Torts Tests:

Battery:
- Direct application of physical force
1. Non-innocent (Cole v. Turner)
2. Intentional (Cole v. Turner) (Garratt v. Dailey) (Bettel v. Yim)
a) Can be transferred (Carnes v. Thomson)
b) Inferred from knowledge of the consequences (Garratt v. Dailey)
c) Can be transferred (Carnes v. Thomson)
- Acting on a personʼs body without their wishes (Malette v. Shulman)
1. A medical intervention without consent is battery (Malette v. Shulman)
- Motive is irrelevant (Garratt v. Dailey)
- Subject to the thin skull rule (Bettel v. Yim)
- Consent cannot exist in an exploitative relationship (Norberg v. Wynrib)
- Defended in self-defence (Fillipowich v. Nahachewsky)
1. Must be reasonable and proportional (Fillipowich v. Nahachewsky) (Bruce v.
Coliseum Mgmt Ltd.) (Larin v. Goshin)
2. Is a complete defence not to be confused with provocation on its own
3. Must be provoked (Fillipowich v. Nahachewsky)
a) Anything that is legal to do is not provocation (Fillipowich v. Nahachewsky)
b) Provocation is not a defence in and of itself
- Defended in defence of third party or property
1. Must be intended to prevent harm (Bettel v. Yim)
- Defended in consent
1. In sexual battery, onus is on defendant to prove consent (Non-Marine
Underwriters, Lloyds v. Scalia)
2. Consent is a question of law, not fact (Norberg v. Wynrib)
- Defended in legal authority for actions

Provocation:
- Any act inciting an irrational response (Bettel v. Yim)
- Only used to mitigate damages (Bruce v. Coliseum Mgmt Ltd.) (Bettel v. Yim)

Assault:
- Apprehension that youʼre going to be hurt (I. de S. & Wife v. W. de S.)
- If contact is imminent to victimʼs eye, it is assault (Stephens v. Meyers)
1. If there is no imminent threat of attack it cannot be assault (Tuberville v.
Savage)
- Sexual Assault is battery (Non-Marine Underwriters, Lloyds v. Scalia)
- Defended in self-defence
1. Must not be retaliation (Bruce v. Dyer)
2. Turns on question of reasonableness (Bruce v. Dyer)
3. If valid, unintended results are not your fault (Bruce v. Dyer)

Incest:
- Limitation clock does not start until victim is reasonably aware of cause of action (M.
(K.) v. M.(H.))
1. Minors and mentally disabled are not subject to limitation periods (M.(K.) v. M.
(H.))
2. Minors must be out of parental authority (M.(K.) v. M.(H.))
- Must demonstrate a fiduciary duty was present between parent and child (M.(K.) v. M.
(H.))
- There is no limitation period with regard to sexual abuse in BC

Trespass:
- Must be intentional (Smith v. Stone)
1. Intent rests in intent to commit act, not behave unlawfully (Basley v. Clarkson)
(Costello v. Calgary)
a) Accidental trespass is still trespass (Turner v. Thorne) (Costello v. Calgary)
2. Must have element of voluntariness (Balsey v. Clarkson)
3. Must have some understanding of nature of act and possible consequences
(Tillander v. Gosselin)
a) A rough idea is enough (Tillander v. Gosselin)
- Tree trespass (Anderson v. Skender)
- You can cut overhanging branches on your property only (Anderson v. Skender)
- You cannot destroy the root structure of the trees to kill it (Anderson v. Skender)
- You can only take reasonable steps to abate a nuisance (Anderson v. Skender)
- Necessity is a defence
- Mistake of fact is not a defence to trespass (Turner v. Thorne)
1. There is still intent to be there, which is trespass
- Duress is not a defence to trespass (Gilbert v. Stone)
1. Because then no one would be liable for damage (Gilbert v. Stone)
2. Can be used to reduce damages

Negligence:
- Not taking steps that would reduce risk (Bolton v. Stone)
- There must be some understanding of nature and consequences of action (Tillander v.
Gosselin) (Pollock v. Lipkowitz)
- There must be voluntariness of the act that led to the damage (Tillander v. Gosselin)
(Fiala v. MacDonald)
- Onus is on defendant to disprove negligence (Cook v. Lewis)
- If two people are negligent in a similar way but the confused situation makes it
impossible to prove who caused harm, both will be liable (Cook v. Lewis)
- A good samaritan cannot be liable unless they are grossly negligent (Good Samaritan
Act)
- If likelihood of harm and severity of damage is greater than the cost of avoidance, it is
negligence (Bolton v. Stone)
- If a judge cannot determine fault, each are liable (Leaman v. Rea) (Negligence Act s.
1-2)
- A person injured as a result of their own illegal conduct cannot recover (Hall v. Hebert)
1. Except in personal injury claims, where damages will be reduced
- If the true cause cannot be determined, all possible causes will be liable (Fairchild v.
Glenhaven Funeral Services Ltd.)
1. Especially if negligence increased risk of injury (McGhee)
- Burden of proof in negligence:
1. Must look at raw facts to determine negligence (Fontaine v. BC (Official
Administrator))
2. Persuasive:
a) Can be on either plaintiff or defendant
b) Questions of fact, not law
3. Evidentiary:
a) Questions of law, not fact
b) Decided by judge only during trial

