INTENTIONAL TORTS

Intentional Torts

• There are two ways to understand the term “intent”
• Intent means “a subjective desire to cause the consequences of one’s actions” [267]

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• However, the conduct can be “intentional” in the circumstances, “if the consequences, while not desired, are substantially certain to result from the defendant’s conduct” [267]

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• See: Osborne, The Law of Torts 6/e (Irwin, 2020)

Consider the following example:

• Imagine the following scenario Alex was playing with the rock and throwing it from the window of his house. He lives in a crowded area of the Leslieville in Toronto. One day, by accident, when Alex threw the stone, the stone hit Alan and caused injury. 
• Can Alex claim that he did not intend to cause harm to Alan to avoid liability in tort?

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Consider the following example:

• Alex cannot claim that he did not mean to hit Alan to avoid liability in tort for the intentional infliction of harm. Why? He knew that he would hit someone if he threw the stone (imputed/constructive intent).

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Structure

• Intentional interference with land
• Trespass
• What is the difference between trespass and nuisance?
• International interference with the person
• Battery
• Assault
• A note on invasion of privacy

Intentional Interference with Real Property

Trespass to Land and Trespass to Airspace

Difference between Trespass and Nuisance

Trespass

• The direct interference with land
• The requirement of direct interference
• The requirement of intentional or negligent interference
• See, for example, Basey v Clarkson (1681), 3 Lev 37, 83 ER 565 (CP).
• The requirement of physical interference
• No requirement to show damage

Note: tort of trespass protects ACTUAL POSESSION OF LAND

Trespass to Land: Entick v Carrington (1765), 19 State Tr 1029 (C.P.)

• Facts: the defendants claimed authority under warrant. They entered the plaintiff’s property and took away some papers. The plaintiff sued for trespass.
• The court: “The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances […] By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot on my ground without my license, but he is liable to an action, though the damage be nothing” [as cited in Solomon et al, Cases and Materials on the Law of Torts (Thomson Reuters, 2018) 177]

What about other circumstances?

• Imagine that you a playing a ball with your friends at your property; by accident you throw a ball to your neighbour’s plot of land. Did you commit a trespass?
• Yes, the rule as articulated in Entick still stands. You can commit trespass in person, by pushing an object, or failing to leave the property after the property owner revoked the permission

What about other circumstances?

• Imagine that your neighbour runs a drain across your property. This continuous for more than six years. Let’s say you never took this course, and not familiar with the law of torts. However, one day you learned about a tort of trespass so you decided to sue. Did your neighbour commit a trespass? If so, could you seek damages?
• The court in Williams v Mulgrave (Town), 2000 NSCA 24 held that a new cause of action began every day when the defendant left the drain on the plaintiff’s property. The plaintiff in this case obtained damages for 6 years that preceded the commencement of the action (a concept of continuing trespass) [as cited in Solomon et al, 179]
• Note: some claims can be time-barred by the applicable statutory law (keep in mind the statutory limitations)

What about other circumstances?

• Imagine that your neighbour bought a new drone. Your neighbour likes flying it around the neighbourhood, and sometimes the drone enters the airspace above your property. Did your neighbour commit a trespass?
• Post your reply at the CULearn Forum!

Harrison v Carswell [1976] 2 SCR 200

• Facts:

Carswell was charged for 4 offences under the Petty Trespasses Act. Carswell distributed pamphlets in the mall and the parking lot in support of a lawful strike in relation to the labor dispute. The management of the mall never permitted it.

Issue: whether Carswell committed trespass

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Harrison v Carswell [1976] 2 SCR 200

• Justice Dickson for majority: “Anglo-Canadian jurisprudence has transitionally recognized, as a fundamental freedom, the right of the individual to the enjoyment of property and the right not to be deprived thereof or any interest therein, save by due process of law” [201]

Harrison v Carswell [1976] 2 SCR 200

• Justice Dickson further noted that the Petty Trespasses Act established that “any person who trespasses upon land, the property of another, upon or through which he has been requested by the owner not to enter, is guilty of an offence” [201]
• He concluded that the statutory change was necessary by the Legislature to provide A the “right to enter and remain on the land of B against the will of B” [201]

