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Summary - complete - Both terms kleefeld torts (cans)
summary
Tort Law (University of Saskatchewan)
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Torts CANs – 2014-2015
Table of Contents
INTRO TO TORT LAW............................................................................................................................. 5
Goshen v. Larin (1974, NSCA).................................................................................................................7
Garrat v. Dailey.......................................................................................................................................7
Tillander v. Gosselin................................................................................................................................7
Carnes v. Thompson................................................................................................................................7
Basely v. Clarkson...................................................................................................................................7
Smith v. Stone.........................................................................................................................................8
Lawson v. Wellesley Hospital..................................................................................................................8
INTENTIONAL TORTS.............................................................................................................................. 8
ASSAULT...................................................................................................................................................... 8
I. De S & Wife v. W. DeS (1348)..............................................................................................................8
Stephens v. Myers...................................................................................................................................9
Tuberville v. Savage................................................................................................................................9
Bruce v. Dyer...........................................................................................................................................9
Mainland Sawmills v. U.S.W. Local I-3657.............................................................................................9
Warman v. Grosvenor...........................................................................................................................10
BATTERY.................................................................................................................................................... 10
Cole v. Turner........................................................................................................................................11
Bettel et al. v. Yim.................................................................................................................................11
SEXUAL WRONGDOING.................................................................................................................................11
Non-Marine Underwriters, Lloyd’s of London v. Scalera......................................................................12
DAMAGES.................................................................................................................................................. 12
INTENTIONAL INFLICTION OF MENTAL SUFFERING..............................................................................................12
Elements...............................................................................................................................................12
Wilkinson v. Downton...........................................................................................................................13
FALSE IMPRISONMENT..................................................................................................................................13
Elements...............................................................................................................................................13
Bird v. Jones..........................................................................................................................................13
Chaytor et al. v. London, NY and Paris Assn of Fashion ltd. And price.................................................13
MALICIOUS PROSECUTION.............................................................................................................................14
Elements for Malicious Prosecution.....................................................................................................14
Nelles v. Ontario...................................................................................................................................14
TRESPASS TO LAND......................................................................................................................................14
Entick v. Carrington..............................................................................................................................14
Trespass to Property Act.......................................................................................................................15
INTERFERENCE WITH CHATTELS.......................................................................................................................16
1. Trespass to Goods.............................................................................................................................16
Everitt v. Martin....................................................................................................................................16
2. Detinue.............................................................................................................................................17
3. Conversion........................................................................................................................................17
Hollins v. Fowler....................................................................................................................................17
Fouldes v. Willoughby...........................................................................................................................17
Penfolds Wine bottles...........................................................................................................................18
INVASION OF PRIVACY (COMMON LAW) (INTRUSION UPON SECLUSION).................................................................18
Jones v. Tsige........................................................................................................................................18
INVASION OF PRIVACY (STATUTORY TORT)........................................................................................................19
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Getejanc v. Brentwood College Assn....................................................................................................19
Milner Manufacturers Life Insurance...................................................................................................20
Bigstone v. St. Pierre.............................................................................................................................20
DEFENCES............................................................................................................................................ 21
CONSENT................................................................................................................................................... 21
O’Brien v. Cumard (1891, Ct. of Massachusetts)..................................................................................21
Non-Marine Underwriters, Lloyd’s of London v. Scalera (2000, SCC) Burden of Proof for Consent
(Sexual Assault)....................................................................................................................................21
Norberg v. Wynrib (1992, SCC) Power of Imbalances..........................................................................22
Charland v. Cloverdale Minor Baseball Assn (2013, SCC) Parents fighting @ baseball field...............22
Malette v. Shulman (1990, ONCA) Consent in the MEDICAL context...................................................23
Marshall v. Curry Consent in the MEDICAL context: EMERGENCY exception......................................24
SELF-DEFENCE.............................................................................................................................................24
Cockcroft v. Smith.................................................................................................................................24
DEFENCE OF PROPERTY.................................................................................................................................24
Bird v. Holbrook (1828, Common Pleas)...............................................................................................25
Defence of third party...........................................................................................................................25
Babiuk v. Trann (note case) Defence of 3rd party.................................................................................25
Provocation...........................................................................................................................................25
LEGAL AUTHORITY....................................................................................................................................... 26
NECESSITY..................................................................................................................................................26
Dwyer v. Staunton (1947, AB Ct.) Public Necessity defence (successful defence)................................26
Vincent v. Lake Erie Transportation Co. (1910, Sup. Ct. Minnesota)....................................................27
Southwark London Borough Council v. Williams and Anderson Private necessity: homeless entering
empty house (defence fails)..................................................................................................................27
DEFAMATION...................................................................................................................................... 27
Remedies for defamation.....................................................................................................................27
Factors affecting damages...................................................................................................................28
The Values at Stake..............................................................................................................................28
Hill v. Church of Scientology of Toronto (1995, SCC) Reputation > freedom of expression.................28
Grant v. Torstar (2009, SCC) Libel Chill…Freedom of expression > reputation....................................29
Libel vs. Slander....................................................................................................................................29
Meldrum v. Australian Broadcasting co. (1932, Sup Ct Victoria).........................................................29
Libel and Slander Act............................................................................................................................30
Plaintiff’s Case......................................................................................................................................30
1 – P must prove that the statement is defamatory............................................................................31
Murphy v. Lamarsh et al. (1970, BCCA)................................................................................................31
Notes.....................................................................................................................................................32
2 - The material must refer to the P (Linden & Klar textbook).............................................................32
3 - The material must be published (McNichol v. Grandy)...................................................................33
McNichol v. Grandy (1932, SCC)...........................................................................................................33
Crookes v. Newton Hyperlink case.......................................................................................................33
Notes.....................................................................................................................................................34
Basis of Liability....................................................................................................................................34
Hulton & Co. v. Jones (1910, H.L.) intent not required for defamation................................................34
Cassidy v. Daily Mirror Newspapers, Ltd. (1929, CA)...........................................................................35
Vizetelly v. Mudie’s Select Library ltd. (1990, CA)................................................................................35
Defences...............................................................................................................................................36
1. Truth.................................................................................................................................................37
Mudford v. Smith..................................................................................................................................37
M.D. Mineralsearch v. East Kootenay Newspapers Newspaper Case..................................................38
2. Absolute Privilege.............................................................................................................................38
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3. Qualified Privilege (Klar, Tort Law)...................................................................................................38
4. Responsible Communication on a Matter of Public Interest............................................................40
Grant v. Torstar (2009, SCC).................................................................................................................40
5. Fair Comment (Linden and Klar).......................................................................................................41
WIC Radio v. Simpson (2008, SCC)........................................................................................................42
INTRODUCTORY CONCEPTS.................................................................................................................. 43
INTRODUCTION TO NEGLIGENCE.....................................................................................................................43
Dunsmore v. Deshield...........................................................................................................................44
STRICT LIABILITY..........................................................................................................................................45
Rylands v. Fletcher................................................................................................................................45
5 main defences to the Rylands v Fletcher Rule:..................................................................................45
Abraham, “Rylands v. Fletcher: Tort Law’s Conscience”......................................................................46
VICARIOUS LIABILITY.....................................................................................................................................47
67122 Ontario Ltd. V. Sagaz.................................................................................................................48
Bazley v. Curry......................................................................................................................................49
Jacobi v. Griffiths..................................................................................................................................50
NEGLIGENCE – DUTY OF CARE.............................................................................................................. 50
DONOGHUE V. STEVENSON............................................................................................................................50
Donoghue v. Stevenson The neighbor principle...................................................................................51
Cooper v. Hobart...................................................................................................................................51
R. v. Imperial Tobacco Canada DoC in a special relationship...............................................................52
Summary of Anns/Cooper Jurisprudence.............................................................................................53
DUTY OF AFFIRMATIVE ACTION – NONFEASANCE AND MISFEASANCE....................................................................53
Horsley et al v. MacLaren et al. – boater falls overboard....................................................................53
1) Jordan House Ltd. V. Menow and Honsberger – positive duty imposed on the bar to assist drunk
patron getting home safely..................................................................................................................53
Childs v. Desormeaux social hosts........................................................................................................54
2) Relationships of Control or Supervision (Klar, “Tort Law”)..............................................................55
3) Oke v. Weide Transport – Creator of dangerous situation..............................................................55
4) Zelenko v. Gimbel Bros.- Reliance Relationships..............................................................................55
Mercer v. SE&C Rwy Co. – ex. of a reliance relationship......................................................................56
R. v Nord-Deutsche et al.......................................................................................................................56
RESCUERS AND PSYCHIATRIC HARM.................................................................................................................56
Hay v. Young.........................................................................................................................................56
Reasonable Foreseeability (re DoC stage vs. Remoteness stage)........................................................57
Mustapha v. Culligan of Canada Ltd....................................................................................................57
Horsley v. MacLaren.............................................................................................................................58
Corothers et al. v. Slobidan et al. (1975, SCC)......................................................................................58
DUTY TO WARN, INTERMEDIARIES, AND DUTY TO OBTAIN INFORMED CONSENT......................................................59
Reibl v. Hughes.....................................................................................................................................59
Hollis v. Dow Corning Corp. (1995, SCC)...............................................................................................60
Intermediate Examination....................................................................................................................61
Ives v. Clare Bros Ltd. et al....................................................................................................................61
Smith v. Inglis (1978)............................................................................................................................61
DUTY OF CARE, ECONOMIC LOSS AND CONCURRENT LIABILITY.............................................................................61
R. v. Imperial Tobacco of Canada – Policy reasons that would negate a DoC.....................................62
Hedley Byrne v. Heller & Partners........................................................................................................62
Queen v. Cognos...................................................................................................................................63
Hercules Management Ltd. v. Ernst & Young.......................................................................................63
BG Checo v. BC Hydro...........................................................................................................................64
Winnipeg Condominium Corp No 36 v. Bird Construction....................................................................65
CNR v. Norsk Pacific Steamship............................................................................................................66
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NEGLIGENCE – STANDARD OF CARE AND BREACH................................................................................67
Vaughan v. Menlove.............................................................................................................................69
Bolton v. Stone......................................................................................................................................69
Watt v. Hertfordshire County – Fire Station Call, heavy jack inures P..................................................69
R. v. Saskatchewan Wheat Pool – breach of statutory duty................................................................69
Ryan v. Victoria.....................................................................................................................................70
Paris v. Stepney Borough Council – gravity of harm should be considered.........................................70
Vaughn v. Halifax-Dartmouth Bridge Comm........................................................................................70
McCullough v. Riffert (2010) – SoC of lawyers.....................................................................................71
NEGLIGENCE – CAUSATION.................................................................................................................. 71
Kauffman v. TTC – but for test..............................................................................................................72
