Elements of Torts of Intentional Harm A tort will lead the wronged party to try and recover money as compensation for the loss or injury suffered, not to punish the person who is responsible Much of the process involves determining who is at fault and the extent of the damage Looks at balance of probability

4 distinct elements Intentional interference: wilful intrusion Harm: resulted from wilful acts of one person Damages: put person back into a position before injury occurred Defences: can the accused can be excused by a legal defence

Civil and Criminal Law

1. Harming People Damages are given for bodily injury, denial of personal freedom and injury to reputation

Bodily Injury Battery: unlawful, unprivileged touching of another person MacDonald v. Sebastian p1987] Assault: person deliberately leads another person to believe that he/she is about to be harmed Mahal v. Young [1986]

Denial of Personal Freedom False imprisonment: false arrest Detaining a shoplifter Invasion of Privacy: invading someone’s privacy Telephone harassment

Injury to Reputation Malicious Prosecution: wrongfully commencing criminal proceedings against someone Nelles v. Ontario [1989] Defamation: damage to a persons reputation Libel: written form and slander: spoken form

2. Abusing Property Caused to people when others abuse property: goods may be stolen, land may be trespassed and can harm surrounding properties

Goods Conversion: taking goods or keeping it when it should be returned Taking a car that belongs to someone else Trespass: if goods are damaged by another person Damaged hood of car

Land Trespass: owner owns soil, airspace and land, if someone is on property and causes damage, they are liable Can’t walk into another persons property Nuisance: unreasonable disturbance Barking dog Ont. Ltd. V. Huron Steel Products [1990]

Remedies Several remedies a court can give Return property Injunction [do/stop doing something] Compensation [nominal, compensatory, punitive]

1. Nominal Damages A token amount paid to the plaintiff The court is saying that the plaintiff was wronged but did not suffer any real hardship from the wrong Range from: $1-$250

2. Compensatory Damages Reimburse a person who has been wronged for all the financial loss suffered Include general and special damages General damages: unspecified injury Special damages: specific losses George is assaulted and battered by Brian He may be rewarded general damages for physical injury, ongoing mental pain, loss of lifestyle He may be rewarded special damages for broken glasses, crutches, loss of wage

3. Punitive Damages Reserved for situations the courts feels that the defendant openly wronged the plaintiff Are windfall for the plaintiff because the plaintiff didn’t suffer actual harm

Defences Informed consent: person agreed to the intentional harm Person consenting should know they are consenting Consent is assumed, but not excessive force [playing hockey] Consent cannot be forced [...or you’re fired] Person doing illegal activities consented to the possibility of harm [bank robbery] Consent of goods [given permission] Consent to use property [pay for towing]

... Medical consent: if doctor does something the patient has not consented to, the patient can start an action in battery Prevent it by obtaining patient’s informed consent 2 requirements: 1. Consent must be from someone that is able and competent 2. Made fully aware and consent to all possible consequences Test used: would a reasonable person in the plaintiff’s condition have undergone the procedure if he/she had been properly informed

Defences to Torts to Person Self-defence: if person is in danger of physical injury [i.e., battery] Force must be reasonable and necessary There must be real fear for the life of self/another Legal authority: during the arrest must give the accused an opportunity to submit peacefully Koechlin v. Waugh [1957] Discipline: disciplining children

Defences to Torts on Goods Necessity: necessary to trespass on land for some good Recapture of goods: limited right to trespass Retrieve something [i.e., ball] Someone wrongfully takes a good and leave it on another’s property [i.e., Ann takes Bob’s car and leaves it at Cathy’s] Prescription: if trespass occurs for 20+ years, acquire legal rights

Defenses to Defamation 1. Qualified Privilege Used when someone is asked to make comments/give a report about another e.g. an employer giving a reference; a credit agency giving a credit rating; a teacher giving a student a report Must be made in good faith and believed to be true Usually successful unless the comments made are malicious

2. Fair Comment Used by people whose job requires them to act as a critic and make comments about the work of others e.g. movie, sports, restaurant critics Must be the opinion of the person, but not meant to be malicious

3. Truth This is the best defense, if it can be proven Although people may have things they may prefer to remain hidden, it is not defamation if they come to light.

4. Absolute Privilege Used when statements are made by members of parliament; the provincial legislature, and all persons participating in the courts, coroners’ inquests, judicial hearings and boards of review Statements given in the confines of these meetings cannot be used against them as defamation