Part 1 Introduction to the Law of Torts by moti

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									Part 1: Introduction to the Law of Torts ............................................................................................ 5
  The Comparative Theory and Practice of Compensation Law ....................................................6
          Bolton v Stone (Cricket) .....................................................................................................6
  The Roots of Tort Law ...................................................................................................................6
          REGISTRUM BREVIUM ....................................................................................................6
          Farrier’s Case .....................................................................................................................6
     The Trepass/Case Saga ...........................................................................................................8
     Historical Context - Trespass and Directness .........................................................................9
        1. Klar’s concerns – basically the Canadian Law is not consistent .............................. 9
        2. Development of Trespass in 19th c. ...............................................................................9
          Stanley v. Powell ................................................................................................................9
          Letang v. Cooper, [1964] .................................................................................................10
     In Canada: the trespass action has survived..........................................................................10
          Cook v. Lewis (S.C.C.) (1951) ......................................................................................... 10
     Test for directness ...................................................................................................................10
  Torts and the Constitution ...........................................................................................................11
        3. The Overlap of Torts and Constitutional Law ........................................................11
          Jane Doe v. Toronto Metro Police Commissioners......................................................... 11
        4. Broader influence of the Charter ..............................................................................11
          Malette v Shulman............................................................................................................11
Part 2: Intentional Injury to Person, Security and Dignity .............................................................. 12
     How to assess a Tort situation ................................................................................................ 12
        1. Direct harm or interference .......................................................................................12
  Historical Context ........................................................................................................................12
        1. British Law established by Letang v. Cooper ............................................................ 12
        2. Canadian Tort Law diverges from British Law............................................................. 12
          Goshen v. Larin, (1974) – In direct Trespass burden on Def. ........................................13
          Non-Marine Underwriters v. Scalera [2000] – Direct Trepass = Burden on Def. ...........13
  Accidental, Intentional and Negligent Conduct ..........................................................................14
          Garratt v. Dailey (constructive intent) ..............................................................................14
          Carnes v. Thompson (transferred intent) ........................................................................15
          Basely v. Clarkson (1681) (mistake no defence) ............................................................ 15
          Scott v. Shepherd (1773) .................................................................................................15
Part 2A: Torts of Trespass to the Person .......................................................................................16
     Torts without fault and without intention .................................................................................16
        1. Nuisance ......................................................................................................................16
        2. Defamation ..................................................................................................................16
        3. Conversion ..................................................................................................................16
     Kinds of Torts of Trespass to Persons....................................................................................16
        1. Battery ........................................................................................................................... 16
        2. Assault .......................................................................................................................... 16
        3. False Imprisonment ......................................................................................................16
  Battery..........................................................................................................................................17
     What is Battery? ......................................................................................................................17
          Cole v Turner (1705) ........................................................................................................17
     Defining Battery in Law in Canada.......................................................................................... 17
     Defences ..................................................................................................................................18
     Interests Protected by Battery .................................................................................................18
        1. Dignity of the person – least touching of person in anger ...........................................18
        2. Physical security – protects people against violent attacks/touching ......................... 18
                                                                                                                                                   1
          3.  Protects right to decide what happens to ones body – Autonomy ............................. 18
          a.  No need for harm to be done because the contact is offensive .................................18
           Gerula v. Flores ................................................................................................................19
           Mink v. University of Chicago .......................................................................................... 19
     Foreseeability........................................................................................................................... 19
           Bettel v. Yim .....................................................................................................................19
  Assault .........................................................................................................................................20
     Legal definition ......................................................................................................................... 20
     Qualifications ........................................................................................................................... 20
     Interests protected ...................................................................................................................21
     Cases .......................................................................................................................................21
           I. DE S. & WIFE v. W. DE S. (1348) ................................................................................21
           Stephens v. Myers (1830) ............................................................................................... 21
           Bruce v. Dyer ....................................................................................................................21
           Herman v. Graves ............................................................................................................22
  False Imprisonment .....................................................................................................................23
     Legal Definition ........................................................................................................................23
     Qualifications ........................................................................................................................... 23
     Interests protected ...................................................................................................................23
           Nolan v. Metro Toronto Police ......................................................................................... 24
           Bird v Jones ......................................................................................................................24
           Chaytor ............................................................................................................................. 24
           Jeeves v. Swanson ..........................................................................................................24
  Intentional Indirect Infliction of Harm .......................................................................................... 25
     Legal Definition ........................................................................................................................25
           Wilkinson v. Downton (1897) ........................................................................................... 25
     Qualifications ........................................................................................................................... 25
           Bird v. Holbrook (1828) ....................................................................................................25
           Rahemtulla v. Vanfed Credit Union .................................................................................26
        4. Plaintiff too far removed ............................................................................................... 26
        5. No real suffering, no medical evidence .......................................................................26
        a. Counter - Rahemtulla, Nolan ......................................................................................26
     Interests Protected ..................................................................................................................26
           Bielitski v. Obadiak – intend statement made to other to reach Plf –probably harm .....27
           Purdy v. Woznesensky – Should foresee 3rd Party mental and subseq physical injury –
           (reckless) .......................................................................................................................... 27
Part 4: Intentional Torts to the Person: Protecting Autonomy and Dignity ...................................28
  The Consent Principle .................................................................................................................28
           O’Brien v. Cunard – conduct implied consent ................................................................ 28
           Norberg v. Wynrib ............................................................................................................28
     Consent in Sport ......................................................................................................................29
  Sexual Wrongdoing and Intrusion............................................................................................... 30
     Qualifications ........................................................................................................................... 30
     Reasons for Modern proliferation of Sexual Abuse Actions ..................................................30
     Traditional view of sexual relations, rights of women and the tort .........................................30
           Latter v. Bradell ................................................................................................................30
           Hegarty v. Shine (Irish Court of Appeal)..........................................................................30
     Pros and cons of civil litigation in sexual abuse .....................................................................31
     Sexual Abuse in Family ...........................................................................................................31
        1. Abuser’s Liability K (M) v H (M) ......................................................................................31
                                                                                                                                                   2
        K (M) v. H (M) – breach of fiduciary duty and statute of limitations ................................ 31
     2. Limitation Act 1996 RSBC r 266 s. 3 (2) and 4 k l .......................................................... 32
     3. Non-Abusive Partner Liability (J (LA)) v J (H) and J(J)) ............................................32
        (J (LA)) v J (H) and J(J)) – Mother as liable party as well ..............................................32
  Sexual Abuse in Professional Relations .................................................................................33
        Norberg v. Wynrib ............................................................................................................33
  Sexual Battery and Consent ...................................................................................................33
        Non-Marine Underwriters v. Scalera [2000] ....................................................................34
  Damages – Campbell, Finey, and McLaren ...........................................................................34
  Sexual Harassment .................................................................................................................34
        Clark v. Canada ................................................................................................................34
  Sterilization .............................................................................................................................. 35
        Muir v. Alberta ..................................................................................................................35
Protecting Ethnic Dignity .............................................................................................................36
        Wong Hoy Woon v. Duncan (1892) .................................................................................36
        Mulloy v. Hop Sang ..........................................................................................................36
Culture and Consent ...................................................................................................................36
        Youmans........................................................................................................................... 37
        Thomas v. Norris ..............................................................................................................37
A Tort of Discrimination? .............................................................................................................38
        Bhaduria v. Seneca College ............................................................................................ 38
  Other venues to pursue Discrimination...................................................................................38
     1. Existing Tort Law .............................................................................................................38
     2. Human Rights Code .....................................................................................................38
     3. The Constitution ...........................................................................................................38
     4. Statutory Liability ..........................................................................................................38
        CPRA ................................................................................................................................ 39
        Brochu v. Nelson ..............................................................................................................39
        R v. Garbara .....................................................................................................................39
Justifications and Defences other than Consent ........................................................................40
  Justification .............................................................................................................................. 40
     1. ―Not my Act‖ – Lack of Volition .....................................................................................40
        Smith v. Stone ..................................................................................................................40
        Gilbert v. Stone .................................................................................................................40
        Regina and Dudley v. Stevens ........................................................................................40
     2. Mental Incapacity ..........................................................................................................40
        Gerigs v Rose ...................................................................................................................40
     3. Children (especially of a tender age) ...........................................................................41
        Tillander v. Gosselin .........................................................................................................41
  Defences ..................................................................................................................................41
     1. Consent ........................................................................................................................... 41
     2. Self-Defence Elements ..................................................................................................41
     3. Provocation .................................................................................................................42
        Defosse v. Wilde – lack of proportion in responding to provocation .............................. 42
     4. Defence of Third Party ............................................................................................... 42
     5. Defence of Property ...................................................................................................42
     6. Duress/Necessity........................................................................................................42
     7. Legal Authority ..............................................................................................................43
Vicarious Liability and the Intentional Torts ................................................................................44
  Purpose ....................................................................................................................................44
                                                                                                                                               3
     Sagaz Industries Canada.................................................................................................44
Policy justifications ..................................................................................................................44
Conditions ................................................................................................................................ 44
Relationship ............................................................................................................................. 45
     Evaniuk ............................................................................................................................. 45
     CPR v. Lockhart ...............................................................................................................45
Vicarious liability for intentional torts for liability for sexual abuse/assault ............................ 46
     Bazley ............................................................................................................................... 46
     Jacobi................................................................................................................................ 47
     Clergy Cases ....................................................................................................................47
Non-Delegable Duty ................................................................................................................47
     Lewis v. BC .......................................................................................................................48
     EDG v. Hammer ...............................................................................................................48
     KLB v. BC ......................................................................................................................... 48




