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FALL TORT LAW SUMMARY (5145 – PROFESSOR KOSTAL)

TORT LAW INTRODUCTION
 Tort law: concerned with breach of obligations
o Public wrongs: addressed through criminal law (person breaches obligation owed to society as a whole)
o Private wrongs: addressed through tort law (breach of obligation to individual)
o Purpose: compensation the plaintiff with damages (focus on plaintiff’s loss, not defendant’s gain)
 Tort law vs. Contract law
o Both give rise to primary obligations (how individual should act) and secondary obligations (how individual should act
after breaking primary obligations, remedial, ex. pay money)
o Tort obligations: compensation looks backwards, puts plaintiff in position they would have been in if the wrong was
never committed (restoring wholeness)
 Obligations imposed by circumstance (owe duties to strangers, even if unaware)
o Contract obligations: compensation looks forwards, puts plaintiff in position they would have been in if the agreement
was performed
 Obligations are voluntarily created (“privity” - only parties in contract can sue)
o Plaintiff cannot enjoy double recovery if lawsuit is successful on more than one basis (between tort and contract law)
 History of Tort Law
o Writ System: formalized process of pleading used in 11th C England
o Very dogmatic – must fit the facts of the case into 1 of 2 actions (if you choose the wrong one, can’t try it again):
 Trespass vie et armis (trespass with the force of arms):
 Direct application of force against person or their property, not necessarily intentional
 Evolved into modern tort of intent
 Actions on the case:
 Indirect application of force on plaintiff
 Evolved into the modern tort of negligence
 Types of liability
o Absolute liability: defendant is liable for simply engaging in proscribed behaviour (proof that the loss was caused is
enough for absolute liability)
 Plaintiff not required to prove negligence/intent
 Does not exist in Canadian civil law, and there are no defences
o Strict liability: an obligation was breached but defendant didn’t do so negligently or intentionally (act caused the
outcome, your fault caused the “risk”)
 Must just prove the misuse of property (not based on blameworthiness or carelessness)
 Ex. Wild tiger escapes – you don’t need to prove intent/negligence, liable if tiger bites someone
 Some defences available: i.e. if escape caused by 3rd party, act of god, or inevitable result
 Vicarious liability: employment relationships (most common type of strict liability)
o Fault based liability
 Negligence (unintentional): failure to take reasonable care to prevent foreseeable harm to another person
 Plaintiff must prove defendant breached the standard duty of care, and this caused the loss
 Intentional: liability for intentionally inflicted harm
 Plaintiff must prove defendant intended to bring about certain consequences
o No liability: despite possible causal connection, types of conduct lie outside of the scope of tort law
 Feasance: conduct/action, use it in relation to 3 prefixes
1. Malfeasance: intentional tort, intentional conduct/action
2. Misfeasance: negligent tort, unreasonable/careless action
3. Nonfeasance: failing to act, omission of action
 Ex. Hit and run (misfeasance = accidentally hit person, nonfeasance = failing to call ambulance)

Scott v Sheperd (1558-1774) This is a legal fiction – inanimate objects do not have mischievous qualities
Facts: D threw lit firecracker into market. It landed into 3rd party’s stall, who threw it into 4th party’s stall, who threw it near P. The squib
exploded and took our P’s eye.
Issue: Is a person guilty of trespass via et armis when harm results from indirect action/ a chain of events? Hold: for P, D is liable
Reasons: P was the one who “gave the mischievous faculty to the squib”, no new power was given to the squib by intermediate parties
 Dissenting (Kostal likes) – there is a disctinction between direct/immediate injuries and mediate/consequential injuries, not liable
because no direct application of force, therefore no trespass… Kostal says Blackstone is defending the rule of law by following
stare decisis and applying the law passively
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Ratio: Kostal disagrees with judgment… thinks it’s a “legal fiction”, trespass means direct and this tort was indirect by definition, ¾ judges
didn’t passively apply precedent (used instrumental justice)
Leame v Bray (1803) Intent in irrelevant to establish trespass
Facts: D drove carriage into P’s carriage, causing him to jump out and fracture his collarbone. P sues in trespass but D argues negligence
because not willful (dark night, he couldn’t see).
Issue: Whether the P received an injury by force from the D? Hold: for P, D liable for trespass
Ratio: Immaterial whether the injury be wilful or not… was an immediate injury from an immediate act by force of D

Holmes v Mather (1875) If act not wrongful (in intent or negligence) then defendant is not liable
Facts: D driving carriage, horses go out of control, D unsuccessfully tried to control and ran into P. P sued in negligence and trespass.
Hold: for D, not liable for trespass or negligence
Reasons: D is “free of all blame” as he didn’t do anything wrong and attempted to do what was best in situation
Ratio: “If the act that does an injury is an act of direct force… trespass is the proper remedy (if there is any remedy) where the act is
wrongful, either as being willful or being the result of negligence.” If it’s not wrongful for any of these reasons, no action is maintainable.
 People on roads must expect/put up with mischief as reasonable care on the part of other can’t avoid

Cook v Lewis (1952, SCC) Rare case where old trespass writ is still relevant
Facts: Three hunters, two shot at flock of birds, third (P) was in bushes and was shot in the eye, can’t tell which caused loss
Hold: For D, not liable of negligence by “actions of the case”
 could have been liable via trespass (direct action brought it about), P argued the wrong charge
Ratio: “where a plaintiff is injured by force applied directly to him by the D his case is made by proving this fact and the onus falls upon the
D to prove that such trespass was utterly without his fault”
Note: Case still discussed today as it changed the writ system and the flexibility of the pleading system (one of few cases where old trespass
writ is still relevant). A legal realist conception (as opposed to a formalist one where judges merely apply past cases objectively) holds that
judges decide who they think deserves to win, then go back and apply old cases to fit with their decisions is supported by Cook

REMEDIES IN INTENTIONAL TORTS

 Plaintiff must establish elements of tort at issue (liability = fault + cause), then onus shifts onto def to establish a defence
 Judicial Remedies (4)
1. Damages (grants plaintiff legal right to a specific sum)
2. Injunction (court order directing a party to do/refrain from doing an action)
3. Declarations (formal statement/declaration from a court)
4. Orders of Specific Restitution (directs a party to restore a pre-existing condition or return an object)
 S. 24(1) of Charter provides a person whose Charter rights have been infringed upon ability to seek remedy from court
o Unlike common law tort actions, not entitled to a remedy
 Damages
o Can only be compensated for a loss you actually experiences (once awarded, damages are a fixed amount, can’t change)
o Can be awarded both:
 Pecuniary: monetary losses (future loss of earnings, future medical costs, “special”, aggravated)
 Non-pecuniary: non-monetary losses such as pain and suffering (not humiliation, that is aggravated)
o Types of damages:
 Special damages: those that can be exactly quantified at time of trial (onus on P to plead and prove)
 General damages: those incapable of such quantification (no such onus due to speculative nature)
 Intentional Damages (4)
1. Nominal Damages: awarded a small sum to redress violation of a legal right that the law deems worthy of protection
(even in the absence of harm)
 Ex. D walks on P’s land without causing any harm, but still liable for trespass
 Court never uses, not worth suing for such a small amount
2. Compensatory Damages: corrective justice to injured P in the form of “restoration” (puts you in baseline position)
a) Aggravated Damages: form of compensatory damages, awarded to compensate P for additional injuries to dignity
arising from the D’s reprehensible conduct, goal is to return P to baseline (distinct from punitive)
3. Punitive Damages: damages for punishment (looks backwards to moral blameworthiness) and deterrence (looks ahead
to fin. disincentive to discourage wrongdoing), act must be intentional and malicious, awarded in addition to full comp.
 Relatively uncommon in Canada, awarded only if compensatory & aggravated are insufficient
 Not about corrective justice, but retributive (controversial because civil court’s purpose is compensation)
 If already been a criminal prosecution, can’t give punitive damages (can’t be punished twice for the same act)
4. Disgorgement Damages: when the D is forced to give up their profits/benefits obtained from their tortious conduct
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 Principle that people should not profit from their own wrongdoing
 Shifts focus from plaintiff’s loss to defendant’s gain
 Unjust Enrichment: independent claim, deals with unjustified transfers of benefit between P and D (often misused)
o Ex. P accidentally deposits money in D’s account when they intended to put it in their own
o D did nothing wrong, but P entitled to recover (D must “give back” exact amount)
o 3 elements: an enrichment to D, corresponding deprivation to P, and an absence of a juristic reason for
enrichment (i.e. can’t be a gift or part of a contract)

B(P) v B(W) Example of when punitive damages were awarded

Facts: P sexually assaulted by D (father) from age 5-18, then raped at 20. D found guilty of criminal charge of incest, but rape charge was
dropped. P sued D for assault and battery, found liable, now must assess damages.
Issue: How much damages and what type should be awarded? Hold: $100k non-pecuniary general, $75k aggravated, & $50k punitive
Reasons:
 Non-pecuniary: for psychological trauma, doctor testified “worst he’s ever seen, she will never be able to live normally”
 Aggravated: for gross breach of trust, D was in a position of authority and behaved in a ”predatory and disgraceful manner”
 Punitive: for rape that wasn’t accounted for in criminal trial

