Intentional Torts: Personal and Property Torts

• Author: Carolyn MacLean/Alex Colangelo
• Pages: 11-32

11

2

Intentional Torts:

Personal and

PropertyTorts

Learning Outcomes

After completing this chapter, you should be able to:

• Describe the various intentional torts focused on torts

against the person and property.

• Explain the basic elements required to prove the

various intentional torts focused on torts against the

person and property.

• Describe the defences that apply in respect of the

various torts against the person and property.

• Understand the role of torts as a remedy for wrongs.

Introduction ........................... 12

Intentional Torts Against the Person ...... 12

Assault ............................12

Battery ...........................13

Intentional Infliction of Mental Suffering ...14

False Imprisonment. . . . . . . . . . . . . . . . . . . 16

Malicious Prosecution ................18

Abuse of Process ....................21

Interference with Real Property .......... 23

Trespass to Land .....................23

Nuisance ..........................25

Interference with Possessions ........... 27

Trespass to Chattels ..................27

Conversion .........................28

Detinue ...........................28

Chapter Summary ...................... 31

Key Terms ............................. 31

Review Questions ...................... 31

Exercises .............................. 32

© [2023] Emond Montgomery Publications. All Rights Reserved.

12 PART I TORT LAW

Introduction

This chapter provides a general overview of intentional torts, specifically those focused

on personal integrity and protecting property rights. Its aim is to familiarize you with

the general principles that apply to intentional torts and briefly introduce the specific

torts themselves, their rules, and the circumstances in which they may occur. Torts

focused on business interests are covered in Chapter 3, and defences to intentional

torts are covered in Chapter 4.

Intentional Torts Against the Person

Assault

The intentional tort that would most likely apply in the above scenario is assault.

Assault can be defined as the intentional creation of a reasonable apprehension of

imminent harmful or offensive contact.1 Assault has been described as “a trespass to

the person” and is intended to reduce violence2 and provide people with the “freedom

from fear of being physically interfered with.”3

To prove assault, a number of elements must be established, specifically that:

• The defendant intended to create the apprehension of contact. This means that

someone accidentally bumping into you because they are distracted by their

phone would not have committed an assault.

• The plaintiff apprehended that physical contact was going to occur. If in the fact

scenario described above you did not see your classmate swing in your

direction, you would not have expected any contact to happen. Notably, actual

contact is not required.

• The plaintiff’s apprehension was reasonable. A plaintiff may have a reasonable

apprehension of imminent harmful contact even if the defendant has no ability

to make contact. This may be the case if, for example, someone pointed an

unloaded gun at you.4

intentional tort

a category of torts where the

tortfeasor intends the conduct

that gives rise to the tort.

assault

the intentional creation of

a reasonable apprehension

of imminent harmful or

offensive contact

You and your friends are at a nightclub one evening when

a classmate with whom you are on unfriendly terms

approaches you. After a few words are exchanged, your

classmate makes a fist and swings in your direction. Luck-

ily, you are able to duck out of the way in time, and no

contact is made. Has your classmate committed a tort?

YOU BE THE JUDGE

1 Bruce Feldthusen & Allen M Linden, Canadian Tort Law, 10th ed (Toronto: LexisNexis Canada, 2015); Mainland

Sawmills Ltd v USW Union Local—1-3567, 2007 BCSC 1433 at para 98.

2 Mainland Sawmills Ltd, ibid at paras 98, 99.

3 Barker v Barker, 2020 ONSC 3746 at para 1194.

4 See Hanes v Kennedy, 1940 CanLII 19, [1940] 3 DLR 499 (Ont CA).

© [2023] Emond Montgomery Publications. All Rights Reserved.