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Department
Law and Business
Course
LAW 122
Professor
Margaret Buckby
Semester
Winter

Description
bject: Problem 1 Please consider the following questions and offer your thoughts: - Is it easy or difficult to change the Canadian Constitution? - What is the policy that underlies the correct answer to that question? - Who must agree before the Constitution can be changed? As everyone pointed out, the Constitution is very difficult to change. Most laws can be changed by a legislature (through a simple majority). The Constitution is different. It can only be changed through a special amending formula. It is necessary to have the consent of Parliament (simple majority) plus the legislatures of at least two-thirds of the provinces that represent at least 50 percent of the country's population. Consequently, constitutional amendments are rare. Note that that the standard has now been set even higher by the Regional Veto Act. The Act was introduced by the federal government and in effect, the Act gives a veto right on constitutional amendments to Ontario, Quebec, British Columbia and Alberta. Interestingly, however, the Act is simply a federal statute. Consequently, unlike the Constitution’s amending provisions, it could be easily repealed. Very few of you addressed the second part of the question: the "underlying policy" is the rationale behind the formula; not the rules for implementing it. In other words, you were asked to why is it more difficult to amend the constitution as compared with other kinds of law? Most of you skipped this part. The justification for the amending formula stems from the nature and purpose of the Constitution. It is the document that creates the basic rules for Canadian society, including our political and legal systems. It therefore must remain relatively stable. Although amendments are possible, they should reflect fundamental changes in national values, rather than merely transitory shifts in public perceptions. It is one thing, for instance, to make changes in the rules that govern the enforcement of contracts. It is a far more serious matter to alter the fundamental rules of Canadian society (for example, the rule that every citizen has a fundamental right to vote in an election). The reason why changes are difficult is not that they are costly and complicated - it is because the constitution, as the supreme law of the land, establishes some of the basic principles that govern a society. In order to ensure the stability of these principles, changing them is made particularly difficult. When it comes to Charter rights, as discussed in the text, one way to avoid a constitutional amendment is to invoke the notwithstanding clause (s. 33) which allows the government to override some of the rights granted in the Charter. The use of this clause, however, it very rare because the government is aware of what political cost such a move could have. ubject: Problem 2 Ford Motor Co manufactures the Pinto, which is a type of compact car. It has discovered a design defect that affects the Pinto In which situations would it be appropriate for the company to manage the risk by (i) avoiding it (ii) reducing it, or(iii) accepting it? In choosing a strategy, should the company consider its legal obligations only or should it consider moral obligations as well? I enjoyed reading your suggested answers to these difficult questions. This question invited you to consider that the third stage of risk management (response) flows from the second (evaluation). The strategies of avoidance, reduction, and acceptance should reflect the extent and nature of the danger that the design defect in the product creates. If the danger is very significant, the company should probably use a strategy of risk avoidance. For instance, if the design defect causes the Pinto to blow up frequently or to roll over, the vehicle should almost certainly be taken off the road. That is true for obvious moral reasons but keep in mind that it is also true as a matter of good business. Such accidents will likely entail substantial liability costs. Those costs may include not only compensatory damages, but also punitive damages (which aim to punish the defendant for bad behaviour; we will learn what these terms mean later in the course). Furthermore, Ford Motor Co could suffer substantial financial costs as a result of adverse publicity, especially if the public knew that it left the Pinto on the road even after its defect was discovered. On the other hand, if the estimated costs of leaving the car on the road are found to be negligible, the company may decide to do nothing, thereby accepting the risk. Risk reduction - which involves an attempt to fix the problem - would likely be the preferred choice, once again, when the cost-benefit analysis would point in that direction. As noted by Robert, Richard and others, this question is based on the case of Ford Pinto, a car model that was released in the early 1970s and was found to have a major design flaw. When crash-testing the car, the company discovered that when rear-ended, the fuel tank is punctured and catches on fire. Ford decided to do nothing (i.e. accept the risk) and released the car to the market despite the flaw. Their math was "simple" - it would have cost them appx. $120M to recall the cars and fix the problem, while the expected cost of accepting the risk was only $50M. It therefore made more sense for the company to do nothing. This decision, as it turned out, was based on a miscalculation of the overall costs of accepting the risk. This was made clear when a public relations disaster was evident as a result of the fatal injuries caused by the car. After only one law suit resulted in a liability cost of several million dollars, the company decided to recall all units and fix the problem. This could be seen as an example for a bad cost-benefit analysis. The company