Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

This is our 5th and last lecture on this topic. We started the discussion by posing a question whether tort liability could arise from a virtual misconduct. We went through this discussion in detail in our last 4 lectures. We gave you some examples of virtual misconduct that occurred in reality in the last few years and we talked about what could be the damages that may arise from that virtual misconduct. Could those damages be considered real? And whether a duty of care could genuinely arise from such virtual misconduct?  In the last lecture we went through all of the steps in figuring out whether a tort liability may follow from a virtual misconduct. 

In today’s lecture, assuming that there is a potential tort liability, we will talk about some of the defenses that could be raised to defeat a claim in tort liability.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for any referral.

The most common defense that will be raised in tort claims as always is contractual waivers.  We will explain briefly what kind of defense that is. In United States there is also the defense under First Amendment for these kinds of claims that may be raised.  In Canada, Section 2 of the Charter can be raised which provides protection to expression and then there may be some additional statutory protections in the United States that we will cover today.

Contractual waivers is the most common defense. And the defense may apply with respect to third party materials/third party conduct.  The defense may apply in the sense that it may be argued that you use whatever activity that you are performing at your own risk.  That risk is downloaded onto you.  Then there may be a broader category of no responsibility or complete waiver of any activities within the contract.  We sign these waivers all the time—in all kinds of activities—whether you go for skiing or skating, you were given a document, which is a contract, and you have to sign it for you to be allowed to do skating or skiing in that arena; you are required to sign that waiver and that waiver may have specific clauses that will indicate what kind of liability is waived by you when you sign that waiver.

Now in our case let’s take the example of Roblox. We talked about Roblox as an example of some of the cases that we have described. We talked about that seven-year old who was groomed to send his sexual images to others through third-party material.  So what does Roblox say with respect to third-party material? If you go on their website—with respect to third party material, you will see this contractual waiver which says:

“you agree to use the service at your sole risk and that we shall not have any liability to you for content that may be found to be offensive, indecent, objectionable, inaccurate, incomplete, untimely, invalid, illegal, of poor quality or otherwise”.

A pretty broad clause, there, which protects all kinds of things arising / all kinds of misconduct that may arise from third-party material.  In our example, it was a third party communication app that the child had used not owned by Roblox.  This particular clause would protect or at least Roblox would argue that it is protected from any liability because of this particular clause.

Roblox also has a very broad no responsibility clause which is all in bold:

“you assume all risk for any damage that may result from your use of or access to the service, your dealing with any other users of the service and any of the materials or content available through the service…”

Pretty broad again—a clause that protects Roblox from any responsibility.  What will happen in a scenario where, for example, Roblox or another game provider is sued under liability for tortious conduct virtual misconduct of another user? They will bring up these contracts, which are on their website.  These are essentially the terms of use for anyone who is using Roblox—essentially agrees to these terms and that is how that person is allowed to use that game.  They will come up and they will say: “look, we have this clause that protects us from liability and, therefore, even though you find that there is a valid tortious claim against us, because of this contractual waiver there should not be any liability assigned to us”.  This kind of contractual waivers are used all the time in tort cases

Whether the court will agree to enforce that contractual waiver is a separate discussion.  I think I’ll post a separate lecture on contractual waivers alone just so that you have an understanding of what are those circumstances when these contractual waivers are actually in force and when are these waivers not in force.  Because, like me, many of us would not have even read these kind of waivers  and yet when we check that box and say we agree to this waiver, then to what extent are we held accountable for our acceptance of that Terms of Service.  That’s a separate discussion we will have in a future lecture.

In the United States, First Amendment has been and will be used by virtual providers and virtual users as a defense for any tort liability.  There was a case back in 1969 called Stanley v. Georgia. In that case Mr. Stanley was charged for possessing obscene material (pornography).  The case went all the way to the United States Supreme Court in which the US Supreme Court held, “that makers of constitution sought to protect Americans in their belief, thoughts, emotions and sensations”.  This is a bit more.  We can say that this is not just an expression, it is more than expression: “beliefs, thoughts, emotions and sensations” are all protected under the First Amendment. The virtual world providers may argue that the fantasy world of virtual reality is also similarly protected under First Amendment. This argument, I believe, will definitely be advanced.

There was another case in 1974 called Spence v. Washington. It also went to United States Supreme Court and it resulted in a test called “Spence Test”.  In that case a student was charged—he displayed an American flag upside down with a peace symbol affixed to it.  The case went on to the U.S. Supreme Court and the U.S. Supreme Court had to decide whether that particular act of displaying the American flag upside down with a peace symbol—was that an “expression” and if it was an expression, whether it was protected under the First Amendment.

The court held that “an intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”. Essentially it turn into two two part-test later on—whether there was a particular message present—whatever expression we’re talking about, does it have a message and would people generally understand that to be a message.  Those are the two parts test.  That will also be applied in the virtual world—whether the content of the virtual world is an expression and if it is an expression, whether it’s protected under First Amendment.

Most recently this came to the U.S. Supreme Court in 2011—Brown v. Entertainment Merchants Association.  In this case it was pretty much on topic because that dealt with a video game—a violent video game and whether those games could be sold to children without their parental supervision. There was a California law that actually banned it. That was challenged. It went all the way to the U.S. Supreme Court.  What did the Supreme Court say?  They basically struck down the law and they said: like the protected books plays in movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).  That suffices to confer First Amendment protection.

Based on the laws, on the cases in the U.S. Supreme Court, it will most certainly be the case that companies like Roblox and others and users who have been sued for the tort of negligence for their misconduct, will bring this First Amendment argument through these cases to avoid liability of tort of negligence.

Canadian Charter has Section 2 which protects expression—but in Canada it’s a bit different.  In Canada expression is not an absolute right.  Section 1 allows certain limitations on that right.  One common example of this is: hate speech—hate speech is not a protected expression.  What the court does in Canada, is it weighs the rights, it weighs what is the harm in case of hate speech, what is the harm that it causes to society or to people or to certain people and then what is the harm on the other hand—what is the harm if you restrict that expression.  That is the exercise that courts in Canada do to determine whether a specific right is protected under Section 2 of the Charter. In Canada this argument will come into play.

There could be some statutes of protection.  In the United States, there’s something called Communications Decency Act and there is Section 230 of that Act which says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provider provided by another information content provider”.  Essentially under this Section virtual reality operator providers would argue that they are not liable for the misconduct of their users.

In essence what we have done in all these 5 lectures is, we have said this was an exploratory discussion.  We believe that these cases will come to court, most certainly come to court, and this issue will be explored in more detail where virtual reality and the real world will collide.  The courts will have to grapple with all of these issues about duty of care, about the reality of damages and whether the court will apply the waivers and whether the virtual reality conduct will be protected under the First Amendment in the United States.  All of these will be the subject of great discussion in the coming years.  We will surely be watching these and will bring you news if we find any cases that come to the courts and are decided.

Thank-you for watching and participating in this discussion.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

We sign waivers all the time: when we go for skiing we sign a waiver; when we go for bowling, when we go for skydiving, when we rent a car – there are so many circumstances and so many activities that we engage in on a daily basis and when we engage in those activities we are required to sign waivers by the providers of those activities / by the suppliers of those activities.  We do this all the time.  What are those waivers? When are they enforceable? When are they not enforceable? That is the topic of today’s lecture.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues, then you should talk to a lawyer or a paralegal and if you don’t know one, you should contact the Law Society of Ontario for any referrals.

What are waivers?  They’re also called exclusion clauses (saying same thing).  Essentially what waivers do is it transfers any risks of that activity from the company / from the provider to you and me, the consumer.  Essentially, it takes away the company’s liability for any injuries that you may get because of those activities that you are engaged in.  That’s what a waiver essentially does.  Let’s look at some of the examples of these waivers.

The first example I have is Blue Mountain. If you go on their website you see this exclusion of liability. This is a broad general waiver. It is on their website and if you are on Blue Mountain premises you will see this waiver posted at different spots at the resort.  It is in bold letters – it’s in red and yellow.  The idea is that it is so clear; it is so obvious that you don’t miss it. 

NOTICES TO ALL USERS OF THESE PREMISES AND FACILITIES EXCLUSION OF LIABILITY ASSUMPTION OF RISK AND JURISDICTION

This poster is covering three things: exclusion of liability; assumption of risk and jurisdiction.

PLEASE READ CAREFULLY! THESE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTS INCLUDING THE RIGHT TO SUE FOR NEGLIGENCE OR BREACH OF CONTRACT OR TO CLAIM COMPENSATION FOLLOWING AN ACCIDENT. It covers all the potential scenarios that can happen.  It basically says that we have no liability whatsoever.

“As a condition of use of the premises and facilities and your participation in activities on the premises you assume all risk of personal injury, death or property loss resulting from any cause, whatsoever, including negligence breach of contract or breach of any duty of care owed under Occupiers Liability Act on the part of the operator and its employees and representatives.”  

