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MCS 3040 (228)
Chapter 12

Chapter 12

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Marketing and Consumer Studies
MCS 3040
Joseph Radocchia

Chapter 12: Other Torts Midterm Notes Tort and Property Use • Tort actions may arise in relation to property in a number of ways, most commonly when the occupier of the property harms others • Occupier: Someone who has some degree of control over land or buildings on that lamd • An enterprise conducting business on property is an occupier, whether it is the owner, a tenant, or a temporary provider of a service • It is possible to have more than one occupier of land or a building Occupier's Liability • Occupier's liability describes the liability that occupiers have to anyone who enters onto their land or porperty • This area of the law vaires by jurisdiction Liability at Common Law • The liability of the occupier for mishaps on property is not determined by the ordinary principles of negligence • Liabilitry is determined by classifying the visitor as a trespasser, licensee, invitee, or contractual entrant • Each class is owed a different standard of care, with the trespasser being owed the lowest standard and the contractual entrant being owed the highest • Invitee: Any person who comes onto the property to provide the occupier with a benefit such as store customers and delivery or service personnel ◦ Occupier owes a slightly lower duty to the invitee than to the contractual entrant ◦ He must warn the invitee of any “unusual danger, which he knows or ought to know” There is no requirement to warn of usual or common danger that “ordinary reasonable persons can be expected to know and appreciate” • Licensee: Any person whose presence is not a benefit to the occupier but to which the occupier has no objection ◦ Might include guests invited to someone's property for a social occasion • The general rule is that occupiers are responsible to licensees for any unusual danger of which they are aware or that they have reason to know about • The latter part of the rule is a recent addition and tends to blur thr distinction between the duty owed an invitee and the duty owed a licensee • Trespasser: Any person who is not invited onto the property and whose presence is either unknown to the occupier or is objected to by the occupier. Ex. Burglar ◦ An occupier still owes some responsibility to a trespasser ◦ The occupier will be liable for any act done with the deliberate intention of doing harm to the trespasser, or an act done with reckless disregard for the presence of the trespasser ◦ Though the trespasser is not owed a common law duty of care, the occupier does owe him “at least the duty of acting with common humanity towards him” (relating to donoghue v stevenson case) ◦ Though a trespasser is owed a very low duty, courts have often mitigated the harshness of this result, particularly when the trespasser is a child Liability under Occupiers Liability Legislation • In the context of Ontario's occupiers Liability Act, the legislative purpose was “to replace the somewhat abotuse comon law of occupiers liability by a generalized duty of care based on the “neighbour” principle set down in Donoghue v. Stevenson • Legislation across the country provies for a high duty of care- equivalent to the negligence standard – to be owed to entrants who are on the property with express or implied permission (at common law, contractual entrants, invitees, and licensees) • Responsibility to trespassers differs among the various statutes • An occupier must not create deliberate harm or danger a READ CASE ON PG 275 The Tort of Nuisance • The tort of nuisance address conflicts between neighbours stemming from land use • Nuisance: Any activity on an occupier's property that unreasonably and substantially interferes with the neighbour's rights to enjoyment of the neighbour's own property • It concerns intentional or unintentional actions taken on one neighbour's land that cause harm of some sort on another's ◦ Example: • Noise from a steel fabricator's 800-ton press seriously interupts the neighbours sleep • Ashes and unpleasent odours escaping from a rendering company because of dated technology are carried onto neighbouring properties • The focus of nusance is on one's right to enjoy the benefits of land/property uninterupted by the actions of neighbours • General test is whether the impugned activity has resulted in “an unreasonable and substantial interference with the sue and enjoyment of land” • In striking a balance between the respective parties, courts have developed the following guideliunes: ◦ Intrusions must be significant and unreasonable ◦ Nusance typically does not arise wehre the intrusion is only temporary ▪ Example: Construction and demolition may be unpleasent, but are likely to be considered temporary and will not lead to a remedy in nuisance ◦ Not all interests are protected by the tort of nuisance ▪ Example: The right to sunlight is an unprotected interest as far as the law nuisance is concerned ◦ In nusiance actions, courts will consider tradeoffs in interest. When the noise in question is reasonable and for the public good, the action in nuisance will fail Environmental Perspective: Statue Law and the Common Law of Nuisance • One difficulty with the comon law of nuisance is its in felxibility • In otder that tradeoffs could be made in land use, governments began to enact environmental legislation of an increasingly sophistcated and complex nature • Such legislation seeks to balance economic development with a degree of “acceptable” environmental damage • Municipal and land-use planning laws have put further constraints on what kind of activity can occur on the land affected • Though legislation has therefore displaced some of the importance of common law nuisance from an environmental perspective, nuisance and other tort actions can be nonetheless regarded as Canada's origninal environmental law Trespass to Property or Chattels • The tort of trespass protects a person's possession of land from “wrongful interference” • Trespass: The act of coming onto another's property without the occupier's expreess or implied consent • Trespass arises in several ways: ◦ Aperson comes onto the porperty without the occupier's express or implied permission ◦ Aperson comes onto the property with the occupiers express or implied consent but is subsequently asked to leave.Any person who refuses to leave becomes a trespasser ◦ Aperson leaves an object on the property without the occupier's exprees or implied permission • The tort of trespass is important for resolving boundary/title disputes and more generally for protecting property rights • Also protects privacy rights and the right to “peaceful use of land” • Trespass is actionable without proof of harm or damage • In exceptional cases where the occupier suffers monetary damages due to another's trespass, however, those damages are recoverable • More commonly, the plaintiff will seek an injunction requiring the trespasser to stop trespassing • Provincial legislation in several jurisdiction also provides for fines agains the trespasser Tort from Business Operations Torts Involving Customers • Most important tort arising in this context: negligence • Product liability, motor vehicle accidents, alcohol-related liability, and negligent misrepresentation are examples of negligence affecting the business/consumer relationship Flase Imprisonment • Flase Imprisonment: Unlawful detention or physical restraint or coercion by psychological means ◦ Occurs most often in retial selling ◦ Arises where any person detains another without lawful justification • In order for a false imprisonment to have occurred, the victim must have been prevented from going where he has a lawful right to be • The tort includes phyiscally restraining that person or coercing them to stay by psychological means • To defend against the tort of false imprisonment, the retailer and/or its employees must show legal authority to detain, typically under Section 494 of Criminal Code • While there is some legal controversy on this matter, the bulk of the case law requires the following to be established as a defence: ◦ Reasonable grounds to detain the person ◦ Proof that a crime such as theft or fraud (or oteher indictable offence) was committed • Asuspicion that someone committed a crime is not a justification under statute law for the restraint • When they detain a cusomter in a reliance on Sectio
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