miscalculated the costs associated with risk acceptance. The recent recalls by Toyota of faulty models is perhaps a better example for a sound business strategy and crisis management. But the Ford Pinto story raises some more fundamental questions, regarding the moral responsibility of companies toward their stakeholders. Should decisions on matters of life and death be decided based on economic costs and benefits only? Should the worth of human lives be translated into numeric costs? The intuitive answer is no - socially responsible company must always avoid posing risk to human life. Thomas and Shalinee's answers, for example, seem to suggest as much. Consider, however, that similar decisions on matters life and death are made by companies all the time. Many products (cars included) are inherently dangerous, and decisions regarding an acceptable level of risk are taken by business companies on a daily basis. The translation of "human lives" into numbers, in turn, is done all the time. When a court awards compensation for injuries resulting in death - isn't that an exercise in "putting numbers on human life"? Insurance companies engage in such cost-benefit analysis all the time with the help of their actuaries. But assuming that a proper cost-benefit analysis is conducted, taking into account all conceivable costs (which is something Ford arguably failed to do), one may still ask whether risk should be reduced for moral reasons even when the cost of doing so greatly outweighs the benefit (or the cost of accepting it). The answers to these questions are not easy, and the positions we may have would be based, more generally, on our views on the role of business in society. Should a business be concerned solely with increasing its profits or do businesses have moral obligations to society as a whole? Should a company do "the right thing" even when it is not obliged to do so by law? The recent movement of Corporate Social Responsibility (CSR) is a reflection of the debate in both law and management discourses. I invite you to continue this discussion and share your views on this, perhaps in the general discussion forum... Subject: Problem 3 During a trial, a lawyer raised an argument based on the concept of the "residual power." The lawyer's argument must a) involve an issue of constitutional law. b) be concerned with the division of powers. c) be based on either section 91 or section 92 of the Constitution. d) have something to do with the fact that Canada is a federal country. e) All of the above answers are correct. Explain your answer. As explained by Richard and others, the correct answer is (e). Problem 4 The Citizen’s Coalition for Property Rights (the CCPR) believes that the Charter should protect the right to own property. Which of the following statements is correct? a) The CCPR has no need to worry because property rights are already expressly protected by the Charter. b) The Charter cannot be amended unless, among other things, the federal Parliament agrees. c) because property rights are listed under section 91 of the Constitution, the CCPR will not have to persuade the federal government to amend the Charter d) The Charter can be amended as long as at least half of the Canadian population supports the protection of property rights. e) The Charter cannot be amended unless the government holds a referendum and allows individual Canadians to vote on the issue. Explain your answer. The correct answer is indeed (b). Note that leaving property rights outside the scope of the Charter was a conscious decision made by the drafters of the Charter. They believed that it may hamper the government’s ability to protect the environment, regulate the use of land, control resource-based industries, etc. The flip side of this choice, arguably, is that the denial of economic rights has also made it difficult for disadvantaged Canadians to force governments to provide social assistance when justified. Other jurisdictions have made different, more transformative choices and entrenched socio-economic rights in their constitutions (e.g. the South African constitution, which was partly modeled after the Canadian Charter). But remember that even though property rights are not directly protected by the Charter, they may still be indirectly invoked through other rights (see for example the use of section 2(b) concerning freedom of expression by the company in the case quoted on p. 14 in the textbook: Irwin Toy v Quebec) Problem 5 Alexandra has been involved in a law suit for several years. She recently sought ―leave‖ from the Supreme Court of Canada. That means that she a) wants the court to hear her appeal. b) wants the court to release her from jail. c) wants the court to reverse its own decision in her case. d) wants the court to appoint a new lawyer to work for her. e) wants to appeal the court’s decision in her case to another court. Explain your answer. The correct answer is (a). Note that answer (e) states something entirely different - it suggest that a "leave" from the SCC involves an appeal that will be heard in ANOTHER court. As we know, decisions of the SCC cannot be appealed since this is the highest court in the court system. Keep in mind that the SCC is not the only appeal court available. Cases normally arrive at the Supreme Court after being heard in more than one court (refer to the chart on p. 46). It makes sense to impose certain limitations on the number of times that a litigant may "have her day in court." Problem 6 Please write your answer for question 1 on page 56 in the textbook. There appears to be some confusion here with regard to the conditions for certifying class actions. Class actions are designed to allow similar claims to be resolved in a single set of proceedings. They allow for these cases to be resolved quickly, in the least costly way, and therefore facilitate greater access to justice. But as explained in the text, there are some