Then at the bottom it says, THE OPERATORS LIABILITY IS EXCLUDED BY THESE CONDITIONS.  Once you have signed this waiver and when you purchase the tickets you are required to sign these waivers and then there are some certain specific waivers with respect to specific activities that may also be applied.  When you go to Blue Mountain website there are waivers for skiing, there’s a waiver for tubing, all kinds of things.  There may be specific waivers for certain activities. This is one waiver that I picked up to show you as an example.

What essentially this waiver does is that any activity that you perform when you go to Blue Mountain, when you purchase a ticket, when you sign the waiver, you cannot, if you are injured and sustain injuries because of that activity, you cannot turn around and then sue Blue Mountain for any liability.

And notice that it includes negligence as well.  If you’re going downhill on a ski slope and you know that it was not maintained properly or there was some debris left (that shouldn’t have been there) and because of that you get injured, you will still not be able to sue.  It covers even negligence.  There is no warranty given to you by the ski resort that they will maintain the premises in perfect condition so you could enjoy your skiing. All the liability, all of the risk is transferred to the user for that one example.

Another example I have chosen is a rental car agreement. This is Budget’s website I picked up and if you notice – and this is typical you will see that in any kind of car rental agreement that this clause or similar clause is there. Clause 14 basically tells you what is the prohibited use of the car that you have rented. And if you operate the car and you follow one of the prohibited uses, then a violation will actually terminate your rental agreement immediately.  “A violation of this paragraph will automatically terminate your rental and is an exclusion to and voids all liability protection and optional services…”. All of these optional insurance that you may have purchased for supplementary liability, for personal accident insurance all of these are void if you engage in the prohibited use of the car.

What is the prohibited use? It is outlined here.  You use or permit the car to be used by anyone other than an authorized driver. And then authorized driver is defined in Paragraph 5.  There are number of activities that are listed here. And which are called prohibited use and if you engage in those activities your rental agreement is immediately void and you will not if you sustain any injuries, you will not be able to sue the rental car company for this.  You can see here that even if you are using a handheld wireless communication device, if you’re operating, for example, your phone or something to communicate (handle wireless device) and then you sustain certain injuries, you will not be able to sue Budget car for that. That’s just an example for you of some of the agreements—that were waivers that we sign on an everyday basis.

When are these waivers enforceable? You’ve signed it and now you want to know whether this waiver is going to be enforced or not. The leading case in this is from the Supreme Court of Canada, called Tercon Contractors Limited v. British Columbia.  It’s a 2010 case. 

That case established a 3-part test in determining the enforceability of a waiver or an exclusion clause. Number one: whether the exclusion clause applies to the circumstances in question. Number two: whether the exclusion clause was unconscionable at the time the contract was formed.  And number three: whether the court should refuse to enforce the waiver because of an overriding public policy.  If any of these conditions are met, the court may decide not to enforce the exclusion clause or the waiver.

We’ll take the first element the circumstances: what the court does in the circumstances case is, the court looks at the specific language of the waiver—the specific circumstances that are covered in that waiver and then looks at the circumstances of the injury and then determines whether that particular circumstance, which caused the injury, was it actually covered in that clause or not. They very thoroughly reviewed the clause to make sure that the clause actually covers the circumstances that are being alleged underlying the injury.

I’ll give you two examples: one in which the court refused to enforce a waiver because it did not cover the circumstances.  One was a person who was on a ski resort and he slipped in the parking lot on ice and got injured. And when the court reviewed the waiver, the waiver only covered injuries from downhill skiing and because the person was not doing downhill skiing, he was just walking in the parking lot and sustained injuries, the court held that the waiver was not enforceable because it did not cover the specific circumstances that led to the injury.

Another example is that a person was injured and this was a person taking a police foundation program at a college and while he was running on a track, he got hit by a basketball hoop and got injured.  The court looked at the specific waiver and the waiver had language something to the effect that injuries or other complications associated with exercise or other physical activity—the waiver was very specific to the act, to the injuries sustained because of engaging in an activity—if you’re running and you pull a muscle or you sustain another injury and you have to go see a doctor that waiver was covering those activities – it did not cover any injuries that a person may sustain because the track was unsafe to run. It did not cover the negligence with respect to how the facility was maintained. It dealt with the injuries arising from the very specific activity itself—the physical activity.  The court held that, no, what is covered in the waiver is something different you did not maintain the track properly, which is completely different.  You could have, if you wanted to, have a clause that provided you no liability or waiver because of negligence in maintaining the track itself, then you could have created a clause like that. But the clause that you’re relying on does not cover it and in that case the court said that it will not enforce the waiver.

The review of the circumstances is the most common way of enforcing the waivers of rejecting the waivers because the court needs to make sure that the person who was injured was that person injured because of those very specific circumstances that are covered in the waivers.

Unconscionability is the second element.  First thing you want to understand about unconscionability is that the clause itself, just because there is a clause that excludes liability that is a waiver clause, does not mean that the clause itself is prima facie unconscionable. No, that’s not unconscionable. It essentially deals with a power imbalance between parties. And what does a power imbalance indicate in cases?  

In case that you go, for example, to Blue Mountain, it is not a power imbalance or not necessarily a power imbalance to say that I’m just an individual, Blue Mountain is a large corporation there is a clear power imbalance. That’s not necessarily how the court will consider it.

What the court will consider it whether you are voluntarily engaging in that risky activity or not. Nobody is asking you necessarily that you’re required to engage in this activity. You can choose. You have chosen to go skiing; you’ve chosen to go skydiving—that is a choice you have made. You are freely engaging in that activity and so there is no power imbalance in that relationship. This is not a situation where because of the significant power of a corporation you are now required to engage in a certain activity. That is how the theme of unconscionability generally would work but unconscionable as I said is the second consideration and if you can show that the waiver was unconscionable then you can claim that the waiver should not be enforced.

The final test is public policy.  A common example that I can give you is that any waivers that are relating to minors.  Generally speaking the public policy suggests that parents cannot give away their minor children’s rights in law (in tort) by signing waivers on their behalf—that is the public policy.  In British Columbia that is the law.  When a parent signs a waiver in British Columbia, on behalf of a child, that waiver is not enforceable.  It is likely that the same will be in Ontario.  Although there aren’t any cases that have specifically dealt with waivers respecting children so far, but that seems to be the public policy.  It is yet to be decided in Ontario.

My kids go to trampoline gyms all the time and we sign these waivers all the time, and if they sustain any injuries, can it be argued that those waivers are not enforceable? Likely, yes. Because that may be a public policy reason to indicate that the right to sue in tort  for children’s injuries cannot be given away by parents, that seems to be the public policy.

What is the conclusion? For a waiver to be enforceable it has to have unambiguous language, it has to be clear, should be easily understood by the consumer as I showed you in the Blue Mountain example.  It was very clear, it was very simple and it said repeatedly that there is no liability whatsoever for anything you do negligence, contract, whatever, we have no duty whatsoever. That’s the theme of that poster.  Does the waiver cover the specific circumstances of the case? That is important. It’s not unconscionable and there’s no public policy concern.

The message that you want to take away is that just because you have signed a waiver do not assume that all waivers are enforceable. There are circumstances (many circumstances) in which waivers may not be enforceable. If you are unsure, I think, this may be one instance where you may want to go see a personal injury lawyer or somebody who has expertise in that area to confirm whether the waiver at the outset is enforceable or not and if it’s not enforceable then regardless of the fact that we have signed the waiver you may still be able to sue for damages.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

This is our third lecture in this series—where we had initially raised this question: whether tort liability in the real world could arise because of wrongdoing in the virtual world.  In the first lecture, we set out the discussion where we talked about what is virtual reality, augmented reality and how human beings interact with those kind of issues in the virtual world.  In the second lecture, we discussed whether the harm that may be caused by a conduct or misconduct in the virtual world, could that harm be real, could it have real implications on people in the real world.  We talked about it and we concluded our second lecture coming to that conclusion that at least the mental harm/ the mental trauma could be real if not the physical harm. Then we discussed that we should consider the possibility of a tort action and go through all of the elements of tort action, not just the damages part and see whether there is a potential tort liability that may come.

In today’s lecture we will then get into the discussion of the factors of tort of negligence and apply those into the virtual world and see where it takes us with respect to any potential liability.

We begin with our disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

Now I have posted previously a lecture on tort of negligence and I have described the elements of tort of negligence in detail. If you have no understanding of tort of negligence I will encourage you to first review that lecture so that you have some basic understanding because I will not go through all of the elements and explain those in detail in today’s lecture.  We’ll just go through those elements in today’s lecture. Now there are 5 elements of tort of negligence.

Number one: the defendant owes a duty of care to the plaintiff.  There must be a legal duty to call the duty of care and the court should impose that duty. If there’s no duty of care towards the plaintiff then there will be no claim for negligence. Number 2: whether the defendant breached the standard of care with respect to that particular duty. That’s called a “reasonable person’s standard” That is the second element.  Number 3: did the defendant’s breach cause the plaintiff injury or loss. It’s called causation—was the loss caused by the defendant’s breach of its duty.  Number 4: was the injury or harm / the damage that was caused to the plaintiff—was it foreseeable.  This is also called the direct connection between the breach of duty and the harm.  So it’s also called foreseeability or direct connection test.  The 5th element is: did the plaintiff actually suffer harm or loss—which is damages.  That’s something that we had covered in our previous lecture.

