LAW241: TORTS
TABLE OF CONTENTS INTENTIONAL TORTS ...... 2 Overview ...... 2 The Very Basics ...... 2 Principles of Liability: Volition and Intent ...... 3 Motive, Mistake and Accident ...... 3
TRESPASS TO LAND ...... 4
BATTERY ...... 5
ASSAULT ...... 6
FALSE IMPRISONMENT ...... 7
INTENTIONAL INFLICTION OF NERVOUS SHOCK (IINS) ...... 8
HARASSMENT ...... 9
PRIVACY ...... 10 Intrusion Upon Private Seclusion ...... 10 BC Privacy Act ...... 10
DEFAMATION ...... 12 Defence of Justification ...... 13 Defence of Absolute Privilege ...... 14 Defence of Qualified Privilege ...... 15 Defence of Responsible Communication ...... 16 Defence of Fair Comment ...... 17
DEFENCES ...... 20 Defence of Consent ...... 20
FUNCTIONS OF TORT LAW ...... 21 Damages ...... 22 Corrective and Collective Justice ...... 22
STRATEGIC LITIGATION AGAINST PUBLIC PARTICIPATION (SLAPPS) ...... 23
CASE BRIEFS ...... 25
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INTENTIONAL TORTS
OVERVIEW
TRESPASS TO BATTERY ASSAULT FALSE DEFAMATION LAND IMPRISONMENT “The direct and “The intentional “A defamatory “A direct and intentional bringing creation, in the “The intentional statement made in intentional physical about of a mind of another, of total restraint of a reference to the intrusion onto the physically harmful a reasonable person.” plaintiff that was land in the or socially offensive apprehension of published.” possession of physical contact immediate physical another.” with the person of contact.” another.”
INTENTIONAL HARASSMENT INTRUSION UPON BC PRIVACY ACT INFLICTION OF (POTENTIAL) PRIVATE SECLUSION “It is a tort, actionable without NERVOUS “Outrageous (POTENTIAL) proof of damage, for a person, SHOCK (IINS) conduct by the “One who intentionally wilfully and without a claim of “Flagrant or defendant done intrudes upon the seclusion of right, to violate the privacy of outrageous conduct with the intention another, or his private affairs or another.” calculated to of causing the concerns, is subject to liability produce harm and plaintiff (or reckless to the other for invasion of his resulting in a visible disregard of privacy if the invasion would be and provable causing) severe or highly offensive to the illness.” extreme emotional reasonable person.” distress.”
THE VERY BASICS The EVIDENTIARY STANDARD for torts is a balance of probabilities. ACTIONABILITY: o Direct interference with the person (actionable per se/without proof of loss): Trespass to Land, Battery, Assault, False Imprisonment, Invasion of Privacy (Privacy Act) o Indirect interference (not actionable per se/requires proof of loss): Intentional Infliction of Nervous Shock, Defamation, Harassment (as a potential tort), Intrusion upon Private Seclusion (as a potential tort)
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PRINCIPLES OF LIABILITY: VOLITION AND INTENT
A defendant can only be held liable if their conduct is both VOLUNTARY and INTENTIONAL.
• VOLITION: Was the act directed by their conscious mind? (Extremely low threshold – rarely a problem) – SMITH v STONE • INTENT: Did the individual desire to bring about the consequences of the act? o Imputed intent: ascribes the requisite intention to D if P’s loss was certain to follow from D’s act o Transferred intent: if D intended to commit one intentional tort and then unintentionally commits another, intent is transferred to the second tort
MOTIVE, MISTAKE AND ACCIDENT These factors can help in assessing damages, but are not elements of establishing a tort. • MOTIVE: Why did the defendant act? o Duress: compulsion by 3rd party to commit tort; not defence but may negate consent of wronged party (e.g. GILBERT v STONE – trespass/theft under threat of 12 armed men – still considered voluntary and intentional act, contrast with SMITH v STONE) o Provocation: 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” (MISKA v SIVEC) – 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. o Mistake of law: Defendant misunderstood or was ignorant of the law as it existed at the time, e.g. HODGKINSON v MARTIN – mistakenly but sincerely believed he had authority to remove plaintiff from the premises to protect interests of the Crown o Mistake of fact: Defendant misunderstood some fact that negates an element of the crime, e.g. RANSON v KITNER – thought plaintiff’s dog was a wolf and shot it dead • INEVITABLE ACCIDENT: Any situation in which defendant unintentionally and without negligence injured plaintiff. D cannot be held liable in intentional torts or negligence for injuries caused by accident. Absence of intent distinguishes an accident from a mistake. • CAPACITY ISSUES: Generally, assume all adults have capacity to form above intent o Liability of children and the mentally ill: Rather than tests of volition/intent, was the defendant capable of “appreciating the nature and quality” of the act? o Liability of supervisors: Parents, teachers, and other supervisors are not vicariously liable at common law for the torts committed by children under their care; similarly, those supervising patients with a mental illness are not liable for their patients’ conduct … unless they are a party to wrongful conduct or fail to control the person (negligence). 4 Inggrid Wibowo
TRESPASS TO LAND
“A direct and intentional physical intrusion onto the land in the possession of another.” — TURNER v THORNE (1959)
ELEMENTS
1. DIRECT AND INTENTIONAL a. Directness: i. Requiring direct force to implement the trespass to land, e.g. throwing a ball onto the land of another – direct; rolling the same ball down a hill onto the land of another – sufficiently direct; movements of nature where wind blows snow onto land – not direct and thus not actionable in trespass. ii. Trespass can be committed by the continued presence of a thing tortuously placed on someone else's property (TURNER v THORNE) b. Intent: to bring about consequences of the conduct. Onus is on D to prove lack of intent once direct intrusion is proven. 2. PHYSICAL INTRUSION: Intrusion must generally be physical—thus sound or light rarely, if ever, suffice (such instances would more appropriately be covered by the law of nuisance). 3. ONTO THE LAND IN THE POSSESSION OF ANOTHER: action generally only available to people in legal possession of land, e.g. those with legal title/right to entire area OR squatters with possession of amount of land they actually occupy/cultivate (p. 167-68). a. Trespass by relation available if nobody was in possession at time of trespass and they retake possession, e.g. where D trespasses onto vacant land owned but not occupied at time of trespass. (p. 168) b. Trespass by revocation of implied license – Implied license for entry exists in cases of land such as shops, gov’t buildings, and universities, where public entry is clearly allowed and encouraged. When this implied license is revoked, a person previously on that land lawfully may suddenly be trespassing upon the same land once that revocation is expressed. – HARRISON v CARSWELL
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BATTERY
“The direct and intentional bringing about of a physically harmful or socially offensive physical contact with the person of another.” – BETTEL v YIM (1978)
ELEMENTS
1. DIRECT AND INTENTIONAL BRINGING ABOUT a. Directness: “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 b. Intent: Onus on defendant to prove absence of intent once directness has been established – BETTEL v YIM 2. PHYSICALLY HARMFUL OR SOCIALLY OFFENSIVE CONTACT a. Physically harmful: “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); this requirement is read to a fairly low bar. b. Socially offensive: Courts look to cultural context to see what is socially offensive, what is not. (MALETTE v SHULMAN) 3. WITH THE PERSON OF ANOTHER – A broadly read requirement where bodily contact is not required (p. 61: spitting in face, pouring water, cutting hair counts; missing an attempted striking of someone, however, does not)
ONUSES AND DEFENCES
DEFENCES: Consent ONUSES: • On the plaintiff: All elements of the tort
• On the defendant: Consent and all other defences (SCALERA)
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ASSAULT
“The intentional creation, in the mind of another, of a reasonable apprehension of immediate physical contact.” — HOLCOMBE v WHITAKER (1975)
ELEMENTS
1. INTENTIONAL CREATION IN THE MIND OF ANOTHER OF A – Plaintiff must intend to create a reasonable apprehension/threat. Not a strictly rigorous or freestanding requirement (e.g. you don't need an explicit statement from D announcing intent). 2. REASONABLE APPREHENSION a. Reasonableness: P must establish apparent intent (not necessarily actual intent) and capacity of defendant to make contact. b. Impression created in P’s mind is important (HOLCOMBE v WHITAKER – court considered evidence of effect on P’s resulting fear and actions). This alone is not sufficient to constitute a reasonable apprehension, but is generally very indicative of its presence. 3. OF IMMEDIATE PHYSICAL CONTACT a. Immediacy: Threat must be capable of being carried out immediately; future threats do not constitute assault. b. Conditional threats: Conditionality does not make immediacy impossible. However, it does make immediacy harder to prove (POLICE v GREAVES). c. Use of a carriage service to harass: may/may not meet assault tort, but probably would meet criminal action.