                                                                                                                                            4
Part 1: Introduction to the Law of Torts


Distinguishing Crime/Tort

Tort = action against individual or group; aim is to compensate victim
Crime = action against society; aim is to punish offender

Theories of Torts: Moralist v Instrumental

Moralist/Individualist School
            Torts is about need to readjust b/w two parties balance b/c of fault of one

Instrumentalist School (JM is an instrumentalist)
          Risk Spreading
                   i. Insurance, Plf gets paid b/c of Def access to insurance
                  ii. Alt. Plf would succeed in action but wouldn’t get any money
          Punishment
                   i. Especially in punitive damages when conduct of Def is outrageous
          Deterrance/Education
                   i. Don’t do what Def. did
                  ii. Inform other to take duty seriously
                 iii. e.g. Medical malpractice
          Psychological Benefits
                   i. Elements of retribution and appeasement
          Calling powerful to account
                   i. Medical malpractice (deterrance and educate factor as well)
                  ii. e.g. Manufacturers liability


Need to Distinguish other Actions
 Crimes
 Breach of Contract
 Breach of Fiduciary obligation
         o Certain roles in society have with them obligations
         o Has begun to overlap w/ torts, esp commercial, e.g. parents and child, prof people
             and clients in some cases.




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                The Comparative Theory and Practice of Compensation Law

There are a wide-range of systems to compensate people, not just Torts.
       Criminal Law
       Worker’s Compenstation
       In BC, for low-level injuries or damages in car accidents there’s no-fault insurance
       Medicare
       Accident insurance

A lawyer must examine all of these options as well as the Tort option

Bolton v Stone (Cricket)
Facts       Women crosses the street and is hit on the head by a cricket ball from an adjoining
            cricket pitch. Plf. charged negligence

Held          House of Lords test of negligence (was it someone’s fault) is reasonable
              foreseeablity not just foreseeeability


                                     The Roots of Tort Law


REGISTRUM BREVIUM
   Trespass to the Person
   Assault on person (trespass-forcible interference).
   King got involved b/c it upset the peace. This is troubling enough to order and security to
     warrant royal intervention
   Emphasis not on penalty, but on dealing with situation and trying to preserve the peac e.
   Early c13th: Problem for early feudal Norman King’s: ―spats‖ might develop into feuds.
   Royal judges would determine if the facts fell within the writ chosen):

Disseisin when someone had been forcibly ejected from their land

The writ of trespass (vi et armis contra pacem Regis = by force of arms against the King’s
peace) was one such early writ / form of action developed in early c13th, intended to cover
direct / forcible interference to person, land or chattels (but that didn’t amount to disseisin) –
intended to avoid retaliation

Farrier’s Case
    Case for laming Plf.’s horse.
    Def. saying not liable because he had not seized the horse by physical force of arms or
       common trespass.
    Today we would say Def. failed to carry out contractual obligations.
    Trespass on the special case

Evolution of the Law

       See Chart

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7
The Trepass/Case Saga

TRESPASS                                   CASE
19th c.
a) Force, threat to interfere w.           a) Non-forcible etc conduct causing harm to person
Person prop/typically direct               Property/typically indirect
(b) No req’t of damage                     (b) Proof of damage req’d
(c) Liability strict                       (c) Liability strict (subject to jury discretion

18th c. (devel. at some point of alt. lawfulness/unlawfulness distinct)
a) Direct causation                         a) indirect causation of harm to person or prop
b)Liability strict (subj. to defense        b)ostensibly strict but intrusion of ―fault‖ language
―not my fault‖

Reasons 18th c.
 Costs system more favourable to Plf. in case
 Development of widescale roadway traffic, more risk of collisions and accidents
     o Judges became uncomfortable with trespass in these case (where roads driven by
        servants, etc)

19th c.
Emergence of fault req’t                   Transformation into modern law of negligence
Intention to harm/interfere                (fault based-lack of considerable care)
Preservation of ―directness req’t‖



Trespass on the Case was v. flexible—satisfy us the judges that your injury is actionable
    Contract emerges from it as well as other torts, e.g. nuisance.

Dangerous to assume compensation system we are only talking about Euro-Cdn conceptions of
compensation




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Historical Context - Trespass and Directness
1. Klar’s concerns – basically the Canadian Law is not consistent
      a. Trespass-we are told it is intentional tort
      b. Trespass in Cdn Law
                  i. Intentional and Direct
                 ii. Elements of directness and fault

2. Development of Trespass in 19th c.
     a. 19th c. Case absorbed by negligence
            iii. Effect to make clear, liability established thru fault of Def
            iv. Plf had to prove fault
             v. Plf had to establish damage
     b. Direct infliction
            vi. Less clear situation
           vii. injuries in road accident were under negligence even though direct interference
           viii. Plf has proof Def at fault and there must be tangible loss
            ix. Other forms of direct less clear
                     1. Out hunting and shoot someone else
                     2. English courts said:
                            a. Trespass (b/c T invl direct harm to person)
                            b. Once Plf est he was shot and Def was cause then burden shifts
                               to Def to prove, on bal of prob did not intend to shoot and not
                               negligent
                            c. Stanley v. Powell (1890s)




Stanley v. Powell
Facts        The Plf worked as a retriever in a pheasant shoot, and was hit by a bullet fired by
             Def intended to hit a bird, but which ricocheted off a tree and hit him in the eye.

Held         1. No trespass to the person b/c there was no intention to hit him.
             2. Where Plf is injured by force brought upon him directly by the Def, the burden
             rests on the Def to prove the absence of both intention and negligence on his part.




                                                                                                   9
2. The English Scene
     a. Lord Denning
             i. Letang v. Cooper
            ii. Liability in modern law basis
                   1. Trespass, direct inflict of harm, Plf has to prove Def intended to harm
                   1. Negligence, indirect harm, Plf has to prove lack of reasonable care.


Letang v. Cooper, [1964]
Facts       The Plf, while sunbathing on a piece of grass, which was used as a car park, was
            injured when the defendant drove his car over her legs. She sued for negligence
            and for trespass to the person.

Held         Denning J
             When the injury to a plaintiff is caused by the defendant’s intended act, the cause
             of action is trespass to the person; when the act is not intended, a plaintiff’s only
             cause of action is negligence.




In Canada: the trespass action has survived

Cook v. Lewis (S.C.C.) (1951)
Facts       (couple having sex shot by hunter) did not take this last step –

Held         1. Can still bring an action for trespass if direct even though unintentional, and
             burden of proof shifts to defendant

Comment      Using the name ―intentional torts‖ confusing since they are based on trespass and
             so distinction is really direct/indirect not intentional/unintentional– if direct, after
             plaintiff shows direct act occurred, burden of proof then switches to defendant to
             prove lack of intention/negligence i.e. the ―intentional‖ tort of battery need not
             involve intention (can be reckless or negligent)

             Relied on Goshen v. Larin


Test for directness
(1) Some uncertainty, one suggestion is to ask: would the result have occurred had it not been
for the intervention of another independent agency? Can also ask if it was an immediate
consequence.




                                                                                                   10
                                   Torts and the Constitution

3. The Overlap of Torts and Constitutional Law

Jane Doe v. Toronto Metro Police Commissioners
Facts       Plf. a victim of serial rapist. Argued that police failed to warn her and used her as
            ―bait‖. Police did not warn her b/c she was a woman and therefore she would
            become hysterical. Argued that police knew of rapist. s. 15 equality s 7 right to
            security Charter rights violated.