Causation in Negligence:
- If injury would have happened anyway, there can be no restitution (Kauffman v.
Toronto Transit Commission)
- Even in the case of doctors (Barnett v. Chelsea and Kensington Hospital)
- But for test: Would the injury have occurred but for the defendantʼs negligence?
(Walker Estate v. York-Finch General Hospital) (Athey v. Leonati)
1. Must be a material contribution (Walker Estate v. York-Finch General
Hospital)
a) If defendantʼs conduct was not only cause
b) Must establish that causation is impossible to prove (Hanke v. Resurface
Corp.)
c) Must establish that defendant breached standard of care (Hanke v.
Resurface Corp.)
d) Must establish that injuries fell within ambit of risk (Hanke v. Resurface
Corp.)
2. Must be materially increased risk
a) If scientific proof is lacking, must apply a relaxed version of but-for test
(Snell v. Farrell)
3. Must be proportional
a) Not yet adopted in Canada
4. Used when negligence affects human behavior
- Anns Test for Negligence (Anns v. Merton London Borough Council):
1. Sufficient proximity between parties
2. Foreseeability of carelessness and damage
3. What are the policy considerations?
- Non-Delegable duties
1. A duty to ensure that care is taken, not to take care (Lewis (Guardian of) v.
BC)
2. A duty that cannot be delegated (Lewis (Guardian of) v. BC)
- Divisible Loss:
1. Attributable to a single tortfeasor, when joint tortfeasors are present
- Indivisible Loss:
1. If plaintiffʼs injury cannot be attributed to a single tortfeasor
 2. In cases of parallel injury, a tortfeasor cannot benefit from a second tort that
undoes the damage (Baker v. Willoughby)
a) But non-culpable behaviour can be relied upon to reduce damages
(Penner v. Mitchell)
3. Independent sufficient causes
a) When each on its own would have occasioned final loss
b) Do not apply but-for test but ask whether contribution was significant and
substantial (Lambton v. Mellish)
(1) Or material contribution (Hanke)
(2) This test is also applied when one or more independent insufficient
causes bring about an indivisible loss
4. Independent insufficient causes
a) When each on its own would have been insufficient to have caused final
loss
b) Either party causing or contributing is responsible (Nowlan v. Brunswick
Construction)
c) Apply the but-for test to establish

Vicarious Liability:
- Employers are vicariously liable for actions of employees
1. Employee must commit tort
2. Tortfeasor must be an employee or in an employment-like relationship
a) Independent contractors are not vicariously liable (67112 Ontario Ltd. v.
Sagaz Industries Cda.) (Lewis (Guardian Of) v. BC)
b) Determined by how much control employer exercises over employee
3. Employee must commit tort in scope of employment (67112 Ontario Ltd. v.
Sagaz Industries Cda.)
a) Salmond Test:
(1) Acts authorized by employer
(2) Unauthorized acts that are so connected with acts authorized that
may be regarded as modes of doing what has been authorized (West
& West v. MacDonaldʼs Consolidated Ltd. & Malcom)
(3) Enterprise risk, if employerʼs enterprise is closely tied to risk (Bazley v.
Curry)
(a) Look at opportunity enterprise afforded employee to abuse power
(b) Look at extent to which act furthered employerʼs aims
(c) Look at extent to which act was related to friction, confrontation,
or intimacy inherent in employerʼs enterprise
(d) Look at extent of power conferred to employee in relation to
victim
(e) This test usually only applies to institutional abuse cases
4. There is joint and several liability (67112 Ontario Ltd. v. Sagaz Industries
Cda.)
5. If employer is negligent in hiring, they are totally at fault (67112 Ontario Ltd. v.
Sagaz Industries Cda.)
6. Person who bears risk should bear loss when it ripens (Bazely v. Curry)
 7. A public activity will negate the liability (Jacobi v. Griffiths)

