- •Introduction
- •1) Criminal Law and Tort Law Contrasted
- •B. The origins of canadian tort law
- •1) The Nature of the Defendant's Conduct
- •2) The Nature of the Plaintiff's Loss
- •D. The objectives of tort law
- •2) The Instrumentalist View
- •I) Specific Deterrence
- •II) General Deterrence
- •III) Market Deterrence
- •E. Personal injury, tort law, and other compensatory vehicles
- •1) Governmental Initiatives
- •2) Private Sector First-Party Insurance
- •F. The organization of tort law
- •A. Introduction
- •1) Application of the Standard of Care
- •I) Judicial Policy
- •2) Special Standards of Care
- •3) Proof of Negligence: Direct and Circumstantial Evidence
- •1) Cause-in-Fact
- •4) Market Share Liability
- •5) Loss of a Chance
- •6) Multiple Tortfeasors Causing Indivisible Damage
- •D. Damage
- •E. The duty of care
- •1) The Foreseeable Plaintiff (The First Branch of the Anns Test)
- •2) Policy Considerations (The Second Branch of the Anns Test)
- •The Supreme Court decision in Galaske V. O'Donnell [Note 123:
- •In its recent decision in Ryan V. Victoria (City) [Note 126:
- •F. Remoteness of damage
- •1) The Foreseeability Rule
- •G. Defences
- •1) Contributory Negligence
- •2) Voluntary Assumption of Risk (Volenti Non Fit Injuria)
- •3) Illegality (Ex Turpi Causa Non Oritur Actio)
- •4) Inevitable Accident
- •H. Remedies
- •1) Personal Injury
- •I) The Impact of the Trilogy
- •2) Death
- •3) Property Damage
- •A. Introduction
- •B. Products liability
- •1) Manufacturing Defects
- •2) The Duty to Warn
- •3) Reasonable Care in Design
- •1) The Duty of Care
- •2) The Standard of Care
- •D. Human reproduction
- •1) Prenatal Injuries
- •2) Wrongful Birth
- •3) Wrongful Life
- •4) Wrongful Pregnancy
- •E. Occupiers' liability
- •1) The Classical Common Law of Occupiers' Liability
- •2) The Modern Common Law of Occupiers' Liability
- •3) Legislative Reform
- •F. Breach of statutory duty
- •G. Pure economic loss
- •I) Foreseeable Reliance/Reasonable Reliance : The Prima Facie Duty of Care
- •II) Policy Concerns: The Issue of Indeterminacy
- •2) Negligent Performance of a Service
- •3) Relational Economic Loss
- •I) Contractual Relational Economic Loss
- •4) Product Quality Claims
- •H. Governmental liability
- •2) Negligence
- •In Rondel the House of Lords provided a number of reasons for the immunity. They included:
- •Intentional torts
- •A. Introduction
- •B. The meaning of intention
- •C. Intentional interference with the person
- •1) Battery
- •3) False Imprisonment
- •5) False Imprisonment and Malicious Prosecution
- •6) Malicious Procurement and Execution of a Search Warrant
- •7) Abuse of Process
- •9) Privacy
- •10) Discrimination
- •12) Harassment
- •13) Defences to the Intentional Interference with the Person
- •III) Defence of a Third Person
- •V) Discipline
- •VI) Necessity
- •VII) Legal Authority
- •VIII) Illegality: Ex Turpi Causa Non Oritur Actio
- •II) Contributory Negligence
- •1) Elements of Liability
- •2) Defences to the Intentional Interference with Land
- •3) Remedies
- •4) Trespass to Land and Shopping Malls
- •5) Trespass to Airspace
- •E. Intentional interference with chattels
- •1) Trespass to Chattels
- •3) Conversion
- •4) The Action on the Case to Protect the Owner's Reversionary Interest
- •5) An Illustrative Case: Penfold's Wines Pty. Ltd. V. Elliott
- •6) The Recovery of Chattels
- •F. Intentional interference with economic interests
- •1) Deceptive Practices
- •II) Conspiracy to Injure by Unlawful Means
- •I) Direct Inducement to Breach a Contract
- •II) Indirect Inducement to Breach a Contract
- •Intentional Interference with the Person
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •1) The Elements of Liability
- •3) Dogs
- •4) The Scienter Action and Negligence
- •Barry j. Reiter Melanie a. Shishler
- •1) Elements of Liability