very strict requirements for the certification of class actions, which aim to make sure that the above goals will be properly served. Salazar’s attempt to commence a class action will probably fail. A court undoubtedly would deny certification and thereby prevent him from proceeding. The first problem, as implied by Richard's question, is that Salazar himself has no personal interest in the litigation. A class action is available only to someone who is among the class of individuals with a right to sue. Salazar, however, has no cause of action against SCI. For the same reasons, Salazar obviously would not be suitable as a representative plaintiff. Secondly, it does not appear that there is any single issue of fact or law that would have to be settled for each of the claims. (It may be, however, that a much small class action would be appropriate for the members of any given category of claimants—eg the employees who were systematically underpaid). Remember: the issues raised by the claim must be common to ALL class members. In this case, we have three different issues to consider, as Anton identified. Therefore, claimants may bring three different class actions, or sue the company individually. Problem 7 The Dark Room Bookstore was recently charged under the Criminal Code with selling magazines that contain photographs of people involved in violent and degrading sexual acts. The owner of the bookstore believes, however, that the government should not interfere in the private lives of its citizens and that he has a right to express his sexuality through the sale of such magazines. Which of the following statements is TRUE with respect to the Charter in this situation? a) because freedom of expression is one of the fundamental rights that is contained in section 2 of the Charter, it cannot be subject to the notwithstanding clause b) Once a court decides that the relevant provision of the Criminal Code does violate the right to freedom of expression, it becomes impossible to save that provision under section 1 of the Charter. c) The Charter is irrelevant in this case because the corporation that owns the store is not a person and therefore cannot claim the right to freedom of expression. d) because the Charter applies only to government actions, it will not apply to this case unless the court is satisfied that at least one of the magazines was sold to a government official e) none of the above Explain your answer. I think that you all may have misread answer (b). This answer is incorrect because it suggests that it is IMPOSSIBLE to save a Charter violation under section 1. As your answers suggest, you realize that Charter rights are subject to reasonable limitations under s. 1. Therefore, the correct answer here as (e) - none of the above. RE: Problem 7 Problem 8 Please write your answer for question 5 on page 26 in the textbook. Each of you identified a Charter violation but I am surprised to see that no one mentioned the relevance of section 1 to the analysis! As you argued, the By-law could be challenged under section 2(b) of the Charter, which guarantees ―freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.‖ Note that the ban included not only poles and posts but "any public property." It can therefore be argued that the by-law violates s. 2 because it creates an *absolute* ban on the applicant’s freedom to communicate to the public about upcoming events. Recall that as explained earlier, while the Charter does not contain general guarantees of ―economic activity", some activities (such as freedom of expression) may be protected even though they are used in furtherance of a business enterprise. Many of the illustrations contained in the text demonstrate that point (e.g. Irwin Toy v Quebec — television advertising; Bill 101 — outdoor signs in Quebec). This would fall under the category of "commercial speech." This type of expression is protected not because it affects the ability of a business to make profit, but more fundamentally, for the purpose of upholding the interest of individual freedom in society. Democracy means, among other things, that individuals have the opportunity to exchange views and information with each other. Free flow of information allows self-fulfillment and informed choices. Advertising products and services makes individuals aware of the options available to them so that they can make intelligent decisions that may affect them financially and otherwise. In this case, clear limits are placed on the ability of individuals to communicate information to each other. These limits on commercial speech appear to be in violation of s. 2(b). So we concluded that s. 2(b) has been violated here. However, even though a law violates a Charter right, it may be still saved under section 1 of the Charter, if it is a ―reasonable‖ limit ―prescribed by law as can be demonstrably justified in a free and democratic society.‖ In the case upon which this question is based, the challenge to the By-law was successful. The Supreme Court of Canada held that the By-law could not be saved under section 1. The court thought that the by-law was drafted too broadly. The city was properly concerned, for instance, that posted advertisements might create litter or ―aesthetic blight.