Edwards v Lee’s Administrators Unjust Enrichment case

Facts: D operated profitable cave touring business. The only entrance located on D’s property but large piece on P’s property. P sued for
trespass, seeking a share of profits and injunction to stop in future.
Hold: D is a tresspassor, granted injunction and disgorgement
Reasons: appropriate “basis of recovery” was “profits received, rather than damages sustained”
Ratio: unjust to allow a tortfeasor to escape liability and profit from his wrongdoing

Penarth Dock Engineering Co. Ltd. v Pounds Disgorgement Case

Facts: P sold floating pontoon to D, D agreed to move it by Aug 9, 1962 but didn’t remove until March 25, 1963r, thus committing trespass.
P suffered no loss but wants disgorgement of D’s gain instead of compensation.
Hold: for P, D must pay portion of rent he would have been required to pay to store the pontoon if he had removed on time ($x per week)
Ratio: “the test of the measure of damages is not what the plaintiffs have lost, but what benefit the defendant obtained by having used the
berth; and he has been a trespasser, in my judgment, since Aug 9, 1962”

THE LIABILITY EQUATION (INTENTIONAL TORTS)

 Plaintiff’s Side: Act (1) Intent + (2) Elements of Tort + (3) Cause + (4) Damages = Prima Facie Liability
1. Intent: P must prove the act resulted from actual subjective intent
2. Elements: the specific legal elements (i.e. assault, battery, etc.)
3. Cause: D’s act caused interference with P’s protected legal interest(s)
4. Damages: D’s tort caused P to suffer a compensable loss to person, reputation, or property
o P bears the onus of burden of proof (2 types)
1. Legal onus: facts supporting case are more likely than not, 51/100
2. Evidentiary onus: in the context of trial, civil process leading up to trial and the trial itself
 Defendant’s Side:
1. Non-volition: any claims that the act wasn’t voluntary (i.e. brought against your will)
o Takes you outside the reach of the tort system
2. Rebuttal: “my action was not a tort”, D didn’t cause damages claimed
3. Substantive defences or “Privilege”: D admits to doing it, but there is an excuse/ justification for the otherwise
tortious action (i.e. consent, necessity, etc.)
 Liability Prima Facie= subjective element (P testifying their experience, arguing it was subjectively offensive) + an objective
element (judge/jury believing P, must think their testimony was reasonable

INTENTIONAL TORTS
Basic Principles of Liability
P must prove, on the balance of probabilities, that D acted:
1. With volition
2. With intention
3. And in a manner satisfying all of the elements of the particular tort
This will establish a prima facie intentional tort. D can argue a defence of their action or a privilege of their conduct, but once a prima facie
tort has been proved by the P, the onus is on the D to prove a defence or privilege.
Elements of Intentional Torts
1. Volition: defendant’s act is voluntary if it’s directed by his conscious mind
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2. Intent: individual’s desire to bring about the consequences of his act (rather than desire to do the physical act itself)
o Ex. D fires at crow but bullet hits cow, shooting of cow was unintentional bc result not desires
o Defendant’s conduct doesn’t have to be hostile or blameworthy (i.e. save child by pushing out of way from car has
required intent for battery… but intent alone not enough to bring to liability)
a) Imputed intent: D didn’t desire the consequences to occur, but they were certain to result from this act
b) Transferred intent: D intends to commit an intentional tort against one party, but unintentionally commits to P
*Kostol disagrees that these are intent, argues they are introducing a fiction (not relevant today bc negligence)
Related Issues
1. Motive: generally not an element of the cause of action… intent depends on D’s desire to bring about the consequence, not his
motive/ reason for wanting it to occur (P must prove D’s conduct was intentional, not that D’s conduct was blameworthy)
2. Mistake: occurs when D intends the consequences of their acts, but those consequences have different factual or legal
significance than contemplated (mistake doesn’t affect intent, therefore mistake is not relevant)
o Mistake of fact (I thought it was my wallet) vs. Mistake of law (I thought I was legally allowed to take it after X days)
3. Accident: any situation where D unintentionally and without negligence injured P. D can’t be held liable because absence of intent
4. Liability of Children & those with Mental Illness: Cdn courts rely on s.16(1) of C.C. Test is whether D was capable of “appreciating
the nature and quality” of his act
o Parents/ teachers supervising kids and doctors/ nurses supervising mental patients aren’t vicariously liable for their
actions (only liable if negligence or assisted in committing the act)
 Provocation & mistake will eliminate punitive damages while duress, motive & accident can affect compensatory damages

Smith v Stone Can’t be liable for trespass if the act of trespassing was involuntary
Facts: D trespassed on P’s land. D used justification that “he was carried upon the land by force & violence of others”, thus not voluntary.
Hold: For D, no liability.
Reasons: “it’s the trespass of the party that carried the D upon the land, not the trespass of the D”

Gilbert v Stone (1648) Duress will neither negate volition nor intent (if there is intent, there is liability)
Facts: D stole P’s gelding, but says men threatened to kill him if didn’t (he feared for his life)
Issue: Does duress constitute a defence for an actionable tort? Hold: for P, doesn’t justify D’s actions
Ratio: “I may not do a trespass to one for fear of threatening of another” (would mean the injured party would have no satisfaction)

Miska v Sivec (1959) Provocation occurs only when one loses their self-control within close proximity of the assault
Facts: D intentionally shot P, causing P to sue for injuries. D claims self-defence, but P threatened D quite some time earlier. D had time to
drive home, get gun, load it, and shoot P from his window 200 yards away. Hold: For P, D pays costs
Reasons: D’s conduct was careful and deliberate, without the existence of any sudden and uncontrolled passion. Therefore, no evidence of
provocation
Ratio: To constitute provocation, the D must have lost his power of self-control and this must have occurred at the time of or shortly before
the assault.

Hodginson v Martin (1929) Mistake is not an excuse of act, but can reduce damages
Facts: D (police) detained P in office because he thought he was guilty (sincere mistake). D didn’t use any more force than was necessary
Hold: D is liable, but reduced damages (nominal damages awarded)
Ratio: While the sincere yet mistaken belief of the D isn’t an excuse for the act, it’s a mitigation to the damages as no harm was caused to P

Ranson v Kitner (1889) Mistakes do not remove intent

Facts: D was hunting, shot P’s dog because he believed in good faith it was a wolf Hold: D is liable
Ratio: D is liable for damages caused by their mistake notwithstanding they were acting in goof faith. Mistakes do not remove intent, they
still decided to shoot.

Battery
 The direct and intentionally bringing about of a physically harmful or socially offensive physical contact with another person
o The “direct” requirement may not be as strict today (ex. poisoning someone’s drink is indirect, but still battery)
 D must have intent to bring about contact, but doesn’t need intent to harm or offend P (P can recover $ even if no physical harm)
o Ex. Doctor admits blood to Jehovah’s witness to save life = liable
 P doesn’t have to be aware of the physical contact when it occurred (ex. D kissed/touched P in her sleep)
 P doesn’t have to prove they didn’t consent (onus on D to use as a defence, must argue and prove)

Bettel v Yim D is liable for all results that occur as a result of his intentional act
Facts: D grabbed P by shirt collar, shook him intentionally, then accidentally D’s head hit P’s nose causing injuries
Issue: Whether person is liable only for intentional acts or the unintentional ones that occurred as a result? Hold: For P
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Reasons: The unintentional act of causing the P’s nose injury resulted from the intentional act of grabbing and shaking the P
Ratio: “When something happens as a result of a chain of events deliberately set in motion by the D that causes an unintended injury, it is
not an accident. It is conduct for which the D must assume responsibility”
 Policy: “It is better for unexpected losses to fall upon intentional wrongdoer than the innocent victim. To rule otherwise would
result in bonusing the deliberate wrongdoer who strokes the P more forcefully than intended”
Note: This type of case rarely pleaded as intentional tort today, would sue in negligence

Assault
 Intentional creation in the mind of another of a reasonable apprehension of immediate physical contact (objective)
o Words alone (i.e. threats) without some overt act isn’t assault
 Focus on impression in plaintiff’s mind

Holcombe v Whitaker Words and actions together can constitute assault

Facts: D comes to P’s apartment, beats on door and tries to pry it open. D threatens to kill P if she takes him to court. He claims not assault
bc merely the threat of violence (no overt act involved) Hold: D is liable for assault
Ratio: “While words alone cannot constitute an assault, they may give meaning to an act and both, taken together, may constitute assault”
 “A show of force accomp. by an unlawful or unjust. demand, compliance with which will avert the threatened battery, is assault”

