Tort law is our first stop on the journey examining private, civil law issues. Tort law helps to answer questions involving a host of practical wrongdoings. For example, how do we get compensation for an assault? What if someone steals our bicycle? Who can we sue for our injuries and what exactly are we suing for?

Ultimately, torts deals with injuries or harms suffered by one person (the plaintiff/victim) as a result of the actions or omissions of another person (the tortfeasor/defendant). It is meant to provide a means of compensation for the injured party, and to hold the person who caused the injury responsible for their actions or inaction. The classification of torts can be further subdivided based into two camps: intentional torts versus unintentional torts.

Intentional torts are those in which the person who caused the injury or harm intended to do so; these torts include claims such as assault, battery, defamation, and false imprisonment. On the other hand, unintentional torts are those in which the person who caused the injury or harm did not intend to do so, but was still careless in their actions; the unintentional torts include claims such as negligence and strict liability.

In this chapter, we will just be examining liability for intentional torts, and the unintentional torts will be left for the next chapter.

Liability

Common Law Privacy Protection

Canadian common law has been very reluctant to craft a generalized test for “invasion of privacy”. As such, the tort of “intrusion upon seclusion” has stepped in to address the protection of privacy interests. Intrusion upon seclusion occurs when one person intentionally intrudes, physically or otherwise, upon the solitude or private affairs of another person.

Statutory Tort of Invasion of Privacy

While the common law has so far not created an independent tort of “invasion of privacy”, some provinces, notably British Columbia, have created the tort by statute.

According to section 1 of the British Columbia Privacy Act, R.S.B.C. 1996, c. 373, it is a tort to invade the reasonable expectation of privacy of another. Section 1 states as follows:

1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.

(3) In determining whether the act or conduct of a person is a violation of another’s privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.

(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

While we often may subjectively desire privacy, that is a very different question than whether a reasonable person would objectively expect privacy in the circumstances. For example, a reasonable person would not typically expect privacy in public spaces such as streets, parks, or other areas accessible to the general public. When individuals are out in public, they can generally be observed by others, and their actions may be witnessed or recorded by surveillance cameras or bystanders. Accordingly, it would be very difficult to successfully develop an invasion of privacy claim.

However, some forms of conduct which would constitute an invasion of privacy would be invading an individual’s private email account or the publication of private medical information about an individual without their consent.

To date, there have been very few cases successfully brought under the Privacy Act. However, as more cases emerge, we will get a greater sense of the expectations of privacy from the perspective of a reasonable person.

Protecting Your Land

Another legal interest worthy of protecting is one’s land. While not as sensitive as scenarios involving interference to a person’s bodily integrity, land is highly valuable, scarce, and subject to protections. The following discussion canvasses the torts of trespass to land and nuisance which allow for compensation for interferences involving land.

Trespass to Land

Trespass to land arises when an individual enters onto or remains on someone else’s land without consent or lawful authority.

Common examples of trespassing include:

• entering someone’s property without permission, such as sneaking onto private land or breaking into a building;
• remaining on someone’s property after being asked to leave, such as refusing to leave a store after being asked to by the store manager; and
• interfering with someone’s use of their property, such as blocking a driveway or blocking access to a building.

In most cases, the remedy for trespass is an award of damages to the person whose property was trespassed upon. In some cases the court may also grant an injunction ordering the trespasser to stop the trespassing.

Nuisance

Nuisance refers to any unreasonable interference with the use and enjoyment of someone’s property.

The purpose of this tort is to protect an individual’s right to exclusive possession and control over their land. Within that broad definition, a nuisance can take many forms, including physical, chemical, noise pollution, or any other activity that interferes with someone’s ability to use and enjoy their property.

It is the later part of the test which is often most controversial; how does one demonstrate that the interference is unreasonable? In law, there are four factors which help an interference is unreasonable.

1. character of the neighbourhood in question;
2. the severity of the interference;
3. the utility of the defendant’s conduct; and
4. the sensitivity of the plaintiff.

Each of these factors is balanced by the court to determine whether the interference was something reasonably to be expected or unreasonable thereby, constituting a nuisance.

