Can someone be civilly liable for intentional misconduct?

Find out about some of the “intentional” torts

In a previous post, we explored the concept of negligence – civil wrongdoing, for which there is not necessarily an intention to do wrong on the part of the defendant, that causes damage. But tort law, the area of law about compensation for civil wrongdoing, also contains another major category of individually named or nominate torts (aka intentional torts) which do provide compensation based on proof of civil wrongdoing intended by the defendant. Many of the activities that are addressed by the intentional torts are also criminalized. For example, there is a tort called battery and a crime called assault; a tort called trespass to land and crimes called loitering and prowling; a tort called trespass to chattels and a crime called mischief to private property; and a tort called civil conspiracy and a crime called criminal conspiracy; etc. Not always, but sometimes, a defendant’s conduct is both an intentional tort and the analogous crime (and vice versa).

The civil and criminal law systems have different procedures, purposes and remedies. Criminal law processes are governed by criminal law statutes, such as the Criminal Code of Canada (“CCC”) and the Youth Criminal Justice Act, whereas the civil law processes are governed by civil law statutes, such as the Rules of Civil Procedure and Bankruptcy and Insolvency Act. A tort need only be proved on a balance of probabilities, in other words the standard of more likely than not, whereas a charged crime must be proved beyond a reasonable doubt. It is thus possible for someone to be acquitted of a crime but found civilly liable for the analogous tort. The purposes of criminal proceedings include deterrence, denunciation and rehabilitation[1]; whereas the purposes of civil proceedings are to compensate the victim of civil wrongdoing. The end result of a criminal proceeding can include a stay of proceedings, an acquittal, a dismissal or withdrawal of the charges or a finding of guilt and sentence including a discharge, probation, conditional sentence or imprisonment. The end result of a civil proceeding can include damages or an injunction.

There are several torts dealing with the intentional interference with the person. Battery is “the intention infliction of an unlawful force on another person”.[2]. Assault is the “intentional creation of the apprehension of imminent harmful or offensive contact”.[3] False imprisonment is a direct intentional imprisonment of another.[4] All of these torts are actionable per se (meaning damage is not required to be proven). Defenses include consent, defense of person, defense of property, parental discipline, necessity, legal authority and illegality. The usual remedy is damages.

The tort of malicious prosecution requires proof that: 1) the prosecution was initiated by the defendant; 2) the proceeding was terminated in favor of the plaintiff (such as by a stay or acquittal); 3) the prosecution was undertaken without reasonable or probable cause; and 4) the prosecution was motivated by malice or a primary purpose other than that of carrying the law into effect.[5] The tort of intentional infliction of emotional distress requires proof that: 1) the defendant engaged in flagrant or outrageous conduct that was 2) calculated to produce harm or in circumstances where it is known (or that it is substantially certain) that harm will ensue and 3) that harm results in actual damage to the plaintiff.[6]

Intentional interference with land (aka trespass to land) provides a remedy for the direct, intentional (or negligent) and physical interference with land in the possession of the plaintiff.[7] It is actionable per se. The plaintiff must show that there has been a direct interference with land. The burden of proof shifts to the defendant who must show a lack of intention or negligence. It is not necessary to show that the defendant intended to do a wrongful act against the plaintiff; the intention to intrude on or interfere with land is sufficient. There are three defenses. First, there is no liability where the possessor has consented to another entering his land. Consent may be express or implied, contractual or gratuitous, and given to an individual, a group or the world (defence of consent). Second, a trespass to land may be justified on the basis that a situation of danger or emergency arose and it was necessary to commit a trespass to land to prevent harm to the public, trespasser, possessor or third party which outweighed the damage caused to the plaintiff (defence of necessity). Third, there may be legal authority to enter land (defence of legal authority). Relief may include damages or an injunction.

There are three torts protecting against intentional interference with chattels. Trespass to chattels applies where the defendant directly and intentionally (or negligently) interferes with a chattel in the possession of the plaintiff. Detinue is available where a person with a right to the immediate possession of a chattel has requested its return from a defendant who has or had possession of it but lost it as a result of an unlawful act. Conversion occurs where the defendant intentionally and so seriously interferes with the plaintiff’s rights to the chattel that fairness requires the defendant to pay its full value.[8] The defenses to intentional interference with chattels largely mirrors the defenses that are applicable to the other intentional torts. Replevin is a procedure whereby the plaintiff may apply for an order seizing and/or returning the chattel to him/her pending a final hearing.

There are a number of economic or business torts that deal with the intentional interference with economic interests. They are generally organized into two categories, namely: deceptive and improper market practices. Deceptive market practices include: deceit, whenever a person has made a fraudulent statement that intentionally causes another person to rely on it to his/her detriment;[9] passing off, misrepresentations by the defendant that his or her goods or services are those of the plaintiff;[10] and misappropriation of personality.[11] Improper market practices include: conspiracy, situations where two or more persons have entered into and acted upon an agreement to cause economic loss to another person;[12] intimidation, where the defendant either threatens to use unlawful means to coerce a third person to damage the plaintiff or threatens unlawful acts that directly compel the plaintiff to act to his/her detriment;[13] and inducement to breach a contract, which includes a direct inducement to breach a contract, an indirect inducement to breach a contract and interference with a contract by unlawful means without causing breach.[14]

[1] CCC, s. 718(a)-(f).

[2] K.T. v. Vranich, 2011 ONSC 683 at para. 66.

[3] Allen M. Linden, Canadian Tort Law, 6^th ed. (Toronto: LexisNexis, 1997), page 43.

[4] Frey v. Fedoruk [1950] SCR 517 at page 523.

[5] Miazga v. Kvello Estate, 2009 SCC 51 at para. 3.

[6] Prinzo v. Baycrest Centre for Geriatric Care, 2002 Can LII45005 (ON CA) at para. 43

[7] Gross v. Wright, [1923] SCR 214 at page 234.

[8] Philip H. Osborne, The Law of Torts, 6^th ed. (Toronto: Irwin Law, 2020), chapter 4.

[9] CMHC v. Hollancid, 2014 ONSC 911 at para. 68.

[10] Ciba-Geigy Canada Ltd. v. Apotex Inc., [1992] 3 SCR 120.

[11] Krouse v. Chrysler Canada Ltd. et al, (1973) 40 DLR (3d) 15 (Ont. CA).

[12] Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 SCR 452 at page 471.

[13] Tran v. University of Western Ontario, 2015 ONCA 295 at para. 23.

[14] Correia v. Canac Kitchens, 2008 ONCA 506 at para. 100.