Table of Contents
Element 1- Damage .................................................................................................................................................................................................. 2
Element 2 – Cause in Fact (aka Causation) ..................................................................................................................................................... 2
Element 3 Standard of Care .................................................................................................................................................................................. 2
The Reasonable Person ............................................................................................................................................................................................................... 3
Custom and the reasonableness test .............................................................................................................................................................................. 3
Penal statutes and standard of care ................................................................................................................................................................................ 3
Standard of Care for the young ......................................................................................................................................................................................... 4
Standard of care for the mentally disabled ................................................................................................................................................................. 4
Professional NEGLIGENCE – Doctors and Medical Practitioners.................................................................................................................................. 4
1) Breach of standard of care for treatment = negligence .................................................................................................................................... 4
2) Breach of standard of duty to inform (have to have informed consent for treatment) ..................................................................... 4
Reibl v Hughes – Battery if: ................................................................................................................................................................................................ 5
Professional NEGLIGENCE – Lawyers...................................................................................................................................................................................... 5
Gross or Aggravated Neg ..................................................................................................................................................................................................... 5
Onus and burden of proof generally ................................................................................................................................................................. 5
Element 4 –Duty of care ......................................................................................................................................................................................... 6
THE Anns/ Cooper Test** ........................................................................................................................................................................................................... 6
Unborn children....................................................................................................................................................................................................................... 7
Failure to act/ Duty to Act- Is there a positive duty to act? NO- with exceptions only......................................................................................... 8
Element #5 – Proximate cause ............................................................................................................................................................................ 8
The test that can now be used is: ..................................................................................................................................................................................... 9
Recurring issues of proximate cause and their solutions .............................................................................................................................................. 9
Thin Skull .................................................................................................................................................................................................................................... 9
Psychiatric Damage - “nervous shock” .......................................................................................................................................................................... 9
Rescue – an issue of duty ..................................................................................................................................................................................................... 9
Intervening Forces.................................................................................................................................................................................................................. 9
Defences to Negligence......................................................................................................................................................................................... 10
Contributory Negligence: ......................................................................................................................................................................................................... 10
Current Law ............................................................................................................................................................................................................................ 10
Apportionment of fault and policy issues ................................................................................................................................................................. 10
Seat belt defence.. Generally accepted as contributory negligence ............................................................................................................... 10
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But not always ........................................................................................................................................................................................................................ 10
Other Defences ...................................................................................................................................................................................................................... 11
Alternative Dispute Resolution......................................................................................................................................................................... 11
Government Liability in Tort ............................................................................................................................................................................. 11
Government liability for negligence (not employee’s direct liability) ................................................................................................................... 12
Policy ......................................................................................................................................................................................................................................... 13
The tort of Misfeasance in Public Office- Aka “abuse of public office” .................................................................................................................... 13
Negligence resulting in pure economic loss ................................................................................................................................................. 13
1.Negligent Misrepresentation leading to pure economic loss ................................................................................................................................. 13
Policy.......................................................................................................................................................................................................................................... 13
Cognos gave us the basic test: ........................................................................................................................................................................................ 14
3. Negligent Supply of Defective products or structures…that are DANGEROUS ................................................................................................ 15
DEFAMATION ........................................................................................................................................................................................................... 16
General Concepts ......................................................................................................................................................................................................................... 16
Tort of Defamation – THE ELEMENTS .................................................................................................................................................................................. 16
Defences to defamation ............................................................................................................................................................................................................ 17
Truth .......................................................................................................................................................................................................................................... 17
Absolute Privilege ................................................................................................................................................................................................................ 17
Consent ..................................................................................................................................................................................................................................... 17
Qualified Privilege ............................................................................................................................................................................................................... 17
Negligence ............................................................................................................................................................................................................................... 18
Malice and QP ........................................................................................................................................................................................................................ 18
5. Responsible Communication in Matters of Public Interest - A defence specific for the media .................................................... 19
6. Fair Comment ................................................................................................................................................................................................................... 19
Class Proceedings and Mass tort claims ........................................................................................................................................................ 21
Damages - Compensation for injury caused by tort .................................................................................................................................. 21
Limitations Act ........................................................................................................................................................................................................ 25
Occupiers Liability Act ......................................................................................................................................................................................... 25
•
Tort law is about
Fair and reasonable
Compensation
Don’t want to over compensate and want to encourage people to get better
Deterrence
Whats reasonable deterrence? Will it over deter? Will ir crush incentive, will it crush freedom of speech
Punishment
The court cannot interfere in larger political decisions
**NEGLIGENCE**
The policy for negligence is: 1) Compensation for faulty conduct 2) Deterrence (Market / Individual) and 3) it reinforces
values (respect, fairness, responsibility)  much more broad then single action torts
 Normative - reinforces values (gives us rules to give by)
o Respect, responsibility, fairness
o Compare to “single interest” torts – defamation, trespass to land or chattels, nuisance  Negligence was
much broader
Origins in the neighbor principle: “persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being affected when I am directing my mind to the acts or omissions in question” (Donoghue v stevensen)
Element 1- Damage
Policy
 Improves deterrence, prevents floodgates| Defendants should not pay where no damage | Restitutio in integrum | Corrective
Justice
Q: What damage is compensable?
A: The damage caused by the negligent act of the defendant:
o Damage to person or property, including “nervous shock” (psychiatric illness), but not grief, sorrow, anxiety AND
o Caused in fact (element #2) AND
o Proximate- damage cant be too remote. Takes a lot into account like foreseeability, probability, severity of injury, etc.
Element 2 – Cause in Fact (aka Causation)
Generally it’s the “But For” Test
 The injury/damage would not have happened on the balance of probabilities but for the actions of the defendant
Multiple Causes?- Athey v Leonati
 It is not necessary to establish the defendants negligence was the sole cause of the injury defendants remain liable for all
injuries caused
 The Athey case clearly demonstrates that a Plaintiff can recover 100% of his damages if the Defendant, by his conduct,
contributed in some way to the Plaintiff s damages, even if that contribution is significantly less than 50%
 As long as a Defendant is part of the cause of an injury, the Defendant is liable, even though his act alone was not enough
to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions
Exception: When “But For” does not work Material Contribution
 WHEN TWO OR MORE PEOPLE ACT NEGLGIENTLY AND YOU CANNOT TELL WHO DID IT  IMPOSSIBLE
TO SAY WHO CAUSED IT.
 Clements v Clements: They both shoot at the same moment, and one hits the farmer. Two negligent acts but cant prove
which one hit he farmer. But for test doesn’t work (lewis)
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Plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s
injury
Element 3 Standard of Care
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Standard of care = activity that creates an unreasonable risk of harm falls below the legal standard of care 
blameworthy if unreasonable
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Not a matter of morality or motive
o You can establish an unreasonable risk of harm totally blindly and innocent
Unreasonable Risk of Harm – Reasonableness Test
You look at a few factors:
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Likelihood of risk  Reasonable Foreseeability?
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Magnitude of Risk  the severity of harm
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Utility/benefit of activity  how valuable is the activity, and how much would it cost to comply- “burning sofa
example”
o
o
o
The Reasonable Person
Objective – man of ordinary prudence. We don’t want to personify the reaonsable person so don’t even put him in
the same shoes
It doesn’t matter if you are stupid  when discussing SC, we don’t care if people are too dumb or were trying
Its not a standard of perfection  if you were reasonable, you will be okay
Custom and the reasonableness test
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Conformity or non conformity with custom (community or industry practice) is some evidence of reasonableness
(used to be conclusive, but now only an indicator but still big for professionals and trades)
o Adherence to custom not necessarily proof of adherence to standard of care (waldick)
o No amount of compliance with an unreasonable custom will make an action reasonable
Plaintiff must prove custom and (non) conformity to try and prove deviation from the standard of care
Policy – promote good practice  Good industry and community practices
Penal statutes and standard of care
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Breach of statute is some evidence of negligence (Not prima facie, not absolute liability)
 Court, not legislature, decides whether there is civil liability
 Except if statute sets the standard of care
 Onus still on plaintiff to prove all elements
No tort of breach of statute or negligent breach of statute -There is no such thing as these torts
Consistent with
o Move away from strict liability
o Legislation creating specific duties and compensation schemes
o Improper to conflate civil and criminal sanctions/policy
 Should not be mixing them up, their objectives and policy are different
The use of statute to prove standard of care
 Rule in Sask Wheat Pool
o A penal sanction in a statute is evidence but not proof of the standard of care
o Breach of penal statute, causing damage, is evidence, but not proof, of [the tort of] negligence
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Breach of penal statute sometimes amounts to breach of standard of care (negligence) However…
Breach of penal statute sometimes amounts to entire tort of negligence ..when??
1. There is damage
2. The breach of penal statute amounts to breach of reasonable standard of care (Often the penal statue is
essentially the civil standard of care )- i.e. the reasonable standard can be found in the statute
 “The statutory obligation may exceed the duty at common law or it may fall short of it, or it may equal it.”
 Eg. Bux v Slough Metals (goggles case ), Ryan v Victoria
o When equal, breach of statute = breach of civil standard of care
 Traffic signals and rules of the road: Stop sign – failure to stop is breach of duty of care
 Compliance with legislation is not always adherence to standard of care
o Ryan v. City of Victoria
o Bux v Slough Metals (goggles case )
3. The breach of penal statute caused the loss (passed the “but for test”)
E.g. Johnson v Sorochuk – car has defective brakes in breach of statute. Court found breach of
regulation did not cause damage to darting pedestrian.
4. Common law duty of care owed to the same people the statute aims to protect
Hatch v. Ford Motor Co (hood ornament )
5. The policy protected by the penal statute is the same as the policy protected as negligence ( proximate cause )
Gorris v Scott ( baa )
Standard of Care for the young
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Tender years – no culpability: which is about kids up to 5 and 6, Cant be contributory negligent either
Youth – standard of a reasonable child of like intelligence and age
o Is he capable of being found negligent at law in the circumstances, is he tender, was it apprehensible?
o Exercised the care to be expected from a child of like age, intelligence and experience. (S of C for youth)
Kids become adults around 16/17 “later teens”
 Adult activities excepted  If you are young and engaged in adult activity, they are now held to the objective
standard as if they were adults. Like cars, planes, dirtbikes, atv’s (mcerlean v savel)
 Elderly are kind of treated like children, especially regarding driving (mckee v mccoy)
Standard of care for the mentally disabled
In order to be relieved of tort liability when a defendant is afflicted suddenly and without warning with a mental illness,
that defendant must show either of the following on a balance of probabilities
1. As a result of mental illness, the defendant had no capacity to understand or appreciate the duty of care owed at
the relevant time (Did you have capacity?)
2. As a result of mental illness, the defendant was unable to discharge his duty of care as he had no meaningful
control over his actions at the time the relvant conduct fell below the objective standard of care (was it
Voluntary)
 Burden falls on defendant to show the absence of either
Physically disabled
 Partially subjective (deviated from pure objective). Person who is blind is not obliged to see, person who is deaf is
not obliged to hear. But are expected to avoid getting themselves into positions of danger
 Reasonable person test, but can’t make the blind see, the deaf hear…(the more you know, the more you are liable)
 Sudden disability if you suffer a heart attack in the car and kill somebody, you are not liable
Professional NEGLIGENCE – Doctors and Medical Practitioners
Two standards of care:
1) Breach of standard of care for treatment = negligence

