TORT LAW OUTLINE

Instructor: John McLaren

INTRODUCTION AND HISTORY

Tort: a civil wrong that has caused harm for which damages / injunction is sought

-distinct from a breach of contract

-there may be some wrongs which are tortious and also contractual breaches

-distinct from crime (against state)

-some crimes are also torts (eg- Harrison v. Carswell)

Crime as distinct?

-diff burden of proof (preponderance of evidence v. reasonable doubt)

-sometimes a crime victim can seek restitution (this seems civil)

-sometimes punitive element to tort remedies

Tort examples: negligence, trespass to land or person, nuisance, fraud, defamation

Direct harm v. Indirect: direct harm allows for trespass, burden of proof (BP) on D to show lack of intent / wrongfulness (Goshen v. Larin, Ellison v. Rogers)

-Harrison v. Carswell

-D was protesting on the property of a privately owned mall in an area normally open to the public. D was charged w/ trespassing.

-Norberg v. Wynrib (extensive brief below under "Battery + Sexual Wrongdoing")

-P, a patient seeking prescriptions for painkillers became sexually involved w/ D doctor who gave prescriptions in exchange for sexual favours. P sought Gen. and Pun. DMs for sexual assault, negligence, and breach of fid. Duty.

-Mclaughlin and L'Heureux-Dube emphasized nature of relationship between people

-fiduciary relations exist (trust)

-LaForest focussed on consent in drug-addicted state

-found for plaintiff (malpractice, poor judgement in fiduciary relationship)

-punitive damages awarded

-plaintiff not considered a fully competent adult

-Sopinka J: doctor patient relation does not nullify consent

-lack of reasonable care

-a pseudo-breach of K

-negligence declared

-issues: Breach of fiduciary relationship?

consent - ability to , strength of

contract - emphasis on fid. Relationship not battery, but negligence? (relationship of trust, reasonable care)

-Bolton v. Stone

-D cricket club members hit ball over fence and hit P who was walking nearby. Claim for nuisance and negligence. Dismissed at trial, A.Ct. judgement for P on negligence, HL held that D not liable.

-test is whether the risk of harm w3as so small that a reasonable person would not take steps to prevent the danger.

-degree of liability depends on risk of causing harm

-If someone threw the ball the matter could be criminal

-The Farrier's case

-historically, harm w/o intent fell under the new tort "trespass on a (special) case"

-many areas of law developed out of this (defamation, K law)

-Goshen v. Larin

-Facts (Fs): wrestling referee (D) was leaving a crowded area in an arena escorted by police, he put his arm up in front of his face to shield himself from missiles. In the course of doing this, he accidently pushed P down causing harm to P

-Action brought for direct (either intentional or negligent) causation of physical contact w/o P's consent, or battery, trespass to the person

-Trial judgement for P on battery charge

-Issues (Iss): who bears BP for directness of harm? For intent / lack of?

-Decision (Dn): appeal allowed, action dismissed

-Reasons (Rs): BP on Plaintiff to show direct harm successfully met, BP therefore on defendant to show lack of intent / lack of negligence.

-lack of negligence was shown, his actions were reasonable

-Ratio Decidendi (RD): If direct harm is shown by a P, the BP is on D to show lack of intent / negligence

-Class Comments (CC): Trespass encompasses both direct and indirect trespass. Start with a question of directness

-Ellison v. Rogers

-P struck by a hooked golf ball, action dismissed once D showed non-negligence

Negligence emerges as a means of limiting liability (BP on D)

-focus on the nature of defendant's actions (Dahlberg v. Naydiuk)

-Dahlberg v. Naydiuk

-P farmer shot by a hunter who fired over P's property. D liable.

test for directness: would the result have occurred had it not been for the intervention of another independent agency?

If the causation is direct, P may plead trespass. BP on defendant to disprove fault.

If causation is indirect, BP on P to show harm and D's fault (intent / negligence)

Strict Liability: some harms imply liability regardless of malice, intent, etc.

-ie: nuisance, defamation, conversion

Main question is one of intent +/or wrongful activity or negligence

Some instances of battery may invovle negligence

Essentially, intent justifies a charge trespass, lack of intent justifies negligence though the application of negligence may be limited by forseeability or reasonableness (Goshen v. Larin).

DAMAGES

Pecuniary = past or future DMs for which a $ value can be determined (ie- loss of wages, expenses)

Non-Pecuniary = DMs upon which no $ value can be placed (ie- suffering)

Special = pec. DMs for specific losses to date of trial

General = pec. Or non-pec. DMs which can not be calculated w/ precision

Compensatory = DMs to compensate for loss whether pec. or non-pec. (may be special or general)

Nominal = DMs designed not to compensate, but to recognize infringed rights of P

Contemptuous = DMs acknowledging P's rights were infringed in technical sense though these DMs reflect court's concern over P's behaviour on facts and/or in bringing the suit to court

Punitive = awarded to punish D and/or deter D from similar (intolerable) conduct in future

Aggravated = designed to compensdate P for adverse effects on P's tranquility or dignity (used synonymously w/ punitive DMs)

ACCIDENTAL, INTENTIONAL, AND NEGLIGENT CONDUCT

Harm

Direct Indirect

Intentional Negligent Intentional Negligent

Trespass to person, Trespass Intentional indirect Negligence

(once P proves harm / (P must prove D caused harm / interference

interference, D bears BP) and that D was at fault in intent or negligence)

English law: either the tort was intentional, or it was negligent

Recklessness is tantamount to intention (disregard for consequence of actions)

-this varies with certainty that harm is likely to occur

-Garrat v. Dailey

-Fs: the D, a 5 year old boy moved a chair which the P then moved to sit down upon thereby injuring herself.

-RD: a battery occurs where one knows with substantial certainty that certain consequences will result from one's actions and those consequences occur even if one did not intend for those actions to come about

-CC: Intent to do an act which directly causes harm is enough to substantiate a charge of battery whether or not the harm was intended

-if intent is of the above nature (knowledge of substantial certainty of consequences) it may be described as constructive intent, or intent which is imputed to the defendant

Classes of Fault:

-Intention = desire to cause the consequences of the act or to do something substantially certain to produce those consequences

-Recklessness = acting w/o regard to probable consequences or knowingly proceeding in the face of forseeable consequences

-Negligence = failure to avoid a reasonably forseable risk of harm

-NB- D may be strictly liable (w/o intention, recklessness or negligence) for some older direct harm torts

-defamation (damage to reputation)

-nuisance (interference w/ use/enjoyment of one's land by action not on that land)

-conversion (using one's property as if one was the owner)

-Carnes v. Thompson (1932, S. C. of Missouri)

-Fs: D attempted to hit X with a pair of pliers and hit P instead.

-Iss: Is intent to harm a third person (not the P) a defence to battery?

