Documentation:Torts/Trespass to the person

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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
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Trespass to the person
The torts of battery, assault, and false imprisonment are together known as the torts of trespass to the person.[1] These torts are said to be connected by their "commitment to the personal autonomy of the individual" and the presumption "that each individual has exclusive control over his own physical person so that any attempt by another to usurp that control is a wrong."[1] They are torts actionable per se, meaning a plaintiff does not have to prove they have suffered any damage in order to establish their cause of action.[2]

Common law courts sometimes vary in their expression of the precise elements of the trespass to the person torts. In the oft-cited English case of Collins v. Wilcock, Goff L.J. summarized the trespass-to-the-person torts as follows:

  • Battery: "[T]he actual infliction of unlawful force on another person."[3]
  • Assault: "[A]n act which causes another person to apprehend the infliction of immediate, unlawful, force on his person."[3]
  • False imprisonment: "[T]he unlawful imposition of constraint upon another’s freedom of movement from a particular place."[3]

Foundational concepts

The trespass torts, which originate in the writ of trespass vi et armis, share certain common features.

Directness

One common feature of these torts, which stems from the trespass form of action, is that there must be a "direct connection between the defendant’s action and the plaintiff’s injury".[4] McLachlin J. for the Supreme Court of Canada in Non-Marine Underwriters, Lloyd's of London v. Scalera explained that an "[i]nterference is direct if it is the immediate consequence of a force set in motion" by the defendant.[5]

Scott v. Shepherd background
This Quimbee video provides the background of the case.[6]

An interference may be an immediate consequence even when the plaintiff and defendant do not physically meet. In Scott v. Shepherd, the defendant threw a live firecracker into a public market.[7] The firecracker was thrown around by several individuals who were trying to avoid it, until it blew up in the plaintiff's face. Although the defendant did not personally come into contact with the plaintiff, the court found that the defendant was still liable for the plaintiff's injury since the injury was the direct consequence of the defendant's unlawful conduct.

Volition

The plaintiff must have been in control of their actions to be liable. In Smith v. Stone, the defendant was carried onto the plaintiff's land by force.[8] The court held that this was not tortious conduct by the defendant because the defendant had not acted with volition at the time.[8] The situation would have been different had the defendant been cajoled by others' duress; in such a case a defendant might be in an unenviable position, but still in control of their actions.[9]

Intention

Intentional torts against the person
In the Australian podcast Law of Torts, host Kim Bailey discusses the torts of assault, battery, and false imprisonment.[10]

The trespassory torts are often called intentional torts. The defendant's act of interference must be intended, though it is not necessary that the defendant anticipate or desire the their actions being wrongful.[11] (It is for this reason that the trespassory torts are sometimes called torts of strict liability. By this is meant that "[t]he plaintiff does not have to prove fault on the part of the defendant."[12] But unlike conventional strict liability torts, there must still be an intention on the part of the defendant to interfere with the plaintiff’s bodily autonomy.)[13]

In the English case of Letang v. Cooper, Denning M.R. drew a clear line between liability for intentional and unintentional conduct.[14] Intentional wrongful conduct was said to be the province of the trespass-to-the-person torts; unintentional wrongful conduct was the province of the tort of negligence.[15] Diplock L.J., on the other hand, thought the distinction unnecessary to resolve. In Collins v. Wilcock, Goff L.J. defined the trespass-to-the-person torts without commenting on their "requisite mental element."[3]

In Canada, there remains some debate over the nature and role of intention in the trespassory torts and whether a defendant may be liable for negligent (rather than intentional) trespass.[16] This debate stems from the judgment of the Supreme Court of Canada in Cook v. Lewis,[17] a case decided in 1951 when the tort of negligence was still in an early stage of development.[18] In the more recent case of Non-Marine Underwriters, Lloyd's of London v. Scalera, McLachlin J. for a majority of the Court stated:

It is unnecessary on this appeal to comment on the relationship between battery (traditionally thought of mainly as an intentional tort) and negligence. In this case, insofar as one could speak of negligent battery, it would be to recognize the defence of reasonable belief in consent to a suit based on an intentional act. ...[19]

A minority of the Court, by contrast, were prepared to recognize that a “negligent battery occurs when the defendant causes harm by negligently disregarding a foreseeable risk of physical contact.”[20]

It is clear from case law that Canadian courts frequently consider intentional interference to be an element of the trespass-to-the-person torts.[21]

Capacity

A person will not be held liable in trespass if they were not capable of forming the intent required to commit an intentional tort. The defendant's capacity is assessed by a fact-specific enquiry. Whether a child can be held civilly responsible for their actions is not determined solely by their age.[22]

Defences

In Canadian common law plaintiffs generally need not plead that the defendant's invasion of their person was unwanted or unlawful. Defences such as consent, self-defence and legal authority are not formally elements of a cause of action but are defences to a cause of action. The defendant bears the onus of pleading and proving such defences on the balance of probabilities.

A plaintiff need not plead that the defendant's touching was unwanted, although a plaintiff's valid consent will serve as a defence to any claim in battery.[5][23] The defendant will prevail if they can prove that the plaintiff consented to their actions.[24] This can be contrasted to some other common law jurisdictions, where battery is defined as harmful or offensive touching without consent or other lawful justification.[25]

Battery

"Battery ... is the intentional infliction upon the body of another of a harmful or offensive contact."[26]

"[A] battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person ...."[27]

Elements of battery
1. The defendant intentionally inflicts
2. harmful or offensive
3. contact with the plaintiff's body

Intentional

The settled rule is that it is for "the plaintiff in a battery case to show only contact through a direct, intentional act of the defendant," after which it is for the defendant to defend their actions by "showing consent or lawful excuse."[28] While the defendant's contact with the plaintiff must have been intended, it is not necessary that the wrongdoer intended the full consequences that followed.[26] In Bettel v. Yim, although the defendant did not wish to hurt or physically injure the plaintiff boy, because the defendant did intend physically to shake the boy he was liable for the full extent of the boy's injuries that resulted.[26]

Harmful or offensive

In the news
Jake Roper's treatment in prison
Jake Roper, the Don Dale detainee who escaped his cell, and was subsequently sprayed with CS gas, in Binsaris v. Northern Territory,[29] was featured in this news story.[30]

This news story came in the wake of footage being released on ABC's Four Corners program that revealed the horrific conditions of the detention facility and ultimately prompted a Royal Commission.[31]

Battery in COVID-19
In Mete v. Masouleh, the BC Civil Resolution Tribunal considered several claims, including battery, and awarded the plaintiff $1000 as the evidence showed that it was "more likely than not" that the defendant spit on the plaintiff during a neighbourly dispute.[32] As this incident occurred in June 2020, the tribunal noted took note of the fact that the plaintiff "was concerned about COVID-19 transmission given the ongoing pandemic at the time".[33]

In Scalera, McLachlin J. averred that "the law of battery is based on protecting individuals’ right to personal autonomy."[5] Harmful contact is that which invades the plaintiff's interest in the physical integrity of their body. In Cole v. Turner, it was declared that "[t]he least touching of another in anger is a battery."[34] Offensive contact is that which violates social norms and invades the plaintiff's dignitary interest in their body. Examples given in Bettel v. Yim, citing Fleming's Law of Torts, include spitting in someone's face, cutting their hair or kissing them.[35]

Contact that is well-meaning may still amount to battery if done without the plaintiff's consent. A surgery or blood transfusion is presumptively a battery, and is only non-tortious where the patient has consented to it.[36] It is presumptively a battery to vaccinate someone, although no liability will follow where the person being vaccinated (or if the person is a child, their parents) expressly consented to the procedure.[37]

Acceptable everyday conduct

"If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery."[34]

"Trivial" touching is not considered to amount to battery.[38] Physical contact that is a part of "ordinary life" is not actionable in tort because:

Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.[39]

In Collins v. Wilcock, Goff L.J. outlined some examples of such contact:

  • Jostling which is "inevitable" in a supermarket, a subway station or a busy street;
  • Taking hold of someones hand "in friendship" or slapping someone's back (within reason) at a party.
  • Touching a person for the purpose of engaging their attention, using only a degree of physical contact which is reasonably necessary in the circumstances.[39]

But contact that goes beyond the ordinary is not acceptable. For example, persistently touching someone or physically restraining them may still amount to battery.[40]

Contact

Not all batteries involve physical contact between the defendant's and plaintiff's bodies. The intentional application of harmful gases or liquids to the plaintiff can amount to battery.[41] In Binsaris v. Northern Territory, the High Court of Australia found battery in the use of teargas on inmates by correctional staff.[42]

It has been suggested that a defendant who coerces a plaintiff to touch themselves in a harmful or offensive manner commits battery. In Farrell v. Attorney General of Canada, the Ontario Superior Court considered it arguable that battery could be established in cases where correctional staff required inmates to touch their own bodies in order to conduct strip searches.[43]

Assault

"Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs."[44]

"[A] tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature."[27]

It constitutes an assault to cause in the plaintiff "a reasonable apprehension of imminent offensive contact."[45]

Elements of assault
1. The defendant intentionally causes in the plaintiff
2. a reasonable
3. apprehension/fear
4. of imminent
5. harmful or offensive
6. contact/touching of their body.

Examples of assault raised in the classic case of Tuberville v. Savage include holding up one's fist against another as if about to strike; and actually striking at another person, but missing them.[46]

Apprehension

Tuberville v. Savage
This Quimbee video outlines the background of the case.[6]

Photo of the Assize Courts of Manchester.
The Assize Courts of Manchester.

In order for there to be an assault, the alleged wrongdoer must lead the plaintiff to apprehend a threat of physical violence.[44] In Tuberville v. Savage, the court found that no assault had occurred because the words that were claimed to be tortious were conditional on the judges not being in town.[46] Specifically, the statement in question was "If it were not assize-time, I would not take such language from you."[46] Properly understood, the statement suggested that Tuberville would not strike at Savage because the judges were in town, although he would not have exercised such restraint had the circumstances been different. Thus, there was no assault.[46]

Reasonableness

The plaintiff's apprehension must be reasonable such that the defendant's conduct would cause an ordinary person to fear violence. The British Columbia Supreme Court in Mahal v. Young stated:

The actual ability to execute a threat need not be present, as long as it appears to a reasonable plaintiff that it is there. If a person is reasonably apprehensive of imminent physical contact, even though he is in no real danger, he may still recover for assult [sic].[47]

Imminence

There is some debate in the case law as to the scope of imminence as an element of assault, although the Ontario Court of Appeal maintains that "[i]mminence is a critical component of the tort of assault."[48] What does it mean for a plaintiff to fear immediate or imminent harm? Much turns on the circumstances. An attempted battery may be imminent even if it is stopped before physical contact can actually occur.[49] In Stephens v. Myers, even though the defendant was stopped before he could actually strike the plaintiff, the court found that all elements of the tort of assault were met.[49] The court noted that it was crucial that the defendant possessed "the means of carrying the threat into effect."[49]

Quoting Linden et al, the Ontario Court of Appeal in Barker v. Barker noted that "[t]o threaten to do harm to someone at some future time, because this is not as likely to spur retaliation, does not amount to an assault, although it may give rise to other tortious or even criminal responsibility."[50] However, in Tam v. Chan, the Hong Kong Court of First Instance stated that "[w]hether the act complained of by the plaintiff constitutes an assault must depend on all the circumstances including the nature of the act and the manner in which it was made".[51] The court then went on to consider case law which stated:

Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times unspecified and uncertain. Being able to immediately carry out the threat is but one way of creating the fear of apprehension, but not the only way. There are other ways, more subtle and perhaps more effective.[52]