Doctors, surgeons, and dentists should show a fair, reasonable and competent degree of skill. Not required to have
the highest skill REASONABLE UNDER CIRCUMSTANCES
 An “error in judgment” may be negligent, but not necessarily
 In Neuzen v Korn, Sopinka states that if they say they have a certain skill level, they must posses the skill level
of an average specialist in that field
o Customary, common practice is the standard of care - Unless action is not part of professional activity
 NO exceptions for beginners, No real exceptions for rural doctors
 Interns- What is reasonable for an intern
Also to note:
o Must follow up on patient activity, must report child abuse if reasonable grounds, and its negligent to not perform
services because of cost
Proof: P must prove standard of care and breach, but can be difficult because of conspiracy of silence
2) Breach of standard of duty to inform (have to have informed consent for treatment)
 If there was harm from treatment (whether or not negligent)
 AND there was a breach of duty to inform (no informed consent) - was the info provided in accordance with duty?
o
Doctor must disclose: (Lepp v Hopp)
 1. Nature of the proposed operation
 2. Gravity of the operation
 3. Material risks and any special or unusual risks
o Dangers inherent in any operation need not have to be disclosed (anastheia)
 AND a reasonable patient in the patient’s position would have refused if properly informed
o Deals with both subjective and objective thoughts of the person and whether a reasonable person in the
circumstances of the plaintiff would have done if faced with the same situation. (have to look at what the
patient was experiencing)
 Then, Breach of duty to inform= negligence
Reibl v Hughes – Battery if:
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No consent given at all
Treatment is beyond consent (eg. consent to amputate leg, doctor amputates arm)
Fraud
Professional NEGLIGENCE – Lawyers
The obligation of a solicitor to exercise due care in protecting interests of a client …will have been discharged he
has acted in accordance with the general and approved practice …
o … unless such practice is inconsistent with a known risk, as where particular instructions are given
which the solicitor fails to carry out (Brenner v Gregory)
interest of client and what they tell you to do. Inherent in a retainer letter, is what services you will carry out
Perfection is not the standard …Have to do it legally!!
Some issues:
 Establishment of tort of negligence and standards of care for professionals = be able to sue under retainer
contract for breach OR sue for negligence even if there was no explicit duty under contract
o Established that contractual duties may not be sufficient for duty of care – need to meet the negligence
professional standard of care
 Specialists will be held to higher standard  if you hold yourself out that way, will be held to the standard of care
 there is no excuse of lower standard of care if clients ask for rush. But make sure to tell client it is a rush, and
your quality wont be as high
Gross or Aggravated Neg
Marked departure from standard of careVery great negligence – SCC
Defines the act, not the result/consequences…Can be more than one act
Legislative and contractual provisions- that..
o Limiting liability to the tortfeasors, to gross neg/misconduct. Used to be that you could only sue the host
driver is driver was grossly neg, that is gone in AB though. Lots of legislation that limits liability.
Municipalities, only liable in some circumstances if they are grossly neg…
o Does not change rules for quantification of damages
Onus and burden of proof generally
For proof of negligence (negligent action, not the tort), except for statutory changes, the general stand is that the onus of
proof is on the plaintiff (Wakelin v London)
 Its based on balance of probabilities
Duties of trier of law v trier of fact
 Trier of law (judge)  What law/test/rule should be applied (but for, or material risk, etc.)
 Trier of fact (jury, if there is one)  Whether the law ought to be applied. (given the facts you were given, what
would a reasonable person do, and did the person breach that standard on a BOP) Also, what the facts were?
Most negligence questions are mixed fact and law
High deference for fact finding, and mixed fact and law - Appeal court will not overturn unless palpable and
overriding error
Less deference for error of law only – Appeal Court will overturn if incorrect. It is correctness.
Proof of breach of standard of care
 May be by direct evidence
 May be inferred
o When you dont have direct evidence, you can use circumstantial evidence to infer negligence (Even
though no body saw it happen)
o Res ispa loquitor (the thing speaks for itself) was first introduced in byrne v boadle (flour falling on
head) but now useless, and the jurisprudence will be guided by fontaine v insurance corp
Fontaine V ICBC
o Court was saying you can use inferential evidence to push yourself along the balance of probabilities. You
must have circumstantial evidence to put yourself close to, or past 50%, and to bring it to the jury(trier of fact)
 Have to have enough evidence to get to 50%
o The defendant then has to bring evidence to push it back lower than 50%
o THIS DOES NOT REVERSE ONUS Plaintiff still has to bring evidence, all that changes is that negligence
can be inferred from circumstantial evidence
Multiple defendants/negligent acts – proof issue for stand of care
Leaman v Rae: Result: both liable- When there is negligence on both parties, and you cant distinguish between the two
parties, both parties can be held equally liable for damages
 Enough evidence to infer negligence (breach of standard)
 It was reasonable to infer that both cars were being negligent (this is why it was different from fontaine)
Many possible defendants  Ybarra v Spangard (for Standard of care, NOT causation)
 Negligent act (scalpel breaks during the procedure), no proof of who did it (manufacturer, nurse, doctor). HE SUED
EVERYONE
 All negligent because we didn’t know who did it, you will all be liable because evidence would be good enough
 This case was followed by Anderson v Spombeg, where the court said that each defendant must come forward and
disprove their negligence (burden of proof shifts)
Reverse onus created by statute and common law
 Onus shift where breach of Traffic Safety Act
If you drive, run yellow light, and crash and cause damage, breach of TSA is de-facto breach f standard of care, so
therefore ONUS IS ON ME to prove I didn’t breach it.
Element 4 –Duty of care
Pre Donoghue – categories of relationship (courts were going relationship by relationship). Policy – people don’t assume
a duty except by acquiescence. They have to know or agree to a duty.
 Donoghue v Stevenson established principle that duty of care is not confined to a closed list of specific relationships,
its an open ended concept…allowed for more categories to evolve
 Instead f being stuck to a certain group of relationships, now can evolve to circumstances to create more
 Who’s in?  Neighbour rule applies 90% of cases …but when it doesn’t, apply THE TEST..dun dun dun
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THE Anns/ Cooper Test**
If Parties relationship doesn’t fit existing category  then that’s when you move to the anns/cooper analysis
Duty if parties are in one of the already recognized categories (analysis ends there, if its doctor/patient,
lawyer/client these are already established)
Stage 1 - Harm to Plaintiff reasonably foreseeable, and a proximate relationship
Onus on Plaintiff
 Is the harm to this plaintiff foreseeable?
o Consider: P’s ability to handle situation – either through youth, intoxication, or incapacity
 Is there a proximate relationship – policy test applied to party’s relationship (The proximity analysis of the
first stage is focuses on factors arising out of the relationship, and include questions of policy)
Stage 1 policy considerations – as between plaintiff and defendant: What about their relationship
makes it fair that someone is their neighbor?
 Physical proximity
 Reliance
 Representations (promises to provide service)
 Just and fair
 Property or person
 Relationship
If yes to Stage 1 (foreseeable and proximate) - Prima facie duty of care
o
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Stage 2 – Is there no external policy reason to oust a duty of care??
Defendant has to prove this
 External Policy considerations that may oust duty For society, legal system, commerce, respect for division
between judicial and executive branch etc
 Stage 2 policy considerations – society’s interests (Defendant has to prove why you should not have them do this)
 Impact on legal system – flooding the courts with trivial cases
 Other remedies available? Other legal alternative paths more appropriate?  parallel system of
justice available?
 Indeterminate classes?
 Improper interference with executive branch (separation of powers)
 Policy v operational decisions in government  Government policy cannot be analyzed
here, but carrying out or executing policy is ok
 Government owes duty if its in the operating sphere, but not for policy sphere
 They are liable if they do a crappy job executing their policy (negligent inspection of the
roads)
 Improper interference with judicial (quasi judicial) functions (separation of powers)
 Denying essential public services
 Danger of collusion between families
 Likely negative behavioral responses
 Certain fact situations should be kept out of tort law’s reach
Examples
Cooper v Hobart- Lost at 1b because Registrar had duty to entire market, not just investors
Childs v. Desormeaux- Social hosts do not owe a duty of care to public users of highway
