The Law and Business Administration

in Canada
Fifteenth Canadian Edition

Chapter 4
The Law of Torts

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Objectives
To examine such questions as:
• What is the basis for tort liability?
• What are Intentional torts?
• What constitutes negligence?
• What remedies are provided for tort victims?

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The Development of Tort Law
• Tort law compensates victims for the wrongful acts
of others
• Rules determine situations that create a right to
compensation
• Criminal law punishes crimes but does not
compensate victims

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The Basis for Liability
• Fault (deterrent effect – consequences)
– Intentional and careless conduct
• Strict liability
• Public policy

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Public Policy and Compensation
• In some situations, compensation is by legislation:
no-fault insurance and workers’ compensation
laws
• Vicarious liability – even a blameless employer is
responsible for employee’s tort in the course of
employment

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Intentional Torts
• The act was done on purpose
• Not necessarily with the intention of causing harm
• Assault and battery
• Nuisance
• False imprisonment
• Defamation
• Economic torts

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Assault and Battery
Assault
• The threat of imminent violence
Battery
• Actual physical contact
• Not necessarily harmful contact

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Nuisance
Public nuisance
• Interference with use of public facilities
Private nuisance
• Interference with occupier’s use and enjoyment of
property
• Difficult to weigh competing legal uses of property

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False Imprisonment and Malicious
Prosecution
False Imprisonment
• Intentional restraint without legal justification
• Physical constraint is not required
• Threat of embarrassment can be enough
Malicious Prosecution
• Causing criminal prosecution without honest belief
that a crime was committed

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Defamation
• A published false statement of fact which injures
another’s reputation
• Defences
– Truth
– Absolute privilege
– Qualified privilege
– Defence of responsible communication
on matters of public interest
(not available if reporting is done with malice)

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Economic Torts
• Inducing breach of contract
– Use of unlawful means to induce the breach
• Injurious falsehood
– False advertising of another’s products (product defamation)
• unlawful interference with economic relations- attempting
by threats or other unlawful means to induce one person to
discontinue business relations with another
• unlawful means conduct triggering civil liability under
common law
• Passing off
– Representing one’s goods as those of another

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Unintentional Torts
• Negligence
• Product liability
• Occupier’s liability

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Negligence (fault causing loss)
Careless action which causes injury to a person or
property (unintentional)
A plaintiff in negligence action must prove on a balance
of probability that:
• The defendant owed a duty of care
• The defendant breached the required standard of care
• The plaintiff suffered injury or damage
• The defendant’s conduct caused injury to the plaintiff

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Duty of Care (foreseeable)
Would a reasonable person have foreseen that the
actions would have caused some harm (not the
particular harm) to someone in the plaintiff’s
position? (not the particular victim)
Consider
• Proximity (closeness)
• Foreseeability (predictable)

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Standard of Care
• The standard of care required is that of the
reasonable person
• The standard varies according to the activity
• The greater the risk, the higher the standard
• Consider social utility of activity
• Consider feasibility and cost of risk management

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Causation & Remoteness
• Did the breach of the duty cause or contribute to the
plaintiff’s injury?
• Liability is limited by the principle of remoteness
• Was the injury reasonably foreseeable?
• Mustapha v Culligan
• Egg shell/thin skull – “take the victim as he finds him”
• Damage or loss is always a requirement of tort
liability, as compensation for loss is the goal of tort law

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Plaintiff’s Conduct
• Defendant’s liability may be reduced by the
plaintiff’s conduct
• Contributory negligence allows the court to
apportion damages
• Considers relative degree of responsibility
(blameworthiness)
• Whether or not either party had insurance is not
relevant to the legal dispute
• Consider voluntary assumption of risk
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Product Liability
• Recognized in Donoghue v Stevenson (1932)
• Liability for negligence in design, production, or
inspection
• Liability also includes the duty to warn
– An ongoing duty to warn of potential dangers in use
– Plaintiff must show that failure to warn caused injury

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Occupier’s Liability
• Common law imposed degrees of liability to
– Invitee
– Licensees
– Trespassers
• Occupier’s liability legislation imposes common
duty of care to all lawful visitors

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Remedies
The usual remedy is damages
• General damages
– Non-pecuniary losses
• Special damages
– Quantifiable monetary loss
• Punitive or exemplary damages
• Injunctions or restitution may also be ordered

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