Tort Law Cases page 40-79.docx

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Western University
Management and Organizational Studies
Management and Organizational Studies 2276A/B
Phillip King

Tort Law Cases – Page 40 – 79 Distinction Between Civil and Criminal Actions • What is the difference between a criminal and a civil action? • Can the same incident attract both types of action? o The case of McSorely, the hockey player charged with assault in a Criminal Proceeding for assault with a deadly weapon in a hockey game – slashing Brashear in the face with his stick o Many behaviors can bring rise to both civil and criminal trials  OJ Simpson was not found guilty beyond a reasonable doubt in Criminal Court, but found responsible for the death of his wife and her friend in a Civil trial proceeding awarding families $47 million CDN  Bar fight involving Eric Lindros was not found guilty of assault beyond a reasonable doubt in Criminal Court, could have led to civil proceedings Intentional Torts • When will the loss suffered by the plaintiff be shifted to the defendant? • When is the Defendant at fault in law? Assault • Assault: the act of creating apprehension of an imminent harmful or offensive contact with a person o I de S et Ux – 1348 a man throws a hatchet at a pub keeper for refusing to open his bar, results in the pukeeper suing for assault and winning, even though the axe never even hit him o Mr. Thibodeau is convicted of assault for holding an axe while in an argument with his wife Battery • Battery: tort of intentionally (or, in Australia, negligently) and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them (e.g. a hat, a purse) • Malette v. Shulman (Ontario Court of Appeal, Mar. 30, 1990) o Mrs. Mallette was injured in an automobile accident o She had on her person a card indicating that she could not accept blood transfusion due to her religion o She won the case and was awarded $20,000 in damages for Tort of Battery by Shulman (the doctor) o The Court of Appeal dismissed the appeal stating that a competent adult has the right to withhold treatment, even in the face of emergency or death o The right to determine what shall be done to one’s own body is a fundamental right in our society o In this case the Doctor has committed the tort of Battery • Aside Case: Fortey (Guardian ad Litem) v. Canada (A.G.) (B.C. Court of Appeal, May 10, 1999) o Police officers found negligent in not overriding a mans refusal of medical treatment (man was drunk, aggressive, profane and obstinate) o They had to walk the line between committing battery against the individual by forcing him to receive treatment, and face negligence for not taking him in at all • Cyclist is injured from falling off his bike while being water gun attacked by pranksters  pranksters were found liable of “assault and battery” for all damages sustained • Defense of Consent – Halushka v. the University of Saskatchewan et al. o A University researcher/doctor is found guilty of “trespass of person” when a study went wrong o The student suffered cardiac arrest during a procedure o Even though he consented, he stated that the doctors did not fully explain to him the probable effects and risks of the study o Court sided with the student Conversion (Trespass to Chattels) • Conversion: a voluntary act by one person inconsistent with the ownership rights of another • Mohtadi v. Canada Trust (B.C. Court of Appeal, October 9th, 2002) o Canada Trust drilled into the security deposit box of a client and withheld the contents (diamonds) as lien for not paying the fees associated with the box o Resulted in awards for damages for the tort of conversion, as well as aggravated and punitive damages Deceit • Deceit: (AKA Fraudulent Misrepresentation) is when a deceitful representation is used to induce a person to enter a contract Defamation • Defamation: The communication of a false statement that harms the reputation of an individual, business, product, group, government, religion, or nation • Hill v. Church of Scientology of Toronto (Supreme Court of Canada, July 20, 1995) o Church of Scientology lawyer, Mr. Manning stood on steps of Osgoode Hall in Toronto, wearing his lawyerly robes, as he spoke of a motion they would bring against Mr. Hill regarding accusations of misleading a judge and breaching orders of sealed Church documents o Mr. Hill is now suing Mr. Manning and the church for defamation, resulting in $1.6 million in total damages awarded o In the appeal, the SCC has a number of factors to consider  Since Mr. Hill is a crown attorney and representing the government, Mr. Manning states it is a Charter right to freedom of expression in regards to discussing the gov’t of Canada • SCC ruled that since it was more of a personal attack on Mr. Hill, not the gov’t Canada, the Charter rights do not apply (Only binding for Gov’t not to infringe these rights not persons)  Two clashing rights to freedom of expression (which is usually upheld by trial courts, regardless of gov’t involvement), and right to protect ones reputation • Courts must decide which principle is more valuable/important • New York Times v. Sullivan was a US Supreme Court decision that stated the NYT could make defaming comments as long as they did not know they were false, and were not malicious in their presentation o Actual malice principle – to establish libel you must prove the claimant had knowledge the info was false or that it was published with reckless disregard to whether it was false or not • SCC rejected this principle – the law of defamation is essentially aimed at the prohibition of the publication of injurious false statements  Manning argued the defense of qualified privilege: that he has the right to defend his clients to the best of his ability, which can sometimes include making defamatory statements about the plaintiff • However this is not absolute, and in this case the dominant motive for publishing these statements was actual or express malice • Malice: spite or ill-will, can also be any indirect motive or