 No forseseeability based on facts (no finding Ps knew driver was drunk), but even if RF, no duty b/c wrong
alleged is a failure to act in circumstances where there is no positive duty to act  COULD CHANGE
o No positive duty to monitor guest’ drinking or to prevent them from driving
o No duty of care to members of the public who may be injured by guest – No proximity
Social hosts different from commercial hosts:
 Commercial hosts have greater ability to monitor alcohol consumption
 Social hosts not heavily regulated by liquor licences
 Social hosts do not profit from sale of alcohol
Hill v Hamilton Wentworth Regional Police- Police are not immune from liability, and owe a duty of care in negligence
when they investigate suspects. Tort of negligent investigation exists
Unforeseeable Plaintiffs
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If is not reasonably foreseeable at all, or damage is way too remote, there will be no duty. Ex. Hay v Young with
the crazy bus accident, and Palsgraf with the crazy train fireworks accident
Unborn children
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Damage to fetus by third party  A tortfeasor is liable to an unborn child who has suffered a pre-natal injury
caused by negligence (Duval v Seguin). Everything is foreseeable, cause of action is perfected when baby born
Damage to fetus by mother Mothers are not liable for damage to their own fetus no SOC (Dobson)
o To do so would intrude into bodily integrity, privacy, and autonomy  Against public policy
o
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Dobson is the rule except one stat exception: Maternal Tort Liability Act- If the child is born with injuries
and was hurt by car accident, he can sue the mother (limited to driving)
Failure to act/ Duty to Act- Is there a positive duty to act? NO- with exceptions only
The general is nonfeasance- No duty to take positive steps act – to rescue, to prevent imminent injury (you can
watch someone choke or drown)
Policy: Respect for personal freedom, personal autonomy . potential danger, amateurs could be idiots, ridicule is a
better deterrent
Exceptions:
Misfeasance -- Duty to act in relationship of economic benefit
 the Court held that a bar owner has a duty to reasonably ensure their intoxicated patrons are able to make it home
safely (Jordan v Menow).
o They knew he was super drunk, they knew he was an idiot, and there were other ways to get rid of him
 Childs v Desmoreaux leaves two doors open “without more” can mean if you keep giving alcohol to a drunk,
you could be liable AND “social hosts” can include work parties or no?--> have to see
 Mclachlin: A great deal turns on the knowledge of the operator
Misfeasance -- Duty to act in relationship of control or supervision (big one but simple one)
 If you are acting in these relationships (below) inaction is always misfeasance require dominant parties to take
steps to prevent injury or assist others. People enter into this willingly, so not contradictory to policy
o Teachers /students, Employer/Employee (note Workers Comp!), Hospital/ Patient, Carrier/Passenger,
Guard/Prisoner…ALL ABOUT DEPENDANCY AND RELIANCE
Misfeasance -- Duty to act where you create a danger
 Not really developed but its from the Obiter of Oke v Weide Transport
Misfeasance – where there is an undertaking by defendant and reliance by plaintiff
 X creates an expectation to you he will do something and then does not, If you rely on the undertaking and they
don’t do it, they may be held liable
 The failure is a breach of standard of care and/or also a breach of duty (COULD BE BOTH)
 Unclear in Canada what the rule is if you start a rescue, but bungle it (Horsely v McLaren)
Emergency Medical Aid Act: It states that except in the case of gross negligence, a first aider (or doctor, nurse) is not
liable for any damages resulting from the first aider's actions or omissions in the provision of the first aid.
physician may provide emergency health care to an adult without consent
Adult Guardianship and Trusteeship Act s. 101: a physician may provide emergency health care to an adult without
consent if the health care is necessary and the physician is satisfied that the adult lacks capacity to consent or refuse to
consent.
Element #5 – Proximate cause
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Proximite cause - limits liability by limiting the compensable damage
Issue here is the scope of liability, or the extent to which someone will be held liable for his or her substandard
conduct
Preconditions: establish damage, standard of care and breach, cause in fact, duty
o Have to establish these before you can even reach element 5
All the early tests, most used ones are 2 and 4:
1. Directness test: Liability for damage arising “directly” from negligent act (Polemis)
A. It has been discredited
2. Foreseeability test (specific): Liability if the specific damage is reasonably foreseeable (The Wagon Mound #1)
B. SPECIFIC FORESEEABILITY
3. Foreseeability test (general foreseeability): Liability if the general type of damage is reasonably foreseeable
(Hughes v Lord Advocate)
C. This is the test that is most often used, more open than 3
4. “Possibility test”: Liability for damage that is reasonably foreseeable or for a high risk event that is possible
(though not probable) (The Wagon Mound #2)This test seldom, if ever, used
5. Klar, Linden and Feldhuesen advocate a pragmatic, policy based approach.
The test that can now be used is:
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The test is reasonable foreseeability of the actual harm that occurred. "The degree of probability that would satisfy
the reasonable foreseeability requirement ... is "one which would occur to the mind of a reasonable man in the
position of the defendant ...and which he would not brush aside as far-fetched." (McLachlin CJ in Mustapha)
In applying the proximity test, consider the purpose of tort law: fair and reasonable compensation, deterrence,
punishment.
Long answer: Commentators and judges go back and forth on how probable a particular injury must be before it is considered
reasonably foreseeable and exactly what Wagon Mound #2 says. The cases are not consistent on finding liability where the
damage was a serious, though improbable, risk. Some say such damage is unforeseeable, some do not. In addition, there is not
agreement on the specificity question: what exactly has to be foreseen? Is it just a foreseeable source (Hughes - that the children
would mess with the fire was reasonably foreseeable, but some aspects of the injury were quite weird ) or the something more
specific that must be foreseeable (such as all the steps in the injury chain and the exact injury). That is why Linden, Felthusen,
Klar et al propose the Courts adopt a more "honest" test of proximity - where the Court will do a more open analysis of the policy
and fairness issues in each case.
Recurring issues of proximate cause and their solutions
Thin Skull
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Take your victim as you find her …That victim is fragile and suffers more harm doesn’t matter
Proximity analysis does not apply to cases where the outcome was unforeseeable to a particular plaintiff because
of a condition that he or she had; rather it is used in situations when the foreseeable connection between the action
and the outcome is unreasonable.
Crumbling skull applies here again need not compensate people back to perfection, or in a better position->
only to what happened before the accident (athey v leonati)
Thin skull applies to physochological problems as well Mental suffering flowing from physical injury
Psychiatric Damage - “nervous shock”
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Courts are increasingly seeing this as direct damage, but Reasonable robustness and fortitude is expected of Canadians
Plaintiff endangered, or at scene of the mishap (cant be other randoms)  mostly restricted to “Loved ones”, but can
include others  cannot be mere grief and sorrow
Expert evidence generally required
Extreme reactions are generally not foreseeable
o BUT, it you know someone is sensitive or know the plaintiff will have that reaction, IT IS forseeable
Rescue – an issue of duty
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There is a DUTY TO THE RESCUER by the defendant, If you put someone in a position to rescue someone, then
you are liable
Rescuer (duty) and damage to rescuer (cause in law) are generally foreseeable from perspective of wrongdoer
No liability applying proximate cause analysis if rescuer is foolhardy, wanton, reckless
If person dead, still depends on if it was reasonable to
Intervening Forces
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“intervening” refers to events that happen between a tort claim arising and judgment (i.e. resolution) of that
claim. ( T#1)  In between claim 1 and judgement
Step 1: Key question is whether Plaintiff’s injuries are treated as a single injury or separate injuries (“divisible”)
o General rule if indivisible (-no proof of separate causation) – treat as one injury – joint and several
liability
o General rule if divisible: Each defendant only liable for tortious injury s/he caused in fact and law
o If second tortiously caused injury is greater due to latent vulnerability of P, thin skull applies (except
psych damage - only liable for psych damage to person of reasonable fortitude) therefore
 For indivisible injury – taken in account in assessing compensation (damages)
 For divisible injury D#2 may pay extra
o If second tortiously caused injury is an exacerbation of a pre-existing injury or degenerative condition,
crumbling skull may apply therefore