Remoteness of Negligence:
- Designed to limit the scope of liability
- If the actual harm suffered by the plaintiff is too remote, even though a tort caused the
chain, there will be no liability
- Cannot hold someone liable for an act that is not foreseeable (Wagon Mound (No. 1))
- Part of a three stage process:
1. In duty of care, ask:
a) Was it reasonably foreseeable to a person in defendantʼs position?
(1) Due to carelessness
b) Was risk of injury to plaintiff reasonably foreseeable?
2. In breach, ask:
a) How probable was the harm?
3. In remoteness, ask:
a) Were the consequences of the breach foreseeable?
b) Was the actual loss something that could be foreseen?
(1) Thin skull rule applies (Dulieu v. White) (Smith v. Leech Brain & Co.)
(2) In crumbling skull cases, defendant is liable if injury is hastened
(Smith v. Leech Brain & Co.)
(3) Must be of the same kind, but not necessarily the same degree
(Hughes v. Lord Advocate)
(4) Possibility, not probability, will satisfy remoteness (Wagon Mound (No.
2)) (Assiniboine South School Division v. Greater Winnipeg Gas Co.)
c) Was the harm within the scope of foreseeability?
d) Was the action immediate and proximate?
- Intervening causes:
1. Original tortfeasor will remain liable as long as intervening act is foreseeable
consequence (Price v. Milawski) (Bradford v. Kanellos)
2. Damages are apportioned according to each partiesʼ contribution

Duty of Care:
- No duty is owed by a mother to a foetus (Dobson v. Dobson) (Duval v. Sequin)
- The Law Society owes no duty of care to public (Edwards v. Law Society of Upper
Canada)
- A public body owes a duty of care to public (Anns v. Merton London Borough Council)
1. There is no liability to enforce by-laws (BC Local Govʼt Act s.700)
2. There is some liability for negligent inspection (BC Local Govʼt Act s.700)
(Just v. BC)
3. Registrar is exempt from action unless done in bad faith (Cooper v. Hobart)
4. Policies are important to determine duty of care (Cooper v. Hobart)
5. Test from: (Just v. BC)
a) What was the level of officials involved and in what capacity?
(1) The less senior the more likely they are liable
(2) Policy matters are likely not actionable (Brown v. BC)
b) What is the nature of the decision and type of activity involved?
 (1) Policing, importing, implementing maintenance are likely liable
c) What level of government is involved?
(1) Court is more likely to find municipal government involved
- Occupiers owe a duty to those who visit (Weiss v. YMCA)
1. Must be based on a community standard (Waldick v. Malcom)
2. Must also be foreseeable and reasonable (Stewart v. Pettie)
3. Adults have a duty to children they play a paternalistic role with (Prevost v.
Vetter)
4. It is your duty to control a risk on your land (Goldman v. Hargrave)
- Manufacturers owe a duty of care to the eventual customer (Donoghue v. Stevenson)
and the general public (Good-Wear Treaders Ltd. v. D&B Holdings Ltd.)
1. This is balanced against the remoteness of damage and the standard of care
2. Products liability is too difficult to determine in cases of used parts (Phillips v.
Chrysler Corp. of Canada)
3. Is the relationship sufficiently close so that damage is reasonable?
4. Three ways to be at fault:
a) Product badly made
b) Product inadequately designed
c) Failure to warn of risks (Hollis v. Dow Corning)
(1) Only need to warn the learned intermediary (Hollis v. Dow Corning)
(2) Warning need not be overly detailed (Rea v. Tea Eaton Co.)
(3) Standard of warning is higher for inherently detailed things (Rea v.
Tea Eaton Co.) (Lambert v. Lastoplex Chemicals)
(4) Warnings do not immunize if you know theyʼll be ignored (Good-Wear
Treaders Ltd. v. D&B Holdings Ltd.)
5. Court requires a subjective test to determine who is at fault (Hollis v. Dow
Corning)
6. Are there any factors to limit the duty of care?
a) Duty of care requires a test of foreseeability (Donoghue v. Stevenson)
(Bourhill v. Young)
b) Duty of care cannot be in the abstract (Palsgraf v. Long Island Rwy Co.)
- To use breach of statute, you must demonstrate a connection between the statute and
the harm caused (Gorris v. Scott) (Canada v. Sask. Wheat Pool)
- Negligent people owe a duty of care to rescuers (Videan v. British Transport
Commission)
1. Danger must be reasonably perceived by rescuer
2. Rescue must be reasonably foreseeable (Jones v. Wabigwan)
3. Response of rescuer must be rational and non-negligent (Horsely v.
MacLaren)
4. There is a duty in rescue to complete non-negligently (Zelenko v. Gimbel
Bros. Inc.)
5. Rescuer cannot be contributorily negligent
a) Onus of proof is on defence to show this
- Employers owe a duty of care to employees (Videan v. British Transport Commission)