-Dn: For P

-RD: Where A intends to hit B and hits C instead, A is liable to C

-CC: "Transfer of intent" is recognised by courts as is "recklessness"

-Try to hit A, hit B = try to hit B

-Threaten to hit A, hit B = try to hit B

-Transferred intent is similar to recklessness (hitting another nearby is a likely consequence)

Basely v. Clarkson (1681)

-Fs: charge of D trespass to P's property

-D didn't know he was on P's land

-Dn: for P

-RD: where D trespasess to P's property w/o intent, D is liable regardless

VOLITION AND CAPACITY

Intent:

limited to the consequences of the act includes desire to produce actual consequences desire to perform act substatially certain to produce certain consequences (Garrat v. Dailey)

-this = constructive intent or intent imputed to the defendant transferrable (A liable to B for action w/ intent to harm B which harms C)(Carnes v. Thompson) includes intent to act when harmful consequences were not desired or known to D (Basely v. Clarkson, Gerula v. Flores, Costello v. Calgary (City)) not excusable by "good" intentions of D where harm/offence results (Malette v. Shulman) must be connected with act of D not act of another (ie- forcing D to do act)(Smith v. Stone) must be conscious, not reflexive (Stokes v. Carlson)

-NB- an involuntary act may be conscious (Gilbert v. Stone) as likelihood/risk of the harm decreases, intent fades to recklessness, then to negligence D must show inability to appreciate nature and consequences of the act (Tillander v. Gosselin, Gerigs v. Rose) test for civil intent not the same as test for criminal intent (knowledge of "wrongness" of act irrelevant in civil law) Intention may be broken down into three categories:

intention to cause harm (subjective)

intention to do an act substantially certain to cause harm (objective)

intention to do an act which the law deems an interference with a plaintiff's interest

-Gerula v. Flores (1995)

-D operated on P's back but on the wrong disc, then performed a second operation to repair error -trespass occurred twice

-first operation lacked consent w/ regard to the specific disc

-second operation lacked consent to the operation

-charge of double trespass draws more compenastion than a negligence charge

-Costello v. Calgary (City) (1997)

-D expropriated land under and order which was later declared invalid

-D had no intention to trespass, but held liable due to consciousness of act

-Malette v. Shulman

-see CONSENT

-Smith v. Stone (1647)

-D was carried onto P's land by X, X is liable, D is not

-sleepwalking fits this pattern as well (+ other matters of duress / necessity)

-D argues duress, the third person had intent, not the D

-Stokes v. Carlson (1951)

-D while asleep pushed forward P's seat causing P to lose control of the car

-D not liable, no volition

-Gilbert v Stone

-D was forced under threat of harm to steal P's horse

-Tillander v. Gosselin (O.H.Ct., 1967)

-a 3 year old D dragged a baby some distance injuring her

-D not liable as D could not form intent/volition (no appreciation of nature/conseq. of actions)

-negligence would not apply as D had no concept of "duty of care"

-7 years of age is minimum criminal age for intent-forming (5 or 6 in tort cases)

-Lawson v. Wellesley Hospital (O.C.A., 1975)

-a psychiatric patient injured P, a non-psychiatric patient in D hospital

-intent requires appreciation of the nature and quality of one's acts

-knowledge that the act is "wrong" is not necessary (Phillips v. Soloway)

-insane patient could not form intent

-Phillips v. Soloway (1956)

-D cut P's eye w/ a knife in a fight, claimed defence of insanity

-in criminal law, defence of insanity requires incapacity to understand act + consequences or incapacity to understand "wrongness"

-knowledge of "wrongness" (aka the "M'Naughten test") is not relevant in torts

-D must be incapable of understanding nature/conseq. of act for defence of insanity in torts

-Squittieri v. de Santis (1976, OHCt)

Facts: D stabbed P's family member, claimed insanity

-D was found not guilty at criminal trial

Decision: against D

Reasons: knowledge/awareness of "wrongness" not required for intent in tort law, just appreciation of nature and quality of acts

-Gerigs v. Rose (1979)

-P police officer was shot by D

-D claimed contributory negligence and mental incapacity in defence

-judge changed wording from "nature + quality" "nature + consequence of acts"

-"quality" connotes moral understanding which is irrelevant in torts

BATTERY

Def: the intentional infliction of unlawful force on a person (Restatement, s.13)

Battery requires: an intention to cause a harmful or offensive contact w/ P or a third person or intention to cause imminent apprehension of such contact and the causing of that contact directly or indirectly (Restatement of Torts, Second) transferrable (A intends to harm/offend B, harms C, liable to C)(Carnes v. Thompson) even the slightest touching may = battery (Collins v. Wilcock) does not cover inevitable contact w/ persons in public places (Cole v. Turner) can be harmful or can challenge physical integrity (Cole v. Turner, Vinthers v. Dumont) can be battery to dignity (ie- tweaking of the nose in Stewart v.Stonehouse) includes spitting on a person (Alcorn v. Mitchell) can challenge P's autonomy by touching w/o consent (ie- Malette v. Shulman, Collins v. Wilcock, Gerula v. Flores, Malette v. Shulman, Mink v. The University of Chicago) noble motives are no defence (Malette v. Shulman) it is not necessary to touch body, contact w/ clothing or anything closely connected with the P's body is sufficient (Morgan v. Loyacomo, Fisher v. Carousel Motel) it is implicit that there be no consent to the contact a batterer may be liable for consequences above and beyond what was intended (Bettel v. Yim) though there may be limits on this in trespass claims (Mayfair Ltd. v. Pears) (?)- The action may or may not be available for indirect causation of harm. This is unclear in Canada and may best be treated as intentional indirect causation of harm (Wilkinson v. Downton, Bird v. Holbrook)

-Carnes v. Thompson

-see VOLITION AND CAPACITY

-Collins v. Wilcock

-even the slightest touching may = battery

-Cole v. Turner (1705)

-even the slightest contact in anger = battery

-active contact required, accidental brushing up against someone is not battery

-intent to harm not required, knowledge that harm would be likely is sufficient

-Vinthers v. Dumont (1996)

-P was squirted with a water gun from D's passing van while riding his bike causing him to fall

-intent to cause contact sufficient for liability (intent to injure not required)

-Stewart v. Stonehouse (1926)

-D tweaked P's nose and no physical injury resulted

-physical harm is not required to warrant battery charges, harm to dignity is enough

-Alcorn v. Mitchell (1872)

-P spat at D, D liable for battery (harm to one's dignity)

-Malette v. Shulman

-see CONSENT

-Gerula v. Flores (1995)

-see VOLITION AND CAPACITY

-Mink v. The University of Chicago

-Ds gave drug to Ps w/o P's consent resulting in risk of cancer to P and birth defects in Ps' children

-Ps allege D tried to conceal info from Ps causing greater risk to Ps + Ps offspring

-Ps claim 3 x battery, negligence, and strict liability

-only one claim of battery was successful (no consent to administer drug)

-Morgan v. Loyacomo (1941)

-D forcibly seized a package from under P's arm, D held liable for battery

-Fisher v. Carousel Motel (1967)

-D manager of a club grabbed a plate from under P's arm refusing service to P as P was black

-P suffered loss of dignity

-D liable for assault (US case)

-contact w/ something closely connected w/ another sufficient for battery

-Bettel v. Yim (1978)

-D shook P by the shoulders to induce a confession

-D's head accidently struck P's nose harming P, D held liable

-reasonable forseeability test in negligence does not apply in intentional torts

-a batterer is liable for harms beyond those specifically intended

-Mayfair Ltd. v. Pears (1987)

-D trespassed by leaving his car on P's lot, car then caused a fire

-D not held liable (too remote)

-Wilkinson v. Downton, Bird v. Holbrook

-see INTENTIONAL INDIRECT CAUSATION OF MENTAL OR PHYSICAL HARM

Notes from F. Trindade's "Intentional Torts: Some Thoughts on Assault and Battery"

Battery:

- direct act by D causing contact w/ P's body w/o P's consent

- normally intentional, can be reckless

a) direct act: (NB- Linden and Prof. claim battery may be indirect)

-chains of events don't reduce directness (ie- Scott v. Shepherd, the case of the gunpowder squib) intentional act: must be voluntary (precondition for intent)

-intentional contact, rather than intention to do harm is requiired

-can include knowledge that contact is reasonably certain to occur by D's acts

-may be transferred from intended victim to actual victim

-can be attributed to children too young to be negligent (Ellis v. D'Angelo - 4 year old hurts babysitter contact w/ P's body: must be active, not passive contact