Now duty of care, in our scenario, with respect to the virtual world is the most important element of tort of negligence. My understanding is that so far there has not been a duty of care imposed on the online gaming industry.  We’ll talk about that and figure out when these cases arrive at court, whether the court will consider imposing a duty of care or not on the online gaming industry, on the providers of virtual world, virtual reality and augmented reality.  As I said duty of care is fundamentally an obligation not to harm others or their property.  Very common example of this duty of care is when we drive our cars on the road. You and I, when we’re on the road we owe a duty of care to other drivers and other vehicles, to passengers, to pedestrians, to their persons and their property. That’s a duty of care.  We don’t have any contractual relationship with other drivers on the road.  This duty is imposed by law on us and it applies to everybody who is driving a vehicle.  That’s an example of a duty of care that is imposed by law. And so courts impose this duty.

There are some known categories over the last 100 years or so that have been developed with respect to duty of care.  Common examples are: a doctor’s duty towards his patient, a lawyer’s duty towards his client, an accountant’s duty towards his clients, a manufacturer’s duty towards the consumer.  This has been established.  It’s called Product Liability. Every time a manufacturer creates a product, the manufacturer has some obligations, duty of care towards the consumer.  This is well-established and what we will argue in our situation is that the manufacturers of the virtual world, do they have any potential duty of care towards the users of that virtual world.

When a court is considering whether to impose a new duty of care there are certain factors that the court considers in deciding that.  We’ll talk about those factors.  Remember in my 1st or 2nd lecture I mentioned that one of the reasons why we’re talking about tort law in this case is because tort law has the capacity to evolve as the society changes, as technological advancements happen in that society and other events happen.  In this case we’re going to consider whether the court will be willing to impose a duty of care towards the providers of a virtual world towards people who use that world to commit any wrongdoings virtually—could there be a duty of care imposed or not?

One of the factors that the court will consider is foreseeability of risk or the manner of injury. What do we mean by foreseeability? A simple example is that when you’re driving your vehicle and you apply the brakes and if the brakes don’t function at the time that you want them to function, it is foreseeable that you will have an accident.  That accident could cause you injury.  So there is a risk that is foreseeable when a brake will malfunction or not function when you’re driving a vehicle. It is foreseeable.  Forseeability is the possibility of a risk and the manner of injury that that may cause.

Second thing, I think, that the court will consider is – the court will analyze any legal relationship between parties.  In our example of driving cars on the road there is no legal relationship between the parties, there’s no contractual relationship, but in many cases there may be a contractual legal relationship between parties outside of the duty of care that the court is thinking of imposing.  For example, in a lawyer-client relationship they will have a contract between the parties, a retainer agreement which creates a legal relationship between parties. Similarly, when we buy products, it is a contract—we purchase whatever item, whether it’s car or a motorcycle or a toy, we have a contract with the manufacturer/with the seller and there is a legal relationship.  The court will analyze that legal relationship in deciding whether that legal relationship plays a role with respect to imposing a duty of care on the defendant. 

The court will also consider the likelihood of the injury.   What are the chances that this particular fact may cause an injury to a person?  Then court will consider public policy with respect to who can bear the loss due to that injury.  For example, in a motor vehicle accident if a person becomes a paraplegic. Now that person has some burden on the society at large.  The court looks at the overall social circumstances in determining who bears the loss with respect to that injury.  This is the old Greek concept of distributive justice—that when harm has occurred how do you distribute justice across different sections of society so that the burden can be borne by the society at large or by parties who have the capacity to bear the burden.  Finally, the court may consider other policy considerations in deciding whether duty of care should be imposed or not.

Now let’s look at whether a duty of care has been imposed in video gaming industry or on online industry so far.  One example that I can quote to you is that one person she was following Google Maps instructions and driving on the road.  While following the instructions, she got instructions on the Google map to cross this busy highway—which was an incorrect instruction—and as she did so an oncoming vehicle struck her vehicle and she got injured. She brought this lawsuit against Google. That was in 2011, I believe in Utah.  In that case the court found that Google did not owe any duty of care to that person. 

What were some of the reasons? The court indeed acknowledged that the accident was foreseeable when you follow Google Maps instruction and you end up getting a wrong instruction and you cross the street incorrectly.  Then it is foreseeable that you will get into an accident.  And the court held that the person was ultimately responsible for their own safety.  She should have looked after their own interest and seen the road or had some visual understanding of the circumstances and looked after her own safety.  That was one reason given by the court not to find duty of care.  The other thing that the court stated in that case was that imposing a duty to warn users of all traffic hazard will be difficult, if not impossible.  That was another reason given. 

Finally, you can imagine that the court may apply similar principles in the VR and AR world. If you are, for example, wearing VR headsets and then you walk around in your room and you run into a wall or you run into the furniture or you fall from the staircase, the court may very well apply the same principles and say that you are responsible for your own safety.  You are in the virtual world and you should know your surrounding circumstances (real circumstances) better so that you don’t get yourself in those kinds of injuries.  

The problem I put to you is that these arguments (these positions) that have been advanced by the court in this particular Google case can go both ways really.  In the past, we have seen these kinds of examples (before tort law was introduced and created), where the common defence for safety issues was that you should be responsible for your own safety. But then tort law evolved—and in so many cases now we see that manufacturers are held liable for the safety of users.  So tort law has evolved in that case. Now remember that.

For example we take an example of an electric saw.  You are using the saw to cut wood.  If you put your hand up at a place where you should not and that as a result your finger gets injured or cut because of that electric saw, yes, we can argue that you should be responsible for your own safety and you should know how to use that equipment.  But if you’re using the saw properly and your hands are placed properly but for some reason the saw malfunctions and the blades come out or come out of the saw and it hits your hand or finger and then causes an injury, now that’s a malfunction of the equipment—so in that case why would the court say you should be responsible for your own safety?

Now, applying that example to our Google case: if that person was correctly following instructions provided by Google Maps and then she simply followed those instructions, then to say that you should be responsible for your own safety—it is kind of the same argument that we have already rejected in so many other court cases where manufacturers were not online gaming or not online providers but they were providers of real equipment. The argument is a bit difficult. If you are a driver like me, when I initially started using Google Maps or any other assisting navigation devices, every time I relied on an instruction I would sort of counter check it with my visual sense because I was reluctant to rely on this particular tool that was given to me. But as the time went on and I became more dependent on that tool, now I am less reluctant to rely on that tool and there are certain times that I will rely on the tool, on the Google Maps, more than trying to figure out visually whether the instruction is correct or not.  Remember you may be driving at 100 kms plus an hour and if you are required to check whether the instruction that has been given to you by an electronic device is correct and you have to check it by your own senses, I think, imposing that sort of obligation on a driver may be too much and not to forget that we are now entering into the world where we will be using self-driving vehicles in the near future where you have abandoned all control to the equipment that you are relying on.

I do think that not imposing this duty depends upon the time.  The more accidents we may have in the future, the more issues we may have in the future, the more arguments we hear, the more data we see—the courts may be more willing to consider that a duty is appropriate in the circumstances.  With respect to warning the users, again it is also technology dependent.  In 2011 there may not have been sufficient technology whereby Google map may be able to warn you of all traffic hazards but in 2020 or in the coming years the technology may be advanced to a level where it is possible to issue those warnings.  Remember, that in this case the issue was not that the person got her car / vehicle into a pothole that the Google map could not warn her—it was the wrong instruction given to her.  She should not have been sent to a highway which was a busy highway.

I think it’s a different kind of scenario but again it depends upon scenarios and again when you apply this in the virtual world now, the same arguments can apply.  When you use the virtual world one of the features of virtual world, one of the attractions of virtual world, is that they want you to be immersed in the virtual world.  A good virtual world will make you forget the real world. It will make you be detached of the real world. If the purpose of the virtual world is to make you detached from your surroundings and detached from your real world and if there is an injury that may be caused to you from the real world then: Why couldn’t there be a liability? Why couldn’t there be a duty of care? Why couldn’t there be a duty to warn? – on the virtual world provider.

Those are the kind of discussions and you may disagree with my points but those are the kind of discussions that will take place in the coming years in the courts.  It will be interesting to watch whether the court imposes a duty of care or not.

As I said, duty of care is sort of the biggest hurdle in this case and once that duty of care is shown / is found, then it will be relatively easier to find potential liability.  In the next lecture we will go through other elements of negligence and see whether in our discussion, in this analysis, we can find any duty of care against the providers of the virtual world and the people who are using that virtual world to commit some virtual acts / virtual wrongdoing.

Thank-you for watching and stay tuned we will be back with the next lecture shortly.

Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

In our yesterday’s lecture we posed this question and it was an exploratory question – whether misconduct in the virtual world, could that lead to tort liability in the real world?  We had some preliminary discussion in yesterday’s lecture. We concluded by raising a follow-up question and that question was whether the harm that is caused by that virtual misconduct or wrongdoing, is that harm real?  Because if the harm is real, if the damage is real, then there is a potential possibility that a tort action may be a suitable way to go.  We will explore this reality of the harm in today’s lecture.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Is the harm real?  We will compare real harm in the real world versus virtual harm.  The example we have is the sexual assault example.  In a real sexual assault that occurs between two individuals/two human beings: there are two components/two impacts/two kinds of damages that may flow from that sexual assault in the real world. One kind of damage is real physical harm and this is the kind of harm that happens to the physical body of the victim—the biological harm that is caused (if you can say that); and, the second component is of course the mental harm; the mental suffering that is caused to that person.

With respect to physical harm, in a real sexual assault situation, the harm could be in any shape or form. It could be as simple as having bruises on one’s body to much severe injuries to that person’s body.  But not in cases of virtual sexual assault—that physical harm does not exist. At least it doesn’t exist as of today. We talked about the concept/the technology of haptics in our lecture yesterday, which allows our bodies, through haptics, to feel the impact (physical touch/physical impact) of something and how that technology will develop in the future.  It is hard to say that now—but if by virtue of using haptics, can a person suffer much more severe physical harm? Then, that is something that we will find out in the future. 

But as of today in cases of virtual sexual assault the harm is not really physical but it does have or may have certain physical manifestations. For example the person, the one who has suffered virtual sexual assault may have sleep deprivation, nausea and other sort of physical manifestations obviously coming through that mental trauma.  There may be physical manifestations that could be considered physical harm.  In cases of mental harm, the scholars who have considered this topic have stated that in terms of the mental harm, the emotional harm there isn’t much difference.  I think the harm in cases of real sexual assault and cases of virtual sexual assault is pretty similar when it comes to the mental harm. They suffer similar emotional trauma; the feelings of harm to one’s dignity is quite similar; feelings of helplessness are quite similar.  Often women who have suffered virtual sexual assaults and physical sexual assaults have indicated that for example in instances of groping whether it’s in virtual world or real world the feeling of being violated and feeling of helplessness is quite similar.  The academic literature suggests that mental/emotional harm whether it’s sexual or real or in the virtual world is quite similar. 

One of the things that you want to keep in mind about the virtual world is that in the virtual world when you join a virtual world scenario, you are expected to give up a lot of control to be able to experience true immersion.  The participants in the virtual world are expected to suspend their disbelief of the virtual world.  In virtual world environment, when you join in you are expected to give up a lot of control to that world / to the operators of that world.  In those scenarios, (if you) if your avatar is acting in a way that is your authentic self, then you will feel much more connected to that avatar and similarly if the avatar experiences virtual sexual assault in this case, then the impact / the mental impact of that could be significant and not much different than the real trauma.

On the basis of what we have discussed, I would argue that in cases of virtual misconduct as far as the mental harm/the mental trauma is concerned, that could be sufficient for a court to find that there is real harm / there’s real damage.  And because of that real harm or real damages this could be something that could be pursued in court as a tort action.

Another example of this kind of online harm which has been established for quite some time is from online bullying. We all know that many young adults who have suffered from online bullying have significantly suffered mentally and in some cases some of these young adults have ended up committing suicide.  There has been a significant impact of online bullying which is all online but it causes significant harm to the people who are the targets of that. 

The concept is similar—of course it is slightly different in the sense that in virtual world where we’re experiencing that through the avatars but the transmission of that harm is conceivable to the real person who is the victim/who is owning that avatar.  If the harm is real and there’s potential liability that may flow, who are the parties that could be held potentially liable?  There are two parties that come to our mind quite simply. First one is, obviously, the provider of that virtual world.  It could be a gaming company.  In our example we took the examples of Roblox and another, QuiVR—those were the two gaming companies.  These could be considered the defendants in a virtual sexual assault case because they are simply the providers of that virtual world.  Remember if you understand from the previous lecture, this virtual world is all digital.  It is computer generated. It is a creation of that company or that organization that has created it.  The person who has committed that virtual sexual assault (in our previous example of that seven-year old girl who had experienced that sexual virtual assault in Roblox)—in that case the assault occurred because the gaming platform had allowed or had the capacity for the developers to develop these kind of programs which could commit that kind of wrongdoing.  These sort of virtual world platform are generally imagination platforms.  Roblox markets itself as an imagination platform.  It gives children and developers the opportunity to create their own environment in that world / create their own games.  When you give that much freedom to create their own games – while they can create good experiences, they can also create bad experiences.  It is conceivable that the liability because of these bad experiences, because of these wrongdoings it is conceivable, is foreseeable that the creator of that world could be held liable for that tortious conduct.

Now the second person or persons could be the people whose avatars actually cause that harm. Remember that avatar is functioning because of the creation of a real human being behind that.  So far we are in the world when we get to the world of artificial intelligence where our avatars itself are creations of artificial intelligence, that will be a separate debate.  But at this stage, these avatars are functioning because of the controls of a human being behind it.  Could that human being be held liable?  Yes, because that human being may be held liable for the conduct of that particular avatar.

Again in the example of that 7-year old girl, if her parents had chosen to, let’s say, bring a court action against those individuals, then one of the ways they would have done so is to demand from Roblox to disclose the identities of those individuals who had those accounts.  If Roblox would deny it—which it could because of privacy reasons, they could very well go and obtain a court order compelling the gaming company to provide the information of those individuals. So those individuals could be sued, as well for their conduct in the virtual world.

Ok, now we come to a stage where we have indicated that damages could be real. And if damages are real, then there’s a possibility that you can pursue it in court.  But that is not the complete tort liability analysis.  If you have watched my lecture on the basic test of court liability, there are several factors that we have to consider. What we’ll do is that we will consider that in our next lecture.  Damages is one part but remember that duty of care is one of the crucial parts of tort analysis and we have to figure out whether the gaming company or that individual whose avatar caused this harm, do they owe a duty of care to the person who suffered that harm.

We will do that tort analysis in the next lecture and stay tuned for that.  We will bring it out shortly and thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture, we will consider / we will pose a question.  Then we’ll try to find an answer to that question, through discussion, in this lecture—whether there could be any tort liability that may arise from a wrongdoing or misconduct in the virtual world.  We will consider online games such as road blocks and others where we are able to live in the virtual world and are able to interact with each other through our avatars in the virtual world. Now we are only considering tort liability in this lecture we are not considering criminal liability or contractual liability or any other area of law.  One of the reasons why we are considering tort liability is because tort law, in my view, is quite flexible. It has the capacity to evolve with changing circumstances. I believe that it has the capacity to consider this question and deal with this question in our real world.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

Within the context of this discussion about conduct in the virtual world, we will consider “virtual assault”.  What is virtual assault?  In a virtual assault the victim is an avatar and the wrongdoer the offender is an avatar or could be more than one avatars.  Why I have picked this example of virtual assault is because there are some real examples in the past (in the near past) where this kind of occurrence has occurred (has happened). I’ll tell you some of the cases that have happened.

One instance was where a 7 year old girl was playing row blocks and her avatar was sexually assaulted in row blocks.  This was out in the news I believe in 2018. The girl was playing this game in an avatar—a little girl blond hair wearing a T-shirt and jeans.  Her avatar was graphically sexually assaulted by two male avatars on a playground in the game.  Her mom was sitting next to her. She was able to witness this.  She was horrified. She raised this issue—she brought this to the media and I believe Roblox was contacted. Roblox was able to identify the accounts which were used by the perpetrators—by the people / persons who had changed the coding in the game and caused that sexual graphic / sexual virtual assault to that avatar. Then some actions were taken but no legal action was taken. Roblox was not sued the other party who may have been responsible was not sued (to my knowledge) and so the matter ended there.

That was one example of a virtual assault that occurred in a game. There was another case that happened where a child who was also using Roblox (was using third party apps on a Roblox) and through those apps the child was groomed into sending sexually explicit images of himself to others. That was something that was found by his mother again and it was reported. It was reported (I think, I believe on BBC). Again, Roblox indicated that third party apps are not owned by Roblox.  When you’re using third party apps, then you should be careful about who you’re communicating with and what you’re communicating.

Then there was another example where a woman was virtually assaulted playing a game called QuiVR.  In this game there was a user named BigBro442 who virtuallyrubbed her chest and made other gestures—sexually explicit gestures towards her.  She tried to get away from this person and then that avatar kept chasing her avatar.

These are 3 examples in the recent past where there were virtual assaults—not virtual assault in second example but definitely in the first and the third examples. We will consider those were virtual assault.

A very obvious question and a very obvious defence that can be raised as well is, “this is all happening in the virtual world; you have to log into your computer you have to log into that specific game; get into that virtual world; then you can log out—if someone is bothering you /someone is trying to cause (you) any harm to your avatar, you can simply log out and move away and the harm is not real, it is done to that avatar. The question for us or for the laws to consider is: whether the harm that is being done to that avatar, could that harm be real for the person behind that avatar? The person whose avatar is being harmed / assaulted / sexually assaulted, is that person suffering real harm?