 For indivisible injury – taken into account in assessing compensation (i.e. damages)
 For divisible injury D#2 may pay less
Look at page 39 for diff scenarios
Defences to Negligence
Onus is on the defendant to try and establish these**
Volenti, ex turpi, and limitations are a complete defence**
Contributory negligence and seat belt are apportion**
Contributory Negligence:

Used to be a complete defence with the stale mate rule, then changed to “last clear chance rule”
(whoever had last chance to avoid)
Current Law

Contributory Negligence Act – eliminated stale mate and last clear chance rule
– Contributory negligence bar (common law) was gotten rid off, we are left joint and several liability
Elements of contributory negligence (what has to be found?)
 Same as negligence: In theory, the standard of care demanded of plaintiffs is no different than that expected from
defendants must exercise care that reasonable person would
o Plaintiff has
 Duty to self (and neighbours)
 No need to establish any duty owed to others..thats another action
 Plaintiff carrying out statutory duty, may override the duty to self
 Standard of Care: To act as reasonable person – avoid foreseeable harm (in their circumstances)
 The exceptions for children, youth, mental incapacity apply
 DEFENDANT HAS TO PROVE
o Breach of standard/duty causing damage = negligence
Causation – cause in fact and cause in law
o Plaintiff’s negligence must be a cause in fact… Question of fact whether breach occurred
o Plaintiff’s negligence must be a proximate cause

Tendency toward leniency to plaintiffs
o This issue goes to the jury if there is one, who may not be as demanding as the theory says (on the
plaintiff)
Apportionment of fault and policy issues
o
o
o
As between faulty plaintiff and one defendant, apportion should be based on Relative fault,
blameworthiness? ✓ (heller v Martens)
As between plaintiff and negligent defendants, Relative fault of plaintiff and defendants as whole?
✓(fitzgerald v Lane)
 Each defendant jointly and severally liable to plaintiff for defendants’ entire share of liability
 After deduction for Plaintiff’s share, Plaintiff can sue all or any defendant for the rest
 As between defendants, each is liable to the others in accordance with their proportion of fault
(CNA)
No set off (unless parties agree otherwise)
Notes and issues
o Defendant must prove contributory negligence!
o Apportionment of liability is a question of fact
o NO apportionment between negligent and non negligent causes
Seat belt defence.. Generally accepted as contributory negligence
But not always

Defendant must prove
o
o
Failure to wear seat belt met elements of negligence (Duty, breach, cause in fact, cause in law, damage)
Courts may be less demanding on proof (Duty is assumed)
Other Defences
Limitations is a complete defence in the sense that one has only to raise it, and provided there is no fraudulent
concealment or suspension by disability or agreement, there is no question that the defendant is off the hook.
With consent, aka the volenti defence, it is very limited and almost always overlaps factually with contributory
negligence, which is would a partial defence most times because liability is apportioned
 The defense of volenti can only succeed if the plaintiff consents not merely to the risk of injury, but to the lack of
reasonable care which may produce that risk. Also, public utility.
 Almost a promise not to sue
 Written agreements must be CLEAR AND EXPRESS, and will be interpreted against defendant
With the ex turpi defence, that the plaintiff is committing an illegal act does not automatically result in no liability. The
plaintiff has to be doing something that is so heinous that to compensate her would be contrary to justice. Note that
even trespassers are owed some small duty of care under the Occupiers Liability Act.
Alternative Dispute Resolution
Alternative dispute includes dispute resolution processes and techniques that act as a means for disagreeing parties to
come to an agreement short of litigation ways that parties can settle disputes, with (or without) the help of a third party
 Negotiation
 Mediation (can be binding or not, usually not public)
 Arbitration (can be binding or not, usually public)
These are all good alternatives to litigation, and have advantages that the legal system does not offer:
 Cost avoidance of court proceedings
 Can get interests based solutions (holistic)
There is always a duty to mitigate!!!
o You do have a duty to try and do what a normal reasonable person would do, But once injury is
established you are responsible for all
 There is also apology and defamation in ADR
 You can settle, negotiate, or summary proceedings
Government Liability in Tort
Public (i.e. Government) Authorities can be liable in tort under the Proceedings against the Crown Act for trespass,
defamation, nuisance, negligence etc.
 Public Authorities’ liability for negligence is limited for policy reasons: Much of government action is aimed at
the general public interest - the government cannot have a private law duty to each and every citizen for each
action it takes.



