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Torts - Battery. Denman v. Radovanovic
In Denman v. Radovanovic (Ont CA, 2024) the Ontario Court of Appeal considered the law of 'informed consent', here in a medical battery case:[1] The central issues underlying this appeal are the nature and extent of a physician’s duty to obtain informed consent for a multi-step course of elective medical treatment, and on which physicians involved in treatment does this duty rest. ...
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(3) The trial
[38] The central issue at trial was informed consent. More specifically, the parties disputed what information ought to have been disclosed to Mr. Denman, what in fact was disclosed to him, and finally, if informed consent was not obtained, what would Mr. Denman and a reasonable person in his situation have done had proper disclosure been made. The parties also disputed which appellants should be liable if informed consent was not given. The appellants argued that, if there was any liability, it could only rest on the doctor who performed the procedure that caused the injury to Mr. Denman, namely Dr. Pereira.
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(1) Legal principles
(a) The law of informed consent
[42] At the outset it is important to distinguish between consent as it relates to the tort of battery and informed consent in the context of a negligence claim. As some have commented, the terminology “informed consent” has led to some confusion.[1]
[43] Where there is a failure to make adequate disclosure to a patient, this gives rise to a claim in negligence. It does not, however, vitiate consent to treatment so as to give rise to a claim in battery. A claim in battery will only arise in circumstances where there was no consent at all or where the treatment went beyond the scope of consent: Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880, at pp. 890-91. . Palmer v. Teva Canada Limited
In Palmer v. Teva Canada Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against a lower court dismissal of a class action certification motion.
The court canvasses the tort of 'battery', here where contaminated drugs were consumed but no physical harm was yet shown:(3) Claim for battery
[81] The tort of battery protects bodily integrity. It asserts the right of persons to control their bodies, and allows damages where a person interferes with the body of another: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 15. A battery occurs when a defendant causes a direct, offensive, physical contact with the plaintiff, which is the immediate cause of the harm to the plaintiff: Barker v. Barker, 2022 ONCA 567, 162 O.R. (3d) 337, at paras. 138 and 154. Directness is an essential requirement for liability: Non‑Marine Underwriters, at para. 11. Although battery is often conceived of as an intentional tort, battery can be committed either intentionally or negligently: Non‑Marine Underwriters, at para. 5; see also Lewis Klar and Cameron Jefferies, Tort Law, 7th ed. (Toronto: Thomson Reuters, 2023), at p. 66; Allen M. Linden, et al., Canadian Tort Law, 12th ed. (Toronto: LexisNexis, 2022), at s. 2.03.
[82] Nothing done directly by the respondents is alleged to be the immediate cause of the harm alleged by the appellants. At best, the pleadings allege that the respondents “exposed” the plaintiffs to the contaminated valsartan, but exposure is not direct physical contact. Although the appellants’ claim seems to sound in negligence, negligent battery nevertheless requires directness. The appellants have provided no theory to address this constituent element of their claim in battery. Neither have they pleaded material facts in support. Moreover, there is no authority that a battery can be committed by a failure to act, which is what is here alleged. Accordingly, I see no error in the motion judge’s ultimate conclusion that there was no certifiable cause of action in battery. . Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (Ont CA, 2023) the Court of Appeal considered the interaction between tort and statutory family law. In these quotes the court considers how the existing torts of battery and assault (amongst others) render the creation of a new family violence tort unnecessary:[60] With respect, this statement reflects a misunderstanding of the law of existing torts. Existing torts already address patterns of behaviour, for both liability and damages.
[61] In Barker v. Barker, 2022 ONCA 567, 162 O.R. (3d) 337, this court recently provided a summary of the torts of battery and assault. Although the terms are often used interchangeably, there is a distinction. At para. 138:... battery and assault are distinct concepts in tort law, both being examples of trespass to the person … a battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person, whereas a tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature. [Citations omitted.] [62] The tort of battery requires direct interference with one’s person. Interference is direct if it is the immediate consequence of a force set in motion by an act of the defendant. The interference must be “harmful or offensive” or contact that is “non-trivial”: Scalera, at para. 16.
[63] The trial judge’s findings here that the appellant physically assaulted the respondent on three separate occasions satisfy the requirements for the tort of battery.
[64] Assault is conceptually different. It involves creating the apprehension of imminent harmful or offensive contact. In Barker, at para. 170, this court approved the following statement of law from the Hon. Allen M. Linden, et al., Canadian Tort Law, 10th ed. (Toronto: LexisNexis, 2015), at §2.42:Assault is the intentional creation of the apprehension of imminent harmful - or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. [Emphasis added.] [65] Barker involved a claim brought by 28 persons admitted to a mental health facility. They sought (among other things) damages against physicians who worked at that facility for assault, battery and intentional infliction of emotional distress. The claim for assault related to a program in the facility where patients could be sent to an extremely harsh form of solitary confinement known as MAPP. The trial judge wrote that the patients “lived under the shadow of the MAPP threat”: Barker v. Barker, 2020 ONSC 3746, at para. 1202.
