9.1 Intentional Torts & Strict Liability

Paralegals licensed by the Law Society of Ontario regularly advise clients and represent parties in Small Claims Court and before tribunals where intentional torts and strict liability claims arise — shoplifting detentions, neighbour disputes, workplace altercations, and defamatory online reviews are common file types. The Entry-Level Paralegal Competencies require candidates to identify the elements of the principal intentional torts, distinguish them from negligence, and recognize when liability attaches without proof of fault.

Tort Law Fundamentals

A tort is a civil wrong, independent of contract, for which the law provides a remedy — usually damages. Torts fall into three broad categories tested on the P1 exam:

Unlike criminal law, a tort claim does not require proof beyond a reasonable doubt — only proof on a balance of probabilities. The same conduct can trigger both a criminal charge and a separate civil tort claim; a bar fight, for example, can lead to an assault charge under the Criminal Code and a distinct civil claim for battery, decided under different standards and in different courts.

Battery and Assault

These two torts are frequently confused, and the P1 exam tests the distinction precisely.

Battery is the intentional, direct, and non-consensual application of physical force to another person. Actual contact is required, but the contact need not cause injury — an unwanted push, an unwanted kiss, or a shove can constitute battery. Contact delivered through an object the defendant controls, such as throwing a rock or spitting, also counts as direct contact.

Assault is intentionally causing another person to reasonably apprehend imminent harmful or offensive contact. No physical touching is required — raising a fist and stepping toward someone, or brandishing a weapon, can be assault even if no blow actually lands. The apprehension must be of imminent contact; a threat about tomorrow, with no present ability to carry it out, does not qualify.

Example: A landlord swings a bat at a tenant but misses entirely. That is assault, because the tenant reasonably feared imminent contact. If the bat connects, the same swing adds a claim for battery.

Consent is a complete defence to both torts. Consent may be express, such as agreeing to a contact sport, or implied, such as ordinary jostling in a crowded subway car. However, consent obtained by fraud or given by a person who lacks capacity is not valid, and consent to one type of contact — a supervised medical examination, for instance — does not extend to a different, more invasive contact performed without further authorization.

False Imprisonment

False imprisonment is the intentional and total restraint of a person's liberty, without lawful justification, within boundaries fixed by the defendant. Key features tested on the exam include:

• The restraint must be total — if the plaintiff has a reasonable means of escape, there is no false imprisonment, even if leaving is inconvenient or embarrassing.
• Physical barriers are not required. Psychological restraint — a false claim of authority, blocking the only practical exit, or holding a person's identification or belongings hostage — is sufficient.
• Damages are typically higher when the plaintiff was aware of the confinement at the time, though a claim can still arise in narrow circumstances even without contemporaneous awareness.

False imprisonment claims frequently arise from retail shoplifting detentions. Ontario's Trespass to Property Act gives store personnel a limited statutory power to arrest a person found committing an offence on the premises, but the detention must be reasonable in manner and duration, and the person must be turned over to police "forthwith." A detention that runs too long, uses excessive force, or rests on a mistaken accusation with no reasonable grounds exposes the store to a false imprisonment claim — a fact pattern paralegal candidates should expect to see tested in a Small Claims scenario.

Defamation

Defamation protects reputation and is divided into two forms:

• Libel — defamation in a permanent form, including written statements, online posts, and broadcasts.
• Slander — defamation in a transient, spoken form, which generally requires proof of actual financial loss unless it falls into a special category, such as imputing a crime, a contagious disease, or unfitness in the plaintiff's trade or profession.

To succeed, the plaintiff must prove three elements: (1) the words were defamatory, meaning they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) the words referred to the plaintiff; and (3) the words were published — communicated to at least one person other than the plaintiff. Once these three elements are proven, falsity and damage are presumed, and the burden shifts to the defendant to raise a defence.

Common defences include:

• Justification (truth) — a complete defence if the statement is substantially true.
• Absolute privilege — protects statements made in Parliament, a legislature, or in court proceedings, regardless of motive.
• Qualified privilege — protects good-faith statements made where the speaker has a duty or interest to communicate and the recipient has a corresponding interest, such as an employment reference, but the privilege is lost if the speaker acts with malice.
• Fair comment — protects honestly held opinion on a matter of public interest, based on facts that are true or privileged.
• Responsible communication on matters of public interest — recognized by the Supreme Court of Canada in Grant v. Torstar Corp., this defence protects responsible reporting on matters of public interest even where a statement later proves false, provided the publisher exercised due diligence in verifying it.

Ontario's Libel and Slander Act imposes short notice periods for claims against newspapers and broadcasters, and the Courts of Justice Act anti-SLAPP provisions in section 137.1 allow early dismissal of defamation suits that are really aimed at silencing expression on a matter of public interest — a procedural trap paralegals must flag immediately given how tight and unforgiving the related deadlines are.

Strict Liability

Strict liability imposes responsibility without any need to prove intent or carelessness. Ontario paralegals should know two recurring sources of strict liability:

• Dog bites — the Dog Owners' Liability Act makes an owner strictly liable for damages caused by a bite or attack, regardless of whether the owner knew the dog was dangerous, abolishing the old common law "one free bite" rule. Liability can still be reduced for the plaintiff's own provocation or contributory fault.
• Rylands v. Fletcher liability — a common law rule imposing liability on an occupier who brings onto land, for a non-natural use, something likely to cause mischief if it escapes, such as pooled water or stored chemicals. If it escapes and causes damage, liability attaches even without any negligence.

Strict liability differs sharply from negligence: a defendant cannot escape liability merely by showing that reasonable care was taken. Narrow defences, such as an act of a stranger, an act of God, or the plaintiff's own default, may still apply, but the absence of fault is not itself a defence.