False imprisonment

"The plaintiff must prove three elements to establish the tort of false imprisonment. He or she must have been totally deprived of liberty; this deprivation must have been against his or her will; and it must be caused by the defendant. The onus then shifts to the defendant to justify the detention, based on legal authority under common law or statute."[53]

"Unlawful imprisonment, commonly referred to in textbook commentary as false imprisonment, is a tort of strict liability. Its elements are confinement of another within fixed boundaries, and intention to confine. Loss is not an element of the tort and so is not a prerequisite to a remedy of damages."[54]

"[F]alse arrest ... is the intentional and total confinement of a person against his will without lawful justification."[55]

Elements of false imprisonment
1. The defendant intentionally and
2. totally confines the plaintiff
3. against the plaintiff's will.
In the news
Judge held liable for falsely imprisoning self-represented litigant
In 2023, an inferior court judge in Australia was held liable for false imprisonment for unlawfully ordering a self-represented litigant to 12 months' imprisonment for contempt of court.[56] One of the primary issues in the case was whether or not the Judge was "immune from any liability because he made the imprisonment order in his capacity as a judge."[57] The judgment was overturned on appeal on the basis of judicial immunity.[58]

This episode of The Law Report discusses the case with the plaintiff's lawyer, Sam Tierney.[59]

The case was reported in The Guardian article, "Man jailed during routine property dispute wins $300,000 after suing judge over ‘fundamental errors’".[60]

Total confinement / deprivation of liberty

False imprisonment (or false arrest) entails that the plaintiff was "totally deprived of liberty."[53][61] Merely preventing a plaintiff from entering a space or traveling in a particular direction is not false imprisonment. This was demonstrated in Bird v. Jones, where a portion of a public highway was closed off for a paid boat race.[62] The plaintiff climbed over the fence in order to get to his destination, but two policemen prevented the plaintiff from passing through. The plaintiff was allowed to return the same way he came, and no actual force or restraint was used on the plaintiff. Since the plaintiff wasn't totally confined, there was no false imprisonment.

Psychological confinement

Confinement need not entail physical restraint.[63] For example, in Chaytor v. London, New York and Paris Association of Fashion Ltd, the plaintiffs, who were accused of wrongdoing in a retail store, felt psychological pressure to remain in the store after the police were called.[64] The court found that "what one might call a psychological type of imprisonment" could amount to the tort of false imprisonment.[65]

Intention to confine

The relevant intention is to confine the plaintiff, regardless of whether the defendant believed the confinement to be lawful. In R v. Brockhill Prison Governor, the respondent was serving a lawfully-imposed prison sentence for which she was entitled to a reduction in actual time served. Due to a mistake in the calculation of her sentence she spent longer in prison than she ought to have.[66] The elements of the tort of false imprisonment were found to be met, since the Governor of the prison had meant to confine the respondent during that period, even though the Governor had acted in good faith.[67] Mere belief that a detention is lawful is not a justification in the event the detention is shown to be unlawful.[67]

Criminal trespass to the person

Actions that attract liability in the torts of battery, assault and false imprisonment may also be criminal offences that can be prosecuted by the state.[68][69] The elements of offences set out in the Criminal Code overlap with, but are not necessarily coterminous with, the elements elucidated in the common law of tort. The Criminal Law Notebook discusses the crimes of assault and forcible confinement in more detail.

Assault and battery in the Criminal Code of Canada
Criminal Code, RSC 1985, c. C-46 s. 265(1).[68]
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Forcible confinement in the Criminal Code of Canada
Criminal Code, RSC 1985, c. C-46 s. 279(2).[69]
279 (2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.