Liability can be limited by statute  When dealing with statutory bodies, always read the legislation!
No tort liability for legislative acts in good faith, At least not for legislation aimed at the public interest
For assault, battery, trespasses, defamation, nuisance – Easier
Generally, if act would be considered tortious if between private individuals, then it is tortious if committed by an
employee of a public authority
Vicarious liability rules apply to ALL torts  SUBJECT to the limits of specific statutes
 s. 5(3) PACA assists in relation to acting in course of employment test
 Most tort actions involving government include a vicarious liability aspect Negligent acts of employees
For negligence, if act of employee is negligent in the private law analysis, then negligent
 Then try at attach VL for crown
Government liability for negligence (not employee’s direct liability)
 All the normal negligence standard, except real big problem is if there is a duty of care
o The statutory duty and its context is examined to assist in determining whether common law duty exists,
Statutory duty is not the equivalent of common law duty of care and is used in the 2nd stage of the
Anns/Cooper test
o Remember – breach of statute is not a separate tort (Sask. Wheat Pool). Therefore breach of statutory duty
is not per se at tort.
 Prima facie duty of care owed by public authority if
o Foreseeable that plaintiff will be affected by decision
o Proximate relationship between citizen and gov’t (reliance between parties, physical proximity, power
relationship, etc.)
4 ways to deal
1. RTGDA – there may be a statutory exemption
a. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit
statutory exemption
2. Policy /operational dichotomy (Just v BC , Anns, Kamloops)
 A government agency will be exempt from the imposition of a duty of care in situations which arise from its pure
policy decisions and that were made in good faith. This immunity does not apply to operational decisions…So
what is a policy decision??
i. Very contextual- no bright line test
Tending towards policy decision
Tending towards operational decision
 Decision made at high level of govmt
 Routine decision/act
 Decision maker had lots of discretion
 Deliberate injury?
 Did decision involve resource allocation?
 Close, ongoing relationship with plaintiff
 Budgetary allocations for department
 Specific impact
 Can decision be pinpointed to one actor?
 Provincial, federal budgets; policy
frameworks; large macro decisions are
 Similar to private law situation?
always policy

Once it is determined that decision/act is operational, then plaintiff must establish the rest of negligence
elements
o If after due consideration it is found that a duty of care is owed by the government agency and no exemption
by way of statute or policy decision-making is found to exist, a traditional torts analysis ensues and the issue of
standard of care required of the government agency must next be considered.
3. Proximity – as a means to deal with duty problem (anns/cooper) test
a. 1) Foreseeability and “proximity” between parties, 2) any external policy reason to limit duty?
b. Jus a variation of the Just test for exams, tell them you are aware that is both, and choose one
c. Similarities to just?  At the Policy stage – the courts use policy/operational analysis
i. statute is the foundation of the proximity analysis but can consider other factors
4. Categories where duty has been established – no Cooper or Just analysis needed
 Building Inspection cases: inspectors have duty to owner and subsequent owners
o May be exceptions based on facts, legislation (Could be exempt if statute says so)
 Police Duties
o Duty to suspect to use due care in investigation
Three points from Imperial
 Private law duty must be found at stage 1 – can look at the statute, and the relationship between parties
o Very difficult to find private law duty in a statute – virtually all, by definition are in the public interest
o May find duty if there is an ongoing relationship
 Policy/operational dichotomy at stage 2
o Weighing of social, economic, political issues is for government not courts
o Policy decisions - are a subset of discretionary decisions
 ie “discretionary legislative or administrative decisions and conduct that are grounded in social, economic
and political considerations”

 Generally made by officials who are required to assess and balance public policy considerations
 A decision representing a course or principle of action adopted by government
Stage 2 is a general policy assessment, not limited to policy/operational considerations
o Duty was denied at stage 2 on policy/operational test AND on indeterminate liability
o Negligence Causing Economic Loss part 1
Policy


opens the door for Plaintiffs to allege that a private law duty on the basis of interactions, even when the statute in
question does not give rise to a private law duty on it face.
o substantive – arguably extends the bounds of potential liability; and
o practical – facts are now more important, and striking applications less likely
Policy concerns: If we make them liable for everything in last slide, it would be a mess
o Is it legitimate for court to second guess government decisions?
o Government decisions often require balancing of public priorities, allocation of scarce resources, for
overall public good  courts not equipped do deal with this
o Liability would have a significant impact on taxpayers
o Potential conflicts of interests or duties
o Indeterminate or inordinate liability
o The Crown is not a person, cannot make pure private law analogies
The tort of Misfeasance in Public Office- Aka “abuse of public office”
Elements of the tort (ODHAVJI)
1. Must be a public official
a. Government or not? Crown or not?
2. Official engaged in wrongful conduct in her capacity as a public official- Misuse of powers (we are not talking about
other torts)
3. Must be intentional – intended to harm or knowing that plaintiff would be harmed while you don’t have the power
a. the test is subjective; and
b. subjective recklessness or willful blindness may be sufficient to meet the mental element of the tort
Odhavji is also notable for confirming two other propositions:
1. the tort of abuse of public office can be committed by omission; and
2. the tort extends to the improper exercise of powers the decision maker didn’t actually have – not just abusing
actual authority – explained this in its discussion of Roncarelli
As the Genesis case shows, there must be actual evidence of an unlawful act!!  cant just be mere speculation
Negligence resulting in pure economic loss
Negligence causing pure economic loss: Financial loss which is not causally connected to physical injury to physical
injury to the plaintiffs own person or property
 NOT property damage to plaintiff
 NOT personal damage to plaintiff
 No causal connection between loss of money and physical or personal damage to plaintiff
1.Negligent Misrepresentation leading to pure economic loss
Pre 1963 – NO liability for misrepresentation causing pure economic loss until Hedley Byrne (1963)
 In that case, court created right to claim for PEL resulting from negligent misrepresentation even in absence of
contract or fiduciary relationship
 Look at section above and how its different then normal negligence
Policy
What are the concerns with expanding negligent misrepresentation to include damage for pure economic loss?
1. Defendant can’t control where words go
 Can foresee that they will go everywhere and cause damage to everyone
 Causes indeterminate liability to indeterminate class
 Indeterminate liability, by itself, is a strong policy reason for limiting duty
2. Most negligent misreps do not result in physical damage
 Therefore not a cause of “social harm” … limited duty is justified
3. Freedom of speech
 Defendants’ right should not be impeded without justification
4. Something for nothing?
 Why should all who rely get the benefit of free service?
 What happens to business if advisors are warrantors to everyone who might read their advice?
5. The plaintiff chooses to rely
 Some responsibility belongs to her
---- Maintaining commercial freedom (enter into agreements, contracts)
o caveat emptor (buyer beware) look after yourself principle
o Encouraging self reliance
 Value of private ordering and reliance on contract
o Parties can allocate risk of financial losses
o Insurance is available
 Deterring loss of wealth is not as important as deterring personal damage
 Need for predictability
o Avoiding indeterminate liability (if the opening is too big, chaos… no floodgates)
 If there are gaps in protecting consumers, legislation can fill in
On the other hand…
1. Often reasonable to foresee that harm will be caused by reliance on representations
2. some need for deterrence…stop people from bringing indicuing innocent
3. Compensation and fairness
Cognos gave us the basic test:
1. Duty of care based on “special relationship” (basically anns/cooper with small contract difference)
a. Establish prima facie duty using “special relationship” test
i. We take LaForest’s wider view – Not dependent on category of relationship, consider most factors in
stage 2 as long as they justifiably relied
ii. Hercules application here (just like anns)
1. Establish basic foreseeability
2. Then proximity - What is it about the relationship that makes it fair to impose a duty?
a. Reliance is foreseeable by defendant
b. Reasonable for a plaintiff such as this to rely whether reliance would be reasonable
 Look at Defendant had direct or indirect $ benefit, Defendant had special skill or
is a professional, Rep provided in course of defendant’s business, Rep given
deliberately (not on social occasion), There was specific inquiry
 Take a wide approach here too- can impose limits in stage 2 (look at policy
approach too)
b. Look for policy reason to limit- After duty established, why shouldn’t we impose duty?
i. Avoiding Indeterminate liability
ii. deterrence and incentive to auditors
c. Consider impact of contract on duty (whats the relationship) BG Checo v BC Hydro
i. Right of action in tort is not removed merely because there is a clause in the contract touching on the
matter (doesn’t remove tort action)
ii. ONLY TIME- Right to sue in tort can be contractually removed by specific wording waiving the
right to sue or limiting liability
2. Representation must be untrue or inaccurate or misleading
a. Statements that are clearly untrue – straightforward
b. Omissions or incomplete information may be negligent
i. Eg Spinks v Canada (not told he could get back pension funds
c. Failure to inform of change of circumstances (Eg De Groot v St. Boniface Hospital)
3. Defendant must have breached standard of care ( i.e. negligent)
a. Same as negligence, reasonable person
4. Plaintiff did, in fact, reasonably rely
a. The plaintiff must have known about the misrepresentation and reasonably acted upon it
5. Reliance was cause in fact of damage
a. Plaintiff must have relied to his/her detriment, and damage ensued
b. Damage = pure economic loss
Contributory Neglgience? Linden says yes, Klar says no

