LAW122 Class 3 Notes

LAW122 Class 3 Notes Deceit e Description: D makes a false statement which they know to be untrue with which they intend to mislead the plaintiff and which causes the plaintiff to suffer a loss as a result of having reasonably relied on the false statement e Purpose of this tort: encourage ethical behaviour in the business world e Test; Plaintiff must prove: 1. Defendant made false statement 2. Defendant knew statement was false (when s/he made it) or was reckless in determining truth 3. Defendant intended to mislead the plaintiff 4. Plaintiff suffered loss as a result of reasonably relying upon statements A: False Statement ¢ The requirement of false statement can be satisfied in many ways: 1. Positively untrue 2. Half truth: e.g., providing figures representing profits, but omitting to specify that they represent 'gross' profits and thereby conveying the misleading message that they reflect 'net' profits 3. Failing to update information: e.g., information provided before the deal closes becomes inaccurate because of dramatic change in the market Can Silence be a Statement? ¢ The general rule in the commercial world is caveat emptor (Latin for "let the buyer beware") - The seller is usually not obligated to volunteer information - The buyer is responsible for asking questions and making investigations ¢ However, in some cases there is a duty to disclose essential information to the buyer: - The seller of a house must disclose hidden defects - The buyer of an insurance policy must disclose important information concerning his/her risk-profile Loss and Reasonable Reliance ¢ The plaintiff must suffer a loss as a result of reasonably relying upon the defendant's false statement: 1. Reasonable reliance: when the false statement refers to past or present fact. The Plaintiff must prove false statement of past/existing fact 2. Noreasonable reliance: if defendant offered an opinion, predicted the future, or made a boastful statement ("puff"). No liability for inaccurate prediction of the future. No reliance if plaintiff independently investigates Defamation e Description:

- Defendant makes a false statement that could lead a reasonable person to have a lower opinion of plaintiff e Purpose of this Tort: protect reputations Elements of Defamation ¢ Plaintiff must prove 1. Statement reasonably refers to plaintiff - lIrrelevant that defendant did not intend reference - Plaintiff must be living person (e.g. people, corporation) - Group statement must refer to plaintiff personally 2. Statement could hurt plaintiff's reputation 3. Statement was published to third party Defamation ¢ Includes any communication (e.g. spoken, written, gestures, documents, and puppet shows) ¢ Risk management: - Business faces special risk when trying to enhance own reputation by disparaging competitors - Social media presents risks to employers > Vicarious liability for employees' defamation, and > Directly as potential publisher of defamatory material Defences to Defamation ¢ Include: - Justification (i.e. D must prove that the statement is actually true » Honest and reasonable belief in truth insufficient - Privilege: encourages free speech » Absolute privilege » Qualified privilege - Fair comment: encourages useful debate on significant issues Defence: Absolute Privilege e Complete immunity from liability ¢ No liability even if statement made in bad faith ¢ Limited to statements made: - During parliamentary proceedings - Between high government officials dealing with government business - By ajudge, lawyer, litigant, or witness in legal proceedings - Between spouses Defence: Qualified Privilege e Applies when legal, moral, or social obligation to make a statement to someone with a similar duty or interest in receiving it e Liability if statement made in bad faith or motivated by malicious purpose

¢ |mportant application of this defence arises under the label of "public interest responsible journalism" (journalists may publish a defamatory statement but must show good methods to research it) Defence: Fair Comment e Expression of an opinion on a matter of public importance: - Opinion must be informed - Opinion must relate to issue of public interest - Defence applies as long as the opinion in question could honestly be held by some person - even if the defendant is prejudiced or opinionated Remedies for Defamation e Usually compensatory damages to repair losses and sometimes for personal distress ¢ Sometimes punitive damages for outrageous conduct ¢ Injunction to prevent defamation - Rarely awarded due to concern for free speech - Requires clear evidence that defamation is likely TEST EXAMPLE: B) FALSE Nuisance e Test: Defendant unreasonably interferes with the plaintiff's use and enjoyment of their own land ¢ Types: physical damage, smell, sound, non-intrusive e Ask first: is there an interference? e Second, ask: is it unreasonable? - Consider factors a court looks at: Nature of interference Nature of neighbourhood Time and day Intensity and duration Social utility of D's conduct D's motivation e Defence: Statutory Authority (only if D's nuisance an inevitable result of compliance with the statute) YV VYV VY