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CONTENTS Intentional ...... 1 to Land ...... 2 / Sexual Battery ...... 3 ...... 4 ...... 5 Invasion of Privacy ...... 6 Intentional Torts: Defences ...... 7 Intentional Torts: Remedies ...... 9 ...... 10 Defamation: Defences ...... 11 Defamation: Remedies ...... 12 Case Studies ...... 13 Strategic Litigation Against Public Participation (SLAPPs) ...... 14 — Basics ...... 16 ...... 16 Standard of Care ...... 20 ...... 20 Remoteness ...... 22 DefenceS ...... 23 Proof of Negligence ...... 23 Government Liability ...... 23 ...... 24 Case Study: Reasonable Cree Person ...... 25 Case study: Insurance and Negligence ...... 26

INTENTIONAL TORTS BASIC PRINCIPLES

Direct interference with the person (actionable per se): Battery, , , False Imprisonment/Arrest, LAW is always on the Invasion of Privacy BALANCE OF PROBABILITIES Indirect interference (not actionable per se): Intentional Infliction of Nervous Shock, Misfeasance, Defamation, , Malicious Prosecution

Actionable per se: must still prove there was a loss to receive comp dams; would only receive nom dam

Defendant can only be held liable if conduct both voluntary and intentional o VOLITION: was the act directed by their conscious mind? (extremely low threshold – rarely a problem)

SMITH V STONE (1647) – Carried onto land against will thru force of others – not liable b/c not voluntary o INTENT: did the individual desire to bring about the consequences of the act? OR, could intent have been brought about through: • Imputed (constructive) intent: if they didn't intend to bring consequences but these consequences were certain to arise from the act, intent “imputed” upon that person • Public safety – protecting from tortfeasors who didn’t think actions through • Transferred intent: if they intended to commit one and then unintentionally commit another, intent is transferred to the second tort • OR intends to commit against one person and unintentionally commits against another **Burden of Proof shifted to defendant: can best prove lack of intent**

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Motive, and Accident – can help with assessing but not elements of establishing tort • MOTIVE: why did defendant do an action? • Duress: compulsion by 3rd party to commit tort; not defence but may negate of wronged party

GILBERT V STONE (1648) – trespass/ under threat of 12 armed men – still considered voluntary and intentional act, contrast with Smith v Stone

• : conduct “must have been such as to cause the defendant to lose his power of self-control and must have occurred at the time of or shortly before the assault”; “sudden and uncontrolled passion” (defined in MISKA v SIVEC (1959)) – high standard.

• MISTAKE: defendant intends consequences of acts but they have a different factual OR legal significance than what was contemplated. Not per se considered defence. • : mistaken understanding of how to apply law • Mistake of fact: mistaken understanding of facts

• INEVITABLE ACCIDENT: any situation in which defendant unintentionally and w/o negligence injured plaintiff. absence of intent distinguishes accident from mistake. Not liable in intentional torts or negligence!

• CAPACITY ISSUES: generally assume all adults have capacity to form above intent • LIABILITY OF CHILDREN AND THOSE WITH A MENTAL ILLNESS: rather than tests of volition/intent, was the defendant capable of "appreciating the nature and quality" of the act (from Crim Code s16)? • Parents/teachers, and health staff supervising patients w/ MIs not vicariously liable UNLESS they are a party to wrongful conduct or fail to control person (negligence) OBJECTIVES AND FUNCTIONS OF TORT LAW Functional Approach 1. Compensation – tort law should aim to restore P to position he would have been in if tort hadn’t been committed; as result, compensation tailored to particular loss P suffers 2. Punishment – tort law as way to express society’s disapproval of the conduct of wrongdoers who cause harm to other citizens; award of damages designed to compensate P but also acts as sanction on D 3. Deterrence – tort law should influence conduct of citizens with view to promoting certain social goals • Specific – law aims at changing behavior of D who is subject of tort action • General – law aims to change behavior of class of potential Ds, to prevent future harm • Market – law aims to allocate cost of accidents, eg, manufacturers incorporating potential liability costs within market price è Deterrence is forward-looking in comparison to punishment, which is backward-looking 4. Justice – corrective justice particularly, concerned with annulling “wrongful gains” and compensating for “wrongful losses”

Rights-based Approach Tends to be normative, ie focused on what tort law SHOULD do. Characteristics: o Non-instrumental – tort law doesn’t exist just to promote external goals like compensation o Structuralist – rights are integral and at foundation of tort law o Formalist – existence/enforcement of rights (legal rules) should determine outcome

TRESPASS TO LAND DEFINITION: direct + intentional physical interference with land in the possession of another Consent as defence for trespass cannot be used as defence unless jus tertii: third party has better right to possession than P, and third party has authorized D’s access 3

ELEMENTS 1. Direct: direct result of actions of defendant o Continuing trespass: successive actions apply each day intrusion continues 2. Intentional: assumption that people intend the logical consequences of actions o ACTIONABLE PER SE – intent to intrude/interfere with land, not to injure/harm o Burden of proof shifts to defendant — better position to prove lack of intent 3. Physical: physical contact with the land, not noise/odor/smoke/etc. 4. Land: surface area of property and fixtures 5. Possession: someone who exercises control over the land, legal title (ex: tenant, landlord, squatters)

TURNER v THORNE (1959) – Ds delivery service, P’s property same as old client; garage not locked so unloaded cartons in middle of P’s garage. P tripped over cartons and was injured. Placing objects on property is trespass. Mistake is no defence. D liable for P’s injuries — intended to place object on property, despite not intending injury (extends to personal injury)

