The Law of Torts
| Author | Norman J. Groot |
| Pages | 247-290 |
CHAPTER
6
THE LAW OF
TORTS
A
classic example
of a
tort action against
a
private investigator
was
demonstrated
in the
case
of
Weber
v.
Ontario
Hydro.1
In
this case, Ontario Hydro hired
a
private investigator
to
obtain information
on an
employee suspected
of
abusing sick leave
benefits.
The
private
investigator used
a
pretext
to
gain entry onto
the
employee's
property
and to
subsequently
enter
into
his
home. With
the
information
the
private investigator obtained under
the
ruse
of
an
interview, Ontario Hydro suspended
the
employee's
benefits.
The
employee brought
action against Ontario Hydro
for the
actions
of the
private investigator
for the
torts
of
deceit, trespass, nuisance,
and
invasion
of
privacy.2
What
Is
Tort
Law?
Notwithstanding that
the
right
to
investigate extends
to all
persons,
in
addition
to
regula-
tory
and
criminal
forms
of
social control,
the
conduct
of a
person conducting
an
investi-
gation
is
subject
to
tort law. Torts
are not
crimes, breaches
of
contracts,
or
infringements
of
equitable rights. Rather,
a
tort
is a
civil wrong
for
which
an
individual
may
seek reme-
dies
such
as
damages, declarations,
or
injunctions. Although tort
law may
have indirect
consequences
of
deterrence
and
social control similar
to
that
in the
criminal context,
the
major
function
of
tort
law is to
compensate
the
victim
for his or her
loss,
and in
some cases
to
vindicate oneself publicly while condemning
the
actions
of the
offender.
It
should
be
noted
at the
outset that prosecutions
of
both criminal
and
civil actions against
the
same
individual arising
out of the
same conduct
are not
mutually exclusive.
For
example,
one
who
commits
an
unlawful
assault
on
another
may be
subject
to
both criminal prosecution
by
the
state
and to
civil action
for
damages
by the
victim.3
1
[1995]
2
S.C.R.
929.
2
This
case
never
went
the
distance
as a
tort
action
because
the
plaintiff
successfully
argued
that
the
allegations
had
been
dealt
with
internally
by
arbitration
and
therefore
could
not be
addressed
a
second
time
through
the
courts.
3
R.M.
Solomon
&
B.P.
Feldthusen,
Cases
and
Materials
on the Law of
Torts,
3d ed.
(Toronto:
Carswell,
1991)
at 19.
247
248
CANADIAN
LAW AND
PRIVATE
INVESTIGATIONS
Torts
are
basically broken down into
two
groups: intentional
and
non-intentional
(or
negligence)
torts.
The
following
is not an
exhaustive description
of
tort law,
for
volumes
have
been written
on
each tort
to be
reviewed. However,
a
brief explanation
of the
torts
to
be
covered
is in
order.4
The
behaviour giving rise
to
intentional tort liability
is
closer
to the
elements
of
crimi-
nal
liability than that
of the
other area
of
tort law.
To
establish that
an
intentional tort
has
occurred, there must have been
an act
that brought about
the
intended result
by the
actor.
The
intent required, however,
is not
equivalent
to
that
of
criminal intent. Evil motive
or
the
desire
to
cause
injury
need
not be the end
goal; intent
to
cause
the
actual result
is
suf-
ficient.5
Traditionally,
the
intentional torts have included battery, assault,
false
arrest,
false
imprisonment, trespass
to
land,
and
trespass
to
chattels.
The
tort
of
intentional infliction
of
nervous shock, also known
as the
intentional infliction
of
emotional distress,
is a
more
recent addition
to
this
list.6
Furthermore, torts such
as
defamation, invasion
of
privacy
and
malicious prosecution have been designated
as
quasi-intentional
torts.7
Although
the
above
is
the
conventional
way of
classifying torts,
in
this book
the
torts most relevant
to
private
investigators
are
considered under headings similar
to
those used
in the
chapter
on
crimi-
nal
liability, including Arrest
and Use of
Force, Surveillance,
and
Pretext. Other aspects
of
tort
law to be
reviewed include wrongs associated with
a
person's reputation, negligence,
conspiracy,
and the
developing tort
of
invasion
of
privacy.
Vicarious
Liability
The
issue
of
vicarious liability must also
be
addressed.
It is a
well-established rule
of law
that
a
principal
or
employer
may be
held liable
for the
actions
of his or her
agent
or
employee
committed within
the
scope
of his or her
authority
or
employment that causes
compensable
loss
to
another.
Therefore,
it is in the
interest
of
employer private investiga-
4 For
excellent references
on
tort law,
please
consult
the
following texts: P.H. Osborne,
The
Law
of
Torts
(Toronto:
Irwin
Law, 1999); R.W.M.
Dias
&
B.S. Markesinis,
Tort
Law,
2d ed.
(Oxford:
Clarendon Press, 1989); J.G. Fleming,
The
Law
of
Torts,
7th ed.
(Sydney:
The Law
Book
Company Limited, 1987); G.H.L.
Fridman,
The
Law
of
Torts
in
Canada,
2
vols.
(Toronto:
Carswell,
1989); L.N.