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FALSE IMPRISONMENT
“The intentional total restraint of a person.” — BIRD v JONES (1845)
ELEMENTS
1. INTENTIONAL – Plaintiff must intend to falsely imprison. This requirement is read broadly. 2. TOTAL RESTRAINT – No requirement of physical contact, a particular duration, or awareness/consciousness. The restraint must be total – if the plaintiff had a reasonable means of escape, then a defendant’s actions do not constitute total restraint (BIRD v JONES).
DEFENCES
LAWFUL JUSTIFICATION, i.e. not false, can arise as a complete defence. For example, in a case where a shoplifter plaintiff brings a false imprisonment action, a defendant peace officer might assert defence of legal authority depending on outcome of criminal proceedings. Official role or title, however, does not provide inherent lawful justification. Being a peace officer does not inherently preclude one from liability or make the restraint lawful (CAN v CALGARY POLICE SERVICE). Justification is assessed on a reasonableness standard, on a case-by-case basis.
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INTENTIONAL INFLICTION OF NERVOUS SHOCK (IINS)
“Flagrant or outrageous conduct calculated to produce harm and resulting in a visible and provable illness.” — PRINZO v BAYCREST MEDICAL CENTRE (2002)
ELEMENTS
1. FLAGRANT OR OUTRAGEOUS CONDUCT – excludes mere insult or trivial behaviour a. Flagrant: threats of bodily harm to a vulnerable and fragile employee (BOOTHMAN v CANADA); persistent sexual harassment of a RCMP officer (CLARK v CANADA) b. Not flagrant: reprimand letter, negative and unprofessional behaviour in an employment context (LAVINSKAS v JACQUES WHITFORD) and dislike and marginalization of employee (RINALDO v ROYAL ONTARIO MUSEUM) c. WILKINSON v DOWNTON – An act can be found to be “malicious by nature” even if no spite was intended. 2. CALCULATED TO PRODUCE HARM – requires actual or constructive intent to cause a severe impact on a plaintiff’s psychological well-being a. RAHEMTULLA V VANFED CREDIT UNION– woman accused of theft and fired, IINS found – intent can be imputed based on seriousness of conduct if (a) defendant acted in reckless disregard to possible harm, OR, (b) it was foreseeable that profound distress would ensue b. PINESFORRA v AYOTTE – “clearly foreseeable that it would cause harm to the victim: extent of the harm need not be anticipated, but the kind of harm must have been intended or know to be substantially certain to follow”. c. WILKINSON v DOWNTON – the act inflicted more harm than anticipated is not an excuse. 3. RESULTING IN A VISIBLE AND PROVABLE ILLNESS – Must be a recognized illness. Absence of clinical diagnosis is generally not fatal, but it would be due diligence for counsel to obtain one.
PREVIOUS TESTS & MISC. NOTES
Many IINS cases follow an abusive employment context. PREVIOUS TESTS:
• WILKINSON v DOWNTON (1897): (1) willful act (2) plainly calculated to produce some effect of the kind that produced, (3) that resulted in natural harm. – Case that first addressed IINS as a tort; test refined by PRINZO v BAYCREST MEDICAL CENTRE
• SAMMS v ECCLES – (1) intent of infliction; (2) outrageous, intolerable; (3) offense against generally accepted standards of decency and morality. – American case Inggrid Wibowo 9
HARASSMENT
The tort of harassment (a) does not exist currently; and (b) would not exist in isolation. Facts that give rise to a tort of harassment are also likely to give rise to an IINS, and/or assault based tort. MAINLAND SAWMILLS clearly enunciated which elements the tort of harassment would have, if it did exist (listed below). The potential tort was revisited in SAVINO v SHELETOWSKY. It is unclear if this tort exists in British Columbia—there has been no successful tortious case of harassment in the province. While it should be noted that the very recent case of MERRIFIELD v THE ATTORNEY GENERAL suggests that harassment as a tort exists in Ontario, there is no case suggesting (yet) that harassment exists in British Columbia.
ELEMENTS
1. Outrageous conduct by the defendant 2. Intention of causing (or reckless disregard of causing) emotional distress 3. PLAINTIFF’S SUFFERING OF SEVERE OR EXTREME EMOTIONAL DISTRESS – e.g. “emotional distress of such substantial quality… that no reasonable person in a civilized society would be expected to endure it” (GIRARD v BALL); ongoing psychiatric distress; the threshold for harassment is not as high as it is for IINS, but it is not low either 4. Actual and proximate causation of the emotional distress by the defendant’s outrageous conduct
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PRIVACY
There is NO common law tort for privacy. There are statutory torts of privacy, set out by the BC Privacy Act. A potential privacy tort, as enunciated by Prof. Prosser, is “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.” The elements set out for this potential tort is enunciated in JONES v TSIGE, an ONCA case. This is not the BC position. But the reasoning process used in Jones v Tsige is how BC will formulate its position, and the position is generally expected to be aligned with the ONCA position.
INTRUSION UPON PRIVATE SECLUSION
ELEMENTS
1. One who intentionally intrudes (physically or otherwise) 2. Upon the seclusion of another (or his private affairs or concerns) 3. IS SUBJECT TO LIABILITY TO THE OTHER FOR INVASION OF HIS PRIVACY IF THE INVASION WOULD BE HIGHLY OFFENSIVE TO THE REASONABLE PERSON a. Highly offensive – e.g. financial or health records, sexual practices and orientation, employment diary or private correspondence b. Does not include proof of harm to recognized economic interest
BC PRIVACY ACT
ELEMENTS
Violation of privacy actionable 1 (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of s. 1: definition of tort another. s. 2: how to examine • “wilfully”: “intention to do an act which the person doing the act nature/entitlement to knew or should have known would violate the privacy of another privacy – some person”. (HOLLINSWORTH v BCTV) exceptions e.g. legal authority • “Claim of right”: “honest belief that, if state of facts existed, would be a legal justification or excuse”. (HOLLINSWORTH v s. 3 + 4: what kind of BCTV) conduct gives rise to action (2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.
