Chapter three is really where we start to get into more of the nuts and bolts of specific laws and concepts and stuff. And this is about torts. And it's a fairly detailed chapter in the sense that there are a whole bunch of different kinds of torts, sort of all under that broad umbrella.
And they're quite often very different from one another. So I'm going to try and go through some of them, but there's a lot to digest here. So pay attention as I'm going through, take notes, and hopefully coming out the back end of the talk, you'll have a better sense of what most of these things are all about.
So a tort is basically an act or omission that causes an injury or brings harm to a person and that harm could be a physical harm if i punch you in the nose there's physical harm or it could be emotional or psychological harm those those certainly can be compensable under tort law or it it brings harm typically financial harm to your property or some other thing that you might in in which you might have economic interest for example a business You can be a tortfeasor bringing harm to somebody's business if you publish falsehoods about their business. So these are in the category of civil actions. This is not government action. These are individual parties going after each other.
Torts can be both civil, compensable, if you will, somebody seeking money, which is often mostly what you're seeking here, or they could be criminal. in which case a Crown prosecutor is charging you with a crime and there are other consequences to you. Torts involve plaintiffs and defendants. We've talked about that already. So basically, in summary, I think this line at the bottom of this slide sums it up nicely.
There's a wrongful act or an omission. By omission, I mean, let's assume you have a business in Somebody spills oil on the floor and you don't clean it up and a customer's walking in this store and slips and falls. You neglected to clean up the oil. It wasn't an actual thing that you did.
I guess it's a thing that you didn't do. So it's an act or omission that caused harm and led to damages. That's basically the formula for a tort. So I've tried to organize these topics in some semblance of rational grouping here. So the first category I thought might make sense is torts that involve verbal or physical harm.
And in that category, we're going to talk about assault and battery. We're going to talk about defamation and the two categories of defamation are libel and slander. We'll get into that. And we'll touch briefly on false imprisonment. You often hear the terms assault and battery going together like peanut butter and jam.
I mean, it's but they're really two different things. Battery requires a touching, an unwanted physical touching. It could be a punch to the to the nose.
It could be hitting you over the head with a frying pan that I've talked about a few times. It could be, you know, shooting you with a bow and arrow. It could be, you know, if you agree to surgery where the doctor is going to go in and take out your gallbladder, and when they've got you open and they're looking around, they're not free to go, you know, in search of other things.
And if they find something, even if they might sincerely believe it to be helpful to you to take it out, they're not free to do that. That would be a battery. an unwanted touching.
You've given them limited permission to go and do something in a surgery like that. And if they go beyond that scope, they might be liable for their battery. So an assault, on the other hand, there's no touching. It's basically putting you in a state of fear.
It's pointing a gun at you. If they don't fire it, nobody's touched you. Nobody's harmed you in the sense other than They've put you in a state of apprehension. You're fearful for your safety.
And that does cause damages, if you will. You can, quite frankly, if it's bad enough, it could give you a heart attack if you've got a weak heart. So assault, no physical contact. Battery, physical contact.
Both of these things, we're talking about them in the context of tort law. But obviously, you can do these things and be liable under tort law. You could also be subject to criminal sanctions.
The government could charge you. Now, there are certain defenses to the concept of assault and battery. And consent, as long as it's informed consent, is one of those defenses.
If you're in a boxing match and if somebody hits you, you've consented to that, right? You've agreed to that up to a certain point. You know, there are things that go on in a hockey game. Even things that are outside the rules, like if I slash your ankle and I break your foot, you know, I think a court would find that you've consented to that risk because people slash each other with sticks in every hockey game I've ever seen. So just because it was a penalty and just because you broke your ankle doesn't necessarily mean you're going to be successful in a tort claim.
On the other hand, if somebody takes their stick and tries to stick their stick into your eye, that isn't the kind of conduct that would ever be condoned. It isn't the kind of risk that hockey players envision when they put on their skates and go out on the ice. So that probably would rise to a level of a tort.
So consent is one defense. Self-defense is another one. If it's a dark alley and you're... You're walking up to me in a menacing way, hitting your hand with a bat, telling me to give you my wallet.
I'm permitted under the law to do reasonable things in response to that threat. If we're at a party and you push me, I'm permitted to push back, reasonably push back, in a way that would match the first push that I received. I'm not free to... to grab the fireplace poker and hit you over the head because you pushed me. That would be unreasonable under the circumstances.
So two defenses to assault and battery. One is consent, one is self-defense. The next category is defamation and you defame somebody by making a derogatory or negative statement.