Held         For Plf
             1. Police violated s. 15 b/c of their own admission they treated her diff from men
             2. Police violated s. 7 undermined her security
             3. Police were guilty of the tort of negligence
             4. Court did not award additional damages b/c action was in neglience

Comments

4. Broader influence of the Charter

Private Law cannot be insulated from Charter values, Equality f eatures are in the background
       a. Norberg v. Wynrib
       b. Malette v. Shulman

Malette v Shulman
Facts       Jehovah’s witness patient express asked (thru card in her pocket) not to have
            blood transfusion. Dr. went and did it anyway

Held          1. Battery, Plf. did not consent to the transfusion
              2. Informed consent is principle of medical law, patient allowed to refuse
              3. EXCEPTIONS
                  a. Patient incapable of giving or withholding consent. (no legal designate avail)
                  b. Time must be of the essence
                  c. Under the circumstance a reasonable person would consent

Comments      1. Based on the right of self-determination




                                                                                                  11
Part 2: Intentional Injury to Person, Security and Dignity

How to assess a Tort situation

1. Direct harm or interference

       a. Burden of proof shifts to the Def
       b. Trespass to the person
       c. Def has to prove:
              i. No harm intended
             ii. Not negligent

2. No direct harm

       a. Negligence – Plf has the burden of proof (Most common by far)

       b. Intentional Indirect Harm


                                        Historical Context

1. British Law established by Letang v. Cooper

Intentional  Trespass

Unintentional  Negligence


2. Canadian Tort Law diverges from British Law
     a. In direct trespass the burden is on the defendant to prove that there was no intention
        and no negligence.
             i. Goshen v. Larin
            ii. Scalera v. Non-marine Underwriters
                    1. In battery the burden of proof is on the Def.
     b. Critique
             i. How do you distinguish b/w what is direct and indirect
                     Hit him with golf ball – is that direct? Probably, but less than if I hit him
                     Squib in market- gets tossed and throws it and hits third person
                           o Court divided
            ii. Klar says is there intervening parties
                    1. Klar says the whole Canadian way is confusing b/c it’s not consistent




                                                                                                  12
Goshen v. Larin, (1974) – In direct Trespass burden on Def.
Facts       Def a referee at a wrestling match where he had given an unpopular decision. He
            was escorted out of the arena by police. As he was being led out of the arena,
            members of the audience threw objects at him. The Def. had his arm raised at
            eye-level as he was being escorted out. Although no one saw him strike anybody,
            the Plf alleged that the Def. pushed him down causing the fracture of his wrist. Plf.
            seeks damages in battery.

Held         1. In direct trespass the burden of proof is on the Def to prove the Act was
             unintentional and not negligent
             2. Facts say no intention and court rules the Def. wasn’t negligent in circs



Non-Marine Underwriters v. Scalera [2000] – Direct Trepass = Burden on Def.
Facts      Scalera one of five BC transit bus driver against whom a civil action was launched
           alleging battery, negligent battery, negligent misrepresentation, and breach of
           fiduciary duty. Scalera owned a homeowner's insurance policy issued by the
           respondent insurer. The policy provided coverage for defence against civil actions
           except if caused by any .‖..intentional or criminal act". BCSC dismissed the
           insurance's request for a declaration that it not be required to defend the Scalera
           against the Plf. claims.

Held         1. In sexual battery like other battery the burden of proof is on Def.
             2. No duty of insurance company to defend
             3. Reasons for shifting burden to Def.
                     a. Facts usually cut and dry
                     b. Somebody needs to answer and that should be def
                     c. Value to Plf of smoking out evidence
                     d. High demoralization cost to Plf as victim of violation of personal security




                                                                                                  13
                       Accidental, Intentional and Negligent Conduct


1. Accidental – Where Def acts and produces consequence is not reasonably foreseeable or
   preventable.

2. Negligent – Where the Def ought to have reasonably foreseen the consequence.
                  a. onus of proof is on the Plf.

3. Reckless – Intentional b/c knew about poss consequences; negligent b/c did action anyway
                   a. Falls short of being described as intentional, but where one acts in
                    the face of a clear risk of an adverse consequence (very probable
                    consequences) or having knowledge of reasonably foreseeable
                    consequences.

                    b. Usually bumped up to ―intentional‖

4. Intentional – Intending the actual consequences, or having the consequences be
   substantially certain to flow from ones actions even if not intending the consequences .

       a. Actual – desired the consequences

       b. Constructive – consequences sufficiently likely to follow from actions
             i. Garratt v. Dailey

       c. Transferred – your intentional act has unintended consequences or victims
              i. Carnes v. Thompson
             ii. Bettel v. Yim

       d. Mistake is not a defence in intentional torts
              i. Basely v. Clarkson
             ii. Gerula v. Flores




Garratt v. Dailey (constructive intent)
Facts        Plf alleges that the Def, aged 5 years and 9 months, pulled a lawn chair out from
             under her as she went to sit down. Def claimed that he had moved the chair while
             the Plf was in the house, and she sat down not realizing the chair had been
             moved. Trial judge found that Def had not moved the chair w intent of injuring Plf
             and dismissed.

Held         1. If the Def knows with substantial certainty that the Plf would be injured as a
             result of his actions, then there is battery regardless of intent




                                                                                                 14
Carnes v. Thompson (transferred intent)
Facts       Def. attempted to evict a former employee and his wife from a house on his farm.
            An argument erupted and Def struck at the employee with pliers, missed the
            employee and unintentional hit the wife. Jury ruled for Plf. No actual damages, but
            found punitive damages.

Held          1. If someone intentionally strikes at a person and unintentionally strikes a third
              person, then the Def is liable for battery.




Basely v. Clarkson (1681) (mistake no defence)
Facts        Def. unintentionally mowed grass belonging to the Plf.

Held          1. Intentional Act by Def., fact that is was a mistake is no excuse




Scott v. Shepherd (1773)
Facts        Def threw a lighted squib (firecracker) onto stall of Y, W picked it up and threw it
             across the market. It landed in the stall of R, who threw it into another part of the
             market where it struck the Plf and put out one of the Plf’s eyes.

Held          1. Def. can be held liable for battery even if not directed at Plf if the intervening
              agent are not acting of free will.
              1. Def liable for trespass (battery) and the injury held to be a ―direct‖ act of the Def.
              2. W an R did not break the chain of directness, b/c they were not free agents,
              acting under ―compulsive necessity‖ for their own protection.

Comment       1. Direct Act or Case of transferred intent




                                                                                                     15
Part 2A: Torts of Trespass to the Person

Torts without fault and without intention

1. Nuisance
      a. Affecting someone on their land

2. Defamation
      a. Statements

3. Conversion
     a. If you deal with someone else’s prop that you deal w/ as if it was yours


Kinds of Torts of Trespass to Persons

1. Battery
      a. If I actually hit someone it is a battery

2. Assault
      a. If I come toward him in a menacing way, up until the point I hit him it’s assault.
      b. If I’m at family funeral and someone starts taunting me and I threaten to beat them up,
         I would be held liable for assault but mitigation might occur with regard to damages.

3. False Imprisonment
      a. Covers willfully physically locking someone up to psychologically confining a pers on
      b. False b/c it’s done without right of law




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                                             Battery

What is Battery?

Cole v Turner (1705)
Held        1. Any touching in anger is battery
            2. Using violence and forcing one’s way in ―rude and inordinate manner‖
            3. Struggle w/ another person and it causes hurt
            4. Exclusion (incidental touching in common contact is not battery)



Defining Battery in Law in Canada

Direct harmful or offensive contact with the body of another or contact that interferes with the
autonomy of that other. Fault is assumed if causal link is established.

1. Harmful or offensive contact with body of another

2. Or a contact, which interferes with or precludes exercise of autonomy

3. It must be direct

   a. What is direct?

       1. Body to body

       2. Def propels something against Plf body

       3. Def touches or propels something tangible at object attached to Plf’s body
              i. I kick a horse that somebody is riding on

       4. Def administers something to Plf’s body

   b. Grey Areas of directness

       1. Def directs intangible against at Plf’s body (probably YES)
              i. I use a lamp to blind somebody with high powered lamp

       2. Def lets loose object of force which by other hands reaches Plf’s body (POSSIBLY)
              i. Could be battery or indirect harm

       3. Def sets up source of harm which may in future harm (USUALLY NO, b/c indirect)
              i. You poison linguini and put it in their fridge




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4. Fault is assumed and it’s up to Def. to prove lack of intent and lack of negligence.

        a. Pleaded trespass (if it is direct burden of proof shifts to Def., if it is trespass easier to
           get punitive damages), indirect harm, or negligence
        b. Restatement of Torts, 2 nd – semblance of order of battery defence in US
        c. American law on battery, battery is called an intentional tort

5. No passive Battery – i.e. passive blocking is not battery – Trindade

6. Kissing sleeping woman in front of friends would be battery

Defences

1.   Consent
2.   Self-defence
3.   Defence of property
4.   Necessity
5.   Legal authority



Neither assault or battery are popular torts these days, b/c victims are finding it easier to get
recompense thru the criminal justice system, especially since many offenders are poor. It also
makes sense to plead a number of different actions to try a catch the widest possible range of
things.