• “The character of the property where the act or conduct complained of took place is highly relevant to the question of what constitutes a reasonable expectation of privacy.” (SILBER) Inggrid Wibowo 11
• Generally, public spaces decrease expectation of privacy and private spaces increase expectation of privacy … but not always – depends on the conduct in question, relationship between parties, etc. – e.g. A person who is situated in what would normally be characterized as a public place (a restaurant, for example), may well have the reasonable expectation of privacy. For example, he or she would not reasonably expect that the police will surreptitiously monitor and record the private conversation taking place at his or her table. (3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.
• You must look to the parties’ relationship and the whole context, including defences (see section below) – MILNER v MANUFACTURERS LIFE INSURANCE COMPANY (4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.
DEFENCES
Exceptions 2 (2) An act or conduct is not a violation of privacy if any of the following applies: s. 2(a) Consent (a) it is consented to by some person entitled to consent; s. 2(b) Lawful right of defence of person or (b) the act or conduct was incidental to the exercise of a lawful right property of defence of person or property; s. 2(c) Authorized or (c) the act or conduct was authorized or required under a law in required under a law force in British Columbia, by a court or by any process of a court; s. 2(d) Status based defences (d) the act or conduct was that of s. 3(a) Fair comment (i) a peace officer acting in the course of his or her duty to s. 3(b) Privilege prevent, discover or investigate crime or to discover or apprehend the perpetrators of a crime, or (ii) a public officer engaged in an investigation in the course of his or her duty under a law in force in British Columbia, and was neither disproportionate to the gravity of the crime or matter subject to investigation nor committed in the course of a trespass. (3) A publication of a matter is not a violation of privacy if (a) the matter published was of public interest or was fair comment on a matter of public interest, or (b) the publication was privileged in accordance with the rules of law relating to defamation. 12 Inggrid Wibowo
DEFAMATION
ELEMENTS
Cite GRANT v TORSTAR for any of these being one of the elements for defamation. 1. DEFAMATORY – Are the impugned statements capable of defamatory meaning? There are 3 different manners that a statement can have a defamatory meaning, set out in LAWSON v BAINES: a. Defamatory in an ordinary sense – i.e. is clearly defamatory, without requirement of additional facts to make it so (e.g. “Senator A is corrupt”) b. True/legal innuendo – requires additional fact(s) or reference to extraneous circumstances which would make a prima facie non-defamatory remark, in fact, defamatory (e.g. photo with caption of man’s name and his “girlfriend”, with public knowledge that that man was already married to another woman). c. Popular/false innuendo – the remark is not obviously defamatory, but given the ordinary or popular (albeit mistaken or false) innuendo inherent in the statement, a defamatory meaning can be reached (e.g. Senator A is photographed while visiting his favourite business, the Salvation Army. The caption reads “Senator A inspects his favourite business in Vancouver”, but the photograph is taken from an angle to make it appear that Senator A is in fact visiting the brothel next door). d. A test from SIM v STRETCH: Were the impugned statements, in fact, defamatory? Consider what the sting of the remark actually was. If the sting of the remark would “lower the plaintiff in the estimation of right thinking members of society”, then the remark is, in fact, defamatory. 2. MADE REFERENCE TO THE PLAINTIFF – Can the statement be regarded as referring to the plaintiff? Reference by inference can be satisfied in the absence of express reference. a. If a reference to an individual: Does the statement, in fact, lead reasonable people to the conclusion that it refers to the plaintiff? b. If a reference to a group: Did the plaintiff specifically suffer injury? Consider the following factors from BOU MALHAB v DIFFUSION: i. Size of group – larger = harder to prove each member sustained personal injury) ii. Nature of group – consider homogeneity (easier to find injury for more strictly organized and homogenous groups) and history of stigmatization (need to consider vulnerability of group) iii. P’s connection to group – more prominent members of a group are more likely to suffer injury (KNUPPER v LONDON EXPRESS NEWSPAPER LTD., Inggrid Wibowo 13
where the group was found to be defamed, but P was a major head of the group so the injury of the defamation was extended to him.) iv. Seriousness or extravagance of the allegations – could work for or against v. “Real target” of defamation – precision or generality of allegations; more difficult to prove allegations targeting one part of a group vi. Plausibility of the comments and tendency to be accepted – consider context as well vii. Extrinsic factors 3. WERE PUBLISHED – Were the impugned statements communicated to and received by a third party (that is, a party other than the plaintiff and the defendant?) a. No specific requirements for method b. “An act that makes the defamatory information readily available to a third party in a comprehensible form” – the addition of the term “readily” comes from CROOKES v NEWTON c. Receipt of the information by a third party in such a way that it is understood. d. The original publisher is additionally liable for subsequent republication only if: i. The original defendant provided the re-publisher express or implied authority to republish the defamatory remark, OR ii. The original defamatory remark made to someone who had a duty to disclose the remark, OR iii. The republication is a natural and probable consequence of the original publication If none of these are answered in the affirmative, then only the re-publisher will be liable for the republication.
DEFENCES
DEFENCE OF JUSTIFICATION BASIC RULE: The defendant has complete defence of justification if they can prove that the statements were true (even though they were also defamatory). (p. 1090-91) § Needs to prove truth of statements that comprise “sting” of defamatory remarks; defendants’ evidence of justification must be relevant to the sting of the libel (WILLIAMS v REASON). § Must show that “the whole of the defamatory matter is substantially true” (MEIER v KLOTZ) – the sting of it was accurate enough about the truth of the matter, and not simply true with regard to technicalities (e.g. an impugned statement that accuses P of 14 Inggrid Wibowo
“smoking crack cocaine on Dec 9” is not defamatory if in fact P smoked crack cocaine, but not specifically on Dec 9 – e.g. he smoked crack cocaine on Dec 12) § Defendant cannot say that other bad behaviour means the defamatory statement is true (LAWSON v BAINES) § Defendant cannot succeed by showing statements were literally true if they were expressed in a way to create an overall false impression (BANK OF BC v CBC) § Damages is also relevant: if some but not all statements are found to be justified, then damages will be accordingly reduced. Disincentive to plea of justification: defence considered republication of impugned statements – if defence fails, defendant will be liable for separate instance of defamation.