Police v Greaves Conditional threats can constitute assault

Facts: D threatened P (police officer) with a knife to prevent him from entering his home Hold: D is liable for assault
Reasons: “It was enough that the menacing attitude of the respondent caused the police to retire” …There was a threat of violence
exhibiting an intention to assault
Ratio: “There is no reason why a conditional threat should not constitute an assault. A threat in its very nature usually provides the person
threatened with an alternative, unpleasant though it may often be… [If one] caused the other to believe on reasonable grounds that he had
present ability to effect his purpose… an assault has been committed”

False Imprisonment
 Total restraint of the liberty of the person (restraint of movement must be total, even if only momentary)
 Result of psychological pressure or physical constraint to believe you couldn’t leave, an artificial limit placed on your liberty by an
outside force (total restrain within a confined boundary… theoretically could be imprisoned in an open space)
o Your subjective belief that you were confined to a boundary must be reasonably objective

Bird v Jones Restriction in one direction isn’t enough to constitute false imprisonment
Facts: P’s direction on a highway was blocked by police on orders of the D
Issue: Is this false imprisonment? Hold: No, for D
Reasons: P was at liberty to move his person and go anywhere else at his free will (not total restraint of movement, no boundaries)
Ratio: “Imprisonment is a total restrain of the liberty of the person, for however short a time, and not a partial obstruction of his will,
whatever inconvenience it may bring on him”
 “Imprisonment is more than the mere loss of power”

Herd v Weardale Steel Consensual restraint (bad law, wrongly decided)

Facts: P (employee at mine) refused to work bc dangerous conditions, demanded D (manager) to let him up cage elevator. D refused until
the end of P’s shift (usual time cage goes up).
Issue: Was this false imprisonment? Hold: No, for D
Reasons: No refusal to bring him up at ordinary agreed upon time. Facilities not available to him until the end of his shift (implied contract)
Ratio: “volenti non fit injuria” – Not false imprisonment to hold a man to the conditions he accepted going down the mine (D used defense
of consent through implied employment contract)
Note: Kostol says bad law/wrongly decided. P would win today bc boundaries of what is/isn’t FI have evolved, can revoke your consent at
any time now

False Arrest
 One category of false imprisonment, the implicit/explicit assertion of legal authority to bring about a total restraint of movement

Campbell v SS Kresge Co
Facts: P accused of shoplifting based on an eyewitness account. D (off-duty police) showed badge, suggested she follow him back inside the
store to “avoid embarrassment”. Only when she stopped, demanded to know what it was about, did he say she was free to leave.
Hold: Yes false imprisonment
Reasons: “He was using his force of his position as a police officer to take her in a direction that she didn’t wish to go”
Ratio: “satisfied that P being confronted by police and invited inside to avoid embarrassment would have felt like an obligation to follow”
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 Despite officer not thinking in his mind he was arresting her

Malicious Prosecution
 Derived from trespass on the case, concerned with indirect interferences (usually form improper initiation of crim proceeding)
 Provides redress for unjust interference with inds freedom and embarrassment, injury to reputation and other losses from it
 Not actionable “per se” (P must establish they suffered loss/harm)
 In past, usually against a private person but today usually suing a state actor (bc they commence process)
 Hard to prove (must be this way otherwise constraining state actors to do their job/ deter criminal activity)
 One of the rare torts where motive is relevant

Nelles v Ontario Established that government actors can be liable for tort of malicious prosecution and created 4 step test to prove
Facts: P (nurse) charged with murder of 4 babies. All charges dropped bc lack of evidence. P sued police, AG and Crown Attorney. At this
point, Crown entities had an immunity against these tort actions.
Issues: 1) Does Crown enjoy a blanket of immunity?
2) What are the elements to prove malicious prosecution?
3) Were the elements satisfied on the facts in this case?
Hold:
1. No, not anymore. There must be some civil resource for Ps who have suffered malicious prosecution form state actors
o State actors can be liable, but only under onerous 4 step process
2. Necessary elements P must prove for malicious prosecution:
a) Proceedings must be initiated by defendant “actively instrumental”
b) Proceedings must be terminated in favour of plaintiff
c) Absence of reasonable and probable cause
d) Malice or other primary purpose other than carrying law into effect/administration of justice (malice = improper purpose)
o P must prove they had been framed/set up (“Crown knew I wasn’t guilty, but gad a malicious motivation to pursue
injustice… wanted to prosecute me for some other vindictive reason, not my guilt”)
3. In this case, P couldn’t prove that AG and Crown Attorney were malicious in what they did (they may have been wrong/made neg
misjudgments but couldn’t prove they had a malicious motive). Therefore, P couldn’t prove #4 for AG or CA. However, police
chose to settle before trial.

Abuse of Process
 Unlike malicious prosecution, abuse of process is not primarily concerned with the wrongful initiation of proceedings. Rather, it
focuses on the misuse of civil proceedings for a collateral or illicit purpose other than resolution of the claim
 The need to prove an overt act independent of the litigation itself is usually difficult to demonstrate
 The plaintiff does not need to demonstrate that the earlier proceedings terminated in their favour or that the defendant lacked
reasonable and probable grounds for engaging in the earlier proceedings
Plaintiff must prove
1. D brought civil action
2. D did so for some extrinsic purpose
3. D undertook some overt act other than litigation to further the improper purpose
4. P consequently suffered loss

Intentional Infliction of Nervous Shock/ Mental Suffering

Wilkinson v Downtown First time nervous shock was recoverable (but damages awarded for physical illness, not mental)
Facts: D tricks P by telling her husband has been in a serious accident, causing her to become ill (violent shock, vomiting, weeks of suffering)
Hold: For P
Reasons: D willfully did an act cal to cause mental anguish to P, which caused her physical harm. D is resp for the conseq of his actions
Ratio: “ [it’s] diff to imagine that such a statement, made suddenly & with apparent seriousness, could fail to produce grave effects under
the circumstances upon any but an exceptionally indiff person, and therefore an intention to produce such an effect must be imputed”
Note: At the time, no nominate tort of IIMS. Lawyer argued it under nominate tort of fraud (bc can’t make up new torts, have to make
situation fit in an existing cause of action). Kostal says should have argued battery (not physical, battery with words). Court had great
sympathy for situation though and created new tort (if happened today ONCA would shut it down, only spec situation where you can create
new tort)

Radovskis v Tomm “Visible and provable illness” is the threshold for a claim in intentional infliction of nervous shock
Facts: 5 yr old raped, perpetrator in jail. Mom seeks damages for nervous shock (no medical evidence, didn’t have “good nerves” before)
Hold: No damages, “not sufficient to support a claim”
Ratio: Court ruled that what must be proved is “a state of mind such as fear or acute grief is not in itself capable of assessment as
measurable temporal damage. But visible and provable illness may be the natural consequence of violent emotion, and may furnish a
ground of action against the person that produced such emotion”
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 “In every case the question is whether the shock and the illness were in fact natural or direct consequences of the wrongful act or
default; if they were, the illness, not the shock, furnishes the measurable damage”

Samms v Eccles Damages awarded solely for mental distress caused by D

Fact: P sues over emotional distress caused by D repeatedly soliciting her with sexual advances Hold: For P, gets damages
Reasons: Not actionable under usual circumstances of solicitation to sexual intercourse (“there is no harm in asking”), but this situation is
different (beyond standards of decency and morality)
Ratio: can recover “where the defendant intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting
emotional distress or (b) where any reasonable person would have known that such would result”

Fitzpatrick v Orwin Established a test for determining intentional infliction of mental distress
Facts: P harassing D (old couple, neighbours) by putting dead coyote on their car, etc. P sued D for malicious prosecution after D brought an
action for criminal harassment (failed due to lack of evidence). D counter-sued for intentional infliction of mental distress.
Issue: What are the elements of intentional infliction of mental distress? Hold: For D, was a clear cut case (his conduct met all req)
Ratio: The test for intentional infliction of mental distress requires (Prinzo):
a) conduct that is flagrant and outrageous;
- an act contrary to accepted treatment to one another
b) calculated to produce harm; and
- was an intentional act, use an objective standard (would a reas person interpret the flag & outrageous act to result in harm?)
c) resulting in a visible and probable injury.
- P’s cause can be solely psychological (doesn’t have to be physical harm)
*a maliscious purpose isn’t required to establish this tort

Saadati v Moorhead Lowering threshold for proof of psych injury in negligence, med expert testimony no longer req to prove psych loss
Facts: P awarded damages for mental injury after car accident. BCCA overturned award on basis that P didn’t suffer a medically recog illness
Ratio: “Recognizable psychiatric injury” on medical expert testimony not necessary (just like physical injury) . An accurate diagnosis is
important, but trier of fact is concerned with the level of harm and the effects. There shouldn’t be a different diagnostic threshold for
proving mental injury over physical injury.
Note: Despite this case theoretically lowering the threshold of proof, in real life it won’t change much (“practically” not lowered). This is bc
financial and time investments are so large that only 2 kinds of cases will be tried – 1) physical injury that leads to psych harm 2) significant
psych loss with future lost income (a loss this large is worth it to go to trial, and expert witnesses will be called)