ulterior purpose that conflicts with the sense of duty or mutual interest o Appeal was upheld including all the original $1.6 million plus costs • CBC has been successfully sued for defamation twice by doctors who were seen as “the villain” or a “a bad guy” on one of their programs A look at what constitutes “Malice”, and what affect it have on the decision? • Hodgeson v. Canadian Newspaper Co. Ltd. (Ontario Court of Appeal, June 22, 2000) o Reporter stated that Hodgeson, acting as the engineer commissioner of York Region, bought land from a friend that was not entitled to an exchange of money or an actual purchase (they should have got it for free) o The plaintiff was awarded $880,000 for special, general and punitive damages o Malice is the state of mind in the publisher and often hard to prove so establishing proof is often done through:  Defendant knew the statement was untrue, or  Was reckless with respect to its truth, or  The defendant had some improper motive or purpose  (Also been established) where defendant did not believe themselves the statements they were publishing o Appeal Court found that the intent of story was not to report the facts but to release a “Sensational Story” and therefore was malice o Special Damages were awarded and upheld by the appeal court as the plaintiff’s (respondent) termination was a reasonably foreseeable event of the publication o Punitive Damages are supposed to be awarded only in extreme cases, so the Appeal court decided not to uphold the trial courts punitive damages judgement False Imprisonment • False Imprisonment: restraint of a person in a bounded area without justification or consent, elements in Canada are: o Deprivation of liberty o Against ones will o Caused by the defendant • Nichols v. Wal-Mart Canada Corp. (Ontario Supreme Court of Justice, January 20, 2003) o Ms. Nicols was shopping with her landlord. She lifted a camera off a taller shelf and handed it to her landlord. She then walked off to look at other merchandise, while the landlord put the camera and other items in his pocket o On their way out they were both grabbed and dragged the length of the store and brought to the security room, where they were detained o The landlord was charged with theft, while the charges against the plaintiff were withdrawn o The defendant has the right to detain anyone, under citizens arrest whom they find committing an indictable offence [Section 494(1)] – there is no provision for “reasonable and probable grounds” they must know for certain that a crime has been committed o Justice Cumming found in Kovacs v. Ontario Jockey Club – Criminal code states crime must have actually have been committed by the plaintiff, while in common law it is sufficient that there were reasonable and probable grounds to believe that the plaintiff was guilty of the crime so long as it is proven the crime was committed by someone o Courts found the defendant was justified in detaining the plaintiff because a crime was actually committed (by Mr. Thorne, the landlord) • Parlee (Guardien ad Litem of) v. Port of Call Holdings Ltd. (B.C Supreme Court, March 30, 2000) • Case Facts o Manager of a store detained a minor, Mr. Parlee, for accusation of him stealing some milk o Parlee sued for false imprisonment o Manager says it was a lawful citizen arrests • Decision o The small claims court dismissed the tort saying that the arrest was lawful for him stealing the milk o The Trial courts, acting in appeal, reversed the decision and awarded the plaintiff damages o The Legal Principle for a citizens arrest to be lawful, two things need to be satisfied 1. You have to believe that a crime has been committed, an indictable offense (subjective test) 2. The private person effecting the arrest had reasonable ground for believing and did believe that the person arrested had committed the indictable offense (objective test) o The Manager admitted that he didn’t know for sure if the plaintiff had stolen, therefore the second point was not satisfied o To arrest only for the purpose of interrogation is unlawful o Damages are awarded in the amount of $500 to the plaintiff • Important Take Away o The Procedural process of small claims courtTrial Courts for appeal o Judges need to apply the law to the facts, need to take away all the subjective assessment of the conduct (everyone knows Parlee took the milk), but he simply needed to apply the law to the facts Injurious Falsehood (Trade Libel) • Fraud • Scientist Mr. Zanakis was convicted of fraud for attempting to extort $5 million from McDonalds for finding a rate tail in his sons French fries… He was found a fraud when evidence was found that the rat tail matched the same type of albino rats used in his lab Misappropriation/Breach of Privacy • Note: In some provinces this tort may be codified (Privacy Act, RSBC) • Many celebrities have sued companies for using images of them to sell products without their permission • NFL players are being sued for peeping into cheerleaders locker rooms Nuisance • Nuisance: means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") or private • In Pyke et al. v. Tri Gro Enterprises et al. neighbors successfully sued the owner of a mushroom farm for nuisance, in regards to the horrible smell emanating from the farm property Trespass • Trespassing: Defendant enters onto plaintiff’s property, the defendant does not have the occupiers express or implied consent • One case in California court found that a barrage of emails sent to the employees of Intel from a disgruntled former employee were found to be an illegal form of trespassing.. Judge compared Intel’s computer system network to property lines Negligence • Questions o What must a plaintiff prove in order to win an action for negligence? o If the plaintiff proves the defendant owed a standard of care, fell below the std., and cause the plaintiff forseeable damage, does the defendant have any other arguments that may result in the court dismissing the claim, or forcing the plaintiff to absorb some of his or her loss? Duty of Care