DEFENCE OF ABSOLUTE PRIVILEGE BASIC RULE: Absolute privilege provides complete immunity in tort for statements falling within the privilege. A motive of malice is an irrelevant factor to the defence of absolute privilege (DOWSON v THE QUEEN). There are three categories: 1. Statements by executive officers: “an (1) official communication relating to state affairs, including commercial matters, (2) made by one officer of state to another (3) in the course of his official duty”. a. This does not attach to all officers-–they must be an officer of the state (i.e. a ministerial or public official), although the boundaries of this principle are unsettled. b. The defence can be extended to an agent if they were acting on behalf of the executive officer of the state for whom the defence of absolute privilege would apply – e.g. DOWSON v THE QUEEN: defence applied in this case because RCMP superintendent who made impugned statement was acting for Solicitor General. 2. Statements made during Parliamentary proceedings: Matters stated on the floor of Parliament are immune from defamation proceedings (although not when the statements are made outside of the assembly). This is largely a blanket defence. (CANADA v VAID). 3. Statements made in the course of judicial or quasi-judicial proceedings: Determinants will be: A duty to reach an outcome; Similarity to a court; Punitive powers a. The core question is “whether the body is quasi-judicial, or if it is merely administrative in nature” (SUSSMAN v EALES). Unlike administrative bodies, quasi-judicial bodies are empowered by statutes and have power to determine the legal rights and to affect status of members. Complaints to quasi-judicial bodies are covered under absolute privilege. Inggrid Wibowo 15
b. See HUNG v GARDINER – a complaint to a professional body about a member’s conduct, where that body is quasi-judicial (in this case, the CGA and LSBC) is subject to absolute privilege. i. Also raises public policy concerns - immunity from defamation was required here to protect members of the public who wished to complain about the conduct of a professional.
DEFENCE OF QUALIFIED PRIVILEGE BASIC RULE: The defendant has the complete defence of qualified privilege if they can show they had a moral, social, or legal interest or duty to make the statement. The defence applies even if the statements are untrue, but (unlike absolute privilege) not if P establishes malicious intent. (p. 1104). The defence also fails if the defendant’s conduct exceeds the legitimate purpose of occasion (HILL v CHURCH OF SCIENTOLOGY). The defence generally applies to statements made by the defendant: 1. In the protection of their own interests – a person being subjected to an attack on their character is permitted to utter statements to defend themselves. Such statements will be protected by this defence as long as they are not excessive or irrelevant to the original attack. The occasion cannot be used as an opportunity to launch gratuitous insults, yet the courts will also not be overly critical of statements made in self-defence (ADAM v WARD). 2. In the protection of the interests of another person – the defendant must prove a duty (legal, social, or moral) to make the statement. Typically applies in situations where, e.g. credit or character references are provided w.r.t. the plaintiff. 3. In the furtherance of a common interest, as long as there is a reciprocity of interests – the speaker/defendant has an interest/duty to communicate the statements to a party who had a reciprocal interest/duty to receive them. a. e.g. McLOUGHLIN v KUTASY: physician D hired to examine prospective employees for a project and make reports about the candidates to ON Ministry of Labour. P was denied employment as a result of the report, which suggested P had a psychopathic personality and “would be dangerous” to the safety of the project. D successfully argued that the statements were protected by qualified privilege, since he had a duty to make the report to the gov’t and the gov’t had a duty to receive it. 4. In the protection of the public interest – includes political speech, including in municipal politics; communications among public officials over matters of public interest, health or safety. Again, the speaker/defendant must have a duty to publish the info and the recipient must have a reciprocal interest to receive it. a. Because of the reciprocity requirement, publications to the world at large (e.g. statements by the media) are not generally covered by qualified privilege – there is generally no “duty” to publish information to the world at large (GRANT v 16 Inggrid Wibowo
TORSTAR). Media defendants may seek defence of responsible communication (see below).
DEFENCE OF RESPONSIBLE COMMUNICATION BASIC RULE: Protects statements of fact on a matter of public interest that defamed P; originated in GRANT v TORSTAR. An attempt to prove malice will not defeat the defence. To raise the defence, the following criteria must be met: 1. Publication must be on a matter of public interest: Does it affect people at large, so that they may be legitimately concerned about what is going on? (LONDON ARTSISTS v LITTLER) The subject matter must be shown to be one 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 (GRANT v TORSTAR). a. A low threshold for this element; it is enough that some segment of the community would have a genuine interest in receiving information on the subject. b. The best way to resolve this would be to ask, “Is the subject of the comment more properly described as private?” c. Those who court public attention are given a prima facie assumption that comments relating to them are in the public interest (MACDONELL v ROBINSON) 2. The defendant must show that the publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances. a. To apply this defence, you must dwell substantially on the facts. Some factors are relevant, but they are not exhaustive; not all eight (or any one) need be proven; and they will change radically from case to case. Laid out in GRANT v TORSTAR, they include: i. The seriousness of the allegation: The degree of diligence required in verifying the allegation should increase in proportion to the seriousness of its potential effects on the person defamed. The most serious allegations include those imputing corruption and criminality onto P, and those which impinge substantially on P’s reasonable expectation of privacy. ii. The public importance of the matter: Where the public importance in a subject matter is especially high (e.g. national security issues) this tends to show that publication was responsible in the circumstances. iii. The urgency of the matter: Whether the public’s need to know required D to publish when it did. This is considered in light of what D knew or ought to have known at the time of publication. Would a reasonable delay have assisted D in seeking truth and correcting any defamatory falsity, without compromising the story’s timeliness? iv. The status & reliability of the source: The less trustworthy the source, the greater the need to use other sources to verify the allegations. Reliance on Inggrid Wibowo 17
confidential sources are allowed to an extent, but publishing slurs could, depending on the circumstances, be irresponsible. v. Whether the plaintiff’s side of the story was sought and accurately reported: The importance of this factor varies with the degree to which fulfilling its dictates would have actually bolstered the truth of the report. vi. Whether the inclusion of the defamatory statement was justifiable: Was it necessary to communicating on a matter of public interest? Consideration w.r.t. editorial choice should be granted generous scope. vii. Whether the public interest lay in the fact that it was made rather than its truth (reportage): If a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability for republication even if some of the statements made may be defamatory and untrue, provided (1) the report attributes the statement of a person, preferably identified; (2) the report sets out both sides of the dispute; and (4) the report provides the context in which the statements were made. viii. Other considerations: List is not exhaustive. The defence ought not to hold writers to a standard of stylistic blandness or encourage writers to conceal one’s POV. An otherwise responsible tone, for e.g., should not be denied the defence simply because it is critical in tone.