Innominate Intentional Tort

 Innominate tort: a tort that has not been specifically named. It is in contrast with the nominate torts such as battery, assault, etc.
 Provides a convenient mechanism for redressing claims without disturbing accepted principles (for example, intentionally inflicting
someone with a disease, setting a trap in someone’s path, poisoning food, and removing medicine)
 It is difficult to determine the scope of innominate intentional tort actions.
 Innominate torts reflect the concern with the inflexibility of intentional torts
Requires:
1. Intent
2. Interference or actual loss to a personal interest (security of person, psychological well being)
3. Provable damages and harm

Merrifield v Canada Can’t recognize new nominate tort (this case = an example of what not to do)
Facts: P (RCMP officer) sues D (RCMP) under a new nominate tort of harassment. D started re-arranging his duties bc irritated with him (P
was engaging in self-promotion, wanted to run for PC gov, on radio shows, etc). Hold: No new nominate tort of harassment
Reasons: No legal basis to support recognition of new nominate tort of harassment (no cases, articles, etc). And this case fails under tort of
IIMS bc doesn’t pass step #1, D’s conduct wasn’t flagrant or outrageous.
Ratio: Court said no more movement from innominate torts to nominate ones, judges can’t create whatever laws they want. Judges can
only recognize a new nominate tort if there is judicial decisions, legislative initiatives, and scholarly legal articles supporting it (proof that
ppl have begun to recognize possibility of new tort), and a “situation that cries out for a remedy”. Therefore, it is possible to recognize a
new nominate tort but courts do it very cautiously, in an evolutionary sense.
 Usually, judges must use pre-existing nominate torts to make decisions, they can’t rule based on their own beliefs of rights/wrong
(up to parliament to make new laws bc they are elected). At common law, change can be evolutionary not revolutionary.
Note: See Jones v Tsige as an example of how to recognize new nominate tort successfully (Merrifield alludes to this case throughout)
 Villeneuve 8

Invasion of Privacy
 Not currently recognized as a nominate tort bc there’s no exact definition of what privacy is
o Privacy is an intangible aspect of our personality, its hard to pin down what presumptive privacy rights we have
(subjective), and its historically and culturally contingent (definition depends on these factors).
 Kostol thinks better if privacy is protected by laws/statues (like how it currently is)
 Privacy was historically seen in relation to our physical self (provided remedies for this), but today we have a digitized self also
 4 categories of privacy in torts (Sharpe):
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs (intrusion upon seclusion)
2. Public disclosure of embarrassing private facts about the plaintiff
3. Publicity which places the plaintiff in a false light in the public eye
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness

Motherwell v Motherwell Emerging common law privacy actions (how to construct an innovative theory of liability)
Facts: D keeps calling P harassing them. P sues, invasion of privacy and nuisance Hold: For P, court said new category of private nuisance
(didn’t recognize a new nominate tort, just a new element of one as it was within the scope of the already existing tort of nuisance)
Reasons: Use the telephone everyday, can’t turn off the ringer bc we rely on it for communications.
Ratio: “A nuisance of this kind, to be actionable, must be such as to be a real interference with the comfort/convenience of living according
to the standards of the average man”
Note: Ruling would probably be diff today bc we can now block numbers and can see caller ID (but at time, no easy way to stop nuisance)
Note: There has never been a decision like this for mail, email, or texting harassment (not seen the same as a telephone at law bc not as
inherently intrusive and there are ways to protect yourself)

Jones v Tsige (2012 ONCA) Recognition of new nominal tort of “intrusion upon seclusion” (the model for recognizing a new nominate tort)
Facts: P and D both work at TD together, P sues D bc kept continuously looking through her bank records over 4 year period
Hold: For P, new tort of “intrusion upon seclusion” recognized (didn’t recognize new nominate tort of privacy though)
Reasons: No other remedy available, and D’s actions were “deliberate, prolonged, and shocking”. The facts of this case “cry out for the
creation of a novel legal remedy”. There was decisional law and scholarly support for new law, and a need in society for remediation.
Ratio: Plaintiff must establish:
1. Intrusion was unauthorized
2. Intrusion was highly offensive to a reasonable person
3. The matter intruded upon was private; and
4. Intrusion caused anguish and suffering
Intrusion upon seclusion: “one who intentionally intrudes, physically or otherwise, upon the secl of another or his private affairs/concerns”
 If P can’t prove they suffered ec loss, then damages must be “modest but sufficient” with a “fixed range up to $20k max” (this is
essentially nominal damages/small claims court damages, therefore if P can’t prove ec loss then not worth it to go to trial)

Kaplan v Casino Rama Class Action Suit

Facts: Third party hacks into casino’s data base, casino didn’t pay ransom, so the hackers posted all customers’ personal data. The
customers enter a class action lawsuit against the casino in negligence.
Hold: Class action dismissed bc no commonality. The Ps could only show their data was taken, not any economic damages. Therefore, all
they could recover was nominal Jones v Tsige damages.
Ratio: Plaintiffs of a class action lawsuit must establish commonality (2 parts):
1. Common cause of action available to all Ps against the D
2. All Ps must have commonality with damages suffered
Biggest hurdle with class action suits = certification motion (first step, plaintiffs must certify they have commonality)
Reasons: Judge ruled that the casino was basically a victim themselves. They acted reasonably and as best they could in the situation.
Institutions and businesses are all spending money on data protection today but it’s impossible to prevent hacking.
 If found liable, huge implication for all businesses with data collections (would be incredibly vulnerable to hackers)

Jane Doe v ND Recognized cyber shaming

Facts: D posts sex tape of P on porn website without consent/knowledge.
Hold: For P, succeeds in breach of confidence, intentional infliction of mental distress, and new category of invasion of privacy
Ratio: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s
privacy, if the matter publicity or the act of the publication
a. Would be highly offensive to a reasonable person, and
b. Is not of legitimate concern to the public
Reasons: Damages are awarded as if sexual battery (similar level of offence to dignity and autonomy of P).
CAUTION: This was a default judgment, the case was set aside bc D never showed up.
 Villeneuve 9

Hollinsworth v BCTV
Facts: Violation of privacy when “medical training” video of P’s hair transplant appears in the news. News station asked doctor if P had
consented, doctor said yes and gave him permission to use video of P. P didn’t give consent, so he sues for damages.
Hold: For D, appeal dismissed
Ratio: “The word “willfully” does not apply broadly to any intentional act that has the effect of violating privacy but more narrowly to an
intention to do an act which the person doing the act knew or should have known would violate the privacy of another person”
1. ‘It is tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another’
2. So long as the nature and degree of privacy is reasonable in the circumstances
3. Regard must be given to the nature, incidence and occasion of the act and to the relationship between the parties
4. Privacy may be violated by eavesdropping of surveillance, whether or not accompanied by trespass
Reasons: D’s belief was both honest and reasonable, therefore the D “has a claim right” (can’t be held liable for invasion of privacy)

Breach of Confidence
 Definition: provides a remedy for the wrongful use &/or disclosure of confidential info (vs intrusion upon seclusion, which
addresses the wrongful accessing of confidential info)
 This tort action has been used increasingly to protect the privacy of both sensitive business and personal information
o Ex. D wrongfully using P’s secret formula for tomato juice to create their own drink, lawyer breaches fiduciary duty to
client by using knowledge of marriage problems to have an affair with wife, D used confidential info from P to acquire a
gold mine they had discussed buying as a joint venture
 To recover for breach of confidence, the P must establish:
1. Information that is confidential by nature is exposed
2. Information was disclosed in a circumstance creating an obligation of confidentiality
3. Exposed information was detrimental to the confider (economic/psycho/emotional/physical)

Discrimination
Seneca College v Bhaduria (SCC) Uncertain status of nominate tort of discrimination (creates an obstacle for discrimination actions)
Facts: P complains that she has been discriminated against by the D on the ground of her ethnic origin when she wasn’t hired or
interviewed for a position teaching that she was clearly qualified for. Instead of complaint under code, she files a civil suit for damages.
Hold: Action dismissed bc P can seek remedy in Ontario Human Rights Code. SCC didn’t say there wasn’t a new nominate tort of
discrimination, just said it fell within pre-existing legislation (therefore use that). Therefore, the status of discrimination as a tort action is
uncertain, but this case creates a huge obstacle for the tort (court said not for common law to rule on discrimination issues, parliament has
already created a legislative regime for this so we must use that process)
 Courts have sidestepped SCC ruling by awarding damages for intentional infliction of nervous shock or wrongful dismissal

DEFENCES
Types of Defences
1. Rebuttals: the go-to first defence where the defendant questions the facts, evidence and allegations of the plaintiff. Deny the
claims and undermine as much of their evidence as possible. The factual defence (“I didn’t commit that tort”)
o Burden on P to prove that D actually committed the tort
2. Substantive Privileges: valid legal reasons for why there is no legal liability. Defendant is “counterclaiming” in a sense and must
provide evidence and prove the substantive privilege beyond a balance of probabilities. The legal defence (“Yes I committed that
tort but I have a defense, therefore am excused of liability”)
o Burden on D to plead and prove the defense after P has prima facie proved D committed the tortious act
3. Volition: P didn’t have the volition to commit a tortious act (either they weren’t acting of their free will, or didn’t have the
capacity to have the lawful fault of intent/negligence)… very rare
4. Mitigating Factors: do not relieve the defendant of liability (not a full defence) , just mitigate or reduce damages owed to the
plaintiff