It has to be false, right? If it's It's okay for me to say Paul Bernardo murdered some people because he did murder some people. But if I just make it up, if I say, you know, my neighbor assaulted a woman at a bar one night and there's no evidence and it isn't truthful.
If I make that statement publicly, I've damaged them, right? I've brought harm to them. I've ruined their reputation.
And you can be liable. financially responsible under under tort law for defamation i remember the or i i draw a distinction libel and slander are one is written one spoken and i remember it by basically saying slander and spoken start with the same letter so that's sort of a little trick you could use so libel is writing newspaper articles for example defaming somebody falsely slander is saying it publicly It could involve innuendo. I could say things in such a way that I don't actually come out and accuse you of something, but I'm leaving very little doubt because of my innuendo that you're the person I'm talking about. It must be published. You don't have damages if somebody threatens defamation, but they actually don't do it.
You might get them on something else. It's got to be communicated, this defamation. Mistake is not a defense.
Why sincerely believed you were a pedophile isn't going to escape potential liability under tort law if it's found out that that statement is factually incorrect. It can also be criminal if somebody's really going out of their way to try and ruin your reputation. Of course, the Internet's created all kinds of problems with this, right? I mean, we've got websites in different countries, and it's just given way more opportunity for people to say factually incorrect things about people in ways that they didn't used to be able to do it. So while the Internet's brought a lot of good, it's also brought a lot of harm, especially in the area of defamation.
Okay, there are certain defenses that one can have if they've been accused of defamation. One is, it's called justification. And basically, if you say something that's substantially true about somebody, and it turns out that it's technically not true, if it's mostly true, they're not going to be able to come after you for defamation.
For example, if I accuse you of stealing my blue car, but in fact you stole my red car, you shouldn't be able to come after me for defamation for that. What I said was basically true. You stole my car.
That I identified the wrong car doesn't undermine credibility that should have been yours that I've now diminished. So justification is one defense. Absolute privilege.
This is something that... drives me crazy when I see it. And you'll see this from parliamentarians in the House when an opposition member might stand up and say, you're a crook.
And the person on the other side, on the receiving end of that comment, might say, I dare you to say that out in the hallway. Now, what they're not saying is, I dare you to say it in the hallway, and if you do, I'll punch you in the nose. What they're saying is, I know you have absolute privilege.
You can say whatever you want to say on the floor of the House of Commons if you're a parliamentarian. But if you say it out in the hallway, you're subject to libel and slander law. I don't really understand why we give them that pass.
I think it leads to more misadventure with politicians. Maybe if they were held to the same standards that you and I are held to, i.e. you can't stand up in public and say false things about people, maybe they'd behave a little better. So that concept is called absolute privilege.
Qualified privilege is this notion that if a statement about somebody is made in accordance with their duty, the person can't be sued if it turns out to be a false statement. And I'll give you an example on that. If I'm your doctor and you come and see me, And I, you know, you're saying, I think I have a brain tumor.
And I do run all of the tests. And I think there that you don't have a brain tumor. Let's assume I'm a neurologist. So I'm qualified to make these determinations. And I put in the files, I believe this is a psychosis, I think it's in her head.
If you see the file, you wouldn't be able to sue me if I made that medical diagnosis in good faith. And you can sort of understand how somebody might be hurt, right? I sincerely believe something's wrong physically with me. And if a doctor turns around and said, no, no, it's all in your head, I understand why people might be hurt. But you're not going to be able to go after a doctor if they've done their due diligence and they've run the tests and it turns out that you did have a brain tumor, you might be able to get them for negligence for.
for professional negligence, but you're not going to get them for defamation if it was all done in good faith. The next defense to defamation is this notion of fair comment and it's often used by the media and what it's trying to do is encourage expressions of opinion. So, you know, Justin Trudeau, lots of things are written about him.
Look at the things written about Donald Trump, many of which I assume to a normal person would be profoundly hurtful. He's been called every name in the book. Now you could say, yeah, but he's called other people every name in the book, which is probably true, but those are public figures.
They've put themselves out there into positions where people are going to comment. But the nature of the presidency in the United States is that people can and should be able to comment and the rest of the people should be free and capable of deciding whether a statement is true. If you write an article and say Justin Trudeau is an idiot, he's mishandled the COVID situation, why don't we have vaccines like we're supposed to, that would fall into fair comment.
Justin Trudeau is likely, very likely, not going to be able to successfully go after the National Post if they say things like that. So the next category I want to talk about are torts involving property. And the three main items in this category, invasion of privacy, nuisance.
and trespass to land and I'll talk about them individually. Okay the concept of invasion of privacy typically occurs where we would have an expectation of privacy. If you're peeking in my windows, invasion of privacy.