DEFENCE OF FAIR COMMENT Defence of fair comment provides a defence to those who comment fairly on matters of public interest. The name is misleading—there is generally no need to show that the comments were “fair”. The defence will fail if it is shown by P that the comments were made maliciously (i.e. for an indirect or improper motive not connected with the purpose for which the defence exists). Ds may be tainted by malice if their primary motives are to enhance their own reputations or confer benefits onto themselves. In order to establish the defence, D must show that the material in question was 1. A comment (as opposed to an accusation or allegation of fact), a. Facts: statements that are susceptible to proof; truth/falsity can be determined. Comments: subjective opinions that cannot be proved or disproved. b. It must be clear to the reader or listener that the impugned statements were comments rather than facts. If they are so intermingled as to be indistinguishable, the defence will not apply. c. If D fails to establish that impugned statements were comments, they will be treated as facts and will only be protected if D can satisfy the defence of justification (i.e. if the defendant can prove the truth of those facts) or some other privilege. d. What is comment and what is fact must be determined from the perspective of a reasonable viewer or reader (GRANT v TORSTAR). Is the sting of the impugned statement presented as a comment or fact? 18 Inggrid Wibowo
2. Which any person could honestly express, a. As objective test: “Could any man honestly express that opinion on the proved facts?” (CHANNEL SEVEN V MANNOCK) Any man – however prejudiced or exaggerated his views. b. CHERNESKY case: (Dickson J’s dissenting opinion) originator and publisher of a defamatory comment play different roles; nobody expects a newspaper publisher personally to have an honest belief in all of the opinions expressed on a “letters to the editor page”. c. An effective way to establish that somebody could “honestly express that opinion on the proved facts” is to call the defamer (if available) to establish that they did indeed express an honest belief. 3. Based on facts that are true, and a. The facts must be sufficiently stated or otherwise be known to the listeners that they are able to make up their own minds on the merits of the comment. b. The defence is not available if the underlying facts are unproven, misstated, fabricated, OR twisted. c. If facts are sufficiently notorious to have become public knowledge, they do not need to be provided as long as they are clearly identifiable (e.g. political cartoons). Conversely, if the facts on which the comment is based is not notorious or part of the public domain, D must explicitly or implicitly indicate, at least in general terms, the facts on which it is based d. D does not need to have set out all the facts relevant to the matter. D is entitled to omit relevant facts, as long as doing so does not provide a false or twisted account. e. Although D must show that facts underlying the comment are true, there is no need to show that the comment itself is true. There is no need to show that D made a correct inference on the facts. 4. Pertaining to a matter of public interest. a. A person may be the legitimate target of fair comment if they are a public figure or official. Those who court public attention are given a prima facie assumption that comments relating to them are in the public interest (MACDONELL V ROBINSON) b. However, defence of fair comment is not available for defamatory statements about the private life of a public official or personal attacks. The best way to resolve this would be to ask, “Is the subject of the comment more properly described as private?” See the case brief on WIC RADIO LTD v SIMPSON below for a good example on how to analyze and answer to a fact pattern that is defamation-centric. Inggrid Wibowo 19
WIC Radio Ltd. v. Simpson [2008] 2 SCR 420
Actors Plaintiff/Respondent: Kari Simpson
Defendant/Appellant: Rafe Mair
Facts § Impugned statements were made on Rafe (“D”)’s radio show § In statements, D compared P to Hitler, the KKK, and skinheads. § P sued for defamation.
Issues § Can D be held liable for defamation?
Decision § Appeal allowed. Judgment for D.
Reasons § What is the defamatory meaning of the words complained of, in their full context? o Full context is important. The Court must consider what reasonable and right-thinking listeners would understand. The Court is to avoid putting the worst possible meaning on the words. o Court found D’s article about P defamatory (“unwholesome virulence” of article as a whole, especially innuendo that P “would condone violence toward gay people”) § Do the words complained of relate to a matter of public interest? Yes – Public debate about educational material on homosexuality in school clearly engages the public interest. § Are the words and the defamatory meaning more likely to be understood, in context, as comment rather than fact? Yes. The language in which it is couched is such that it is clearly an opinion. Sting of libel was a comment and would have been understood as such by D’s listeners given that D was a radio personality, not a reporter of facts § Are the facts relating to the comment substantially true or privileged? Yes. § Did the defendants satisfy the honest belief requirement? Yes. o D testified that he did not honestly believe P would condone violence. However, this was his subjective honest belief. o What about objective honest belief—that is, could any person honestly have expressed the innuendo that P would condone violence toward gays? o Court determined that, given Simpson’s public speeches were full of references to “war”, “militant homosexuals”, and other violent imagery, that her speeches could support an honest belief on the part of at least some of her listeners that she “would condone violence toward” gays, even though D denied that he intended to impute any such meaning. § Has the respondent proven sufficient malice on the appellants’ part to defeat the defence? No. Does not vitiate defence.
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DEFENCES
DEFENCE OF CONSENT Consent is a free-standing defence (SCALERA). It is not a part of the prima facie tort. Consent does not need to take any particular form. IMPLIED CONSENT can include: certain participation, demeanour, or behaviour; failure to object, withdraw, or passivity – e.g. parties consent, in a sporting context, "to the ordinary risks of the sport in which they engage (WRIGHT v MACLEAN) However, consent can be exceeded. Actions that show a “definite resolve to cause serious injury to another” will exceed consent (AGAR v CANNING). The burden lies on P to make out the prima facie case. The burden then lies on D to plead and prove existence of any defences, including consent, on a balance of probabilities. D must prove that P consented to the specific act that gave rise to the tort action. Once established, consent is a complete defence. P may then raise factors that vitiate the consent—factors that can be applied to stop a defendant from relying on the defence of consent where there was some action that made that consent fundamentally flawed. Such cases are rare, but if consent is vitiated, D will be held liable as if there had been no consent.
VITIATING FACTORS
FRAUD/DECEIT DURESS 1. Defendant was responsible for the e.g. if someone is pressured into consenting what plaintiff’s misapprehension; would otherwise be a prima facie tort, then this consent may be vitiated by duress. 2. The misapprehension directly relates to the nature and quality of the act (i.e. not a R v Z (a U.K. case): duress applies in “urgent collateral matter) situations of clear and imminent peril” and where “compliance with the law [would be] 3. The fraud must go to something of truly demonstrably impossible”. serious consequence – R v MABIOR (a criminal case)
MISTAKE PUBLIC POLICY 1. The defendant was aware of the e.g. LANE v HOLLOWAY, where the Court plaintiff’s misapprehension; vitiated consent, on ‘public policy’ grounds, to an obviously mis-matched fight. 2. The mistake relates to the nature, and potentially extent of the act. e.g. NORBERG v WYNRIB—consent in sexual battery cases is vitiated if (1) there is a Distinguish from scenario where D mistakenly fundamental inequality between the parties and if believes P has consented – provides no defence (2) this inequality is exploited. Inggrid Wibowo 21
FUNCTIONS OF TORT LAW
COMPENSATION DETERRENCE PUNISHMENT Tort law should aim to restore Tort law should influence the Tort law as an avenue to express P to position he would have conduct of citizens with a view society’s disapproval of the been in if tort hadn’t been to promoting certain social conduct of wrongdoers who committed; as result, goals by changing the influence cause harm to other citizens; compensation is tailored to the of D who is the subject of the damages act as a sanction on D. particular loss P suffers. tort action, or a class of Punitive damages (punishment potential Ds, to prevent future for extreme and incredibly Limitations: Compensation harm condemnable actions) are not often awarded; P must sometimes awarded. initiate a costly process (i.e. get Deterrence only works if a) a lawyer); P must prove fault people are aware of the legal Tort law has generally moved and will only recover if D has standard and sanction b) the away from punishment (usually sufficient assets or insurance. behaviour to be deterred is covered by criminal law premediated c) damages are anyways). high enough to discourage behaviour
APPEASEMENT AND MARKET DETERRENCE JUSTICE VINDICATION Tort law as a system of loss Distributive justice: wealth Tort law as an avenue to allocation. properly distributed in society appease and vindicate P and Allocates costs of accidents to Corrective justice: concerned condemn D’s conduct. the producers of such accidents with correcting “wrongful Claimants who are motivated by incorporating potential gains” and compensating by hope of seeing tortfeasor’s liability costs within a product’s “wrongful losses” official condemnation may seek market price. nominal damages – a small Enables society to experience amount to be paid by D as a the “optimum” number of symbolic recognition of a accidents: A risk-averse wrong. product’s price rises à fewer products are sold à fewer product-related injuries occur
Think of how the underlying justifications for the law of torts are embodied in the actual torts themselves. If the outcome in a tort case on the exam is one that does not well respond to these underlying purposes, and there is a part of either the defense, or the elements of the tort itself, that allows for consideration of public policy, then that is a clear area in which you can and should respond.