Interests Protected by Battery

1. Dignity of the person – least touching of person in anger

           a. R v. George – taking another person shoes (interfere w dignity)
           b. Tweaking someone’s nose, Stewart v Stonehouse
           c. Pulling a package out of someone’s hands, Morgan v Loyacomo
                  i. Knocking or snatching something under someone’s control if rude manner
           d. Spitting on someone, Alcorn v. Mitchell

2. Physical security – protects people against violent attacks/touching
         a. Interference with ones right to personal security
         b. Scalera

3. Protects right to decide what happens to ones body – Autonomy
         a. No need for harm to be done because the contact is offensive
         b. Gerula v Flores
         c. Mink v. Univeristy of Chicago
         d. Malette v. Shulman




                                                                                                       18
Gerula v. Flores
Facts        Man with slipped disk, goes in for operation. Dr. operates on wrong disk. Dr. cooks
             books in terms of what is found, convinces patient he needs another operation.
             Second operation is successful.

Held          1. 1st operation was battery (mistake made) so patient had not consented
              2. 2nd operation was battery, b/c there was no true consent, b/c doctor had
              concealed from patient what he had done.
              3. Court awarded punitive damages to show distaste for way Dr. acted in this
              case. $40K




Mink v. University of Chicago
Facts       Drug company testing on pregnant women thru University’s hospital. Told the
            women they were taking aspirin. Actually given new drug which causes defects to
            children.

Held          1. Battery – interference with autonomy of body in vulnerable time of pregnancy
              2. No product liability claim for mothers b/c no direct harm to mothers
              3. No negligence for failure to inform b/c no harm to mothers


Foreseeability

1. Liable for unintended consequences of intentional act, Bettel v Yim

2. Liable for all consequences that flowed directly from the act


Bettel v. Yim
Facts         Plf threw lighted matches into Def store. Bag of charcoal caught fire. Def grabbed
              the Plf and shook him with both hands to get him to confess that Plf had set the
              fire. While doing so came into contact with Plf nose and injured it severely. Def did
              not intend to hit the Plf’s nose, but did intend to shake the Plf.

Held          1. Def liable for ALL consequences of his actions
              2. Foreseeability does not apply to intentional torts
              3. Cites ―transferred intent‖ cases




                                                                                                 19
                                              Assault

Legal definition

Direct threat of harmful or offensive contact with the body of another or a contact that interferes
with that person's autonomy that causes imminent apprehension of contact, i.e. a reasonable
perception by the person claiming to have been threatened that there is both an intention and
the capacity to produce immediate contact. Fault is assumed if causal link is established.


1. Imminent apprehension (objective test)
      a. Stephens v. Myers – Plf must appear in a position to carry threat out

2. Threat of direct bodily contact that is harmful, offensive, or threatens the autonomy of Plf
       a. I. De S. & Wife v. W De S
       b. Harm = interference with peace of mind or sense of security

3. Fault is assumed, it is up to the Def prove, no intention and no negligence.


Qualifications

1. Unduly sensitive will not normally be protected unless Plf knows of sensitivity
         a. Thin skull rule
                 i. If some harm will be reasonably caused, then Plf will be liable for the FULL
                    amount of damage to person, even a very sensitive person

2. Fear of threat is not required for assault
          a. Brady v. Shatzel [1911] Queensland
                  i. Woman points rifle at police, but police not scared – still assault

3. Can respond with pre-emptive force
         a. Bruce v. Dyer
         b. Response must be proportional

4. There is no passive assault, there must be some reasonable apprehension
          a. Words alone are not enough

5. Using a car in a threatening manner can be Assault
         a. Herman v. Graves

6. Must be awake and conscious for assault – Aware of imminent apprehension

7. Conditional Threats are still assault
          a. If you don’t move I won’t hurt you
          b. Still assault b/c Plf has no right to interfere with Def autonomy



                                                                                                  20
Interests protected

1. Physical security

2. Mental welfare

3. Autonomy of person (against threat to interfere)


Cases


I. DE S. & WIFE v. W. DE S. (1348)
Facts        The Def. came calling late at night to a tavern owned by the Plf’ wife. The Def.
             banged on the door with a hatchet. When the Plf put her head out the window to
             tell him to stop, the Def. struck at her with the hatchet but did not hit her.

Held         1. An assault occurred because there was harm (interference with peace of mind)
             even though there was no physical harm



Stephens v. Myers (1830)
Facts       Plf chairman of meeting. The Def. arguing and so he was kicked out. Def
            advanced toward the chairman with a clenched fist what witnesses describe as an
            intention to strike, but he was stopped before he reached the chairman.

Held         1. If Def reasonably believes that Plf can carry out threat then it is assault
             2. Not every threat is an assault. There must be a means to carry out the threat.




Bruce v. Dyer
Facts       Plf prevented the Def from re-entering the lane in front of the Plf on highway. Def
            followed Plf and the Plf stopped his car in front of the Def and signaled for him to
            stop. Both drivers exited their cars with Plf. shaking his fist and a fight ensued, in
            which the Def fractured the Plf’s jaw. The Def claimed self-defence on the basis of
            the Plf’s conduct on the motorway.

Held         1. In favour of Def.
             2. Plf actions of shaking fist in advancing and blocking of car are assault
             3. Def. reasonable apprehension of violence justifies self-defence
                     a. Cites R v. Morse (1910)
                            a. ―when person is assaulted he may do more than ward off a blow,
                                he may strike back‖



                                                                                                 21
Herman v. Graves
Facts      Def. chased Plf car for distance after Def. passed Plf. Def. tailgated at speed until
           cars collided and went off the road. Def. then hit and kicked Plf.

Held         1. Def. driver committed assault with tailgating
             2. Def. guilty of battery and punitive damages

Comments     1. Highways and vehicle usually under negligence because of assumed risk




                                                                                               22
                                      False Imprisonment

Legal Definition

1. Direct

2. Confinement/Detention within physical or perceptual/psychological boundaries (objective)
   established by the Def without lawful authority
          a. Bird v Jones (boundaries, total confinement)
          b. Chaytor (Fear of force or fear of embarrassment is enough)

3. Fault is assumed, Def would have to prove didn’t intend and not negligent

Qualifications

1. Can also confine someone through control of personal object or person
      a. Jeeves v. Swanson

2. Negligent false imprisonment exists
      a. You lock bank vault, accidentally lock person in vault

3. ―False‖ means no legal authority or right to detain
       a. Def. has to have reasonable and probable cause

4. You can be falsely imprisoned without knowing it
      a. Harm could be done under imprisonment even if you don’t know it
      b. Meering v. Grahame-White Aviation Co (1919)

5.You can be imprisoned within a prison
         a. Taking away ―residual liberty‖
         b. R. v. Hill – imprisoned in solitary without mandated review

6. If there is an escape route, but it’s dangerous or it would cause embarrassment then it’s FI
        a. Bird v. Jones

Interests protected

1. Liberty or freedom of Plf

2. Dignity and self-respect

3. Physical security

4.Social/Ethnic dignity (emerging)
          a. Nolan v. Metro Toronto Police




                                                                                                  23
Nolan v. Metro Toronto Police
Facts       Police detained Aboriginal Plf. because there was a warrant in his name, but made
            racial comments.

Held         1. False imprisonment b/c police did not follow proper procedure and were racist
             and so no authority
             2. Detained Plf even though he didn’t fit the description of the person whom the
             warrants were for.
             3. No legal reason to detain Plf, could have written a ticket
             4. Punitive damages awarded



Bird v Jones
Facts        Def. constructed fence on a bridge to watch a rowing regatta. Plf barred from
             crossing thru fenced area by constable. Plf free to cross on unfenced side of
             bridge. Plf stayed in fenced area for 30 mins. Plf sued for false imprisionment

Held         1. No FI because confinement was not complete
             2. Must be defined boundaries and complete restriction
             3. Can occur if there is restriction imposed by orders of someone – e.g. Police
             4. Plf could have taken another route


Chaytor
Facts        Plfs employees of dept store. Plf went to the Def department store to check out the
             competition. Manager accused them of spying made them wait with store
             detectives while he called the police. Plfs accompanied the police to the police
             station in order to avoid embarrassment and b/c they felt compelled to do so. The
             Plfs were held for 15mins and then released.