-may include contact w/ P's clothing or some object closely identified w/ P's body

-excludes contact which has some purpose recognized by the court (ie- stopping a fight) knowledge of the contact: not required (only evidence of the contact is required) consent: generally cancels an action in battery

-BP of consent is on D

Assault: direct threat by D places P in reasonable apprehension of imminent contact w/ P's body by D or by some person or thing within D's control normally intentional, though can also be reckless direct threat: normally includes words / gestures indicating intent

-words alone can constitute a direct threat so long as they threaten a direct and imminent contact reasonable apprehension

-fear is not required, knowledge is

-apprehension must be reasonable (assault can occur w/ a toy gun) knowledge of the threat: P must be aware of the threat at the time it's made

ASSAULT

requires: intention to casuse apprehension of imminent harmful or offensive contact to anothers' person or intent to cause such contact the causing of such apprehension (Restatement, s.21, Bruce v. Dyer) assault is designed to protect the mental wefare of P (De S. and Wife v. W. de S.) actor must have the apparent capacity to act on the threat of contact mental imact on victim is important (test is whether a reasonable person in the shoes of P would be apprehensive of contact (Stephen v. Meyers) no actual adverse physical consequences need be established actual fear in P not required, actual anticipation of threat of attack/touching is sufficient transferrable (A intends to cause apprehension of imminent harm in B, causes it in C, A is liable to C for assault)(Carnes v. Thompson) mere words do not make an assault unless accompanied by threatening actions (Restatement of Torts, Second) conditional nature of threat irrelevant ("if you do X I'll hit you" = assault) words may remove the threat in otherwise menacing situations (Tuberville v. Savage) P may make a harmful pre-emptive attack so long as it is proportional to the threat (Bruce v. Dyer) Blocking a person's way may = assault if there is a threat of forcible obstruction (Bruce v. Dyer) using a car in a menacing way can = assault (Herman v. Graves) if apprehension of threat is caused w/io intention to do so and the apprehension is reasonable this may = negligence/recklessness (Restatement of Torts, Second) the tort can be used to deal w/ more generic problems where above elements are present (Mahal v. Young)

-De S. and Wife v. W. de S. (1348)

-D knocked on P's door, P's wife stuck her head out the window, D swung at her but missed

-D liable for assault, no actual harm is required

-Stephen v. Meyers (1830)

-D stood up at a meeting, shook a clenched fist at P, said he "would rather pull the charman out of the chair than…" and approached him

-assault requires the apprehension of the physical possibility of D actually harming P

-actual physical harm not required

-Carnes v. Thompson

-see VOLITION AND CAPACITY

-Tuberville v. Savage (1699)

-D put his hands on his sword and said "if it were not assize-time I would not take such language from you"

-D not liable, words can reduce the reasonableness of apprehension of threat

-Bruce v. Dyer (1970)

-P blocked D's way after a road-rage dispute and signalled for D to stop

-a fight ensued, D broke P's jaw

-D not liable, pre-emptive blow acceptable as blocking of D's car was an assault

-D entitled to defend against a threat (ie- forceful obstruction) regardless of whether the threat actually existed (reasonable person test)

-Mahal v. Young (1986)

-D kicked P at work over accusations of D's intoxication, P missed some work due to injury

-10 months later, D made racial comments towards P, then blocked P's way on a ramp and threatened to kill P

-P missed more work due to depression

-D held liable, actual ability to execute threats or execution itself need not be present

-reasonable apprehension of threat is sufficient

BATTERY AND SEXUAL WRONGDOING

advantages of a civil suit in sexual assault (battery) greater involvement of survivor in process less demanding BOP therapeutic effects on P compensation (BCCA has lifted cap on non-pec DMs in sexual battery cases (Y.S. v. C.(F.G.)) disdvantages cost adversarial nature of process and exposure of P in cross-exam. pecuniary compensation estimates may be inaccurate traditionally this area has been marked by significant male bias in the judiciary (Heggerty v. Shine) time limitations may be relaxed (K.(M.) v. H.(M.)) (no time constraint at all in B.C.) fiduciary relationship requires: power relationship ability of one to act towards another's interest or against it

-Heggerty v. Shine

-P maid had relations w/ D master who had VD (P did not know)

-D not liable (ex turpi causa - "clean hands" doctrine cited)

-Norberg v. Wynrib (extensive brief below under "Battery + Sexual Wrongdoing")

-P patient seeking prescriptions for painkillers became sexually involved w/ D doctor who gave prescriptions in exchange for sexual favours (D initiated sexual rel.)

-no physical force was involved in the sexual encounters

-P sought Gen. and Pun. DMs for sexual assault, negligence, and BOF duty

-trial judge found for D (implied consent)

-majority treated the action as for sexual battery and focussed on presence of consent

-consent held invalid due to imbalance of power in relationship

-plaintiff not considered a fully competent adult

-Mclaughlin and L'Heureux-Dube emphasized Fid. Rel. between people

-consent was invalid due to "disparity in bargaining strength"

-LaForest focussed on consent in drug-addicted state

-found for plaintiff (malpractice, poor judgement in fiduciary relationship)

-punitive damages awarded

-Sopinka J: doctor patient rel. does not nullify consent

-BOFR extended only to patient records

-lack of reasonable care, breach of K, and negligence declared

-issues: consent - ability to , strength of contract - emphasis on fid. Relationship not battery, but negligence? (relationship of trust, reasonable care of patient)

-K.(M.) v. H.(M.) (1993)

-P was sexually assaulted by D father figure

-D liable for battery and BO fiduciary relationship

-limitations inapplicable in such cases (clock starts when P can make connection between harms suffered and the acts of D)

-J.(L.A.) v. J.(H.) (1993)

-P was sexually abused by father figure but not by mother D

-D knew of abuse by father figure and prevented children's aid society from interfering

-P sought pun. DMs against D as father figure faced criminal charges

-D held liable for BOFR, punitive DMs awarded (mother had assets)

FALSE IMPRISONMENT / ARREST

Defn: the intentional confinement of P by physical or mental boundaries set by D w/o the authority of the law Intention may be imputed if D's action is substantially certain to cause confinement

Reckless disregard for another could = FI

False = w/o lawful authority, FI does not require maliciousness or dishonesty

It is sufficient that a D makes P reasonably believe P is not free to move (Chaytor)

A prisoner may be a victim of FI if exposed to a more confining situation (R. v. Hill, Abbott v. Canada)

P need not be aware of FI if D lets the incident be known to the detriment of P's reputation (Meering v. Grahame White Aviation) a person unaffected by the FI incident may not recover DMs for FI (Jeeves v. Swanson)

Boundaries which obstruct but do not confine do not warrant a FI claim

Boundaries do not need to be physical, FI "may be committed by words alone, by acts alone, or by both and by merely operating on the will of the individual…" (Martin v. Houck)

Ability of P to go around boundaries must be reasonable as a defence of D (ie- there should be no increase in danger, embarassment or other sufferings of P in taking an alternate route)

Some conditions may apply to one who consents to imprisonment then revokes consent (Martin v. Berends)

May be used to express disapproval of racist conduct (Nolan v. Toronto Metro Police)

-Bird v. Jones (1845)

-P was obstructed from taking chosen path across a bridge but was allowed an alternate passage

-Coleridge J (maj): D not liable, mere loss of freedom is not FI

-Denman CJ (d): FI = any restraint of freedom

-R. v. Hill (1995)

-P prisoner was handcuffed during a riot, placed in "the hole"

-D not liable, prisoners cannot claim under FI as they have no "residual liberty"

-Abbott v. Canada (1993)

-P prisoner was shot by D guards during a riot in which he was not involved, but was near to

-upon return from hospital P was placed in "the hole" for 1 mo., then later for 3 mo.s.