SOUTHPORT CORP v ESSO PETROLEUM CO (1954) – D released oil from sunken boat, ended up on P’s property — distinction between action occurring on P’s property causing issue (trespass) or action occurring off P’s property that causes issue (nuisance). If damage consequential, not trespass

SMITH v INCO Ltd (2010) – D/refinery contaminated P/residences nearby with nickel, publicity of negative effects lowered property values. Damage is consequential/indirect, no trespass

DISTINCTION: PRIVATE/PUBLIC LAND

HARRISON v CARSWELL (1976) – P charged under MB Petty Act – property rights accorded by statute – right to picket on private property open to public is not protected unless enacted in legislation. Dickson J holds that mall essentially still private property. Laskin CJ, dissent, would rather have its character as by nature a public place considered. MB goes on to amend trespass legislation to include protection of picketers

INTERSECTION: TORTS//CRIMINAL Can sue simultaneously in tort/contracts, but usually can only recover damages under one (double recovery) Criminal Code charges brought by ♔, usually don’t compensate victims directly – punishing convicted only

R v PRIESTAP (2016) – D hunched over in P’s backyard at night, criminally convicted of trespassing/prowling at night. Intent/MR is to prowl, not another act prowler intends to commit

Trespass Act turns into offence, rather than tort, with clearer boundaries. Power to arrest without warrant, accessing resources of state immediately. Legislators modify the action in statutes, judges apply common law.

VANCOUVER (city) v WALLSTAM (2017) – P wants to remove tent city/D (homeless) from vacant lot through statutory provisions, interfering with intended social housing project. Lost this injunction, P sold land to developer that requested injunction and won.

BATTERY / SEXUAL BATTERY DEFINITION: the direct and intentional bringing about of a physically harmful or socially offense physical contact with the person of another Trespass of the person; same test for sexual battery as other battery (damages for sexual battery general greater than other battery, as assumed greater indignity) 4

ELEMENTS 1. Direct: “interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant … the burden is then on the defendant to allege and prove his defence” (Scalera) 2. Intentional

BETTEL v YIM (1978) – P playing in D’s store, told to leave; D saw P lighting matches and throwing into store; D grabbed P by arm and began shaking to get confession; head hit P’s nose “by accident” If defendant had initial intent to make physical contact, subsequent injury falls within the initial battery due to the principle of directness; defendant’s lack of subjective intent to harm irrelevant 3. Contact: physical contact or interaction, bodily contact not required 4. With another person NON-MARINE UNDERWRITERS v SCALERA (2000) – sexual battery case, D says contact w/o consent by bus- driver, insurance co doesn’t want to cover for intentional/criminal acts (but required for trespass/bodily injury). Physical contact for battery must be of a nontrivial nature; contact does not need to be physically or psychologically injurious or morally offensive

NORBERG v WYNRIB (1992) – unequal bargaining power and exploitative nature of relationship can make it impossible for P to meaningfully consent – doctor offered prescription drugs in exchange for sex; P did so after she couldn’t obtain drugs elsewhere – consent should be about freedom to consent or not, which is untenable in certain circumstances. Voluntariness issue is dealt with in law with unequal parties, so it should be able to address the issue in tort law as well – “unconscionable transactions” negate legal effectiveness of contract/consent; ex turpi causa “the fundamental principle, plain and incontestable is that every person’s body is inviolate. The law of battery protects this inviolability and it is for those who violate the physical integrity of others to justify their actions” (Scalera) INTERSECTION: TORTS/CRIMINAL Advantages: P controls the case rather than ♔, P may not need to testify (lack of consent must be proved in crim, testimony is imp), potential therapeutic benefit (P can be vindicated) Disadvantages: could make it worse (cost, stress, time), secondary victimization in defence, civil litigation is expensive.

FALSE IMPRISONMENT DEFINITION: direct and intentional restraint of another person’s movements From the idea of trespass of the person; originally designed as a remedy for wrongful incarceration ELEMENTS 1. Direct: potential issue when someone else orders police to arrest somebody • Hinges on amount of discretion/independent judgement exercised by the police • Distinguish: merely providing information

ROBERTS v BUSTER’S AUTO TOWING (1967) – Police arrested P on D employee’s request, without analyzing the situation themselves. Police and D liable.

2. Intentional: for the plaintiff to prove (not flipped, like in some others) 3. Total Restraint/Imprisonment: must be total imprisonment from physical barriers, implicit/explicit threat of force, assertion of legal authority, psychological, etc. • Means of escape: if exists, then no false imprisonment — assessment of feasibility of escape is part of determining whether false imprisonment exists; not required to risk physical injury, but uncertain how much inconvenience P should be put into

BIRD v JONES (1845) – P wanted to go one way on highway, D’s policemen made barrier, requiring toll. False imprisonment must be total. P could have gone other way, only loss of freedom for 1 path. 5

Falseness is not an element of the tort — presumed it is false; lawful justification can be a defence. EX shoplifter who brings false imprisonment action: D might assert defence of legal authority depending on outcome of crim proceedings Awareness of the confinement also not necessary in Canada — useful for people with limited capacity DEFINITION: category of false imprisonment brought about by implicit/explicit assertion of legal authority

