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Requirement
Analyze the following five problems and report your conclusions in paragraph form. Six marks for each problem. Your answers should explain the relevant law and apply it to the particular facts of the case. You should refer to any relevant precedents that are discussed in the text. When referring to legislation, identify the legislation and relevant sections. When explaining an intentional tort, you should define the tort and discuss whether all the requirements of that tort have been met. When discussing negligence, you must discuss all the requirements of a successful lawsuit even if you conclude that a lawsuit would not be successful. Remember that you are demonstrating to me that you understand the subject so a complete explanation is necessary. Marks will be deducted for serious errors of spelling and grammar.
Solution
JENNIFER’S VERY BAD DAY
1. Jennifer has been possessing an office in a building for which she is paying rent. It makes her an occupier of the property that belongs to someone else. So, the relevant law that is applicable here is Occupier’s Liability Act, RSO, 1990. As per the provisions of this law, an occupier is someone who is in physical possession of premises and therefore extends to fulfill the responsibility for the control over the condition of the premises(Buckley, 2006). The law also proffers the occupier’s duty of care, which goes on to state that the occupier owes a duty towards the owner’s property to take care of it in almost all the circumstances. The duty of care applies in basically three ways – a) condition of premise, b) activities on it, or c) conduct of third parties on it. Therefore, Jennifer being the occupier is responsible for controlling the conditions of the premise. Again, the Section 6 of the Act specifies the tenancy relationship, which essentially says that if any repair is due in the premises, the landlord should be duly informed. Here, we can presume that the landlord had to carry out the repairs.
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However, Paul forgot to tell the landlord about the frayed carpet as he was told by Jennifer to do so. Therefore, as per the Tort laws, it was an act of negligence by Paul under Canadian Abridgment: TOR.XVI.2 Torts — Negligence — Duty and standard of care. Jennifer hired Paul as her secretary so, she was apparently dependent on him in a lot of things. She explicitly had told him about the need for repair, which Paul should not have forgotten. So, it is enough to establish that Paul was negligent as he failed to adhere to the objective standard of care. So, he has the liability in tort.
2. Jennifer had brought her dog in her office which is, in normal circumstances, friendlyand well behaved. At the same time, one of the clients, Kate, was also there who had her three year old child. But because of unfortunate circumstances, Jennifer’s dog nipped Kate’s child. Although, the dog, as per the facts suggested, was very friendly as well as very well behaved, but this doesn’t absolve Jennifer from the responsibility that comes upon because of being an owner. The Dog Owner’s Liability Act came into power in 2005 with a purpose of authorizing the proceedings against an owner of a dog when it was responsible for posing a menace to the safety of other people. As per the Act, an owner is being described as the one who possesses or keeps or harbors the dog (Isaacs, 1918). The Act also specifies the civil liability of the owner as the owner will be liable for the damages that were resulted because of a bite or an attack by the dog. The liability attracts $10,000 and six months of imprisonment for the owner.
In this case, the victim was a minor that cannot in any manner be held responsible for provoking the dog, so, Jennifer and Kate both should have taken care of the child, especially when there was a dog in the vicinity. Therefore, Jennifer being negligent has also committed a negligent tort. Moreover, because of the series of events that were started after the dog bit the child, Kate fell down and broke her arm because of a frayed item. So, in this case also the Canadian Abridgment: TOR.XVI.2 Torts — Negligence — Duty and standard of careis applicable to Jennifer because the hurry that Kate was in, was a natural reaction of any mother when she sees her child in life threatening situations.
3. In this situation Richard, one of Jennifer’s clients, was extremely furious because the investment strategy being told him by Jennifer was apparently failed. As a matter of fact, any investment strategy related to market is not completely fool proof because there are a lot of factors that might as well have come into play. However, he was apparently charged and furiously went towards Jennifer with closed fists, which made her panicked and threw a vase at Richard, who seriously got injured because of that. Now, as per Canadian Abridgment: TOR.XXII Torts — Miscellaneous, there is a seemingly negligent tort committed by Jennifer but it was without premeditated intention of harming Richard. The whole act on her part was a reaction to the unexpected stance taken by Richard and she did all that just for the self-defense.