Standard of Care:
- The particular standard of behavior expected in this particular circumstances of the
case
1. Breach occurs if the defendantʼs conduct falls below that standard
2. Standard taken by reasonable person in the circumstances (Arland v. Taylor)
a) Likelihood of foreseeable harm, based on degree of risk (Bolton v. Stone)
b) Gravity or severity of harm
c) Burden or cost required to prevent the harm (Paris v. Stepney Borough
Council)
(1) Social and private
- The test: (Palsgraf v. Long Island Rwy. Co.)
1. Was there a duty?
a) Is there any potential legal responsibility to that person?
b) How foreseeable is the damage? (Bourhill v. Young)
(1) Thin skull rule will only apply if there is a duty (Bourhill v. Young)
2. Was there a breach of duty?
3. Did negligence cause harm?
4. Was the damage too remote? (In Re Polemis & Furness, Withy, & Co. Ltd.)
- The standard of care can vary depending on the activity and person
1. Must examine probability of harm (Bolton v. Stone)
2. Must examine severity of harm (Bolton v. Stone)
3. Must examine burden/cost of precautions (Bolton v. Stone)
4. Sometimes examine social utility of defendantʼs conduct (Bolton v. Stone)
(Priestman v. Colangelo)
5. Must give a cost-benefit analyiss to the approach of standard of care
- Subject to a reasonable person test
1. Children are given a relaxed standard, within reason (Joyal v. Barsby)
a) What would a child of similar age and ability do?
b) If a child is engaged in adult activity, are required to be held to standard of
care of adult (Pope v. RGC Management)
2. Sudden affliction of mental illness: (Fiala v. Cechmanek) (Fiala v. MacDonald)
a) Must show no ability to understand or appreciate duty of care owed
b) Or must demonstrate no meaningful control over actions at time
3. Disabled people are required only to meet the standard for someone with a
similar disability (Dobbs v. Mayer)
a) Must be aware of their limitations and take precautions to avoid harm
4. Professionals are subject to a special duty of care:
a) Determined by experts in field of practice (White v. Turner)
b) Can be applied even to skilled trades and occupations (White v. Turner)
c) Medical practices can only be judged by the reasonable expectations
apparent to ordinary finder of fact (Ter Neuzen v. Korn)

Helpful Chart to Determine Cause of Action:

Intentional, direct Battery (a form of Trespass)
Unintentional, direct Negligence
 Intentional, indirect Trespass on the case (Like setting
a trap)
Unintentional, indirect Negligence

Contributory Negligence:
- Children can be found liable for contributory negligence (Heisler v. Moke)
- When children are involved, use a modified reasonable standard (Heisler v. Moke)
- Damages are apportioned between all parties at fault (Negligence Act s.1-2)
- Defence of contributory negligence is available even if defendant violates statute
1. Onus is on defendant to prove this
- In emergencies there is compassion, in reasonable circumstances
- The but-for test is often employed to determine causation
- Plaintiff is not required to meet same standard of care as defendant (Walls v. Mussens
Ltd.)
1. Must only show reasonable behaviour in agony of moment
- Seatbelt test: (Gagnon v. Beaulieu)
1. Knew or ought to have known that using safety device would reduce
possibility of being injured
2. That plaintiff was not wearing safety device
3. That if wearing safety device, injuries would have been prevented or lessened
- Apportionment of loss requires a finding of fact (Mortimer v. Cameron)

Medical Negligence:
- Must prove fault on Dr.ʼs part (Snell v. Farrell)
- In absence of evidence to counter plaintiffʼs argument, defendant will be liable even
without scientific or positive proof (Snell v. Farrell)
- If negligence produces a risk that materializes, onus shifts to defendant to disprove
(Snell v. Farrell)
1. Damage must be within the realm of the risk created (Snell v. Farrell)
2. Inferences can be made if they are reasonable and consistent with evidence
of harm causation (Snell v. Farrell)
a) The greater the number of possible explanations, the weaker the inference
(Snell v. Farrell)
b) Plaintiff can show negligence materially caused, or that thereʼs no other
explanation (Snell v. Farrell)
c) This can be done when there is little evidence of proof (Wilshire)
- Causation is typically to be proved by plaintiff (Snell v. Farrell)
1. This reverses if the defendant did something that could have caused harm
(McGhee)
- A doctor cannot be held liable for obeying a patientʼs instructions (Mulloy v. Hop Sang)
- Withholding information about a procedure is not battery, but negligence (Riebl v.
Hughes)
1. A right to know can be waived if the patient is informed of serious risks (Riebl
v. Hughes) (Arndt v. Smith)
2. If disclosure will cause immediate harm, this is excepted (Arndt v. Smith)
 3. Must apply the modified objective test, argument must be “if youʼd told me, I
would have refused” (Riebl v. Hughes) (Arndt v. Smith)
- Must meet the following test: (Arndt v. Smith)
1. Is there a duty of care to the patient? (Law)
2. Was there a breach of a standard of care? (Fact and Law)
3. Is there a causal link to the damage? (Fact)
4. Is the damage too remote? (Law)
- An infant can consent if they understand: (Van Mol v. Ashmore) (Infants Act s.16)
1. The care
2. The nature
3. The consequences
4. The reasonably-foreseeable risks and benefits

