torts and professional liability

Question 1

tort

Answer 1

wrongful conduct which can lead the injured party to sue the wrongdoer to obtain compensation

Question 2

tort: criminal vs case of a contract

Answer 2

criminal: society (through crown prosecutor) brings the action to punish the offender
contract: one party may take action because the agreement has been breached

Question 3

employer responsibility

Answer 3

employers are vicariously liable for all torts by employees during the course of their employment

Question 4

intentional torts

Answer 4

deliberate acts intended to injure others; or to interfere with another person’s right (even when unintended, but interferes with a person’s autonomy, right to security and dignity)

Question 5

assault

Answer 5

threat to harm another (from the victim’s perspective)

• immediate and physically able to carry out
• even with no actual physical contact, assault charges may be pressed

Question 6

battery

Answer 6

physical contact that is intentional and unwanted (even if beneficial)
ex.: medical treatment without consent

Question 7

defences to assault and battery

Answer 7

consent and self-defence

Question 8

consent (2 characteristics)

Answer 8

informed consent

not exceed consent

Question 9

self-defence (2 characteristics)

Answer 9

reasonable force in response

response to an immediate threat

Question 10

false imprisonment

Answer 10

unlawful restraint

• physical
• compliance if the victim thinks there is no choice
• unreasonable amount of time
• applies to private citizen’s arrest when there was no crime

Question 11

citizen’s arrest

Answer 11

the purpose is to temporarily detain a suspect until the police arrive (in good faith)

Question 12

you should

Answer 12

1. tell the suspect that you’re making a citizen’s arrest and you’re holding them until the police arrive
2. call the police
3. ask explicitly for cooperation
4. avoid using force
5. do not question or research the subject
6. state the plain facts of what happened to the police when they arrive

Question 13

obligations of police conducting an arrest

Answer 13

the decision of the SCC in Brydges (1990) established that the police have a duty to:

• inform detained or arrested suspects of their right to retain and instruct counsel (lawyer)
• give access to legal aid and 24-hour duty counsel

Question 14

failure by the police to provide this info

Answer 14

consists of a violation of a suspect’s right to counsel under section 10 (b) of the Canadian Charter of Rights and Freedoms
- any evidence obtained by means of such a violation could be excluded from the suspect’s trial

Question 15

trespass

Answer 15

defined by the act of knowingly entering another person’s property without permission

• does not matter whether they knew
• trespasser must be given an opportunity to leave

Question 16

trespass: legal actions

Answer 16

bring a civil lawsuit against a trespasser in order to recover actual damages or receive compensatory relief for an injury suffered as a direct result of a trespass
- damage is not required for the offence to be considered a trespass

Question 17

two types of trespass

Answer 17

indirect trespass (throwing something onto another person's property)
continuing trespass (trees, buildings, windows, etc.)

Question 18

nuisance (private)

Answer 18

using your property so as to substantially interfere with the neighbour’s use of their property

• inappropriate use of property
• reasonably foreseeable
• other might sue for damages or ask for a court injunction

Question 19

injunction

Answer 19

order to stop

Question 20

defamation

Answer 20

any false statements that may be damaging to an individual, a corp or a product
- only the person who was the subject to the defamation may press charges

Question 21

types of defamation

Answer 21

slander: defamatory spoken words
libel: defamatory written words
- libel is more permanent and more serious
- the internet age and the ubiquity of electronic media, the difference between libel and slander is diminishing

Question 22

defences to defamation: truth

Answer 22

common law provinces: truth is an absolute defence (if proven substantially true even if meant to harm)
québec: truth is only a defence if the material is in the public interest and there is no malice

Question 23

defences to defamation: absolute privilege

Answer 23

statements made in legislative or judicial proceedings
- people in such areas should not be deterred from commenting freely, thereby contributing to a more complete and truthful exploration of an issue

Question 24

defences to defamation: qualified privilege

Answer 24

when a person has a legal or moral duty to publish material to a person who has a legitimate interest in receiving it
ex.: reporting an alleged crime (if thought it was true, made without malice and only communicated to those who needed to know)

Question 25

defences to defamation: responsible communication on a matter of public interest

Answer 25

allows anyone who publishes something of public interest to be protected from a defamation action as long as they have been responsible in reporting on the matter by, for example, giving the person defamed the opportunity to answer before they publish

Question 26

defences to defamation: fair comment

Answer 26

protects any opinion fairly made on a matter of public interest (political commentary or critical reviews)
- used by news outlets and other media
- based on true facts known to the public
- made without malice
responsible communication protects media if reasonable diligence was used to verify facts even if facts turn out not to be true

Question 27

negligence

Answer 27

inadvertent or careless conduct causing injury or loss to another

• high level could be criminal
• the plaintiff must demonstrate that they suffered actual harm or loss

Question 28

negligence: the plaintiff must demonstrate the following basic elements (4)

Answer 28

duty of care
standard of care
causation
foreseeability

Question 29

duty of care

Answer 29

the obligation not to harm others or their property

• the duties that are imposed by law depending upon the circumstances of a specific case
• professional duty is expected from health professionals, investment managers, lawyers, etc.

Question 30

professional duty

Answer 30

• wealth managers are said to have a fiduciary duty (act in the best interest of their client)
• manufacturers and service providers owe a duty of care to their customers

Question 31

standard of care

Answer 31

the court determines a standard of care in each case and then looks at the conduct of the defendant in comparison and then determine whether the defendant actually breached that standard or not
- professionals are held to higher standards of care

Question 32

causation

Answer 32

courts will assess if the defendant’s breach actually caused the injury or loss
- the conduct should be connected and tied to the injury harm or loss that is being alleged

Question 33

foreseeability

Answer 33

could a reasonable person foresee or anticipate that if the conduct was wrong then the harm that has occurred could have happened