In order to understand that, I think, we need to have some understanding of what is virtual reality (VR). I’m not an expert in virtual reality, but, I have some basic understanding which I will share.  Virtual reality is all computer generated. I believe we all understand that. What virtual reality does—is it recreates or simulates real life environment—our situations. But it’s all computer generated.  You have to be logged into whatever system is; then you get into that environment which is virtual but it imitates the real world—it simulates the real world.  How do we experience virtual reality—primarily through vision and hearing.  We have these headsets (if you have used them, you know what they look like) but if you have not here are some of the pictures—you can see these are virtual headsets. The screens are in front of your eyes and you have these headsets on your ears. You are able to experience the virtual world through those headsets. You can see and you can hear. That’s how you interact and experience the virtual world.

There’s something else called augmented reality (AR)—which is different than virtual reality.  What is augmented reality?  It is also computer generated but augmented reality actually sits on top of the real world. It is sort of superimposed ilayer (which is computer generated layer).  It sits on top of your real world so it’s different from virtual reality.  Augmented reality essentially makes your interaction with the real world a bit more meaningful. There are some examples.

One example is common in the retail world. Augmented reality apps are being used in retail world already, quite frequently, and it’s going to grow and one example is when you are planning to buy furniture.  Let’s say you go to the shop or you go online and you pick up a sofa set.  You have to bring that sofa set in to your house, put it in your living room and then see whether you like it, once it’s there.  How does it look, how does the size look, how does the color look, and what not.  If you don’t like it you may have the ability to return the sofa set.  But if you have that augmented reality app then what you’re able to do is that you can actually see that particular sofa set through augmented reality in your living room.  You’ll be able to see its size—in comparison to the size of the living room; you’ll be able to see the colors, the colors of the wall and whatnot; whether it matches, so on and so forth—without actually bringing the sofa set out.  Through augmented reality, by super imposing digitized computer generated enhancements you are able to experience that reality in a more meaningful way.

There are other examples. Augmented reality will be used in surgery (if it’s not already being used).  It will have a significant role in neurosurgery through 3D imaging (3D models), in navigation, military and whatnot. Augmented reality actually enhances your real world.

What is happening now is that VR and AR are increasingly working in conjunction. One of the ways that they work in conjunction is something called “Haptics”. And if you don’t know, haptics is simply a tool that provides an experience of touch by applying vibrations, motions and/or forces to the user. One example that you, or, most of us, may have experienced is through the use of the controllers or joysticks when you are using a controller for example in a car racing game. You could feel the vibrations in your hand as the car moves in the game.  You can experience those vibrations in your hand and that is done through haptics. But the haptics world has exploded.  There is significant advancement in haptics. So much so that we are expecting that holograms that will be generated (that are seen) will also be felt.  Haptics is going that far that you will be able to even feel the holograms not only to see them.

There are companies that are making full body or torso haptic vests or hapticy suits.  What they will allow you to do is that they will immerse you in virtual reality so much so that you will be able to feel explosions and bullet impacts and whatnot on your body through those haptics. Now, if you have watched Black Mirror, there was an episode of Black Mirror in which something of similar nature was portrayed and it was quite graphic to see that and experience how haptics would play a role in experiencing virtual reality through the feelings of touch.

Ok, so we started with a question whether the harm from the virtual misconduct / virtual wrongdoing is real or not. Remember that we, as human beings, experience real world through our 5 senses. Our senses are: seeing (we see things), we hear things, we’re able to touch things, we’re able to smell and we’re able to taste.  Those 5 sensory experiences determine our reality.  When you have this virtual world where 3 out of 5 senses are already engaged (you’re able to see, you’re able to hear and you’re able to touch) so 3 of our the 5 senses are already engaged in our existing virtual world, then the question becomes how much would be the distinction between virtual and real.  This will be a philosophical question but in the near future we will be faced with this question because if, let’s say, in the virtual world all 5 senses are engaged. Then what is the difference between the virtual world and the real world?  How do we distinguish between the 2? That will become a philosophical question which will be relevant to us in our everyday lives as we will spend more and more time in the virtual world in virtual reality.  But for law, in the context of the harm, the question is if 3 of your 5 senses are experiencing some wrongdoing and it has a certain impact on your mind, could the harm that follows that wrongdoing, could that be real? Because if the harm is real and there is a real person being affected by that wrongdoing then there would be potential liability that may arise.

We will explore this further in terms of harm in our next lecture and we will continue our exploration towards the application of tort law principles to see whether it is possible to claim tort liability through wrongdoing in the virtual world.

Please stay tuned and we’ll come back with the next lecture talking about / exploring more about the harm whether being real or unreal.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Effective January 1st of this year (2020), there have been significant changes (important changes) to the Rules of Civil Procedure in Ontario with respect to small claims and simplified procedure.  In today’s lecture we will explain to you briefly what those changes are so you can make use of those changes in your cases.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What are the changes in small claims court? Essentially, there’s only one change.  In small claims court the monetary jurisdiction of the court has been increased from $25,000 to $35,000. You may remember that back in 2010 the amount was increased to $25,000.  In about 10 years the province of Ontario has increased it to $35,000 in small claims court. No other changes have been made to the Rules of the small claims court. As soon as you file your claim and defence is filed, the settlement conference, a mandatory settlement conference, is scheduled by the court and then you proceed with your trial.  If the matter doesn’t settle there is no right or examinations for discovery in small claims court. So nothing else has changed except that monetary jurisdiction has increased from $25,000 to $35,000.

With respect to Rule 76, there are a number of changes and these are important ones, so please listen carefully.

1. Number one, the monetary jurisdiction has been increased from $100,000 to $200,000—which is a significant change. If you have listened to my previous lectures on Rule 76 you would know that even if your monetary claim is more than $100,000 even if it’s for a $1,000,000, you can still commence your court action under Rule 76 but then there are some exceptions—the defendant may object, in which case you will have to choose either to convert it to an ordinary procedure or reduce the amount of damages that you’re claiming.  In any event the base limit of that monetary jurisdiction has been increased at $200,000. That’s number one.
2. Number two, the examination for discovery in simplified procedures were 2 hours long—one party could examine the other for 2 hours. That limit has been increased to 3 hours in the new changes to the Rules.
3. Number 3: No longer are you allowed to have an ordinary trial. The only way you can have a trial under simplified procedures is through summary trial. Summary trial is a trial by way of affidavit evidence. Both parties (all parties) will be required to prepare affidavits for their witnesses and present those affidavits at trial. Once those affidavits are presented, the other party (the adverse party) can cross-examine the deponent (the person who swore that affidavit)—that person can be cross-examined. Then you can re-examine. But, essentially, the evidence (the fundamental evidence) is provided through affidavit. Even if you have expert evidence, that will also be provided through affidavit.  Significant change—you are no longer allowed to have an ordinary trial under Rule 76 which was permitted previously.
4. Another thing about trials, is that the time duration of trials is now limited to 5 days. You cannot have a trial for more than five days it has to be 5 days or less.
5. You’re not allowed any jury trials under Rule 76. There are some exceptions for cases that deal with false imprisonment, malicious prosecution, defamation, libel or slander.  If you do have those causes of action, then you can have a jury trial but then you’ll have to go and have the trial under ordinary procedure.  It won’t be a summary trial.
6. Once the trial is complete and the party is successful in this and the party is seeking costs, the recovery of cost is now limited to $50,000 excluding HST. This is essentially to make litigation a bit more cost effective. But $50,000 is the upper limit for your legal costs.
7. Similarly, there is a limit on disbursements which are associated costs/third party costs for your examinations, for transcripts, for photocopying (all of that), process server fees, mediation fees and what not. For all of those disbursements the upper limit is now $25,000 excluding HST.

Why has the province made these changes? One of the reasons was to promote cost-effective litigation.  These changes are meant to do that. The province also wants to conserve judicial resources.   You are required to have more efforts going towards the trial because you’re preparing affidavits and making sure that your evidence is in line with your case and so you are using less of court’s time to be able to present your case.  These are some of the reasons why these changes have been made.

Please make sure that you read the Rules to understand further details about these changes and then use these new Rules effectively to have your litigation argued at court in a cost effective manner.  Please note that the lectures that have been previously posted about Rule 76 are relevant subject to these changes that I have indicated in this lecture.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

We have been talking about this tort of negligence.  In yesterday’s lecture, I explained what the elements of tort of negligence are that you need to establish if you are filing a claim against anyone for the tort of negligence.

Today, we will take the opposite side and discuss what some of the defences are that you could raise to defeat a claim for negligence against you.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

The best defences for the negligence claim against you are two:

1. Number one, you owe no duty of care to the plaintiff.  You can show that you did not owe a duty of care to the plaintiff. Then you’re off the hook for that negligence claim.
2. Or, you can simply show that the specific act that is being alleged as a negligent act, that negligence did not occur, the act was not negligent at all.

These are simple straightforward defences.  If you can show either of the two, you will be off the hook for the negligent claim.