Held         1. Fear of force or embarrassment can lead to confinement
             2. Existence of an exit is irrelevant if Plf doesn’t feel she can use it.




Jeeves v. Swanson
Facts       Plf. pick-uped an engraving done on bracelet. Plf dissatisfied with the quality of the
            engraving and asked that it be made right. Def. admitted the engraving was poor
            and asked Plf to take the bracelets and leave the store. Second Def. would not
            allow Plf to leave without paying for the bracelet. 2 nd Def locked the door (although
            could be unlocked from inside this was not know to Plf) and Plf (an child) were
            forced to remain for 30 mins until police arrived.

Held         1. Restraint can be result of 1) fear of force 2) avoid embarrassment 3) if Def has
             control of valuable prop of Plf.


                                                                                                24
                              Intentional Indirect Infliction of Harm
Legal Definition

Intentional indirect infliction of physical or mental harm by person of another by conduct or
words

1. Harm is required

2. Burden of Proof is on the Plf.

4. Foreseeability Rule – Substantial Certain – recklessness
         a. Lower standard that Reasonably foreseeable

Wilkinson v. Downton (1897)
Facts        As a practical joke, Def told Plf that her husband was badly injured, causing violent
             shock to Plf with vomiting and enduring physical symptoms needing medical
             attention (Plf not predisposed to such weaknesses)

Held          1. Intentionally doing an act calculated to cause physical harm to another i.e. to
              infringe that person’s right to personal safety
              2. Actual harm results
              3. No evidence of mental illness – Court inferred
              4. Constructive Intent - Consequences not intended in this case, but calculated
              act so intention can be imputed

Comment       1. Result not so remote that a reasonable person could not have foreseen
                    a. Bettel v. Yim


Qualifications

1. Wilkinson can be extend to indirect infliction of physical harm
          a. Bird v. Holbrook
          b. CC s. 247 prohibits ―mechanical contraptions, etc‖
          c. If Def. is there, then it would be negligence

Bird v. Holbrook (1828)
Facts        Def set spring gun in garden after flowers being stolen from garden, giving no
             notice i.e. with intention to will catch thief, Plf innocently enters garden to retrieve
             peahen and is shot.

Held          1. ―You can’t do indirectly what you can’t do directly‖
              2. If someone trespassed you must warn first, and then use proportional force




                                                                                                    25
2. Some argue that even if no proof that mental shock results in physical effects if the Def
   conduct is ―outrageous‖ there should be tort
         a. Rahemtulla v. Vanfed Credit Union
         b. Nolan v. Toronto Board –If Def behaviour is bad enough evidence may not be
             needed

          c. Punitive damages are easier to award in IIIH than in negligence

Rahemtulla v. Vanfed Credit Union
Facts       Plf wrongly fired by Def with a false accusation of theft (after money in bank went
            missing) and suffered mental anguish (depression, sleeplessness, stopped eating)
            as Plf could not obtain employment after the incident due to defamation. Medical
            evidence to support plaintiffs claim was not introduced

Held         1. Can have IIIH where no medical evidence of mental illness exists, symptoms of
             depression present and where the behaviour of Def is ―outrageous‖
             2. Intentional/Foreseeable that Def behaviour would result in the harm




Defences
3. Not intentional
          a. Bird v. Holbrook
                 i. Counter – What about child in that circ?

4. Plaintiff too far removed
           a. Counter - Bielitski, Purdy

5. No real suffering, no medical evidence
         a. Counter - Rahemtulla, Nolan



Interests Protected

1. Peace of mind – mental welfare

2. Physical security

3. Dignity and self-respect




                                                                                               26
Bielitski v. Obadiak – intend statement made to other to reach Plf –probably harm
Facts         Def spread rumour that Plf’s son had committed suicide, when Plf heard suffered
              mental shock/anguish causing physical illness

Held         Def. intended rumour to reach Plf, and reasonable person would know that in all
             probability it would cause not only mental anguish but also physical pain



Purdy v. Woznesensky – Should foresee 3rd Party mental and subseq physical injury –
(reckless)
Facts      Def struck husband knocking him down, wife suffers severe shock leading to
           prolonged medical care.

Held         1. Def. liable since he should have foreseen battery on husband would result in
             upset wife




                                                                                               27
Part 4: Intentional Torts to the Person: Protecting Autonomy and Dignity

                                      The Consent Principle

1. Express or Implied (O’Brien v. Cunard)
         a. Conduct can imply consent
2. Consent in Medical cases (Malette)
3. Consent in exploitation of prof relationships (Norberg)
4. Consent and sexual battery (Scalera)


Burden of proof
In intentional and trespass torts, lies on Def. to show Plf. would be reasonably seen to have
consented
        a. Cases that show Law: Norberg v. Wynrib, Kelly v. Hazlett, Hambley v. Shepley,
Scalera



O’Brien v. Cunard – conduct implied consent
Facts        Plf needed to have a vaccination to be able to pass through immigration. Def. Dr.
             vaccinated her. She said she had been vaccinated before. She held up arm to be
             vaccinated, at no point did she say she did not want to be vaccinated, she took
             vaccination ticket and used it. Filed suit for negligence, and battery

Held          1. She implied consent by her conduct, Court said that there was no negligence

Comments      1. Could argue that there was an unequal relationship here.



Norberg v. Wynrib
Facts       Plf addicted to painkillers. Def. Dr. proscribed pills and then used Plf dependence
            on pills to get sexual favours. Plf asked Def to help her. Def. told her to ―just quit‖.
            Plf. sued in sex battery, negligence, breach of fiduciary duty

Held          1. Burden of consent in sexual battery lies on Def
              2. No real consent give b/c 1) addiction 2) Def a Dr. 3) Plf dependence on Def
                     (LaForest)
              3. Fiduciary duty breached (McLachlin)
                     a. (1) F has scope for exercise of power (2) F can unilaterally use power (3)
                     beneficiary is especially vulnerable to F




                                                                                                   28
Consent in Sport

1. Participation assumes consent
           a. Agar v. Canning
                   i. Sets the rule, but Def held liable for punching Plf after being hooked in
                      hockey game
           b. Matheson v. Gov of Dal University College – person pushed in game
                   i. Infractions of rules expected
           c. Wright v. McLean
                   i. Boys throwing mud balls at each other, Plf hurt, court said there was
                      consent

2. To far outside the rules of the game then you are liable
           a. Colby v. Schmidt
                  ii. Rugby case where Def. punched Plf




                                                                                                  29
                              Sexual Wrongdoing and Intrusion

Qualifications

1. Time limitations once imposed have been eliminated by judicial interpretation or legislation

2. Burden of proving consent is on the Def, Norberg, Scalera

Reasons for Modern proliferation of Sexual Abuse Actions

1.   Distinction b/w public and private has fallen away
2.   Former view that these were not matters for public airing
3.   There is more evidence of what was going on behind closed doors – Catholic Church, etc.
4.   Group of feminist lawyers in BC who have been willing to push the issue
5.   Courts are becoming more comfortable with dealing with these issues.

Traditional view of sexual relations, rights of women and the tort

Latter v. Bradell
Facts        Def. employer suspected Plf (serving girl in 19th c. UK) was pregnant. Ordered Dr.
             to examine Plf. Plf. said she didn’t want to be examined and was crying.

Held          1. No sexual assault
              2. Plf consented even if reluctantly, she could have refused

Comment       1. Decision driven by class and gender stereotypes of the time


Hegarty v. Shine (Irish Court of Appeal)
Facts       Plf given VD by her Def. lover.

Held          1. Plf consented, court will not enforce consequence of immoral act

Comments      1. Court uses stereotype of ―fallen women‖ to find that contact was not harmful or
              offensive.
              2. Former Chief Justice of BC cited this case approvingly in Norberg




                                                                                                  30
Pros and cons of civil litigation in sexual abuse
Pros
1. Institutional Advantages
            a. Control of litigation greater than in criminal trial
            b. Plf has more favourable burden of proof (i.e. balance of probabilities)
            c. Compensation available
            d. Possibility of access to institutional funds (through vicarious liability doctrine)

2. Strategic and Personal Advantages
           a. Allows people that have suffered to take a stand
           b. Court acts might have deterrent effect
           c. Public articulation of what is socially reprehensible conduct
           d. Focus on needs of survivor
           e. Possibility of bringing civil suit may aid in healing process for victim

Cons

1. Very expensive
       a. Makes poor women more vulnerable because they are seen to be w/o means of
            recourse
2. Some Def may be judgment proof (Def has no money)
3. Case where Def offers no defence
       a. Limited Therapeutic value of Def not being there
4. Civil like Criminal proceeding is still adversarial
5. Pressures and stresses in going public against abuser
6. Certain judges may continue to have blinkers on this action

Sexual Abuse in Family

1. Abuser’s Liability K (M) v H (M)

K (M) v. H (M) – breach of fiduciary duty and statute of limitations
Facts        Def father abused Plf daughter over long period of time. Plf told number of people-
             mother, school officials. Plf sued at age 28.

