7. The Tort System

Intentional Torts

Intentional torts require that the wrongdoer knew or ought to have known that their actions would cause injury or damage. Although intentional torts consist of deliberate actions, acts of omission may also count. Omission can constitute an intentional tort if the defendant has a specific duty to act and fails to do so, resulting in damages to the plaintiff. For example, if a person has a legal duty to protect someone else, such as a doctor has a duty to protect a patient, and they fail to do so, they may be liable for an intentional tort. Similarly, if someone is aware of a dangerous situation and fails to take action to prevent it, they may be liable for an intentional tort.

Assault – Assault is an intentional tort in Canadian law that occurs when a person intentionally causes another person to fear for their safety. This fear can be physical, psychological, or emotional in nature. In order for an assault to be legally defined, there must be a reasonable apprehension of harm from the perpetrator. Assault includes any physical contact, threats of physical contact, or any act that would put someone in fear of physical harm. In addition, assault may also include words or gestures that are meant to intimidate or threaten another person. It is important to note that assault does not require any physical contact to be made, and that the intention to cause fear is the key factor in determining whether or not an assault has taken place.

Battery – Battery is the application of force to another that results in harmful or offensive conduct. It includes any non-consensual touching, even if physical injuries are not present. In battery, the contact or touching does not have to be to the person. Grabbing someone’s clothing or possessions they are holding is battery. Assault and battery are not always present together. Assault can occur without physically touching the victim. Similarly, a surgeon who performs unwanted surgery or inappropriately touches a patient who is sedated has committed battery but not assault because the patient did not feel fear or apprehension.

A defense against assault or battery charges is consent. Boxers have consented to being battered when competing. Self-defense and defense of others also may be available defenses, as long as the self-defense is proportionate to the initial force.

False ImprisonmentFalse imprisonment is an intentional tort in Canadian law. It is defined as the intentional and wrongful confinement of a person without their consent or lawful authority. False imprisonment is a form of battery and involves the intentional and wrongful restriction of a person’s freedom of movement. It may be caused by physical force, threats or duress, or by the deliberate or recklessly careless act of a person or persons. The tort of false imprisonment can be committed by a government agent or private individual. In Canada, a person who is found guilty of false imprisonment can be liable for damages in a civil court.

A defense against false imprisonment is the authority to arrest. For example, a police officer has the right to restrain someone based on their authority as an officer.

Trespass Trespass is an intentional tort that occurs when a person interferes with the possession of another person’s property without their consent. This interference could be physical, such as entering the property, or non-physical, such as interfering with the person’s right to exclusive possession of the property. The legal action taken in a trespass case is called a tort of trespass to land. Trespass to land is a civil wrong and can be remedied with an award of damages. In addition, the court can grant an injunction or restraining order, prohibiting the person from entering the property in the future.

There are times when trespassing is justified. Someone may have a license to trespass, such as a meter reader or utility repair technician. There may also be times when it may be necessary to trespass—for example, to rescue someone during an emergency.

Owners can eject trespassers from the property using reasonable force. Owners can also seek injunctions to force people from the land, for example, during protests.

In the case of trespassing, the owner of the property does have a duty to the person who is trespassing. For example, if there is a large hole on your property and a trespasser falls into the hole, you may be held liable under the negligence tort. Property owners have a greater obligation to minors should they trespass upon the land. The most common application of this duty of the property owner is where a swimming pool is present. Owners are required under tort to protect trespassers from falling into the pool, typically through fencing.

Nuisance – Condition or situation that interferes with the use or enjoyment of another person’s property. The interference could be anything from a loud noise to a noxious odor, or it could be the blocking of access to a person’s property. The plaintiff must show that the defendant’s behavior caused an interference that is unreasonable and resulted in damages. If these conditions are met, the court may order the defendant to cease the nuisance and potentially award the plaintiff monetary damages for the harm suffered.

DefamationAnother intentional tort is defamation, which is the act of harming the reputation of another by making a false statement to a third party. Spoken defamation is considered slander, while written defamation is libel. Defamation is a false and injurious statement that discredits or detracts from the reputation of another’s property, product or business. To be liable for defamation, the words must be communicated to a third party, and could include emails, text messages, and social media posts.

Defenses for defamation falls into three distinct categories:

  • Fair Comment – Every Canadian can express their opinion on a public issue. The right to express an opinion extends to many different types of media. The defense of ‘fair comment’ exists to protect an opinion which may be harmful to another individual, but which is still a matter of public interest.
  • Qualified Privilege – Any statement made as a result of duty to another person. For example, an emergency room doctor might make a comment to a nurse about the belief a patient is on drugs. This might not be true and could harm that person’s reputation. However, the doctor needs to express this in order to properly treat the patient.
  • Absolute Privilege – Statements made in parliament are protected.


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Business Law and Ethics Canadian Edition Copyright © 2023 by Craig Ervine is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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