-D liable for FI for 2nd imprisonment, a prisoner may claim FI when confined moreso than is normal for a prisoner

-Meering v. Grahame White Aviation (1919)

-Knowledge of FI at the time not required for a claim of FI

-Jeeves v. Swanson (1995)

-P and infant daughter refused to pay for engraving on jewelry and D shop owner refused to let them leave the shop

-D liable to P for FI but not to daughter

-while knowledge of incident is not necessary to warrant FI claims, infant here could not appreciate the nature of the incident

-Martin v. Houck (1906)

-D told P he was under arrest and that P had to go with him

-D liable for FI

-words alone and mere operation upon the will of an individual may constitute FI

-Martin v. Berends (1989)

-P was on an express bus w/o stops and asked to get off, D driver refused

-No FI, D needed some urgent reason to be compelled to release passenger

-Chaytor et al v. London, Paris, and N.Y. Association of Fashion Ltd. and Price (1961)

-Ps were comparing prices in a competitor's shop when D owner called police to arrest Ps as suspicious characters

-Ps accompanied police to avoid embarassment and were detained for 15 mins. At the station

-D liable for FI, no actual physical contact or confinement required, reasonable belief of confinement is sufficient (psychological confinement)

-mere possibility of escape irrelevant where this escape involves embarassment or danger to P

-Nolan v. Toronto Metro Police (1996)

-P arrested after noise complaint led to discovery of warrants for a person w/ same name as P

-some evidence suggested that one of the warrants was for someone described as a Wt M, 1 year older than P

-P detained overnight

-D police liable for FI

-Rd: where reasonable investigation would disclose no grounds for detainment and police fail to carry out such an investigation, police may be liable for FI

-Thomas v. Norris (1992)

-P was forcibly removed from his home by D's, detained for several days, and forced to partake in an aboriginal ceremony

-D's argued right to carry out traditional practices

-D's held liable for FI

INTENTIONAL INDIRECT CAUSATION OF PHYSICAL OR MENTAL HARM (IICM/PH)

This tort action requires: a person intentionally doing an act calculated to cause physical harm to another, i.e., to infringe that person’s right to personal safety and physical or psychopathological harm results D liable to the P even w/o intent to cause the harm that occurred (Wilkinson v. Downton, Bielitski v. Obadiak)

This tort responds to the need for an action:

(a) Where intentional indirect physical harm is caused to the person of another (trespass/battery not being clearly available) (Bird v. Holbrook) (injury caused to P. by pre-set spring gun devised by D)

(b) Where intentional indirect mental harm is caused to the person of another (trespass/assault not being clearly available) (Wilkinson v. Downton) intention may be subjective, or objective/imputed (see use of the word "calculated" in the Wilkinson formula) It is likely that liability can be extended to "reckless" conduct (Purdy v. Woszenzensky) in Canada (but not in various U.S. jurisdictions) there has been a requirement that the harm caused be:

-Physical (e.g. buckshot in the knee) or

-Emotional distress causing physical, mental or psychosomatic illness (normally supported by medical evidence)

-An action may be allowed if there is no medical evidence, but evidence must suggest a causal link between D’s behaviour and P’s illness which must be a medical illness (mental or physical) (Rahemtulla v. Vanfed, Nolan v. Toronto Police) BOP is on the plaintiff, unlike the trespassory torts

In the US, some courts have allowed this action where there is no evidence of definable physical impact, if the action of the defendant is outrageous enough to cause emotional distress and to warrant intervention by a court (State Rubbish Collectors Assoc. v. Siliznoff)

Restatement of Torts (2nd) says the same, and allows for transferrability of the mental harm

As in the case of the trespassory torts to the other person, this head of recovery has been and is being used to deal with cases involving sexual or racial discrimination/harassment (Clark v. Canada; Nolan v. Metro Toronto Police

-Wilkinson v. Downton (1897)

-D as a joke lied in telling P that her husband was badly injured

-P suffered violent shock w/ enduring physical symptoms

-D held liable for IICM/PH, act was plainly calculated to cause some effect of the kind which was produced, cause was sufficiently close to effect

-Bielitski v. Obadiak

-D told a friend that X had hanged himself

-the news eventually reached D (X's mother) who suffered intense shock

-D liable for IICM/PH, D intended the news to reach P, reasonably forseeable that P would suffer mental anguish and physical pain

-Bird v. Holbrook

-D set a spring gun trap w/ intention to actually harm a thief

-D liable for IICM/PH, D intended to harm, D can not do indirectly what he cannot do directly

-Purdy v. Woszenzensky

-D hit P's husband over the head, P suffered shock at sight of this requiring medical care

-D liable to wife for IICM/PH, it was reasonably forseeable that D's actions would cause P to suffer (intent imputed)

-Rahemtulla v. Vanfed (1984)

-P was wrongly fired by D w/ a false accusation of theft and suffered mental anguish as she could not obtain employment after the incident due to defamation

-medical evidence to support P's claim was not introduced

-D liable for IICM/PH, D's conduct held to be flagrant and extreme as well as abundantly calculated to produce the distress complained of

-Nolan v. Toronto Police

-see FALSE IMPRISONMENT

-State Rubbish Collectors Assoc. v. Siliznoff (US, 1952)

-Mental suffering should be sufficient, jury should judge validity of claim

-Clark v. Canada (1994)

-P RCMP member subjected to repeated harassment by co-workers, threats of termination, etc.

-P complained to supervisors, no action taken by them

-P suffered mentally, physically (due to aggravated asthma), and financially through loss of work

-P successfully claimed IICM/PH

-Rd: where A subjects B to conduct that is outrageous or flagrant and extreme and would terrify a normal person and an actual harm results, A is liable to B

A TORT OF DISCRIMINATION

Briefly recognized in Canada between 1979-81 (Bhaduria v. Bd of Governors of the Seneca College of Applied Arts and Technology, Aziz v. Adamson). Ontario courts of view that action supported by:

(a) Common law principle that where there is a right which is breached there should be remedy (Ashby v. White)

(b) Human rights legislation indicated commitment to protection of individuals from discrimination but did not preclude invocation of common law action that existed separate and apart (courts noted elements of ministerial discretion in human rights complaint process).

Application of human rights complaints can be time-consuming.

Tort of discrimination had a short life, as SCC in Bhaduria concluded that human rights legislation and complaints process precluded any common law action.

Charter might provide the basis for constitutional tort action under discrimination (s.15(1), s. 7, s. 24(1)).

To date the only decisions made in which issue raised have rejected argument and followed Bhaduria (Allen v. C.F.P.L. Broadcasting), although constitutional tort argument has been accepted in other contexts (Jane Doe v. Toronto Police - action by rape victim against police for failing to warn her or protect her from of know activities of serial rapist in neighbourhood)

Issue of constitutional tort of discrimination likely to be canvassed again before too long.

B.C. provides an exception in The Civil Rights Protection Act which creates a statutory tort of discrimination (response to concern about activities of KKK in the province in early ‘80s)

(a) "prohibited act" = one involving conduct or communication interfering with civil rights of individual or group by promoting hatred or contempt of them, or superiority of another individual or group in relation to them on basis of colour, race, religion, ethnic origin or place of origin (ss. 1, 2)

(b) actionable without proof of damage by person or member of class at whom directed (s. 2(1)), and there is legal identity between individual and corporate tortfeasors (s. 2(2), (3));

(c) The Attorney General may intervene as a party to an action (s. 3);

(d) Remedies include: compensatory damages, exemplary (punitive) damages and injunctive relief (s. 4)

(e) A "prohibited act" under the Act may also be a provincial criminal offence subject to penalty of a fine, or in the case of an individual, imprisonment (s. 5).