Klar,
Tort
Law,
2d ed.
(Toronto: Carswell, 1996); W.L.
Prosser,
Handbook
on
the
Law
of
Torts,
4th ed.
(St. Paul: West Publishing Co., 1971); R.M.
Solomon
&
B.P. Feldthusen,
Cases
and
Materials
on the Law of
Torts,
3d ed.
(Toronto: Carswell,
1991);
and
Winfield
and
Jolowicz
on
Tort,
edited
by
W.V.H. Rogers, 13th
ed.
(London: Sweet
&
Maxwell,
1989).
5
A.J.
Bilek,
J.C.
Klotter,
&
R.K.
Federal,
Legal Aspects
of
Private Security
(USA: Anderson
Publishing Company, 1982)
at
158.
6
Note
the
original
meaning
of
trespass
is "a
wrong."
Therefore,
to
trespass
another,
or to
wrong
another,
was the
basis
for all
tort
law.
The
term trespass
was
later restricted
to
physical
contact
and to
land
or
chattel interference claims. Because
the use of the
term "trespass"
in
this context would only cause
confusion,
in
this book
it
will only
be
used
as a
specific
type
of
tort.
See
Winfield
and
Jolowicz
on
Tort,
above note
4 at 53.
7
Bilek,
Klotter,
&
Federal, above note
5 at
159.
CHAPTER
6: The Law of
Torts
249
tive
agencies that their employee investigators
are
well versed
in the
limitations
of
their
legal rights
and
obligations.
Notwithstanding that
the
principle
of
vicarious liability generally applies
to
principal-
agent relationships,
it
should also
be
recognized that
it
generally does
not
extend
to
con-
tractual arrangements. There are, however, exceptions.
If the
influence
of the
contracting
party
is
such that
the
authority
and
control exerted
by it is
similar
to
that
of an
employer,
the
doctrine
may
apply. Evidence
of
such
a
relationship will
often
depend
on the
terms
of
the
contract.
As an
independent contractor,
the
manager
of a
private investigation business
must exercise
the due
diligence
of a
reasonable person
in his or her field,
regardless
of the
instructions
of the
person contracted with. Negligent acts committed
by a
private investi-
gator following
the
instructions
of a
party
to a
contract
for
investigative services
may or
may
not be
imputed
to the
contracting
party.8
Invasion
of
Privacy
Any
analysis
of
tort
law
pertaining
to
private investigators would
not be
complete without
a
review
of the
topic
of
invasion
of
privacy. Invasion
of
privacy
has
many implications.
In
one
sense,
it can
apply
to
surveillance-related activities such
as
videotaping.
In
another
sense,
it can
apply
to
pretext-related activities such
as
obtaining private
or
confidential
information
under
a
ruse. Some studies have reported that many Canadians intuitively
feel
that
the
procuring
of
private information without their consent
is
improper.9
However,
a
review
of the law in
this area does
not
bear this out.
In a
leading text
on
privacy
law in the
private sector,
the
authors concluded that
the
sub-
ject
is
dealt with
in a
smattering
of
legislation
and
common law,
but
that there exists
no
general right
to
privacy
in the
private sector
in
Canada.
The
authors state:
Lawyers
advising
clients
about
remedies
for the
unauthorized
use or
disclosure
of
personal
information
by a
person
or a
company
in the
private
sector
may not
easily
arrive
at an
opin-
ion.
The few
federal
and
provincial
statutes
applying
to
private
sector
activities
are
unlikely
to
provide
clear
solutions
...
If the
problem
can not be
resolved
by
some
legislative
provision
or
informal
means,
counsel
must
look
to the
common
law and
equity
. . .
Consultation
of
lead-
ing
texts
such
as
Fridman's
The Law of
Tons
in
Canada
(1990),
Fleming's
The Law of
Tons
(1987)
and
Winfield
and
Jolowicz
on
Tort
(1989)
disclose
that
privacy
invasion
is a
concept
of
uncertain
legal
meaning
which
has not
been
recognized
as the
basis
for a
legal
action.
The
recent
text
Rainaldi,
ed.,
Remedies
in
Tort
(1990)
assigns
a
brief
discussion
of
privacy
to the
last
chapter
entitled
"Developing
Torts".
Even
a
look
at
Halsbury's,
to
which
counsel
often
turn
when
Canadian
law is
insufficient, yields
disappointment.
.
.In
the
volume
on
torts,
infringe-
ment
of
privacy
is
assigned
only
one
paragraph
which
states
"a
person
does
not
commit
a
tort
8
P.C.
Stenning
&
M.F.
Cornish,
The
Legal
Regulation
and
Control
of
Private
Policing
and
Security
in
Canada:
A
Working
Paper
(Toronto:
Centre
of
Criminology,
University
of
Toronto,
1975)
at
179.
9 See
Ekos
Research
Associates
Inc.,
Privacy
Revealed:
The
Canadian
Privacy
Survey
(Toronto:
1993).
Ninety-two
percent
of the
3,000
Canadians
surveyed
expressed
"moderate"
levels
of
concern
about
privacy;
52
percent
expressed
"extreme"
concern.
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