CONSENT
 One type of privilege/defence that D can raise. Once we’ve given our consent, we can’t take it back ex-post facto
o People are allowed to rely, and act based on our consent
o Once you have given consent and its deemed you understood the nature and quality (risks) of the act, you can’t
withdraw it just bc you don’t like the consequences (i.e. you had sex and are now pregnant… you knew the risk and
consented so can’t argue “no consent”)
o If I volunteer to participate, I have consent and I can’t revoke it by law
 Consent Framework:
1. Defendant’s Act(s) - sort out all the separate acts of the D
2. Nature/Scope of the Act(s) – one by one for each act, ask what is the nature of said act (implied or express consent)
 Villeneuve 10

o Scope of implied consent – hard to decide the boundaries of said consent (in the circumstances, what counts as
reasonable?... depends on age of P, risks associated with the act, etc)
3. Factors vitiating consent (capacity, duress, fraud, policy) – onus shifts, P must prove this step after D establishes consent
o There are many statues that create incapacity (i.e. if under 16, can’t consent to sex)
o Common law establishes some situations of incompetence (i.e. must be adequately informed and voluntarily consent to
the act and its associated risks)

Implied Consent
Wright v McLean By participating in a game, you impliedly consent to its ordinary consequences
Facts: Boys throwing mud balls at each other in a play fight. D hits P with a ball, has a rock inside. D claims he didn’t intend to pick up a rock
Hold: For D, P impliedly consented by playing the game
Ratio: “The reasonable view is that the combatants consent to take the ordinary risks of the sport in which they engage, the risks of being
struck, kicked, or cuffed, as the case may be, and the pain resulting there from; but only while the play is fair, according to the rules, and
the blows are given in sport and not maliciously”

Exceeding Consent
Agar v Canning Establishes the limited of implied consent in sports games (each case must be decided on its own facts)
Facts: During a hockey game, D brings his stick down onto P’s face in retaliation after P hooked his stick into D’s skate
Hold: For P, D’s act was “beyond limit marking exemption from liability”
Ratio: “The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to
polite social intercourse. But a little reflection will establish that some limit must be placed on a player’s immunity from liability… injuries
inflicted in circumstances which show a definitive resolve to cause serious injury to another, even when there’s provocation and in the heat
of the game, should not fall within the scope of implied consent”

R v Jobidon (SCC)
Facts: A charged with manslaughter from consensual fight Hold: A is guilty
Ratio: “In a consensual fight between adults, the combatant’s consent is vitiated if they intentionally ‘apply force causing serious hurt or
non-trivial bodily harm”

R v Paice (SCC, 2005) Narrowed principles from R v Jobidon

Ratio: “Consent will only be negated if the A both intents and causes serious bodily harm”

Teolis v Moscatelli
Ratio: In a fist fight which both party’s consent, one party’s use of a knife or other weapon would exceed the other’s consent

Competency to Consent
 For consent to be valid, the person giving it must be capable of appreciating the nature and conseq of the act to which it applies.
 If the person cannot make such a determination for any number of potential incapacitating factors, the consent will be invalid
o I.e. if someone lacks capacity due to age, physical/mental illness, intoxication, etc, the consent is invalid
 This is focused on the individual’s ability to understand the information relevant to the act in issue; the fact that the courts or
others may view the decision as unreasonable is not necessarily relevant to the issue of competency. This broad test is meant to
safeguard individual autonomy
 Some statutes deem certain individuals to be incapable of giving a valid consent for specific purposes
o For example, s. 150.1(1) and (2) of the Criminal Code provide that the consent of a person under the age of 14 does not
generally provide a defense to a charge of sexual assault

FACTORS VITIATING CONSENT

 Once D establishes that P consented to the act giving rise to the tort, P may raise factors that vitiate his/her consent
o if consent is vitiated, D is held liable as if there had been no consent
o “Yes you got me to consent but you did so in a way that my consent doesn’t count/invalidated”
 Four vitiating factors:
1. Capacity – always the first one raised
2. Duress
3. Fraud – you actively deceived me about the physical nature of the act or an inherent risk (natural consequence)
4. Policy – public policy notices about power
o arguments that duress now falls under public policy where gross imbalance of power between P and D

1. Fraud/Deceit
 Fraud includes situations where the D:
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o Knowingly makes a false statement

o Makes a statement in total disregard for the truth
o Knowingly creates a misleading impression by omitting relevant information
 Just because the P’s consent was based on fraud doesn’t necessarily vitiate the consent. Therefore, in order for fraud to vitiate
consent, two things must be established (requirements include):
1. The D was aware of, or responsible for, the P’s misapprehension
2. The fraud was related to the nature and quality of the act, as opposed to a “collateral” matter

R v Mabior
Facts: A had sex with a woman, she didn’t know he was HIV positive
Ratio: Fraud will negate consent if fraud physically harmed the complainant or exposed him to a significant risk of serious bodily harm
 Therefore, a significant risk of serious bodily harm exists if “a realistic possibility” of HIV transmission (such a possibility exists
unless A both had a low viral load and used a condom)

R v Hutchinson (SCC)
Facts: Complainant consented to sex but insisted A used a condom. A poked holes in condom and got her pregnant
Hold: A convicted of aggravated assault on the grounds that the deception negated consent
Reasons: Depriving a woman of her choice to be pregnant is serious as a “significant risk of serious bodily harm” and is sufficient to
establish fraud vitiating consent

2. Mistake
 Traditionally, the P’s consent would only be vitiated by mistake if the D was responsible for creating the P’s misapprehension and
the misapprehension went to the nature and quality of the act
 Situations where the P consents on a mistaken belief are different from those where the D erroneously believes P consented
o In the latter, the P never actually consented to the act, therefore the defence of consent is not an issue
3. Duress/Coercion
Latter v Braddell (1880) Liberalism vs. class hierarchical philosophy
Facts: D (mistress) ordered P (servant) to go up to her room where a doctor examined her to see if she was pregnant. P protested
throughout each phase of the examination and claims she didn’t consent to it. Sued doctor and mistress for battery.
Hold: Action dismissed, for D
Majority: “Can the P, having complied with the orders of her mistress, although reluctantly, maintain this action upon the ground that what
was done to her by the doctor was against her will?... I think not” Duress = the direct application of force or threat of violence
 Judge ruled that P was an autonomous, free adult and therefore had the choice to leave the house at any time. However, she
chose to stay. The majority ignored the inequalities occurring, just ruled she knew the “nature and quality of the acts”.
 At the time, duress was defined as using or threatening to use physical force to illicit P’s “consent”, which was not done here. Yes
there was pressure and social/economic circumstances, but they don’t amount to duress.
Minority: “The sending for a doctor by a mistress and directing him to examine a female servant, without fist appraising her, in any
circumstances, is an arbitrary and high-handed proceeding and cannot be justified unless the servant’s consent is voluntarily given”
 Minority judge considers social and economic pressures/realities of P’s situation (she had no power or meaningful liberty to exert,
she did all she could in the situation to resist). She would be fired if she were to leave, and it was her boss and a male doctor
ordering her to consent. The circumstances/duress/pressure made it impossible for her do anything except submit

4. Public Policy
Norberg v Wynrib (1992, SCC) Consent can be vitiated due to duress
Facts: Doctor (D) offered to supply an addicted patient (P) with prescription narcotics if she submitted to sexual advances. She reluctantly
agreed as she couldn’t get them from anywhere else. After she recovered from addition, she sued D for battery, negligence, and breach of
fiduciary duties. Hold: D is liable in battery
Ratio: “In certain circumstances, consent will be legally vitiated if shown such a dispersity between parties that victim (P) can’t meaningfully
consent” (gross power imbalance has been exerted, P needs to prove this imbalance and D’s cynical exploitation of it)
Reasons: D is liable in battery bc of unequal bargaining power between parties and the exploitative nature of their relationship made it
impossible for P to “meaningfully consent” (consent vitiated by duress).
 Notion of P’s “consent” must be modified to reflect D’s position of power (relative disparity): Inequality of power (authority), D
abused that power, and caused P injury as a result
Judges Disagreement: 3 different pleadings
1. Battery – 3 judges, no “meaningful” consent
2. Negligence – 1 judge, no reas doctor would do this, neg failed to treat her addiction (there was consent therefore no battery)
3. Breach of fiduciary duty – 2 judges, doctor put his self-interest ahead of the patient (there was consent therefore no battery)
 #2 & 3) D had the capacity to consent, she had full agency (yes her addition effected her mind but not enough to vitiate consent)
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Note: Kostal says still unsure how to use ratio bc of judge’s disagreements. All the judges thought it was morally wrong, but the facts didn’t
fit neatly into any existing causes of action (& not enough for a new nominate tort)