Horsley v. MacLaren – but for test.......................................................................................................72
Athey v. Leonati....................................................................................................................................72
Clements v. Clements – when “but for” test does not work – material contribution of risk test.........72
Cook v. Lewis – 2 negligent Ds but only 1 caused accident – REVERSE ONUS.....................................73
Snell v. Farrell.......................................................................................................................................74
NEGLIGENCE – REMOTENESS AND FORESEEABILITY..............................................................................76
The Wagon Mound, No. 1 – changed law: foreseeability....................................................................76
Hughes v. Lord Advocate – modified foreseeability test......................................................................77
The Wagon Mound, No. 2 – CURRENT AUTHORITY.............................................................................77
Smith v. Leech Brian & Co. – thin skull rule..........................................................................................78
Marconato v. Franklin – thin skull plaintiff...........................................................................................78
Mustapha v. Culligan of Canada..........................................................................................................79
Price v. Milawski – Intervening causes.................................................................................................79
NEGLIGENCE – DEFENCES..................................................................................................................... 80
Galaske v. O’Donnell – Seat belt defence.............................................................................................80
Hambley v. Shepley – Voluntary Assumption of Risk...........................................................................80
Hall v. Hebert – unsuccessfuly ex turpi causa claim.............................................................................80
B.C. v. Zastowny – successful ex turpi causa claim...............................................................................81
The Contributory Negligence Act, RSS 1978, c. C-31............................................................................81
The Limitations Act, S.S. 2004, c. L-16.1...............................................................................................81
DAMAGES............................................................................................................................................ 83
Andrews v. Grand & Toy Alberta Ltd....................................................................................................84
MacCabe v. Westlock R.C.S.S.D. No. 110 – role of gender...................................................................85
Whiten v. Pilot Insurance – Punitive damages.....................................................................................86
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Intro to Tort Law
Purposes/functions of tort law
- Deterrence/prevention
- Appeasement
- Compensation
- Protection
- Distribution of losses
- Justice
- Ombudsman/watchdog/regulatory
- Empowerment
Civil Standard = balance of probabilities
Specific Torts:
Intentional Torts
- Assault
- Battery
- Intentional infliction of mental suffering
- False imprisonment (& malicious prosecution)
- Trespass to land; trespass to goods
- Violation of privacy
Defamation
Negligence
Trespass:
1. interference with security of the plaintiff’s person or property by the defendant (class
slides)
Interference = injury; “actionable without proof of damage”
2. Interference results from direct action by D
3. D’s action is intentional (or negligent)
 “Interference is direct if it is the immediate consequence of a force set in motion by
an act of the defendant” (Non-Marine Underwriters, Lloyd’s of London v Scalera, per
McLachlin J
Spectrum of Conduct
Involuntary/Accidental  Negligent  (reckless)  Intentional (intent to do physical
act/ to commit trespass/ to cause harm)
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Involuntary
Scenario where someone has no control over their actions. Ex: forced into something.
-NO tort liability
Accidental
Voluntary action but the outcome is unknown. (could not have reasonably
foreseen/prevented outcome of it)
-NO tort liability
Negligent
You act foreseeing the possibility that certain consequences will result. Conduct that
you ought to have known/foreseen the outcome)
-POTENTIAL liability in torts
Intentional
Act knowing something will be the result of your actions.
-LIABLE in torts
Actual intent: you desire the outcome
Constructive Intent: Knowing what the outcome of an action will be.
Goshen v. Larin (1974, NSCA)
Referee Hands Blocking Case
Facts: Referee puts hands up to block himself & accidentally hit someone. This person
falls & breaks wrist.
Issue: Did this meet the intent requirement of battery?
Holding: No.
Rule: An accident is not actionable as wrongfulness is required in tort law. Court
established that in a battery case the burden/onus of proof lies on the defendant to
prove that it was an involuntary/accidental act.
Garrat v. Dailey
Lawn Chair Case
Facts: D argued that he didn’t mean to hurt P
Issue: Was D liable b/c they were intentional?
Holding: Yes
Analysis: Pulling chair out from under someone = intentional tort.
Rule: The tort of battery requires proof that the D knew with substantial certainty that
what was going to happen. However, the mere absence of any intent to injure the P
would not absolve D from liability if in fact he had knowledge of what was going to
happen.
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Tillander v. Gosselin
Dragging Baby Case
Facts: The infant defendant, one week less than 3 years old, removed the infant baby
from her carriage and dragged her over 100 feet, fracturing her skull and causing some
brain damage.
Issue: Does this child have the ability to understand the nature of this ability and do
they know that it is wrong?
Holding: No – child didn’t really know what he was doing.
Rule: the D must have “the mental ability to appreciate or know the real nature of the
act he was performing”
Analysis: This case falls under the involuntary/accidental category.
Carnes v. Thompson
Throwing Pliers Case
Facts: D threw pliers at a man but hit the man’s wife instead.
Issue: Is D liable for the injury he caused the wife even though he did not mean to hit
her?
Holding: Yes
Rule: Doctrine of transferred intent: If the D intended to commit an intentional tort, he
is liable for all intentional torts he “accidentally” causes from that act.
Basely v. Clarkson
Lawn Mowing Case
Facts: D made honest mistake of cutting his neighbour’s lawn. He trespassed.
Issue: Did D intend to cut the lawn on his neighbour’s property?
Holding: Yes – question wasn’t about whether he intended to trespass, it was about
whether he intended to cut the lawn.
Rule: Accidentally trespassing is not a defence as D’s actions were voluntary and he
intended the consequences (lawn mowed).
Smith v. Stone
Involuntary Trespass
Facts: P brings an action of tort against D
Issue: Was D liable for trespass?
Holding: No b/c D was carried onto P’s land.
Rule: No liability for trespass if it is involuntary.
Lawson v. Wellesley Hospital
Psychiatric Case
Facts: P was a non-psychiatric patient of the defendant hospital – sought damages for
injuries sustained as the result of an attack by a psychiatric patient with a history of
violent conduct. Action was agains the hospital claiming they were negligent by
permitting the patient to be at large without adequate control or supervision.
Issue: Was the hospital negligent?
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Holding:
Rule: Where a person, by reason of mental illness, is incapable of appreciating the
nature or quality of his acts, he cannot be liable for a tort since they do not have
intention (which is an essential element of the cause of action).
Intentional Torts
Assault
Definition: Conduct that intentionally arouses fear of an imminent battery (physical
contact) constitutes an assault. (Stephens v. Myers, Bruce v. Dyer)
I. De S & Wife v. W. DeS (1348)
Hatchet Case
Facts: D was pounding on P’s door with hatchet – P stuck head out window & asked D to
stop. D swung at P with hatchet but did not hit her.
Issue: Did D assault P even though he did no other harm?
Holding: Yes
Rule: Physical liability is not required for liability of assault.
Stephens v. Myers
Threated Punch Case
Facts: D advanced towards P w/ a clenched fist, but did not physically punch him.
Issue: Did D commit an assault even though there is no way the battery could have even
happened under the circumstances?
Holding: Yes
Rule: When there is imminent fear, even though there is no way that a battery could
have happened, D can be liable for assault.
Tuberville v. Savage
Assize Time
Facts: D threatened P: “If it were not assize time I would not take such language from
you”
Issue: Did D’s threats that he may harm harm P in the future constitue an assault?
Holding: No
Rule: Cannot be held liable for assault without threat of imminent harm.
Analysis: Furthermore, D is actually saying that he would not harm him, so there is no
intent.
Bruce v. Dyer
Road Rage
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Facts: Road rage situation: D was tailgating P, flashing highbeams. P stopped car in front
of D and signaled for D to stop. Fight ensued, D fractured P’s jaw.
Issue: Is D liable for assault of P if he felt threatened b P before the fight ensued?
Holding: No.
Rule: If D has reasonable grounds to believe he was going to be hurt and acts in
defence, he won’t be liable for assault.
Analysis: P blocked D’s passage intentionally, which was sufficient to cause a threat to
D.
Mainland Sawmills v. U.S.W. Local I-3657
Labour Dispute
Facts: In a labour dispute, defendants impeded Ps ability to enter into their workplace.
Ds threatened Ps with imminent harm if they attempted to cross tracks (angry crowd) &
go to work.
Issue: Were the Ds liable for assault for threatening Ps by yelling at them (but not
physically threatening them)?
Holding: Yes
Rule: words alone can constitute an assault.
Analysis: Union workers created a reasonable apprehension of imminent physical
contact.
Warman v. Grosvenor
Internet Harrassment
Facts: Over the internet and personal e-mail, D threatened P for 2 years. D threatened P
directly and posted his personal address and invited people to go to his home. P had
strangers contacting his apartment’s management to try to get him evicted and had to
move as a result.
Issue: Is D liable for assault against P by causing him to be apprehensive of imminent
physical harm?
Holding: Yes
Rule: Persistent postings of threats and providing Ps home address can cause a
reasonable fear of imminent physical harm.
Analysis: fear is imminent b/c the threats were serious, and because of Ds postings, P
had third parties calling his landlord – this showed that people were taking action.
Battery
From class notes:
Assault = An action which causes another person to apprehend the infliction of
immediate, unlawful, force to himself.
Battery = The actual intentional (or negligent) harmful or offensive interference or
contact with another person.
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
NOT contact that can be reasonable expected in everyday life (jostling in
crowd or sports where contact is reasonable expected)
Relationship btwn assault and battery: they do not have to occur together.
 Can have a battery w.o assault if P doesn’t know it is coming (ex: hit from
behind, hurt in their sleep)
 Can have assault w/o battery if harm is apprehended by victim byt no
contact ever occurs.
Elements of Battery:
1. harmful/offensive contact (i.e. non-every day contact)
2. Physical contact: does not have to be harmful/cause injury
3. Directly caused by the defendant
Negligence vs. Negligent Battery
Negligence claim: anytime someone is harmed by the carelessness of another.
- extent of liability: D only responsible for injury/harm that is reasonably expected.
- Ex: leaving backpack on ground carelessly in the way of ppl walking & someone
trips over it and hurts themselves
Negligent Battery: Physically harming someone through the direct act of contacting
them.
- Extent of liability: D responsible for all harm/injury that follows from the battery
(Bettel v. Yim)
- Ex: D sticks out foot & trips somebody.
Cole v. Turner
Battery Definition - jostling in alley =/= battery
Rule: “Battery” in tort is very similar to “assault” in criminal courts. “the least of
touching of another in anger is battery.” Everyday touching will not be considered a
battery.
Bettel et al. v. Yim
Extent of Liability
Facts: D (adult) was angry at P (15 year old boy) for allegedly starting a fire in his store. P
would not admit that he started the fire so D tried to force him to confess by picking him
up by the collar and shaking him. While shaking him, D’s head accidentally came into
contact with P’s nose, causing injury to him. D had no intention to injure P while shaking
him, only to force him to confess.
Issue: Is D liable for all injuries that follow from the battery, even if D didn’t intend the
injuries that occurred?
Holding: Yes.
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Rule: If someone intends to physically contact another, even if they do not intend or
foresee the consequences, they will be held liable for any injury that flows from the
battery.
Analysis: An intentional wrongdoer rather than an innocent victim should bear the costs
of unforeseen consequences.
Sexual Wrongdoing
-
Unwanted sexual contact = battery
no special tort of sexual assault/battery…considered as a usual assault/battery
claim. Defenses different though – consent is a major one
Often involves the limitation periods and assessment of damages
Norberg v. Wynrib: where 2 parties are in a position of inequality and where the
dominant party exploits that position, consent is not a valid defence.
Limitation period: “reasonable discoverability” – ex. In incest case, limitation
period for sexual battery did not begin to run until the incest victim discovered
the connection between the harm suffered and the incest.
o Statutes exist for limitation periods w.r.t. claims related to sexual matters
– ex. In Sask, no limitation to when a claim can be brought forward
Non-Marine Underwriters, Lloyd’s of London v. Scalera
Facts: Sexual battery case – McLachlin J says that to prove a sexual battery, all the P has
to do is prove that force was applied directly to her – she does not have to prove that
she did not consent. Once P has proved physical contact of a sexual nature, if D does not
dispute the contact took place, he bears the burden of proving that P consented or that
a reasonable person in his position would have thought that she consented.
Issue: Is consent implied in sexual activity? Is sexual activity generally acceptable in the
ordinary conduct of everyday life (i.e. handshake, jostling crowd)?
Holding: No to both.
Rule: “it is for those who violate the physical integrity of others to justify their actions.”
The burden is on the defendant to allege and prove his defence (i.e. that P consented or
that a reasonable person in his position would have thought she did.) A P in a battery
action need not prove the absence of consent.
- the law of battery is based on protecting individuals’ right to autonomy.
Damages
Compensatory Damages (most common) Aim to restore the P to the position they were
in before D’s tortious action. Paid for compensation of P’s losses (ex: property, personal
injury)
- Special damages – damages we can precisely quantify @ trial. Ex: medical bills,
time off work.
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-
General Damages
o Pecuniary damages – specific costs that will be incurred in future – ex:
lost earnings/capacity to work, repair costs, disability equipment,
personal care aid
o Non-pecuniary damages – pain & suffering, loss of quality of life etc.
o Fatal Accidents Act damages
Punitive Damages (aka exemplary damages) – funeral costs, loss of
companionship, loss of spouse, etc.
Aggravated Damages – awarded to reflect P’s loss that was caused by D’s
conduct. Ex: psychological harm.
Nominal Damages – a token or symbolic amt. Usually a very small amount, but
given to recognize that a tort has occurred. Usually received for a tort that is
actionable without proof of damage, ex: trespass claims. (unusual to sue for this
b/c of litigation costs).
Intentional Infliction of Mental Suffering
Elements
P must show on a balance of probabilities that:
1) D’s conduct was extreme, flagrant or outrageous
2) Calculated to produce harm; and
3) The specific acts resulted in a visible and provable illness. (Piresferreira)
Wilkinson v. Downton
Prank Call – Husband Injured
Facts: D played a practical joke on P, telling P her husband had been severely injured in
an accident and she must catch a cab immediately to come get him. The effect on the P
was a violent shock to her nervous system, producing vomiting and other more serious
and permanent physical consequences at one time threatening her reason, and entailing
weeks of suffering and incapacity to her.
Issue: Can P sue for intentional infliction of mental suffering?
Holding: Yes.
Rule: This case established the tort of intentional infliction of mental suffering.
False Imprisonment
Elements
(Class slides)
1) Imprisonment (confinement/restraint – Bird v. Jones)
2) Directly caused by D’s actions
3) Intentional – constructive or negligent
- actionable without proof of harm
- Onus on D to show justification
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Bird v. Jones
Facts: D blocked P from passing along a public highway in a particular direction. D could
have gone around another way.
Issue: Did this consist false imprisonment?
Holding: No, b/c P was at liberty to move and go in any other direction, at his free will
and pleasure, and no actual force or restraint was used on him.
Rule: Merely blocking someone from a direction they want to go in does not amount to
false imprisonment.
Analysis: Judge said that “to hold the present case to amount to an imprisonment
would turn every obstruction of the exercise of a right of way into an imprisonment.”
Chaytor et al. v. London, NY and Paris Assn of Fashion ltd. And price
Facts: Store owner called competitors coming into shop “spies” and asked their store
detectives to watch them and called the police to arrest them as “suspicious
characters.” Ps accompanied the police in order to avoid embarrassment and because
they felt compelled to do so/ They were detained in police station for about 15 mins and
then released.
Issue: Can “psychological imprisonment,” that is, feeling compelled to not move about
freely (and not physically detained), constitute false imprisonment?
Holding: yes.
Rule: Psychological pressure of imprisonment can constitute false imprisonment. CITE
this case as this case tells us a tort of false imprisonment exists.
- being confined and not wanting to make a scene is enough to consider it confinement
Analysis: Psychological imprisonment can constitute false imprisonment in this case b/c
the Ps were subjected to an objectionable form of public treatment where they were
psychologically compelled to remain in the shop and go to the police station with the
police officers. They did not know there was a door in the back of the shop they could
leave through. There were no grounds for holding them there and taking them to the
station because comparison shopping was found to be a normal and accepted practice
by the judge, especially, he says, for competitors in the retail fashion trade.
Malicious Prosecution
Elements for Malicious Prosecution
(from Linden & Klar textbook)
1) The proceedings must be initiated by the defendant;
2) The proceedings must terminate in P’s favour (i.e. in P being acquitted…unlikely
they would be successful if they were convicted)
3) The proceedings must have been instituted without reasonable cause – there
must have been no honest belief, based on reasonable grounds, that the accused
was guilty.
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4) The D must have been malicious – D must have had an ulterior motive, other
than the pursuit of justice
Nelles v. Ontario
Nelles, a nurse at the Hospital for Sick Children in Toronto, brought an action for
malicious prosecution against the Crown, tha AG, and several police officers. She had
been charged with the murder of four infants who had died while under the hospital’s
care. The murder charges were dismissed at the preliminary hearing.
Trespass to Land
Entick v. Carrington
Facts: P brought action against D for B&E  D claimed to have a warrant to take papers.
Issue: Was this a trespass?
Holding: Yes, unless D can show that they had a warrant to seize papers.
Rule: Every invasion of private property, be it ever so minute, is a trespass. If D admits
the fact that they trespassed, they are bound to show that they were justified by some
positive law that has empowered or excused them from the trespass (ex: a search
warrant)
Trespass to Property Act
Definitions:
Enclosed land: surrounded by fence and/or natural boundary; or enclosed in manner
indicating occupier’s intention to keep persons off or animals on premises [s. 2(a)]
Occupier: person in physical possession or responsibility/control over condition,
activities, persons [s. 2(c)]
Premises: lands or structures, and includes water; ships/vessels; trailers & portable
structures (designed/used for residence, business or shelter); trains, railway cars,
vehicles & aircraft (except while in operation) [s. 2(e)]
Prohibits trespass, i.e.: [s 3(1)]
-Enter premises when prohibited
Prohibited when: contrary to notice given under s.11; enclosed lands that are property
of another person [s. 4(1)]
- Engage in activity prohibited on premises
Prohibited when: notice given under s. 11 [s. 4(2)]
- Fail to leave/stop activity as soon as is practicable after request
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- Re-enter or resume activity contrary to request
(All without consent of occupier or “right or authority conferred by law” [s. 3(1)]; onus
on D to prove consent [s. 3(2)]; person on enclosed land presumed not to have consent
of occupier [s. 4(3)] )
Prohibition/permission:
Entry prohibited [s. 8]
– By notice under s. 11
– To enclosed land regardless of notice
Activities prohibited
– Deemed prohibited, if other(s) permitted by notice [s 9]
– By notice under s. 11 [s. 10]
Form of notice: oral or written; sign [s. 11]
Defences: [s. 7]