Did the defendant owe the plaintiff a duty to be careful? • M’Alister (or Donoghue) v. Stevenson (House of Lords, 1932) o An English Common law case that has been closely followed by Canadian common law o A man finds a snail in his ginger-beer and attempts to sue the manufacturer for negligence o Many of the principles of duty of care were brought up in this case, anyone owes a duty of to someone who is reasonably foreseeable to be affected by acts or omissions of that individual – this includes persons they have no contact with  Proximity not be defined by physical proximity – but to o This was the first case that stated the manufacturer owed a duty of care to the consumer • John et al. v. Flynn et al. (Ontario Court of Appeal, June 28, 2001) • Case Facts o Flynn struck John while drunk driving o He had driven home from work drunk, had a few more beers at home, and then went out again where he struck John o Flynn was the employee, and John is suing Flynn’s company because his employer knew he had a drinking problem o John argues that Flynn’s employer has vicarious liability because he was drinking on company time, even though they did not know he was drinking on company time but knew he was an alcoholic • Decision o Modern approach to determine existence of a Duty of Care  Is there a significantly close relationship between the parties… so that in the reasonable contemplation of the authority, carelessness on its part might cause damage to that person? If so,  Are there any consideration which out to negative or limit (a) the scope of the duty, (b) the class of persons to who it is owed, or (c) the damages to which a reach of it might arise o Also must consider if there is a causal connection between the defendants allegedly negligent conduct, and damages suffered by the plaintiff  The relationship between the parties establishes whether a duty of care is owed, while conduct is used to assess if the standard of care was breached o The company does not owe John a duty of care because the result was not a foreseeable consequence o If he had injured John on the way home from work than the result might have been different, they would have owed the duty of care (this statement is obiter of the case – not ratio to this decision, and not binding on lower courts, but is very relevant and persuasive) • Relevant Look Today o Social hosts (those who are not making money from the event, just parties) have never been sued for damages, while commercial hosts or things like office parties have often been found liable to owe a duty of care o Another case, Zoe Childs, was struck by a 3 time convicted drunk driver who was 2 times the legal limit. The man was leaving a social host party who did not supply him alcohol or know that he was convicted felon o Supreme Course said in Obiter – This does not mean that the Social Host is not liable, had the facts been different there could have been a duty of care Standard of Care Was the Defendant’s behaviour below the standard of care owed? • Kingston hospital a man was killed because a food IV was put into his veins, causing heart attack • Donald Parkes, a man with history of mental illness was killed due to the negligence of a nurse who overinflated his lungs when he was brought in on anti-depressant overdose o Damages were decreased because the deceased had a history of mental illness and therefore had a “lower life expectancy” Suppliers • Ontario New Home Warranty Program v. Bertrand (Ontario Court of Appeal, 2001) o 139 homeowners and their 18 insurers sued Bertrand construction and lafarge Inc. when home foundations permanently deteriorated o Award damages of $16 million, 20% at fault to the contractor (for BoC) and 80% to the supplier for negligence in failing to test the concrete o Ontario Court of Appeal upheld decision Doctors • Giovanni Fiorino was Mr. World Hot Body Finalist and Exotic dancer who was bitten by a dog. The doctor who attended to the wound fell below the requisite standard of care causing Fiorino to develop a bone infection o He could no longer workout, work as a highly paid exotic dancer and was therefore awarded damages of $51,950 Occupiers of Premises • Softball player was not awarded damages for slipping on goose poop while playing on a community field – the town was not found negligent for failing to post signs, keep the geese away or clear the field • Owners of sporting venues owe a duty to take reasonable care to see that persons on premises are reasonably safe – the attendee assumes some of the risk • Owner of an apartment building was found 40% at fault when a tenant broke his ankles when using the fire escape ladder – he owed a standard of care to instruct tenants on the use of the ladder o The tenant received 60% because his actions in trying to dislodge the ladder were not acts of a reasonable person City Contractors • Ingles v. Tutkaluk Construction Ltd. et al. (Supreme Court of Canada, 2000) o Case Facts  Liability of a public authority for breach of his duty of care in the exercise of a function that it has undertaken pursuant to a policy decision to that effect  Tutakaluk is the construction company, and began work on Ingles house without a permit, Ingles had knowledge of the fact there was not yet a permit  The inspector could not easily see the underpinnings, and relied on the assurances of the contractor  The owner experienced basement flooding’s on project completion, later found to be to the negligent actions of the first construction company Tutkaluk (underpinnings were only 6 inches as apposed to 24 they should have been)  Trial judge found city owed a duty of care of 14%, Tutkaluk 80% and the owner/Ingles 6% • Appeal court reversed decisions stating owners were not owed a duty by the city because they allowed construction without a permit o Duty of Care  2 questions must be asked in determining whether a private law duty of care is owed 1. Is there a sufficiently close relationship between the parties (the local authority and the
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