If that doesn’t work then there are three defenses to negligence claims that can be used and have been used in various cases.

1. Number one is called contributory negligence.
2. Number two is voluntary assumption of risk; and
3. Number 3 inevitable accident.

I’ll talk about these.

(1) Contributory negligence: Essentially, what you’re saying is that plaintiff has some fault in having those injuries or harm that was done to the plaintiff.  Both plaintiff and defendant have done something wrong; have been negligent with respect to this issue; with respect to the instance.  The plaintiff has some blameworthiness in this scenario.  If that happens then it is a shared liability between the defendant and the plaintiff.  It is based on the degree of fault. The court will determine:

[a] whether the plaintiff was negligent at all in contributing towards his or her injuries; and,

[b] what was the percentage of that contribution—should the plaintiff be held liable for 25 percent of his or her injuries, 50 percent or 75 percent.  The court then does assign a certain degree of fault on each party (on the plaintiff and the defendant).  That’s how the damages could be a proportioned.

In this scenario, when the defendant is alleging that the plaintiff was also negligent, then it is the burden of the defendant to prove that the plaintiff was contributorily negligent. Let’s take an example again. A common example is a motor vehicle accident. In this case the plaintiff claims that the defendant ran a red light and caused an accident which caused the plaintiff’s injury. If that is the basic scenario but let’s say that in that scenario it is determined that at the time of the accident the plaintiff was not wearing a seat belt and the defendant takes the position that the injuries caused to the plaintiff were either completely because of the plaintiff not wearing his seat belt or at least, in part, his not wearing seat belt contributed towards the extent of injuries that the plaintiff suffered.  In this scenario, the defendant will then show to the court that (i) number one that the plaintiff did not wear a seat belt at the time of the accident and therefore the plaintiff was negligent in that act; and, (ii) secondly, that the plaintiff not wearing the seat belt either caused the injuries or contributed towards the extent of injuries that the plaintiff has suffered.

When this is established, there are few things that can happen the court may say that the defendant is completely off the hook and award no damages or the court may apportion the damages. As I said, the court may decide that the plaintiff is liable 25 percent for his wrongdoing.  Then, in that scenario, the court will reduce the damages by 25 percent because this is not a scenario where the defendant is claiming any damages because it is the plaintiff that is injured.  The injury has been caused to the plaintiff and therefore the plaintiff will not be paying any money to the defendant, unless, there is a counter claim for something.  In ordinary circumstances, there is no money that is going from the plaintiff to the defendant for contributory negligence. But, let’s say if the total value of the damages was $100,000 and the plaintiff was liable 25 percent for contributory negligence, then the plaintiff will receive $75,000. The money is not going from the plaintiff to the defendant.

(2)  Voluntary Assumption of risk: For this defence, the defendant must prove two things: [a] number one that the plaintiff clearly knew the risk of the activity; and, [b] secondly, that the plaintiff made a choice to assume that risk. Two components—both of these need to be shown by the defendant to succeed on the defence of voluntary assumption of risks.  We, in our daily lives, deal with this scenario all the time. We all sign a number of waivers depending upon different activities that we engage in, where we voluntarily assume the risk of that activity.  We go to, for example, ski resorts and engage in skiing. We all (pretty much everyone) signs a waiver that clearly states that there are risks inherent in the specific activity of skiing and then we may get hurt in that process.  We are making that choice on our own.  We sign these waivers for all kinds of activities – you go for skydiving, you go for swimming, even in circumstances where you attend and are just watching a hockey game in the arena. Oftentimes you will see that the ticket that you buy will indicate on the back of the ticket – perhaps – that pucks may fly out of the arena and come into the area where the spectators are sitting.  You might get harmed by that.  You are taking that risk. You’re assuming that risk that you may get hit by a puck if you are not paying attention.  In that situation (if you are injured) you’re not able to get any liability against the arena owners or the organizers. We sign these kind of waivers all the time.

(3) Finally, the third defence, is inevitable accident.  In this defence, the defendant shows to the court that the injury was due to an unavoidable or unforeseeable situation—something that the defendant could not do anything about—even with prudence and due care, the defendant could not have avoided that injury or that accident to the plaintiff.  Let’s take a similar example of a motor vehicle accident. In this scenario, someone is driving on the 401 (Expressway) and his or her vehicle was struck by lightning. Because of the lightning strike, the driver lost control of the vehicle, ended up changing lanes and hitting another car which caused the accident injuries to the plaintiff.  In this scenario, if the defendant can show that his loss of control of the vehicle was really because of the lightning strike and for no other reason and there was nothing that the defendant could have done to prevent that accident, then, this particular defence will succeed and the defendant will not be liable.

What you want to remember is that your best defenses are that you can show that there’s no duty of care or that the act that is being alleged to be negligent was not negligent.  Then, you also want to know that each province pretty much have their own legislation. In Ontario it’s called Negligence Act which codifies these things and talks about how the court has the power to award contributory negligence and also if there are multiple defendants how is the liability apportioned between multiple defendants if the case is successful.  Finally in our everyday lives I think it is important to read these waivers carefully to understand the kind of risk they were assuming and then decide whether we want to engage in that particular activity or not.

I love this topic. As I said I really enjoy talking about torts. It’s one of my favorite topics. We’ll continue this conversation and I will provide further lectures so we can have some examples of how the tort of negligence takes place in our day to day lives now and what are some of the areas that it may develop further.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

If you are unfamiliar with tort law we have posted another lecture earlier about different types of torts and I would recommend that you review that lecture before you learn about tort of negligence.  If you understand what a tort of negligence is generally about, in today’s lecture we will explain what are some of the basic things that you need to prove in court in order to get your remedies under tort of negligence.

We begin with our usual disclaimer that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Let’s talk about some of the examples of negligence torts which will help you understand what kind of torts we are talking about. The common example that will come to mind is a motor vehicle accident. Anytime there’s a motor vehicle accident, there could be a tort of negligence arising from that accident.  Medical malpractice is another area where tort of negligence may come into play. Professional negligence – whether it’s lawyers’ negligence or your accountant’s negligence or any other professional who may be providing you any services—that will be covered under tort of negligence. Commercial host: these would usually be hospitality industry—like bars and restaurants who serve alcohol—they may come under commercial host negligence area. Social host: these are similar to commercial host.  The only difference is that in this case the social host may not be getting a monetary benefit of providing that particular hosting. Trespassing is another tort of negligence and the negligent investigation.  There could be many more, but these are some of the examples just for you to understand the kind of areas that may be covered under tort of negligence.

What are the basic elements of tort of negligence?  There are five.  (1) Number one, you have to show that the defendant owed the plaintiff a duty of care number. (2) The defendant actually breached the standard of care which is also called the “reasonable person” standard. I’ll explain what that is. (3) Third, the defendant’s breach caused the plaintiff’s injury, harm or loss (which is causation). (4) Number four, the injury or harm that was caused was actually foreseeable and it’s called “foreseeability” test. (5) Number five, did the plaintiff actually suffer harm or loss.  The plaintiff has to show what harm or loss the plaintiff actually suffered. Once he shows those 5 elements you will be able to get remedies that you’re seeking under tort of negligence.

1.  Duty of Care: What is the duty of care? It is fundamentally an obligation not to harm others or their property. This could mean a very specific duty or could be duty to a general  For example, when we are driving we owe a duty of care to everyone else—whether it’s other motorists or pedestrians—that in driving our vehicle, we will not cause any harm to them.  That duty is a very general duty. It is to the general public at large but duty could be very specific. For example doctor-patient relationship: a doctor owes a duty of care to his or her patients. A lawyer owes a duty of care to his or her clients. Similarly, manufacturers owe a duty of care to their consumers. And as I mentioned driving is a broad duty of care that we all hold to the larger public.

There are all these kinds of duties of care which are fundamentally duties that are imposed by law depending upon the circumstances of a specific case.

2.  What is the standard of care? It is called the “reasonable person standard”. The larger question that the court has in its mind is, “what would a reasonable person do in those circumstances?” that are the subject of your lawsuit. Let’s think about it by way of an example. Professional standards: a lot of a lot of administrative bodies like College of Physicians and Surgeons and Law Society of various provinces have these professional standards which will indicate to the court what is the appropriate standard of care that a lawyer or a doctor should have exercised in that specific situation. The larger question is, for example, in a case where you’re claiming that the specific surgeon was negligent in performing a surgery. The question for the court is, “what would a reasonable surgeon or a surgeon who is reasonably diligent and informed about his profession or her profession, what would he or she have done in those specific circumstances.  That’s the standard of care.  The court actually determines a standard of care in each case and then looks at the conduct of the defendant in comparison to that standard of care and then determines whether that person / the defendant actually breached that standard of care or not.  “What would a reasonable lawyer have done in similar circumstances?”—that would be a standard of care in case of malpractise of a lawyer. 