Reasonable belief in title or interest in premises

Consent of occupier, or honest and reasonable belief in consent

Right or authority conferred by law

Honest and reasonable belief in permission to carry on activity

{All to be proved on a balance of probabilities}
Remedies/enforcement:

Powers of peace officer [ss. 5, 6, 12]

Summary conviction offence, punishable by fine up to $2000 [s. 14]

[NB no specific provision for damages or compensation to occupier, unlike some
other provinces]
Interference with Chattels
3 types of torts related to chattels:
(remedies for each are different) (from BVT slides)
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1. Trespass to Goods: direct and intentional interference with chattels in possession
of another.
a. Remedy: damages to compensate for loss
b. Actionable per se (w/o harm)
2. Detinue: Wrongful detention of goods (to which P has right of possession)
a. Remedy: return of goods OR damages = value of goods at time of
judgment
b. Elements:
i. P has right of possession (better right than D)
ii. P has requested return of goods
iii. D has refused return of goods
3. Conversion: Wrongful interference with P’s goods in a manner inconsistent with
rights of possession. (taking & keeping good or destroying it)
a. Remedy: Damages = full value of goods at time of conversion
1. Trespass to Goods
- P must have possession or immediate right of possession. A lessor cannot sure – lessee
must.
Everitt v. Martin
Coat Caught on Fender
Facts: P caught coat on D’s dilapidated fender (D’s car was parked next to his) and got
an injury. D tried to say P trespassed in allowing his coat to come into contact with his
car (so he wouldn’t be liable for P’s injury).
Issue: Did P trespass on D’s property (his car)? If so, does this allow D to avoid tort
liability in P’s claim?
Holding: Yes, P trespassed on D’s chattel, but id did not allow D to avoid liability.
Rule: There is no right of action in the case of merely accidental contacts where no
damage is done (as happened here).
2. Detinue
- P must have better rights to possess the goods than D
- better to go this route than conversion if you want the item back rather than just
getting $
- If price of good rises so that it’s higher at trial, you would be better to sue for detinue
3. Conversion
- Distinguishing feature: there has been major/serious interferences w/ one’s chattel
that it justifies forced judicial sale of the chattel to the defendant
- you’re not getting goods back, you’re getting full value of goods (@ time of
conversion, NOT at time of trial)
list of things constituting conversion:
1) taking & keeping for yourself
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2) destroying something/permanent loss/changing nature of goods enough that
it is no longer useful/valuable to original owner
- To sue in conversion you can sue if you are the owner (holder of title) of the property,
even if you’re not the possessor (i.e. unlike for trespass to chattels, lessor CAN sue for
conversion)
- If price of good falls so that it’s lower at trial, you would be better to sue for conversion
Hollins v. Fowler
Facts: Bayley (fraudster) acting as purchasing agent for a 3rd person w/ good credit. B
obtained 13 bales of P’s cotton. B offered to sell to Hollins (broker). Hollins obtained
bales of cotton & delivered to Micholls & co. B obtained sale price from Hollings. F never
got paid & Micholls & Co. had already used cotton. $ was taken btween Hollins &
Fowler.
Issue: Hollins & Fowler were both innocent – so who is held liable?
Holding: Hollins b/c they had a better chance of avoiding the fraud than Fowler.
Rule: A person who innocently obtains possession of goods (goods of a person who was
fraudulently deprived of them) & turns around & sells them to somebody else will be
held liable.
Fouldes v. Willoughby
- D took P’s horses off the ferry after P misconducted himself and then refused to
take the horses off himself
- “a simple asportation of a chattel, without any intention of making further use of
it, although it may be a sufficient foundation for an action of trespass, is not
sufficient to establish a conversion”
Penfolds Wine bottles
Facts: numbered company sued in conversion b/c they had their property seized
wrongly. No trespass b/c Penfolds had los possession of the bottles. But Penfolds
intended bottles to be filled with their own wine but they were used for a different
purpose
Issue: Did this constitute conversion?
Holding: Yes.
Rule: an unjustified use of goods will amount to a conversion provided there is an
intention to exercise dominion over them.
- only a person in possession can sue for trespass (i.e. that’s why they sued in conversion
here and NOT trespass to their chattel)
Invasion of Privacy (Common Law) (intrusion upon seclusion)
-
called intrusion upon seclusion in Canada (Jones v. Tsige is an Ontario case…BC
has explicitly said they won’t recognize the tort of invasion of privacy)
Elements
1) Intentional (including reckless) intrusion into P’s private affairs
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2) Invasion of P’s affairs w/o lawful justification
3) Reasonable person would regard invasion as highly offensive causing distress,
humiliation or anguish (no proof of pecuniary ($) loss is required)
Assessment of Damages
Factors:
– Nature, incidence and occasion of D’s wrongful act
– Effect on P’s health, welfare, social, business or financial position
– Relationship (domestic or otherwise) b/w parties
– Distress, annoyance or embarrassment suffered by P
– Conduct of both parties (before & after)
Modest where no proof of pecuniary loss; range up to $20,000
Punitive/exemplary or aggravated damages possible (but exceptional)
Jones v. Tsige
Facts: Jones & Tsige both worked @ different BMO branches. They did not know or
work with each other. For 4 years, Tsige used her work computer to access Jones’
personal BMO accounts, seeing info including: transaction details, personal info, date of
birth, marital status & address. She looked at her accounts over 174 times over 4 years.
The reason why doesn’t really matter.
Issue: Did Tsige commit the tort of intrusion upon seclusion when she repeatedly
examined the private bank records of Jones?
Holding: YES
Rule: When one’s intusion actions are intentional, amount to unlawful invasion of one’s
private affairs, are highly offensive to the reasonable person and cause distress,
humiliation or anguish, they are liable for the tort of inclusion upon seclusion.
Analysis: The court created this tort in this case. Societal changes influenced this.
Changes are conservative (in small steps) & consistent w/ laws that we already have.
Judge narrowly defined the tort so that it wouldn’t result in floodgates. The court also
looked at the 4 US privacy torts.
Invasion of Privacy (Statutory Tort)
- 4 provinces created legislation that makes invasion of privacy a tort: BC, SK, MB, Nfld.
Privacy Act: tort of violation of privacy
- must be “willful” (s. 2)
- Must be “without claim of right” (s. 2)
- What is violation of privacy?
o Examples (ex: surveillance, use of personal documents) – if without
consent, prima facie violation (s. 3)
o “the nature and degree of privacy to which a person is entitled in any
situation or in relation to any situation or matter is that which is
reasonable in the circumstances, due regard being given to the lawful
interests of others” (s. 6(1)).
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o Factors to be considered, eg: nature, incidence and occasion;
relationship; effect (s. 6(2))
- Defences (s. 4)
- Consent
- Incidental to lawful right of defence of person or property
- Authorized or required by law
- Peace officer or public officer…
- News gathering…
- Publication…
Available remedies (s. 7)
- actionable per se … “actionable without proof of damage” (s. 2)
- damages (ex: compensation for job loss, psychological)
- injunction: forcing D to take down info. on this person.
- Accounting for profits
- Order to deliver articles or documents
- “any other relief…that appears necessary under the circumstances”
Getejanc v. Brentwood College Assn.
Facts: House master, McCarthy @ Brentwood College, went looking for one of his
“boarder” students @ another student’s home, off-campus. McCarthy entered this
home w/o invitation, walked around looking for students & contraband (alcohol). He
opened bedroom doors, fridge, cupboards, took 4 students’ track suits. He know that P,
the rightful possessor of the home was away at the time. P looking to sue McCarthy for
trespass & seeks general, special & punitive damages.
Issue: Was the P entitled to privacy? If the P was entitled to privacy, did the D breach P’s
privacy?
Holding: Yes, P was entitled to privacy. (even though, P’s entitlement was decreased b/c
of McCarthy’s lawful “houseparent” interests. This decrease though was not enough to
diminish P’s expectation of entitlement to privacy.
Yes, McCarthy willfully and w/o claim of right entered P’s house, violating his privacy.
Rule: Elements of the statutory tort of Violation of Privacy:
1) Was there an entitlement to or reasonable expectation of privacy?
2) Was it “willful”?
3) Was it “without claim of right”?
Wilful = a higher threshold than intention. A willful act is an act that was intentional –
the actor knew or ought to have known would violate P’s privacy.
Analysis: 3 different defence possibilities. Biggest one was looking @ which lawful
interests were taken into account. Court looked at nature/situation, relationship etc.
- there were less intrusive means of exercising his lawful right as houseparent
- looked @ aggravating & diminishing factors – aggravating being that McCarthy was an
authority figure which made the invasion of privacy worse
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Milner Manufacturers Life Insurance
Facts: Ms. Milner – claiming damages for “breach of privacy” b/c of video surveillance
carried out @ request of Manulife. Private Investigators took photos unnecessary to Ms.
Milner’s issues- ex: her sons playing soccer, her daughter changing.
Issue: (same as Brentwood case) Were the Milners entitled to privacy? If so, did the
videotape surveillance breach the Milners’ privacy?
Holding: No entitlement to privacy in this situation because of the specific details (see
Analysis)
Rule: If there’s no entitlement to privacy, there can be no breach. When something
prima facie looks like a violation of the Privacy Act, must look at details – from this case
we can see that when looking closer at the facts, it’s not actually a violation of privacy.
Analysis: The Milners had low privacy b/c of nature of their actions. In home w/ blinds
open & lights on. Boys playing soccer in plain view of public, even if it was on private
property. Manulife did have a lawful interest in conducting their surveillance based on
the nature of her claim & the credibility issues that arose.
Bigstone v. St. Pierre
Facts: Issue with grandmother’s home and grandson wanting to possess it. Bigstone was
the mother of St. Pierre, who had title to the home but broke his promise and rented it
out. Bigstone disclosed that she had used per position as a customer service rep with
her workplace to access SPC records to confirm her grandmother’s residence had been
rented to a third party. When Bigstone brought an action against St. Pierre for an
unconscionable house transfer, he alleged Bigstone’s accessing of the records was an
actionable violation of his privacy rights pursuant to the Privacy Act.
Issue: Has the claimant pleaded enough to allow this claim to proceed?
Holding: Yes.
Rule: @ pleading stage you don’t have to show a reasonable right to privacy.
Analysis: This case shows us that the threshold is set low for “reasonableness.”
Defences
courts must balance the interests being invaded and the interests being
advanced by the defendants’ conduct
Complete defence = completely clears D of liability
- Consent
- Self-Defence
- Defence of 3rd parties
- Defence of property
- Public and private necessity
- Legal authority
Partial defence = partially clears D of liability
- provocation
- contributory negligence
-
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Consent
- If P proves all elements required for tort, onus shifts to defendant to prove that
What the defendant needs to do to prove consent:
- express consent (Non-Marine Underwriters)
- implied consent (by your actions: ex: putting out arm (O’Brien)); or
- by regular day-to-day conduct like jostling in a crowd (Cole v. Turner)
O’Brien v. Cumard (1891, Ct. of Massachusetts)
Facts: Surgeon employed by Cunard S.S. C. vaccinated P while she was on board. In
order to emigrate from Boston, vaccination needed. Surgeons lined up ~200 women. If
they did not have a mark on arm proving they had been vaccinated the surgeons would
give them vaccination. She didn’t verbally say she wanted the vaccination, she held out
her arm for shot.
Issue: Did the surgeon’s actions constitute an assault on the plaintiff? Was the
defendant guilty of negligence toward the plaintiff?
Holding: No to both.
Rule: Consent can be implied by conduct.
- honest/reasonable belief of consent is a valid defence
- Onus is on P to prove D acted negligently
Analysis: If it is indicated by conduct that D’s action is desired and it is not objected, D’s
actions are lawful because consent was given.