The Act has never been used as the basis for an action. Possible reasons (other than cost):

(a) Reservations about its drafting and terminology and possible constitutional challenge (note that SCC has upheld the race hatred provisions of Criminal Code, but not the spreading false news section)

(b) Elusive nature of individuals and organizations who engage in disseminating hate messages

-Bhaduria v. Bd of Governors of the Seneca College of Applied Arts and Technology (1979)

-P East Indian Woman denied a teaching job over several years, claimed tort of discrimination

-action allowed by A. Ct. on grounds that any infringed right must be maintainable through remedy

-Aziz v. Adamson (1979)

-Parking officer denied a police force position, action taken for tortious discrimination

-action allowed, Bhaduria cited as allowing action in common law regardless of provincial human rights legislation

-Allen v. C.F.P.L. Broadcasting (1995)

-P employee of broadcasting co. subjected to continuous sexual harrassment at workplace

-P sought action in tortious breach of Charter right against discrimination

-action denied, provincial human rights legislation should be applied to the matter, Charter rights don not extend to private activity w/in the province

DEFENCES TO TRESPASS TO THE PERSON

Consent

BOP on D to show express communication or implied by actions (O’Brien v. Cunard S.S. Co.)

Reflects the very high importance attached in our culture to autonomy and choice in determining what happens to one’s body by the common law (Malette v. Shulman)

In contact sports:

(a) Volenti non fit injuria - there is consent to contact which is a natural feature of game and within the rules, and that involving frequent/familiar infractions in heat of game (Agar v. Canning, Matheson v. Gov's of Dalhousie University)

(b) but no consent to that which is vengeful and/or outside flow of play (Agar, Colby v. Schmidt)

(c) Hitting in ways which are against the rules and dangerous may be actionable in negligence (Unruh v. Webber, Zapf v. Muckalt)

Consent may serve as a defence to common fighting where the parties do not go beyond the "unwritten rules" of the fight (Wade v. Martin)

In context of medical treatment:

(a) Battery is available where:

(i) No consent (Mink v. University of Chicago, Gerula)

(ii) Procedure goes beyond actual consent (Murray v. McMurchy)

(iii) D deceives P as to the nature of the procedure (Gerula, Halushka v. University of Sask.)

(b) No battery exists where:

(i) Emergency and

(ii) Immediate danger to life or health (Marshall v. Curry, Murray v. McMurchy) and

(iii) No access to alternative consent source

(c) Consent forms are unlikely to protect where defendant goes outside procedure agreed upon and actions do not relate to ancillary, but unforeseen, complications

(d) A minor may give consent if old enough to understand fully nature and consequences of treatment and that treatment is in the child's interests (Johnston v. Wellesly Hospital, in B.C., s. 17 Infants Act). Probably trumps a parental veto. (Ney v. Attorney General of Canada)

(e) Where a minor is incapable of giving consent, parents have power of giving or denying it, but probably not if the result would be further injury to the child or death (view expressed that preservation of life is paramount) (Re Supt. Of Family and Child Services v. Dawson)

(f) Refusal of consent clearly expressed in person or by document trumps medical judgment, even in emergency situations, especially where it reflects religious belief of an adult plaintiff (Malette v. Schulman)

(g) Not so in the case of a small child, for whom a parent would normally give consent — sanctity of life is paramount — state is entitled to act as parens patriae (Richard and Breena B. v. Children’s Aid Society of Toronto, Child, Family, and Community Service Act, RSBC 1996 ss. 29, 30: where 2 doctors believe medical care is necessary to preserve the life of a child or prevent serious permanent impairment to the child's health, the ministry may seek a court order to…)

(h) With minors of more advanced years (teenagers) it will depend on whether court satisfied that minor capable of making an informed decision (Walker v. Regional 2 Hospital Grp, In re A.Y. (15 year Jehovah’s Witnesses allowed to refuse blood transfusions), In re T. (13 year old not allowed to refuse cancer treatment))

(i) Adult patient can remove consent to heroic procedures designed to prolong life (Nancy B v. Hotel Dieu du Quebec), but cannot consent to another person intervening to end life prematurely (Rodriquez v. Attorney General of British Columbia)

(j) Doctors do not need consent to deny heroic measures of treatment required to sustain life (Child and Family Services of Central Manitoba v. Lavallee)

(k) consent may be negatived by force, threat, fraud, influence of drugs, or by exploitation by the defendant of unequal power relationship (involving dependency/vulnerability) (Norberg v. Wynrib, majority)

Courts have been faced with cases involving wholesale denial of consent arising in context of medical experimentation (Mink) and treatment of those considered "mentally defective" under eugenics legislation (Muir, Re F.) and have responded by finding liability Fraud vitiates consent (R.v. Cuerrier)

-O’Brien v. Cunard S.S. Co. (1891)

-P was vaccinated by D doctor as required of passengers bound for Boston at the time

-D approached P who was standing in a line of people seekng vaccination, P raised her arm to the doctor, P later claimed no consent to vacination

-D not liable (implied consent)

-Malette v. Shulman (1990)

-P Jehovah's witness and patient to D was admitted to hospital in an unconscious state

-P had a card in her purse stating that she refused to consent to blood transfusions

-D doctor administered blood as was medically necessary

-D liable for trespass to person, competent adults are entitled to refuse treatment regardless of consequences

-doctirne of informed consent: P must consentto any touching by any D, doctor or not

-Emergency situations are exceptions to the doctrine of informed consent

-Case did not address euthanasia

-Agar v. Canning (1965)

-D hockey player hit P player in a game after being hooked

-D liable, no consent to acts intended to cause serious harm, esp. where act is retaliatory

-Matheson v. Gov's of Dalhousie University (1983)

-D "borden-bal" player tripped P player in a game in which the act was against the rules, though the game normally involved such roughness

-D not liable, players consent to being subjected to frequent or familiar infractions of the game

-Colby v. Schmidt (1986)

-P struck in jaw by D during a rugby game some time after P had parted w/ the ball

-D liable, express/implied consent in sports extends only to scope of ordinary standards of the game

-Unruh v. Webber

-Steve Webber hit Mel Unruh from behind into the boards during a hockey game

-key issue is "was D's action consistent w/ way game normally played?"

-D knew the hit was likely to cause injury, though he did not intend to harm

-D liable for reckless negligence

-Zapf v. Muckalt

-P shoulder checked into boards by D, rendered quadriplegic

-D held liable, such a hit was not consented to

-Mink v. University of Chicago

-see BATTERY

-Gerula v. Flores (1995)

-D operated on P's back but on the wrong disc, then performed a second operation to repair error -trespass occurred twice

-first operation lacked consent w/ regard to the specific disc - battery

-second operation lacked consent to the operation - battery + breach of FR

-charge of double trespass draws more compenastion than a negligence charge

-Murray v. McMurchy (1949)

-D surgeon discovered fibroid tumors in uterine wall of P during a ceasarian op.

