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31 Cards in this Set
- Front
- Back
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What is a Tort? |
A wrongful act, other than a breach of contract, resulting in injury to body, property or reputation for which the injured party is entitled to compensation • a person who commits a tort may be referred to as a “tortfeasor” • Tort Law encompasses the doctrine “ubi jus ibi remedium “- where there is a right there is a remedy |
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What are the 4 basic characteristics of a Tort? |
1.) It must cause harm 2.) It must be recognized by the law as coming within the broad area of actions for which the injured person should be compensated ( It must deserve compensation) 3.) The action of the defendant must violate a duty owing to the injured person (it has to be shown that the person did not have a right to do what they did and that the injured party has a right to redress) 4.) in order for the plaintiff to commence an action in Tort, there must be no specific remedy provided by statute (if there is an established system to deal with the problem, no action lies in Tort) • It is generally understood that Tort law is not concerned with the intent or motive of the defendant but with the defendants actions |
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What are the 4 purposes Tort Law serves? |
1.) Justice 2.) Compensation 3.) Appeasement 4.) Deterrence |
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What is Vicarious Liability? |
The responsibility for the acts of another person. • the law may hold the second defendant responsible for the acts of the first, even though the second defendant was not guilty of any personal wrongdoing • employer not reliable for everything and employee does, the improper action must normally be job-related • an employer must supervise employees and detect abuses early |
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What is Assault? |
It is a threat to commit bodily harm, with the reasonable belief by the other person that the wrongdoer has the present ability to carry out the threat • the act is intentional, not accidental • assault takes place in the mind of the victim |
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What is Battery? |
It involves the application of violence against the victim by the aggressor • the violence does not have to be major or cause pain or harm, simple contact without consent can be considered battery • Assault can include Sexual Assault and Medical Battery |
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What is False Arrest? |
The interference with the liberty of a person by the defendant - person is held or detained - intentional • for the purpose of ensuring the person answers a criminal charge • without legal right/authority • Legal right can be lost through: lack of reasonable grounds and excessive force |
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What is False Imprisonment? |
• Interference with the liberty of a person by restraint or detention or confinement- intentional • restricted area and no reasonable escape available • without consent of plaintiff • Without legal right/authority right can be lost through: Lack of reasonable grounds and excessive force |
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What are potential defences to Interference? ( Assault, Battery, False Arrest, False Imprisonment) |
Consent - if the plaintiff consents to what is done, there is no liability upon the defendant • consent to play a contact sport does not mean consent to be injured outside the rules of the sport Self-defence - the defendant may use self-defence to ward off an attack by the plaintiff • amount of force must be reasonable and not excessive • Provocation is not a defence to intentional Interference Correction of behaviour - own child by a parent (or pupil by teacher) Accident - the action was unintentional • the defendant may show that the contact was unintentional such as accidental bumping |
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What are some key issues with the Consent defence? |
True consent is required • must be informed • not obtained by deceit (knew what they were consenting to) • not obtained by duress (must be voluntary consent) • plaintiff is capable of consenting • implied consent vs. Express consent • Action cannot exceed consent given |
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What is Libel? |
Libel includes statements that are printed, written filmed or recorded in a permanent manner |
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What is Defamation? |
Defamation harms the plaintiffs status in the community • Defamation is divided between three categories: Product Disparagement, Libel and Slander |
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What is Slander? |
Slander includes oral statements only |
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To sue for Slander the plaintiff must establish 2 important things. What are they? |
In order for something to be considered Slander there must be: 1.) The remarks were made public and 2.) the statements caused harm to the plaintiff • a defamatory statement is not Slander when it is made by one person to another in privacy and in the absence of a third person • the courts have held that Slander must be such that “right thinking” people in the community might be led to believe it; a suit for Slander will fail if what was said no one could possibly believe • name calling is not Slander It is an intentional act |
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What is Innuendo in reference to the Tort of Slander? |
Innuendo is the use of subtle, veiled, negative comments. It may appear harmless on the surface, but an informed listener can infer the intended meaning of the words. |
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What is Slander per se? |
Slander per se is particularly vile Slander and harm will be presumed. • the courts have generally recognized Slander per se as any statements that a plaintiff commits criminal acts, has a loathsome disease, is professionally dishonest or unfit or is immoral |
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What are some characteristics of Libel? |