If you're a bank and and the teller goes in and looks at their neighbors account information without any good reason, invasion of privacy. And those kinds of torts typically are what we would consider to be intentional acts. You can also run afoul of privacy laws, but those tend to be negligent acts. If an employer accidentally left documents out on a desk and people...
saw information about other employees that they shouldn't have seen. Those are generally a little bit different than the, those would violate statutes and typically they aren't intentional acts, they're negligent acts. Nuisance is an interesting tort.
In its simplest form, it's basically somebody is interfering with the use and enjoyment of someone else's property. And it sounds so simple, but in practice it's it's really quite complicated. I mean, sometimes it involves businesses. Businesses sometimes can be incompatible if they're next door to each other.
You know, if you run a bed and breakfast and there's a pig farm next door, that's going to be a problem. Municipal bylaws and zoning requirements try and deal with that stuff, but sometimes you can't. If your next door neighbor, for religious reasons, doesn't believe you should eat pork and you're barbecuing ribs and and hot dogs all day long, and the smell is wafting over the fence, they're going to probably view that as a nuisance. So the question is, when does your behavior rise to a level where someone would have a cause of action, either for damages or to seek what's called an injunction? And an injunction is basically a court order that would be issued to somebody to stop doing something.
If the government decided, if a judge decided that I wasn't allowed to barbecue in my backyard, I highly doubt they would. But if they did decide that, they would order me not to do it by issuing me an injunction to stop doing it. If I ignored that order, I'd be subject to being charged with contempt of court for ignoring a lawful court order.
So this is a complicated topic. Because what's reasonable for some isn't necessarily reasonable for others. Are you allowed to play music on your back porch? Well, some of us live in tight quarters in the city. And it's almost impossible to hear music on your back porch if your neighbor's 15 feet on the other side of the fence.
They're going to hear it. So you're permitted Saturday morning at 11 a.m. You're permitted to have your music on to some level, but you're not permitted to.
put speakers up to the fence aimed at your neighbor's deck at midnight to crank the music up you know kendrick lamar at a million decibels you're not going to be allowed to do that so these things are often subjective it depends who's hearing it um but that's that's what the concept of a nuisance is okay trespass is um you know Really, when a person comes onto somebody's property without express or implied permission. Now, what does implied mean? If you're a retail store and the door's unlocked and there's an open sign that says open and a customer walks in, they didn't receive explicit instructions from the store that they are welcome to come into the property, right? When you go to Walmart, you just sort of walk in.
It's implied you're able to walk in. For most homes, they're... There generally aren't implied offers to walk in the front door, maybe if it's a good friend or something, but that's not the general rule in a private home.
You need somebody's permission, the homeowner's permission. So it does sort of depend on the context of the relationship and the context of whether you're a business or not a business. There can be consequences.
in tort law for trespass. It's important to note that, you know, to be accused of trespass and to be liable in tort law for trespass, the person to whom you've trespassed on doesn't need to have damages, right? And if you trespass into my house and I catch you, you're not going to be able to get out of it by saying, well, I didn't steal anything and I didn't break anything.
It's the mere fact that you walked into my house. and you sat down and ate your lunch and then left, that is enough. There isn't any big financial loss, but you're still going to be liable for that. Just because it's your property, you're not free to do whatever you want on the property that might create harm to a trespasser. I mean, think of the reason you have to put a fence around a swimming pool is because Little kids view that as what's called an attractive nuisance, and they'll jump in the pool and could drown if you don't have a fence around it.
Even if there is a fence, a 10 or 11-year-old kid can climb the fence. You're not free to dig a pit. If the neighborhood kids are jumping over your fence, you're not free to dig a pit and put Dobermans in there that are trained to eat little children on site. You're not free to do that just because those kids are technically trespassing.
So you've got to be careful in trying to dissuade trespassers. I've already talked at some length about the concept of negligence. And negligence, of course, is an unintentional thing. If I shoot you with a bow and arrow, it's not negligence unless, I guess, if I were trying to miss. intentionally trying to miss and I hit you, that's going to be a hard argument to make without some evidence.
But generally speaking, negligence is in the category of unintentional torts. It's an accident. It typically involves careless conduct that causes an injury. So I've spelled it out this way, duty of care, a breach of that duty of care, and then injuries or loss, which we've referred to in the past as damages. Duty, breach, damages.
Now, what's the test for deciding whether your behavior falls below an acceptable duty of care? It's how would a reasonable person under the circumstances act. That's the test.
