punish the defendant rather than compensating the plaintiff.
When are punitive damages awarded?
If compensatory damages are inadequate to punish, deter, and denounce the defendant. Rare in negligence
What are the defences to the tort of negligence?
- contributory negligence
- voluntary assumption of risk
- participation in illegal or immoral activity
What is contributory negligence?
A defence to negligence, available when the pl.’s negligence also contributed to the loss suffered by the plaintiff.
What three situations may lead to the defence of contributory negligence being raised?
- the pl.’s negligence caused the accident
- the pl. put themselves in a situation of foreseeable harm resulting from the def’s negligence
- the pl failed to take protective measures against foreseeable danger
What standard is applied when determining contributory negligence?
an objective standard of a reasonably prudent person. Factors including foreseeability of harm, likelihood of harm, seriousness of harm, cost of avoidance, emergency circumstances are considered by the court
Contributory negligence can be
apportioned in responsibility bw the pl and def in proportion to their degree of fault in the negligence.
What is the defence of voluntary assumption of risk?
Can be used by a defendant if the pl knowingly consented to the act that led to their injury. THe plaintiff’s agreement can be either express or implied
For voluntary assumption of risk, the pl must consent to not only….
the physical risk but ALSO the legal risk of an injury potentially occuring due to the pl or def actions
What are the four main common-law causes of action for product liability in Canada?
- negligent design
- negligent manufacture
- failure to warn
- breach of warranty
To succeed against a manufacturer for negligent design or manufacture, pl must establish on a balance of probabilities:
- the product contained a defect
- the manufacturer owed a duty of care
- the manufacturer’s conduct fell below the standard of care
- the breach caused or contributed to the plaintiff’s injury
- the defect and injury were reasonably foreseeable outcomes of the negligence
What are the defences to a product liability claim?
- duty of care not owed
- def did not breach the applicable standard of care
- no causal link bw the breach of the standard of care and the pl injury
- injury was not foreseeable consequence of the def moral conduct
- contributory negligence/misuse of product
The tort of negligent misrepresentation occurs where:
- there is a special relationship bw a party making a representation and a party receiving the representation giving rise to a duty of care by the party making the representation to the party receiving it
- the representation was untrue, inaccurate or misleading
- the representation was made negligently
- the party that received the representation reasonably relied on it, and
- the reliance was detrimental in that damages resulted.
What case established the tort of negligent misrepresentation?
Queen v Cognos Inc
What is the difference between negligent misrepresentation and fraudulent misrepresentation
Fraudulent misrepresentation requires the knowledge of deceipt
What are the elements of the tort of fraudulent misrepresentation?
- def made a false representation
- representation was made with knowledge of its falsity, or recklessly without belief in its truth
- the false representation caused the plaintiff to act, and
- the plaintiff’s actions resulted in a loss
What are the three types of intentional torts?
- intentional interference with a person
- intentional interference with land and airspace
- intentional interference with chattels (property other than real estate)
What are the four general requirements underlying intentional torts?
- directness
- volition
- capacity
- intention
What are the torts categorized as intentional interference with the person?
- Battery
- assault
- false imprisonment
- malicious prosecution
- abuse of process
- intentional infliction of nervous shock
define battery
intentional harmful or offensive contact with another person
Define assault
the intentional creation in the mind of another of a reasonable apprehension of imminent harmful or offensive contact. Apprehension must be reasonable, and threat must be immediate
Define false imprisonment
a total restraint on an individual’s liberty. Restraint may be through direct physical force, threat of force, or psychological coersion.
define malicious prosecution
usually raised in criminal/quasi criminal contexts. Plaintiff must establish that:
- the defendant initiated the prosecution
- proceeding terminated with favourable outcome for the plaintiff (not guilty)
- there was a lack of reasonable or probable cause for the proceedings, and
- there was malice on the part of the defendant
Define abuse of process
applicable in civil litigation, abuse of process occurs when:
- defendant brought a civil action
- proceedings were brought for some extrinsic or improper use
- defendant undertook or threatened to undertake some overt act, independent of the litigation, to further the improper purpose
- the pl suffered a loss of as a result of the defendant’s conduct
What are the differences between malice prosecution and abuse of process?
in malicious prosecution, used in criminal contexts and pl. must have received a favourable outcome at trial
in abuse of process, used in civil contexts and pl need not have receieved a favourable outcome at trial
Define intentional infliction of nervous shock
Plaintiff must establish:
- outrageous or flagrant conduct by the defendant
- must be either an intent to inflict emotional distress or circumstances in which a reasonable person would have known that emotional distress would result
- the plaintiff must prove nervous shock. Threshold has been lowered from a recognizable psychiatric or physical harm to mental disturbance that is serious and prolonged
What are the two types of defences available to claims of intentional interference with the person?
Complete defences:
- consent
- self defence
- defence of others
- defence of property
Partial defences:
- provocation
- contributory negligence
What is the complete defence of consent?
consent may be express or implied based on the plaintiff’s actions. To rely on this defence, you must show that:
- consent was voluntarily given by the pl without duress, undue influence or fraud
- Consideration is given to factors like age, capacity, ability to realize what is taking place
- consideration is given to the fact that consent can be revoked at any time
What are examples of implicit consent?
- bar patrons stepping outside for a fight
- playing a contact sport
In all situations, the court will consider the extent of physical interference to which the plaintiff consented and whether the defendant surpassed the consent provided
Define the complete defence of self-defence
a person can use reasonable force to resist an attack or threat of attack where a person believes that an attack is imminent. Force used must be proportionate to the threat.