Non-Marine Underwriters, Lloyd’s of London v. Scalera (2000, SCC) Burden of Proof for
Consent (Sexual Assault)
Facts: Sexual assault took place.
Issue: Does the onus rest on the P to prove that the D either knew she was not
consenting or that a reasonable person in the D’s position would have known that she
was not consenting?
Holding: No – it is for those who violate the physical integrity of others to justify their
actions
Rule: - Burden of proof to prove that the P consented is on the defendant in a sexual
assault case
- the P who alleges sexual battery makes her case by showing evidence of force applied
directly to her.
- “force” in the context of an allegation of sexual battery, simply means that it is
physical contact of a sexual nature
Analysis: this case draws the line btwn casual/everyday contact (jostling in crowd –
implied consent) and “offensive”, not everyday contact
-McLaclin discussed that the biggest aspect of the tort of battery is to protect one’s right
to their own body/autonomy
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Norberg v. Wynrib (1992, SCC) Power of Imbalances
Facts: Laura Norberg – severe pain in jaw & headaches. Became addicted to painkillers.
After breaking her ankle she was needing painkillers & her new doctor (Wynrib) gave
her painkillers in exchange of sexual favours.
Issue: Did Dr. Wynrib commit the tort of battery in sexual assault? Did Dr. Wynrib prove
Norberg consented?
Holding: Yes, he committed tort of battery in sexual assault b/c Norberg’s consent was
vitiated by the power imbalance of the relationship.
Rule: Consent that occurs where inequality in a relationship that is exploited is not valid
consent.
Need both elements:
1) inequality in relationship; and
2) exploitation of the inequality
Analysis: Wynrib’s obvious defence to a claim for sexual assault is that she consented.
- Norberg argue that she was exploited – if it wasn’t for the inequality in their
relationship that was exploited, she would not have consented. He exploited the doctorpatient relationship, took advantage of her addiction to drugs she needed. Also he was
much older than her.
Charland v. Cloverdale Minor Baseball Assn (2013, SCC) Parents fighting @ baseball
field
Facts: Physical altercation btwn. 2 dads @ kids’ baseball game.
Issue: Was there a defence of consent?
Holding: No  mutual fight.
Rule: “mutual fights”  those who engage in fights cannot complain of injuries suffered
during fight unless force used by one of combatants is excessive or unnecessary.
- D has onus of establishing there was consent
- In fights, if fight ends @ point of mutuality, neither are liable. As long as fight stays w/I
reasonable consent (escalating reasonably)
- Disproportionate use of force would go beyond “reasonable escalation”
- in a FIGHT context, must ask:
1) was there consent?
2) was consent exceeded?
- In sports, it’s said you’ve impliedly consented by playing the sport that you consent to
the nature of the sport
- anything beyond the scope of what’s expected in the sport is not going to give
player immunity to liability
Bertuzzi v. Moore  contact that was deliberately meant to cause bodilyharm,
exceeding Moore’s expectation. Bertuzzi not immune from liability due to the fact that
this was in a sports setting.
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Malette v. Shulman (1990, ONCA) Consent in the MEDICAL context
Facts: P was a jehovah’s witness injured in car crash. She was brought to hospital & was
semi-conscious and in shock. Dr. was made aware she carried a card in her purse which
forbit any form of blood transfusion. Dr. administered one anyway (he determined it
was necessary). P sued D. D appealing.
Issue: Did Malette expressly say she does not consent by carrying the card in her purse?
Holding: Yes – her card is expressing her refusal just the same as if she had said it/
Rule: Patients have a right to refuse any and all treatment (maintains personal
autonomy).
- the right to refuse treatment is not premised on understanding the risks of
refusal, but on autonomy.
- Where P has expressly prohibited a treatment, that treatment cannot be imposed in an
emergency.
- her card is expressing her refusal just the same as if she has said it
- consent of refusal in advance is just as valid as consent given @ time of treatment
- Malette expressing her refusal of consent overrides the emergency situation from
Marshall v. Curry
Medical consent (from class slide)
• Consent must be voluntary
• Person giving consent must have capacity. ‘capacity’ means the ability:
1. (i) to understand information relevant to a health care decision respecting a
proposed treatment;
2. (ii) to appreciate the reasonably foreseeable consequences of making or not
making a health care decision respecting a proposed treatment; and
3. (iii) tocommunicateahealthcaredecisiononaproposed treatment
[Health Care Directives and Substitute Health Care Decision Makers Act, SS 1997, c H0.001, s 2(1)(b)]
• Consent must be specific (to procedure and person)
Marshall v. Curry Consent in the MEDICAL context: EMERGENCY exception
Facts: While performing surgery on P to fix a hernia, D (doctor) removed P’s left testicle
b/c he said it was a necessary part of the operation for the cure of the hernia (testicle
was diseased). P argues that he did not consent to removal of his testicle.
Issue: Is D liable since P did not consent?
Holding: No – D not liable.
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Rule: An exception to the requirement of consent to medical treatment: where the
surgeon has a duty to act to save the patient’s life where an unanticipated emergency
arises.
Self-Defence
Cockcroft v. Smith
Facts: P ran fingers towards D’s eyes. D bit a joint off P’s finger.
Issue: Was biting off his finger a proper defence?
Holding: No
Rule: self-defence must be immediate and proportional to the threat.
- a delayed response does not fall into the scope of self-defence because the threat to
the defendant is no longer imminent and it can be seen as revenge.
- excessive or unreasonable force won’t be justified as self-defence
- justified  necessary to defend from the attack
Defence of Property
(from slides):
- (usually for land; can also be chattels)
- the defence of property can be a defence for a tort of battery, but must be
cautious
- this defence has many parallels with self-defence but not identical
- D reasonably believes P is wrongfully entering, remaining in, damaging etc.
property in possession of D
- Force used must be reasonable and necessary to prevent/end interference
Bird v. Holbrook (1828, Common Pleas)
Facts: D had a walled garden where he grew valuable tulips. D set up a spring gun with
trip wires in garden. No notice of spring gun given. P climbed the wall to rescue a bird. P
called several times for D before descending the wall. P seriously wounded by the trap.
Issue: Can D use defence of property for setting trap?
Holding: No.
Rule: Defence of property is not a justifiable defence of property if express motive is to
harm trespasser.
- Notice of danger to trespassers about traps must be given.
Analysis: D is liable because he did not give notice and set the traps for the express
purpose of injuring trespassers.
Defence of third party
Elements (from slide):
1)
Reasonably believes person (self or third party) is under actual or imminent
attack
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Force used is reasonable under the circumstances – Proportionality b/w form
and nature of attack and response
– Factors in CC s 34(2)
– Not to be “measured with nicety” Idoesn’t need to exactly match)
3) Both to be proved by D on a balance of probabilities
2)
Babiuk v. Trann (note case) Defence of 3rd party
- player (D) punched player (P) in face & broke his jaw after whistle blew b/c P had
stepped on D’s teammate’s face w/ metal cleats. D not held liable b/c he was defending
his teammate (third party) and was “measured with nicety.”
Provocation
- When conduct of P causes D to lose self-control
- conduct that constitutes provocation must occur just before or @ time of D’s tortious
act – has to be “in the moment”
- not a complete defence, but may reduce damages (proportionately depending on the
role P played)
Provocation cases
(from class slide)
 Bruce v Dyer [pg. 154, note 9, expert under Assault]
o Decided on self-defence, but provocation would have reduced damages
o “provocaitn was such as to reduce the damages to the vanishing point”
 Check v. Andrews Hotel [pg. 154, nn8, 9]
o Verbal abuse and swearing = provocation
o No reduction of damages (b/c only punitive or aggravated damages can
be reduced, and none awarded)
 Defosse v Wilde [1998]
o Obnoxious behaviour, ripping D’s shirt and hitting D = provocation
o damages reduced by 50%
 Agar v Canning [ p. 132, n2(under consent)]
o Hooking and hitting with hockey stick = provocation; consent defence
rejected for retaliation by hitting in face with hockey stick
o Damages reduced 1/3
Legal Authority
-
an umbrella defence – covers many statutory defences
Criminal Code ss. 25 & 495
Citizens Arrest and Self Defence Act
Can have immunity from some civil liability because of CC
Difficult to generalize – must look at defence of legal authority on a case-by-case
basis
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Necessity
(uncommon defence)
- D must argue that there was a compelling interest that mst bave been protected
- Can be similar to self-defence/defence of third party in a way
- KEY DIFFERENCE for this defence: the threat the D is protecting themselves
against is not from the P, it’s from some external force
- Public necessity = acting to protect public from external threat. Emergency, in
public interest, no reasonable alternative, no unnecessary damage done
- Private necessity = acting in your own interest to protect yourself from an
external threat – only available in cases of extreme need (great, imminent
danger). There must be no reasonable legal alternative. (becomes difficult where
actual damage/loss is done. Majority decision in Vinet case says you have to pay
difference where actual damage is done).
Dwyer v. Staunton (1947, AB Ct.) Public Necessity defence (successful defence)
Facts: P was a farmer, D lived north of P. Snow blocked the road running past the
farmer’s property. Oil company bulldozed a path across P’s farm. D used it with other
vehicles following. P suing D for trespass & damages to his crop.
Issue: Did D have rights to trespass onto P’s farm to get into dtown?
Holding: Yes.
Rule: Defence of necessity allowed for a trespass to land. A traveller who is lawfully
using a public road has the right to go upon private land at places where public way is
impassable.
- Rights of public are higher than private property rights.
Analysis: public interest is not very compelling in this case.
Vincent v. Lake Erie Transportation Co. (1910, Sup. Ct. Minnesota)
Facts: D tied boat to P’s wharf during a big storm. Wind was hitting boat onto wharf.
Issue: Is D liable to P for trespass onto his wharf?
Holding: Yes, for part damages.
Rule: D used P’s wharf (property) for the prupose of preserving its own more valuable
property, and the Ps are entitled to compensation for the injury done. To use defence of
necessity, there needs to be an imminent peril.
Analysis:
Southwark London Borough Council v. Williams and Anderson Private necessity:
homeless entering empty house (defence fails)
Facts: 2 homeless people peaceably enter 2 empty houses owned by local authority. The
local authority owns hundreds of empty houses. They are trying to sue for trespass.
Issue: Can defendants use defence of necessity for trespass after entering the houses?
Holding: No.
Rule: Reason for entering houses was not merely to prevent discomfort of Ds – not
sufficient for defence of necessity.
- Need a serious, imminent need such as a risk of death. Emergency would have given Ds
a better chance.
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Analysis: D made an economically rational decision here – he tied his boat b/c its value
was higher than the wharf – he made the decision to save his boat
- Whynrib said it’s all abot the best/just relationship between the parties. In order to
protect your own property and damage other property, you’re liable to damage of
another’s property
Defamation
-
seeks to protect the reputation of individuals against unfounded and unjustified
attacks.
Onus on P to make out the elements of defamation; then onus shifts on P to
make out elements of defence
o If defence of qualified privilege is made out, P can negate it by showing
that the D was malicious or exceeded privilege
o If the defence of Fair comment is made out, the P can negate it by
showing D was malicious
Elements of Defamation (onus on P to prove 3 elements)
(1) P must prove that the statement is defamatory (Murphy v. Lamarsh et al.)
(2) The material must refer to the P (Linden & Klar textbook)
(3) The material must be published (McNichol v. Grandy)
Remedies for defamation
(from class slides):
 Compensatory damages
o General
o Special
o Aggravated
 Punitive/exemplary damages
 Injunction (in very limited cases)
Factors affecting damages
(from class slides):
 D’s conduct, motive, Condition
 P’s reputation
 Extent of publication; how & by whom received
 Apology/retraction (or lack thereof)
Mitigation of damages (Libel and Slander Act)