Harrison v Carswell [1976] 2 SCR 200. Justice Bora Laskin dissents

• Justice Bora Laskin: “An ancient legal concept, trespass, is urged here in all its pristine force by a shopping centre owner in respect of areas of the shopping centre which have been opened by him to public use, and by operators of a variety of businesses. To say in such circumstances that the shopping centre owner may, at his whim, order any member of the public out of the shopping centre on penalty or liability for trespass if he refuses to leave, does not make sense if there is no proper reason in that member’s conduct or activity to justify the order to leave” [206]

Harrison v Carswell [1976] 2 SCR 200. Justice Bora Laskin dissents

• Justice Laskin argues that the “old” doctrine of trespass should not be applicable in the present case.
• Justice Laskin: “What does the shopping owner protect? […] There is no challenge to his title and none to his possession nor to his privacy when members of the public use those amenities. Should he be allowed to choose what members of the public come into those areas when they have been opened to all without discrimination” [208]
• Question: Do you agree with the majority or with Justice Laskin’s approach?

Trespass to Airspace: Bernstein v Skyview &General Ltd [1978] Q.B. 479

• Facts

The defendant entered the airspace above the plaintiff’s premises to take a photo of the premises. The defendant concedes that he took a picture yet argues that the photo was taken when the aircraft flew over an adjacent property.

Issue: whether the defendant committed trespass?

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Trespass to Airspace: Bernstein v Skyview &General Ltd [1978] Q.B. 479

• The plaintiff: the court should apply an old Latin maxim “cujus est solum ejus est usque ad coelum et ad infernos” (“whomsoever the soil belongs, he owns also to the sky and to the depths”) [as cited in Solomon et al, 194]

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Trespass to Airspace: Bernstein v Skyview &General Ltd [1978] Q.B. 479

Trespass to Airspace: Bernstein v Skyview &General Ltd [1978] Q.B. 479

The court noted, however, that in this case the circumstances show that the aircraft flew at “a height which in no way affects the user of the land”. As a result, the court concluded that there was no trespass [as cited in Solomon et al, 195]

Trespass to Land v Private Nuisance

• Trespass protects possession
• To establish trespass, it is sufficient to show physical intrusion upon your possession
• The trespass is actionable per se.

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• Nuisance protects use and enjoyment of the possession
• To establish nuisance, you need to show proof of loss
• The courts will be concerned with the effect of the defendant’s conduct upon the use of land

Defining Terms: Private Nuisance

• “Private nuisance is applicable to indirect physical or intangible interference with property and all direct interference that is not physical” [as cited in Osborne, 400]
• The requirements of (1)substantial and (2) unreasonable interference, see: e.g. Antrim Truck Centre v Ontario Transportation, 2013 SCC 13

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

• Facts

The claimant runs a business of breeding silver foxes on his property. His neighbour (the defendant) fired guns at his property to scare the foxes. He was concerned that a farm-business nearby would devalue his property. The problem is that the foxes are very capricious during the mating season. They might not breed, or can harm their young when scared. The claimant filed a lawsuit against his neighbour to obtain injunction.

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Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

• Issue: whether the neighbour’s action was (private) nuisance

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Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

• Question: what will be your intuitive answer? Does motive and intent matter?

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Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

• The court factored in the element of malice when it assessed reasonableness of interference
• The court: “It is perfectly lawful thing to keep a silver fox farm and I think that the shooting took place intentionally for the purpose of injuring the plaintiffs made it actionable […] A person who shoots on his own land, or makes other noises on his own land, for the purpose of annoying or injuring his neighbour, does by the common law, commit the actionable wrong of nuisance for which he is liable in damages at common law and was liable to be restrained by an injunction in a court of equity” [as cited in Solomon et al, 984]

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• Conclusion: damages+injunction

What about other circumstances?

• Variation (V) 1. Imagine that your neighbour is playing a violin or a piano everyday for 8 hours. So you write your neighbour an email to protest; however, playing continues. After some time, and out of frustration, you decide to come closer to your neighbours’ house and make loud noises, for example, by beating drums.

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• Variation (V) 2. Imagine that in Hollywood Silver Fox, the neighbour fired guns to exterminate pests (e.g. rodents) that infested the plaintiff’s land. What do you think the court would decide?