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DAMAGES GENERAL DAMAGES: Motivated by compensation.
• AGGRAVATED DAMAGES: Compensatory damages awarded to compensate for additional (intangible) injuries to dignity arising from D’s conduct, i.e. in cases of humiliation and indignity. Court must be satisfied that: 1. P suffered damaged to their feelings as result of tort 2. D’s conduct not just tortious but also highly offensive (often leads to inference of #1) PUNITIVE DAMAGES: (sometimes called exemplary damages) are motivated by deterrence, denunciation, and to a degree punishment. Comparatively rare, only awarded when compensatory and aggravated damages are insufficient to adequately punish defendant.
• WHITEN v PILOT INSURANCE CO.: not limited to certain types of cases; very serious misconduct only and should be awarded with restraint; no cap but should be lowest sum that accomplishes goal; juries should be informed of function and factors; appellate courts can intervene CORRECTIVE AND COLLECTIVE JUSTICE CORRECTIVE JUSTICE: Corrective justice is a concept wherein the law responds to violations of rights of a person (the plaintiff) by another person (the defendant), with the law attempting to ‘correct’ this violation (in torts, through the provision of compensation). This is the justification for the system of tort law seen throughout the common law world. Generally, this system is fairly effective: it compels proof of a wrong, and provides some remedy for this wrong. Few doubt that corrective justice responds to the actual operation of the law of torts. The HONORE article attempted to explicate the moral core of tort (responsibility and obligation in tort are paramount), and how this is embodied through the conception of corrective justice.
COLLECTIVE JUSTICE: Collective justice as a concept draws upon the BURROWS article. For individualistic wrongs, tort law is often appropriate. However, there are also circumstances where relying on individual and individualistic tort litigation does not respond well or meaningfully to view of individuals as members of a broader society—and of the need in that society to provide a broader, collective effecting of positive goals. Burrows spoke of, and responded to, a variety of questions and issues with the Indian Residential Schools Settlement Agreement (IRSSA). He recognized that, through listening and observing, a concept of broader responsibility exists in Canada—and one that is not always usefully structured within the tort system. The concept of collective justice speaks to that conception of responsibility. When, as lawyers, there is an existing, clear, underlying wrong, but see that it cannot be resolved adequately within the legal system, the question of how to embody this collective justice must be asked. Collective justice is incredibly difficult to embody in tort claims—but that does not mean that existing wrongs cannot be framed within tort claims. It is worth noting that persistent waves of tort litigation were the precursor to IRSSA, Common Experience Payments, and other such schemes that responded, and in some ways reified, conceptions of collective justice. Inggrid Wibowo 23
STRATEGIC LITIGATION AGAINST PUBLIC PARTICIPATION (SLAPPS)
WHAT ARE SLAPPS?
• Unmeritorious litigations initiated against individuals or groups that speak out or take a position on an issue of public interest, mostly brought by corporations aiming to quiet protesters, etc. • Used by P to neutralize criticism by resorting to the courts to intimidate D, deplete their resources and reduce their means of action
• Aimed at ostensibly democratic actions e.g. circulating petitions, picketing, etc. • Usually the result doesn't really matter to the P – the point is to deter Ds from their activism.
• Strategic use of legal arena to intimidate target and exhaust limited resources
WHY THEY ARE A PROBLEM
Deep power imbalance between corporations and small NGOs/individuals; aimed at suppressing lawful public participation and robust democratic debate on matters of public interest; a huge drain on our legal system
HOW DO YOU DEFEND AGAINST THEM?
No way to defend against someone threatening lawsuit or actually suing you, but BCSC Civil Rules of Procedure: • 9-6 (4) – can apply for judgment dismissing all or part of a claim • 9-6 (5) – on hearing app, court can do so if satisfied there’s no genuine issue for trial However, it is not always clear at outset whether there is a genuine issue for trial. Judges will always err on side of precaution in preliminary hearing, and SLAPPS are generally worded very closely to legitimate torts claim. Moreover, even if you win at trial, costs awarded tend to only amount to half of reasonable legal costs.
POSSIBLE LEGISLATIVE FIXES
Effective anti-SLAPP mechanisms: • Allow court to identify and abandon a case if it believes it’s a SLAPP • Mitigate the costs of SLAPPs o availability of cost awards to cover all “reasonable costs and expenses” of the D • Deter or dis-incentivize companies from SLAPPs in the first place o Communicates state disapproval of this trend in litigation, inappropriate use of courts • Shifting onus: once D proves reasonable probability that this was SLAPP, then onus on P to prove not improper purpose 24 Inggrid Wibowo
Attempts to address SLAPPs in legislation: • QC Civil Code protections • ON legislation not yet in force • BC’s late Protection of Public Participation Act – in force for less than a year but repealed.
TASEKO MINES LTD v WESTERN CANADA WILDERNESS COMMITTEE (2016) – strongest SLAPP ruling yet – Taseko claims damages (punitive, injunctive relief, special costs) for defamation by Wilderness Committee arising from internet articles posted re: mine Taseko wishes to construct. Wilderness Committee argues defences of fair comment and justification, and seek special costs on basis that Taseko's claim is a SLAPP. Taseko says WC’s articles conveyed "natural and ordinary inferential meanings" that they had callous disregard for environment, etc, from articles encouraging readers to be involved in public discourse and use WC's letter writing tool to respond to proposal still to be approved by fed govt. TJ scathing: • Reasonable ordinary person reading the articles would understand Taseko to be submitting proposal for open pit mine which would be subject to environmental review and vigorous public debate -- articles don't suggest that Taseko not law-abiding or didn't have right to propose and seek approval from fed govt • Reasonable and ordinary member of public “neither sheep nor parrot” - letter writing tool served to encourage engagement in public discourse but didn't prevent public from expressing own opinion • Reasonable and ordinary person would view statements as comment as part of debate HOLDING: none of the articles are defamatory, not in ref to P (rather to their project) and, in any case, defence of fair comment applies. Continuing to seek punitive dmgs and special costs attracts Court's rebuke; such allegations should be withdrawn where it's apparent a proper basis doesn't exist for the allegations. Seeking punitive damages an ec threat; may serve to silence critics. Court awards special costs to Ds.
