Documentation:Torts/Legal authority

TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index

Legal authority.

There is a defence to tort liability when one acts within the scope of one's legal authority or lawful authority. The defence of legal authority will be successful if the defendant proves their conduct was both authorized and privileged by law.

This is an important defence for law enforcement officers in particular. In "Commonwealth jurisdictions such as Canada ... [t]here is no presumptive immunity from civil liability when officers violate an individual’s common law or constitutional rights. Injurious actions are justified only if lawful."

Elements of the defence

The defence of legal authority is "important for government authorities that are required to maintain law, order, safety and governance in a manner consistent with their statutory powers. The exercise of their responsibilities will often, necessarily, encroach on private rights." This defence can also apply to "parents, teachers, airline stewards, or police officers, [as] this [defence] does not hold anyone liable who had legal authority to take the actions they did."

In Canada, the Criminal Code sets out various provisions that authorize, privilege, and justify conduct, notably sections 25, 494, and 495.

Criminal Code, RSCC 1985
Criminal Code, RSC 1985, c C-46, ss 25, 494(1)–(2), 495(1).
25. Protection of persons acting under authority (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. (2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction. (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm. (4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if (a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; (b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; (c) the person to be arrested takes flight to avoid arrest; (d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and (e) the flight cannot be prevented by reasonable means in a less violent manner. *** 494(1). Arrest without warrant by any person (1) Any one may arrest without warrant (a) a person whom he finds committing an indictable offence; or (b) a person who, on reasonable grounds, he believes (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person. 494(2). Arrest by owner, etc., of property (2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and (a) they make the arrest at that time; or (b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. *** 495. Arrest without warrant by peace officer (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

• Section 25 privileges and justifies people to use "as much force as necessary" for the purpose of what they are lawfully authorized to do.

Framework of section 25(1) defence
"Section 25(1) contains three branches. In order to access the protection of the section, a police officer must prove that he or she: (i) was required or authorized by law to perform an action in the administration or enforcement of the law; (ii) acted on reasonable grounds in performing that action; and (iii) did not use unnecessary force."

• Section 494 authorizes citizens' arrests.
• Section 495 authorizes police officers to arrest without warrant people committing offences.

Framework of section 495(1)(a) and (b) - Power of a peace officer to arrest without a warrant
1. "A warrantless arrest requires both subjective and objective grounds."
(i) Subjective: "The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint."
(ii) Objective: "The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer."
2. "The police are not required to have a prima facie case for conviction before making the arrest."
3. "[A]n arrest based on a mistake of law is unlawful, even if the mistake is in good faith."

In the news
"With great power should come no responsibility"
In 2019, the "Ontario PCs plan[ed] to repeal and replace the long-standing Ontario Proceedings Against the Crown Act — legislation that, among other things, outlines government liability in cases of misfeasance and negligence." A professor of law at the University of Ottawa, Amir Attaran, "said the PCs plan would make it difficult to sue the Ontario government 'even when it acts in bad faith or breaches the duties of office".

Dicey's principle of equality under ordinary law

A.V. Dicey was a jurist and theorist in the late 19th and early 20th century. He considered it fundamental to the rule of law that "every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals." Dicey's principle of equality "indicates that in terms of the equality before the law, no man is above the law", no matter his rank or condition. This means that although public officials have special powers and duties arising from their official role, their liability at common law for injurious acts is preemptively treated in the same way as that of a private individual defendant. This is also known as the "citizens in uniform' doctrine".

While administrative law recognizes the special duties and powers of officers, it does not generally take away from their common law duties and power. Law enforcement officers may exercise more statutory powers than private citizens, but if they exceed those powers they cannot rely on the benefits of claiming they acted in a good faith belief that they were authorized and should have qualified immunity from tort liability.

Discussion questions

• Read the cases under §6.6.9 - A comparisons: United States public officer immunities. How do Canadian and U.S. courts differentiate or coincide on their reasoning regarding public officer immunities and privileges?
• The Sixties Scoop scheme and Canada's residential school system (discussed in no-fault compensation schemes) "were effected by governments and public servants that failed to treat First Nations people as equals under law. The courts countenanced these injustices by failing to hold public authorities equally accountable to victims through the ordinary laws of negligence, assault, and battery." Has the law adequately evolved to prevent these types of injustices recurring?