‖ But there was no justification for a complete ban on advertising on ANY public property. The court suggested (just as Jaspreet argued) that the By-law might have properly served its purpose if it had prohibited certain types of advertisements, or limited them to certain types of public property (e.g. utility poles). Assuming that there has been a violation that cannot be saved under section 1, the court would award a remedy. It might be possible to ―read down‖ the by-law by limiting its scope of application. That remedy would, however, require the court to exercise an essentially legislative discretion in deciding which types of advertising were and were not permissible. The better approach (and the one adopted by the Supreme Court of Canada in this case) would be to simply strike down By-law 2720, which means that it is of no force or effect (under s. 52). The city would presumably then enact a new by-law that more narrowly serves its goals and that does not violate the Charter. Thomas, keep in mind that Charter challenges are always brought against government action, and they would often involve an attempt to challenge decisions, policies and laws aimed at the protection of public property or public spending. The fact that the government is attempting to keep public property clean does not mean that Charter claims would be automatically rejected. If a plaintiff can successfully show that a fundamental right is violated, the way to determine whether this violation is "reasonable" and in the public's best interest is through a consideration of section 1 of the Charter Problem 9 Please write your answer for question 4 on page 26 in the textbook. In both cases discussed in this question, the complainants legitimately argued that the remedy should extend not only to themselves but also to ever other person who similarly had been subject to discrimination. In the Hislop case, the argument was accepted in part. Obviously, the payment of pension benefits retroactively for eight years to same-sex couples entailed a substantial financial burden. In NAPE, the court accepted the government’s argument that implementation of a fully retroactive scheme of pay equity was beyond the economic capacity of the Province. In such cases, the court recognizes that there are limits to the government’s ability to give full effect to equality rights, especially in times of financial difficulties. As one Supreme Court judge explained, in making a decision on how far the compensation for discrimination should extend, the government is not ―just debating rights versus dollars but rights versus hospital beds, rights versus layoffs, rights versus jobs, rights versus education and rights versus social welfare.‖ The fact that the financial burden of any judgment awarded against a government body ultimately falls not on the government, but rather on the taxpayers. We could still ask, of course, whether it is appropriate for a court to effectively shift the burden of a Charter violation away from the community as a whole and onto the victims of a Charter violation. Is that a more fair policy? There are no easy answers to these questions, of course. The question invited you to give these issues some additional thought.. Problem 10 Please write your answer to question 3 on page 56 in your textbook. Good job. The lawyer in this question commented on three issues: (i) the right to appeal to the Supreme Court of Canada, (ii) the ability of an appellate court to overturn a finding of fact, and (iii) the ability of an appellate court to overturn a finding of law. Appeal to the Supreme Court of Canada — With a few exceptions (which do not apply here), it is necessary successfully apply for leave to appeal to the Supreme Court of Canada. Note that the SCC will not grant leave simply because a case involves a great deal of money. Rather, they will grant leave only if a case raises an issue of national importance. It is impossible at this point to say whether that is true in this instance, and if so, whether the court would actually agree to hear an appeal. The lawyer was therefore wrong. Findings of Fact — An appellate court, including the Supreme Court of Canada, will overturn a finding of fact only if the trial judge made a palpable and overriding error. That is a fairly high standard. If it is not met, the trial judge’s findings will stand, even if the appellate court thinks that those findings are wrong. The lawyer was therefore once again wrong. Findings of Law — An appellate correct will, however, correct an errors of law that were made by the trial judge. It is the trial judge’s job to get the facts straight. it is the appellate court’s job to get the law straight. Problem 1 Miriam worked as a financial advisor with Acme Investments Inc. Over the period of several years, she stole millions of dollars from the company's clients. She did so by means of a complex and carefully planned series of fraudulent transfers. The company had no reason to believe that anything was wrong until the police arrived one day and explained the entire situation to Acme's president. Which of the following statements is TRUE? a) If the company's clients sue Miriam in tort law, she may be punished by a term in prison. b) If Miriam holds a liability insurance policy, she will be protected from liability, even though she deliberately defrauded the company's customers, as long as she is sued for a tort rather than prosecuted for a crime. c) Acme may be held vicariously liable even though it had no reason to believe that Miriam was acting improperly. d) While Acme may have liability insurance against personal liability, it cannot have liability insurance against vicarious liability. e) The doctrine of vicarious liability means that Acme has a duty to defend Miriam if she is sued in tort. Explain your answer. First rule of thumb: There is always ONE correct answer to the multiple-choice questions you will be asked to solve (unless one of the answers explicitly states, for example, that "answers (a) and (b) are both correct.") If you find that more than one answer seems correct, it means that you have not done a good job of eliminating 4 incorrect statements. As Richard and others explained, the correct answer is indeed (c). Answer (a) is incorrect because while what Miriam has done should perhaps justify a prison term, not just monetary compensation - prison term is not one of the remedies available "in tort law" (-->note the language of answer (a)). The purpose of private law is to ensure monetary compensation for wrongs committed, not to punish for wrongdoing. Miriam may be subject to