Now, the difficulty with that, of course, is what's reasonable for one may be unreasonable for somebody else, but that's the test. how would a reasonable person under the circumstances view the conduct? In the context of business negligence, there are three main categories that I'm going to talk about.
Occupiers liability, product liability, and professional liability. In determining to whom you owe a duty of care, you have to address this concept of was the harm reasonably foreseeable? Okay, so If the harm is reasonably foreseeable, you owe that person a duty of care. And the grandfather of this concept is a case, a famous case from the 1930s, very famous case in Canadian jurisprudence called Donahue versus Stevenson. Basically what it was is two friends were sitting in a restaurant and one of the friends bought a ginger beer.
a pop if you will or a soda for their friend so in the old days you needed privity of contract you needed a contractual relationship between parties to go after them so in the case of the ginger beer the person that paid for the ginger beer would have privity of contract with the restaurant now The ginger beer, as it turns out, had a dead snail decomposing in the bottom of the bottle, and the lady who drank it went a little crazy and suffered damages. So that person didn't buy the ginger beer, their friend bought it. So under the concept of contract law, no privity of contract, no cause of action. So that person prior to Donahue versus Stevenson couldn't sue the restaurant for their damages. Well, what the court said in Donahue v. Stevenson, they overcame this concept of privity of contract by treating the case as a tort law case and basically they said is it reasonably foreseeable for one friend to buy a drink for another friend if the answer is yes then that duty of care doesn't just run with the person who bought the ginger beer it's because it's reasonably foreseeable that this kind of thing would go on in a restaurant that restaurant would also owe a duty of care to the person who had the drink purchased for them and that's that's a really important concept now this slide outlines a couple things that are important in determining whether your behavior meets this concept of a reasonable person and what's the standard of care if you're going to make that argument and it i will say in in general it sort of depends on who you are and what you are.
If you hold yourself out to be a qualified accountant, you're expected to know what a reasonable, trained, qualified accountant knows. You're not expected to know what you and I might know about accounting, which I'm guessing is jack. If you hold yourself out to be a cardiologist, you're going to be expected to know more about heart, the heart, which is what a cardiologist knows.
is supposed to be an expert on. You're not going to be held to be the greatest cardiologist in the history of civilization, but you're going to be held to the standard of what a reasonably knowledgeable cardiologist holding themselves out as an expert in that field would know, not what a family practitioner knows. So this is sort of an important context. Some standards of care.
are set by regulation or statute. And there's a couple of them listed there. But these are sort of important contexts to know in deciding, did you behave reasonably?
Did the way you behave fall below an acceptable standard of care? And it's sometimes going to be somewhat different depending on who it is that's being judged in this case. Okay, one of the really important concepts in negligence defenses is this concept of contributory negligence. So contributory negligence basically is an argument that a defendant, somebody that's been sued, would make that basically says, okay, maybe I did some of this, but you also did some stuff that contributed to the problem. For example, if...
If you work in a warehouse and you're supposed to wear steel-toed protected work boots, and that's company policy, and they've given you these things to wear, and you're walking around in stiletto heels and a box falls and breaks your foot, somebody might say, well, sure, the box shouldn't have fallen, but you made the injury worse than it could have been and should have been because you weren't wearing the... the proper footwear. If you buy a lawnmower and it has a safety mechanism on it and you choose to unhook the safety mechanism and something bad happens but there was also some problem with the design of the lawnmower, a judge might say well you're 25% responsible for that injury and the lawnmower manufacturer is 75% responsible.
You know, a judge is free to decide how on that spectrum the loss is going to be apportioned. And that concept is called contributory negligence. This is another defense, this notion that you have voluntarily assumed risk. If you've deliberately put yourself in harm's way, it may very well disqualify you from suing.
merely because you suffered an injury or a loss. For example, if you agree to go skydiving and you break your ankle in landing, if the equipment's up to par and you've been, if there was training, you know, then you've been trained properly and all that jazz, you might have difficulty suing. If there was a waiver and you agreed to assume these risks in particular, that's not going to help you. If you go whitewater rafting and something bad happens, it doesn't necessarily mean you're going to be able to sue the company. If you've agreed to assume those risks, you're going to have difficulty putting forward an argument as a plaintiff.
The defense of voluntary assumption of risk is a complete defense. You've agreed to this. Another defense to a negligent claim is this concept of remoteness. The result was too far removed to be reasonably foreseeable to somebody that did something. And the case that's cited all the time now in the world of remoteness is this.