Defendant can offer evidence in mitigation of damages that he “made or offered
a written or printed apology to the plaintiff before the commencement of the
action; or, if the action was commenced before there was an opportunity of
making or offering such apology, ... as soon afterwards as he had an opportunity”
[s 4]
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

Mitigation of damages for newspaper libel where no actual malice or gross
negligence, and full apology before commencement of action or at earliest
opportunity [s 7]
Mitigation of damages for newspaper libel where P has already sued/recovered
for (substantially) same libel in other newspaper [s 17]
The Values at Stake
-
Law around defamation – tries to balance freedom of speech and reputation
Violation of privacy and defamation can often come up together
For statutes on defamation, it must comply with the Charter right of Freedom of
Expression
CL – a more ubtle exercise of balancing Charter rights & CL interests
Hill v. Church of Scientology of Toronto (1995, SCC) Reputation > freedom of
expression
Facts: Hill was a Crown prosecutor – Church of Scientology was making statements
about him saying that he misled an Ontario supreme court judge and breached court
orders. He claimed that they were defaming him.
Issue: Should the court alter the defence of qualified privilege so that it would comply
more with the Charter right of freedom of expression?
Holding: No.
Rule: Reputation (especially for a lawyer) is extremely important.
- this case altered an narrowed the scope of the defence to defamation of Qualified
Privilege.
Analysis: Example of how damages are awarded for loss of reputation – not necessarily
a pecuniary loss. Hill was awarded 3 Million dollars for punitive, aggravated and general
damages.
Grant v. Torstar (2009, SCC) Libel Chill…Freedom of expression > reputation
Facts: media case – freedom of the press concern, discussion of “libel chill” it will chill
the news for fear of libel charge.
Rule: The SCC should rely on the Charter to emphasize the importance of freedom of
expression in shaping Canadian defamation law
(different view from Hill)
Analysis: The Common Law, though not directly subject to Charter scrutiny where
disputes between private parties are concerned, may be modified to bring it into
harmony with the Charter.
Libel vs. Slander
Libel (print/permanence) = actionable per se (without proof of harm)
Slander (speech/non-permanence) = actionable upon proof of damages
Libel:
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
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
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o Includes writings, signs, pictures, statues, films, and even conduct
implying a defamatory meaning
o Actionable without proof of damage since general damages are
presumed
Slander:
o Is communicated orally and is not actionable per se, so that an action lies
only if special damages are pleaded and proved (there are 4 classes of
slanderous statements that are actionable per se and do not require
proof of special damages.)
Damage rule is well settled in the law and can only be changed by legislative
reform
o AB, MB, NB, NS, PEI- “Defamation means libel or slander:
 AB- “When defamation is proved, damage shall be presumed”
Distinction between libel and slander still exists in SK
The mere broadcast would not make something libel, but if that is recorded or
given some permanent form, it becomes a libel
Meldrum v. Australian Broadcasting co. (1932, Sup Ct Victoria)
Facts: P brought an action for defamation alleging in the statement of claim that D
“wrote a script” and “read out” the words on the script into a broadcasting apparatus.
No special damages were alleged. D moved to strike out the statement of claim or to
have it amended by striking out those parts which referred to a writing or script and
those parts of the words which could not support an action of slander without proof of
special damage.
Issue: Does the fact that the D read the defamatory remarks from a script make it libel
or slander?
Holding: this constitutes slander.
Rule: The distinction between libel and slander lies solely in the mode of publication. It
does not matter if the speaker is reading them from a script or if the audience knows he
is reading them from a script. As long as the communication is by word of mouth, it is
slander and not libel.
Analysis: This was an important distinction since slander requires proof of harm, but
libel is actionable per se.
Libel and Slander Act
• Libel and Slander Act, s8: Only actual damages recoverable for newspaper libel if:

