Pols Quiz 3

TORT LAW

Torts

• Definition: a legal wrong or a breach of a legal duty
• Can be intentional but doesn’t need to be (negligence is a common tort action)
• Well known actions include…

• Intentional torts: assault, battery, false imprisonment
• Nuisance – interference with enjoyment of property
• Negligence

• But these are common law and always subject to further development and refinement

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The O.J Saga

Torts in Context

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• No “tort of discrimination” because…

• Statutory human rights regimes, as decided by the SCC in Bhadouria v. Seneca College (1981)
• Might change if there was no statutory protection. Really just reflects priority of statute over common law.

Negligence

• Generally, four elements:

• Duty of care established
• Breach of the standard of care
• Defendant cause the breach/injury
• There is a remedy under law

• You need all four of these to establish a claim of negligence
• Classic cases for each of these, but we can’t talk about them at all

Hot Coffee!

Duty of Care

• “The rule that you are to love your neighbor becomes in law, you must not injure your neighbour.; and the lawyer’s question, Who is my neighbour? receives a restricted reply.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.  Who, then, in law, is my neighbour?  The answer seems to be –persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question” Lord Atkin, Donohue v. Stevenson (1932)

Causation

• Long Island Railroad 1998

• Mrs. Palsgraf was standing on the railroad platform.  One man has a package and starts to falter as he jumps into the car. One guard reaches to help him, the other guard gives him a shugs to get him in the train. In law, he shouldn’t have done that.
• The package falls out and contained fireworks where it exploded. The shock of the explosion crossed the other platform and it injures Mrs.Palgraf.
• The decision found that there were too many sequences in the chain. It is too remote from any wrongdoing of the railroad. The wrongdoing has to be close to the injury.

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Defenses to Negligence

• Contributory negligence

• It used to be a complete defense. If you were 2% liable, the other person wouldn’t be liable.
• If a common law principle is not popular, every province passed statutes that says that principle is problematic that says damages are portioned to the blame.
• Partial defense that limits recovery
• Different form joint liability

• “1% rule” and public policy implications
• Anybody without money can be disadvantaged by the 1% rule

• British Columbia and Ontario Differences

• In B.C, every person in the wrongdoing can be sued independently and must recover damages independently (known as severally liable)
• In Ontario, there is joint and several liable. There is more joint though where we only need 1 party from the wrongdoing who will cover 100% of damages.

• Voluntary assumption of risk

• Can be complete defense
• Must be clear what risks you are assuming
• It has to be within the norms of the activity
• Boyd has an example of this.

• As long as we can convince the judge that the municipality is 1% at fault, they are fully responsible for 100% of the damage. The municipality can sue for damage. This puts a strain on our governments.
• The blame is apportioned to your level of responsibility.

*Where do new torts (new causes of action) come from?  Courts, organically through common law judgments.

Invasion of Privacy

• Many governments are struggling with the invasion of privacy. A number of jurisdictions have privacy statutes. Some provinces have created different actions related to privacy,  

• Jones v. Tsige, 2012 ONCA 32.

• Set a benchmark – this is how we are going to approach one type of invasions of privacy
• New Tort: The concept of intrusion upon seclusion. It has been adopted by the SCC except in the jurisdictions where there is already legislations.
• 3 conditions: (1) intentionally intrude (2) invaded without lawful jurisdiction (3) a reasonable person would regard the offense as highly offensive, causing distress and humiliation
• Proof of actual lose is not an element. The mere fact that it affected you is enough. But the court recognizes that this will be worth to different people.
• Jones and Tsige work at BMO, they are coworkers. Tsige is now in a relationship with Jones ex-husband. She had access to Jones’ records and looked at them 174 times over 4 years. Jones became suspicious of this. When confronted, Tsige admitted to it. She claims that it was for whether her new husband was paying child support. Jones doesn’t believe this. Her date of birth, marital status and address was all there but there was no taking of this information (dissemination). Tsige apologizes. BMO suspends her for 1-week without pay (workplace punishment). Jones sues for $70,000 for invasion of privacy. She received $10,000.
• Tort for invasion of privacy debated for 120 years; privacy is a “fundamental value” suggest 4 torts but stays narrow.
• Relationship with Charter and statutory schemes.
• “One who intentionally intrudes upon the seclusion of another or his private affairs or concerns, is subject to liability… if the invasion would be highly offensive to a reasonable person”

Torts Against Public Actors

• Hill v Hamilton Wentworth Police Services [2007]

Social Host Liability

• Childs v. Desormeaux [2006] 1 S.C.R 643.

Damages

• Compensatory Damages – assumes that one can find an $ amount for any injury
• Punitive Damages – Whiten v. Pilot Insurance [2002]

Case Friday: Rankin’s Garage & Sales v. J.J (2018)

• prima facie means “on its face”
• The majority of SCC felt that leaving keys does not mean the operation of the vehicle is foreseeable. The theft would not cause an unsafe driver.
• In a precedent, a person left their keys in their car, the car was stolen, the owner was found liable for bodily damage afterwards. The SCC hinges on the fact that the keys were left in a bar at closing time makes it different from the precedent.
• The second step is illegality, stealing the car meant the whole chain was broken.
• Occupier Liability Act - (3.1) A person who is trespassing on premises while committing, or with the intention of committing, a criminal act is deemed to have willingly assumed all risks and the occupier of those premises is subject only to the duty of care set out in subsection
• You are only required to not create a danger for another person. You can’t go too far in damaging someone or you can be exempt from the statute.
• A majority of the Supreme Court decided that there was no prima facie duty of care and the Court, in obiter, suggested that illegal conduct wouldn't have mattered.

LEGAL PROFESSION

Regulation of the Profession

• Barristers and Solicitors – distinction without much relevance in Canada. It remains important in the UK.
• Provincially regulated by law societies (Law Society of Upper Canada).

Legal Education

• Traditional approach: mentorship.  Law schools (as we know them) begin in the 18th Century.

• Harvard Law, 1817(McGill Faculty of Law, 1848)
• Dean Langdell, 1870s - 1900: case method.

• LL.B. vs. J.D. vs. B.A.; LL.M & S.J.D.

• LSAT

• No degree allows you to practice in Canada – must be a member of a bar society (articling and then exam).

• Canada: gatekeeper is the law school admission; U.S. bar exam.

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Regulation of the Profession

• Codes of Conduct – discipline applied by the Law Societies (administrative Tribunals! Given considerable deference)
• Canada (Atorney General) v. Federation of Law Societies of Canada [2015] 1 S.C.R. 401.

The “Civility” Movement

• Rambo Lawyers and Rambo Litigation:

• “A lawyer, especially a litigator, who uses aggressive, unethical, or illegal tactics in representing a client and who lacks courtesy and professionalism in dealing with other lawyers.”

• Atticus Finch Model: “Gentlemanly” law
• Salyzyn Critique

Access to Justice

• Paralegals and relationship to legal profession
• Legal fees, class actions, advertising
• Legal Aid and pro bono work

Case Friday: Mustapha v. Culligan of Canada (2018)