-D felt it necessary to tie off P's tubes to prevent hazards of a 2nd pregnancy

-MacFarlane J distinguished cases which involve "urgency" requiring an "immediate decision"

-D liable here, no such immediate need

-Halushka v. University of Sask. (1965)

-P patient consented to experimental operation to test new anesthetic

-P told op. Was safe, though it was not, P suffered heart attack w/ serious consequences

-D liable for battery and negligence

-Marshall v. Curry (1933)

-D doctor removed P's testicle w/o P's knowledge or consent during a hernia operation

-P claimed negligence and battery

-evidence supported idea that condition of testicle could not have reasonably been forseen prior to operation

-situation was an immediate emergency, doctor's acts reasonably necessary to save P's life

-D not liable, above reasons (and time limitations on battery)

-Johnston v. Wellesly Hospital (1971)

-a 20yo patient sought an operation for acne treatment, 21 was age of majority at the time

-P granted right to consent, young persons can consent to medical treatment where they understand the nature and consequences of the operation

-Ney v. Attorney General of Canada

-an infant may consent to treatment and if that consent is effective, parental consent is not required. This statutory rule merely codifies the common law

-Re Supt. Of Family and Child Services v. Dawson (1983)

-SCC overturned a lower court decision to allow a vegetative patient's treatment to be discontinued w/ consent of patient's family and doctor

-Sactity of life is paramount, parents in no position to judge the value of continuation of one's life

-Richard and Breena B. v. Children’s Aid Society of Toronto

-provincial legislation defining "child in need of protection" challenged as unconstitutional

-jehovah's witness parents refused to consent to blood transfusions for their sick child

-P's not successful, the state can intervene where parental conduct falls below a socially acceptable level

-s.7 infringement was either not present (no right to refuse medical treatment to a child), or made in accordance w/ principles of fundamental justice

-parents' rights cannot override child's rights

-Walker v. Regional 2 Hospital Grp

-P 15yo child in need of treatment refused blood transfusions on religious grounds

-appeal allowed against Minister of Health, P entitled to refuse treatment if 2 doctors are satisfied as to patient's maturity and ability to consent or w/draw consent

-In re A.Y.

-P 15yo Jehovah's witness boy allowed to refuse to consent to blood transfusion on grounds that he was held to be a mature minor

-In re D (T. T.)

-Child T refused cancer treatment on religious grounds believeing he was healed

-application made for protection order

-application allowed, T held not to be mature enough to decide for himself (T was subject to a dominant father who was influencing his decisions

-Nancy B. v. Hotel Dieu du Quebec

-P suffered from a terminal illenss, refused consent to continued treatment

-P granted an injuction against hospital

-doctors held not to be liable for consequences to patient

-doctors do not need to take heroic measures to maintain the life of a person and need no consent to decide not to treat

-Rodriquez v. Attorney General of British Columbia

-P S Rodriguez was terminally ill and challenged s 24 (1)(b) of C.C.C. (prohibiting assisting a person in suicide as unconstitutional

-P could not kill herself, required assistance

-P unsuccessful, a person may not assist another in suicide

-Muir v. the Queen in Right of Alberta (1996)

-P was held to be a mental defective and was detained in an institution and sterilized w/o knowledge or consent

-D liable for battery

-Norberg v. Wynrib

-see BATTERY AND SEXUAL WRONGDOING

-R.v. Cuerrier (1998)

-D had unprotected sexual relations w/ 2 persons w/o informing them he was HIV+

-P's had consented, but would not have if they had known of D's condition

-D held liable, fraud concealing a significant risk of bodily harm vitiates consent

Self Defence

Requires actual or apprehended attack of plaintiff

Reasonable grounds enough even if actually mistaken as to the need for self-defence

Does not cover retributory action (Cockcroft v. Smith)

Does not cover violent response to verbal provocation (Evans v. Bradburn) though provocation may reduce DMs

Defensive action must be measured and proportional (McDonald v. Hees, Cockcroft v. Smith, McNeil v. Hill) though not with nicety (Bruce v. Dyer)

Killing in self-defence permissible, if murderous attack actually takes place or reasonably apprehended (R.v. Smith), unless a reasonable means of escape exists

Retreat not necessary if one is in one’s home (R. v. Hussey)

Onus of proof is on the defendant (Mann v. Balaban)

(a) that self-defence warranted; not excessive defence of self/3rd person acceptable by C.C.C. s. 27

-Cockcroft v. Smith (1705)

-D bit off P's finger in a scuffle

-D liable, self defence must be proportionate to the intensity of attack

-McDonald v. Hees (1974)

-P entered hotel room of a friend D friend former cabinet minister at night against D's wishes

-D was bigger than P, was not afraid, and threw P toward door causing P's head to strike glass

-BOP on D to show deefence warranted and not excessive

-D liable

-Rd: force used in self-defence must be proportionate (equivalent in intensity) to the attack and occupier/owner must ask person to leave first where possible before force applied in defence

-Bruce v. Dyer

-see ASSAULT

-Mann v. Balaban

-BOP on D once P has established injury by D to show self defence was reasonable and that force applied was not excessive

(Defence of third Persons)

Same rules apply re- legitimacy of circumstances (Prior v. McNab)

Same rules apply re- requirement of reasonable suspicion and proportionate defence (Gambrielli v. Campbell)

BOP on D to show reasonableness, not excessive (Prior v. McNab)

C.C.C. provides for self defence, defence of 3rd person, and use of force in prevention of commission of an offence by another

-Gambrielli v. Caparelli (1975)

-D mother hit P over when P was apparently choking D's son (but in reality was not)

-D not liable for battery, defence of 3rd person applies where D has reasonable belief that the 3rd person is in danger provided degree of forced used in defence is reasonable

Defence of Property

Requires actual or apprehended threat to property/occupier occupier/owner must ask person to leave first where possible before applying force in defence unless intrusion is forceful (Green v. Goddard, McDonald v. Hees)

Retaliatory action is not acceptable (Bigcharles v. Merkel et al.)

Above probably applies even where notice is given and understood (C.Code, s.247(1))

Occupier/owner cannot do indirectly what he could not do directly, so will be liable for murderous or dangerous devices used to protect property (Bird v. Holbrook) as impact is indescriminate

Some devices designed to prevent access to interloper (e.g. barbed wire, cackling geese) are probably acceptable

-McDonald v. Hees (1974)

-see Self Defence

-Green v. Goddard (1704)

-owner/occupier must ask an intruder to leave before applying force in defence from a trespasser unless the intrusion is forceful or intruder comes vi et armis

-Bigcharles v. Merkel et al. (1973)

-D fired shot in the dark at a gang of burglars after D found them robbing his property killing one

-no intention to hit burglar

-D held 25% liable, retaliatory defence unacceptable

-Bird v. Holbrook

-see INTENTIONAL INDIRECT CAUSATION…

Necessity

Defn: Immunity in case in which D acts to protect own interest or that of others and commits an intentional tort against P

Historically used as defence where one's interests were infringed for the good of the community (King's Prerogative in Saltpetre (1606), Burmah Oil Co. v. Lord Advocate)

Also recognized privately in cases of emergency

Requires reasonable necessity of the tortious conduct

Only proportionate harm is acceptable (Dwyer v. Stuanton)

D may be required to compensate for damages after necessitationg emergency has ended where D has protected his/her own property interests over interests of another (Vincent v. Lake Eerie Transportation Co.) or may not (Romney marsh v. Trinity House, Manor and Co Ltd. v. M.V. "Sir John Crosbie")

Defence ineffective where negligence contributes to the damage (Bell Canada v. the Ship "Mar-Tirenno")

(?)- probably not available where "necessary" act causes serious bodily harm or death (Reg. v. Dudley and Stephens, United States v. Holmes) courts are strict in their allowance of this defence (Southwark LBC v. Williams, Reg. v. Dudley and Stephens)

-Burmah Oil Co. v. Lord Advocate (1965)

-D Crown deprived P of oil installations to prevent them from falling into Japanese hands during the war, D not liable b/c of act for benefit of the state

-Dwyer v. Stuanton (1947)

-D farmer trespassed on P farmer's land as an alternate route when a highway route was blocked by a heavy snowfall

-D not liable, rights of public good higher than rights of an individual

-D's actions acceptable where damage was not beyond what was reasonably necessary

-Vincent v. Lake Eerie Transportation Co.