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- Good faith
– Reasonable grounds to believe publication was for public benefit;
– Libel did not involve criminal charge;
– Mistake or misapprehension of facts; and
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
– Full and fair retraction before commencement of action [conspicuous and at
least 15 days before election, if candidate for public office]
Plaintiff’s Case
Elements of Defamation (onus on P to prove 3 elements)
(1) P must prove that the statement is defamatory (Murphy v. Lamarsh et al.)
 What is defamation? 2 steps:
1. Is the material capable of being defamatory? (question for the
judge)
2. Is the material in fact defamatory? (question for th jury)
 Objective test (based on what a reasonable person would think)
(2) The material must refer to the P (Linden & Klar textbook)
 Again, 2 steps:
1. Is the material capable of being regarded as referring to the P? (for
the judge)
2. If yes, then… is the material in fact seen/read by people (who know
P) as referring to P? (for the jury)
 Objective test (would a reasonable person/reader think so or what will that
reasonable person do with that info)
 This issue usually arises in cases of group defamation: Depends partly on size
of group, language, person’s identity or role in the group
(3) The material must be published (McNichol v. Grandy)
 Material/statement conveyed by D and received by third party
 Publication intended by D (actual intent), or due to D’s negligence (negligent
intent)
 Republication (every publication, conveyance of the material, is the basis for
a separate cause of action)
 “repetition rule” (not a defence to claim “only repeating what someone else
said”) – repeating is publication as much as actual publication.
1 – P must prove that the statement is defamatory
Test for what is defamatory




“tends to bring the plaintiff into / expose the plaintiff to hatred, contempt, or
ridicule” [Murphy v Lamarsh; Botiuk v Toronto Free Press]
“tends to lower the plaintiff in the estimation of right-thinking members of
society generally” [Murphy v Lamarsh; Botiuk v Toronto Free Press]
“tends to lower the plaintiff’s reputation in the eyes of a reasonable person”
[Grant v Torstar]
“tends to make the plaintiff be shunned or avoided” [Youssoupoff v MGM]
Examples of what court has found defamatory
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Imputing to the plaintiff
o Illegal, disreputable or improper conduct
o Immoral or unethical conduct/ character
o Socially undesirable traits (lousy teacher, serious illness)
o Lack of skill, knowledge, judgement, etc.
o Disease, including mental or physical illness
Material that is embarrassing or humiliating (exposing P to “more than
trivial” ridicule)
Berkoff v Burchill
o Whether it is funny or is it defamatory?
o Actor call notoriously hideous looking by a reporter (jokingly)
Murphy v. Lamarsh et al. (1970, BCCA)
Facts: Murphy was formerly employed as a radio newsman in the press gallery at
Ottawa reporting for his radio station the doings of Parliament and the Government of
Canada and general political news, including the public and private actions of politicians
who were in the public eye. The D is the author of, and the defendant McClelland and
Stewart Limited is the publisher of a book of political reminiscences called Memoirs of a
Bird in a Gilded Cage. The first edition of the book contained statements about P which
he says are defamatory.
Issue: Is the D guilty of libel?
Holding: Yes.
Rule: Classic test for defamation: would the statement tend to lower the P in the
estimation of right thinking members of society generally?  normally qualified by “or
lead to the P being shunned or avoided?” (Sim v Stretch)
 Ask: who is a “right thinking member of society”?
Notes
Youssoupoff  defamation: “calculated to bring into hatred, ridicule, or contempt” …
“or causes them to be shunned or avoided.” – but this is not exhaustive
Slayter  the standard measurement in defamation is someone of “fair average
intelligence” or what “ordinary decent folk in the community, taken in general” would
feel.
Innuendo  words may appear innocent on the surface but may be defamatory to
people who are aware of extrinsic facts. In such a case, the p must pleas and prove this,
which is called the “innuendo.”
 Ex: Morrison: publication of the apparent good news that Mrs. M has given birth
to twins  Mrs. M. is successful in a libel action when she pleads and proves
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that she was married only four weeks before, the innuendo being that she have
birth to illegitimate children.
2 - The material must refer to the P (Linden & Klar textbook)
The material must refer to the P (Linden & Klar textbook)
 Again, 2 steps:
1. Is the material capable of being regarded as referring to the P? (for
the judge)
2. If yes, then… is the material in fact seen/read by people (who know
P) as referring to P? (for the jury)
 Objective test (would a reasonable person/reader think so or what will that
reasonable person do with that info)
 This issue usually arises in cases of group defamation: Depends partly on size
of group, language, person’s identity or role in the group
o Ex: arab taxi driver in Quebec brought a class action against a radio
host for making extremely offensice and insulting remarks about Arab
taxi drivers in Mtl.
 Claim failed b/c P must prove that he personally suffered an
injury as a result of the speaker’s fault in making such
defamatory comments
o Ex: Booth v. BC Television Broadcasting Systems – detective defamed
by prostitute on tv. Judge said defamation depended on what
“reasonable men would take from what was said.”
3 - The material must be published (McNichol v. Grandy)
McNichol v. Grandy (1932, SCC)
Facts: D and P got into altercation in dispensary at P’s drug store, D spoke in a loud and
angry tone and uttered defamatory words of the P. An employee at the store heard it all
from the changing room with a small hole in it next door. TJ found that the defamatory
words were not published.
Issue: Were the defamatory comments published?
Holding: Yes, appeal dismissed
Rule: Onus on P to prove publication. Responsible for defamation if publication is
reasonably foreseeable by the defendant.
Analysis: The publication to the employee took place while she was performing her
duties in the usual course of business, and was not brought about by unlawful/improper
act on her behalf
- we must take it that the defendant intended the natural and probable consequence of
his act
- onus on D to say he did not intend anyone else to hear it, and that he did not expect
anybody to be in hearing distance (to prove not guilty of any want of care in not
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foreseeing the probability of the presence of someone within hearing range of the
speaking tones which he ued)
Notes
Huth v Huth case  the D sent an unclosed letter to P, and the letter was removed
(unlawfully) by P’s butler and read by the butler. This was found not to be defamation
because it was not reasonably foreseeable that the butler would take it out and read it.
- other cases where it was reasonably foreseeable that a third party would open and
read the letter (ex: lawfully by a clerk), there was publication by the defendant to the P’s
clerk.
- where a letter was intended for one person but was by mistake sent to another, that is
considered publication (Thompson v. Dashwood)
- where a letter (containing defamatory statements of P) was negligently dropped by the
D and picked up and read by a third party, that is publication (Weld-Blundell v. Stephens)
Crookes v. Newton Hyperlink case
Facts: D posted an article on his website on the topic of free speech. The article
contained hyperlinks to other websites which contained defamatory comments
concerning the P.
Issue: Did publishing electronic links to articles which contained defamatory material
amount to republication of the defamatory material itself?
Holding: Not without more, so not in this case.
Rule: hyperlinks without more act as mere references to other material but do not
publish the content of that material. People who publish hyperlinks may attract liability
“if the manner in which they have referred to content conveys defamatory meaning; not
because they have created a reference, but because understood in context, they have
actually expressed something defamatory…” (Justice Abella in writing for the majority in
Crookes).
Notes
 Publication has a wide breath
o Innocent dissemination defence: protects those who play a secondary
role in the distribution system, such as news agents, booksellers, and
libraries. Such subordinate distributors may escape liability by showing
that they have no actual knowledge of an alleged libel , are aware of on
circumstance to put them on notice to suspect a libel, and committed no
negligence in failing to find out about the libel
 Byren v Deane [1937]- Proprietors of the club were held liable for defamatory
posters put up by members. Failure to remove defamatory matter may amount
to publication where removal is simple and easy. On the other hand, it would be
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
difficult, if not impossible, to draw an inference of “volition” from failure to
remove deeply chiselled defamation from stonework of a building
Botiuk v. Toronto Free Press Publications  “joint tortfeasors”  those who
participate together in the publication of a defamation can be liable together
o Joint tortfeasors can also be liable for a subsequent republication if this is
a “natural and logical consequence” of the first publication
A person who communicated the defamatory material to the person being
defamed generally is not liable, since there has been no publication to a third
party. If, however, the person defamed was under necessity or compulsion to
repeat it to a third party, there is publication. If the republication of defamatory
material by a third party to another party is the natural and probable
consequence of the original publication, the original publisher can be liable for
that republication as well (Linden & Klar textbook)
Basis of Liability
Hulton & Co. v. Jones (1910, H.L.) intent not required for defamation
Facts: Hulton & Co. were the printers, publishers and proprietors of the Sunday
Chronicle, which published an article with a libel concerning Jones. Hulton & Co. used
Jones’ full name, saying that he was with a woman who was not his wife. Witnesses
were called to trial and said they read the article and that it was referring to the
plaintiff. D said the name was chosedn for the purpose of the article as a ficticious one,
having no reference to the P.
Issue: Did D commit the tort of libel even though he did not intend to defame the P?
Holding: Yes.
Rule: Intent is not necessary to prove defamation. Accidental defamatory lack of intent
is not a defence.
Cassidy v. Daily Mirror Newspapers, Ltd. (1929, CA)
Facts: Cassidy was living with a woman who was not his wife. A photograph was taken
of Cassidy and another woman with an engagement announcement. The woman who
he had been living with (not his wife) brought an action for libel against the newspaper
setting out these words with an innuendo, meaning thereby that the P was an immoral
woman who had cohabited with Corrigan without being married to him.
Issue: (1) was the alleged libel capable of a defamatory meaning? (2) as the Ds did not
know the facts which caused the friends of Mrs. Cassidy to whom they published the
words to draw defamatory inferences from them about the P, were they liable for those
inferences?
Holding: (1) Yes, it was capable of defamatory meaning that “he is a single man.” (2)
Yes, D still liable for those inferences because if D publishes something reasonably
capable of being read as relating directly or indirectly to the P and, to those who know
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the facts about the P, capable of a defamatory meaning, D must take the consequences
of the defamatory inferences reasonably drawn from his words
Rule: Inquire first before publishing. It is no excuse for the D to say that he did not know
of the P and did not mean to injure him.
- defamation is a STRICT liability tort, not fault based
Vizetelly v. Mudie’s Select Library ltd. (1990, CA)
Facts: A book published contained a passage defamatory to the P. After the publishers
were sued by the P, they sent out a notice requesting all copies of the book be returned
so that they could take out the page containing defamation and replace it. The
defendant library continued to lend copies of the original book, and were selling surplus
copies.
Issue: Did D commit a libel in lending and selling copies of the original copy of the book?
Holding: Yes. – defence of innocent dissemination not met.
Rule: 3 elements must be met for the defence of innocent dissemination:
1) that the D was innocent of any knowledge of libel contained in the work
disseminated by him
2) that there was nothing in the work or the circumstances under which it came to
him or was disseminated by him which ought to have led him to suppose that it
contained a libel, and
3) that when the work was disseminated by the D it was not by any negligence in
his part that he did not know that it contained the libel.
- onus lies on defendant to prove these 3 elements
Analysis: If all 3 elements are met then, although the dissemination of the work by him
was prima facie publication of it, he may nevertheless, on proof of the beforementioned facts, be held not to have published it.
Notes
 Menear v Minguna (1996): Held that innocent dissemination is available to a
printer of a book
 Balabanoff v Fossani (1948): Good defence to a libel action for a vendor or
distributor of a newspaper or other periodical to show that he had no knowledge
of the libelous matter and that there was no extraneous facts which should have
put him on guard
 Ontario Libel and Slander Act: allows recovery for only actual damages if an
alleged libel was published in good faith, that it took place in mistake or
misapprehension of the facts, and a full and fair retraction is published
immediately
 Bahledia v Santa- Court held that placing material on the internet constitutes a
broadcast for the purpose of legislation
Defences
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Consent