Discussion questions

Battery and assault

  • In Binsaris v. Northern Territory, the concurring opinion of Gageler J. held that though it was lawful and reasonable for the correctional officers to utilize teargas when trying to subdue Jake Roper, exposure of other inmates to the teargas nevertheless amounted to battery. Why was the apparent lawfulness and reasonableness of the officers' actions not a good defence to the tortious claims?
  • In light of Kohli v. Manchanda,[70] consider the lawsuit that has been brought against Dr. Andrew Kotaska for performing a sterilization surgery on an Inuit woman from Tuktoyaktuk, NWT, without her consent.[71] The doctor believed he was acting in his patient's best interests. What would be the basis of the plaintiff's civil claim and of the defendant's defence? What is the relevance of the doctor's apology?[72] What is the significance of the RCMP's decision not to investigate or prosecute the doctor?[73] A report of the Canadian Senate into Forced and Coerced Sterilization of Persons in Canada has found that "the horrific practice of forced and coerced sterilization continues to occur, underreported, and disproportionately affecting Indigenous women and other vulnerable and marginalized groups in Canada."[74] Class actions are currently being pursued. What role, if any, might tort law play in helping this country "to fully reckon with its troubled colonial past" and to "put a stop to a decades-long practice that is considered genocide"?[75]

False imprisonment

  • Lord Denman, writing the dissent for Bird v. Jones, noted that although the plaintiff still had the option of going back (i.e., not passing onwards), this was irrelevant to the question of whether the plaintiff was falsely imprisoned. Do you agree? How have the courts in other cases addressed this issue?
  • Consider Stradford v. Judge Vasta.[76] How does this case engage the Diceyan principle of equality under ordinary law?
  • Does the law enforcement tactic of "kettling"[77] protestors amount to false imprisonment? Consider the judgment of the English Court of Appeal in Walker v. Commissioner of the Police of the Metropolis (discussing the kettling of protestors in Oxford Circus on May Day 2001),[78] as well as the ABC News article, "New York City to pay record settlement for 'kettling' George Floyd protesters."