CAMPBELL v SS KRESGE CO (1976) – specific intent to arrest not required to find false arrest P at K-Mart couldn’t get help, left full trolley and left. Customer told D (Williamson, police officer working as security guard) P put something in pocket. D followed and confronted with police badge, asking her to come back into store “to avoid embarrassment”. D let her go after saying he was trying to get facts and couldn’t see tipper. Police badge induced fear in plaintiff, as did mention of “embarrassment” à felt that she had to comply. Circumstances led to belief despite D not considering an actual arrest, thus amounting to false imprisonment

SOLITARY CONFINEMENT/ADMINISTRATIVE SEGREGATION DEFINITION: isolation in a cell for 23hr/day, 1hr in yard/contained unit; almost no human contact Legal framework: Corrections and Conditional Release Act Disciplinary segregation fairly circumscribed: to discipline a prisoner for doing something, very short Administrative segregation: no legislative time limits (could be indefinite), whims of prison officials, mandatory review every 30/60 days (not adhered to), stays within prison walls (no oversight) • Average time in Canada: 26 days; UN says 15< amounts to torture • Grounds to place someone in SC: jeopardizing risk of prison/ppl, interfering w/ investigation, risk of harm in gen. pop (almost anything fits into these categories) • Stats: ¼ fed prisoners subjected, 16/17 rates 6k<, disproportionately Indigenous ppl (esp. women) – clear link to residential schools • No Charter/constitutional recourse for those who suffered harm, but maybe through false imprison

R v GLADUE (1999) – provision in Crim Code for special consideration challenged, went to SCC — expressly stated there’s a crisis in criminal justice system

LEBAR v CANADA (1987) – established $10/day for loss of liberty, as 2x daily wage when decided;

R v IPEELEE (2012) – SCC reiterated crisis, expressly stated from colonialism/residential schools

SAINT-JACQUES v CANADA (1991 FC) – P refused TB test + put in SC for 80 days — P doesn’t need to prove unlawful/malicious — interplay w/ leg permitting solitary; $800 gen; $2k pun (sig. decision, recognizing liberty rights of prisoners)

Louise Arbour: when a right has been granted by law, it is no less important that such right be respected because the person entitled to it is a prisoner

R v HILL (1991 FC) – distinguished prison w/in prison (SC) compared to prison residual liberty; sent to prison AS punishment, not FOR punishment (SC as add. punishment – humiliation on top of sentence)

MALICIOUS PROSECUTION DEFINITION: unjustified interference with individual freedom resulting from the improper initiation of criminal proceedings against an individual Derived from trespass on the case; almost exclusively used for criminal charges, main exception: wrongful initiation of bankruptcy/winding-up procedures 6

ELEMENTS (SET OUT IN NELLES V ONTARIO) 1. Proceedings initiated by D, against P: D can be anyone instrumental, like attorney general, ♔ prosecutor, police, informant 2. Terminated in favour of P: must wait until proceedings finished as acquittal, stay, etc.; if conviction, indicates reasonable/probable cause 3. Absence of reasonable/probable cause: objective + subjective; P must prove this — proving a negative is hard; this decision made by a judge, not jury • Subjective: actual belief on part of D (prosecutors not subject to this part) • Objective: belief must be reasonable/rational in circumstances (only circumstances known at the time of pressing charges) 4. Malice: ‘improper purpose’, willful and intentional; spite, but also gaining private collateral advantage 5. Damage: prove loss of reputation, liberty, money, etc.

MIAZGA v KVELLO ESTATE (2009) – SCC considers subjective requirement. P prosecuted for abuse on accusations of children, doubted credibility but told to continue if believed essential elements. Parents convicted, SCC overturned, charges stayed; children recanted, parents sued for malicious prosecution 1. reasonable/probable grounds has to do with professional assessment of legal strength, not personal views on guilt – in public prosecution, ♔ bound to act in PI and thus use objective reasonable grounds. 2. prosecutor’s lack of subjective belief doesn’t necessarily equal malice: inexperience, incompetence, negligence, all actionable explanations. Malice = willful of criminal justice, or commencement/continuation of process with a purpose inconsistent with role as malicious prosecution

Negligent police investigation: less stringent tortious action for police officers during investigation

INVASION OF PRIVACY DEFINITION: right of person ‘to be let alone’, free from unwanted publicity, to withhold himself and property from public scrutiny

Interests (stemming from right to be alone): intrusion upon solitude/seclusion; disclosure of embarrassing private facts; false light in public; appropriation of name/likeness (like defamation) BC PRIVACY ACT

It is a tort, actionable without proof of damage, for a person, wilfully and S1: def of tort without a claim of right, to violate the privacy of another S 2: how to examine The nature and degree of privacy to which a person is entitled in a situation nature/entitlement to or in relation to a matter is that which is reasonable in the circumstances, privacy – some giving due regard to the lawful interests of others. exceptions eg legal auth In determining whether the act or conduct of a person is a violation of S 3 + 4: what kind of another’s privacy, regard must be given to the nature, incidence and conduct gives rise to occasion of the act or conduct and to any domestic or other relationship action between the parties. Without limiting § (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

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ELEMENTS 1. P has reasonable — s1(2): nature and degree of privacy

MILNER v MANUFACTURERS LIFE INSURANCE CO (2005) – D investigating P’s insurance claim, filmed P + family within/around home; biggest incident: in car filming P + half-naked daughter in home, at night, curtains open + lights on. Legal relationship between P + D (expectation: under surveillance). Highest amount of privacy expected in one’s home, very limited expectation in public. D won, but would have been diff if daughter claimed, she had no expectation of being recorded “carelessness should not waive one’s right to privacy”

R v WONG (1990) dissent – facts on set circumstances change expectation of privacy: talking in hushed tones in restaurant, expected people won’t overhear/audio-record conversation

2. D breached/invaded that entitlement to privacy — s1(3) + (4): contextual, reference to expectations 3. D did this ‘wilfully and without a claim of right’ — s1(1): analyzed in Hollingsworth v BCTV • Wilfully: to do action, should know would violate one’s privacy • Claim of right: honest belief in facts that would be legal justification/excuse (legal relationship: court order, contract, statute, etc.)