Consent of the plaintiff can be a valid defence
Very strictly/narrowly construed, only referring to specific material published,
author can’t take creative license
Justification (Truth)






Arguing the material you published is true
Beyond balance of probability of truth
Actual truth (as proved), not the defendant’s knowledge or belief
Substantial truth
o Fact that you got a few insignificant details wrong wont defeat the
defence
Risky defence, if you try to proof justification, you can increase damages, if you
continue to insist facts are true you can aggravate damages
Truth of the “Sting” (defamatory meaning)
o The actual defamatory statement must be true, surrounding irrelevant
details can be false
o Have to prove that all of the stings are true
Absolute privilege





These relationships are important enough, we need the right people and
everything that was said has to be in the conduct of their official duties
Applies to: Executive officers (high executive, PM), judicial proceedings,
parliamentary proceedings, spouses
Parliamentary proceedings
o Only covers proceedings themselves
Judicial and quasi-judicial proceedings
o Applies to everyone including clients, lawyers, witnesses, judges, quasijudicial, etc.
o Fair and accurate report of court proceedings (libel and slander act, s 11)
Communication between spouses
Qualified privilege




When do we have a privilege?
What is it qualified by?
Existence of some truth or duty of the publisher that justifies the communication
(reciprocal),
Limits of privilege exceeded
Responsible Communication on matter of public interest
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Fair comment
1. Truth
- at CL, truth is a complete defence
- truth is in all circumstances an interest paramount to reputation
- the falsity of defamation is presumed until dispelled by the defendant
- truthfully repeating a defamatory rumour, explaining that was something you heard,
will not be protected by the defence of truth. It is the truth of the rumour which you
must be prepared to prove.
- the truth of the sting (the defamatory meaning) is the part that the defendant must
prove to be true
Mudford v. Smith
Facts: D posted comments stating: P had “no integrity” and you should be careful
dealing with her. Saying that he had to sue her. 2 judgments found she breached
contract and that she had refused to pay the judgments.
Proven facts: D had sued her (but didn’t “have to.” Judgments against her (but not
finding breach of K in one case; substantially true in other case). She DID pay, and at no
point did she refuse to pay.
Issue: Did the defence of justification apply in this case?
Holding: No, because there was still some “sting” in the comments that the D couldn’t
prove was true.
Rule: It is often the case where some information is proved to be true and some is not.
M.D. Mineralsearch v. East Kootenay Newspapers Newspaper Case
Facts: A newspaper published an article about deceptive trade practices by a business.
All facts were true.
Issue: Was there defamation here?
Holding: Yes – the newspaper did not succeed on the defence of justification.
Rule: the sting of the INNUENDO that the article implied that they were a
deceptive/misleading company had more of a sting than the actual offence they
committed. Deceptive trade practice is a strict liability offence and their infraction was
actually “very minor.”
2. Absolute Privilege
 Certain types of communications are protected by an absolute privilege
o “to the acts of high executive officers in the performance of their official
duties” (ex: Prime minister, PM’s chief of staff, RCMP Commissioner, etc.)
o statements made during the parliamentary proceedings and
 only proceedings themselves, not to media (even if it is repeating
what was said in house)
o judicial proceedings
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parliamentary proceedings only have absolute privilege if they are
fair and accurate. And were not published maliciously
o communications between spouses
o statements made in committees of the House
o A P who consents to the publication of defamatory material about
themselves will be barred from recovery
 This defence is narrowly construed and must be given for each
publication separately
No defamation action can be successfully brought in these cases, even if all the
requirements of the P’s prima facie defamation case are met
In these cases, freedom of speech prevails entirely over the protection of
reputation
o Certain types of communications are so vital that they must not be
fettered by even the threat of a legal action for defamation



3. Qualified Privilege (Klar, Tort Law)
 Protects defamatory material published on certain occasions
o When the publisher has an interest or duty to convey the material to a
person who had a reciprocal interest or duty to receive it
 Existence of a duty is based on an objective test
 Whether “people of ordinary intelligence and moral
principles” would have considered there to have been a
duty, not whether the defendant honestly believed that
one existed
o QP attaches to the occasion upon which the communication is made, and
not to the communication itself
 Clear list of types of reports covered by QP:
o All about context
o The occasion is what privilege attaches to
o Contrast where people should be able to speak freely but not so strong to
give an absolute privilege, situation where there is a compelling public
interest
o The defence is rarely established by media organizations
 Privileged reports
o Fair and accurate report of legislative and other public proceedings (libel
and slander act)
o Fair and accurate reports of judicial proceedings (CL)
o Fair and accurate reports of public documents (CL, see note 7)
 Existence of some truth or duty of the publisher that justifies the communication
and an interest and duty of the receiver of information has:
o Personal interest, common interest, public interest
 These can cover a wide variety of interests
 (ex of TUTORIAL 3: Pauline had a personal interest in protecting
her reputation (classic qualified privilege)
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calling the police to say you think a crime is about to be
committed
 medical report
 if you write a letter of reference, sometimes you have to say
things that aren’t complementary
o Difficult to apply QP b/c of it’s wide breadth

When it is defeated (QP)
 P has opportunity to show malice or excess of privilege to defeat defence
 Malice (if P can prove malice, defence defeated)
o Knowledge of falsity or reckless disregard ofr the truth
o Dominant purpose of injuring P
o Dominant purpose that improper or unrelated to/inconsistent with the
duty or interest
o By your conduct you have shown that you don’t care whether the
information is true or not (enough for malice)
 Limits of privilege exceeded (sometimes malice cannot be proved, but excess of
privilege can still defeat defence)
o Consider what was and how much was communicated
o How much was it communicated?
o To whom was it communicated?
Notes
 SCC refused to give a special qualified privilege to the media to report on matters
of public interest
o Libel and Slander Act – s. 8(1) though (gives a type of protection for
newspapers who have committed libel). Says that only actual damages
can be awarded if certain requirements are met by the newspaper
company
 Also a CL defence of QP for fair and accurate reporting of public documents. This
qualified privilege applies to public records obtained under the disclosure
requirements of Freedom of Information legislation.
4. Responsible Communication on a Matter of Public Interest
Grant v. Torstar (2009, SCC)
Facts: Grant sued the Toronto Star in defamation for an article the newspaper published
about a proposed private golf course development on Grant’s lakefront estate. The
story aired the views of local residents who were critical of the development’s
environmental impact and suspicious that Grant was exercising political influence
behind the scenes to secure government approval for the new golf course. The reporter
attempted to verify the allegations in the article, including asking Grant for comment,
but Grant chose not to provide a comment.
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Issue: Can a new defence be created that won’t unduly curb free expression and chill
reporting on matters of public interest the way that the law of defamation currently
does?
Holding: YES!
Rule: Creates new defence of responsible communication on matters of public
interest.
- a balanced approach to libel law properly reflects both the interests of the P and
the D
- this new defence is “available to anyone who publishes material of public
interest in any medium.”
TEST for responsible communication:
1) the publication must be on a matter of public interest; and
a. enough that some segment of the community would have a genuine
interest in receiving information on the subject…
2) the defendant must show that publication was responsible, in that he or she was
diligent in trying to verify the allegation(s), having regard to all the relevant
circumstances. Relevant factors (guidelines – non-exhaustive):
a. the seriousness of the allegation (proportionality)
b. the public importance of the matter (in many cases, the public
importance of the matter may be inseperable from its urgency).
c. the urgency of the matter – whether the public’s need to know required
the defendant to publish when it did
d. the status and reliability of the source
e. whether the P’s side of the story was sought and accurately reported
f. whether inclusion of the defamatory statement was justifiable (necessary
to communicating on a matter of public interest).
g. whether the defamatory statement’s public interest lay in the fact that it
was made rather than it s truth
- an exception to the “repetition rule” called reportage
- if a dispute is itself a matter of public interest and the allegations are
fairly reported, the publisher should incur no liability even if some of
the statements made may be defamatory and untrue, provided:
o 1) the report attributes the statement to a person, preferably
identified, thereby avoiding total unaccountability
o 2) report indicates expressly or implicitly, that its truth has not
been verified
o 3) the report sets out both sides of the disput fairly
o 4) the report provides the context in which the statements
were made
Analysis:
First argument: grounded in principle. The existing law is inconsistent with the principle
of freedom of expression as guaranteed by s. 2(b) of the Charter. It’s argued that the
traditional rule has a chilling effect that unjustifiably limits reporting facts, and strikes a
balance too heavily weighted in favour of protection of reputation.
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- getting at the truth is important – fear of being sued for libel may prevent the
publication of information about matters of public interest
- media reporting on matters of public interest engages the first and second rationales
of the freedom of expression guarantee in the Charter
- publishing matters of public interest advance the free expression rationales of
democratic discourse and truth-finding
Second argument: grounded in jurisprudence. Many foreign CL jurisdictions have
modified the law of defamation to give more protection to the press, in recognition that
the traditional rules inappropriately chill free speech.
5. Fair Comment (Linden and Klar)
 Fair comment on matters of public concern or interest is protected from liability
for defamation provided it is based on facts
 2 main categories:
1. those matters in which the public has a legitimate interest, such as
government activity, political debate, and proposals by public figures, and
public affairs generally
2. works of art displayed in public such as theatrical performances, music
and literature
 (in a democratic and culturally vibrant society, a discussion of these matters
must be unfettered)
 MUST be based on FACT. They cannot be presented so that they appear to be
allegations of fact
 Jury decides whether the communication is fact or comment
 Unless the facts upon which the comment is based are true and undistorted, the
comment cannot be “fair”
 Comment does NOT necessarily have to be reasonable
o Unreasonable ppl are allowed to express their views too
 As long as the comment represents a legitimate opinion honestly held, it will be
protected
 Jones v. Bennett: the defence of fair comment will fail if the “sting of the words
complained of do not appear to be comment at all”
Fair comment – then (Chernesky)…
1. Comment must be on a matter of public interest
2. Comment must be based on fact
3. Comment must be recognizable as comment
4. Comment is “fair”; expresses an opinion honestly held by the D (Subjective test)
- fair comment can be defeated by proof of malice!
FAIR COMMENT – NOW (WIC Radio)…
1. Comment must be on a matter of public interest
2. Comment must be based on fact
3. Comment must be recognizable as comment
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4. Comment is “fair” = could any person honestly express that opinion on the
proved facts? (objective test).
WIC Radio v. Simpson (2008, SCC)
Facts: Radio talk show hosted by appellant Mair, a well-known and sometimes
controversial commentator on matters of public interest in BC. The target of his
“editorial” was the respondent Simpson a widely known social activist. The context was
a public debate over the introduction of materials dealing with homosexuality in public
schools. Mair and Simpson took opposing sides in the debate about whether the
purpose of this initiabive was to teach tolerance of homosexuality or to promote a
homosexual lifestyle. Simpson was a leading public figure in the debate, and the TJ
found that she had a public reputation as a leader of those opposed to any positive
portrayal of gay lifestyle.
- Whatever view one may take of Mair’s commentary, the factual basis of the
controversy was indicated in the editorial and widely known to his listeners. In the
absence of demonstrated malice on his part (which the trial judge concluded was not a
dominant motive), his expression of opinion (FAIR COMMENT), however exaggerated,
was protected by the law.
- TJ foind defence of fair comment; Court of appeal overturned
Issue: Is the defence of fair comment available to Radio Talk Show host?
Holding: Yes.
Rule: Elements of fair comment defence (Dickson J’s dissent in Chernesky) that the
majority in WIC said now constitute the test for defence of fair comment:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognisable as
comment;
4. (d) the comment must satisfy the following objective test: could any man
honestly ex-press that opinion on the proved facts? (WIC changed the test for
the fair comment defence to this!)
5. (e) even though the comment satisfies the objective test the defence can be
defeated if the plaintiff proves that the defendant was actuated by express malice.
1.
2.
3.
a.
Onus is on P to prove malice on D’s part (WIC)
Introductory Concepts
Introduction to Negligence
As opposed to trespass:
 Injury can be caused indirectly
 Must have ACTUAL damage
 P has to establish the fault of the D
 Requires recognition of a “duty” relationship (initially greatly restricted)
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The Components of a Negligence Action
(1) Duty of Care – A DoC is owed to persons who fall within the ambit of foreseeable
risk created by the defendant’s actions. This is the first thing that a Court will consider. If
they find no duty, there is no claim.
(2) Standard of Care –
i) What would a reasonable person have done in the circumstances (how ought the Def.
to have acted)? This is the SoC.
ii) Did the defendant breach that standard of care? Was the Def negligent (fall below
the standard)? This is a fact-based concern.
(3) Causation – Did the Def’s negligence cause the Pl. loss? (“but for” test). If the Def. is
not the cause then irrespective of (1) and (2) the Def. will not be held negligent.
(4) Remoteness – Def. is only liable for losses that are a foreseeable result of his/her
conduct. Which of the Pl. injuries should the Def. be held liable? Which are sufficiently
proximate? This is a legal policy question – to what extent is the Def. responsible?
(5) Defences – Should the Pl. conduct be taken into account (contributory negligence,
voluntary assumption of risk, illegality)? Limitation periods are also important.
(6) Damage/Actual Loss – A Def. will not be held liable if the Pl cannot prove that they
have suffered a legally recognized type of loss. Generally, monetary damages are
awarded that approximate the loss suffered.
Types of Liability
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Absolute Liability: The defendant is reliable regardless of what happened.
(mostly a hypothetical construct given as the far end of the spectrum)
Strict liability is usually as far as courts will go. Liability based on a particular fact
situation or legal relationship. The D may not have acted intentionally or even carelessly
at all but may still be liable, subject to some defences.
Vicarious Liability: Basically where an agent or an employee or a subordinate of
one party commits a tort, then the master, employer etc. are liable through their
vicarious liability relationship. Mostly seen in an employer relationship. There are limits
to it. (1) Must be an employee/employer relationship. (2)The tort must have occurred as
part of their employment duties. This is often a reason why employers will often try to
classify their employees as independent contractors – to limit liability.
jointly liable: Each defendant is liable for the full amount (it doesn’t matter what
their relative negligence is, their plaintiff can recover from each of them the full
amount)
Severally liable: Each defendant is liable for their share of the damages.
Jointly and Severally liable: The default in Canada. Each defendant is liable for
the full amount – the Plaintiff can claim the full amount from any of the defendants. The
defendant who has to pay can then go after the other tortfeasors for anything in excess
that was their fault that they had to pay.
Dunsmore v. Deshield
Facts: Dunsmore broke glasses playing football, injuring his eye; lenses were supposed
to be Hardex (extra-stong) but weren’t. Descield is the optometrist who sold he glasses.
Neither Deschield nor the manufacturer (Imperial) tested the glasses.
Issue: Was Deschield or Imperial (the manufacturer) liable in negligence for not testing
glasses to ensure they were Hardex lenses?
Holding: Yes – they met all of the elements of the tort of negligence. Court held that
Deschield and Imperial were Joint and Severally liable. They actually awarded Descield
indemnification against Imperial. Imperial could try to sue Deschield if they wanted to
get his percentage he was at fault for.
Rule: goes through the whole test (see slides) – discusses what joint and several liability
means.
Strict Liability

