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Tort - Negligent Misrepresentation

Tort - Damages - Involuntary Parenthood

Tort - Battery

Tort - Sexual Assault

PP v DD (Ont CA, 2017)

In this case the Court of Appeal states the elements of the tort of negligent misrepresentation succinctly as follows:
[41] To succeed on a civil claim for fraudulent misrepresentation, the appellant must establish the following: (1) the representation was made by the respondent; (2) the respondent knew that the representation was false or was recklessly indifferent to its truth or falsity; (3) the false statement was material and by it the appellant was induced to act; and (4) the appellant suffered damages: Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 (CanLII), [2014] 1 S.C.R. 126, at para. 21; see also Parna v. G&S Properties Ltd. (1970), 1970 CanLII 25 (SCC), 15 D.L.R. (3d) 336 (S.C.C.) at p. 344.[1] The Supreme Court of Canada has consistently recognized that “fraud without damage gives . . . no cause of action”: Hryniak at para. 20.
The court also denied damages for involuntary parenthood on public policy grounds:
[57] To allow the appellant to recover damages as against the respondent for the unwanted birth in the circumstances of this case would, in my view, run against the clear trend in the law moving away from fault based claims in the family law context.

[58] Since the 1970s, Canadian jurisdictions have moved away from a fault based divorce and child support regime. The 1976 Law Reform Commission of Canada’s Report on Family Law (Ottawa: Information Canada, 1976) put it as follows, at p. 18:
[There should be] a process that offers no legal confirmation of a spouse’s contention that he was right and she was wrong, that she is innocent and he is guilty, that one is good and the other is bad. No legal results should be allowed to follow from such claims or accusations—not dissolution, not financial advantage, not a privileged position vis-à-vis the children.
[59] In Frame v. Smith, at para. 9, La Forest J. similarly emphasized the “undesirability of provoking suits within the family circle.” As he explained, such claims brought by one parent against another should not often be allowed since they are in most cases detrimental to the parties involved—especially to the welfare of the child—and will invite a flood of cases. See also Louie v. Lastman (2001), 2001 CanLII 28066 (ON SC), 54 O.R. (3d) 301 (S.C.J.), at para. 31, affirmed (2002), 61 O.R. (3d) 459 (C.A.), and Saul v. Himel (1994), 9 R.F.L. (4th) 419 (Ont. Gen. Div.), at para. 20, affirmed (1996), 1996 CanLII 10207 (ON CA), 22 R.F.L. (4th) 226 (Ont. C.A.).

[60] Further, La Forest J. held in Frame that clear legislative action with respect to child custody and access rights was determinative in that case and precluded any possible judicial initiative in that area through the development of tort law. It was obvious to him that “the legislature intended to devise a comprehensive scheme” that precluded the availability of civil actions in such family disputes as the one before him: see Frame, at paras. 11-12.

[61] When a couple’s dispute involves costs related to their child, the imposition of civil liability raises similar concerns. It is well established that child support is the right of the child: see, e.g., D.B.S v. S.R.G., 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231, at para. 38. There is a corresponding obligation “placed equally upon both parents” to financially support the child: Paras v. Paras, 1970 CanLII 370 (ON CA), [1971] 1 O.R. 130 (C.A.). The Supreme Court of Canada has confirmed that:
the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support (Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269, at para. 208).
[62] The child support obligation of a parent in Ontario is legislated in s. 31(1) of the Family Law Act, which clearly states that every parent has an obligation to provide support for his or her child to the extent that the parent is capable of doing so. The legislative scheme for child support is broad, and does not take blame into account in relation to the manner of conception.[4] The statutory remedies available to ensure support for the child flow from the simple fact of being a parent as defined by statute.

[63] It would be contrary to the spirit, purpose and policy reflected in Ontario’s no-fault child support regime to view parents as equally responsible for maintaining a child but, at the same time, to allow recovery by the appellant against the mother for the loss purportedly suffered by him as a result of that responsibility, which loss would presumably increase as he devotes more of his time and resources to the child’s upbringing.
Lastly, the court stated the law of battery and sexual assault (which it equated) as follows:
[70] In Non-Marine Underwriters, Lloyd’s London v. Scalera, 2000 SCC 24 (CanLII), [2000] 1 S.C.R. 551, McLachlin J. (as she then was), writing for the majority, set out the purpose and features of the tort of battery, at para. 15:
The tort of battery is aimed at protecting the personal autonomy of the individual. Its purpose is to recognize the right of each person to control his or her body and who touches it, and to permit damages where this right is violated. The compensation stems from violation of the right to autonomy, not fault. When a person interferes with the body of another, a prima facie case of violation of the plaintiff’s autonomy is made out. The law may then fairly call upon the person thus implicated to explain, if he can. If he can show that he acted with consent, the prima facie violation is negated and the plaintiff’s claim will fail.
[71] The constituent elements of the tort of “sexual battery” are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was “harmful” or “offensive”, but this element is implied (assuming a lack of consent) in the context of a sexual battery: Scalera, at para. 22.

[72] An apparent consent to sexual touching will be invalid if it has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the defendant’s conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited: Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 at pp. 246-47. For the purpose of this appeal, I will focus only on fraud.

[73] In Linden and Feldthusen, Canadian Tort Law (10th ed.) (Toronto: LexisNexis, October 2015), the authors explain that not all forms of fraud will undermine consent to sexual touching. As they state at p. 82, the key question is whether the deceit goes to the “nature and quality of the act”. Consent to sexual touching will normally remain operative if the deceit relates not to the “nature and quality of the act”, but instead to some collateral matter.

