Intentional Interference with the Person

Alexander, E.R., "Tort Liability of Children and Their Parents" in D. Mendes da Costa, ed., Studies in Canadian Family Law, vol. 2 (Toronto: Butterworths, 1972) 845

Atrens, J.J., "Intentional Interference with the Person" in A.M. Linden, ed., Studies in Canadian Tort Law (Toronto: Butterworths, 1968) 378

Craig, J.D.R., "Invasion of Privacy and Charter Values: The Common-Law Tort Awakens" (1997) 42 McGill L.J. 355

Feldthusen, B., "The Canadian Experiment with the Civil Action for Sexual Battery" in N.J. Mullany, ed., Torts in the Nineties (North Ryde, N.S.W.: LBC Information Services, 1997) c. 10

Handford, P.R., "Tort Liability for Threatening or Insulting Words" (1976) 54 Can. Bar Rev. 563

Manitoba Law Reform Commission, Report on Stalking (Winnipeg:

Manitoba Law Reform Commission, 1997)

Picher, P., "The Tortious Liability of the Insane in Canada .[...]With a Comparative Look at the United States and Civil Law Jurisdictions and a Suggestion for an Alternative" (1975) 13 Osgoode Hall L.J. 193

Prosser, W.L., "Insult and Outrage" (1956) 44 Cal. L. Rev. 40

Sopinka, J., "Malicious Prosecution: Invasion of Charter Interests:

Remedies: Nelles v. Ontario: R. v. Jedyack: R. v. Simpson" (1995) 74 Can. Bar Rev. 366

Trindale, F. "The Modern Tort of False Imprisonment" in N.J. Mullany, ed., Torts in the Nineties (North Ryde, N.S.W.: LBC Information Services, 1997) c. 8

Intentional Interference with Chattels

Fleming, J.G., Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) c. 4

Ontario Law Reform Commission, Study Paper on Wrongful Interference with Goods, by R.L. Simmonds & G.R. Stewart, with the assistance of D.P. Paciocco (Toronto: Ontario Law Reform Commission, 1989)

Prosser, W.L., "The Nature of Conversion" (1957) 42 Cornell L. Rev. 168

Warren, E.H., "Qualifying as Plaintiff in an Action for a Conversion" (1936) 49 Harv. L. Rev. 1084

Intentional Interference with Land

Irvine, J., "Some Thoughts on Trespass to Air Space" (1986) 37 C.C.L.T. 99

Loader, L., "Trespass to Property: Shopping Centres" (1992) 8 J. L. & Social Pol'y 254

Magnet, J.E., "Intentional Interference with Land" in L.N. Klar, ed., Studies in Canadian Tort Law (Toronto: Butterworths, 1977) 287

Intentional Interference with Economic Interests

Bagshaw, R., "Can the Economic Torts Be Unified?" (1998) 18 Oxford J. Legal Stud. 729

Burns, P., "Civil Conspiracy: An Unwieldy Vessel Rides a Judicial Tempest" (1982) 16 U.B.C. L. Rev. 229

Burns, P., "Tort Injury to Economic Interests: Some Facets of Legal Response" (1980) 58 Can. Bar Rev. 103

Carty, H., "Character Merchandising and the Limits of Passing Off" (1993) 13 Legal Stud. 289

Carty, H., "Dilution and Passing Off: Cause for Concern" (1996) 112 L.Q. Rev. 632

Carty, H., "Intentional Violation of Economic Interests: The Limits of Common Law Liability" (1988) 104 L.Q. Rev. 250

Heydon, J.D., Economic Torts, 2d ed. (London: Sweet & Maxwell, 1978)

MacInnis, J.C., "Commercial Morality and Passing-Off: A Model for a Modern Tort" (1998) 30 Bus. L.J. 415

Richardson, G., "Interference with Contractual Relations: Is Torquay Hotel the Law in Canada?" (1983) 41 U.T. Fac. L. Rev. 1

Weir, T., Economic Torts (Oxford: Clarendon Press, 1997

CHAPTER 5

STRICT LIABILITY

			A. Introduction
			B. The Rule in Rylands v. Fletcher

1)		Elements of Liability a) Non-natural Use of Land b) The Escape of Something Likely to Cause Mischief c) Damage
2)		Defences a) Consent b) Mutual Benefit c) Default of the Plaintiff d) Act of a Stranger and Act of God e) Statutory Authority
3)		The Rule in Rylands v. Fletcher

C. Fire

D.