Plaintiff can be held partially at fault especially if
o Plaintiff could have relied on things other than the misrep
o If there are multiple causes of damage, may be CN in regard to one of the other causes
o Reliance was reasonable, but plaintiff could have done more to protect self
3. Negligent Supply of Defective products or structures…that are DANGEROUS
The rule in Winnipeg Condominium Corp
 Builder, architect and contractors may be liable to subsequent owners for PEL if negligence results in a structure
being dangerous
o Liability is limited to reasonable cost of repairs
o Contractors could be liable to third parties if they were defects in the building
Reasoning – LaForest J
Stage 1: It is reasonably foreseeable that subsequent purchasers may suffer personal or property damage if a building is
designed or constructed negligently. Therefore, it is reasonable to extend builders’ duty of care to include cost of
prevention of personal or property damage.
 He said yes, it is forseeable
Stage 2: Any policy reasons to limit this duty? No.
 Indeterminate liability? No –
 Because subsequent occupiers are a limited class
 Life of the building is limited
 Eventually, the building will deteriorate anyway
 Cost of repair limited to reasonable cost of restoring to non dangerous state
o Caveat emptor principle – common law says no implied warranty of fitness … Should not apply because
subsequent purchaser cannot always find latent defects in complex structures
DEFAMATION



General Concepts
Value protected: all about reputation! (Human dignity, moral autonomy, which are protected through our
reputation)
 Nothing to do with protecting security of person or their property
History – Hill v Church of Scientology
Policy balance: Freedom of speech v. protection of reputation
 They are incompatible- as to the extent you protect one, you limit the other
 The courts task is not to prefer one over the other, but rather for reconciliation
 If it were otherwise (freedom of speech is constrained too much), what would happen?
 Freedom of expression “chill”, people would be afraid to speak, newspapers wouldn’t report
 Law could respond with legislation or courts could balance this and make it a high standard
Courts are content that current private law of defamation law properly balances Charter values (Hill)
 Charter values do shape all common law, including defamation, but good as it is right now
Lawyers’ reputations: Are extremely important, its our stock and trade its what we live on and careers will suffer
without good reputations(Hill)
 Also regulated by Law Society Code of Conduct (cant criticize other lawyers)
Defamation of dead people: If plaintiff dead when defamation occurs, no action available only living can be defamed
 If death occurs after defamation, but before claim resolved (you defame, are sued and you die), estate can
continue action under SAA act
 Defamation by dead people (before they died): estate may by sued by SAA
Defamation of/by Corporations : Corporate entities have reputations and may be defamed
 Municipalities/gov’t agencies can be defamed, Government officials can be defamed
 Defamation by Corporations: Corporate entities may defame others
Limitations Act applies (2 years from discovery, or 10 after it happened)
• PLUS Defamation Act s 13 (you must give notice within 3 months so that the defamors have chance to issue
an apology and mitigate (form of ADR)
Tort of Defamation – THE ELEMENTS
1.Would the material lessen the reputation of the subject of the statement in the mind of a reasonable
person?
 What is defamatory?--> Objective Reasonable Person Test….VERY EASY TO PASS
 Encompasses words, pictures, actions that lower someone reputation in the reasonable person
o Decides whether the material could harm reputation, decides whether material is generally
believable
 The reasonable person (at this stage) does not care whether there was actual harm to plaintiff’s reputation,
whether receiver believed it, about the actual truth,
 Takes general context into account :Was it heat of moment? Banter? Comedic Itent?
 If there is a “hidden” meaning – plaintiff must plead and prove this
2.Does the material refer to the plaintiff?
 On the exam, we just answer if it refers to plaintiff
 Can be express or implied  doesn’t have to mention name and don’t have to be aware its referring to
someone Kind of SL
 If its toward a group, would the reasonable person say the defamation be referable to one single person?
3.Was it published? That is - communicated to at least one person who was not defamed ?
 Does not mean “published” but rather that it was communicated in some method to a third party
o Not defamatory to say something to someone’s face if someone hears only responsible if it was
forseeable
 Crookes v Newton- a hyperlink to defamatory material is, in itself, not publication
o
o
“Defendant must have knowing involvement in the process of publication of the relevant words”
MUST KNOW WHATS IN THE MATERIAL but people can still be liable if they didn’t know it was
defamatory
Policy considerations – Crookes
 Telling people that content exists is distinct from controlling the content (there a letter in your inbox (telling) vs I
wrote the letter)
 People do not necessarily control the insertion of hyperlinks
 People inserting the hyperlink do intend readers to move to the defamatory content - however readers know and
choose to move to a different site
 Hyperlinks are content neutral, they only direct to other content
 Reasonable balance of freedom of expression and protection of reputation
o Do not want information-sharing “chill”
 Plaintiff still has a remedy against creator of material
 Context surrounding hyperlink should be assessed – is there defamatory material “surrounding” it?

Each publication is a new claim DA s. 7
Damage is not required: At common law and see s. 2 Defamation Act
Defences to defamation
Truth


If the defendant can prove the statement is true, that is a complete defence (99% is good enough)
Policy:
o Interest in truth is paramount to reputation
o Encourages fact checking
o Discourages publication from “unnamed sources”  Is this a good or bad thing?
Absolute Privilege



Regardless of truth, malice… some situations require absolute freedom of speech and/or have other
protection
Communication is vital—Speakers must be free to say what they wish and for whatever reason
Absolute protection from liability for defamation- Even malice wont stop it
1. Communications between spouses (you can defame whoever you want)
2. Statements during parliamentary, legislative proceedings
3. Statements made in judicial proceedings
 During trial and court proceedings, Pre trial communications  eventually disappears (hill)
 Lawyer client communications
 Absolute privilege is given for reports of judicial proceedings (s.12 defmation act)  As long as its
neutral…and only for broadcasting and newspapers
4. Acts of high officials (high executive) in the performance of their duties
 Statement by one officer of state to another, Relating to state matters , Made in the course of official
duties
Consent

Can consent to publication of a defamation, but
 Narrowly construed
 Consent to one publication ≠ consent to a separate publication
Qualified Privilege

Policy
 Sometimes the importance of communicating overrides the need to protect reputation
 Its ok or justified to reduce someone’s reputation

Characterized by publisher having moral or legal duty who has an reciprocal interest in hearing it
Arises in a situation where
 A reasonable person would agree the publisher (defendant) had a moral, social, legal duty to convey
information and the recipient had a reason to receive it
 Reciprocity is a key element : A social value in passing the information. Even though there’s a risk
if its false
Hill v Johnston and Canada Safeway
 Pharmacist has duty to inform of abuse, and other pharmacists to know about it…
 The information was false, but they did honestly believe it
Other Rough categories (examples) of qualified privilege
• Protection of self – defendant has honest belief in false material; duty to protect self; reciprocal relationship
with those to whom attack was published (Both economic and personal)
Not an excuse to abuse the attacker Tucker eg.
• Common interest/mutual concern – defendant has honest belief ; social/moral duty to further common
concern; reciprocal relationship with those who share concern  has to be in interest of both
Shareholders of a company, business owners (common business interest/ economic concern)
Creditors of a specific debtor (can exchange info)
Hospitals to labs and emergency rooms (about a guy with infectious blood)- interest to both!!
Allegations of abuse among family members or to therapist
Church or fraternity affairs (to discuss church affairs)
• Moral/legal duty to protect another – defendant had honest belief in false material; reciprocal relationship
between defendant and the one to whom duty/obligation owed
Inquiries; Ex. Job references
Not for profit credit agencies (note profit makers not protected by QP)
Interests of children
• Public interest – defendant has honest belief…; reciprocal relationship ? To the public at large?
Very idiosyncratic category
Reporting crime to police, teacher to school board (Lawyer talking about how cops were being racist
“Public interest” does not justify a free for all …
there is no right to know, cant just claim public interest whenever youre in trouble
public’s right to know – is not a sound justification for defamation
What can destroy QP?
Excessive Publication - Overreaching the duty, comments are outside the situation protected
 Exceeding privilege is a matter of law raised in the course of establishing the defence
1. Too much information: defendant published more information than needed to fulfill duty
E.g. Tucker v Douglas: courts said your false statement did not go to the duty, it was just revenge
2. Over-delivery: Some recipients did not have a duty to receive communication
If recipient has no duty to receive info and not an intermediary – QP is lost Adam v Ward: …usually happens
with the media
Publication to intermediaries in ordinary course of business does not defeat QP
Negligence
• QP defence not necessarily defeated by negligence of defendant
• Negligence requires defendant’s recklessness or indifference as to the truth of the material
• Different from “honest belief in the truth”
If the belief is honest, does not matter how it was reached**
• But there can be an independent negligence claim (If plaintiff establishes duty of care, breach and damages
Malice and QP