criminal prosecution as well, since one act could constitute both a tort and a crime, but that would be a separate procedure: a criminal procedure that will be brought to court by the Crown. For that reason, to say that a prison term is an option "in tort law" would be a false statement. Liability insurance normally excludes criminal acts (see discussion in the textbook; Case Brief 3.2). Answer (b) is therefore wrong as well. Criminal acts normally involve intent, or mental guiltiness. These are acts that can be easily avoided (unlike tort law liability, which can be unexpected and unintentional). It would make no financial sense for an insurance company to make fraud an insured interest! Answer (c) brings the importance of risk management to our attention. Employer may be liable for wrongful acts committed by its employees even when it never authorized such acts, and even if it had no knowledge of them (see the extreme example of child molestation in the case of Bazley v Curry). The lesson is clear: given the scope of potential liabilities, employers must carefully screen potential employees, train them properly, and instate appropriate monitoring mechanisms. There are situations where taking all precautions is a good defence from liability (we will see that when we discuss negligence). But once the liability of the employee is established, the employer becomes vicariously liable as well. This is the risk of running a business and it serves as an inventive for employers to do everything in their power to prevent this from happening in the first place. Vicarious liability is definitely an insurable interest, like all tort liabilities; answer (d) is also incorrect. Answer (e) is nonsensical - vicarious liability and the duty to defend are two different concepts, as explained in the text. Problem 2 Until recently, Tamara worked in a warehouse, earning $3,000 a month. She was required to quit her job, however, after being injured in a skiing accident that was caused by Buck. That injury required Tamara to spend two months in the hospital. After being discharged from the hospital, Tamara was further required to complete an intensive physiotherapy program over the course of a month. At the end of that month, her physician told her that while she could not return to work in a warehouse, she should immediately take up employment in a less demanding (and lower paying) job. Nevertheless, for the next two months, Tamara chose to do nothing at all beyond watching television and listening to music. As her financial difficulties deepened, she eventually decided to re-train as a secretary. She therefore enrolled in a full-time, three-month secretarial course. The course was fully funded by the provincial government. At the end of that course, Tamara promptly returned to workforce, this time as a secretary at a salary of $2,000 per month. Exactly one year has now passed since Tamara began working as a secretary. How much is she entitled to receive from Buck by way of damages for lost income in the past? a) $9,000 b) $12,000 c) $18,000 d) $30,000 e) None of the above. Explain your answer. Folks, remember to read the previous contributions to the discussion before making your own. It could help you better understand the question and reorient your thinking. As Hamza explained, the correct answer here was (d). Compensation in tort law, as explained in chapter 3, is backward looking in the sense that the defendant must place the plaintiff in the position it was before the tort was committed. If you follow the facts of the case all the way through, you could see that the correct answer is (d). Tamara is owed $30,000 for lost income in the past. The first thing to notice is that we are specifically told that Buck caused the accident. Therefore, the idea that Tamara was skiing "at her own risk" seems irrelevant here. The court has already established that Buck is responsible for what happened. The other thing to notice is that the question refers only to compensation for loss of income. Tamara may also sue for the cost of medical bills or general damages but that is not asked for in this question. As a general rule, Buck is required to compensate Tamara for the loss of income that she suffered as a result of the tort. Damages will, however, be reduced to the extent that Tamara unreasonably failed to mitigate her losses. It is easiest to calculate the final total in four stages. First, Buck undoubtedly is liable for the loss of income that Tamara suffered immediately after the accident, when she was hospitalized and in physiotherapy, and consequently unable to mitigate her losses by working. That period lasted for three months. Since Tamara lost income of $3,000 per month, she is entitled to receive $9,000. In the following two months, Tamara did not receive any income, but the explanation was not so much Buck’s tort, as Tamara’s voluntary choice to remain idle. Consequently, because she unreasonably failed to mitigate her damages while staying at home for two months, she will be denied compensation for that period. Tamara then missed another three months of work as a result of her decision to re-train as a secretary. So we can establish that she is entitled to compensation from Buck in the amount of another $9,000 for loss of income. Finally, when Tamara did return to work, she did so at a lower rate of pay. She consequently worked for 12 months at a salary of $2,000 per month, rather than $3,000 per month. Buck is liable for the cumulative loss of $12,000 of income ($3,000 - $2,000 = $1,000 x 12 months = $12,000) under this heading. Adding all of the damages together, Buck’s liability for past loss of income is $30,000 ($9,000 + $9,000 + $12,000). Buck will, of course, also be liable for the fact that Tamara will continue to suffer a reduced income in the future, and for the fact that Tamara may have incurred expenses connected to her medical treatment and physiotherapy. Some