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Chapter 4

LAW 122 - Chapter 4 Notes.docx

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Law and Business
LAW 122
Theresa Miedema

Chapter 4 Intentional Torts (TEXT PG: 82) - Assault & battery - Invasion of Privacy (HANDOUT) - False Imprisonment - Trespass to Land - Interference with Chattels - Defences to Intentional Torts • Complete Defences • Partial Defences INTENTIONAL TORTS (TEXT PG: 83) Involve intentional, rather than merely careless, conduct EX: defendant can be held liable for battery if they deliberately punched the plaintiff. TORT LAW’S DEFINITION OF INTENTION; - It is enough that defendant knew a PARTICULAR ACT would have PARTICULAR CONSEQUENCES - Plaintiff DOES NOT HAVE TO PROVE that the Defendant intended to cause harm or commit tort - EX: build a fence on someone else’s property; intention tort of trespass to land - Court has adopted BROAD DEFINITION OF INTENTIONAL - RISK MANAGEMENT: know as much as possible about consequences Assault and Battery IN TORT: two different meanings separate from each other ASSAULT: occurs when Defendant intentionally causes Plaintiff to reasonably believe that offensive bodily contact is imminent - NOT BASED ON PHYSICAL CONTACT (based on belief that such contact will occur) - Tort designed to KEEP THE PEACE, discourage people from doing this - REASONABLE BELIEF is all that is needed - Plaintiff must have believed that BODILY CONTACT IMMINENT - Even if Defendant knew they wouldn’t hurt Plaintiff; a threat of offensive contact would be made BATTERY: consists of offensive bodily contact - Claim for assault usually joined by claim for battery - Not strictly limited to BODILY CONTACT EX; Defendant caused bullet or knife to contact Plaintiff - Not every form of contact is offensive - Brushing past someone is not battery - KISSING ME WHEN I OBJECT IS A BATTERY - COULD BE BATTERY EVEN IF CONSEQUENCES WERE BENEFICIAL; • EX: doctor performs blood transfusion on Jahova Witness; card in wallet says against religion to have blood transfusion and do not proceed - VERY IMPORTANT FOR BARS AND BOUNCERS/other forms of crowd control to understand tort of battry Invasion of Privacy **No general tort for invasion of privacy Reluctance to recognize as tort: - Freedom of expression - Freedom of information - Must define concept of privacy in a way that is fair for both parties - Hard to valuate compensation for embarrassment ($$$) PRIVACY IS INDIRECTLY PROTECTED BY OTHER TORTS; (TEXT PG: 86) - Trespass to land; sneaking onto someone’s property and taking candid photos of them - Breach of confidence; employee that publishes embarrassing details of their employer’s private life - Abuse of private information; photo published of celebrity coming out of Narcotics Anonymous centre - Misappropriation of personality; unauthorized use of celebrity image used by company to sell product - Negligence; publishing name of cop sexually assaulted during undercover ops despite judge ordering not to HANDOUT In Canada; 4 PROVINCES HAVE CREATED STATUTORY TORT OF INVASION OF PRIVACY; NEWFOUNDLAND, MANITOBA, SASKATCHEWAN, BRITISH COLUMBIA) EX: NEWFOUNLAND: - It is a Tort, actionable without proof of damage, per a person to willfully and without claim of right to violate privacy of an individual - Person is entitled to an amount of information that is reasonable in the circumstances, regard given to lawful interest of others - Determining if act constitutes violation of privacy, must regard nature, incidence and occasion of act or conduct of relationship, (domestic, other) IN ONTARIO: COURT OF APPEAL RULED IN JONES V. TSIGE 2012 TOR OF INTRUSION UPON SECLUSION NOW EXISTS IN ONTARIO. (1 of 4 torts of privacy in America). Jones vs. Tsige; - Intrusion upon Plaintiff’s seclusion or solitude, or into his or her private affairs - Public disclosure of embarrassing private facts about Plaintiff - Publicity which places Plaintiff in a false light in public eye - Appropriation for defendant’s advantage of the Plaintiff’s name or likeness - FOCUSED ON INTRUSION UPON SECLUSION - Court perceived Defendant’s actions as • Deliberate, Prolonged, Shocking CHARTER JURISPRUDENCE RECOGNIZES THAT PRIVACY IS A RIGHT THAT UNDERPINS MANY OF THE RIGHTS AND FREEDOMS RECOGNIZED IN THE CHARTER. **MAJOR TECHNOLOGICAL ADVANCES POSE A NOVEL THREAT TO PRIVACY. INFORMATION IS ROUTINELY COLLECTED, AGGREGATED AND IS ACCESSIBLE IN ELECTRONIC FORM. RESTATEMENT (SECOND) of Torts: “one who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy if the invasion would be highly offensive to a reasonable person (PARA 70) Key Features of Tort of INCLUSION OF SECLUSION: - Defendant’s actions were intentional or reckless - Defendant has invaded the Plaintiff’s private affairs or concerns without lawful justification - A reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish ***Courts make clear: IT IS NOT NECESSARY TO ESTABLISH THAT THERE HAS BEEN HARM TO A RECOGNIZED ECONOMIC INTEREST IN ORDER TO ETABLISH A CAUSE OF ACTION FOR THE TORT OF INCLUSION OF SECLUSION. SIGNIFICANCE OF DECISION; 1. Highly offensive or causes distress, humiliation, or anguish 2. Not enough to establish that Plaintiff actually experienced deep humiliation or anguish 3. A reasonable person in his or her position would have experienced deep humiliation or anguish 4. Common law evolves to meet the demands of a changing society 5. Integration of charter values False Imprisonment Occurs when a person is confined within a fixed area without justification. - An actual prison is not necessary; can be trapped in a car, room, boat, etc. - Confinement must be practically complete - Not committed by obstructing a path - Plaintiff cannot easily escape - PHYSICAL NOT NECESSARY; CAN BE PSYCHOLOGICAL • EX: confronted by a person in uniform making a serious demand; people feel they have no choice • Did they choose to go to the backroom after being caught for stealing, or were they forced psychologically to go (liability vs. no liability) - Using a police officer to address such a situation eliminates the risk of liability - Cannot DIRECT officer to make arrest, only state facts of situation TORT OF MALICIOUS PROSECUTION: (TEXT PG: 88) Occurs when the Defendant improperly causes Plaintiff to be prosecuted - Focus on subject to criminal proceedings, not on imprisonment - If the business concocted a story that convinced government to have plaintiff arrested - Difficult to prove - Only false when done without authority - Court must be satisfied with: • Defendant started proceedings • Malice or improper purpose shown by Defendant • Beli
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