- •2) Defences
- •Barry j. Reiter Melanie a. Shishler
- •2) Principal and Agent
- •3) Statutory Vicarious Liability
- •4) Independent Contractors
- •In Lewis (Guardian ad litem of) V. British Columbia, [Note 50:
- •5) Liability of the Employee or the Agent
- •Barry j. Reiter Melanie a. Shishler
- •Chap.6 Contents
- •1) Physical Damage to Land
- •2) Interference with Enjoyment and Comfort of Land
- •7) Defences
- •8) Remedies
- •1) The Definition of a Public Nuisance
- •A. Introduction
- •2) Reference to the Plaintiff
- •3) Publication
- •E. Defences
- •2) Privilege
- •3) Fair Comment on a Matter of Public Interest
- •F. Remedies
- •H. The next challenge: political speech
- •A. Introduction
- •1) Contract Law and Tort Law
- •2) Fiduciary Law and Tort Law
- •3) Restitution and Tort Law
- •C. Public law
- •1) The Charter of Rights and Freedoms and Tort Law
- •A. The centrality of the tort of negligence
- •B. The dynamism of the tort of negligence
- •C. Generalization and integration
- •D. Reform and modernization
- •E. The triumph of compensation and loss distribution policies
- •Ison, t.G., The Forensic Lottery: a Critique on Tort Liability as a System of Personal Injury Compensation (London: Staples Press, 1967)
- •Intentional conduct of a public official in abuse of her power, or knowingly beyond the scope of her jurisdiction, causing damage to the plaintiff.
- •Preface
- •Philip h. Osborne
II) Conspiracy to Injure by Unlawful Means
A conspiracy to injure by unlawful means arises where two or more persons agree to act unlawfully and either the predominant purpose of the activity is to harm the plaintiff or the conduct is directed at the plaintiff and the defendants should have known that harm was likely to result. [Note 180: The leading Canadian decision is Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452.] The tort is complete on proof of actual damage. The elements of combination, unlawful activity, and the intent or likelihood of damage provide strong grounds for imposing liability. In the context of this and most other business torts, the term unlawful activity gives rise to some uncertainty but it normally includes criminal conduct, independent tortious acts, breach of contract, breaches of legislation such as labour relation statutes or the Competition Act, [Note 181: Above note 176.] and other civil wrongs.
The importance of the tort should not, however, be overestimated because the emphasis on independently illegal conduct and intent to injure suggests that the individual conspirators will often each be liable on some other basis. However, where the illegal act is not in itself a tort if done by one person (e.g., the breach of some statutes), resort may be made to conspiracy to injure by unlawful means. [Note 182: Klar, above note 8 at 519.]
iii) Defences to Conspiracy
The defence of justification is available to the defendants but, given the elements of the tort, it is unlikely to play a significant role. In simple conspiracy the issue of justification is largely addressed by a consideration of the defendant's predominant purpose, which is central to establishing liability. Conspiracy to cause damage by unlawful means is not normally susceptible of justification.
b) Intimidation
Intimidation was recognized as a discrete and independent tort in 1964 in the House of Lords decision of Rookes v. Barnard. [Note 183: [1964] A.C. 1129 (H.L.) [Rookes].] It is now well established that intimidation arises where the defendant either threatens to use unlawful means to coerce a third person to damage the plaintiff or threatens unlawful acts that directly compel the plaintiff to act to his detriment. The former situation is known as three-party intimidation and the latter as two-party intimidation. The gravamen of each is the threat of an unlawful act.