Held          1. Action of abuse w/in family can be sex battery or breach of fiduciary duty
                     a. Sex battery – harmful conduct, power imbalance
                     b. Breach of Fiduciary Duty – emphasizes parents responsibility
              2. Statute of limitations begins from time Plf realizes nature of conduct not from
              time of conduct itself




                                                                                                     31
2. Limitation Act 1996 RSBC r 266 s. 3 (2) and 4 k l
       a. Notion in the law that allowing claims to fester w/o a suit being brought
       b. Limit for bringing Tort is two years
       c. Limitation in sexual abuse actions have been extended or abolished through court
           interpretation or through legislation.
               i. SCC in K(M) v. H (M)
       d. In BC, for children limits have been abolished
       e. In BC for adults limits abolished for sexual battery

3. Non-Abusive Partner Liability (J (LA)) v J (H) and J(J))
     a. Engaged in two ways
               i. Plf can bring an action against both partners
              ii. Abusive spouse brings partner in as third party or co-Def
     b. Reasons for Plf action
             iii. May be related to compensation (i.e. Abusive spouse has no assets)
            iv. If there is an insurance policy usually insurance money is not available for
                  intentional tort, but typically is available for negligence.
     c. Literature
               i. Not as simple as the judge makes it out to be
              ii. Very important to look at context of the negligence
             iii. Not as simple as saying ―mother didn’t carry out responsibilities‖
            iv. ―Keeping the family together‖ another issue that comes up
              v. Liability for non-abusive partner only for the most egregious cases.
            vi. In J(LA) case judge found mother guilty for fiduciary breach in addition to
                  negligence.
                      1. Test for fiduciary breach is simply – failed to act in best interests of.
            vii. BC law reform commission – this should not be an option if the abusive spouse
                  has drawn the non-abusive spouse into the suit

(J (LA)) v J (H) and J(J)) – Mother as liable party as well
Facts         Def. was ―father‖ (actually the uncle) of the Plf. Abused Plf over long period.
              Mother knew of abuse and stopped Children’s Aid from intervening. Def. asset
              was house which he put in mother’s name when the suit commenced.

Held         1. Mother can be brought into suit as third party liable
             2. Mother breached fiduciary duty
             3. Punitive damages against mother
             4. Def. admitted liability, no damages since she was imprisoned




                                                                                                32
Sexual Abuse in Professional Relations

1. Three bases of liability, Norberg
         a. Breach of fiduciary duty, sexual battery, negligence (as a Dr.)


Norberg v. Wynrib
Facts       Plf addicted to painkillers. Def. Dr. proscribed pills and then used Plf dependence
            on pills to get sexual favours. Plf asked Def to help her. Def. told her to ―just quit‖.
            Plf. sued in sex battery, negligence, breach of fiduciary duty

Held          1. Burden of consent in sexual battery lies on Def
              2. No real consent give b/c 1) addiction 2) Def a Dr. 3) Plf dependence on Def
                     (LaForest)
              3. Fiduciary duty breached (McLachlin)
                            (1) F has scope for exercise of power
                            (2) F can unilaterally use power
                            (3) Beneficiary is especially vulnerable to F

Comments      1. Court relied heavily on LEAF brief which argued lack of consent and sex battery
              2. LEAF argued that this was an Equality issue – breach of Charter values




Sexual Battery and Consent

1. Burden of proof is on the Def., Norberg, Scalera

2. Reasons (McLachlin J in Scalera)
        a. It is a rights infringement
        b. Situations require explanation by Def.
        c. Def. better placed than Plf to reveal what happened
        d. High demoralization costs to the Plf.

3. Dissent about who bears the onus of proving consent
       a. Sopinka J in Norberg, Iacobucci in Scalera
       b. Scalera dissent
              1. Sexual touching special case, that is not presumptively harmful




                                                                                                   33
Non-Marine Underwriters v. Scalera [2000]
Held       1. In sexual battery like other battery the burden of proof is on Def.
           2. No duty of insurance company to defend
           3. Plf does not need to show touching was ―harmful‖ sexual touch diff than jostling
           in crowd
           4. Dangers in shifting burden to Plf.
                          a. Victim blaming
                          b. Produces inconsistencies between Criminal and Tort Law
                          c. Unfair to ask Plf to get into Def. mind
           5. Reasons for shifting burden to Def.
                   a. Facts usually cut and dry
                   b. Somebody needs to answer and that should be def
                   c. Value to Plf of smoking out evidence
                   d. High demoralization cost to Plf as victim of violation of personal security


Damages – Campbell, Finey, and McLaren

1. Problems lead to under-compensation in sexual abuse cases
2. Experiential Gap
         a. Plf usually female, judiciary usually male
3. ―Harm‖ in sexual battery is psychologically and emotionally serious harm but not valued
         a. e.g. if woman is composed on witness stand, not seen as deserving damages
4. Lower awards for women in torts generally because women are chronically underpaid
5. Formal equality results in inequality b/c it doesn’t take women’s situations into account

Sexual Harassment

Clark v. Canada
Facts       Plf was RCMP officer. Harassed by co-workers, supervisor did nothing to stop
            harassment and participated as well. Plf finally quit early.

Held         1. Found Tort of IIH
             2. Vicarious liability for RCMP
             3. Decision also supports race, ethnic or other harassment
             4. Fact that Plf did not seek counseling not the same as refusing counselling




                                                                                               34
Sterilization
1. BC statute allowing eugenic sterilization passed in 1933 was repealed in 1973
2. SCC in 1986 in Eve v. MrsE set down the conditions for sterilization (outlawed sterilization in
   the non-therapeutic cases (PARENS PATRIAE power – parents have right to make
   decisions in the best interests of the child)
          a. Mother managed to have 21 year old son castrated by a Dr.
          b. If people in teenaged years are interfered with in their right by parents, then the
             teenager may sue if court determines they are mature enough to make their own
             decisions

Muir v. Alberta
1. Govt Alberta accepted responsibility of sterilization
2. Plf also sued for wrongful detention
    a. Plf was admitted to Michener Center under validly enacted legislation
    b. Plf counsel argued not against retroactivity, but that the Act was wrongfully applied to
         her.
    c. Also received compensation for aggravated damages
    d. Approx. $750K
3. Did not succeed in argument that she would have done better in life w/o the sterilization
4. Only BC and Alberta had eugenics legislation
5. It was a test case for other people.
    a. Klein introduced restriction of amount of claims
6. Case is also about broader conception of what we consider fair and just
7. United Farmers party brought in Sexual Sterilization legislation was brought in.
8. Plf lawyers did very careful historical research around the behaviour
    a. Widespread, misguided experiment
9. Even if legislation was valid at the time if the results continue to affect you after the
    legislation had passed out if you still felt the effects
10. Case illustrates you can use the court room to bring past wrongs into view




                                                                                                  35
                                     Protecting Ethnic Dignity

Wong Hoy Woon v. Duncan (1892)
Facts     Plfs paid the head tax, they’d been examined by Doctor on the boat, and no
          evidence of epidemic in HK, they are grabbed by Local health officer and taken to
          quarantine statement.

Held          1. Damages for Trespass to the person and False Imprisonment
              2. Def. abused his powers as health officer
              3. Judge treats it as a test case

Comments      1. Seven years after Chinese head tax in BC. Lots of racism in BC at the time
              2. Crease J would not have had much contact with Chinese people, but that
              Chinese were useful for ―economic purposes‖

Mulloy v. Hop Sang
Facts       Def says Plf amputated his injured hand against his will. Def refuses to pay.