may think that this is going too far, but if the purpose of tort law is to make Tamara "whole" again, it would involve a compensation that would bring her to her original position (i.e. earning capacity). Therefore, if Buck must bring Tamara to the position she was in before the tort was committed, this means that he has to make up for her reduced earning capacity as a result of the tort. The question asked you to calculate the liability at the point where 12 months have passed since she started working again. This may not be the extent of Buck's liability. A judge would likely add to that amount a calculated lump sum that would reflect the loss of wages in the future (until retirement). Problem 3 Nick was severely injured after he was physically pulled out of Discount Sound. Which of the following statements is TRUE on the basis of those facts? a) Nick cannot possibly succeed in an action for battery if he was trespassing in Discount Sound at the time of injury. b) Nick cannot possibly succeed in an action for battery if he was physically pulled from the store by a police officer. c) Nick can succeed in an action for false imprisonment if he was removed from Discount Sound by an employee of the store who had wrongfully accused Nick of trying to steal a CD. d) Nick cannot possibly succeed in an action for battery if the person who pushed him out of Discount Sound made contact with Nick's jacket, but not with his skin. e) None of the above. Explain your answer. The correct answer is indeed (e). On the facts, Nick was not detained at all; only removed from the store. Therefore, answer (c), which states that "Nick can succeed in an action for false imprisonment if he was removed from the store" makes no sense: since there was no detention at all, such a claim could not succeed. Retailers implicitly invite customers to enter the premises during the hours of operation, but a business may revoke its consent and ask a customer to leave (if they are disturbing the peace, for example). From that moment on, the customer is considered a trespasser if s/he refuses to leave the premises. Some of you were confused by answer (a). Notice the language of this statement. It would be incorrect to say that "Nick cannot possibly succeed in an action for battery if he was trespassing in Discount Sound at the time of injury." As we know from the text, the law allows to use reasonable force to remove trespassers. If excessive force is used, however, the business may be liable for battery. So if excessive force was used against Nick, his claim may be successful. Problem 4 Prem bought a radio from Hedy for $75. He paid with a cheque, rather than with cash. When Hedy tried to obtain payment, however, the bank refused to cash the cheque. The bank explained that the cheque was invalid because it was so poorly written that it was largely illegible. Rather than contact Prem, Hedy immediately called the police and said that Prem had committed the crime of fraud by deliberately writing an ineffective cheque. She also suggested that Prem was likely to leave town soon, and that his crime should therefore be addressed promptly. The next day, the bank unexpectedly contacted Hedy and explained that, following its own investigations, it was clear that the defective nature of the cheque was due to Prem’s sloppiness, rather than any intentional wrongdoing. Hedy thought about passing that information along to the police, but because she was still angry at Prem for causing such a hassle, she decided to remain silent. Later that same day, a police officer arrived at Prem’s house, put him into handcuffs, drove him to a police station, and locked him into a cell. Prem was released several hours later after convincing the arresting officer that while he has dreadful handwriting, he is not a criminal. Upset and embarrassed by the episode, Prem now wants to sue Hedy in tort. Explain whether or not Hedy had committed any of the torts discussed in Chapter 4. I encourage you to start approaching such problems analytically by considering the different elements of each tort when considering the possibility of suing for them. We have two torts to consider here: malicious prosecution and false imprisonment (note that defamation may be relevant but it is not one of the torts considered in chapter 4. After we know more about this tort next week we can revisit this case). The tort of malicious prosecution occurs when the defendant improperly causes the plaintiff to be prosecuted for a crime. Malicious prosecution is, however, difficult to prove. The court has to be satisfied that (i) the defendant started the proceedings, (ii) out of malice, or for some improper purpose, and (iii) without honestly believing on reasonable grounds that a crime had been committed, and that (iv) the plaintiff was eventually acquitted of the alleged crime. In this case, it appears that Prem would be able to establish all of those elements. While Hedy presumably acted appropriately when she first contacted the police (i), her failure to correct the erroneous perception that Prem had committed the tort of fraud was based on her malicious desire to hurt Prem, rather than on an honest and reasonable belief in his guilt (ii+iii). Furthermore, the proceedings against Prem were discharged in his favour when the police dropped the charges (iv). Note that the term "proceedings" in this context is interpreted more broadly - proceedings begin with the police investigation and arrest. Prem could also succeed in an action for false imprisonment. False imprisonment occurs when there is (i) confinement, (ii) within a fixed area; (iii) that is complete, as well as (iv) unjustified. The imprisonment occurred here when Prem was taken into police custody and held in a jail cell for several hours. By the time that those events occurred, Hedy knew that her accusations against Prem were false. Was the confinement "unjustified"? This final element could