False Imprisonment:
- Requires inability to leave and full restraint (Bird v. Jones)
- There is no need for actual physical restraint (Chaytor v. London, New York, and Paris
Assn. of Fashions Ltd.)
1. Plaintiff must be under impression of being detained
2. If detainment results in a charge made, plaintiff has a cause of action
3. Consent must be genuine (Chaytor v. London, New York, and Paris Assn. of
Fashions Ltd.) (Lebrun v. High-Low Foods Ltd.)
- Police are not liable if acting as matter of duty and on reasonable/probable grounds
(Lebrun v. High-Low Foods Ltd.) (Bahner v. Marwest Hotel Co. Ltd.)
- You can be imprisoned without your knowledge (Murray v. Minister of Defense)
- The test goes as follows:
1. Was there imprisonment?
2. Was there a reason to detain the prisoner?
3. Did the defendant have statutory authority?
4. Was there a power of arrest?
5. Was the defendant justified by s.25 of the Criminal Code
a) Reasonable force based on facts must be used (Crampton v. Walton)
b) Force cannot be used to obtain ID (Koechlin v. Waugh)
c) Imprisoned person must be given opportunity to communicate within 12
hrs (Koechlin v. Waugh)
d) A person must be told the reason for their arrest (Koechlin v. Waugh)
- Citizenʼs Arrest:
1. Ok if you find someone committing an indictable offence (CC s.494-5)
2. Ok if you see someone running from the police (CC s.494-5)
3. Must have reasonable and probable grounds (CC s.25)
- Damages will be increased if malice or arrogance are present (Bahner v. Marwest
Hotel Co. Ltd.)

Misfeasance in Public Office:

- Must be deliberate unlawful conduct in the exercise of public functions (Odhavji Estate
v. Woodhouse)
- Must be aware the action is unlawful (Odhavji Estate v. Woodhouse)
- Must be aware the action is likely to injure the plaintiff (Odhavji Estate v. Woodhouse)
1. Standard is knowledge, not negligence (Odhavji Estate v. Woodhouse)
2. If there is no intent to harm, it is not a tort (Northern Territory of Australia v.
Mengel)
- Need to prove visible illness or recognizable psychiatric harm (Odhavji Estate v.
Woodhouse)

Malicious Prosecution:
- There must be a prosecution initiated by the defendant (Watters v. Pacific Delivery
Service)
1. When information is accepted as disclosing an offence (Casey v. Automobiles
Renault Cda. Ltd.)
2. Possibly when information is presented to a judicial officer
- The prosecution must be terminated in favor of the plaintiff (Watters v. Pacific Delivery
Service)
- There must be the absence of reasonable and probable grounds (Watters v. Pacific
Delivery Service)
- There must be motive other than bringing harm to the accused (Watters v. Pacific
Delivery Service)
- Prosecutors are not immune (Nelles v. Ontario)
1. Only expert and ordinary witnesses are immune
- Not available in civil cases (Norman v. Soule)

Abuse of Process:
- Use of a legal process for an purpose outside the legal action
1. Must be a collateral and improper purpose
- There must be an ulterior motive (Grainger v. Hill)
- Must be a definite act in furtherance of purpose
- Must cause some measure of special damages
- The suit must have finished (Guilford Industries Ltd. v. Hankinson Mgmt. Svcs. Ltd.)
- Prolonging court proceedings is not abuse of process (Pacific AquaFoods Ltd. v. CP
Koch Ltd.)