Ex Turpi Causa (Consent to Criminal/Immoral Acts)

 Definition: principle that a person can’t recover in tort for consequences of his own illegal/immoral conduct

Hall v Hebert (1993, SCC) Limited the scope of Ex Turpi Causa

Ratio: Ex Turpi Causa can be invoked only to prevent P from profiting financially from his illegal acts (i.e. you rob a bank, your partner steals
your share, the court will still invoke ex turpi causa because you can’t profit from your illegal act). However, you can still be restored (put
back in the position you were before) if you were engaged in an illegal act
 The fact that P and D were engaged in an immoral act is irrelevant, we will no longer stigmatize P just because they were doing
something “immoral” (against religion, etc). Even if illegal act, that won’t stigmatize them to the point they can’t enter the legal
system
Note: Kostal says ex turpi causa is not commonly pleaded anymore, therefore it isn’t very relevant (it’s basically dead)

Consent to Treatment, Counselling and Care

 To be valid, consent must be given “voluntarily” (the decision is the product of his conscious mind)
o If patient is competent, only his personal consent is req (family’s consent is only relevant if patient is unable to consent)
 Patient can explicitly or implicitly consent (i.e. if patient makes and appointment and comes for treatment = implied consent
based on his participation and demeanor)
 Doctor is required to fully disclosed the nature of intervention and the risks associated
 Courses of treatment must be broken down into their specific acts (doctor must indv ask and explain before each diff treatment)
 Three exceptions where courts have relaxed the strict requirement of consent:
1. In unforeseen medical emergencies, where impossible to obtain patient’s consent
2. Patients who give general consent to a course of treatment implicitly consent to any sub tests/procedures that are
necessarily incidental
3. “Therapeutic privilege to withhold information” = healthcare professionals can withhold info from patient if it’s disclosure
would undermine the patient’s morale and discourage him from having necessary treatment
o Not as relevant anymore as cases have rejected this privilege/ narrowed its scope
 Burden of Proof with Consent Forms
o Burden of proving consent falls on the doctors (must prove on the balance of probabilities)
o Key issue = whether patient understood nature of the proposed procedures and the risks/benefits/alternatives (NOT
whether they signed the form)
o A signed consent form provides evident, but is not conclusive proof of consent (consent form is only as good as the info
it contains and the circumstances in which it was signed)
 If terms were too general, too technical (can’t understand), or presented as a mere formality/there was no time
to read the form, then consent form has little value
 Competency to Consent
o To be valid, consent must be given by a patient who is competent to consent
o Common law test for competency focuses on the patient’s ability to understand the nature of the proposed treatment
and its risks/benefits/alternatives… not his ability to make a reasoned/prudent decision
 Broad definition of competency to safeguard the autonomy of the individual
 Patient can still be competent if high, drunk, young, developmentally delayed, etc
 Patient can be competent to make some treatment decisions but not others… can also be competent to make
treatment decisions at one point in time but not in others
o If patient is competent, his consent alone is relevant
 Consent of Minors: no minimum age of consent at common law for medical treatment, but usually cases involve patients who are
at or above the age of puberty
o If young person can understand the nature of the proposed procedure and its risks/benefits/alts, his/her consent is valid
and parental consent isn’t relevant
o Doctors can’t disclose info to parents without youth’s consent, except in narrowly defined circumstances

Marshall v Curry (1993, SCC) Doctor not liable

Facts: P in surgery, consented to surgeon (D) to remove hernia. When surgery began, D realized it was necessary to remove P’s left tactical,
despite P not knowing and not giving his consent. Hold: For D, D isn’t liable
Ratio: “It’s the surgeon’s duty to act in order to save the life or preserve the health of the patient’ and that in the honest execution of that
duty he shouldn’t be exposed to legal liability”
Reasons: The removal was necessary, and it was unreasonable to postpone to a later date
 Villeneuve 13

Malette v Shulman (1987, SCC) Doctor is liable - “The doctrine of informed consent doesn’t extend to informed refusal”
Facts: D (doctor) treats a Jehovah witness patient (P) despite card on her person that says no blood transfusions.
Hold: For P, D had no reason to doubt the validity of the card
Ratio: “The doctor is legally and ethically obliged to treat within the confines of that consent… the right to refuse treatment is an inherent
component of the supremacy of the patient’s right over his own body… However sacred life may be… certain aspects of life are properly
held to be more important than life itself. Such proud and honourable motivations are long entrenched in society… Refusal of medical
treatment on religious grounds is such a value”
Reasons: Doctor must tell a patient all risks for a consent to be valid, but that isn’t the case with refusal for treatment (patient can refuse
treatment for whatever reason and the doctor isn’t exposed to a potential battery claim)
*Cardinal medical rule: you have right to your body and can refuse/not consent to any treatment (even if you die)

Carter v Canada (2015, SCC) Assisted dying is now legal

The total ban on physician-assisted suicide in s.241 of the CC violates s.7 of Charter, and isn’t justified under s.1

Cuthbertson v Rasouli
“Treatment” in Ontario Healthcare Consent Act now includes withdrawal of life support

C v Wren (1986) Parental consent is not relevant for 16-year-old abortion

Facts: 16-year-old (P) wants abortion, she consents to doctor so he agrees to do it. Parents found out and sued doctor. Hold: Valid consent
Ratio: “The parental right to determine whether or not their minor child is below the age of 16 will have medical treatment terminates if
and when the child achieves a sufficient understanding and intelligence to enable him/her to understand fully what is proposed”

Reibl v Hughes (SCC) Court limited the scope of health care professional’s liability
Battery claims are now limited to cases where patient didn’t consent at all, the consent was exceeded, or the consent was obtained
fraudulently (in all other cases, P must bring negligence claim for failure to disclose risks)

SELF-DEFENCE
 The right to invoke self-defence ends once the danger has passed (if we are going to privilege a violent act, need to ensure its
purpose was defensive not offensive; need to ensure no other alternatives were available, reas and honestly believed only option)
 A complete defence (if successful, absolved of all liability)
In order to invoke the defence of self-defence, defendants must establish on the balance of probabilities that they (required elements):
1. Honestly (subjective standard) and reasonably (objective believed that they were about to be struck; &
2. The amount of force that they used to protect themselves was reasonable in all of the circumstances
Analytical Framework for self-defence, D must be reasonable in his:
1. Apprehension (his sbelief that he will receive violence)
2. The nature (what kind of defensive act? Included a weapon?), quality (the risk of the act imposed), and proportionality of act
o Don’t need perfect proportionality, but if there was gross disproportionality (used way more force than necessary for
self-defence) you begin to question D’s motives (did it out of anger/aggression, not self-defence)
S. 34 of the Criminal Code (relevant for civil self-defence also):
 34 (1) A person is not guilty of an offence if
o (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force
is being made against them or another person;
o (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other
person from that use or threat of force; and
o (c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of
the person, the other parties and the act, including, but not limited to, the following factors:
o (a) the nature of the force or threat;
o (b) the extent to which the use of force was imminent and whether there were other means available to respond to the
potential use of force;
o (c) the person’s role in the incident;
o (d) whether any party to the incident used or threatened to use a weapon;
o (e) the size, age, gender and physical capabilities of the parties to the incident;
o (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or
threat of force and the nature of that force or threat;
o (f.1) any history of interaction or communication between the parties to the incident;
o (g) the nature and proportionality of the person’s response to the use or threat of force; and
o (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
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Wacket v Calder “Nicety” case

Facts: P was drunk, started swinging at sober D outside a hotel. D finally returned P’s advances by hitting him twice. P sues
Issue: “The question was whether the 2 blows by the D were more than reasonably necessary”? Hold: For D, allowed self-defence
Ratio: “A defendant [in that situation] is not held down to measure the weight or power of his blows”
Rule: “He could act in light of the apparent urgency of the situation, but he couldn’t trespass beyond reasonable limit”
Dissent: Ruled for P, said D could have walked away (P was drunk so D knew P was unable to hit him that hard), “excessive force”
Other considerations:
- The court should consider the nature of the force used in the circumstances, but not necessarily the resultant injuries. In Brown v.
Wilson, the defendant picked up the plaintiff who was about to hit him in a ‘bear hug’. In attempting to carry the plaintiff out of
the bar, the defendant slipped, and the plaintiff hit his head and died. The court held that the use of a bear hug was reasonable.
- The right to use force that is likely to cause death or serious physical injury is limited to situations in which the defendant honestly
and reasonably believes that such force is necessary to protect himself from death or serious injury
- A defendant does not have to wait for the other party to strike the first blow
- Reasonable mistake of fact does not preclude self-defense claim
Note: Kostal says inds cultural understanding/setting matters when determining what’s “reas” conduct for self-defense. Here, a rough town
in BC, 1965 (more broad understanding of what’s reasonable self-defense). Today, these acts would not be considered reasonable, D would
be liable bc less tolerant threshold of physical violence today