Malice trumps QP defence Its ill will …defeats the policy for which QP was created




If jury finds defendant malicious (if the purpose of the communication is malicious) – QP is lost (even
after its established)
What is malice?
 It is high handedness (showing no respect, no attempt to mitigate or understand, self centred)…A
question of fact
 In order for jury to consider malice, judge must find probable cause – i.e. sufficient evidence that
jury could find malice
Malice is proven if
 Dominant motive is ill will or spite
 No honest belief in material
 Cases are split if belief is real but is highhandedness, but see Hill v Johnson, supra
 Indirect or alternate motive
 Mom alleging child abuse in therapy; motive is custody of child not treatment
Exceeding privilege trumps QP and is evidence, but not proof of malice
5. Responsible Communication in Matters of Public Interest - A defence specific for the media
ALSO KNOWN AS RESPONSIBLE JOURNALISM
Grant v Torstar 2009 SCC created new defence for media
 Arose because QP is a difficult defence for media to establish – no reciprocity
 Reporters may have bona fide checked facts, but may
 Be unable to prove them in court or, Find facts are untrue, despite best efforts
 Creates chill for media and freedom of expression
 Law seemed to favoured reputation over free speech (At cost to public debate, search for truth, democratic
governance)
Alternative “middle road” is new defence for public media including bloggers, on line and traditional media
 Including non journalists
Two Aspects
1. In public interest (vellacott)
 Legitimate interest about which public or some sector of public has substantial concern(Not gossip)
 Not limited to just government, not just public figures,
2. Responsibly made. Considerations Include:
 Seriousness of allegation (Diligence should be in direct proportion to severity)
 Public importance
 Urgency (what did reporter know or ought to have known)
 Status and reliability of sources
 Whether Plaintiff’s side was sought and accurately told
 Whether inclusion of defamatory statement was justifiable
 Reportage: did the public interest in the statement lie in the fact it was made or in its truth?
 Tone, multiple meanings,
6. Fair Comment
Generally, QP and Responsible Communication
 Focus on fact – they allow untrue facts to be repeated
BUT Fair Comment
 Honest opinion (comment, observation) based on truth (a true fact) = fair
 Fair ≠ reasonable
 We are free to be unreasonable in our opinions, All you need is that someone has to honestly hold it
 WIC Radio v Simpson 2008 SCC
 Changed the law …Honesty of belief used to be subjective test (now objective)
Elements of FC (WIC)




