- •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
F. Remedies
The primary remedy for defamation is an award of damages. Damages in defamation are "at large," meaning that once liability is established, damages are not restricted to the actual loss proved by the plaintiff. This is important because it may be difficult to prove the actual loss suffered as a result of a widely circulated defamatory statement. For example, it may be difficult for a business person who was wrongfully accused of fraudulent business practices to quantify precisely the financial loss suffered as a result of the loss of customers or business opportunities. The quantum of damages depends upon a variety of factors, including the nature and seriousness of the defamatory communication, the extent of publication and circulation of the defamatory material, the motivation and conduct of the defendant, the reputation of the plaintiff and whether or not the reputation was warranted, and the extent of the damage caused to the plaintiff. The conduct of the defendant may also warrant an award of aggravated damages or punitive damages.
Overall awards of damages for defamation can be high. In Hill v. Church of Scientology of Toronto, [Note 24: [1995] 2 S.C.R. 1130. ] the Supreme Court upheld an award of $1.6 million in compensatory, aggravated, and punitive damages in respect of the defamation of the plaintiff lawyer relating to the performance of his professional duties. It is worthy of note that this award far exceeds any award of non-pecuniary damages for catastrophically injured accident victims. Those damages are currently capped at $260,000. There is, however, no cap on general damages for defamation even though the interest in personal safety would seem more compelling than the interest in reputation.
Injunctive relief to prevent the publication of a libel is available only in exceptional circumstances because of the threat to freedom of speech.
CHAPTER 7, DEFAMATION
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G. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS, DEFAMATION, AND THE LAW OF THE UNITED STATES |
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In 1964 the Supreme Court of the United States in New York Times Co. v. Sullivan [Note 25: 376 U.S. 254 (1964).] held that the traditional law of defamation infringed upon the constitutional right of free speech. The case dealt with a defamatory statement made by a newspaper about a public official. In Canada such a statement, not being fair comment, must be justified. In Sullivan the Supreme Court recognized a qualified privilege to make defamatory statements of fact or comment in respect of public officials. This was later extended to all public figures. The defence can be defeated only by proof of "actual malice" on the part of the defendant. Malice in this context is established if the defendant knew that the statement was false or was reckless as to whether or not it was true or false. The burden on the plaintiff of proving malice is a difficult one to discharge. The new defence radically changed the balance between the protection of reputation and free speech in the United States.
Canadian courts did not adopt the "actual malice" rule after Sullivan but the issue was reignited by the passage of the Canadian Charter of Rights and Freedoms, which recognizes in section 2(b) a right of free speech. The impact of Charter recognition of free speech on the law of defamation was addressed by the Supreme Court in Hill v. Church of Scientology of Toronto. [Note 26: Above note 24. ] The Court held that, while the Charter was not directly relevant to the private action in defamation, it is important that the common law be applied and developed in a way that is consistent with fundamental Charter values. Nevertheless, the Court did not agree that the conventional law of defamation failed to balance appropriately the interest of free speech and the reputation of individuals. Indeed, the Court reaffirmed the importance of personal reputation to a person's self-worth and dignity and declined to change the existing law. In its view, it is not unduly onerous to ascertain the truth of statements before publication of them and the available defences are sufficient to protect the public's interest in free speech and the discussion of vital public affairs. The public is not well served, in the Court's opinion, by permitting the circulation of defamatory facts on matters of public interest.
The decision in Hill has not, however, abated concern in some quarters about the hidden and unquantifiable chill that Canadian defamation law creates for the media. [Note 27: See E. Barendt et al., Libel and the Media: The Chilling Effect (Oxford: Clarendon Press, 1997) for an English study of this issue.] The concern is that Canadian media outlets may decline to publish defamatory material about public figures on a matter of vital public interest that it believes on reasonable grounds to be true because it is unable to prove the truth of the allegations in a court of law. The Canadian media is free to print or broadcast only the news it can prove to be true. This may lead to the suppression of matters of public interest and other issues that ought to receive public scrutiny and debate. The point may be illustrated by taking a situation like the Alan Eagleson affair. The wrongdoing of Eagleson when he was head of the National Hockey League Players Association was exposed by an American journalist writing in the United States. [Note 28: The story was broken by Russ Conway who was a journalist at the Eagle-Tribune of Lawrence, Massachusetts. His series of investigative reports, "Cracking the Ice," formed the basis of his book Game Misconduct: Alan Eagleson and the Corruption of Hockey (Toronto: MacFarlane Walter & Ross, 1997).] He was protected by Sullivan from a defamation suit if he was incorrect in his allegations so long as he was not malicious. The Canadian media may have had suspicions about Eagleson, it may have investigated his activities, and it may on reasonable grounds have believed him to be guilty of some misconduct. It would, nevertheless, be reluctant to publish those allegations for fear of the expense, time, and frustration of fighting a defamation suit that, because of the burden of proof, it was not assured of winning.
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CHAPTER 7, DEFAMATION