Held          1. Not sufficient attempt by the Dr. to explain the situation to the Def.
              2. Implied that Chinese immigrant needs to be treated with maybe more care than
              fluent English-speaker.
Nolan
Facts         Plf was FN person, and police officers had used derogatory language.
Held          Judge making a statement in case about the wrongness of the racial discriminated

                                        Culture and Consent

1. It is quite a rare occurrence in tort situations

2. Tension between the Western system and FN practices of justice and social control

           a. e.g. In Inuit system the punishments may be seen as harsh, but in context of the
              small communities and the danger of social disharmony in that environment they
              are arguably necessary

3. The realities of Torts and the broader compensation system

           a. Torts are used to protect Individual rights, but also for punitive, distributive, and
              educative aims.
           b. 95% of claims are settled in negotiation
           c. Tort is not just about individual, there is an element of community in there
           d. The notion of the CL is highly rational still carries on

4. The way ahead in reconciling Canadian and Aboriginal Justice
         a. There needs to be a political and legal debate on this issue
                i. What does ―self-government‖ mean in practice?
         b. Collective system of ability of family members make decisions for other family
            members
         c. In Australia in Northern territories, there has been some allowance of the
            wrongdoing – e.g. ritual scaring of the leg with a spear to ―mark‖ the Def.
                                                                                                      36
Youmans
Facts        European trader took on young Gitxsan man, but man died accidentally, but
             Youmans did not tell anyone about it. Youmans was stabbed by the uncle.
             European community was outraged.

             Gitxsan wrote a letter and said that in Gitxsan law if you take responsibility for
             someone, then you must inform the survivors and make amends. It is considered
             legitimate for you to pay the price with your life.

             The letter was rejected by provincial govt. Uncle was hanged.



Thomas v. Norris
Facts      Plf forcibly taken from friend’s home without his consent and confined in Coast
           Salish Big house and roughed up as bit, on the request of Plf wife b/c Plf had a
           drinking problem.

Held         1. Def. guilty of FI, Battery, and Assault
             2. Def. right to ―spirit dancing‖ not protected under s. 35 of the CA1982
                    a. Def. did not make a case for the protection based on the facts
                    b. Even a FN right, right extinguished by reception of British Law

Comments     1. Counsel for the Def. and the Def. felt constrained, not able to open up about the
             ―spirit dancing‖ because there are secret elements that can’t be revealed in public
             2. FN people felt uncomfortable with Western litigation
             3. Women in FN societies argue it may be necessary to allow women to have
             appeal to Charter because of nature of FN society
             4. Arguable that compared to law in 1858, spirit dancing ritual mild by comparison




                                                                                               37
                                   A Tort of Discrimination?
Tort of Discrimination

1. There have been cases that have argued to protect the rights of discrimination
         a. Bhaduria only one to make an explicit Tort of Discrim– struck down by SCC

Bhaduria v. Seneca College
Facts       Plf applied for a teaching position and was repeatedly rejected.

Held         1. OCA said if a wrong is done to you should have a remedy
             2. CL is broad enough to recognize Tort of Discrimination
             3. SCC struck down because Human Rights Code trumps civil liability

Comments     1. Up until 1950s, Canadian law terrible at protecting from discrimination
             2. Bhaduria decided before the Charter
             3. There are now serious problems with human rights apparatus
                    a. e.g. Human Rights Commission abolished in BC

Other venues to pursue Discrimination

1. Existing Tort Law
           a. IIIH
                     i. Nolan
                    ii. If sex discrim can be IIH - Clark v Canada
                   iii. If definable health impact – Wilkinson v. Downton
                   iv. Maybe if there is just mental distress too – Rahemtulla, Nolan
           b. Negligence
                     i. Jane Doe

2. Human Rights Code
        a. (In Ontario) squeezes out the CL in terms of allowing a civil liability
        b. Could argue that Bhaduria could be reargued based on fact that HR admin
           system has proven problematic in terms of delay, or HR commissions have been
           abolished, and Bhaduria was decided before the Charter.

3. The Constitution
         a. Jane Doe – treated unequally before the law s 15(1) Charter
         b. Has to be an agency of a state to be able to bring a Con Tort
         c. s. 24 (1) Remedies – If rights infringed or denied person may apply to court for an
            appropriate remedy

4. Statutory Liability
          a. Civil Rights Protection Act (CRPA)
          b. No need to prove damage
          c. Not used very often b/c lawyer don’t know about it, may be concerned about
             Charter challenges (unlikely since Keegstra), or in most cases it is easier to argue
             under another Tort


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CPRA
In this Act, "prohibited act" means any conduct or communication by a person that has as its
purpose interference with the civil rights of a person or class of persons by promoting
(a) hatred or contempt of a person or class of persons, or
(b) the superiority or inferiority of a person or class of persons in comparison with another or
others, on the basis of colour, race, religion, ethnic origin or place of origin.
       i. Prohibited act is actionable
(1) A prohibited act is a tort actionable without proof of damage,
(a) by any person against whom the prohibited act was directed, or
(b) if the prohibited act was directed against a class of persons, by any member of that class.

2) If a corporation or society engages in a prohibited act, every director or officer of the
corporation or society who authorized, permitted or acquiesced in the commission of the
prohibited act may be sued by the persons referred to in subsection (1) and is liable in the same
manner as the corporation or society.

 (3) In an action brought under this section, the commission of a prohibited act by any director or
officer of a corporation or society must be presumed, unless the contrary is shown, to be done,
authorized or concurred in by the corporation or society.



Brochu v. Nelson
Facts       Plf Lineman for BC Hydro sued supervisor because he claimed he had been
            discriminated based on being French Canadian.

Held          1. Claim not substantiated on the facts



R v. Garbara
Facts        Def. assaulted Plf and it was racially motivated.

Held          1. Judge mentioned Civil Right Acts in Criminal Action, but not applied
              2. Judge said as a matter of public policy this activity is reprehensible
              3. Accused guilty of assault




                                                                                                   39
                       Justifications and Defences other than Consent


Justification
1. ―Not my Act‖ – Lack of Volition

Smith v. Stone
Def. carried onto land against his will, so trespass case cannot stand


Gilbert v. Stone
Facts         Stone confronted by 12 armed men and ordered to steal a horse, he stole the
              horse

Held          1. Involuntary, but intentional, so Def liable

Comments      1. Basley v. Clarkson (lawn mowed) – intention is not required to trespass
              2. Stone might argue duress or necessity




Regina and Dudley v. Stevens
Facts       Def. adrift at sea for 21 days. They kill and eat the youngest sailor. 3 day later they
            are rescued.

Held          1. British people do not eat others
              2. Sentenced to 1 year in nice penitentiary




2. Mental Incapacity

Gerigs v Rose
Facts       Mental patient attacks Plf. Argued for the Plf that he was mentally incapacitated

Held          1. If you understand type of action (consequence) its result then even if mental
              incapacity then you are liable
                      a. POLICY – moral quality std would inhibit compensation for Plfs
              2. In Criminal Law it is ―quality‖, which has moral component so it is stricter std.




                                                                                                     40
3. Children (especially of a tender age)

       a. Criminal Law kids under 12 not liable
       b. This is not necessarily age for Tort
       c. US States have held children as young as 4, and vicarious liability for parents (Ellis)

Tillander v. Gosselin
Facts         Child of 3yrs who drags baby out of pram and he drags her along the path, and
              baby suffers brain damage

Held          1. In Trespass – Child cannot be said to have acted deliberately or with intention
              2. J – if this were negligence, kid would not be able to understand that he has a
              duty of care, so wouldn’t be able to breach duty
              3. Cites age of 7 non-liable for Crim


Defences

1. Consent
    a. General
    b. Medical
    c. Sexual Battery
    d. Sports

2. Self-Defence Elements

        i. Assumes attack or apprehended attack on the person (Macdonald v. Hees)
              1. Sufficient if there are reasonable and probable grounds for person to believe
                 even if it turns out to be wrong

       ii. Potential victim has to act in order to defend themselves
              1. Not self-defence to retaliate (Cockroft v. Smith)
              2. Not self-defence to respond to provocation- e.g. verbal abuse-with force
                  (Evans v. Bradburn)
                      a. May provide mitigation to damages though

       iii. Defensive action must be proportional (Cockcroft, McNeil v. Hill, Bruce v. Dyer)
               1. Does not have to be measured with niceity
               2. It may be permitted to kill in SD, but must try to escape first
                      a. Exception to this rule if you are in your own house
       iv. Onus of Proof is on the person raising the defence (Mann v. Balban)
               1. Defensive action was warranted
               2. Force used was not excessive




                                                                                                    41
3. Provocation

       i. Should provocation reduce damages
       ii. One view – yes but just punitive
               a. Reflects courts frustration that they have to deal with this type of behaviour at all
       iii. Another view – yes but compensatory damages
               a.Judge holds this view because this is similar to negligence. If Plf has contributed
               to own damages
       iv. Conflict is still not resolved, b/c Defosse only trial decision

Defosse v. Wilde – lack of proportion in responding to provocation
Facts       Bar fight, Def. said he was preventing Plf from doing harm to Plf’s sister. Def. beat
            up Plf, court held that there was some provocation when Plf ripped Def shirt and
            punched him.