Breach of Fiduciary Duty:

- There is a duty to serve the interests of your beneficiaries (Norberg v. Wynrib)
1. Even at the expense of your own interests (Norberg v. Wynrib)

Breach of Contract:
- Not valid if it is constructive dismissal (Clark v. Canada)

Intentional Infliction of Nervous Shock:

- An emotional blow can be treated as a physical blow (Wilkinson v. Downton)
- A misrepresentation intended to be acted on to the damage of the plaintiff (Wilkinson v.
Downton)
- Plaintiff must suffer shocking experience (Devji v. Burnaby)
- Risk of shock must be reasonably foreseeable (Devji v. Burnaby)
- The act must be intended and harm caused (Wilkinson v. Downton) (Wainwright v.
Home Office)
1. Willful injuria (Clark v. Canada)

Pure Economic Loss:

- There is a duty to warn of potential loss (Rivtow Marine Ltd. v. Washington Iron Works)
- Must be foreseeability (Anns) (Rivtow Marine Ltd. v. Washington Iron Works)
- Defects must be real and substantive threat to safety (Winnipeg Condo Corp v. Bird
Construction)
- Must have compelling policy reasons (Winnipeg Condo Corp. v. Bird Construction)
- Cannot be liable for negligent words relied upon by a third party (Hedley Byrne v.
Heller)
- Allowed in the following areas: (Winnipeg Condo Corp. v. Bird Construction)
1. Independent liability of statutory public authorities
2. Negligent Misrepresentation (Hedley Byrne v. Heller)
a) Must be special relationship between advisor and advisee (Hercules
Management Ltd. v. Ernst & Young)
b) Must be foreseeable and reasonable reliance
c) Must be assumption of responsibility
d) Must be context indicating seriousness
3. Negligent performance of service
4. Negligent supply of goods or services
5. Relational economic loss (CNR v. Norsk)
a) Proximity and foreseeability are important
b) There must be a special relationship (Hercules Management Ltd. v. Ernst
& Young)
c) Plaintiff must have possessory/proprietary interest (Bow Valley Husky v.
St. John Shipbuilding Ltd.)
d) Plaintiff must be in joint venture with owner (Bow Valley Husky v. St. John
Shipbuilding Ltd.)

Chattel Torts:
- Chattel has physical existence and includes severed realty
- Includes documents representing chattel
- Only valid contract of sale passes title
1. Void contracts of sale do not pass title (Cdn. Laboratory Supplies Ltd. v.
Engelhard Industries of Cda. Ltd.)
2. Voidable contracts of sale do pass title
- In conversion cases, the risk is on the buyer (Hollins v. Fowler)
- Right to possession: (Hollins v. Fowler)
1. A thief has right to possession against those who steal from him
2. A finder on anotherʼs property has a right against those with no claim
3. Finder has rights as against whole world except true owner (Armory v.
Delamirie)
4. An owner of land has right against finder
5. True owner of chattel has right against whole world
 6. One must make sure that found property is truly abandoned (Simpson v.
Gowers)
- Bailment:
1. When one person is willingly or with authority in possession of the chattel of
another
2. If chattel is lost, it must be proven that it was done so without fault (Mason v.
Westside Cemeteries Ltd.)

Trespass to Chattel:
- Direct physical interference with chattel in possession of another
- Damage must have a direct link to physical interference
- Intention must be to physically interfere
- No liability if negligent or unintentional

Detinue:
- Failing to return chattel to which plaintiff has immediate right to possession
- Sur Bailment
1. Bailee must have deliberately or negligently destroyed property
2. Can be liable even if no longer in possession of chattel
- Sur Trouver
1. Plaintiff has immediate right of possession against defendant
2. Must show plaintiff was possessed of chattel but lost it
3. Must show defendant found it and refuses to return it

Conversion:
- An intentional unjustified act that deprives plaintiff of right to possession
- In effect, a forced sale
- Can be liable contemporaneously with detinue

Defamation:
- A false statement in a personʼs discredit
- Libel is written, while slander is oral
1. Must prove special damages to bring an action for slander (Conyd v.
Brekelmans)
2. Slander must impute criminal offence, a loathsome disease, or affect trade or
profession (Conyd v. Brekelmans)
3. Publication means communication to a third party
a) If publication was unintentional, that can be a defence (McNichol v.
Grandy)
- Charter does not apply
- Words must be defamatory (Libel and Slander Act s.13) (BCSC Rules Rule 19 s.12)
- Onus is on defendant to prove truth of statement (Jones v. Jones)
- If words are innuendo, facts must be shown to outline meaning (Byrne v. Dean)
1. Innuendo must be pleaded unless inference is obvious (Tolley v. Fry)
- Must refer to plaintiff specifically (Youssoupoff v. MGM)
1. Reasonable person test (Youssoupoff v. MGM)
 2. Intention is irrelevant (Youssoupoff v. MGM) (E. Hulton & Co. v. Jones)
- A quick apology will reduce damages (Cassidy v. Daily Mirror)
- In class defamation it must be established that words referred to plaintiff and group
(Knufper v. London Express)