Mustafa versus Culligan of Canada Limited. And this had to do, Culligan sold bottled water that you drank to a customer, Mustafa. And Mustafa, when changing the bottle, noticed in one of the unopened bottles that he hadn't drank from yet, there was a dead fly in the water, floating in the water that he may have put on the water cooler and may have drank, but he didn't.
And he... had documented a documented psychosis that was caused by this. It was awful. There was no disputing whether he truly was suffering psychologically.
He was, but he sued the water company for this damage. And at the trial court, he was awarded, off the top of my head, it was the better part of $300,000. And Culligan appealed this decision. It went to the Court of Appeals. And the Ontario Court of Appeals said, wait a minute here.
You know, they might have been negligent in letting the fly get in the bottled water, but the extreme psychiatric reaction that Mustafa suffered just from seeing a fly. I mean, who hasn't seen a fly? And flies are in food if you've gone to a picnic. I mean, this is not a normal reaction.
So this... This... was deemed to be, this reaction was deemed to be too remote from the act of negligently leaving a fly in the water bottle. Mustafa then appealed this up to the Supreme Court, but they upheld the denial of damages. So you have to be careful as a company here.
You know, you can change the story a little bit. It's going to be a different outcome. You know, McDonald's has famously served, I think they've served some fingers in hamburgers.
You serve somebody a hamburger with a finger in it, and there's a psychiatric reaction, I don't think you're going to be able to make the Mustafa argument. That's just completely and utterly unacceptable. Almost all of us would suffer some psychological misadventure if we bit into a hamburger and saw a human's finger in there.
You have to be careful over reading this concept of remoteness, but it's, you know, the Mustafa case is a good starting point. I mentioned a few minutes ago the concept of occupiers liability, and I think rather than talk about it now, I don't want you to worry about it in this chapter other than what might have been briefly mentioned in the text, because I'm going to talk about this in greater detail in the next chapter. Okay, this is an important concept in the world of business law, this notion of products that you sell creating liability.
And what a defendant's going to have to show is the product itself failed to live up to the standard of a reasonable manufacturer. Now, it doesn't mean the product manufacturer is going to be liable for anything and everything. If you're a company that manufactures a plastic bucket.
You're going to be held to that bucket living up to an appropriate standard for its intended purpose. If somebody says they turned the bucket upside down and were standing on it to paint a ceiling and it collapsed and the person was injured, that, absent any other evidence at least, that isn't the kind of thing most plastic bucket manufacturers would envision the thing being able to do. the basic principle here is that the the designer manufacturer or supplier of a product does owe a duty of care to anyone who can reasonably be foreseen to use that thing in its intended purpose for its intended purpose that's an important principle i mentioned earlier the the concept of professional liability and that In addition to occupiers liability, I'll talk about this concept in chapter four. So right now, just read sort of the 30,000 foot flyover notes on professional liability in the textbook, and I'll speak about it in much more detail next chapter.
This concept of vicarious liability is vitally important if you're going to own a business or manage a business. It's the principle that business people are vicariously liable, meaning they are potentially on the hook and will be held responsible or financially liable, if you will, for injuries that result from the actions of their employees or their independent contractors that they've hired. to work in their business. This is really really important because this can cost you a lot of money. Bad hires can cost you a lot of money.
Even if the behavior of the employee is way outside the range of what they were taught or what a reasonable person would expect them to do. If we were sitting in the classroom right now rather than you know recording this thing and You were goofing off and I grabbed my keys and I threw them at you sitting at the back of the room and it injured you. Even though the college has trained me, maybe they had a whole class. John, don't throw keys in the classroom at students'heads.
Maybe they did all that. The fact is, if you're injured, sure, you'd have a cause of action against me personally. But let's say I don't have five cents for you to go after. You're going to sue the school. And that school is going to be financially responsible for my ridiculous actions.
And that principle is called vicarious liability. Okay, the concept of strict liability is an important one. And it emanates from a case a long time ago, Rylands v. Fletcher. And it basically established a rule.
And that rule is, if you're making... what's referred to as non-natural use of the land by creating a danger you're going to be liable as a result of something because of that non-natural use whether or not you were negligent now let me get this is probably best understood with an example if you are storing say you make bullets in in your house and you are storing gunpowder in your garage. And let's assume you're storing it properly in accordance with whatever the industry norms are for storing gunpowder. And if that gunpowder explodes and it burns your neighbor's house down, you may not have been negligent, but you will be found what's called strictly liable. You are going to be responsible for that damage because that's an inherently dangerous product and it sort of meets the the Rylands v Fletcher rule if you will.