3. Third element is causation. As you can imagine did the defendant’s breach or did the conduct that is in question in the lawsuit actually cause the injury or loss.  The conduct should be connected and tied to the injury harm or loss that is being alleged. Let’s take another example. In this case, example of a motor vehicle accident: for example a person gets into a car accident and later on the person claims that he or she has suffered some neurological issues because of that specific accident. In that case the plaintiff will have to show that that specific neurological disorder is in fact caused by the accident. It is not something that occurred maybe afterwards, maybe something else happened at the hospital which may have caused that particular disorder and may or may not have been related to the specific accident or the defendant’s misconduct or defendant’s breach of the standard of care.  The causation needs to be proven so that you are able to get remedies under the tort of negligence.

4.  Fourth element is foreseeability. What foreseeability is, that when a reasonable person is in the shoes of the defendant, could that reasonable person foresee or anticipate that if the conduct was wrong then the harm that has occurred could have happened. It’s kind of like looking in hindsight and imagining that if another person (a reasonable person) was in the same circumstances could that person have imagined or would that harm ensue because of that conduct.  Let’s take another example.  When a person is consuming alcohol in a bar, a bartender should generally be able to determine if a person is sufficiently intoxicated and that person gets in the driver’s seat of a vehicle, it is foreseeable that the person may end up getting into an accident.  That is a foreseeability test.

We can also imagine that if you have purchased a defective product, if a manufacturer has sold that defective product then that defective product may end up causing some injury or harm to the consumer.  Is that something that’s foreseeable or not? Another example could be: let’s take the example of surgery. If a surgeon leaves some of the surgical tools in the body of the patient and has completed the surgery it is obviously foreseeable that those surgical tools that have remained in the body of the patient may cause further injury or harm to the patient. That act (that particular act) the court is considering—whether that particular act if it was seen by a reasonable person could that person anticipate that yes an injury or harm could occur from that particular act.  Foreseeability is the fourth element of proving tort of negligence.

5.  Finally, the plaintiff has to prove damages. What was the harm or loss? Then the plaintiff has to prove that that the plaintiff has actually suffered that harm or loss. Let’s take another example of a motor vehicle accident.  In that case, this person was involved in an accident and was not able to work for a month after the accident because of the injuries sustained in that accident. Then the person will have to prove that the person was not able to earn his living for that month and is entitled to claim damages for the loss of earnings.

Similarly, let’s say the person was a tradesperson who used his hands to earn his living. Let’s say in that particular accident he lost his arm or he lost his hand or his fingers such that he is not able to make a living out of the same trade that he was previously involved in.  Then he has potentially lost his earning capacity (his future earning capacity).  That could be damages that could be claimed.  But the plaintiff has to prove that the plaintiff has actually lost that earning capacity. Similarly, again in the accident situation, if there were any costs that the person had incurred for medical rehabilitation, the plaintiff will have to prove those damages.  All the damages that the plaintiff and there are so, so, many kinds of damages that could be claimed but the point here is that if there are any damages that the plaintiff is claiming it is the plaintiff’s burden to prove that the plaintiff has indeed incurred those damages or loss and he or she is entitled to be compensated.

All of these five elements need to be proven and once they are proved you will be entitled to seek remedies in the tort of negligence. As I mentioned at the outset the tort of negligence is a powerful tort.  It covers so many areas of our lives and it is an essential tool in claiming damages and remedies from all these kind of issues that we may experience in our daily lives. It’s an important tort to know.

You also want to understand that each cause of action may have different elements.  For example, if you’re claiming defamation you may have different things to prove. But, fundamentally, the five elements that I have described, those are the five basic elements that you will end up proving in every single case.  That is why it is important to understand the basic concept of tort of negligence. You also want to understand that the negligence tort continues to grow. I mean a few centuries ago they didn’t exist. Now we have all kinds of these torts of negligence. They will continue to grow and evolve as society continues to grow and get more complex and relationships get more complex. New duty of care is found all the time by courts and the law is sufficiently broad and sufficiently philosophically based in certain ways that the court can find new duty of care if there is no existing duty of care in the circumstances but one that ought to be created.

Important to note and hopefully this gives you a good understanding of tort of negligence. In our future lectures I will pick some topic about negligence.  In today’s age, for example, tort of negligence in artificial intelligence related matters or virtual reality matters or augmented reality issues and whatnot—so will take this tort of negligence and apply in those circumstances and see how we can we predict how the law may grow in the future years to come.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture we will talk about the remedy of civil contempt in Ontario. We will explain what civil contempt is; we will explain the test to get an Order for civil contempt and will give you some examples in which the court has awarded civil contempt or may award civil contempt. We will explain to you what kind of remedies you will get under an Order of civil contempt.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Civil contempt is a private injury.  It arises from a private injury in a litigation where one party has disobeyed a court Order or disobeyed a court process.  It is an injury / private injury because this is a civil contempt.  If you are a litigant and the court has issued an Order to the other party and the other party has disobeyed it—obviously you have suffered harm because the other party has not obeyed the court Order.  You, in certain cases can seek this remedy of civil contempt.  Similarly, if there is a specific process that a party needs to follow under that litigation and the party has failed to do so or has refused to comply with that process, then you may be entitled to a remedy of civil contempt.

We will explain this further by way of examples.  It will be a bit clearer. What is the circumstance in which a civil contempt may not apply?  

There is one circumstance where there is an Order for payment of money.  For example, if you were successful at trial and received a judgment against the other party, if the other party refuses to pay that judgment that will not be a scenario in which you will be able to get a contempt Order. There are many other remedies that you may have available at your disposal where you can enforce that Order but the contempt Order is not one of the remedies that you will get. 

I believe this comes from the past practice centuries ago where in civil cases most of the people who were incarcerated were people who had not complied with the judgment Orders against them.  That was the majority of people—debtors were the majority of people who were incarcerated in the civil context in court and common law and our jurisprudence has given [moved] away from that approach.  Failure to or refusal to pay judgment is really not a cause for seeking the remedy of civil contempt.

Now it gets a bit complicated.  For example, if the Order is to pay the fines into court, then you may be able to seek a contempt Order if a party refuses to pay that money into court or if the Order asks the party to hold money in trust and the party has refused to do that, then these could be circumstances in which remedy of contempt Order may be available. Another example could be where the court has ordered that the proceeds from the sale of a matrimonial home needs to be paid into court and the other party has refused to do that—that may be another circumstance.  Generally speaking what you want to remember is that Orders relating to payment of money are a bit more complicated and may not usually fall into the category of contempt.

Let’s get into some of the examples of civil contempt. In one case a party refused to answer the undertakings that they had provided and refused to answer questions that were posed at an “examination in aid of execution”.  An “examination in aid of execution” used to be called a Judgment debtor examination, in which you have received an Order—you have received the judgment against a party and now you’re trying to figure out what kind of assets the other party has.  You can go ahead and enforce that judgment and in that process you conduct an examination which is called an examination in aid of execution.  The party had refused to answer questions in that examination and the court ordered a 60 day jail sentence to that party.

Similarly, in one case a party repeatedly refused to attend at examinations and produce financial information.  In that case one of the reasons for the failure to comply with that was provided by that party was that his father had passed away—which was a lie. The court ordered a 90 days sentence against the party.

Concealing or dispensing property to defeat or defraud creditors is another example where there’s a court Order and a party tries to hide its assets or dispense them in any other way, so that the Order is not complied with. That would be a contempt situation. Hiding your income or your assets is also another example of being uncooperative or unresponsive or untruthful in an examination in aid of execution.  For example you have been issued summons to attend, for example, a court at a trial and a party disobeys those summons then the party can be held in contempt..

What is the test for establishing contempt? It’s a 3 part test  (1) Number one: Did the Order alleged to have been breached—did it clearly and unequivocally state what should and should not be done?  The court will look at the specific Order and determine if the Order is clear.  If it is clear, then you have met the 1st test but if the Order itself is not very clear then you may not be able to show contempt.

(2) Second part of the test is that the party who has been alleged to have breached the Order; did that party have actual knowledge of that Order? If they did not have that knowledge then you may not be able to obtain a contempt Order.

(3) Finally, that the party actually have the intention to do the act that the Order prohibits or did he or she intentionally fail to do the act the Order compels—whatever the Order says, is there an intention not to do that?  Just remember that it’s not the intention to disobey the court Order; it is the intention to disobey the Order given in that particular Order.  It’s the act (intention behind the act is what matters not the intention to disobey the court Order or the court process)

What is a Contempt Order? How do you obtain it?  You obtain it by bringing a motion to a judge.  The motion is brought in the very proceeding in which you are trying to have that Order enforced.  It’s the same court file in which the proceeding, the original Order was issued.

What you want to remember is that the contempt motion is quasi-criminal in nature. What does that mean? The elements of the 3 part test that I just described to you—you have to prove that the party breached all those 3 parts of the test on a balance of beyond reasonable doubt. The test you have to show is that on a beyond reasonable doubt basis that the party breached all those parts of the test. The test is not the civil test which is balance of probabilities more likely than not.  That’s not the test. The burden is much higher. You have to show on a beyond reasonable doubt basis that the other party is really in contempt.