Defences to Defamation:
- Defended in privilege, when publicʼs right to know outweighs plaintiffʼs right to
reputation
1. Presence of malice will vacate this (Hill v. Church of Scientology) (Jones v.
Bennett)
- Defended in privilege, when a person is in selfless performance of public duty (Royal
Aquarium v. Parkinson) (Watt v. Longsdon)
- There is no cap on damages to defamation (Hill v. Church of Scientology)
- Fair Comment is also a defence, which requires:
1. Matter of public interest (point of law) (Moises v. Cdn. Newspaper Co.)
2. Expression of opinion, not fact
3. Comments must rest on fact
4. There cannot be presence of malice
5. The statement must be honestly believed by the defendant (Cherneskey v.
Armadale Publishers Ltd.) (Vander Zalm v. Times Publishers)
6. It is a modified objective test

Invasion of Privacy:
- Things that are a matter of public record are not tortious (Melvin v. Reid)
- False light in the public eye:
1. Must be false
2. Must be offensive to a reasonable person
3. Incomplete and misleading does not equal false
4. Falsity needs to be published as a fact
- Harassment is invasion of privacy (Motherwell v. Motherwell)
- Appropriation of Name of Likeness for Business Benefit (Privacy Act s.3)
1. Must be recognizable likeness (Joseph v. Daniels)

Intentional Violation of Civil Rights:

- Must show:
1. Economic Harm (Seneca College v. Bhadauria)
2. Discrimination (Seneca College v. Bhadauria)
3. Denial of employment (Seneca College v. Bhadauria)
- The Human Rights Commission is not a suable entity (Smith v. New Brunswick HRC)

Nuisance:
- Public Nuisance
1. A private suit of public nuisance can be claimed if damage is worse than
everyone else
2. Criminal offence (Stein v. Gonzales)
3. Can be shown without negligence (Ryan v. Victoria)
- Private Nuisance
1. When there is a nuisance to your property specifically (Stein v. Gonzales)
2. Unreasonable interference to enjoyment of real property
3. A lot of private nuisances happening at once do not mean public (Sutherland
v. Canada AG)
4. Intention is not necessary
5. Material harm is essential
6. Is it an inevitable consequence? (Sutherland v. Canada AG)
7. Must determine: (Nor-Video v. Ontario Hydro)
a) Nature and severity of harm
(1) Interference must be substantial
b) Character of locale
c) Standard expected in the area
d) Abnormal sensitivity
e) Utilities of defendantʼs conduct
- Statutory Nuisance (Tock v. St. Johnʼs Metropolitan Area Board)
1. Is it a mandatory statutory activity:
a) If nuisance is inevitable, no liability in nuisance
b) If nuisance is not inevitable, then nuisance is cause of action
c) If negligence is present, then action is in negligence
2. Is it a permissive statutory activity:
a) This means municipality has power but not a required duty
b) If the language of the statute specifies location and manner, and the
inevitable consequence is nuisance, there is no liability in nuisance
c) Otherwise, the municipality must take steps to avoid nuisance

Rylands and Fletcher:

- Sui generis tort defined by:
1. Non-natural use of the land (Rylands v. Fletcher)
a) Meaning common ordinary use of land (Tock v. St. Johnʼs Metropolitan
Area Board)
2. Likely to cause mischief if it escapes (Rylands v. Fletcher)
a) Needs to be foreseeable to some degree (Cambridge Water Co. v. Easter
Leather PLC)
3. Where there is an escape causing harm (Rylands v. Fletcher)
a) From a place where the defendant has control to one outside his control
b) Must not be caused by deliberate act of third party
c) Can be caused by ownerʼs act or accident
- Those who transfer explosives are strictly liable (Rylands v. Fletcher)
- Fire is not okay for industrial or transport services but is for domestic ones (Rylands v.
Fletcher)
- Water is not okay during commercial use (Rylands v. Fletcher)
- Escape is necessary element to this tort (Read v. J. Lyons & Co. Ltd.)
- Does apply to personal injury on defendantʼs land (Aldridge v. Van Patter)
- Applies to occupiers of land (Aldridge v. Van Patter)
Mental Abnormality:
- Onus is on defendant to prove abnormality
- Defendant is liable if he understands nature and quality of the act (Gerigs v. Rose)
- Lawson Welland Hospital Rule:
1. “Where a person, by reason of mental illness, does not appreciate the nature
of his action, they do not commit a tort, which would require intent, obviously
not present...” (Gerigs v. Rose)
- Does not matter if you understand act is wrong (Gerigs v. Rose)
1. Wanting to do harm is not an element of tort law

Joint Tortfeasors:
- Actions of both/all parties together must produce tort (Cook v. Lewis)
- If youʼve sued one, youʼve sued all (Assiniboine South School Division v. Greater
Winnipeg Gas Co.)
1. If tortfeasors are concurrent, you can sue one then another