HOLLINSWORTH v BCTV (1999) – P balding, got graft surgery, consented to filming for instructional purposes. BCTV did feature on baldness 7 yrs later and original filmer got video from doctor w/o P’s knowledge. P clearly shown on news for 3 secs– “wilfully” in s1 applies narrowly to intention to do an act which person doing act know or should have known would violate privacy. “Claim of right” = honest belief that, if state of facts existed, would be legal excuse. BCTV believed they had consent b/c doctor told them so — BCTV not liable for invasion of privacy though doctor/surgery company was.

HECKERT v 5470 INVESTMENTS LTD (2008) – D’s manager placed security cam in building in front of P’s suite entrance, D assumed P involved in ‘unsavory’ behavior, trying to keep an eye on it. If cameras focused on main areas around building, that would not be an issue – focus on P’s suite to see all their comings/goings + who entered was the breach, awarded $3,500.

WATTS v KLAEMT (2007) – D set up surveillance system, listened to P’s phone conversations, sending information to P’s employer. Expectation that person invading privacy would stop upon realizing, if accidental/unintentional.

INTENTIONAL TORTS: DEFENCES DEFENCE OF CONSENT Basic Principles Basic rule in Canada: consent is freestanding defence (Non-Marine Underwriters v Scalera). Burden of proof: D must plead and prove existence of consent, rather than req the P to prove absence of consent. Must prove that plaintiff consented to specific act that gave rise to tort action è Once established, consent is a COMPLETE defence

Competency to consent – for consent to be valid, person must be capable of appreciating the nature and consequences of the act to which consent applies – ie, if can’t make such a determination due to age, illness, intoxication, other incapacitating factors, consent is invalid If person deemed competent, court must uphold right to make decisions (even if they seem unreasonable to court or others)

Implied Consent Implied consent can include: certain participation, demeanour, or behaviour; failure to object, withdraw, or passivity 8

NB: Application to spectators: was plaintiff aware of risks and usual protections? Elliot and Elliot v Amphitheatre Ltd – P hit by puck in stands; P was amateur hockey player so aware of risks; D not liable.

WRIGHT v MCLEAN (1956) – leading case: in absence of malice, anger, or mutual ill will, court will assume that those participating in a sport or game are consenting to the ordinary risks of that activity. – Boys engaged in mudball fight, McLean’s bike is hit, he joins fight, P is hit in head w/ rock and injured. D invited to join, no ill will.

Exceeding Consent

AGAR v CANNING (1965) – leading case: someone who plays sport is assumed to be consenting to the ordinary risk of injury, but not anything beyond what could normally be expected. – P & D opposing hockey players. D bodychecked P to get puck; P hit D on neck; D hit P with blade of stick in face in retaliation. P fell unconscious. Injuries are frequent in hockey games; BUT injuries inflicted showed definite resolve to cause serious injury. Doesn’t fall within scope of implied consent. Must limit immunity from liability by looking at facts of case. D liable though damages mitigated for provocation.

VITIATING FACTORS FOR CONSENT Once defendant establishes that P consented to the act giving rise to the tort, P may raise factors that vitiate the consent. If consent vitiated, D will be held liable as if there had been no consent

Fraud/Deceit Eg. D 1) knowingly makes false statement; 2) makes a statement in total disregard as to its truth; 3) knowingly creates a misleading impression by omitting relevant information REQUIREMENTS: 1. D was aware of (or responsible for) plaintiff’s misapprehension 2. was directly related to the nature and quality of the act, not a “collateral” matter

R v MABIOR – fraud re: potentially harmful consequences of act negates consent if the fraud physically harmed complainant, or exposed them to significant risk of serious bodily harm eg: lying about HIV status

R v HUTCHINSON – complainant consented to intercourse w/ condom, accused poked holes and she became pregnant — SCC maj upheld conviction for aggravated b/c though she gave consent, deception had negated this. SCC min argued she had not consented to unprotected intercourse > no consent at all

Mistake Consent only vitiated by mistake if D responsible for creating P’s misapprehension and it went to the nature/quality of the act. 1. Plaintiff due to mistaken belief – where defendant knows, or ought to have known, that plaintiff consented on basis of mistaken belief, liability may be imposed DISTINGUISH FROM: 2. Defendant mistakenly believes P has consented – provides no defence eg Toews v Weisner – school nurse thought parents had consented to child’s injection – still liable despite good faith belief 9

Duress

LATTER v BRADDELL (1880) – consent procured through duress is not valid – P, maid, accused of being pregnant by employer; told to go to room and forbade to speak; doctor called to examine P despite verbal protests – maj: P had own power physically to comply or not comply, not duress, consent not vitiated. Duress limited to physical force, threats of force, and maybe some economic threats/penalties. Dissent: abundant of non-consent, belief she must obey employer shouldn’t be sufficient consent

Public Policy Consent can be vitiated in some cases for public policy reasons eg can’t consent to being killed or seriously injured; can’t consent to someone exploiting position of authority/trust

See also: Norberg v Wynrib – unequal bargaining power and exploitative nature of relationship can make it impossible for P to meaningfully consent

LANE v HOLLOWAY (1968) – no consent b/c obvious from start that elderly P no match for young D

M(M) v K(K) (1989) – no consent b/c D convicted of fed offence of sexual exploit for sex w/ 15yo foster daughter

INTENTIONAL TORTS: REMEDIES

INJUNCTION: court order to do sth DECLARATION: formal statement re: legal status – rare in torts Prohibitive injunction – person must stop Mandatory injunction – person must do ORDER OF SPECIFIC RESTITUTION: aims to prevent someone something; If don’t abide, can be from profiting from wrong where profit may exceed amount paid in contempt/imprisoned damages. Based on unjust enrichment.