The Tort of libel lies in the publication of the defamation in a permanent form • libel does not require that the defendant set out to harm the plaintiff • every repetition of a libel is a new libel, and every publisher is answerable for publishing the words • inaccuracy in a tv program is not libel • no libel suit can be brought on behalf of a dead person |
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Why have typically in Canada have Damages for libel been kept small? |
With one notable exception (Hill vs. Church of Scientology of Toronto, 1994), damage awards for libel have been kept small in Canada • there was a concern that huge damage awards would have a negative effect upon freedom of the press and the right of the Canadian people to be informed about important events |
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What are the primary defences against defamation actions? |
1.) Truth - justification - the best defence against a libel suit is to prove that the statements were true 2.) Privilege - Absolute and Qualified - Absolute Privilege - what is said in parliament and legislative buildings during parliamentary proceedings; Qualified Privilege- means that people who, because of their nature of their duties are required to comment about others, may do so without action being brought against them, as long as their comments are fair and not malicious attempts to injure someone 3.) Fair comment |
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What is the Fair Comment defence in response to a defamation action? |
This is the most controversial defence to defamation. The main principles are: • the comment must be on a matter of public interest • the comment must be based on fact • the comment, although it can include inference of fact, must be recognizable as a comment • the comment must satisfy the following objective test: could a fair-minded person honestly express that opinion on the proven facts? • even though the comment satisfies the objective test, the defence can be defeated if the defendant was motivated by malice. |
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What is Product Disparagement? |
Suggesting that a company’s product is dangerous or quality of service is poor • It must be an intentional statement • It must be a statement made publicly • if the statement could cause or has caused harm to a reputation of a company |
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What is Personal Information Protection and Electronic Documents Act (PIPEDA)? |
• Legislation of the federal government that protects personal information • PIPEDA sets the basic rules for how organizations collect, use, store, or disclose personal information in the course of carrying on commercial activities in Canada • PIPEDA does not apply to: - organizations not engaged in commercial activity (eg. Not-for-profit groups, charities) - organizations operating wholly within a province where the province has enacted substantially similar legislation • there is not really a Tort for privacy although there is legislation to protect people • video surveillance must be done without trespassing. |
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What is Trespass? |
Trespass is when a a trespasser enters another person’s land without the occupiers knowledge or consent and without and colour of right to be there, also applies to personal goals • a person may trespass intentionally or unintentionally • the occupier must make moves to remove the trespasser from the land as soon as aware of the trespass |
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What is Occupiers Liability for Injury? What are the classifications? |
The occupier is responsible for the safety of the trespasser based on different classifications: 1.) Entry by right - some people acquire a right to enter property 2.) Invitee - is a person who enters a property for the purpose of conducting business in which the invitee and the occupier have mutual interest; the occupier must warn the invitee of dangers of which the occupier knows or ought to know 3.) Licensee - a person who enters property as the guest of the occupier (social guests); the occupier must warn the Licensee of unusual dangers of which the occupier is aware 4.) Trespasser - a person who enters land without the occupiers knowledge or consent and without colour of right to be there; trespass is also interference with property belonging to another |
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What is the Occupier’s Liability Act? |
Ontario’s Occupier’s Liability Act varies duty of an occupier and limits liability in some circumstances although there are some special cases eg. Children • an occupier must take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe while on the premises. • the occupier cannot set traps or alter the property to cause injury to a trespasser |
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What is Social Host Liability? |
The host of a party may be liable if guests are injured because of excessive alcohol consumption - this applies to bars and restaurants as well |
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What is Social Host Liability? |
The host of a party may be liable if guests are injured because of excessive alcohol consumption - this applies to bars and restaurants as well |
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What is the Special Status of Children when it comes to Occupier’s Liability? |
Children have a special status because they cannot appreciate danger or understand the concept of private property • if a child is lured into danger, the occupier is liable, this is Allurement eg. A swimming pool (needs a fence) |
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What is a Disclaimer Clause? |
Disclaimer Clause is an attempt to avoid liability or to limit liability imposed by law or contract • also known as Exculpatory Clause, or Limitation of Liability Clause. |
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What is Public Nuisance? |
A public nuisance annoys the general public and is dealt with by government authorities and is not actionable by private lawsuit. • a citizen can initiate an action only if it can be demonstrated that the citizen suffered a separate and special damage, distinct from that suffered by the general public |
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What is private nuisance? |
Is committed one of two ways: 1.) a private nuisance annoys the occupier of adjacent land and is actionable by private law suit 2.) nuisance can be caused by noise, smell, water, dirt or any other offensive substances |