LUBICON LAKE NATION – Daishowa continued logging on Lubicon Lake Cree Nation land despite saying they wouldn't; several NGOs took up the cause and contacted retailers regarding violation of agreement, as well as consumers, essentially encouraging a boycott of the paper company. All 50 stores contacted joined the boycott during the campaign. Daishowa filed a claim against 2 of these NGOs, incl number of torts: o Interference with contractual relations – Elements: 1) D has knowledge of K; 2) D has intent to interfere w/ K by illegal means; 3) that interference causes economic harm to P o Intimidation – Elements: 1) coercion; 2) by threats of unlawful action Daishowa arguing that not free expression but economic message; TJ agrees that it has economic message but most effective part is picketing through speech - this is not illegal, so Daishowa can't succeed on first two torts o Conspiracy – Elements: 1) two or more persons; 2) agree to act together in a planned, concerted fashion; 3) for a predominant purpose; 4) of causing economic harm to P; 5) harm in fact follows. TJ finds that predominant purpose wasn't to cause economic harm but to inform members of public about the issue, so though this was stronger case than the above 2 it still failed. o Defamation – Elements: 1) statement that is defamatory; 2) made reference to P; 3) was published or disseminated. Defences at time of case: 1) justification; 2) fair comment; 3) qualified privilege TJ found this tort to succeed based on assertion that Daishowa's logging will "result in the cultural genocide of the Lubicon people" - but given that purpose was in public interest, NGOs found liable for only $1 Fact that only a dollar awarded, and an injunction only on using the word genocide, suggests that this is very much at borderline between SLAPP and meritorious tort case. Ultimately cost NGOs $400k in legal fees.
Inggrid Wibowo 25
CASE BRIEFS
AGAR v CANNING (1965) – Defence of consent – P & D opposing hockey players. D body-checked P to get puck; P hit D on neck; D hit P with blade of stick in face in retaliation. P fell unconscious. D found liable. Injuries are frequent in hockey games; BUT injuries inflicted showed definite resolve to cause serious injury. Doesn’t fall within scope of implied consent. – Consent can be exceeded. Someone who plays sport is assumed to be consenting to the ordinary risk of injury, but not anything beyond what could normally be expected.
BETTEL v YIM (1978) – Battery – 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 intent to harm is irrelevant.
BIRD v JONES (1845) – False imprisonment – P wanted to go one way on the highway, while D’s policemen made barrier to the regular toll. Action dismissed. – False imprisonment must be total. The fact that P could turn around and access his destination through another route, albeit an inconvenient one, did not constitute total restraint.
BOU MALHAB v DIFFUSION MÉTROMÉDIA CMR INC. (2012) – Defamation – MTL taxi driver, P, sought class action for racist comments made by radio host about MTL taxi drivers whose mother tongue is Arabic or Creole – appeal dismissed – P could not prove personal injury – Authority for the question of whether P was specifically harmed in case of defamatory statements referencing a group
DOWSON v THE QUEEN (1981) – Defamation – Defence of absolute privilege – Defamatory statements arose because of report commissioned by the AG/ON Legislative Assembly about an RCMP investigation on NDP. Impugned statement was that NDP might support change “by violent and undemocratic means”. RCMP superintendent who made statement was acting as an agent for Solicitor General, and so defence of absolute privilege was extended to him because he made a statement on behalf of an officer of the state. P tried to argue that the RCMP had malicious motives, but this was found to be irrelevant to absolute privilege – Defence of absolute privilege can be extended to agents acting on behalf of executive officer of the state; motive of malice irrelevant to defence of absolute privilege.
CROOKES v NEWTON (2011) – Defamation – hyperlink to website that contains defamatory material is not publication itself; a hyperlink should be considered publication “if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” A hyperlink, when adopted or endorsed by the hyperlinker, ceases to be a mere reference; in effect, the defamatory content to which the link refers becomes part of the hyperlinker’s website itself
GRANT v TORSTAR (2009) – Defamation – Defence of fair comment – P sued D for critical article about his private golf course development. Article was written by an experienced journalist who attempted to verify allegations in the article, including asking D for comment, which D chose not to provide. Trial judge and jury found in favour of P, leading D to appeal that if steps were taken for responsible communication on a matter 26 Inggrid Wibowo
of public interest, media shouldn’t be held liable if they cannot prove that all of the story was true. D asked SCC to revise defences available to media. McLachlin CJ argued that the current law does not offer any defences of substantial utility to journalists or media defendants; w.r.t. statements that are reliable and important to public debate, the current law does not give adequate weight to the constitutional value of free expression. New trial ordered. – Sets out defence of responsible communication on matters of public interest.
HARRISON v CARSWELL (1976) – Trespass – D had been requested not to enter or come upon premises of shopping centre by owner. D picketed on sidewalk within the shopping centre property because of a labour dispute and was charged for unlawful trespass under MB Petty Trespasses Act. – Right to picket on private property open to public is not protected unless enacted in legislation. Dickson J held that a shopping centre is 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.
HILL v CHURCH OF SCIENTOLOGY (1995) – Defamation – Defence of qualified privilege – Before court proceedings, CoS (D) stated at a press conference with a lawyer reading out accusations against P and gave copies to reporters, stating that they intended to initiate criminal contempt proceedings they against P. D found liable for libel, defence of qualified privilege defeated; circumstances called for restraint, and D’s conduct was found to be high-handed, carless, and unnecessary/inappropriate for the circumstances – Defence of qualified privilege fails if conduct exceeds legitimate purpose of occasion.
HOLCOMBE v WHITAKER (1975) – Assault – P wanted annulment, D said “if you take me to court, I will kill you”. Suit filed and D went to P’s apartment, beating/trying to pry open door while reiterating threat. D found guilty of assault. –A show of force and an unlawful/unjustifiable demand (threat), taken together, can constitute assault.
HOLLINSWORTH v BCTV (1999) – Privacy Act – P balding, got graft surgery, consented to filming for instructional purposes. BCTV (D) did feature on baldness 7 years later and original filmer obtained the film from doctor without P’s knowledge. P is clearly shown on news for 3 secs; brought action against BCTV. Court found BCTV not liable for invasion of privacy, though doctor/surgery company was, because BCTV honestly believed they had consent as the doctor told them so. – “wilfully” in s. 1 of BC Privacy Act 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.
HUNG v GARDINER (2003) – Defamation – Defence of absolute privilege – a member of the Law Society of British Columbia and of the Certified General Accountants Association of BC found herself under investigation for her professional conduct. A report was produced, but no disciplinary action was taken. P brought an action for defamation. D informed the Law Society and Accountant Association. P’s claims dismissed because a report given to professional bodies was under absolute privilege and thus barred from defamation suits because both of the professional bodies (LSBC and CGAABC) were quasi-judicial. Additionally, for public policy reasons, immunity from defamation was required here to protect members of the public who wished to complain about the conduct of a professional. – Complaints to quasi-judicial bodies are covered under absolute privilege. Inggrid Wibowo 27
JONES v TSIGE (2012) – Intrusion upon Private Seclusion – Ontario case – P found D had been looking at banking records. Both worked for same bank and D was in common law relationship w/ P’s ex. D also looked at P’s banking records ~174 times over 4 yrs. – common law recognition of tort in ON as “intrusion upon seclusion”. To make out claim for intrusion on seclusion, P must establish that: 1. Intrusion unauthorized; 2. Intrusion highly offensive to reasonable person; 3. Matter intruded upon was private; 4. Intrusion caused anguish and suffering. In this case, deliberate/repeated and motivated actions = intrusion = award of damages, but no public embarrassment so no aggravated damages.