Yatim Case
Facts: Yatim on drugs, on a TO streetcar, had a knife and started threatening passengers with it. Driver and passengers all got off. Police
officer brutally shot Yatim 9 times while he was still on streetcar, charged with murder criminally. There was video footage.
Issue: Jury had to decide 1) reas apprehension of force was necessary against Yatm? and 2) if nature/prop/qual of force used was reas?
Hold: Police is guilty, the defense wasn’t reasonable. Didn’t convict him of murder, but the lesser charge of attempted murder
Reasons: There was a reas alternative (leave him on bus until crisis squad arrives). Even if officer had a reas apprehension Yatim would
harm (unlikely bc he was far away and only had a knife), the officer used gross disprop force (shot him 9 times, even after clearly dead)

Lavalee Case Creation of battered women defense

Ratio: If A has been a victim of systematic physical abuse and believed there was no alt, then battered spouses can claim self-defense even
when there isn’t an immediate threat at the time of act

Khill Case Currently undecided (Kostal think trial jury influenced by other factors)
Facts: Former military officer, one night he is sleeping, hears a noise, looks outside and sees truck lights. Khill grabs his shotgun and goes
outside. Intruder (Styers) facing Khill’s truck leaning on it, Khill yells stop, Styers starts turning around raising his hands, Khill shoots him
twice. Styers had no gun (only a knife found upon inspection later). Khill claims self-defense
Hold: Undecided (jury found not guilty but it has been appealed). Family now suing Khill for battery civilly
Kostol: Doesn’t think it was self-defense. Khill went outside to engage with intruder, didn’t wait until there was an actual threat of him
entering the home (no threat to third party inside)
Application: For Khill to prove self-defense, would have to establish 1) reas apprehension that he would be harmed, & 2) he used reas force
(when considering all the relevant circumstances)

DEFENCE OF THIRD PARTIES

 Adaptation of self-defense, did so on reas apprehension that another person was experiencing physical violence or threat of
violence (acted defensively on behalf of a third party with proportionate force)
o Despite this defence not being limited to protecting your kids or family, more leeway if that’s the case (bc reas)

Gambriell v Caprelli Valid defence of third party (force doesn’t have to be exactly prop)
Facts: P (50 yr old man) engages in a fight with D’s (older woman) 21 yr old son. P begins chocking the son, D yelled stop. When P didn’t
stop, D hit P in the head with a garden tool. P sued
Issue: 1) Was D justified in helping her son? 2) Did D use reasonable force? Hold: Yes to both, for D
Ratio: “Where a person in intervening to rescue another holds an honest [even if mistaken] belief that the other person is in imminent
danger of injury, he is justified in using force, provided such force is reasonable”
Reasons: D had no other choice, P was stronger than D and her son, she reas and obj believed nobody would come to help. She yelled at
him to stop first. P suffered only lacerations to the head, not lacerations (indicates force wasn’t excessive). Also, as soon as violence against
her son stopped, she stopped hitting him.
Note: The necessity for intervention and the reasonableness of the force employed are to be determined by the trier of fact
Note: You can be wrong about the imminent danger (just must have an honest belief, it can be mistaken)
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DEFENCE OF REAL PROPERTY

Necessary elements to prove:
1. Must be the owner/occupier/agent of property (no third parties, must have a common law legal interest in property)
2. Use force that’s reasonable
3. Motive was to prevent trespass or eject trespasser
4. The person harmed had to be a trespasser
*Kostal thinks there is a 5th requirement of public policy (property is far below protecting people on hierarchy of importance in civil law)
 Judges reluctant to privilege actions of people hurting others to protect property bc law values human integrity much higher than
property preservation

MacDonald v Hees Must use reasonable force when ejecting a trespasser (no beating) and must request them to leave first
Facts: P entered D’s motel room “uninvited”. P and D met that day, and P wanted to introduce D to someone. P knocked, thought D called
to allow entrance, P stepped into room, D forcibly ejected P from the room. P sues Hold: For P, D owes damages
Ratio: The force “must amount to nothing more than forcible removal and must not include beating, wounding or other physical injury”
 “It is clear that a trespasser cannot be forcibly repelled or ejected until he has been requested to leave the premises and a
reasonable opportunity of doing so peacefully has been afforded to him”
Reasons: Although P technically did trespass, D didn’t request him to leave, he just threw him out with excessive force. P also didn’t use any
force to enter (door was unlocked) and he honestly thought he was invited in.

Bird v Holbrook Can’t booby trap your property

Facts: D set up a spring gun in garden to protect tulips from vandalism. There was no notice of spring gun posted in garden. Servant
accidentally let a hen out, flew into D’s garden. P tried to help servant, he yelled out to let D know he was entering the garden. P jumped in
and was injured by spring gun. Hold: For P, D owes damages
Ratio: “He who sets spring guns, without giving notice, is guilty of an inhuman act and if injuries consequentially ensue, he is liable to yield
to redress the sufferer”
Reasons: “D placed [the spring gun] for the express purpose of doing injury… He intended, therefore, that the gun should be discharged
and that the contents should be lodged in the body of the victim” (if D merely wanted to protect from thieves, he would have set at night
only)

DISCIPLINE
 Although attitudes and values have changed dramatically, the common law still recognizes a defence of discipline that parents and
guardians and educators can invoke to privilege the use of force in dealing with children
 The Canadian courts have largely assumed that s. 43 governs both the criminal and the civil defences of discipline
 “Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a
pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances”
o Limits the privilege – needs to be reas and using force for purposes of correction (no vindictive violence)
 SCC has ruled that not all corporal punishment is illegal, but stated that you can’t use physical force on adolescents (only on young
kids if mild and not actually physically injurious, just hurts their dignity)
 Kostal: this defense is basically non-existent anymore

Dupperin Case (1984) Shift in attitude with discipline on children

Dad beats 13 year old son, held liable (couldn’t use defense of discipline)

NEGLIGENCE
A negligence claim can be divided in 6 parts where the plaintiff has the burden of proving the first five, while the defendant has the burden
of proving the sixth.
1. Duty of Care: The court must decide, as a matter of law, whether the defendant was under any legal obligation to exercise care with
respect to the plaintiff’s interests in the type of case under consideration (did D owe P a legal duty of care in this situation)
2. The Standard of Care and its Breach: After the duty of care, the court must next establish the standard of care required of the defendant
 Ordinarily – the defendant is expected to meet the standard of care that would be exercised by a reasonable person in the
circumstances of the case
 Exception – some professionals who have special training or qualifications are expected to meet the standard of their professional
colleagues (i.e. what a reasonable doctor would do in this situation)
 The defendant doesn’t owe perfection, just an obligation to take reasonable care (not at fault if you cause someone harm, only if
you negligently/carelessly/unreasonably did so)
 The trier of fact will then apply that standard of care to the defendant’s conduct to determine whether the defendant breached
his obligation by acting carelessly (did D breach his standard of care he owed to P by acting negligently?)
 Villeneuve 16

3. Causation: Even if the defendant was under a duty of care, and breached the standard of care, he won’t be held liable unless the careless
conduct was the cause of the plaintiff’s loss (must prove the negligence caused the harm)
 P must establish, as a matter of fact, that at least one negligent act of the D was the cause of P’s loss
 “But for” test (“but for” D’s negligent act, P wouldn’t have suffered the loss)
4. Remoteness of Damages: The court must determine whether the relationship between the breach and the injury is too tenuous/remote
to warrant recovery
 In negligence, liability is generally limited to those losses that were foreseeable consequences of the defendant’s negligent act
5. Actual Loss/ Amount of Damages: Unlike most intentional torts, negligence is not actionable per se. The plaintiff must establish the he
suffered legally recognized injuries/loses.
 The plaintiff must argue the amount of damages required to put them back in the position before the loss
**The defendant will try to rebut all or any of these five arguments raised by the plaintiff at each/any level
6. Damages: Once the plaintiff has established a prima facie claim, the court must address the issue of defenses (D must prove)
 The plaintiff’s damages may be reduced or eliminated on account of his own conduct (contributory negligence, voluntary
assumption of risk or illegality) or on account of other considerations (inevitable accident/ “act of God”)
 The defendant may also raise general defenses, such as a lapse of limitation period

19th Century Negligence – Legal Obligations Checklist

In order to successfully prove a negligence case, there was only 3 possible causes of action a P could choose from (if you didn’t fit into one
of these 3 options, then you were out of luck/no remedy even if there was negligence):
1. Negligence trespass (cause of action = trespass): direct application of force
2. Privity of contract (cause of action = assumpsit): legal obligations established by a voluntary meeting of wills (contract)
3. Precedent: pertains to inadvertent negligently caused losses
 D.O.C categories that weren’t trespass or assumpsit were limited to pre-set bubbles (i.e. professionals like doctors,
inadvertently dangerous materials like explosives, etc)
 Prevailing attitude = these categories are fixed in precedent, judges can’t make new ones
**NO GENERAL D.O.C! – No privity of tort/negligence with respect to our conduct in the world that establishes a general D.O.C.