DAMAGES NOMINAL DAMAGES COMPENSATORY DAMAGES Small sum awarded to redress violation of legal right even Allow claimant to obtain financial redress for actual loss in absence of harm or loss – usually for torts that are (backwards-looking). Pecuniary/special loss (quantitative)– actionable per se consider loss of future earnings, med care; non- Can also award costs to P/D for similar reason pecuniary/general loss – consider arbitrary “fairness” of award, since pain etc. hard to count PUNITIVE DAMAGES AGGRAVATED DAMAGES Comparatively rare, only when comp/agg dmgs insuff to Comp damages awarded to comp for add (intangible) punish defendant. no cap but should be lowest sum that injuries to dignity arising from D’s conduct. Court must be accomplishes goal; juries should be informed of function satisfied that: and factors; appellate courts can intervene 1. P suffered damage to feelings as result of tort 2. D’s conduct also highly offensive 10

B(P) v B(W) (1992) – example of breakdown of damages – P SA from 5-18 by father; raped at 20; other violence. D sentenced to 5.5 yrs on crim incest charge but charges stayed, so P sued for battery and assault. Non-pecuniary general damages: $100,000 – total breach of trust/fear, most psych dmged of anyone doctor saw Aggravated damages: $75,000 – gross breach of familial trust Punitive damages: $50,000 – since D wasn’t convicted on rape charges, can award them despite crim charge. Usually tortious acts that are also criminal = shouldn’t award redundant damages in civil suit.

PENARTH DOCK ENGINEERING CO LTD v POUNDS (1963) – P sold pontoon to D that agreed to remove it, D failed to remove (trespass) – disgorgement as another damages award for unjust enrichment. E1 enrichment to D, E2 corresponding deprivation to P, E3 absence of juristic reason for enrichment. Cannot receive comp + disgorge

DEFAMATION DEFINITION: protecting one’s reputation from unjustified attacks Slander is spoken, generally requires proof of harm; libel is written, harm is assumed Juries play a prominent role in these trials, determining ‘’ understandings ELEMENTS 1. Defamatory: regarding the sting of the words, must examine context (whole publication, etc.) • Can be established in three ways i. Literal meaning: plain and ordinary language ii. True/legal innuendo: if surrounding facts change the meaning iii. False/popular innuendo: if inferences change the meaning • Question of law, for judge: is this material capable of being defamatory? • Question of law, for jury: is this material defamatory, in fact?

SIM v STRETCH (1939) – D referenced borrowed money from maid in telegram, P argued false innuendo meant P in financial diff – test whether defamatory in law: do the words tend to lower P in estimation of reasonable/ordinary person? Look for the ‘sting’ of the statement – Judge determined RP would find no sting in these words

2. Referencing the plaintiff: doesn’t need an express reference, hard to prove if statement about a group • Factors in proving for a group (harder to prove): size, homogeneity, P’s relationship (leader, etc.), precision/generality of group, seriousness + plausibility of allegations

KNUPPFER v LONDON EXPRESS NEWSPAPER LTD (1944) – article published saying group is fascist, connected to Hitler; P head of British branch, witnesses all named P as who they thought of regarding group – test to determine if refers to P: Q of law, is it capable of referring to P; Q of fact, does it lead RP to think of P? TJ found for P, CA reversed decision + upheld

3. Published to a third party/disseminated: not actionable unless communicated to person other than P; anyone with role in publishing could be held liable • Repetition also publication, secondary publisher not liable IF: i. Given express/implied authority to republish ii. Remarks made to person with legal/moral/social obligation to republish iii. Republication is natural/probable consequence (social media, etc.)

CROOKES v NEWTON/WIKIMEDIA (2011) – hyperlink to defamatory article on webpage regarding defamatory material – communicating something different than communicating that something exists. Third party must have received the material – if cannot prove viewership, becomes more difficult. Hyperlink itself not defamatory, like footnote, but surrounding information linking to defamatory material can be defamatory 11

PRITCHARD v VAN NES (2016) – D claimed on FB that P (neighbor + school teacher) set up surveillance on her children; shared by people, commented on, someone sent email to P’s boss; sting: P as pedophile – social media platforms intended as info distribution tool, implied authorization for republication. D liable for republishing/sharing.

