Module 3 Discussions

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Toronto Metropolitan University *

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LAW122

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Law

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Apr 3, 2024

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Module 3 Discussions 1. Chapter 4 - Cases & Problems Q1 - Prisha / Jehovah's Witness Prisha, a middle-aged entrepreneur, was involved in a terrible single-car accident. When she was taken to a nearby hospital, the attending nurse discovered that Majorie’s purse carried a card that contained the following statement: “NOTICE: I am a Jehovah’s Witness. Because of my religious beliefs, I do not consent, under any circumstances, to any emergency medical procedures that involve blood transfusions.” The nurse brought the card to the attention of the emergency room physician, Dr Curtis. He immediately appreciated the dilemma. If he failed to perform a blood transfusion, Prisha certainly would die within an hour. But if he proceeded with the transfusion, he would be overriding her religious beliefs. How should Dr Curtis proceed? Aside from moral considerations, what should he be told regarding the law? Can he be held liable, under an intentional tort, for performing an operation that will save Prisha’s life? The things we know bring up hard questions about what's right and legal. The moral questions depend on how each student feels about religious freedom versus keeping someone alive. Legally, it's simpler because Canadian courts have already decided on similar cases. Giving someone a blood transfusion without their agreement is seen as a serious invasion of their body. If Prisha's card in her purse, saying she doesn't want a transfusion, is reliable, then Dr. Curtis could be responsible if he gives her one without her okay. This might seem surprising, but it's like what happened in Malette v Shulman and Hobbs v Robertson cases. In those, courts said the doctors were responsible even if they were trying to help, and even if the patient or their family wanted the treatment. 2. Chapter 4 - Cases and Problems Q2 - Debra Fairweather Debra Fairweather, a fashionable college student, went shopping for bargains on Boxing Day with her mother. As Debra walked through the front doors of Stylz Ladies Boutique, an alarm was set off. Deb turned around to find two older women, whom she assumed were security guards, looking at her suspiciously. Deb continued shopping with her mother, but neither found anything to buy. As they were leaving the store, the alarm again sounded as Deb went through the front doors. After she and her mother reached the sidewalk, the two older ladies—who were indeed acting as security guards for the store—approached Deb. One of the ladies touched Deb lightly on the shoulder and the other asked Deb to return to the store. Deb believed that she had no choice. As she walked back into Stylz, the alarm once again went off. One of the ladies then instructed Deb to pass through the security door without her jacket. The alarm did not sound. On inspection, one of the security guards located a Stylz security tag, which triggers the door alarm, inside one the jacket’s sleeves. The store manager then confiscated the tag,

wrote down Deb’s name and address, and told Deb that she could take her jacket and leave. The entire episode was witnessed by at least two dozen people, who were also shopping in Stylz. Deb was terribly embarrassed at the time, but she is now angry. After she returned home, she remembered that she had purchased the jacket, a month earlier, at another branch of Stylz. That explains the presence of the security tag. Deb wants to sue. Which tort should she use? Whom should she sue? What are her chances of success? If she wins her case, what remedies might the court award? Deb might sue for the tort of battery as a result of having been touched by the security guard. A battery consists of offensive bodily contact. That claim, however, would likely fail. Not every form of physical contact constitutes a battery. There is no liability for contact that occurs in the course of ordinary living. In this instance, the security guard merely touched Deb lightly on the shoulder in order to get Deb’s attention. The tort of false imprisonment is a much better bet from Deb’s perspective. That tort may occur if the defendant confines the plaintiff within a fixed area without justification. A classic instance of the tort occurs when the defendant literally imprisons the plaintiff in a jail. Similarly, liability may be imposed if, without a jail, the defendant physically detains the plaintiff. There is no evidence of physical restraint in this case. A false imprisonment, however, may also be committed psychologically. In this instance, Deb would argue that, in light of the circumstances, she believed that she had no choice but to comply with the security guard’s command to return to the store. The tort of false imprisonment also requires proof that the “imprisonment” was “false” or unjustified. For that purpose, the security guards are classified as private citizens, rather than police officers. Under section 494(1) of the Criminal Code, a private citizen has the right to make an arrest (1) if the accused was committing a crime, or (2) if there were reasonable grounds for believing that the accused had committed a crime and was being freshly pursued by a person authorized to make an arrest. Deb had not committed any crime and the security guards did not have reasonable grounds to believe that Deb was being freshly pursued following the commission of a crime. Their actions therefore were unjustified. The most difficult part of Deb’s case arises from the fact that a false imprisonment occurs only if the plaintiff was in fact detained, either physically or psychologically. In the actual case upon which this exercise is based, the court held that although Deb felt compelled to comply with the guards’ command, she ultimately returned to the store voluntarily. Liability accordingly was denied. The facts provided in the hypothetical, however, fall within a grey area and it is entirely possible for a student to provide sufficient reasons for concluding that Deb did not consent to the temporary psychological detention. If liability is available, Deb could take action against both the individual security guards and the store. The guards would be personally liable for the tort of false imprisonment. Stylz would be vicariously liable as the guards’ employer. Since the incident clearly occurred within the employees’ course of duty, the employer would be responsible. Vicarious liability supports tort