Langridge v Levy (1837) Establishes a new liability category where courts impose a D.O.C (requires knowledge and deceit/fraud)
Facts: P’s father bought a gun for his son that was warranted to have been made by Nock. D knew it wasn’t but deceived P’s father that it
was so he would purchase it. Gun exploded and mutilated P’s hand. No privity of contract bc contract between D and P’s dad.
Issue: Does D owe a duty of care to a 3rd party? Hold: Yes, D owes P 400 pounds
Reasons: D knew this gun was a knock off (deceit/fraud) and knew dad was buying the gun for his son (P) to use. Therefore, D knew of
foreseeable risk of future harm to P. There was direct causation (“but for” selling crappy gun to dad, P wouldn’t have his hand blown off)
and there was reliance on the deceit/represented safety of the gun (P relied on the high quality of the gun).
Ratio: Where you can show that D engaged in a deceit that foreseeably caused injury to a 3 rd party, the court will impose a D.O.C.
CAUTION: Probably wrongly decided at the time. D was a jew, and P was a rich white family. Jury was influenced by these factors

Winterbottom v Wright (1842) Can’t apply new Langridge precedent bc no fraud; judges don’t want to expand scope of DOC liability
Facts: P delivered mail, was thrown from coach bc it was negligently prepared. Attempts to sue subcontractor of coaches (even though he
was directly employed by Postmaster). P doesn’t have privity of contract with D, so he must argue that he fits within one of the DOC liability
precedent categories. P argues new principle from Langridge case. Hold: For D, P doesn’t fit within the facts of Langridge DOC bubble
Reasons: Fatal flaw in P’s legal arg bc there was no fraud here. D didn’t commit a fraud to the 3 rd party (P). D wasn’t deceptive. Although he
could have been negligent in preparing the coach, fraud is essential to fit in the Langridge DOC.
Ratio: Judges must carefully control the DOC precedents; it’s not their job to expand the scope of liability/create new laws. The DOC scope
is narrow, can’t manipulate the law just to serve justice in once case… if they did, would open the floodgates to a ton of future litigation

Longmeid v Holliday (1851) Clarification of the “inherently dangerous” DOC bubble

Facts: Husband bought gas lamp from D after being told it was in good condition. Lamp exploded, badly injures his wife (P). No privity of
contract bc husband bought (P = 3rd party). P tried to argue Langridge precedent and “inherently dangerous thing” precedent.
Hold: For D, the facts of this case did not fit into either of these precedent established DOC categories
Reasons: There was no fraud here, so Langridge fails. Also, a lamp isn’t inherently dangerous by its nature. It only became dangerous when
the negligent manufacturing was added to it.
 The “inherently dangerous” bubble applies to objects that are dangerous by their nature. Negligence does not factor into this
bubble; it applies to a dangerous marketable good, i.e. an explosive chemical, that are dangerous despite being made perfectly.
These manufacturers owe a duty of care to anyone the marketable good could foreseeably injure due to its inherent danger.
Ratio: “There is no right of action by a stranger to the contract unless that stranger shows knowledge or fraud on the defendant’s part”
*Case of the leaky lamp (“you light up my life”)
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George v Skivington (1869) CAUTION - Case was wrongly decided

Facts: Husband buys shampoo, wife uses and hair falls out. She sues maker of shampoo but no privity of contract. Argues Langridge
precedent and inherently dangerous precedent. Hold: For P
Ratio: There is a duty of care not only to the purchaser but to the person for whom it was bought (3 rd party).
CAUTION: Judge misunderstood Langridge (only applied the foreseeability, missed the fraud). It was wrong in it’s application of the law, but
right in it’s policy.
*Case of the shocking shampoo (“no more tangles!”)

Heaven v Pender (1883) First case where a general DOC was recognized; invitees are owed a DOC by those who invite them (new bubble)
Facts: P was a painter employed by a sub-contractor to paint a dock. P fell from scaffolding, the ropes were unfit for use and reasonable
care hadn’t been taken by D (the dock owner). P sued D, but didn’t have privity of contract. Hold: For P
Reasons: “Master of roles” judge held that after looking at all the individual DOC bubbles, there must be a larger general one. He created
the double foreseeability principle for misfeasance like this case. Essentially, whenever one person who is engaging in physical action in the
world can forsee a risk of harm if they are carless, a DOC arises and they can be liable for their negligence.
 Other judges dissented on this point (agreed with overall decision that D was liable, but was a quasi-dissent), and 10 years later
Master himself retracted this general principle
Ratio: Invitees are owed a duty of care by those who invite them (new bubble created)
 If someone invites you onto his property, mismanages the risk and there is a foreseeable risk of harm, a DOC arises
 “Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who
did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill
to avoid such danger”.

MacPherson v Buick Motor Company A thing of danger + foreseeability=DOC (new bubble created); foundation case for prod liab in USA
Facts: P purchased a car from the dealership. P is injured when car collapsed, D (Buick) negligently manufactured it. No privity of contract
with D, no trespass. So P argues the “inherently dangerous” precedent. P wanted to change the definition of that precedent to turn it into a
fault-based bubble. Theory of legal DOC argued = if you negligently made a product, you’re responsible bc owed a DOC.
Issue: Whether D owed a DOC to anyone beyond the immediate purchaser (those not in privity of contract)? Hold: Yes, for P
Reasons: In USA, didn’t use inherently dangerous but imminently dangerous. Judge held that the precedent wasn’t limited to when the
nature of the thing is inherently dangerous… it also includes if the product is negligently made, there is inherent danger.
 Policy argument: duties must expand beyond purchasers (i.e. most people who purchase cars, the dealer, sell them again…
therefore they’re the least likely to be hurt)
Ratio: “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of
danger. Its nature gives warning of the consequences to be expected. If there is added knowledge that the thing will be used by persons
other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a
duty to make it carefully”… There must be knowledge of a danger, not merely possible, but probable
 Owe 3rd party a DOC if it’s imminently probable that negligently making the product will lead to injury

Donoghue v Stevenson Recognizes a general DOC; manufacturers owe a DOC to consumers

Facts: P’s friend purchases a dark, opaque bottle of ginger-beer and gave it to P. She drank some before her friend discovered a
decomposed snail in bottle. P sued the manufacturer. Hold: For P (case was settled, so only have the decision from the motion to dismiss)
Reasons:
 In English law there must be, and is, some general conception of relations giving rise to a duty of care
 A manufacturer puts up an article of food in a container, which he knows will be opened by the actual consumer. There can be no
inspection by any purchaser and no reasonable preliminary inspection by the consumer. Negligently in the course of preparation
he allows the contents to be mixed with poison
 It is said that the current law offers no remedy to the party poisoned, however if this is the result it is a grave defect of law (from a
moral standpoint)
 ‘I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilized society
and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong
o These all show that Lord Atkin thought there just had to be a duty here, even if precedent didn’t support him. He relied
heavily on a moral argument
 There is no case in which the circumstances have been such as described above where liability has been negatived, only cases
where the relations were much more remote where the duty has been held not to exist
Ratio:
 Lord Atkin’s famous judgment: “The rule that you are to love your neighbor becomes in law, you must not injure your neighbor;
and the lawyer’s question, who is my neighbor? Receives a restricted reply. You must take reasonable care to avoid acts or
 Villeneuve 18

omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? The
answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
o Atikin wanted to synthesize the underlying principles of the duty of care under any circumstance
 Ratio 1: Proximity is not confined to mere physical proximity, but extends to such close and direct relations that the act
complained of directly affects. Proximity includes people who the plaintiff would know would be directly affected by his careless
act
o This duty doesn’t apply to every moral duty or every person.
 Ratio 2: A manufacturer of products, which he sells in such form as to show that he intends them to reach the ultimate consumer
in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the
absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or
property, owes a duty to the consumer to take that reasonable care
Dissent: The authorities are against the appellant’s contention; Atkins ruling is completely devoid of authority or precedent
 Winterbottom v. Wright - shows that the manufacturer of any article is not liable to a third party injured by negligent construction
 Mullen v. Barr - only distinguishable from this case on the ground that mouse ≠ snail
 Lord Buckmaster thinks that Lord Atkin’s position is ‘destitute of authority’
 There can be no special duty attaching to the manufacture of food apart from that implied by contract or imposed by statute
o If such a duty exists, it seems it must cover the construction of every article (If one step, why not fifty?)
 He acknowledges that there are exceptions to the duty rule with fraud and dangerous products, but his complaint is that Lord
Atkin’s decision is not based in the law
Notes:
 Atkin took the common law from a point where there were many independent and unconnected legal duties of care to a uniting
and comprehensive legal duty of care that brought together all the old duties of care into one.
 The decision in Donoghue was not tested for a long time after it was made (WW2 and depression prevented as much litigation)
and when litigation resume in full force in the Commonwealth, the courts were also reluctant to extend Lord Atkin’s test for some
time