Intention is not required in this tort, not required to proof D intended to ruin a reputation. To assess damages: seriousness, identity of accuser, distribution breadth, republication, biased portrayal, desire for ratings, D/counsel’s conduct, apology/retraction, failure to establish justification plea

DEFAMATION: DEFENCES DEFENCE OF JUSTIFICATION Assumption that statements are false, burden shifts to D to prove truth as defence (even if malicious) “What is true cannot be defamatory” — Courchene v Marlborough Hotel Co (1974) Statement as a whole (what comprised the ‘sting’) must be substantially true — Meier v Klotz (1928) Repetition rule: republishing is defamation itself; trial is republication if justification not proven

WILLIAMS v REASON (1983) – P as amateur rugby, D claims ‘shamateurism’ in article due to book sales; TJ found for P, CA with add. Evidence (sponsorship money). Sting: hypocrisy, devious – general defamatory statement can be proven with truth of specific instances (gen. requires more than one instance). Appeal allowed, back to trial with added evidence admissible

MUDFORD v SMITH (2009) – P as interior designed, did work for D’s son (happy w/ work); D sued in small claims for repairs, P paying judgements; D made online comments regarding this. Sting: no integrity, contract breach, no payments – proof statements are literally true isn’t sufficient if conveys impression that is false. D omitted facts that would change reader’s impression, justification unavailable. Damages: $30gen, $5agg, $0pun

DEFENCE OF Defence for those commenting fairly on matters of public interest Elements 1. Statement as comment, not allegation of fact: recognizable to RP as comment upon true facts, not as bare statement of fact – if fact/comment indistinguishable, this defence not available 2. Comment person could honestly express: was this an opinion, however exaggerated/prejudiced, which was honestly held? 3. Based on true facts: cannot be misstated/unproven facts, rumour not sufficient, but inference from facts need not be correct — Q: are these facts readily available to the reasonable reader/listener? 4. Pertaining to a matter of public interest: importance of person/event/occasion (public figure, someone seeking out spotlight, sporting event, government affairs, public health, etc.) — Q of law for judge

** Defence fails if made maliciously — onus on plaintiff to prove malice/improper purpose

WIC RADIO LTD v SIMPSON (2008) – P as radio DJ w/ elaborate comments regarding D, notable anti-gay activist. Sting: OK w/ violence against gay ppl – E1 determination of fact/comment through RP, E2 not required to assess if comment is reasonable reaction to facts; E3 listener/reader must have the facts to make up their own mind on the comments. Appeal allowed for P, this was fair comment

DEFENCE OF QUALIFIED PRIVILEGE Defence for those with authority/req to inform others, not to publish to the world DEFENCE OF RESPONSIBLE COMMUNICATION For journalists/etc. that have verified their story and are ready to publish Not an incremental change, SCC just creates a new defence when viewing a case; now, most argued defence Court doesn’t limit this to journalism, recognized there is a shift from trad. media to diverse pub (blogs, etc.) 12

Elements (created in Grant v Torstar) 1. Subject matter = public interest as a whole: not in isolation, include headlines/photos/etc. • Public interest: “must be shown to be one of inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached” — Q of law for judge 2. Responsibility in publishing/diligence in verifying allegations • Factors: seriousness of allegation, public importance, urgency, status/reliability of source, inclusion of defamatory statement as justifiable, tone, sensationalism/bias, if P’s side of story is sought, reportage

Reportage: exception to republication; reporting on smthing bcus matter itself in public interest, not reporting on something

GRANT v TORSTAR CORP (2009) – P setting up golf course, D posted story alleging P exercised political influence to secure gov’t approval. TJ: D liable, D claimed something wrong w/ defamation law if journalists can verify story + still be held liable – SCC creates new defence, reasoning on principle (not analogy). Appeal allowed for D, this was responsible communication.

REABURN v LANGEN (2009) – D published story alleging police used excessive force in arrest, accepted suspect’s story w/o Q, police refused to comment, didn’t look for other witnesses, article written as fact even though said ‘allegedly’ – this defence doesn’t give free reign to journalists. D at fault bcus true; repetition rule: paper not liable if report attributes statements to other person

DEFAMATION: REMEDIES GENERAL DAMAGES Three functions: • Consolation for distress suffered • Repair harm to reputation (including business rep) • Vindication for reputation

Factors in assessing (from Hill v ✝ of Scientology) • Conduct of claimant • Claimant’s position/standing • Nature of libel • Mode/extent of publication • Absence/refusal to apologize/retract • Conduct of D from publication > verdict

AGGRAVATED DAMAGES Function: compensation Factors in assessing (from Mudford v Smith) • Conduct of D • D’s state of mind, including motives/malice (must prove , through knowing statements are false OR recklessness at respect to their truth/falsehood) • Increased injury through further spread of damage/increased mental stress/humiliation

PUNITIVE DAMAGES Function: punishment + deterrence Factors in assessing (from both Hill v ✝ of Scientology + Mudford v Smith) • Malicious/oppressive/highhanded that offends court’s sense of decency 13

• Marked departure from ordinary standards of behavior • General + aggravated damages are insufficient to achieve punitive function

CASE STUDIES RIGHTING PAST WRONGS THROUGH CONTEXTUALIZATION – ADJIN-TETTEY Indian Residential School Settlement Agreement (IRSSA) means many victims will be disinclined to pursue tort claims; Agreement in Principle (AIP) came into effect 2007, had to opt in/out by 2012 Common Experience Payment (CEP) for eligible former students — $10k for first year in residential school, $3k/add year; $ available even if settled claims previously through litigation or ADR. Accepting this money released ✝/schools from further liability (exception: serious abuses) Independent Assessment Process (IAP) improved the ADR process to deal with claims of sexual abuse and most serious physical abuse • Benefits: simplified process, non-adversarial, no cross-examination, broader claims than court o Legal standard: balance of probabilities; ‘plausible link’ between trauma and harm • Criticisms: admin issues, grid system (points assigned for how much harm, to determine amount of $), only some residential schools available, inadequate legal tests,

