Can anyone clarify a consent issue for me?  In Scalera (SCC), McLachlin says that to establish the defence of consent, the defendant may prove that the plaintiff consented, or that a reasonable person in the position of the defendant would have believed that the plaintiff consented.  In other words, even if the defendant has made a mistake in concluding that the plaintiff consented, that mistake, if reasonable, may allow the defendant to avoid liability for battery.  So for instance if the plaintiff joined a game of hockey believing it to be non-contact and was body-checked by the defendant, the plaintiff did not consent to the body-check, but the defendant reasonably concluded that he did.  So no liability.

On the other hand, as a general rule, mistake is not a valid defence to an intentional tort.  For example, In Turner v Thorne the defendant made a delivery to the wrong address, and liability in trespass followed even though the defendant reasonably thought he was at the right place.  This mistake could be expressed as mistake about consent: the owner of the right address had given consent to the delivery, so if the defendant reasonably thought he was at the right address, his belief in consent must have been reasonable.  But this mistake does not relieve him of liability.

One way to distinguish between the two is to say that in the hockey game, the plaintiff's actions were the source of the defendant's reasonable but mistaken belief in consent, but with respect to the delivery, the plaintiff had no role in producing the defendant's reasonable but mistaken belief.  Another might be to say that in the first situation, the mistake about consent is "direct", whereas in the second, mistake about consent arises because of another mistake about a collateral matter (the address).  Can anyone clarify for me, or identify any other principled difference between these two kinds of scenarios?

Many thanks,
Bruce

________________________

Bruce Pardy
Professor
Faculty of Law
Queen's University
Kingston, ON
K7L 3N6

pardyb@queensu.ca
613-533-6000 ext 77570
fax 613-533-6509
Website http://law.queensu.ca/facultyAndStaff/facultyDirectory/pardy.html
View research on my SSRN Author page: http://ssrn.com/author=81936