Held             1. Court held that there might be cause to intervene, but that Def’s actions went
                 beyond any reasonable limits

4. Defence of Third Party

         i. Rules similar to self-defence
        ii. Measured response, but not with nicety (Gambriell v. Caparelli)
       iii. Criminal Code offers defences in ss. 37(1) and 27

5. Defence of Property

         i. Occupier of land may defend land
        ii. Must normally ask trespasser to leave and can use reasonable force make them
            leave
               1. Exception where trespasser forcible enters land, e.g. break down door
                       a. (Green v. Goddard)
       iii. Retaliation not allowed
               1. Bigcharles v. Merkell
       iv. Force used must be appropriate (Macdonald v. Hees)
        v. Booby traps not allowed
               1. Bird v. Holbrook
               2. Def. would not have been allowed to do directly what he did indirectly
               3. Crim Code condones dogs and barbed wire if notification present
                               i. If trespasser read and understood warning
               4. ―trespassers will be shot‖ signs have no legal value


6. Duress/Necessity

         i.   Gilbert v. Stone - horse rustling
        ii.   Regina v. Dudley and Stevens -Cannibalism case
       iii.   Court has been unlikely to allow this defence
       iv.    It has usually been recognized in cases of property
                  1. e.g. There’s a snowdrift in the road and I need to drive onto a bit of your
                      property to get around it
                                                                                                     42
7. Legal Authority
         a. Most frequently used – usually in assault, battery, or False Imprisonment
         b. Not one CL doctrine, but wide umbrella of Statutory defences
         c. But…is a statutory protection valid in civil cases, since Tort law is provincial, or
             under Charter
         d. CC – C-46, ss. 25, 494, 495
                  i. Used for False Imprisonment
                 ii. Gives authority as long as PO have RPG

          e. Need to be informed of reasons for arrest – Koechlin v. Waugh (1957), Christie
             and Another v. Leachinsky (1947)

          f. s. 25 (1) cannot be used to justify force in case of an unlawful arrest that does not
             meet s. 495 – Swansburg v. Smith (1996) BCCA




                                                                                                   43
                          Vicarious Liability and the Intentional Torts

Purpose
Not a unique Tort but a way of apportioning strict liability to employers in situation where
employee is the direct tortfeasor


Sagaz Industries Canada
Facts       Consultant to seat-making company bribed Canadian Tire employee to favour their
            company over another seat-maker.

Held          1. Held that consultant was not an employee and fully under Sagaz’s control
              2. No vicarious liability

Comments      1. Lays out the Policy issues and tests for Vicarious liability


Policy justifications

1. Ability to Pay
           a. Injured party has access to a someone beyond tortfeasor who will be more likely to
               pay
2. Cost of doing business
           a. If employer uses employee in the course of his enterprise it is oonly fair business
               should absorb the cost
3. Spreading the Cost
           a. Employer is often in much better place to spread the loss through insurance or
               higher prices
4. Deterrent
           a. Employer has control and supervision of employee and may be able to reduce
               risks

Conditions

1. Relationship must be close enough that it is fair to impose vicarious liability

2. Employee must be working in the interest of the employer




                                                                                               44
Relationship

1. Control test
         a. Does employer have control of employees work – how, when and where the work
             is done, if not then person is probably an independent contractor
         b. Test developed at a time when most employees worked under close supervision
         c. Sagaz
                  i. Control test has been loosened to emphasize overall supervision and other
                     factors: does worker own her own equipment, workers hire own helpers,
                     degree of financial risk taken on by employee, responsibility for investment
                     and mangement, and opp for worker to profit
                 ii. Not an exclusive list

2. Organization Test
         a. Whether or not the employee is integrated into the employers structure or
             organization
         b. Problem – if drawn too broadly then could count people who are independent
             contractors
         c. McLaren likes, SCC does not


3. Cases where employee have two employers
     a. Depends on circs how the Court will apportion liability
     b. Residential Schools – back and forth in court as to whether Govt or Church
         a. SCC finally said Govt solely resp.
     c. Foster Care in BC (KLB v. BC)
         a. Court said there was not a sufficiently close relationship b/w Govt and Foster care
         b. So no vicarious liability in cases of abuse by foster care
         c. Relationship not close enough, and not likely to be a deterrent
         d. Arbour Dissent
                i. There is suff. control, state initiative
               ii. Who do the children in care depend upon – it has to be the state

4. Employee must be working in employers interest

          a. If working ―within the course of employment‖ CPR v Lockhart

          b. If working in employer’s interest (even in trespass)

Evaniuk
Bouncers in bar get overzealous and use excessive force to protect bar owner interest

          c. If you are doing something in your own interest, then no vicarious liability

CPR v. Lockhart
Employee driving to job using uninsured vehicle contrary to employer’s instructions, but held
liable b/c he was working ―within the course of employment‖– but this is negligence




                                                                                                45
Vicarious liability for intentional torts for liability for sexual abuse/assault

1. Test set by court (Bazley)

       a) Is relationship b/w the wrong done and the operation of the employer sufficiently close
       that is would fair to impose liability on the employer?
               1) This includes situations where there is higher risk of sexual abuse b/c of the
               nature of the job employee is put in

       b) Is there a chance that if VL imposed that it will have beneficial deterrent effects


Factors to be included in Test

1. What are the opportunities for abuse
2. Is the wrong in the furtherance of the employer’s aims
3. Nature of relationship b/w employee and child - is there intimacy?
4. What auth does employee have over child
5. Vulnerability of child


No VL on non-profits?
1. Seems to be some backtracking on this in Jacobi

Unclear Area of the Law
1. JM- Courts don’t seem to take Deterrent into account much


Bazley
Facts         Def. worked in residential care facility run by children’s foundation to look after
              emotional and physically abused kids. Substitute parents

Held          1. Absent authority, court must impose VL on policy grounds
              2. Does fall under ―course of employment‖
              3. TEST set by court
              4. VL should be imposed
                     a. Employee was req to act in parental control, brought Def close to children
                     in intimate way, and children were vulnerable




                                                                                                    46
Jacobi
Facts         Def. president of club that ran outdoor activities after school sex abuse kids.

Held          Majority
              1. Def not in parental role, just a few hours at the end of the day.
              2. Not fair to impose liability
              3. Deterrent factor not strong enough

              Minority
              1. Enough here to warrant a finding that there was suff close relationship
              2. And could be deterrent

Comment       Much critical comment on this case
                        a) Only in cases where putting position as a parent that VL




Clergy Cases
Held       1. Clergy abuse the SCC has upheld VL
           2. Fact dependent

Comment       1. Seems incoherent with Jacobi decision
              2. This is an unclear area of the law
              3. JM – not sure that courts take the issue of deterrence all that seriously



Non-Delegable Duty

If tortfeasor is independent contractor then the employer will not be liable

Exception
If circumstances, such that Employer has an overarching duty to public those served by
employer, then employer may be liable even if the tort committed by an independent contractors

       1) Where employing engaged in Dangerous activity
       2) Strict statutory liability
       3) Lateral support


2. Lewis expands NDD, but NDD has been not been used to expand in cases of sexual abuse




                                                                                                47
Lewis v. BC
Facts       Work done of land adjacent to roadwork, farmed out to private contractors.
            Contractors are negligent.

Held         SCC said this is where we can impose NDD.
             Factors
             1. Nature of the relationship b/w employer-independent contractor
             2. Nature of the duty of care undertaken
             3. Surrounding circumstances
                  i. If basis of responsibility is statutory then you have to look at the statute
                 ii. Overarching responsibility on ministry on safety and maintenance of
                     highways and adjacent land - Act


EDG v. Hammer
Facts     Janitor sex abuse student in basement over period of time. Teacher and principle
          did not know.

             1. SCC no duty of schools to look after children, b/c no overarching duty in leg.
             2. Specific ref to children, health act, inclement weather, and repair and
             maintenance of building only.


KLB v. BC
Facts        Children sexually abuse in BC Foster Care

Held         1. SCC not enough responsibility on the superint. of foster care to warrant VL
             2. No broad overarching duty to ensure no harm once kids in Foster Care

Dissent      Arbour J
             1. There is sufficient control, state initiative
             2. Who do the children in care depend upon? – it has to be the state




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