Moreover, the Act also says that a person inflicting an injury on other person at a time of being in complete automatism, cannot and should not be held responsible or liable under the principle of law (Linden, 1977). But for courts, such condition may indicate confusion or a grey area because the defendant lack of control was resulted from external factors.
Finally, Richard got involved in the act of defaming Jennifer on her Facebook page as he was posting negative comments about her, which might have affected her reputation in the market. So, clearly he was doing that with an intention of doing harm to her reputation. It was an intentional tort committed by Richard. Therefore, as per Canadian Abridgment: TOR.VII.3.d Torts — Fraud and misrepresentation — Negligent misrepresentation, Richard is also liable under intentional tort.
4. The presence of Simon, who was an unknown client, in the office can and should not in any which manner be construed by anyone that he might have been a cause for any wrongdoing. The security guards who arrived in the office because of the commotion caused due to Richard incident, presumed that Simon was responsible for what had happened there because of the ordinary clothes worn by Simon. It was a false presumption whatsoever as no one can blame other person without any investigation and due diligence done in the first place. So, the security guards were in clear violation of the law and committing Strict Liability Tort (Perry, 1988). It was not in their realm of judging and declaring as to who should be responsible for anything wrong. Their act might have made Simon suffer inconvenience or time and financial loss because they ordered him to go to the security office without even trying to hear from him or anyone.
Moreover, Simon was also trapped in an elevator for two hours. Apparently, the workers had not fixed an existing problem in the doors of the elevator that must have locked them. This indicates that a Strict Liability Tort has been committed on the part of the workers and maintenance department because getting trapped inside an elevator for two hours can made people feel claustrophobic that could in turn have produced health issues with Simon.
5. Jennifer’s track record explains her efficiency and expertise in the determination of market conditions of any company. Her invaluable analysis had not only helped the investment group several times in the past but a third party called Julia Chan as well. However, in her latest report, she made a blunder mistake by stating debits as assets of the company in question, which was anyway entered into bankruptcy. The fact that the investment group had hired Jennifer for her expert knowledge regarding market analysis made them completely rely upon Jennifer’s expert report. So, it was her responsibility to work very carefully where stakes were so high, that is, where a big amount of money was involved. However, she failed to fulfill her responsibility.
It is, therefore, an indicative of II.8: Concurrent Liability in Contract and Tort. Therefore, as per Canadian Abridgment: TOR.VII.3.d Torts — Fraud and misrepresentation — Negligent misrepresentation of the facts. As per this law, liability is imposed upon a defendant for doing a tortious wrong and breach (http://www.westlawnextcanada.com/academic/ced/torts/).
The law says that the plaintiff is needed to establish that a special relationship exists and because of that there is a common law duty of care in tort. Further, the plaintiff is required to establish a concurrent liability and so, a common law duty of care was owed due to a sufficient proximity of relationship between the parties. The law also entails that the damages could be claimed as well as the applicability of statutes for liability. Therefore, the plaintiff’s election to sue in tort or contract may affect the heads of damage available. In relation to the present case, the Canadian courts have often held that the recoverable damages do not depend on the procedure of the plaintiff’s cause of action.
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Buckley, R. (2006). Occupiers' Liability in England and Canada. Common Law World Review, 35(3), 197-215. http://dx.doi.org/10.1350/clwr.2006.35.3.197
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Durbin, E. Torts – Nature of Tort Law and Liability. Westlawnextcanada.com. Retrieved 6 October 2016, from http://www.westlawnextcanada.com/academic/ced/torts/
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Isaacs, N. (1918). Fault and Liability. Harvard Law Review, 31(7), 954-979
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Linden, A. M. (1977). Canadian tort law. Butterworths.
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Perry, S. R. (1988). The impossibility of general strict liability. The Canadian Journal of Law and Jurisprudence, 1(02), 147-171.
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Westlawnextcanada.com. Retrieved 6 October 2016, from http://www.westlawnextcanada.com/academic/ced/torts/
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