[74] Reported cases involving fraud pertaining to “the nature or quality of the act” are frequently cases of criminal sexual assault. Criminal sexual assault and tortious sexual battery typically involve the same wrongful act, namely non-consensual sexual touching, and in such cases the difference lies in the mens rea and standard of proof that must be established: see Scalera, at para. 111.[6] For the purpose of determining whether consent to sexual touching is operative in the face of fraud or deceit, such criminal cases are therefore instructive. Cases of fraud as to “the nature or quality of the act” have included circumstances where, for example, a choir-master had sexual intercourse with a young student under the pretense that it would improve her singing (R. v. Williams, [1923] 1 K.B. 340 (U.K. Ct. Crim. App.)) and where a woman consented to sexual intercourse under the belief that it would cure certain physical disorders (R. v. Harms, 1943 CanLII 146 (SK CA), [1944] 2 D.L.R. 61 (Sask. C.A.)).

[75] Likewise, fraud pertaining to the identity of the sexual partner will undermine consent. This court has upheld a criminal conviction for sexual assault where the complainant mistakenly believed her sexual partner was her boyfriend when it was in fact his identical twin brother and where the twin was reckless or wilfully blind as to whether his identity was clear to the complainant (R. v. G.C., 2010 ONCA 451 (CanLII), [2010] 256 C.C.C. (3d) 234, leave to appeal refused, [2010] 3 S.C.R. v (note)).

[76] The appellant relies on R. v. Hutchinson, 2014 SCC 19 (CanLII), [2014] 1 S.C.R. 346, a case wherein the court—in interpreting the Criminal Code provisions relating to sexual assault—took the opportunity to both summarize and clarify the law as to when fraud vitiates a complainant’s consent to sexual touching. In Hutchinson, the majority made clear that the analysis of whether consent to sexual touching is operative involves two questions. First, the court must determine whether the complainant validly consented to the sexual activity in question. Second, if so, the court must consider whether there are any circumstances that may vitiate the complainant’s apparent consent: Hutchinson, at para. 4.

[77] With respect to the first question, the Supreme Court confirmed the earlier case law and the above-noted view of Linden and Feldthusen, insofar as fraud going to the “nature and quality of the act” will undermine consent. Where there is a deception or mistaken belief with respect to either the identity of the sexual partner or the sexual nature of the act itself, no consent to sexual touching will have been obtained: see Hutchinson, at para. 57.

[78] In the present case there is no issue as to whether there was deception concerning the identity of the sexual partner or the sexual nature of the act itself. The appellant concedes that he consented to sexual intercourse with the respondent. His precise allegation is that his otherwise valid consent was vitiated in the circumstances by fraud.

[79] This takes me to the second question in Hutchinson, namely what types of fraud will vitiate consent to sexual activity. Here the court confirmed the approach it took in the cases of R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371 and R. v. Mabior, 2012 SCC 47 (CanLII), [2012] 2 S.C.R. 584. That is, for consent to be vitiated by fraud there must be: (1) dishonesty, which can include the non-disclosure of important facts; and (2) a deprivation or risk of deprivation in the form of serious bodily harm that results from the dishonesty: Hutchinson, at para. 67.

[80] In Hutchinson, the accused punctured holes in a condom that he then used to have intercourse with the complainant. As a result, unbeknownst to the complainant the sex was unprotected and the intercourse gave rise to a significant risk of serious bodily harm, namely becoming pregnant with all of its attendant risks.

[81] The majority in Hutchinson considered that the presence or absence of a condom during sexual intercourse does not affect the “specific physical sex act” to which the complainant consented, namely sexual intercourse, but is rather a “collateral condition” to that sexual activity. In the majority’s view, so long as there is consent to “sexual intercourse”, this general consent is not vitiated by dishonesty about condom use unless it exposes the individual to a “deprivation or risk of deprivation in the form of serious bodily harm which results from the dishonesty” (para. 67). On the facts of Hutchinson, the deprivation consisted of denying the woman the benefit of choosing not to become pregnant “by making her pregnant, or exposing her to an increased risk of becoming pregnant” and thereby exposing her to a significant risk of serious bodily harm. This was based on the majority’s understanding that “harm” includes at least the sorts of profound changes in a woman’s body resulting from pregnancy (paras. 69-72).

[82] In Hutchinson, therefore, the Supreme Court clarified that deception with respect to contraceptive practice does not go to the “nature and quality of the act”—or, in the words of the Criminal Code, to the “sexual activity in question”—but that it may, nevertheless, vitiate consent to sexual touching where the fraud gives rise to a significant risk of serious bodily harm, which includes the risk of pregnancy. The majority also made it clear, however, that:
[t]o establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in Cuerrier and in this case [namely, a significant risk of serious bodily harm]. For example, financial deprivations or mere sadness or stress from being lied to will not be sufficient (para. 72).
[83] In summary, therefore, absent any concerns about bodily harm, the test for invalid or vitiated consent has not changed from that set out by the authors in Canadian Tort Law. With the one exception of deceit giving rise to a significant risk of serious bodily harm, in which case consent may be vitiated, the question continues to be whether the alleged deception relates to the specific sexual act undertaken and/or to the identity of the sexual partner.

[84] As a result, I do not view Hutchinson as being of any assistance to the appellant. In the present case, the intercourse between the two known partners occurred consensually on many occasions. The appellant’s consent to sexual activity was meaningful, voluntary, and genuine. As the appellant concedes, he consented to unprotected sex and was fully informed as to the respondent’s identity and as to the nature of the sexual act in which the parties voluntarily participated. The touching involved was wanted and would have occurred in the same way except that, but for the alleged misrepresentation, the appellant would have used a condom. Not wearing a condom did not increase the appellant’s risk of serious physical injury.

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