[66] This court concluded that the trial judge had failed to apply the imminence requirement for assault, instead relying on a fear of future harm, which itself was “conduct-dependent”. A fear of future harm is not an apprehension of imminent harm: see Barker ONCA at para. 182.
[67] Here, however, the imminence requirement is met. The wife suffered constant threats of imminent harm, solidified by actual harm – both physical and emotional. The pattern of abuse caused her to live in a near-constant fear of imminent harm. The three violent incidents described above show that this fear, unlike that of the plaintiffs in Barker, was not conduct-dependent: simple acts such as asking a friend for help fixing a computer or receiving a compliment from a tour guide would be enough to provoke the husband’s wrath. . Scala v. Toronto (Police Services Board)
In Scala v. Toronto (Police Services Board) (Ont CA, 2021) the Court of Appeal considers a justification defense in what was (probably, it doesn't say) a battery tort case:[4] There is no dispute over the applicable law. In brief, in order to obtain protection from civil liability, police must establish that the level of force used to arrest was necessary, meaning that it was objectively reasonable in the circumstances presented to the police at the time of the arrest: Wilsdon v. Durham Regional Police, 2011 ONSC 3419, at para 85; R. v. Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 S.C.R. 206, at paras. 34-35. “Objectively reasonable” has been defined as reasonable given the nature and quality of the threat, the force used in response to it, and the characteristics of the parties: R. v. Power, 2016 SKCA 29, 335 C.C.C. (3d) 317, at para 35. . Figueiras v. Toronto (Police Services Board)
In Figueiras v. Toronto (Police Services Board) (Ont CA, 2015) the Court of Appeal commented briefly on the elements of the tort of battery as follows:[142] The tort of battery is committed whenever someone intentionally applies unlawful force to the body of another (Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, at p. 246). There is no requirement to prove fault or negligence (Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII), [2000] 1 S.C.R. 551, at paras. 8-10). Nor is there a requirement to prove damage or injury (Norberg, at p. 263). Relatively simple acts can constitute a battery, such as restraining a person by grabbing their arm (Collins v. Willock, [1984] 1 W.L.R. 1172 (Eng. Div. Ct.), at p. 1180), or maliciously grabbing someone’s nose (Stewart v. Stonehouse, 1926 CanLII 114 (SK CA), [1926] 2 D.L.R. 683 (Sask. C.A.), cited in Scalera, at para. 16).
[143] However, not every act of physical contact is a battery. As the Supreme Court has put it, battery requires “contact ‘plus’ something else” (Scalera, at para. 16). That is, there must be something about the contact that renders that contact either physically harmful or offensive to a person’s reasonable sense of dignity (Malette v. Shulman (1990), 1990 CanLII 6868 (ON CA), 72 O.R. (2d) 417 (C.A.), at p. 423).
[144] The classic example of non-actionable conduct is tapping someone on the shoulder to get that person’s attention, or the regular jostling that occurs in any crowded area. Something more than that is required to constitute a battery. . PP v DD
In PP v DD (Ont CA, 2017) the Court of Appeal 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. . Bollman v. Soenen
In Bollman v. Soenen (Ont CA, 2014), a medical malpractice case, the court reviewed the law of informed consent:[18] The trial judge’s determination of liability on informed consent was based on a misapprehension of the law. In the context of medical treatment, battery arises when there is no consent at all. An example would be when the wrong operation or procedure was conducted. When there is an allegation of a deficiency in the explanation of risks, the issue is that of informed consent.
[19] This distinction was clarified by the Supreme Court of Canada in Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880. At pp. 890-92, Chief Justice Laskin said:In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.
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…in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery. [20] Although the trial judge headed the discussion of informed consent “Battery,” his analysis makes it clear he was speaking of a failure to disclose the risks of surgery. The proper issue is therefore informed consent. Reibl v. Hughes sets out a two-part test for informed consent. The first is subjective; the second is objective.
[21] The subjective test is based on what the particular patient would have agreed to if the risks were known. It will of necessity vary from patient to patient and take into account factors unique to the individual. The objective test is based on what a reasonable person in the respondent’s position would have done. Both the subjective and the objective criteria must be established for the respondent to prove on balance of probabilities that she is entitled to damages for the lack of informed consent.
[22] The subjective test alone cannot be relied upon, for it imports an element of hindsight reasoning. A patient could be inclined to say that he or she would not have undergone the procedure if the risks that in fact materialized and that form the basis of the action had been known. As stated in Reibl v. Hughes, at p. 898:[T]o apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard. [23] The objective test is based on reasonableness, as stated in Reibl v. Hughes, at p. 900:In short, although account must be taken of a patient’s particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.
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