Criminal and civil liability

Quiz


  1. ↑ 1.0 1.1 Sullivan, Ruth (1987). "Trespass to the Person in Canada: A Defence of the Traditional Approach". Ottawa Law Review. 19 (2): 536 – via CanLII.
  2. ↑ Norberg v. Wynrib, 1992 CanLII 65 (SCC) (§9.4.1) at para 54.
  3. ↑ 3.0 3.1 3.2 3.3 Collins v. Wilcock, [1984] All ER 374 at para 11.
  4. ↑ Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at para 11.
  5. ↑ 5.0 5.1 5.2 Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at para 8.
  6. ↑ 6.0 6.1 Quimbee (23 February 2022). "Tuberville v. Savage Case Brief Summary | Law Case Explained". YouTube.
  7. ↑ Scott v. Shepherd (1773), 96 ER 525 (KB) (§2.1.2).
  8. ↑ 8.0 8.1 Smith v. Stone (1647), 82 ER 533 (KB) (§2.1.1)
  9. ↑ Gilbert v. Stone (1648), 82 ER 539 (KB) (§6.2.1.1).
  10. ↑ Bailey, Kim (28 Jun 2021). "Topic 1 - Intentional Torts Against the Person". LAW114 - Law of Torts – via TuneIn.
  11. ↑ Peter Ballantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124 at paras 132-133
  12. ↑ R v. Brockhill Prison Governor, ex p Evans (No. 2), [2000] UKHL 48 (BAILII) (§2.4.5) per Lord Steyn.
  13. ↑ Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at para 10.
  14. ↑ Letang v. Cooper, [1964] EWCA Civ 5 (§1.3.3) at para 10.
  15. ↑ Letang v. Cooper, [1964] EWCA Civ 5 (§1.3.3) at para 11.
  16. ↑ F. (B.) v. Saskatchewan Rivers School Division No. 119, 2000 SKCA 117 at paras 15–18.
  17. ↑ Cook v. Lewis, 1951 CanLII 26 (SCC) at 839.
  18. ↑ Veitch, Edward. "The Many Facets of Cook v. Lewis". (2010) 34 Manitoba L.J. 287, 2010 CanLIIDocs 238.
  19. ↑ Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at para 42.
  20. ↑ Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at para 128.
  21. ↑ See e.g. Bettel v. Yim, 1978 CanLII 1580 (ONSC) at para 13.
  22. ↑ Olsen v. Olsen [2006] BCSC 560 at para 20.
  23. ↑ Picard, Ellen (1979). "Onus of Proving Consent in Trespass to the Person: On Whom Does it Rest?". Alberta Law Review. 17 (2): 322.
  24. ↑ Collins v. Wilcock, [1984] All ER 374 at para 13.
  25. ↑ P v. T, [1998] NZLR 257 at paras 1–2.
  26. ↑ 26.0 26.1 26.2 Bettel v. Yim, 1978 CanLII 1580 (ONSC) at para 13.
  27. ↑ 27.0 27.1 Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para 61.
  28. ↑ Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at para 7.
  29. ↑ Binsaris v. Northern Territory, 2020 HCA 22 (§2.2.4) at paras 1–2.
  30. ↑ Bardon, Jane (20 November 2017). "Don Dale detainee trying to turn his life around". YouTube.
  31. ↑ Burke, Liz (26 Jul 2016). "ABC Four Corners reveals footage showing extent of alleged abuse of youths in the Northern Territory". The Daily Telegraph.
  32. ↑ Mete v. Masouleh, 2023 BCCRT 515 (CanLII) at paras 41–48.
  33. ↑ Mete v. Masouleh, 2023 BCCRT 515 (CanLII) at para 48.
  34. ↑ 34.0 34.1 Cole v. Turner (1704), 90 ER 958.
  35. ↑ Bettel v. Yim, 1978 CanLII 1580 (ONSC) at para 17.
  36. ↑ Kerr, Margaret (2019). Canadian Tort Law in a Nutshell. Toronto: Thomson Reuters. p. 20.
  37. ↑ Toews v. Weisner, 2001 BCSC 15 (§6.3.1.2) at paras 22-24.
  38. ↑ Mete v. Masouleh, 2023 BCCRT 515 (CanLII) at para 41.
  39. ↑ 39.0 39.1 Collins v. Wilcock, [1984] All ER 374 at para 13.
  40. ↑ Collins v. Wilcock, [1984] All ER 374 at para 14.
  41. ↑ Binsaris v. Northern Territory, 2020 HCA 22 (§2.2.4) at para 23.
  42. ↑ Binsaris v. Northern Territory, 2020 HCA 22 (§2.2.4) at paras 49-50.
  43. ↑ Farrell v. Attorney General of Canada, 2023 ONSC 1474 at paras 184–89.
  44. ↑ 44.0 44.1 Warman v. Grosvenor, 2008 CanLII 57728 (ON SC) at para 58; McLean v. McLean, 2019 SKCA 15 at para 59, citing Allen M Linden, et al, Canadian Tort Law, 10th ed (Toronto: LexisNexis, 2015) at §2.42.
