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Lecture 2

LAW 122 Lecture Notes - Lecture 2: Self-Defense, Contributory Negligence, Liability Insurance

Law and Business
Course Code
LAW 122
Stan Benda

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Week 2 (Chapter 3 & 4) 1
Question 1.
Do you believe that privacy interests should be protected by tort law? Is it fair to
argue that a tort of privacy is starting to be recognized in Canada? Explain.
Answer 1.
This question specifically asked for a discussion of a privacy tort. As such, while
answering this question properly involves making reference to the roles privacy
interests and privacy law play in our lives today it also requires specifically
discussing privacy in the context of torts: e.g. the approach the Ontario courts, in
particular, have taken in developing a privacy tort in the case of Jones v. Tsige (i.e.
“inclusion upon seclusion”).
There is no “right” answer to this question, so key to answering it will involves
discussing the pros and cons of a tort of privacy, as well as the current state of the
law. Issues that can be considered in this context include the following:
while the Ontario courts have now recognised the tort of
intrusion, Newfoundland, Manitoba, Saskatchewan, and British
Columbia have all created a statutory tort of invasion of privacy. The
distinction between these 4 provinces and Ontario is that in Ontario the
courts decided to recognise a tort (which is an example of the common law in
action) whereas the legislatures in the other 4 provinces expressly passed
laws (i.e. statutes) that state that such a tort exists.
the tension between how to balance freedom of expression and freedom of
information with individual privacy concerns.
how privacy is a more salient issue today when it is arguably much easier to
violate someone’s privacy (e.g. social media, the reach of the internet, etc.).
The textbook discusses a tort of privacy on pages 85-87.
Question 2.
Steven works the day shift as a security guard at a suburban shopping mall. His days
are generally slow and uneventful and he wishes he could find more excitement at
work. Last Thursday, however, there was a great commotion in the mall as a crowd
of shoppers came fleeing out of Boris' Books n' Things, quickly followed by the
owner of the store, Boris, who was yelling loudly "I saw you, you in the grey jacket! I
saw you stealing those books!" Steven, finally happy to have something exciting to
do during his shift, tackled the first person near Boris' Books n' Things that he saw
wearing a grey jacket. Steven grabbed this customer, named Kurt, into his office,
locking the door and loudly demanding that Kurt hand back the stolen goods.

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Week 2 (Chapter 3 & 4) 2
Once Kurt is finally able to leave the mall, what torts, if any, might Steven be liable
for against Kurt? What defenses might Steven have against any such torts?
Answer 2.
The torts that this question raises are the following: (a) assault, (b) battery, and (c)
false imprisonment. All of these are intentional torts, which means that for there to
be a tort, the defendant needs to have intended particular consequences, even if
they did not mean any particular harm. Such intention which appears to be the case
on these facts, as Steven deliberately tackled Kurt and deliberately retained Kurt in
his office. The defences to these torts that are suggested by these facts are (y) legal
authority and (z) necessity.
To answer this question properly, you therefore need to (a) identify one or all of
these specific torts, (b) explain why you think that Kurt might have a valid claim (or
not) for any of them, and (c) discuss whether Steven may successfully raise any
defences to these torts. .
The key issues that can be discussed in respect of these torts are as follows:
Assault: the tort of assault requires a reasonable belief of imminent bodily
contact. Importantly, this tort does not require any actual bodily contact.
Hence, in order for Kurt to be successful with this tort, he would have to
show that he was aware of the possibility of imminent bodily contact. So, for
example, if he was looking straight at Steven and saw him jumping towards
him, it would be reasonable for Kurt to believe that Steven was about to
make bodily contact with him,. If, however, Kurt has his back turned away
from Steven and Steven jumped him from behind, such that Kurt was not
aware of the possibility of the bodily contact until he was hit, this would be a
difficult tort to prove.
Battery: this is arguably the the most obvious tort here, as it requires
offensive bodily contact. On these facts there was clearly bodily contact due
to the tackle. This bodily contact can reasonably be considered to be
offensive as such bodily contact is not ordinary course inoffensive daily
contact (e.g. brushing up against someone in an elevator) and is the type of
bodily contact that society frowns upon.
False imprisonment: this tort occurs when there is unjustified confinement
within fixed area. Such confinement can be either physical or psychological:
in this case, Kurt was physically confined in Steven’s office by Steven locking
the door. And it is that office that constitutes the fixed area required for the
tort. As to whether such confinement was unjustified. That is likely the case
here as private citizens, such a security guards, can only make an arrest if a
crime is actually being committed by the suspect; it is not enough that there

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Week 2 (Chapter 3 & 4) 3
is a reasonable suspicion that a crime has been committed. On these facts, all
that we know is that both the person who shoplifted wore a grey coat as did
Kurt. There is nothing showing that Steven knew that Kurt committed any
crime; at most, he might have a reasonable suspicion, but that is not enough
to allow for a private citizen to confine someone.
The key issues that can be discussed in respect of these torts are as follows:
Legal authority: Steven’ argument he was that he had the legal authority to
arrest and thus detain Kurt on suspicion of shoplifting. As the discussion
above shows, however, as a private citizen with no knowledge of an actual
crime, Steven could not be seen as acting under any legal authority.
Necessity: Steven may try to argue that his tackling Kurt was necessary
because of an emergency. Here, you would have to argue that the shoplifting
was such an emergency that he had to detain Kurt who was in his mind, a
reasonable suspect. As noted on page 99 of the textbook, however, necessity
is a rare defence and requires a true emergency in order to be engaged (e.g.
being a defence to a trespass where the trespasser had to do so to save their
own life) - as such, it might not be reasonable for these facts to constitute
such an extreme emergency where this defence would be recognised. .
This question represents an overview of the different concepts discussed across
Chapter 4 of the textbook.
Question 3.
In charging across the mall to tackle Kurt, Steven accidentally knocked over Kenji,
another shopper. Kenji was hit so hard by Steven, who did not even stop to help,
that he flew across the floor, breaking one wrist. In trying to get up on his feet to
reach for a pay phone to call for help, he ended up breaking his ankle.
Notwithstanding the significant pain he was in, Kenji waited 3 days before going to
the hospital to see what was wrong. Because Kenji waited so long before going to
the hospital, he ended up having to miss 4 weeks of work rather than the 2 weeks he
would have had he gone to the hospital immediately.
Is there any tort Kenji could sue Steven for? Alternatively, is there anything Kenji
could sue Mega Malls Inc., the owner of the mall and Steven's employer, for?
Answer 3.
In terms of the torts Kenji might raise against Steven, the ones suggested by these
facts are (a) assault, (b) battery, and (c) negligence.
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