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MCS 3040 (111)
Lecture 5

MCS 3040 Lecture 5: MCS3040_ W5(1)

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Department
Marketing and Consumer Studies
Course
MCS 3040
Professor
Joe Radocchia
Semester
Fall

Description
1 th October 17 Week 5: Tort Law 3 Approaches to Tort Law 1. Strict Liability a. Most of tort law is not 2. Fault a. Most of Tort all is under this view 3. No Fault a. Eg. Worker’s Compensation Automobile Insurance a.i. If your injury happens while you are doing your job, and your employer has compensation insurance – you are prevented from suing your employer a.ii. Automobile insurance law – a No-Fault and Fault approach in ON a.ii.1. Gets into car accidence – you are entitled to damages; and under the No-Fault approach you are entitled to claim accident benefits from your insurance – can sue the person who caused it a.ii.1.a. Attended Medical care a.ii.1.b. Housekeeping a.ii.1.b.i. Entitled to these benefits even if you cause the accident [but cant sue the other person as you caused the accident b. Modify judgement law – common law c. Judges decisions in making common law/tort law Fault Based Approach  Plaintiff has the burned of proof to prove that the Defendant is liable on a balance of probabilities o Even if someone intentionally or not intentionally hurt you 3 Categories of Torts: 1. Intentional a. Commit on purpose 2. Unintentional a. Commit not on purpose 3. Hybrid a. Commit on purpose or not on purpose, depends on circumstances looked into  Remedies in Tort Law o Damages  Money; compensation 2  Different types: [of compensation – can ask for any or all these types – some or all may apply to your case]  1. General Pecuniary Damages [Pecuniary – means it deals with money and can be calculated] o Damages that relate to future costs or losses - income loss/care cost/ medical cost  2. General Non-Pecuniary Damages [Cannot be calculated] o Pain and Suffering and the Loss of the Enjoyment of Life  Caused by someone else upon you  Injury you sustain may make prevent you from doing what you were able to do so freely before  May be physical or psychological pain and suffering  Max for suffering – from brain damages, physical, catastrophic events – $100 000 to 340 000 max. [over 38 years] *only for this category  Didn’t want to get into the American ‘influence’  Didn’t want to get into the analysis of ‘some may  3. Special Damages o Past losses  4. Aggravated Damages o Close relationship with ‘Pain and Suffering’  Why you suffered the pain and suffering  Personal to you  Actions of the defendants were aggravating to the point where there should be a separate category to give for one’s loss o Example. Prof’s client – Came in with light bulb to store – security thought he stole it – no – left in stressful and distraught state – Crown withdrew the criminal charges  5. Punitive/Exemplary Damages o Purpose is to ‘punish’/set an example of the defendant’s behaviour to deter the behaviour of the defendant o Civil court’s tool o Set an example that others don’t conduct themselves in this way o $$ goes to the plaintiff – not to compensate the plaintiff, but to punish the defendant 3 o Example. Case in Hamilton  House Fire  Fire Marshal conducts search – says its was accidental and was electrical  People put in a claim for insurance  Insurance company says no – that it was on purpose  Go to lawyer – lawyer hires Forensic Engineer – to set ‘pretend fire’ – got same results as Fire Marshall o Insurance company says no – that they still set the fire  For reasons of wanting the money because they need financial need  Sued for:  Future Loss  Pain and Suffering Damages  Past Costs o All 3 ^ up to 500 000  Punitive Damages - $ 1 000 000  ^ Jury said they were entitled  Insurance Company Appealed  At that point insurance company accepted that it was damages – but not punitative – because theye didn’t act in bad behaviour – malicious, calious, high handed etc.  Appeal felt that the Insurance Company was malicious – reduced damages to 100 000$  Appeals to SCC – Insurance company payed $1 000 000 o Injunction  Asking the court to order another party to stop a certain action or behaviour  Blue Jays – Injection to not allow broadcasters to show the symbol of the logo and of the Cleveland baseball team – because viewed racists  Reason not stated why – will be given in a couple of days o Restitution  When someone has taken something from you – you want it restored to you by the Court 4  Related to Contract law; but you can seek it in Tort law too o Declaration  Ask the court to declare a certain fact/conclusion Intentional Torts  Battery – Assault o Unwanted contact with someone else o Intentional contact o One party does not consent o Battery – in Tort Law  Example – Kiss – no authority  Physical contact with your authority o Assault – in Criminal Law  Assault - Uttering Threats o Threat of physical violence or death o Not the same as ‘Crime’ assault  False imprisonment – Forcible Confinement o Hold someone without their consent o Preventing someone from their free will to leave o Detention doesn’t have to be actually grabbing someone  Deceit/Fraud/Fraudulent Misrepresentation o Where you preciously/knowingly trick someone for your benefit  Ex. Termites - buying a house, but previous owner tells you know termites  Move in and see termites  Trespass o Going onto someone property, or using their property without permission  Trespass to Land/Real property – most common  Going onto someone’s property without their consent o Only when its stated ‘implicitly’/ applied to do so  Otherwise without that implicit/applied authority it is not allowed  If someone is on your property and you don’t want them there o 1. As them to leave 5 o 2. If they don’t, call the police [may not be practical legally, but practically] o 3. [Legally practical – legally entitled – to protect and regain your property] you can physically remove someone  Use appropriate force – equal force  If someone resists – may tug a little, as other person is tugging back  Trespass to Goods  Trespass to Property Act  Ontario – written notice – you can send a letter as to who you don’t want on the property o If someone comes, who you don’t want, and you call the police, you can get fined – if more repetitive – you can go to jail  Can use an injunction too – more expensive  Defamation  Trying to ruin someone’s image in society  Libel – written – includes newspaper, online, magazines, radio, etc.  Slander – spoken – bad mouthing one o If not publicised – not slander; because not in front of anyone  Defences to Defamation o Truth – truth hurts o Fair Comment – common in media – as long as what’s been said is that the person who is writing an article is done so in their ‘honest belief’  Ex. Joe’s Sea Food Only Restaurant  You’re a writer – write complaints – you’re a reviewer – it’s a fair comment if its in your honest belief o Does not cover it done maliciously o Qualified Privilege  Done so more in business, than media  Ex, Hired by LininMart  Report written poorly critique about worker – again, must be done in your honest opinion o Absolute Privilege  Cannot be sued when you can speak truths about someone  Parliament – in government 6  Legislative Body o As long as said in the context of Parliament  Applies in Court Pleadings  Can state whatever you wish  Other party cannot sue you for speaking untruth o They have to prove it in law o If can’t prove it – you can try to get the Court to strike out that section – and award you Costs Hybrid Torts  Can be intentional or unintentional; or can start out unintentional but then intentional o Nuisance --- ususally intentional; but can also be unintentional  Someone is interfering with your enjoyment of your property  1. Private Nuisance o Use of private space – between private property  Noise  Example. Neighbouring Farm and Factory o Minks dying from the noise o Doesn’t matter who’s there first o Courts have said that it is interfering; must balance interest of 2 property owners  Factory was committing an unintentional
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