KNUPPER v LONDON EXPRESS NEWSPAPER LTD (1944) – Defamation – Ds published article re Young Russia group saying they were pro-Hitler; P was leader of British branch but not named in article. 4 witnesses said they thought of him – Authority for the question of whether P was specifically harmed in case of defamatory statements referencing a group
LAWSON v BAINES (2012) – Defamation – Article written by D about oil and gas company that referenced P who was a director; linked P to mob activity and persons convicted of a stock bribery scam; found to be defamatory – set out the 3 different ways impugned statements could be defamatory
MILNER v MANUFACTURERS LIFE INSURANCE CO. (2005) – Privacy Act – Manulife (P) hired 4 P.I.s to take surveillance videos of the Milner family. Took some contentious videos (D, Andrea Milner, with top off and photos of 2 sons playing soccer). Courts judged on person-by-person basis – for Older Ms. Milner, no reasonable expectation of privacy because her blinds were up and Manulife had a lawful interest in conducting surveillance; for Milner sons, no reasonable expectation of privacy because they were videotaped in public space; for Andrea Milner, Manulife had no lawful interest in taping her (unlike for Older Ms. Milner) and PIs should’ve known that videotaping Andrea once she removed her shirt was a violation of privacy without legal justification. Videotaping of Andrea thus violated privacy as she wasn’t being investigated. – Surveillance in general is not illegal. The relationship between parties matter in determining whether there was a breach of privacy (“look at relationship and whole context”).
MAINLAND SAWMILLS v IWA (2006) – Harassment – Ps seek claims of harassment based on trespass, damage to property, assault, based on US tort of intentional infliction of emotional distress; argues that a similar tort should be recognized in Canada; court finds that plaintiffs have failed to prove #3 – emotional distress, so don’t need to confirm or disprove tort’s Canadian existence – Set out the elements for the potential tort of harassment tort.
MALETTE v SHULMAN (1990) – Battery – Doctor (D) administered a blood transfusion to Jehovah’s Witness patient (P) who had refused it on religious grounds but otherwise would have died. D found liable for battery because it was a clear negation of consent and constituted socially offensive contact. – Courts look to cultural context to see what is socially offensive and what is not.
NORBERG v WYNRIB (1992) – Defense of consent – D, a doctor, offered prescription drugs in exchange for sexual favours; P did so after she couldn’t obtain drugs elsewhere; consent found to have been vitiated because the unequal bargaining power and exploitative nature of relationship made it impossible for P to meaningfully consent – Consent in sexual battery cases is vitiated or non-existent if there is a fundamental inequality between the parties and if this inequality is exploited. 28 Inggrid Wibowo
POLICE v GREAVES (1975) – Assault – D, weaponized, threatened police (P) with “Take a step and I'll gut you!” P retreated. D found guilty of assault. Brandishing knife (show of force suggesting immediate physical contact) + given threat (reasonable apprehension) = assault. – Conditional threats can constitute assault if other requirements for assault met.
PRINZO v BAYCREST MEDICAL CENTRE (2002) – IINS – P went on stress and mental health leave; harassed by employer, D, while she was away. D made frequent phone calls to P that were harassing and implied she was malingering (faking injury); D faked doctor’s notes that stated her doctor had agreed she was ready to return when this was not the case; and evidence at trial suggested D was aggressively attempting to have P return in order to fire her as part of downsizing. P suffered emotional distress, increased blood pressure, weight gain, and a worsening of diabetes symptoms. – Court set out elements of IINS and determined that they had been met in this case.
SAMMS v ECCLES (1961) – IINS – American case – D repeatedly phoned P asking for sex, despite her married status. On one occasion, D came to P’s residence and exposes himself. P suffered much anxiety, feared for personal safety; was able to recover for IINS – Medical evidence is not required to prove IINS. Severe emotional distress is recoverable if the defendant intentionally engages in conduct towards the plaintiff that is objectively or subjectively harmful (against generally accepted standards of decency and morality).
SAVINO v SHELETOWSKY (2013) – Harassment – Ontario case – 2 neighbours; one neighbor, D, always putting forward noise complaints (over 10 years) for conspicuously inane things; neighbor P brings forward action for harassment; however, extreme or emotional distress not made out; action dismissed – The bar to applying harassment as a tort is a high one, especially proving extreme or emotional distress.
SCALERA v NON-MARINE UNDERWRITERS (1647) – Battery – Sexual assault battery case. Scalera was a bus driver who had a civil action brought against him and 4 other BC Transit bus drivers by a plaintiff re: sexual assaults. D sought insurance coverage from insurers, P, who say that insurance policy does not cover intentionally caused injury. – Onus is on the defendant to raise and prove consent as a defence.
SMITH V STONE (1647) – Trespass – D was carried onto land against his will through the force of others. – An action is not liable in tort if it is not voluntary.
TURNER v THORNE (1959) – Trespass – D’s delivery service thought P’s property was their old client’s; garage not locked so D unloaded cartons in middle of their garage. P tripped over cartons and was injured placing objects on property is trespass. D found liable for P’s injuries. – Trespass can be committed by the continued presence of a thing tortuously placed on someone else's property. Mistake is no defence in trespass.
WIC RADIO LTD v SIMPSON (2008) – Defamation – Defence of responsible communication – Impugned statements made on D’s radio show, comparing P to Hitler, KKK, skinheads, etc. P sued for defamation. Appellate court found for P. – Court modified the “honest belief” element in the defence of fair comment from a subjective requirement to an objective one. Defamation proceedings would become too technical if the protection afforded by the defence is made to depend on whether or not the speaker is prepared to Inggrid Wibowo 29
swear to an honest belief in something he does not believe he ever said. Thus, the test should be as below, as objective test: “Could any man honestly express that opinion on the proved facts?”
WILKINSON v DOWNTON (1897) – IINS (first case to substantially address as tort) – D told P that P’s husband injured with both legs broken (“practical joke”). P suffered violent shock to nervous system, resulting in vomiting, weeks of suffering afterward. D found liable for IINS – Effect was likely outcome of conduct; that the act inflicted more harm than anticipated is not an excuse. Intent imputed because grave effects would be produced in “all by an exceptionally indifferent person”. An act can be found to be “malicious by nature” even if no spite was intended.
WILLIAMS v REASON (1983) – Defamation – Defence of justification – D was a journalist who accused P, an amateur rugby player, of breaking code of Rugby Union through “shamateurism” (playing as an amateur when he was receiving payments or benefits). D pleaded justification; sought to introduce fresh evidence that P had accepted cash payments for wearing a manufacturer’s boots when playing. Evidence of “boot money” was found relevant to “sting” of defamation, i.e. shamateurism – it was in line with accusation, so new evidence in appeal allowed – Justification needs to be relevant to the sting of the libel.
WRIGHT v MCLEAN (1956) – Defence of consent – D boys engaged in mud ball fight, P’s bike is hit, he joins fight, P is hit in head w rock and injured. D invited to join, no ill will. – 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.