i) Three-Party Intimidation
Three-party intimidation is best illustrated by the case of Rookes. In that case, the plaintiff, an employee of BOAC (now British Airways), resigned his membership in his union. In an attempt to maintain a closed shop, the defendant union officials, some of whom were also employees of BOAC, threatened BOAC with strike action unless the plaintiff's employment was terminated. The strike action would have been in breach of a no-strike clause in the defendants'employment contract. BOAC submitted to this coercion and lawfully [Note 184: The plaintiff did not, therefore, have an action against his employer.] terminated the plaintiff's employment. The Court held that the essential elements of three-party intimidation - coercion by threats of unlawful conduct, an intention to injure the plaintiff, and damage - were established.
The intimidation must involve threats of unlawful acts, and the person against whom the threats are aimed must submit to the pressure and act against the plaintiff. An unconditional threat is not intimidation. Nor is it intimidation if the subject of the threat withstands the pressure and refuses to act against the plaintiff. If the defendant makes good on the threat, some independent action in tort or contract will normally be available to the threatened person. Initially, it was thought that the threatened acts needed to be criminal wrongs or independent torts, but since Rookes it is clear that a threatened breach of contract is sufficient. [Note 185: The tort of three-party or two-party intimidation is not, however, committed if "a party to a contract asserts what he reasonably considers to be his contractual right" : see Central Canada Potash Co. v. Saskatchewan (1978), [1979] 1 S.C.R. 42 at 87, Martland J. [Central Canada Potash].]
ii) Two-Party Intimidation
In three-party intimidation, the plaintiff is not the person who is threatened but the person who suffers the loss. In two-party intimidation, the plaintiff is both the person who is threatened and the person who suffers the loss. The essential ingredients of two-party intimidation are coercion by threats of unlawful acts, an intention to injure, and damage. For example, a person may be coerced into closing his business by threats of violence or property damage. There is some debate about the applicability of two-party intimidation where the defendant threatens to break a contract with the plaintiff. [Note 186: Klar, above note 8 at 513.] An action for anticipatory breach of contract and other contractual remedies are available to the plaintiff and the wisdom of making every threatened breach of contract an independent tort has been doubted. [Note 187: Central Canada Potash, above note 185 at 87, Martland J.]
iii) Defences to Intimidation
Justification is recognized as being a defence to intimidation but, given the requirement of threats of illegal activity, it plays a limited role. Some narrow scope may be found for it in cases where the wrongdoing is relatively minor and the purpose of the threat is to achieve some compelling and beneficial social purpose.
c) Inducement to Breach a Contract
The primary means of transferring property and services in a market economy is by way of a contract. It is not surprising, therefore, that tort law has supplemented and reinforced the protection of contractual relationships provided by the law of contract. The modern protection of contractual rights in tort law begins with the case of Lumley v. Gye. [Note 188: (1853), 2 E. & B. 216, 118 E.R. 749 (Q.B.) [Lumley].] In that case, Miss Wagner, niece of the German composer, was under an exclusive contract to sing in the plaintiff's theatre. The defendant persuaded her to break her contract with the plaintiff and to sing at his theatre. The defendant was held liable for directly inducing Miss Wagner to break her contract with the plaintiff even though the plaintiff had a claim for breach of contract against Miss Wagner. [Note 189: It is an unusual tort because the defendant is liable for participating in a wrong that he could not commit himself.]
Since Lumley, there has been a great deal of judicial activity broadening the protection of contractual relationships and today three discrete branches of the tort of inducement to breach a contract are recognized: direct inducement to breach a contract, indirect inducement to breach a contract, and interference with a contract by unlawful means without causing breach. [Note 190: A useful discussion of inducement to breach a contract in all its forms is found in Garry v. Sherritt Gordon Mines Ltd. (1988), 45 D.L.R. (4th) 22 (Sask. C.A) [Garry].] The three torts protect existing contractual rights. They do not protect anticipated or planned commercial arrangements.