The Scienter Action (Liability for Harm Caused by Dangerous Animals)

1) The Elements of Liability 2) Defences a) Default of the Plaintiff b) Consent c) Trespass by the Plaintiff d) Illegality (Ex Turpi Causa Non Oritur Actio) e) Deliberate Act of a Stranger and Act of God 3) Dogs 4) The Scienter Action and Negligence

E. Cattle Trespass

1) Elements of Liability 2) Defences a) Default of Plaintiff b) Consent c) Deliberate Act of a Stranger and Act of God 3) Distress Damage Feasant 4) Legislation

F. Vicarious Liability

1)		Employer and Employee (Master and Servant) a) Employees and Independent Contractors b) The Course of Employment
2)		Principal and Agent
3)		Statutory Vicarious Liability
4)		Independent Contractors a) Non-delegable Duties
5)		Liability of the Employee or the Agent
6)		Direct Liability of Employers and Principals

Further Readings

Barry J. Reiter Melanie A. Shishler

Joint Ventures

(1999)

PART THREE, Implementing the Business Plan

CHAPTER 5, STRICT LIABILITY

A. INTRODUCTION

The distinguishing feature of the strict liability torts is that there is no need to prove that the defendant was guilty of any wrongful (intentional or negligent) conduct. In the absence of defences, proof that the defendant caused the plaintiff's loss in the manner prescribed is sufficient to impose liability. Strict liability does not play a significant formal role in modern Canadian tort law. Historically, the evolution of the common law of torts has been from strict liability to fault liability. Consequently, the remaining areas of strict liability tend to be ancient and few in number. Moreover, those torts of strict liability that do survive were eroded in the course of the twentieth century by the relentless expansion of the tort of negligence.

The torts of strict liability include the rule in Rylands v. Fletcher, liability for fire, the scienter action for damage caused by dangerous animals, and cattle trespass. It is also conventional to include in this list vicarious liability even though it is not a discrete tort. It imposes a strict liability for the torts of others with whom the defendant has a particular relationship.

These few remnants of true strict liability do not, however, tell the full story of strict liability in Canadian tort law. The formal decline of the discrete strict liability torts has been matched by a rise in a de facto strict liability under the guise of strict standards of care within the tort of negligence. This is particularly evident in the fields of motor-vehicle accidents, product accidents, and accidents arising from dangerous activities. This is not entirely surprising because strict liability continues to have some functional attraction in modern tort law. It can optimize both the deterrent and the compensatory impact of tort law by demanding exceptional care and expanding the range of persons who receive compensation. It can improve the administrative efficiency of tort law by eliminating the often difficult task of determining fault. It can also be used to create an enterprise liability, which allocates the full losses generated by a particular activity or enterprise (such as manufacturing, railroad or air transportation, or nuclear power operations) to that activity or enterprise. An enterprise liability facilitates the distribution of losses and may achieve some market deterrence.

Canadian judges are not immune to these ideas. They have not, however, been willing to embrace strict liability formally or theoretically and to utilize it openly as a general basis for the allocation of modern accident losses. Canadian judges are much more comfortable utilizing the discretion embodied in the standard of reasonable care in the tort of negligence to impose a strict standard of care where appropriate rather than changing the theoretical framework of tort law.

There is, therefore, a paradox in the Canadian law of torts in respect of strict liability. On the one hand, the courts have shown no willingness either to expand existing heads of strict liability or to create new heads of strict liability. On the other hand, there is a willingness, in certain situations, to impose a covert strict liability under the guise of applying traditional negligence principles. [Note 1: One possible explanation of this phenomenon is that the traditional strict liability torts do not apply strict liability to the activities and circumstances that Canadian judges believe most deserve it, such as products liability, motor-vehicle accidents, and ultra-hazardous activities.]