Contextualization: takes into account a greater range of harms, acknowledgement of inter-generational effects De-contextualization: not recognizing these historical factors when making decision/assessing damages, BUT using the history to undermine the original position is also decontextualizing (more difficult to assess damages – non-pecuniary) Adjin-Tettey argues for contextualized approach that recognizes racist, state-sponsored system of residential schools that created greater harms TORT RECOVERY FOR LOSS OF CULTURE – OXAAL Legal focus is on sexual abuse (thought of as something law can handle), but a main trauma was also loss of culture due to assimilation tactics. Tort of intentional infliction of mental suffering could be one basis of compensation. Culture loss has been used to reduce damages as ‘difficult lifetime experiences’ and ‘societal matters’

Ex Turpi Causa: equitable doctrine stating one cannot benefit from own illegal act Thin Skull argument: you take ppl as you find them, pre-existing conditions are taken into account (proven exacerbated by the tortious action); damages can be increased from the hypothetical healthy person Crumbling Skull argument: assumption that pre-existing injury was so severe that the loss would have occurred either way; damages can be reduced from the hypothetical healthy person

BLACKWATER v PLINT (2005) – P abused by D in residential school, ’98 decision: ; ’01: liability + damages assessed (Plint-$40k pun, $5k gen; Canada 75%, ✝ 25%, $125k gen, $20k agg); sent to SCC to reassess liability + damages – 3 tests used: crumbling skull, thin skull, causation Causation: whether tortious action is cause (harm wouldn’t have happened, BUT FOR these actions); what losses flow from the injury to assess damages – determine original + injured positions P suffered trauma at home prior to D, and other non-sexual abuse at res school, hard to determine correct comp amount for specific tortious action. Ex turpi causa argued by P – D cannot profit from own wrongdoing – but cannot be used to evade limitation dates. Thin VS crumbling: did P’s home-life prior to res school act as pre-existing that was exacerbated by tort, or would P’s loss have occurred either way? Holding: trial upheld.

ATHEY v LEONATI (1996) – P in 2 car accidents. 1st caused back problems, doc ordered exercise, 2nd driver was liable for herniated disk caused from this – thin skull rule applied. Pre-existing back conditions, if judge found herniated disk would happen anyway (crumbling) then 2nd driver wouldn’t have been liable

CLARKE v *obiter* – residential school case, Canada argued should be less liable because gen residential school conditions contributed to loss rather than the sexual assault – crumbling skull rule not allowed. If it was parent instead of Canada, wouldn’t be allowed to argue the terrible home environment they provided + not sued for was the reason for the loss, rather than the sexual assault they are sued for 14

Sixties scoop survivors lost contact with families, aboriginal language/culture/identity; neither foster families or children provided information regarding original families. Children were left disoriented, lessened ability to live “healthy and fulfilling lives” (Brown v Canada). Some have stated this was more detrimental than res schools.

Agreement in Principle (AIP) announced Oct ’17 providing $25-50k/person, depending on number of claimants – no ADR, this is a set amount. $50k endowment to create Indigenous Healing Foundation — wouldn’t have been possible going through court, but this decision probably wouldn’t have come about if not for Brown case.

BROWN v CANADA (AG) (2017) – sixties scoop; not disputing what happened, only whether Canada is liable for what happens after children are taken from homes; – Common law duty of care breached by failing to provide info to adoptive/foster families. Ground-breaking: recognition of loss of culture (“right to cultural identities”), gov’t duty to protect cultural identity of children in its care.

INDIGENOUS LEGAL TRADITIONS Killing the Windigo Written by European settler of an account by Anishinabek, with extra effort made to explain to settler that this was deliberate/justified, not done through alcohol (stereotypes).

MURDER OF AN IDIOT – lonely hunter becomes Windigo (famine-induced monster, w/o culture/humanity), council w/in village that takes him in decides must kill him to protect their children, Windigo’s friend does killing, then comp’s the father – Loss/harm: hunter > humanity, friend > friend, father > son, community > member; Responsibility: death = friend + council, identity = no one; Comp: father > friend takes on duties of son, father > gifts from council (emphasis: family)

Darlene Johnston: sees as a blend of collective and individual justice; harm + compensation (tort) rather than guilt + deterrence (crim), liability not illegality. Not all cultures adopt our Western idea of disinterested adjudicator as the best way to operate a legal system, here a council of affected parties makes the decision. Gitksan Legal Order - Napoleon Xsiisxw: Compensation/cleansing; land is used as the ultimate compensation, which should last at least a lifetime. Multiple obligations: offending house to transfer land as comp, both houses to communicate ownership changes over time, wronged house to transfer land back once debt is paid. This is a family-based system, with offending/wronged families righting the wrongs collectively.

ACCIDENTAL DEATH BY MOTOR VEHICLE – harm: man hit young girl with car, couldn’t forget incident; peace settlement: family gathered $2k to give to girl’s family; incident would never again be mentioned and wronged family would accept as accident thenceforth. Man took responsibility, even though accidental

OLIVE RYAN (Hanamuxw) – harm: Ha’atxw killed Niitsxw; peace settlement: fishing village transferred from offending house H to wronged N; issue: transfer back has not yet happened, though supposed to have occurred at recent ceremony. Collective responsibility, not just the person who committed harm but the family.