  45. ↑ M.(K.) v. M.(H.), [1992] 3 SCR 6 (SCC); see Deluca v. Bucciarelli, 2022 ONCA 774 at paras. 21-24.
  46. ↑ 46.0 46.1 46.2 46.3 Tuberville v. Savage, [1669] EWHC KB J25 (BAILII) (§2.3.1).
  47. ↑ Mahal v. Young, [1986] BCJ No 2060 citing Allen Linden, Canadian Tort Law, 3rd ed (Toronto: Butterworths, 1982) at 41.
  48. ↑ Barker v. Barker, 2022 ONCA 567 at para 171; see Alberta Health Services v. Johnston, 2023 ABKB 209 at para 76.
  49. ↑ 49.0 49.1 49.2 Stephens v. Myers, [1830] EWHC KB J37 (BAILII) (§2.3.2).
  50. ↑ Barker v. Barker, 2022 ONCA 567 at para 171, citing Allen M Linden, et al, Canadian Tort Law, 11th ed (Toronto: LexisNexis, 2018) at §2.42.
  51. ↑ Pong Seong v. Chan, [2014] HKCFI 1480 (§2.3.3) at para 65.
  52. ↑ Barton v. Armstrong, [1969] 2 NSWR 451 at 455.
  53. ↑ 53.0 53.1 Kovacs v. Ontario Jockey Club, 1995 CanLII 7397 (ONSC) at para 45.
  54. ↑ Ewert v. Canada (AG), 2022 BCCA 131 at para 44
  55. ↑ Jensen v. Stemmer et al., 2007 MBCA 42 at para 65.
  56. ↑ Stradford (a pseudonym) v. Judge Vasta, [2023] FCA 1020.
  57. ↑ Stradford (a pseudonym) v. Judge Vasta, [2023] FCA 1020 at para 12.
  58. ↑ Queensland v Stradford [2025] HCA 3.
  59. ↑ Law Report (5 September 2023). "Judge liable for wrongful imprisonment and a Palawa lawyer's case for No". ABC News.
  60. ↑ Knaus, Christopher; Bucci, Nino (30 August 2023). "Man jailed during routine property dispute wins $300,000 after suing judge over 'fundamental errors'". The Guardian.
  61. ↑ See Huang v. Silvercorp Metals Inc., 2016 BCCA 100 at para 23.
  62. ↑ Bird v. Jones, [1845] EWHC QB J64 (BAILII) (§2.4.1) at para 3.
  63. ↑ Chaytor v. London, New York and Paris Association of Fashion Ltd, 1961 CanLII 404 (NLSC) (§2.4.3) at para 38.
  64. ↑ Chaytor v. London, New York and Paris Association of Fashion Ltd, 1961 CanLII 404 (NLSC) (§2.4.3) at paras 28. 31.
  65. ↑ Chaytor v. London, New York and Paris Association of Fashion Ltd, 1961 CanLII 404 (NLSC) (§2.4.3) at para 31.
  66. ↑ R v. Brockhill Prison Governor, ex p Evans (No. 2), [2000] UKHL 48 (BAILII).
  67. ↑ 67.0 67.1 R v. Brockhill Prison Governor, ex p Evans (No. 2), [2000] UKHL 48 (BAILII) (§2.4.5) at paras 4-8.
  68. ↑ 68.0 68.1 Criminal Code, RSC 1985, c. C-46 s. 265(1)
  69. ↑ 69.0 69.1 Criminal Code, RSC 1985, c. C-46 s. 279(2)
  70. ↑ Kohli v. Manchanda, [2008] INSC 42 (§2.2.2).
  71. ↑ "Tuktoyaktuk woman files $6M lawsuit claiming N.W.T. doctor sterilized her without consent". CBC. March 10, 2022.
  72. ↑ "Doctor who sterilized woman without consent apologizes in statement". Cabin Radio. September 7, 2023.
  73. ↑ "Canadian police won't investigate doctor for sterilizing Indigenous woman". ABC News. September 27, 2023.
  74. ↑ Senate Committee on Human Rights (2021). Forced and Coerced Sterilization of Persons in Canada. p. 8.
  75. ↑ "Canada's Indigenous women forcibly sterilized decades after other rich countries stopped". CTV News. July 12, 2023.
  76. ↑ Stradford v. Judge Vasta, [2023] FCA 1020.
  77. ↑ "Crowd control: What is kettling?". CBC News. May 24, 2012.
  78. ↑ Walker v. Commissioner of the Police of the Metropolis (Rev 1), [2014] EWCA Civ 897 at para 25.
  79. ↑ Uguen-Csenge, Eva (28 January 2022). "Woman assaulted by husband awarded $800K in civil lawsuit. He received an absolute discharge in criminal case". CBC News.
  80. ↑ Gollom, Mark (5 January 2018). "'Her voice is heard': Why some accusers pursue civil rather than criminal justice in harassment cases". CBC News.
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