Examples where a nuisance claim may be sought include:

• excessive or loud noise;
• smoke drifting onto the neighbour’s property (cigarettes, vaping, burning leaves, etc);
• pets coming onto neighbour’s property;
• trees, bushes, roots, growing onto neighbour’s property; or
• neglected or unkept property drawing animals.

A good example where unreasonableness has been considered by the court is the case of Northern Light Arabians v. Sapergia, 2011 SKPC 151 out of Saskatchewan.

Protecting Your Personal Property

In addition to protecting one’s self and one’s enjoyment of land, the law also has a series of torts which compensate for interferences with personal or movable property.

Chattels refer to movable property that can be owned, possessed, and transferred by individuals. They are legally distinct from real property, which includes land and buildings. Chattels encompass a wide range of tangible objects, such as furniture, vehicles, electronic devices, clothing, and other personal objects.

The chattel torts are a group of torts that deal with the unauthorized or wrongful use of another’s personal property. The main chattel torts in common law are as follows:

• Conversion – occurs when someone intentionally or negligently interferes with another person’s right to possession of their chattel. For example, if someone takes another person’s car without their permission and uses it for their own purposes, they would be committing conversion.

Each of the torts are related in that they deal with movable property however, the type and extent of interference is different.

Protecting Your Reputation

As we saw earlier, the Charter constitutionalizes freedom of expression. However, one’s ability to express themselves is not unfettered — indeed, it could lead to tort liability if the content is found to be defamatory.

At the heart of defamation is the law’s desire to protect one’s reputation. A person’s reputation is a valuable asset and can have significant personal and professional consequences if defamed. In a world where information spreads rapidly through social media and online platforms, a negative reputation can quickly tarnish an individual’s or company’s image.

The tort of defamation provides a legal remedy to individuals who have suffered harm to their reputation. By allowing individuals to bring defamation claims, the law recognizes the importance of protecting one’s reputation from false and damaging statements. It ensures that individuals can seek compensation for the harm caused and helps deter others from spreading false information or making defamatory statements.

There are two main types of defamation in Canada: libel and slander. Libel is defamation that is in written form, while slander is defamation that is spoken.

With respect to the first element of the test, a defamatory statement is one that tends to lower the reputation of the person in the estimation of right-thinking members of society. For example, if a newspaper article falsely accuses a lawyer of insurance fraud, it would be considered defamatory because it harms the lawyer’s reputation in the community.

Secondly, the statement must specifically identify the person being defamed. For example, if a radio host makes a defamatory statement about “all politicians,” it would not be defamatory because it does not refer to a specific individual.

Lastly, the statement must be communicated to at least one person other than the person being defamed. This can include speaking, writing, or printing the statement. For example, if a person makes a defamatory statement about their neighbour, but only says it to themselves and not to anyone else, it would not be considered defamation because it has not been published (i.e. communicated to a third party).

Protecting Your Economic Interests

In addition to many of the other torts we have seen, there are also options to seek compensation for economic damages caused by the tortfeasor. This not only serves the goal of providing individual compensation for injury, but also assists in promoting commercial fair play.

By allowing claims against those who act in an anti-competitive manner, it maintains a competitive environment and protects the interests of both businesses and consumers.

Civil Conspiracy

Civil conspiracy is a legal cause of action that allows individuals to seek damages when two or more parties conspire to commit an unlawful act resulting in harm. The essence of the tort is that there are multiple parties which are attempting to cause a financial loss to another.

If successful, the plaintiff may be entitled to various remedies, including damages to compensate for the harm suffered as a result of the conspiracy.

Intimidation

The tort of intimidation occurs when one person threatens to cause injury or loss to another person in order to influence their actions or decisions. This can take the form of physical threats, as well as threats to a person’s reputation or economic well-being.

For example, imagine a workplace supervisor repeatedly threatened to fire an employee if they did not participate in illegal activities, such as manipulating financial records. The employee, fearing the loss of their job, eventually gave in to the threats and engaged in the illegal activities and ultimately was fired for that misconduct. Here the supervisor could be sued for intimidating the employee which resulted in a loss.

Inducing Breach of Contract

Inducing breach of contract applies when one person intentionally persuades another to breach a contract with a third party. This tort is based on the idea that there should be respect for the contractual relations entered into by two parties; a party that tries to disrupt that relationship should be subject to liability.