-D ship's owner was moored at a dock when a storm rose

-D left ship moored at a dock storm as the seas were too rough to risk passage

-D held liable, D protected his property at risk of damage to another's

-Reg. v. Dudley and Stephens (1884)

-D shipwrecked sailors stranded in lifeboat ate cabin boy

-D's liable, hunger not an acceptable basis for necessity

-United States v. Holmes (1842)

-D took a leading part in throwing 6 passengers off a badly overloaded lifeboat after

-D convicted, sentence eventually remitted by order of the Presidency

-Southwark LBC v. Williams and Anderson (1971)

-D homeless persons squatted in unoccupied council housing

-D's liable, homelessness not an acceptable basis for necessity

Legal Authority

Charter (ss. 9 and 10) affirm right against arbitrary detention and right to information of arrest reasons

Police may arrest w/o warrant one who is found committing a summary or indictable offence (C.C.C. s. 495 (2)(d), (e))

Police may arrest w/o warrant upon reasonable belief that one has or is about to commit an indictable offence (C.C.C. s. 495 (1)(a))

Arrest must be based on something more than mere surmise (Koechlin v. Waugh)

Arrest must have valid basis at law (Bahher v. Marwest Hotel Co. Ltd. et al.)

Police can make reasonable error as to occurrence of offence (R.v. Biron, Lebrun v. High-Low Foods) police can make reasonable error as to identity of offender (Fletcher v. Collins, Crowe v. Noon) police may use as much force as is reasonable, proper, and necessary to carry out their duty (C.C.C. s. 25 (1), Reynen v. Antonenko, Berntt v. Vancouver (City)) body cavity searches for drugs are acceptable (Reynen v. Antonenko)

Citizens may arrest w/o warrant where suspect found committing an offence (C.Code 494(2))

Private citizens may only make error re- identity, not offence (Briggs v. Laviolette)

(?)-whether reasonable belief is enough to justify citizen arrrest is questionable, common law may protect P's here (Hayward v. F.W. Woolworth Co.), or may justify arrest by Ds (Dendekker v. F.W. Woolworth Co.)

D must be informed of reason for arrest (S.29 (CCC); Bahher) resistence = obstruction only where resistence is intemeperate, unduly persistent, irrelevant, or done in an unreasonable manner (Sandison v. Rybiak) resistence which is not obstuction may include resisting the arrest of a friend where police have not given reasons for arrest to suspect and friend (Sandison v. Rybiak) private citizen may be reasonbaly mistaken about identity of person found committing an offence but may not be mistaken as to whether an offence was committed (mistakes here being reasonable or not) (Hucul v. Hicks) security officer = private citizen w/ respect to FI and legal authority (Dendekker v. F.W. Woolworth Co.)

-Koechlin v. Waugh (1957)

-P stopped by D police and asked for ID, numerous break-ins in area and P was dressed in a way which D found to be suspicious, P refused

-P was forcefully detained, was not told of reason for arrest

-held against P at trial, decision reversed on appeal

-D had no reason to believe P was about to or had committed an offence

-refusal to show ID does not justify use of force

-P did not need to show ID

-Bahher v. Marwest Hotel Co. Ltd. et al. (1970)

-P refused to pay for an unconsumed bottle of wine in a restaurant, D police arrested and detained P, no reason for arrest given

-Dn: for P, reason for arrest must be given

-Lebrun v. High-Low Foods

-cigarrettes alegedly shoplifted from store, no offence ever proven to have occurred\

-police only require reasonble/probable grounds to believe an offence has been comitted

-Reynen v. Antonenko (1975)

-P ordered to undergo a rectal exam for drugs by D police at a hospital

-Dn: for D, police may use as much force as is necessary to perform their duty

-Berntt v. Vancouver (City)

-P shot twice by police w/ rubber bullet during Vancouver "Hockey" riot

-second shot was fired when riot was becoming less violent

-D officer held 25% liable

-Briggs v. Laviolette

-P going home from a bar assaulted and detained by citizen aho believed P had smashed a car window

-D had not seen the offence, but knew an offence had been committed

-P was not being pursued by authorities

-D held liable, the arrest was excessively forceful

-Hayward v. F.W. Woolworth Co.

-reasonable and probable belief that P committed an offence not sufficient to warrant citizen arrest

-Dendekker v. F.W. Woolworth Co.

-reasonable and probable belief that P committed an offence sufficient to warrant citizen arrest

-Swansburg v. Smith (1996)

-confirmed s. 25(1) (CCC) (as much force as is reasonably required is acceptable) cannot be used to justify police use of force if s. 495 requirements (arrest powers w/o warrant) are not met

-Christie and Another v. Leachinski (1947)

-P arrested/confined for charge X but D police actually believed P had committed a separate offence

-general rule: a person should know why they are being arrested

-specific charge need not be articulated

-D held liable, to arrest for X but tell a person they are arrested for Y provides no info of reason for actual arrest of a person

-Sandison v. Rybiak (1974)

-P resisted the arrest of a friend when police had refused to tell P and friend the reason for the arrest and was arrested for obstruction

-D police liable for FI, police must provide reason for arrest

-resistence = obstruction only where resistence is intemeperate, unduly persistent, irrelevant, or done in an unreasonable manner

-Hucul v. Hicks (1965)

-D store owner left a wallet in a display window to trap a thief, P entered store, D noticed wallet was missing, D ordered 2 searches of P, wallet never recoverred, P claimed FI

-Dn: for D, private citizen may be mistaken re- identity of person during an arrest of that person but may not be mistaken as to offence having occurred, as wallet was not found, an offence had obviously taken place

Tort Law, Land and its Use: Protection of the Environment

Nuisance:

The forms of actionable nuisance are protean (the courts are open to accept new forms of nuisance)(Nor-Video, Lipiec, Motherwell)

Public Nuisance

Requires: an interference with the public interest by D the interference has caused special damage to P(s) (unique to P(s), different from that which is experienced by the public in general) (Hickey v. Electric Reduction Co.)

Contested issues: the definition of public (the fishing community in Hickey, the seaport community in Burgess v. MV Tamano) does the difference in impact have to be of kind or degree (Hickey suggests kind) (see McRae v. British Norwegian Whaling, Filion), some older Ontario cases and a recent NS case (Newell v. Smith) suggest degree may be sufficient is pure economic loss sufficient?

-NO (Hickey)

-YES (see (b) above (Trappa Holdings)(economic loss is now covered in some negligence cases) whether a public nuisance (where the nuisance affects a number of people) can only be sued in public nuisance (good Canadian authority suggests an action may be available in private nuisance)(Courmier v. Blanchard) if the interference directly affects another's interest in land, that person may have status for an action in private nuisance, if not, the damage must be unique to that person to have an action in public nuisance if there is no tort action for a public nuisance, the only resort may be to try and persuade the AG (federal or provincial) to act as public champion, or to lend name to a relator action (action brought by citizens under AG's name) (Hickey)

AG's tend to lend their names only in high profile cases, but rarely in cases of abusers of the natural environment (Shiell v. Amok Ltd

Hickey v. Electric Reduction Co. (1970, Supreme Ct. Nfld.)

Facts: D phosphorous plant discharged poison into a bay killing fish, P sued in private nuisance

Issues: Public nuisance or private nuisance?

Decision: private action is not available to the P

Reasons: no unique damage was suffered by P, the damage was common to "all persons of the same class

McRae v. British Norwegian Whaling Co. Ltd. (1927-31, Nfld.)