STRATEGIC LITIGATION AGAINST PUBLIC PARTICIPATION (SLAPPS) DEFINITION: unmeritorious lawsuits usually brought by big corp. with economic interest in outcome, targeting citizens/groups to deter (legal behavior) participation in public decision-making/policymaking processes, or undermining efforts to influence public opinion

Not specific to any tort, but frequently through defamation; BC occurs frequently with environmental activism Tension: access to justice for meritorious claims V freedom of expression for activism

Problems • Chilling expressive activities 15

• Chilling effect arises from process of litigation rather than outcome (time/expense of litigation) • Power + economic imbalance between parties (big corp. V small activist group) • Drain on judicial resources (access to justice)

DAISHAWA v LUBICON LAKE CREE – students boycott comp using Daishawa prod; judge dismiss claims, finds defamation using phrase ‘cultural genocide’ (pre-TRC; pre-responsible communication); P meritorious BUT only $1 damages; may not be SLAPP but students paid over $400k in legal costs to fight this (abusive)

Anti-SLAPP Legislation BC enacted leg in 2001 but removed within a year. Ontario and Quebec recently enacted leg as well. • Mitigating Costs o Proof of improper purpose on BOP > court can order P to pay ‘all reasonable costs’ (potentially 100% rather than ‘party and party costs’ which usually 50%) AND can award damages to D • Deterring unmeritorious suits o P knowing can be charged costs and damages (even interim cost awards) o Judicial oversight of settlements, discontinuances, abandonment of actions if ‘realistic possibility’ of SLAPP o P must disprove improper purpose on BOP once D proved on ‘realistic possibility’ standard

Realistic possibility standard: lower burden of proof than BOP Improper purpose: no reasonable expectation that claim will succeed AND a principle purpose (not only purpose) is to limit public participation – subjective

3 outcomes of D accusing P of bringing SLAPP: 1. BOP met: case dismissed; poss of all D’s costs + punitive damages paid by P 2. Realistic Possibility met: burden shifts to P to prove no improper purpose; poss of all D’s costs, punitive damages paid by P, financial sec of D, greater court supervision 3. Realistic Possibility fail: proceeds as ordinary case

Ontario adopts diff test to improper purpose (objective) • Expression is matter of public interest • P burden: grounds to believe case has substantial merit + D no valid defence • Court to explicitly balance access to justice + chilling effect; harm sufficiently serious that req to continue outweighs public interest in expression

TASEKO MINES LTD v WESTERN CANADA WILDERNESS COMMITTEE (2016) BCSC 109 – P submit proposal for mine, rejected on enviro grounds (tailings lake/toxic); P submits 2nd proposal. D = 3 articles on site on enviro impact of lake, suggests citizens voice opinion; P alleges defamation, punitive damages. D = 2 add articles on site on case as SLAPP. 3 not defamatory, 2 are but fair comment. D gets special costs due to P’s conduct (should have removed punitive). Judge appeal-proofing judgement (currently underway). If anti-SLAPP avail: improper purpose, no real sting; realistic poss, would have had concrete basis for awarding D damages/costs; court couldn’t create rules here

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NEGLIGENCE — BASICS DEFINITION: cause of action regarding liability for careless conduct; OR one particular element w/in cause

ELEMENTS P w/ burden to prove 1-5, D usually burden for 6 (defences) 1. Duty of care (law): if there is a legal rship that provides an obligation, NOT just a moral duty a. Also: defining the nature and scope of that obligation NOT just moral duty 2. Standard of Care and Breach/Carelessness (fact/law): RP standard, ~ standard of the profession a. QofLaw: defining RP standard b. QofFact: applying standard to D’s conduct 3. Causation (fact): breach as cause of damage, would the injury have occurred but for this breach? 4. Remoteness of Damage: foreseeability, if too remote (weird, unlikely) no recovery available 5. Actual Loss/Damage: not actionable per se → requires proof of injury a. Non-physical damage now OK (psychological, economic) 6. Defenses: P’s damage award can be reduced through their own conduct or other considerations

DUNSMORE v DESHIELD (1977) – P ordered type of glasses less likely to break, glasses broke + injured eye after collision in touch football. D claimed contrib neg D’s joint/severaly liable DoC: supplier could foresee risk of providing lesser lenses to P; SoC: didn’t utilize easy tests; Cause: test proves reg glasses would fall

San Sebastian Aus: duty/breach/remote all look to foreseeability, in different ways. Duty: is it foreseeable that conduct will pose a risk to a group of ppl? Breach: foreseeable as possibility that kind of conduct will cause damage to P's person/prop (fall below standard?) Remote: kind of damage foreseeable as poss outcome?

DUTY OF CARE EVOLUTION OF TEST

WINTERBOTTOM v WRIGHT (1842) UK – coachman injured from faulty train axle no manufacturer liability to the ‘world’ only between contracting parties didn’t like idea of liability to the ‘world’ — socio–economic policy shift after this as insurance more common

DONOGHUE v STEVENSON (1932) UK – snail in dark ginger beer bottle; P = woman sick, D = manufacturer creates framework for when to recognize a duty of care manufacturers can owe duty of care to final consumer when final product can’t be examined prior to consumption; framed as physical damage, defective product wrong

Donoghue Framework: • Immediate use (no tampering/time altering) • Proximity: closely, directly affects; if you can reasonably foresee a risk of harm to that person

Anns/Kamloops Test from Kamloops v Neilson (1984): • Is there a sufficiently close rship? Reasonable foreseeability of harm o Prima facie DoC at this point