Intentional Torts

Intentional torts “involve intentional, rather than merely careless, conduct.” Intention does not always mean that the defendant intended to cause harm but may simply mean that the defendant “knew that a particular act would have particular consequences.”53 Figure describes common intentional torts that are relevant to businesses.54

Figure : Intentional Torts

Some of the torts in Figure  (e.g., assault and battery, defamation) also give rise to criminal prosecution, but the Crown is concerned only with the criminal aspect. The victim must pursue an action in civil court to obtain compensation for any losses.

Regarding the tort of defamation, use of the Internet to make and disseminate defamatory statements can make it difficult to identify and locate the maker of the statements, but the full range of remedies is available once defamation is proven. Compared to the traditional tort of defamation, the harm associated with Internet defamation is not limited to a particular geographic area, and damages awarded may reflect this. In a 2008 case, Griffin v. Sullivan, the B.C. Supreme Court “awarded the injured plaintiff not only substantial general damages, damages for breach of privacy, special damages, and aggravated damages, but an injunction as well.”

Surprisingly, until very recently Canada had not yet recognized a general tort of invasion of privacy. The courts have been reluctant to recognize such a tort because they want to support freedom of expression and freedom of information. They also want to balance the interests of both parties. However, privacy has been indirectly related to several torts. A photographer who sneaks onto someone’s land to take unauthorized pictures commits the tort of trespass. Employees who publish embarrassing information about their employer’s private life may be guilty of breach of confidence. English courts have also recognized a tort of abuse of information. Unauthorized use of celebrity images to sell products may be misappropriation of personality.

In a unanimous decision, in January 2012, the Ontario Court of Appeal recognized a tort of invasion of privacy. Part of the rationale was that “The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store, and retrieve information…It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our society and political order.”

Therefore, in Ontario, “(o)ne who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy if the invasion would be highly offensive to a reasonable person.” The elements to be proven are that 1) the defendant’s conduct is intentional or reckless; 2) the defendant invaded, without lawful justification, the plaintiff's private affairs or concerns; and 3) “a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.” Examples of significant invasions include “one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence.” Proof of economic harm is not required, and the judgment rendered specifically states that “given the intangible nature of the interest protected, damages…will ordinarily be measured by a modest conventional sum.”

In addition, legislators have also begun to provide protection from invasion of privacy either through the Criminal Code or through statutes that “impose liability if a person ‘wilfully’ violates another’s privacy by doing something that they know to be wrong.”58 For instance, B.C.’s Privacy Act creates the tort of breach of privacy, and mentions eavesdropping and surveillance as some ways to violate the privacy of another.