Damages:
- Nominal
- Meant to vindicate rights when no injury has been suffered
- Compensatory:
1. Meant to compensate the victim
2. High compensatory damages take away need for punitive damages (Y.(S.) v.
C. (F.G.))
3. General:
a) Future damages
b) Damages for pain suffered
c) Both pecuniary and non-pecuniary
(1) Pecuniary is future loss, lost earning capacity, and considerations
relevant to each (Andrews v. Grand & Toy)
(2) Evaluation of non-pecuniary losses is a philosophical exercise
4. Special
a) Provable expenses, done with receipts
- Punitive:
1. Punishment for an egregious error or offence against rights
2. Usually a monetary award
- Aggravated:
1. Awarded for high-handed behaviour
- If youʼre injured through negligence, you are entitled to medical expenses and loss of
income (Y.(S.) v. C. (F.G.))
- Plaintiff bears burden of proving he has suffered loss
- Loss can be offset by parallel damages that would have occurred anyway
- Must act reasonable to mitigate damages (Janiak v. Ippolito)
- Cap on damages for pain and suffering in negligence is $100K (Y.(S.) v. C. (F.G.))

Consent:
- If one party convinces another to engage in unlawful activity, they cannot sue for
damages arising out of that activity (Wade v. Martin)
- Must be obtained, even when action is in best interests of plaintiff (Mulloy v. Hop Sang)
- In medical consent:
1. Patient must be given notice of all risks (Malette v. Shulman) (Halushka v. U.
Sask.)
a) Omitted information need not be related to cause of harm (Halushka v. U.
Sask.)
b) Patient should be told the essential nature of the procedure. (Halushka v.
U. Sask.)
c) The threshold is higher for research procedures (Halushka v. U. Sask.)
2. Emergency situations will vitiate the need for consent, when reasonable
(Malette v. Shulman) (Marshall v. Curry)
3. Patient must be incapable of giving consent though
4. A card can restrict certain kinds of consent (Malette v. Shulman)

Self-Defence:
- Revenge is not self-defence (Cockcroft v. Smith)
- Must occur at the same time as the act you are defending against (Cockcroft v. Smith)
- Must be proportionate and reasonable (Cockcroft v. Smith) (McDonald v. Hees)
- In peaceful trespass, one must first ask trespasser to leave (McDonald v. Hees)
(Green v. Goddard)
1. If there is forcible entry, reasonable force can be used to eject (Green v.
Goddard)
2. Notice must be given if traps are set (Bird v. Holbrook)
a) You cannot do indirectly what it is unlawful to do directly (Bird v. Holbrook)
- Can be used to defend others (Gambriell v. Caparelli)

Provocation:
- Not a defence (Holt v. Verbruggen)
- Only reduces an award in damages (Holt v. Verbruggen)

Necessity:
- When you violate the rights of another for the greater good
1. The public good outweighs the rights of the individual (Dwyer v. Staunton)
2. Compensation must be made for any damage done (Vincent v. Lake Erie
Transportation Co.)
- Can be for the interest of another (Marshall v. Curry)
- Mostly for own interests
- Must be immediate and imminent danger (Southwark London Borough Council v.
Williams)
- Homeless people cannot claim this defence because it would open a door no one can
shut (Southwark London Borough Council v. Williams)

Mental Illness:
- Must show no capacity to appreciate or understand the duty of care (Fiala v.
MacDonald)
- Must show there was no ability to control actions when act took place (Fiala v.
MacDonald)

Voluntary Assumption of Risk:

- Arises either by express agreement or implied conduct (Dube v. Labar)
1. Must have incurred the whole risk (Dube v. Labar)
2. Must have shared purpose and taking risk was incited and instigated (Miller v.
Decker) (Schwindt v. Giesbrecht)
- Plaintiff must know and appreciate the character of the risk run
- Plaintiff must have voluntarily incurred the risk (Lehnert v. Stein)
- Spectators assume risks of watching sport
1. But negligence on part of players will not avail of this
- Participants are denied recovery
1. Consent is limited to non-negligent behaviour

Ex Turpi Causa:
- Deliberate participation in a criminal act
- Complete defense and applied narrowly
- Plaintiff cannot profit from engaging in criminal activity (Hall v. Hebert)
- Can be compensated for actual losses and costs of future care but barred from
claiming for lost wages (Hall v. Hebert) (BC v. Zastowny)
- Otherwise the integrity of the justice system would be compromised (BC v.
Zastowny)

Inevitable Accident:
- Anyone claiming this defence must show they had no control over outcome (Rintoul v.
X-Ray and Radium Industries)
- Must show could not have been avoided even by greatest care and skill (Rintoul v. X-
Ray and Radium Industries)