Define the complete defence of defence of others
To remove a trespasser, the owner must request that the trespasser leave the premises. If unsuccessful, the owner may use slight force or carry the trespasser out. Force must be sufficient to eject, but cannot cause serious bodily harm
Define the partial defence of provocation
Provocation is a mitigating factor that can be considered by the court to reduce the amount of damages awarded. The provocative act must have occured at the time of or shortly before the defendant’s wrongful act
When is an act considered provocative?
If it can cause a reasonable person to lose their self-control
Define the partial defence of contributory negligence
available where the defendant can demonstrate that the plaintiff failed to take reasonable steps towards his or her own safety
What are the two kinds of remedies available to a person claiming intentional interference?
compensatory damages and aggravated damages
What are compensatory damages?
to restore the plaintiff to the position they would have been in had the tort not been committed
What are aggravated damages?
damages awarded to compensate the pl for injuries suffered that were significantly enhanced due to the defendant’s malicious, high handed or outrageous conduct.
What is the tort of interference with land and airspace?
committed when a defendant or their object directly and intentionally interferes with the pl land without lawful excuse
What are the three defences available for trespass to land/airspace?
- consent
- necessity
- legal authority
What remedies are available for trespass to land?
Either damages or injunctive relief. If actual loss has occured, def is liable for damages rather than remedy being restricted to what was foreseeable
What are the three types of intentional interference with chattels?
- trespass to chattels
- detinue
- conversion
Define trespass to chattels
Any direct or intentional interference/contact with the chattel in the possession of another. Damages are awarded as remedy, calculated based on the reduction in the market value of the chattel or the pl’s interest
What is detinue?
one of the torts of interferene w chattels
applies in situations where a defendant refuses to return the pl’s chattel.
What are the two specific requirements for a claim in detinue
- the pl must request the return of chattel to which they have a right of immediate possession
- the defendant must refuse to return the chattel
Define conversion
Conversion involves wrongful interference with another person’s goods. It is an intentional exercise of control over goods that seriously interferes with the right of the plaintiff to control the goods.
what are the two self help remedies that pl may rely upon to recover their goods?
Recaption and replevin
Define recaption
an extra judicial remedy whereby a person physically takes their property back. Can only be done in a peaceful manner with no force
Define replevin
the process of interim recovery of one’s chattels before the judicial proceeding commences. Process involves obtaining an interim order for the recovery. The court may require the pl to provide security whhen the chattel is recovered in case it is determined that the def is the lawful possessor of the chattel
What is strict liability?
Another form of tort liability, a prima facie liability where it is sufficient for the def to have committed the strict liability act, without intent or negligence
What is the seminal case for strict liability?
Rylands v Fletcher
What is vicarious liability?
A form of strict liability where an employer is held responsible for the tortious conduct of its employee, without the employer having committed any wrong on their own. The employee must commit the tort in the course of carrying out their employment
What defences are available for strict liability torts?
- consent of pl
- default of pl
- act of nature/God
- act of third person
What is defamation
involves the publication of a false statement about a person that is to the person’s detriment. INcl. corporations
When is a statement considered to be defamation?
If it is a statement of fact or expression of opinion that has a tendency to injure, disgrace prejudice or adversely affect the reputation or character of the plaintiff.
What must the plaintiff establish in defamation?
That the statement was referring to the pl and that the statement was published (communicated either verbally (slander) or in writing (libel) to more than one person in addition to the plaintiff
What is the limitation period under the Libel and Slander Act in Ontario?
Three months. Pl must give def notice within 6 wks of alleged defamation, specifying the matter cmplained of, and serve notice ni the same manner as a statement of claim. Actions for libel other than in a newspaper printed and published in Ontario or in broadcast from a station in Ontario are subject to a two year limitation period
What are defences against a claim of defamation?
- justification that the statement was true (absolute defence)
- absolute privelege
- qualified privelege
- responsible communications on matters of public interest
- fair comment, which protects opinions about matters of public interest
What is SLAPP legislation?
Legislation protecting people from strategic lawsuits against public participation. meant to protect people from defamation lawsuits brought to limit the defendant’s expression on matters of public interest
To avoid dismissal of an action due to a SLAPP motion, the pl must prove:
- the case has substantial merit
- the defendant has no valid defence
- the harm likely to be or to have been suffered by the pl is serious enough that it outweighs the public interest in protecting that expression
What case established the intentional tort of intrusion upon seclusion?
Jones v Tsige 2021 ONCA
What are the elements of the tort of intrusion upon seclusion?
- the defendant’s conduct must be intentiona;
- the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns, and
- a reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish
Who does the tort of intrusion upon seclusion apply to?
applies only against defendants who themselves invade the privacy of the pl, not against defendants who fail to prevent intrusion on privacy by a third party, such as companies
What is the remedy for the tort of intrusion upon seclusion?
ordinarily, remedy is an award of symbolic or moral damages in a modest conventional sum, up to $20,000. Aggravated or punitive damages may be awarded in exceptional cases
What case established the tort of internet harassment?
Caplan v Atas 2021 ON SUperior Court
What is the tort of internet harassment?
Committed where the defendant maliciously or recklessly engages in communications so outrageous in character, duration, and extreme in degree as to go beyond all possible bounds of decency and tolerance, with the INTENT to cause fear, anxiety or emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm
What remedies were granted in Caplan v Atas?
remedies for the tort of internet harassment included a permanent injunction prohibiting the defendant from continuing to engage in online communications with respect to the victims of harassment.