law’s compensatory function by increasing the likelihood that the plaintiff will actually recover upon a judgment. Finally, if liability is imposed, damages probably would be limited to compensatory damages. Deb would receive monetary reparation for her losses, including her embarrassment. Since there is no evidence that the guards acted for an ulterior purpose or executed their duties with excessive force or vigour, punitive damages almost certainly would be denied. 3. Chapter 4 - Cases & Problems - Q12 - Hannah's Fine Foods Hannah’s Holiday Foods Inc (HHF) operated a slaughterhouse where it killed, butchered, and packaged “exotic” animals, including rabbits and possums. HHF’s business was fully licensed and entirely legal. An unknown animal rights group nevertheless believed that the public would be horrified to learn about the conditions under which the animals were killed. It therefore sneaked onto the premises one night and installed video surveillance cameras. The end product was a film showing rabbits in great distress before being slaughtered. That film was then delivered to a national television station, which announced its intention to broadcast the footage during its nightly news program. HHF has now gone to court and asked a judge to grant an injunction prohibiting the broadcast. While admitting that the television station acquired the film innocently, HHF insists that the film violates its right to privacy and almost certainly will hurt its business. Assuming that an injunction will be available if HHF can persuade the judge that there is, or should be, a right to privacy in private law, explain how you expect the case will be decided. This case requires students to reflect upon the need for privacy and upon the difficulties associated with recognizing a tort of invasion of privacy. The discussion must begin with the fact that the courts traditionally have been reluctant to become involved in the area. That is true for a number of reasons. (i) The courts want to protect freedom of expression and freedom of information. (ii) They are concerned about the difficulty of formulating a principle of privacy that strikes a fair balance between the competing interests. (iii) They are reluctant to award damages in favour of celebrities who seek out publicity, but then complain when they are shown in a bad light. (iv) And they find it difficult to calculate compensatory damages for the kinds of harm, such as embarrassment, that an invasion of privacy usually causes. Although some of those factors are not directly relevant in this case, the judge would have to be concerned about setting a precedent that would be applied in other circumstances.

Against that backdrop, HHF’s claim in this case is not particularly strong. Most significantly, it is seeking merely to protect the privacy of its business operations. In the case upon which this case is based, the High Court of Australia rejected the company’s application for an injunction. The court recognized that the common law appears to be moving in the direction of a right of privacy that can be protected through tort law. At the same time, however, the court also insisted that any such right ought to be aimed at protecting human dignity and that it ought not to be available for purely commercial purposes. 4. Chapter 4 - Cases & Problems Q8 - Peter & Elizabeth Peter and Elizabeth are neighbors in a rural area. They are also brother and sister. Peter was unhappy with the small size of a pond on his property. He wanted to enlarge it for the purposes of swimming, fishing, boating, and skating. The only possibility for expansion, however, required the use of part of his sister’s land. Elizabeth refused to give her consent to that plan. Peter then offered to buy the relevant portion of his sister’s property, but she rejected that offer as well. Peter then remembered a piece of advice he once received from his father: “It’s easier to get forgiveness than permission.” While Elizabeth was away on vacation, Peter simply went ahead with the expansion. When she returned from her holiday, Elizabeth was furious to discover that her property now contained half of a very large pond. Peter hoped that she would calm down after a few days, but she instead sued him in tort. What cause of action would Elizabeth use against Peter? What remedies might she receive from a court? Peter has committed the tort of trespass to land against Elizabeth. A trespass to land occurs when the defendant improperly interferes with the plaintiff’s property. The interference here is physical, substantial, and lasting. The tort is not committed if the land owner consents to the defendant’s actions, but in this instance, the brother knew full well that the plaintiff had expressly refused permission. As in the actual case upon which this problem is based, a variety of remedies are likely available to the plaintiff. A court probably would issue a mandatory injunction requiring Peter to fill in the pond in order to reverse the trespass and remove the part of the pond that infringes Elizabeth’s rights. If a mandatory injunction as refused, or if it could not be fulfilled (eg because the relevant local authority refused to license the work), the plaintiff would be entitled to compensatory damages reflecting the damage to her land (calculated in the actual case at $23 000). Finally, given the high-handed and arrogant manner of the breach, Peter might well be liable for punitive damages. In the case of Zambri v Grammelhofer, the Ontario Court of Appeal upheld the trial judge’s award of $19 000. 5. Chapter 5 - Cases & Problems Q2 - DeJohnette Developments DeJohnette Developments was in the process of building a recording studio. It agreed to purchase about $5,000,000 worth of sound equipment from Peacock Electronics Inc. Jarrett Koln, who custom builds sound equipment, heard that DeJohnette was planning a

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