potentially be established as well. While the arrest and detention was performed by the police, this is not a case in which the defendant simply provided facts to the police and then allowed them to exercise their own judgment, after an investigation, into the plaintiff’s supposed guilt. Instead, Hedy directed the police to apprehend Prem. The fact that the police simply followed Hedy's instructions rather than look into the matter suggests that perhaps it acted negligently. Suing the police in tort could be an option, but the question refers to Hedy's liability only. Problem 5 The Sports Gambling Network (SGN) is a network of radio stations targeted at the growing number of people who are interested in sports or betting or both. Because it is quite new, SGN does not have the financial resources that are available to some of its competitors. The network consequently tries to minimize expenses whenever possible. It recently formulated a plan for broadcasting live sporting events without paying licensing fees to the teams, leagues, and organizations that are involved in those events. SGN’s goal is to acquire (either by purchasing or leasing) properties located near outdoor stadiums and race tracks, to erect observation towers on those properties, and to then broadcast live transmissions of those events. The Association of Professional Sporting Leagues (the APSL) has learned of SGN’s plan and intends to vigorously oppose it. The Association is worried that if SGN is able to broadcast sporting events without first obtaining licences from the relevant teams or leagues, other broadcasters would not be willing to pay substantial amounts for the right to broadcast those same games. The APSL’s position is based in part on its argument that SGN’s plan necessarily involves the commission of several torts. Is that true? Explain whether or not, in carrying out its plan, SGN would commit any of the following torts: trespass to land; interference with chattels; invasion of privacy. As most of you concluded, it does not appear that SGN’s plan would necessarily involve any of the torts discussed in Chapter 4. Once again, remember to break each tort into its different elements: - trespass to land would not be committed by SGN as long as the network operated from premises that it either leased or purchased for itself. That is true even though SGN would be describing the events that it observed occurring on other parties’ properties. The tort of trespass to land requires proof that the defendant either physically entered upon the plaintiff’s land or caused something to do so. - Interference with Chattels would not be committed either. The torts of trespass to chattels, conversion, and detinue require proof that the plaintiff interfered with an object to which the plaintiff was entitled to possess. Since "chattels" are tangible, movable objects, those sorts of torts cannot be committed with respect to ideas or events, such as the state of play in a football game. Make sure you understand how chattels are defined (hint, hint). - Invasion of privacy does not yet exist as an independent tort in Canada. There are, however, increasing indications that such a tort may eventually be adopted. But even if that development does occur, it is unlikely to prohibit SGN’s proposed activities. One of the leading common law cases on privacy (quotes in your book) expressly held that no tort was committed when the defendant broadcast horse races that it observed, from its own property, occurring on the defendant’s land. The courts are reluctant to restrict people from simply watching and talking. Moreover, it is doubtful that the activities that SGN plans to describe could be considered ―private.‖ To the contrary, professional sports teams and leagues earn enormous revenues by charging high prices from people who want to purchase tickets or acquire exclusive broadcasting rights. This is not to say that the SGN cannot be prevented from committing these acts. There could certainly be government regulation preventing them from broadcasting the games in this way. But at common law - out of the torts we considered so far - there will probably be no cause of action available. Problem 6 Please write your answer to question 7 on page 76 in the textbook. It is true that the employer is not liable every time an employee does something wrong, but what were the rules regarding vicarious liability as discussed in the textbook? Clearly, Arpeggio is personally liable for the losses that he fraudulently caused. The doctrine of vicarious liability obviously applies where an employee causes injury as a result of doing something that he was required to do by his employer. Going further, however, and as discussed in connection with Problem 1 above, the doctrine may also apply even though the employee’s tort arose from a breach of his employment contract and even though the employee did exactly what his employer told him NOT to do. Under the rule in Bazely v Curry (discussed in Ethical Perspective 3.1), the crucial questions are whether: (i) the employee’s tortuous behaviour was ―closely connected‖ to his employment duties, and (ii) the nature of the employer’s operation significantly increased the risk of wrongdoing. Both of those factors would be satisfied on the facts. Arpeggio perpetuated the fraud while in the course of purportedly selling insurance for Sonata. Furthermore, by holding Arpeggio out to be its agent, Sonata increased the risk that he would defraud the customers. In the circumstances, the customers had no way of knowing that they were expected to direct their payment cheques to Sonata. Therefore, Sonata Assurance is liable to the customers. The company could then try to collect that amount from Victor, but it is doubtful that they will be successful in collecting much of it in cases such as this. Problem 7 Please write your answer to question 6 on page 98 in the textbook. This question is based