Facts: D whaling Co. polluted waters killing many fish

Issues: public or private nuisance?

Decision: the nuisance was a public one, not actionable privately

Fillion v. New Brunswick International Paper Co. (1934)

Facts: waste from D paper mill polluted waters used by P for smelt fishing

Issue: action available in private nuisance?

Decision: no, the nuisance was public

Reasons: P's damage was only different from the public damage by degree

Burgess v. M/V Tamano (1973, USDC)

Facts: Oil was released into a bay affecting fishers, clam diggers, and local business persons

Issues: are private nuisance actions available?

Decision: the fishers suffered unique damage and therefore may take action in public nuisance, but the local business people did not.

Reasons: local business people did not show a direct interference with a public right.

-complaints of loss of business were related to waters in which they did not have any property interest

Courmier v. Blanchard (1980, NBCA)

Facts: D's fish processing plant interfered with P's recreational enjoyment of waterfront property

Issues: was this a public or private nuisance?

Decision: it is both a public and private nuisance, the action was allowed

Trappa Holdings v. Surrey and Imperial Paving (1978, BCSC)

Facts: economic loss to nursery when D's road repairs interfered w/ access to D's property

Courmier v. Blanchard

Facts: a fouling of waterfront by a fish processing plant

Shiell v. Amok Ltd (1987, SaskQB)

Facts: refusal to grant P standing to challenge approvals granted to process uranium tailings from a mine

Private Niusance

Definition: unreasonable interferences and inconveniences caused by the activities of D on a person's land, the land of a 3rd party, or a public place that interfere with a P occupier or owner in the use and enjoyment of the land owned or occupied by P

Examples: escape of water from a millpond, odours of pig farming, interfering with the right of way to one's land

Factors to consider:

Location: reasonableness of actions based on norm in a particular locale (Appleby, Tock)

Intensity / Duration (Ward v. Magna)

Social utility of D's acts: Canadian Courts are unsympathetic (Tock) but English courts may consider this to be significant (Miller v. Jackson)

Social value of environment

Sensitivity of P (Tock, Ward)

Private nuisance is indirect (trespass is direct) and some tangible damage must be proven or anticipated

Courts have indicated some flexibility in allowing various forms of nuisance (Nor-Video, Motherwell, Lipiec)

Courts have also restricted nuisance (Canary Wharf)

Emphasis is on reasonableness of interference, not forseeability (Tock)(English authority contra - Cambridge Water Co.)

Fundamental distinction: nuisance per se: tangible damage is incurred from unreasonable interference and liability follows (Tock) nuisance by degree: nuisances causing inconvenience or sensory discomfort

-the context and degree of interference are looked at to determine character (Appleby, St. Helen's Smelting Co v. Tipping followed in Russell Transport)

Nuisance actions are barred against regional boards in cases involving breakdown of the roads (s.288 Municipal Act)

The defence of social utility is only applicable where the activity and/or location and method are mandated, the nuisance must be an inevitable consequence (Wilson, Tock)

If the goal of the interfering act can be achieved in a way that does not interfere, it must be done so

Hunter v. Canary Wharf Ltd. (1997, HL)

Facts: P neighbouring residents sued D owners of a high rise building in negligence and nuisance b/c the building interfered with tv reception

Issues: does the loss of tv reception constitute a nuisance?

-who has status to sue?

Decision: the building does not constitute a nuisance

-only those with a proprietary interest in the affected land could sue for nuisance (title need not be proven, but exclusive possession was a minimal requirement; mere occupation of the affected land is insufficient)

Reasons: nuisances normally arise from something emanating from the land, not the mere presence of a building

-man has the right to construct on his own property regardless of interference with another's enjoyment of neighbouring land

-nuisance is a tort directed against one's enjoyment of

rights over land, not against the person themselves

CC: Lord Goff disagreed with the

Motherwell and Devon Lumber Co. cases

Motherwell v. Motherwell (1976 AltaCA)

Facts: D telephoned P in the middle of the night and first thing in the morning

Issue: nuisance?

Decision: yes, for P

Devon Lumber Co. Ltd. v. MacNeill (1987, NBCA)

Facts: P spouse of owner of affected land sued for nuisance

Nor-Video Services Ltd. v. Ontario Hydro (1978, OSC)

Facts: P cable company sued Ont. Hydro for locating a power installation where it would interfere w/ transmission / reception of tv signals

Issue: does P have a valid claim in nuisance?

Decision: for P

Reasons: the available forms of nuisance are protean

-a good test for what amounts to nuisance surriounds that which is reasonable according to the ordinary usages (of land) of mankind living in society

-tv is an interest entitled to protection

-P's use of the land is not of an especially sensitive or susceptible nature (normal tv's would be affected by D's acts)

St. Pierre v. Ontario (1987, SCC)

Facts: D built a highway near Ps retirement home blocking its view

Decision: against Ps

Reasons: highway did not alter the nature of Ps property in any significant way

-loss of view is not normally protected by the courts

Tock v. St. John's Metropolitan Area Bd. (1989, SCC)

Facts: P's basement was flooded by water which came from D's obstructed storm sewer system

Issues: was D acting under statutory authority?

Decision for P

Reasons: Wilson: legislation which imposes a duty which inevitably leads to a nuisance exempts the duty bound party but where the party has discretion under the legislation, that party must act in conformity w/ private rights

-LaForest: the question is whether it is reasonable to refuse compensation to the aggrieved party

- actions taken by D to limit damages are irrelevant

-reasonable forseeability is irrelevant

-Sopinka: it must be established by D that is was practically impossible to avoid the nuisance

CC: this case is in contrast with the English case

Cambridge H2O Co.

-SCC accepted the Tock decision in Ryan v. Victoria

Russell Transport Ltd. v. Ontario Malleable Iron Co. Ltd. (1952, OHC)

Facts: D foundry operator ran business since 1907 on his land

-P bought adjacent land in 1949 to use as a marshalling yard for new vehicles

-P complained that the finish on the new cars was damaged by iron particles from D's foundry

Issues: nuisance?

Decision: for P

Reasons: it is irrelevant whether P came to the nuisance or the nuisance came to P

-the location was suitable for a business of the nature of which P intended

-different criteria may be applied to assess the reasonableness of one's use of land where material damage to a neighbour's property has occurred (nature of the damage is significant)

Appleby v. Eerie Tobacco Co. (1910, Div. Ct. of the SCO)

Facts: P merchant complained of noxious odours coming from D's tobacco factory

Decision: for P, injunction granted

Reasons: the nature of the location of the alleged nuisance is relevant

-the introduction of a new, extreme disturbance in an area in which lesser versions of similar disturbances are common may constitute a nuisance

Oakley v. Webb (1916, CA)

Decision: noise from a stone cutting business did not constitute a nuisance as the neighbourhood was fairly industrial

Shuttleworth v. VGH (1927, BCSC)

Held: D was allowed to operate a hospital for communicable diseases across the street from P, the depreciation of land flowed from a sentiment of danger, not a legal wrong

-witnessing human suffering would not unduly hamper P's enjoyment and comfort

Miller v. Jackson (1977, CA)

Facts: P complained that cricket balls occasionally landed in their garden and damaged their home after they moved near a cricket field

Issues: should public interest prevail over private?

Decision: 2-1 against an injunction

Reasons: public interest should prevail here

-that P moved to the nuisance is irrelevant

Ward v. Magna International Inc. (1994, Ont. Gen. Div.)

Facts: P bought a home next to a recreational park which was noisy during the summer

Decision: for P, the park was modified in some respects