What are some of the remedies for contempt? The court can award imprisonment. I gave you some examples where the court can award imprisonment. The court can award a fine.  The court can issue another Order asking the party to do something or refrain from doing an act. The court can order costs against the party.  A judge can abort any other Order that the judge believes that’s necessary under the circumstances.

The court’s jurisdiction is inherent. It has been available to the courts for centuries (in respect of awarding contempt orders).  There are some relevant Rules in the Rules of Civil Procedure that you want to check out. Rules 60.05, 60.11 and 60.18 are the 3 Rules that relate to contempt orders that you may want to look at to get more information.

The takeaway is that contempt orders is considered the big stick of litigation. This remedy is really the last resort remedy.  Have you done everything possible to ensure that the other party has obeyed the court order that you are alleging that they didn’t and you want that party to be held in contempt, if they have not and you have tried everything else possible and you’re still not able to have the other party comply with a court Order, only then you should be able to seek the court’s Order with respect to contempt—as a last resort remedy.  That is how you should treat it.  If you’re seeking a contempt order then you should keep that in mind because the court will not very readily dispense these contempt orders. The purpose, as you could tell by now, of the contempt order is that the court wants to make sure that everyone respects the law and follows the court orders; otherwise the court will lose its power and authority.  It is also important for the administration of justice that everyone is complying with the court orders.

Hopefully that gives you a sense of what a contempt Order is and in what circumstances you are able to obtain a contempt order against a party.

Thank-you for watching.

Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Most people have this general understanding that if they are involved in a court action in Ontario and if their matter does not settle then it will eventually go to trial.  They believe that one trial procedure is no different from another trial because we will just need to simply follow the Rules of Civil Procedure and have the trial conducted. Many people don’t have this understanding that there is a significant flexibility within the Rules of Civil Procedure that allows the parties to be more innovative, more creative and then create their own trial processes which may be appropriate for the specific circumstances of their case.  These trials are called hybrid trials.

What are hybrid trials? What are the benefits of hybrid trials? How do you go about creating a hybrid trial? We will discuss that in today’s lecture.

We will begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your own issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for any referrals.

To understand what is a hybrid trial, I think, it is important to understand what is a conventional trial.  

I’ll give you this by way of an example.  How a conventional trial is done? What are some of the components?  In a conventional trial, parties make oral opening statements. If you have retained counsel, your counsel will get up and provide an opening statement which is essentially a roadmap for the judge with respect to your case—what is your case about; what is it that you’re going to prove through evidence and what not—these are opening statements, in conventional trials they are made orally.  Then comes the viva voce evidence—all witnesses are called to the stand, they are sworn in and then they provide their viva voce (oral) evidence.  Then whatever documents that the party is relying on, those documents are introduced to those witnesses.  You bring in a document. You provide a copy to the witness. You provide a copy to the judge. The witness tells the court what the document is about. The document is admitted or not based on the relevance of the documents’ authenticity.  The other side / the other party if they oppose the inclusion of that document, they will object to it and what not. There is a whole process of introducing documents into evidence which is done through the witnesses.

Then in the same context all parties have their separate book of documents which they have prepared.  You may have prepared your book of documents—these are documents that you intend to rely on at trial (to prove your case). Similarly, other parties will have their book of documents.  Nobody has a joint book of documents because each party may have disputes about what documents of the other party are relevant, which are authentic and which are not.  That is all (discussed) argued at trial. 

There is usually minimal agreement on facts between parties.  Some of the issues that may not be disputed (some of the facts that may be undisputed) the parties at times do not agree to them for the purposes of trial.  Even though a fact may be undisputed you still have to prove it.  That may take a lot of time. Even such a simple matter as proving some body’s date of commencement of employment may take a few minutes for you to prove.  The witness provides testimony that he or she started his or her employment on so and so day.  Then you provide the contract of employment or the offer letter. Then you introduce that into the evidence. By all of those steps you are then able to demonstrate to the court the date of commencement of somebody’s employment. In conventional trials a lot of times parties are not even agreeing to the simple undisputed facts.

What are hybrid trials? In Hybrid trials (you can now understand better in the context of a conventional trial) essentially they allow the parties or the courts to create a trial process which is tailored to the specific circumstances of a case.  At the base of every dispute there is one or two or a few fundamental disputes for which you are there at the court.  All of the other facts are sort of relating to that fundamental dispute.  Based upon what your dispute is what your fight is about you are able to create a trial process which is tailor-made to the needs of your specific trial.  

How would you understand this better?  Let me explain some of the components of a hybrid trial which will help you understand what a hybrid trial can do for you. For example, you can agree you can have written opening statements.  These are pre-prepared written statements. You provide them to the judge and you don’t need to expound on it verbally in front of the judge. Parties can also prepare an agreed statement of facts.  You and the other parties can sit down and say, “Ok, you know out of the 100 facts, we are agreeing that 50 facts are ok. We agree that the plaintiff commenced employment on so and so date; we agree that the plaintiff is of these many years old;” you know things like that which may not be significant issues.  Even if they are in dispute but the other party has no reason to challenge those facts then you could agree.  You prepare an agreed statement of facts and you provide it to the judge. That means the number of facts that you’re now going to fight about are less—which would save time.

Similarly, you can provide a statement which can explain to the judge what facts are in dispute.  The judge, then, knows what are the facts, that he or she needs, to focus on during the trial. You can also agree on a joint book of documents.  Parties can communicate with each other and discuss which documents they believe are Ok to be submitted as joint book of documents.  You provide a joint book of documents to the court.  With respect to evidence, it doesn’t have to be all viva voce.  You can provide affidavit evidence.  It could be partial evidence in the form of affidavit or the entire evidence in the form of affidavit.  In a lot of summary trials the evidence is through affidavits.  You can agree that the key issues, for example, the issues that deal with credibility may be provided orally.  The rest of the evidence could be in the form of affidavit. It could be a combination of those 2 things.

Parties can also agree that you have some out of court examinations which are done through court reporters, who record those examinations—which is similar to the discovery process. You have to go to examinations and you will provide those examinations as evidence. You can provide the transcripts of those examinations to the court.  They can be introduced as evidence. You can also agree that each party will have a specific time to provide their viva voce evidence.  If you see, all of these things are subject to an agreement. You can agree to these things. You can limit the time that each party is going to utilize the court’s time and then create a trial process which is really responding to the issues in your case.

If it is not obvious to you already the first advantage of having a Hybrid Trial is that it may provide you with an expeditious resolution. A trial that would have taken 10 days (of course time) may be wrapped up in 2 or 3 days.  What that means is the number of days for trial is reduced. Also you may get an early date for trial because now you’re asking for 2 days of court’s time and not 10 days of court’s time.  Anyone who has experience with a trial process in Toronto, at least, would know that if your trial is for more than 5 days, you’re looking at a date which is farther into the future than if you are looking for a trial date which is only for a day.

Potentially hybrid trial is cost effective.  Potentially I say because there’s a lot of work that goes into preparing all these things – if you’re preparing affidavit evidence, if you are discussing the joint book of documents, if you’re preparing a joint statement of facts and whatnot.  There’s a lot of work.  It may not be that that you will save a huge amount of money but there is a great possibility that you will end up saving a lot of money.  Once you’ve done that exercise you may be able to even resolve that case because now everything is out in the open—whatever your arguments are; whatever the facts that are being discussed / being disputed—the other party may recognize that they have a weaker case and they may end up resolving your case. And finally, you obviously conserve judicial resources because the time is limited for the court to allocate to all the cases before it. If you can help reduce the court’s time without compromising (obviously, with the ability to argue) your case on its merit, then that is appreciate

How do you go about scheduling a hybrid trial? There are generally 3 ways to do that. Obviously, (a) first way is by mutual agreement of parties. You discuss with other parties.  You propose a hybrid trial and if parties agree to it then you can carve out a process and then explain it to the court. (b) The other way is a court-ordered process. The court, on its own initiative, may realize that the best approach for this specific trial is not going to be a conventional trial.  The court may impose that the viva voce evidence may be limited to certain times, certain evidence may be provided in the affidavit form and whatnot. The court can very well impose that process.  (c) Finally, if you are in a situation where you are proposing a reasonable approach to a hybrid trial but the other party is obstructing it or it’s not reasonably accepting your suggestion, then there are ways under the Rules of Procedure for you to get the court involved in the process. You can ask the court to intervene and then have the hybrid trial imposed by the court, on your request, because what you’re asking is something reasonable.

The lesson to take away is, for you to (a) understand that hybrid trials are possible.  It is in your power to have those instituted and you should use those [powers] to create hybrid trials. (b) You should also recognize that hybrid trials may not be suitable in all cases.  Some cases are so complex—all the facts are so much in dispute—that it may not make sense to have a hybrid trial in those cases. You should proceed with a conventional trial.

The key thing I want you to remember is the fundamental principles of dispute resolution under the Rules of Civil Procedure.  Any step that can help the court in achieving a just, expeditious and cost effective resolution of a matter—the court will consider it.  Obviously, it has to be proportionate to the issues that are in dispute between the parties.

Thank-you for watching.