on the facts of an old court case in Ontario, and it provides a very useful exercise for understanding the meaning of "intention" in tort law. Understanding what "intention" means in tort law is extremely important because it is not what we normally think of as "intention". The plaintiff does not need to show that the defendant intended to commit the tort (or to cause harm). The protected interests (in this case, property interests) are so important that the law does not ask whether there was an intention to do something wrong - it is enough to prove that the defendant intended to commit the act itself - of entering the property. Therefore, I could be held liable for trespass to land if I enter someone else's land by mistake. Even if I did so only because I mistakenly thought that the land was MINE - I would still be held liable. So as nicely explained by Marjan, Indira is personally liable for the tort of trespass to land. Speedit Delivery is vicariously liable as her employer. While the courts are willing to recognize that a homeowner generally provides implied consent to the receipt of deliveries, that consent does not extend to deliveries that are made to the wrong address. Moreover, it is irrelevant that Indira honestly believed that she was acting properly. If the package had been intended for Anton and he had tripped over - the tort of trespass would become irrelevant. The only alternative, it would seem, is a claim in negligence, and it would be a much harder case to prove as we will see later in the course. Problem 8 Please write your answer to question 5 on page 98 in the textbook. Well done all. It is very unlikely that the man will be able to successfully sue for invasion of privacy. Recall the Supreme Court of Canada's decision in Aubry v Éditions Vice- Versa Inc, where it was decided that the publication of a photograph will constitute an invasion of privacy only under certain conditions. Unlike the situation in Aubry, the photo that was published by the Blacksox merely featured the man as a member of a crowd, rather than as the specific subject of the picture. Moreover, it may not have been feasible for the club to obtain consent from every person in the picture, especially if the photo was one of many taken during the game. Because the events occurred in Alberta, it is not governed by any privacy statute. As discussed in Module 2, the closest an Ontario court came creating a new common law tort in the past was in the case below: http://www.canlii.org/en/on/onsc/doc/2006/2006canlii202/2006canlii202.html Problem 9 Please write your answer to question 6 on page 76 in the textbook. Dave’s position is not as secure as he believes. He is relying upon the doctrine of vicarious liability. As a result of that doctrine, the driver of the other car has an option. She may sue Dave personally or both him and EconoCar (either personally or vicariously as Dave’s employer). Given that the company is far more likely to have resources than Dave, the plaintiff will almost certainly choose the second option. Significantly, however, even if the plaintiff does sue EconoCar, and even if she decides to collect all of her damages from the company, Dave is not ―off the hook.‖ The doctrine of vicarious liability allows the plaintiff to sue the individual tortfeasor’s employer — but it does not relieve the individual tortfeasor of responsibility. Consequently, if EconoCar paid all of the plaintiff’s damages, it could in turn sue Dave for the same amount. Keep in mind that in practice, employers rarely exercise their right to demand payment from employees who commit torts and trigger the doctrine of vicarious liability. Such a practice is bad for morale — it tends to make employees unhappy and nervous. More importantly, employees often simply do not have enough money to satisfy the demand. In that case, the company simply throws good money after bad by trying to squeeze its loss out of the employee. And finally, the employment contract may prohibit the employer from demanding reimbursement. The important point to remember, once again, is that vicarious liability cannot be established before individual liability is established. The company is held liable for a tort committed by its employee only after the commission of this tort is proven in court first. Problem 10 Please write your answer to question 11 on page 99 in the textbook. To sum up and clarify, a number of torts may have been committed by the parties: - If Shelley in fact stole something from the store, she committed the torts of trespass to chattels and possibly conversion against Mary. - Shelley did not commit the tort of trespass to land merely by walking into Mary’s store after school. A shopkeeper impliedly consents to customers coming onto her property. However, when Shelley later returned and threw a garbage can through the store window, she did commit the tort of trespass to land. - Frank probably did not commit the tort of false imprisonment. Note that although some of his actions may have pointed in that direction, the fact remains that Shelley was not in fact imprisoned, physically or psychologically, at any time. - Shelley may have committed the tort of assault against Mary. A resolution of that issue would require a decision as to whether or not Shelley’s words, ―I’ll smack you silly,‖ would have caused a reasonable apprehension of offensive bodily contact. Given the circumstances, the most reasonable interpretation of that statement might be that Shelley was not really threatening to make contact with Mary. - It appears that Frank committed the tort of battery against Shelley. He would, however, have a defence if Shelley actually was in the act of shoplifting. In that situation, Frank would be entitled to use reasonable force to arrest and detain her. - Mary would be held vicariously liable for any torts committed by Frank Problem 1 Slobo
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