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What about other circumstances? Answers

• Answer V 1. Imagine that your neighbour is playing a violin or a piano everyday for 8 hours. So you write your neighbour an email to protest; however, playing continues. After some time, and out of frustration, you decide to come closer to your neighbours’ house and make loud noises.
• Christie v Davey [1893] 1 Ch 316

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What about other circumstances? Answers

• Answer V 2. Imagine that in Hollywood Silver Fox, the neighbour fired guns to exterminate pests (e.g.rodents) that infested the plaintiff’s land. What do you think the court would decide?
• Rattray v Daniels (1959) 17 D.L.R. (2d) 134 (Alta.C.A.)

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Intentional Interference with the Person

Battery and Assault

Battery: Defining the Terms

• Battery is “a direct, intentional, and physical interference with the person of another that is either harmful or offensive to a reasonable person” [Osborne, 269]. No proof of damage is required.

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Battery: Defining the Terms

• Question: imagine that you noticed that someone dropped the scarf in the subway. The person is wearing the earphones so cannot hear your attempts to attract their attention. If you tap the person on the shoulder, would this be “a direct, intentional and physical interference” that amounts to battery?

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• Question: does an individual need to be conscious for battery to be actionable?

Assault: Defining the Terms

• Assault is "any direct and intentional act that causes a person to apprehend immediate harmful or offensive bodily contact” [Osborne, The Law of Torts, 6th ed (Irwin, 2020) 272]
• Note: assault and battery are two separate causes of action.
• You must distinguish assault from battery and an assault in tort from an assault in the context of s.265(1)(a) and (b) of the Criminal Code
• The court in Wilson v Bobbie indicates that in some instances, the parties conflate these terms. See: Wilson v Bobbie 2006 ABQB 22 para 4.

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Holcombe v Whitaker 318 So.2d 289 (Ala. S.C. 1975)

• Facts:

The plaintiff went to see the defendant to obtain an annulment. The defendant met the plaintiff and threatened to kill her. After some time, the defendant visited the plaintiff in her apartment, he beat the door and tried to get inside her house. He repeated the same threat. The plaintiff sued.

Holcombe v Whitaker 318 So.2d 289 (Ala. S.C. 1975)

• The court noted that the words alone could not be deemed an assault actionable in tort, however, in this context, the defendant beat the door in the plaintiff apartment and attempted to enter the apartment. Together, it arose the apprehension of harm.
• The court: “we cannot say, as a matter of law, that this was not sufficient to arouse an apprehension of harm or offensive conduct” [as cited in Solomon et al, 72]
• Dobbs, Hayden & Bublick disagree: “The apparent reality of the threat, not its form, is what counts” (see Dobbs, Hayden & Bublick , The Law of Torts, 2 ed., (2011) 100.
• The court also paid attention to other surrounding circumstances to conclude that assault took place. For example, the court took into account that the plaintiff experienced fear to an extent that she requested her friends to stay over night.

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Assault: Examples

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• Variation 1

What if the persons mentally incapable understanding the consequences of their actions beats the doors, makes loud noises, threats, and attempt to enter the apartment? Would you conclude that the person committed an assault?

• No. Assault is a voluntary act; the mind of the individual should “direct” the act. In Wellesley Hospital v Lawson, the Ontario Court of Appeal indicated that in the circumstances when the person for the reason of mental illness cannot understand the nature of his act, this person cannot commit an assault in tort since the intention is missing.
• Example

Imagine that a 50 kg female teenager (unarmed) threatened to hit a 100 kg professional boxer. Can this teenager be held liable in tort for assault?

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A note on Invasion of Privacy

• Piecemeal approach to the protection of privacy in the Canadian context (common law and statutory)
• Actions for protection of privacy in tort law are available in Canada.
• Statutory tort exists in BC, Manitoba, New Foundland and Labrador, Saskatchewan
• Common law action is recognized recently
• As per Solomon et al., “the Australian and New Zealand courts, like their Canadian counterparts, have recognized a common law tort action for invasion of privacy in various categories of cases” [Solomon et al., 109]
• See, e.g., Jones v Tsige 2012 ONCA 32
• In this case, the court examines the possibility of different causes of action to protect privacy in tort law by relying on the US approach.
• Chandra v CBC, 2015 ONSC 5303 paras 40-47, para 64.

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Thank you for your attention