the comments are actually comments and not statements of fact;
o May include inferences of fact, but must be recognizable as comment
o To say someone is dishonorable is a fact, whereas to say a person did this, and thus they are
dishonorable is a comment
o Reasonable person must be able to discern whether it is a comment, not a statement of fact
they are made regarding facts which are true (based on fact); and
o Known to the audience already or given by the defendant
o Truth must accompany the comment or be otherwise known
they are made honestly and in good faith;
o Must satisfy the objective test: could any person honestly express the opinion on the proved facts?
a matter of public interest is involved
o Some sort of harm or value (arts, science)
Republication and Fair Comment
 Created a problem for the media to have the honest belief of the original speaker …Fixed by:
 Defamation Act s 9 – a person who re-publishes a defamatory comment may rely on the honest
belief of the original speaker to establish fair comment
Malice and Fair Comment
• Actual malice by defendant completely defeats fair comment (Onus on plaintiff to prove malice)
• Evidence of malice
Willfully misrepresenting facts
Dominant purpose was spite, vindictiveness, high-handedness
Motive something other than public interest
Defamation remedies … damages and injunction
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Seldom any special damages
 i.e. pecuniary, out of pocket expenses
 If you can prove your business suffered, then you could
For general damages
 Hard to quantify loss of reputation
 Usually modest - Punishment, deterrence and restoration of dignity are policy controls
 No caps however – Hill v Church of Scientology
 Mitigation encouraged
 Apology or withdrawal will reduce damage awards
 Incumbent on the plaintiff to mitigate (go tell them to issue apology)
Punitive damages awarded if
 Malice, high handedness, conduct of case, repetition
 Some punishment is already considered in general damages
 No double dipping!
 Hill v Church “insidious, pernicious, persistent malice..”
Injunction
 Occasionally granted to prevent repetition, as interim measures
Defamation Act
Slander of Goods
 Elements…
1. Statement made concerning goods of plaintiff
2. Statement is false
3. Statement published with malice - improper motive or dishonestly
4. Special damage must occur – that is pecuniary loss
1. Some measure of loss is required
Class Proceedings and Mass tort claims
Concepts
 Means for large number of plaintiffs with similar claims to efficiently pursue the action
o Also means for defendants with similar defences to bring together common defences
o Davids v Goliath
 NOT a substantive right, procedural rights only
 Used for all civil causes of action, not just tort
 Basically
o Representative case is pursued
o Remedy is binding on all similar cases
Examples
o Pine shakes, sterilization claims, Seniors Advocates, Child welfare cases, ….
 Policy issues
o You want access for poor people
o Efficient use of judicial resources – don’t want 800 trials
o Access to remedy for plaintiffs
o Not onerous for defendants – don’t have to prove that much proximate cause, not as crushing to
defendants if they lose
 Parties can design own system or use CPA
Class Proceedings Act: History
 History – there was no CPA
o Mass claims always been possible
o Inefficiencies identified
o ALRI and ULCC recommended improvements
 The Class Proceedings Act passed in 2003, cif Apri1 1 2004.
Process
 Identify potential common claims
 Obtain Court order to “certify” a class
o Based on commonality of claim
o Must be substantial similarity
 Notification to potential class members
o Membership is “opt-out”
o Anybody who is in alberta and is sent a notice, you have to opt out
 Judicial management of the proceedings
 Representative case – decision binding for all members of class
 May be subclasses
 May be interjurisdictional
Some issues with class proceedings
 Once class is certified, often does not go to trial
o Few actual trials
o Once line is drawn its easier for defendant to see who they are u against and settle
 Interjurisdictional issues
o Identification, notice and communication to parties
o Class actions in more than one jurisdiction
 Funding for plaintiffs – expensive to pursue
o Contingency fee arrangements
o Third party funding
 Sell your chance of winning to a third party funder
o Defendant funding
Damages - Compensation for injury caused by tort
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Generally
o “Damage” v “Damages”
o Mitigation of Damages
o Tort-Feasors Act
Compensatory damages for personal injury
o Note, we are not covering the details of
 Damages for economic loss
 Damages for property loss
o Special versus General Damages
o Assessing damages for non-catastrophic injury
o General damages for Catastrophic injury - the Trilogy and the Cap
o Miscellaneous issues
 Collateral Sources of support for victim
 Periodic payments, annuities
 Damages for sexual battery
 Dead Victims
Punitive damages
o General concepts
o Aggravated damages
Damages – Generally : restitutio in integrum – restore the whole
o Exceptions: death, dismemberment
o To the condition that existed before the injury, not to perfection
 Fairness to defendant
Mitigation of Damages
 Plaintiff’s duty – limit damage (Andrews v grand and toy)
o Limit avoidable injury – reduce injury as much as you can
 Seek medical help, turn off the water to the leaking pipe
 Damages: Once injury is established, must be reasonable about quantum
o But don’t have to take less than your full loss
Contributory Negligence Act
 Joint and several liability of defendants
 Court can apportion fault amongst defendants and plaintiff
 If its not apportioned, defendants are liable for 100%
 Contributory fault/negligence causes defendants’ share to be reduced
 Just because you were contributorily negligent, doesn’t mean you cant have an action!
 Calculate damage award first, then deduct the % of contributory fault
Tort-Feasors Act
 More than one tortfeasor
o Plaintiff can sue one for all the damages
 Can subsequently sue the others, but recovery cannot exceed damages assessed in first action
 And no costs to plaintiff
o Tortfeasors can recover from each other
 Right to claim for loss of consortium if spouse is physically injured by tort
o Wife has right to sue for husband
Heads of Damage
 Realty and chattels
o replacement with real value at time of loss
o loss of use
o cost of repair
 Not covering economic, or reputational (look at specific sections)
Compensatory Damages for personal injury
Special damages
 Costs incurred before trial – loss of income, medical and other bills,
 Time between accident and trial
 Quantifiable
General damages (for non Fatal) – Look forward and more of a guess
1) Pecuniary – almost quantifiable
 Loss of Earnings = E = (F x G x H%) - J
o E = earning capacity
 Loss is not the loss of wages, it is loss of capacity...Assess as if an asset lost
 Based on plaintiff’s reasonable income expectations for working life and retirement
 All based on evidence
o F = length of working life
 No deduction for shortened life expectancy – Because its an asset! Why?
o G= Expected Income
 All based on evidence
o H% = Contingencies
 Contingencies relating to employmen (E.g. job injury, economic downturn)
 Percentage amount varies by circumstances:
o Nature of plaintiff’s work
o Not all contingencies are adverse
o Some contingencies taken into account when assessing lost capacity
o Precedent
 Should call evidence on this
o J = deduction for cost of necessities
 What plaintiff would have paid for necessities if no injury ...No double dipping
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Cost of future care = (A x B x C%) + D
o A = Annual cost of care
 Includes caregivers, care, meds…Includes necessities - food, clothes, shelter
 Look for reasonable options, in the circumstances…WHAT DO NORMAL PEOPLE PAY (social
cost)
 Plaintiff does not have to accept less than what the harm is worth
 Mitigation goes to reducing the injury, not the damages
o B = Life Expectancy
 Test: What is plaintiff’s present life expectancy given current situation?
 Based on evidence – question of fact
o C% = Contingencies
 Life has its ups and downs, could be negative or positive
o D = Cost of special equipment
 Use expert evidence to establish needs and cost
Other Considerations for Pecuniary General Damages  USE EXPERTS FOR THESE
 Return on investments (interest) and inflation  must adjust for both
 Tax impact
o No adjustments for income tax in this case
 Use self-extinguishing sum for cost of future care
o Not about building up estate for plaintiff’s heirs
o Annuity can be purchased  lumpsum dies with the plaintiff
2) Non-Pecuniary – never quantifiable
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Pain and suffering
Loss of enjoyment and expectation of life
We use the: Functional – “solace” approach - try to provide alternate means of happiness ✓
o Create opportunities, ease life
o Make up for damage to feelings, breach of trust
o Can include a part for “aggravated damages” – alleviation of particular psychological harm/insult
o Impossible to quantify accurately
The “Cap”
o Cap for Non-Pecuniary General Damages = $100,000 in 1978
 Increased with inflation - 2013 – $340,000
 SCC has declined to revisit the concept
o Applies only to personal physical injury claims
Damages for catastrophic injury
 The “trilogy” : Andrews v Grand &Toy, Teno v Arnold, Thorton v Prince George are authority for
o Procedure for assessing General Damages for catastrophic injury
 Pecuniary and
 Non-Pecuniary
o Financial cap for Non-Pecuniary General Damages
 Young person with catastrophic injury = highest
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Issues in Damages for personal injury
Girl work or boy work? Assessment of loss of income capacity
o Take into account women earn less or have different job prospects? minorities?
Volunteer caregivers – family and friends
o value of these services can be claimed
o Similarly – loss of opportunity to have spouse/AIP
Cost of financial advisor recoverable
Collateral Sources of support for victim
o May be private or public plan to assist
 Eg AISH
 May be legislative or contractual terms saying who is first/law payor
o Subrogation
 There is an equitable right to subrogate based on equity
 Insurers are always subrogated by contract or statute
 Crown can recover against defendant for some costs
 E.g. Hospital bills – Crown’s Right of Recovery Act
Periodic payments, annuities
o Structured settlement – amount can be invested to produce income stream
o Designed to terminate when plaintiff dies
o Court has jurisdiction to order - 2004
 Judicature Act s 19.1
Damages for sexual battery – P.A.D. case (1989)
o Severe psychological damage
o Pecuniary Damages included
 Loss of past opportunity
 Loss of future opportunity
 Cost of therapy
o Non-Pecuniary General Damages
 Note use of precedent
 Note aggravated damage component
 “heinousness” considered
Dead Victims
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Fatal Accidents Act
 Special Damages until death
 Funeral expenses and grief counselling
 Fixed amount for grief to spouse, AIP and children
Punitive Damages
 Punitive damages
o Relatively rare, usually modest
o Outrageous or high handed behavior
 Malice, wantonness, insult, persistent, vindictive, capricious, remorseless, mean
o Designed to punish
 When aggravated and general are insufficient
o Whiten v Pilot Insurance
 Contract case
 $1,000,000 punitive damages upheld at SCC
Limitations Act
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2 years- Discoverability of negligence (its when you realize the injury was attributable to the defendant)
For the purpose of the 10 year law, its when the conduct terminates or the last conduct occurs (for negligence)
 This is different than discoverability
 Don’t need to have discovered the damage, you just run out of time for 10 years
Whichever runs out first
Agreements and Suspension – Concealment, persons under disability, agreements
 When the defendant fraudulently conceals something (injury has occurred) then the limitations act does not
start Fraudulent concealment to the plaintiff (ss 4)
 If you have a disability, it does not start to run until you are able (ss 5)
 If the defendant and plaintiff agree, then the limitation period can be changed (ss7)
o Can only EXTEND limitations period, cannot reduce limitations period
o An agreement and acknowledgement of extension has to be in writing. Not binding if its an oral
agreement (ss 5,7,9)
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Limitation does not extinguish the claim I can’t sue you but I still have a claim. You still have a claim and you can
still do stuff with it.
Occupiers Liability Act
This Act:
 Sets occupier’s duty of care, owed to people who enter onto their premises
 “Premises” includes land and other sites, such as trailers, listed in the definition section (1)
 “Occupier” is someone who has care and control of premises (1)
 Two categories of entrants
o Visitors
 Legal entrants - people who have been invited or contracted to come onto the property, (including
those asked to leave if they are on their way out)
 Entrants as of right – “super legal” – e.g. police with warrant
o Trespassers
 Duty of Care to Visitors
o Reasonable care to prevent from injury - in relation to the purposes for which the person is invited or contracted
to come (see s. 5 and 6 )
 Duty of Care to Trespassers (12)
o Duty is lower: no liability, unless the injury to trespasser is caused by occupier’s wanton or reckless conduct
 Other aspects of the Act
o Special duty to child trespassers (13)-> have to make sure child will be safe from danger, with factors
o Warnings and contracts may limit liability in some circumstances (9)
o Occupier may be liable for risks created by independent contractor on premises (11)
o Crown is bound (16)
Legislatures should step in more when courts are faced with large scale policy decisions, or cases that fall in the “too
hard” pile. Unelected courts should not make decisions that are filled with policy considerations over elected legislatures.
In addition, when courts are not in a better position to make a decision (not as much information and expertise), they
should rely on the legislatures
 An example of this we’ve seen is how the UK courts said the legislature is better equipped to deal with the issue
of negligent supply of defective products or services (buildings)