In this ongoing series, senior partner, Greg Miller explains fair treatment outside of a contract situation. Where no contract exists the law of torts, established by the courts, sets out how citizens should treat each other.
Greg Miller, Construction Litigation
Retired Partner, Dispute Resolution
Lindsay Kenney – Vancouver
I’m often asked by clients, “Can they do that to me?” This is often a prelude to a discussion whether you’re being treated fairly outside of a contract situation. The answer depends on the exact circumstances, but the analysis is always the same.
Within a contract, the rules as to how parties are to behave are generally agreed upon. Outside of a contract, the rules as to how citizens treat each other have been established primarily by courts through the law of torts. Torts are civil wrongs. In the English common law, they developed over centuries to set basic rules as to how citizens should treat each other. When British Columbia was established, it adopted the English common law as it then stood. Tort law was primarily created, interpreted, and enforced by the courts. Breach of tort law may entitle the injured party to damages from the wrongdoer.
Tort law is broadly categorized into two branches: the intentional torts, the unintentional torts. A few of the intentional torts are the topic of this presentation. Intention is the foresight of consequences arising from an act, and the desire to bring those consequences about.
Battery, is one of the intentional torts. Battery is the intentional harmful or offensive contact with another. It’s coexistent with an offence under the criminal code of Canada, but it is prosecuted civilly by the injured party. Protection of bodily security is the obvious goal. Avoiding societal chaos is another goal, that is avoiding “eye-for-an-eye” type of conduct. So important is your bodily security, that proof of actual harm is not required. We say that the matter is actionable per se. The touching itself is sufficient. And the intention relates to the touching, not the harm. Indeed, the victim need not even be aware of the touching at the time, for example, when you’re asleep or under anesthetic.
Assault is the intentional creation of the apprehension of imminent battery. A protection of freedom from fear or the interference of bodily security is the obvious goal. So important is it, that it’s actionable per se, that is, actionable without proof of damage. So, don’t touch people that don’t want to be touched, and don’t threaten those people with touching. False imprisonment is the intentional wrongful confinement of another person within fixed boundaries. It protects bodily security in terms of the freedom of movement. It too is actionable per se. So important is it, that the victim need not even be aware of the confinement at the time. For example, a child who may not be aware of what’s happening to them. So don’t try to confine people who don’t want to be confined.
Defamation is a false statement about a person to his or her discredit. It occurs when such a false statement is published to a third party who might reasonably view that person less favourably on account of what’s being said. Every person who participates in the publication is libel. So don’t participate in the spreading of rumours. An apology does not mitigate the wrong, but it might mitigate the damages. Of course, truth is a defence.
Now some situations benefit from absolute privilege, such as judicial proceedings and parliamentary proceedings. Other situations might benefit from qualified privilege. Such as the protection of your own interest, a self-defence type of situation. So don’t say bad false things about people.
In summary, everyone in society has to conduct themselves within the framework of tort law.