“liability without fault”
Blewman v. Wilkinson  gives us definition of strict liability: “…if and when an
excavation which has interfered with the support of land by land causes damage by
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subsidence, the landowner for the time being has a right of action against the original
excavator. Liability is strict in that negligence need not be proved…”
Rylands v. Fletcher
- the case that gave rise to the modern idea of strict liability
Facts: The D constructed a reservoir on his land, the water broke through into a mine
shaft and flooded his neighbour’s land.
Issue: Is the defendant liable for the damage caused to P?
Holding: The elements of a cause of action
Rule: 4 elements to establish the Rylands v. Fletcher tort of damage done to a
neighbour’s land:
1) the D has made a non-natural use of his land
- “it must be some special use bringing with it increased danger to others, and
must not merely be the ordinary use of the land or such a use as is proper for
the general benefit of the community. (Tock)
2) the D brought onto his land something which was likely to do mischief if it
escaped
- whether something is “likely to do mischief if it escapes” envisions at least
some element of foreseeability (Windosr v. CPR)
3) the substance in question escaped; and
- normal migration of the substance and intended consequence of the activity
of D’s land is not sufficient (for this, would have to claim negligence or
nuisance)
- the harmful substance MUST have ESCAPED as a result of some sort of
unintended mishap or accident
4) damage was caused to the P’s property or person as a result of the escape
5 main defences to the Rylands v Fletcher Rule:
(ONUS on DEFENDANT)
(existence of these defences has diluted the power of Rylands v. Fletcher and have
brought it closer to negligence theory.
1) Consent of the P, especially where P benefitted
- In the same sense as consent seen intentional torts and negligence
- When consent is expressly given there is rarely any problem with it
- Implied consent can be more difficult to handle
- Where there is not benefit to the P, the court is less likely to imply consent
2) Default of the P
- Akin to the defence of contributory negligence
o Ex: a mine owner was denied compensation when he carelessly
worked his mine under the D’s cnal, causing himself damage by the
flooding
o Ex: when a horse died after it reached over into the D’s property and
ate from poisonous tree, the owner was refused compensation
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3) Act of God
- Scope has been limited to those circumstances which “no human foresight
can provide against and of which human prudence is not bound to recognize
the possibility”
- Ex: a high wind is NOT an act of God unless it is of “such exceptional strength
that no one could be reasonably expected to anticipate or provide against it”
4) Delierate Act of Third Person
- The D will be exempted from strict liability if they can prove that the escape
in question was caused by a third person’s conscious act of volition (i.e. it
must have been done deliberately)
- If it is forseeable that a third party person may interfere, even negligently,
strict liability may still be available
5) Legislative Authority
- Where an activity is authorized by legislation, no strict liability is imposed
unless the D is found to have been “negligent”
- Courts cautious to use this defence too broadly in order t protect the
principle of strict liability
- Onus of proof is on the D to demonstrate that their otherwise tortious
conduct was authorized by the legislation and that the damage caused was
inevitable
Abraham, “Rylands v. Fletcher: Tort Law’s Conscience”
Smith v. Inco says that “natural” or “non-natural” should be looked at in context
- if looking at the use of the land, must ask: what kind of land is it? Is it
an industrial town? Non-industrial town?
- Refinement of nickel was not a “non-natural” use of the land b/c the
refinery was located in an industrialized part of the city and was
operated in a manner that did not create risks beyond those
incidental to most industrialized operation.s
Tock v. St. John’s Metro  P brought a cause of action based on Rylands v. Fletcher due
to flooding of their basement that was caused by a storm sewer maintained by D that
overflowed during a heavy rainstorm
- this basis of P’s action was rejected in court
- the use of a sewage system is NOT a non-natural use becaue it is
ordinary and proper for the general benefit of the community
- keep in mind that non-natural use is contextual – Tock takes this into
consideration here
Vicarious Liability
At the end of ANY TORT analysis, whether intentional or negligence, ask if there is a
principal (i.e. employer) who could be held vicariously liable
- Not an independent cause of action: employee must commit tort and be found
liable for there to even be a VL claim against an employer
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One of the most important applications of strict liability
Rationale for VL: the party that created the risk of harm should be held
responsible for the loss (because they created the situation of potentially
forseeable harm), and NOT the innocent party
- Policy reasons for Vicarious Liability:
a. The employer put the risk out into the community, so they should be
responsible for the harm they put out there.
b. Employers usually in a better position to compensate
c. VL acts as a deterrent to unsafe practices – employers are going to be
more active in training/supervising their employees in ensuring these
types of activities don’t happen again
d. It best achieves economic efficiency – employer can get insurance and
recover loss
NOTE: an employee “loaned” to another employer may excuse the original employer
from V.L.
- A DUTY delegated to an independent contractor likely is the responsibility of the
independent contractor
- BUT some duties cannot be delegated, eg: a school board owed a “nondelegable” duty of care to schoolchildren despite hiring an independent
contractor to teach swimming lessons (Woodland v. Essex County)
Woodland v. Essex County:
 When are duties non-delegable?
1. Inherently dangerous activities; or,
2. Generally, where there is a duty with three main characteristics:
a) Antecedent relationship between D and claimant
b) Positive or affirmative duty to protect
c) Duty is personal to Defendant (i.e. work may be delegable, but duty is
not)
Cases involving non-delegable duties generally include the following:
o Claimant is vulnerable or dependent;
o Defendant usually has element of control over claimant;
o Claimant has no control over how duties are performed;
o The delegated function is integral to the positive duty upon the
Defendant;
o Third party has been negligent not in some collateral respect but in “the
performance of the very function” that was assumed and delegated by
Def.
-
67122 Ontario Ltd. V. Sagaz
Facts: The original supplier of Canadian Tire’s synthetic car seat covers suffered
substantial losses when it was replaced by competitor Sagaz because a bribe was paid
by Sagaz’s consultant to the head of Canadian Tire’s automotive division.
Issue: Is Sagaz, the competitive supplier, vicariously liable for the bribery scheme
perpetrated by its consultant?
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Holding: No – the consultant was not an employee of the supplier but an independent
contractor.
Rule: A relationship between an employer and an independent contractor does not
typically give rise to a claim in CL.
- policy reason for this: an employer does not have the same control over an IC as
over an employee to reduce accidents and intentional wrongs by efficient
organization and supervision.
In order to succeed in a claim for VL, 2 elements must be met:
1. the worker must be an employee of the employer to find the employer
vicariously liable
2. the tortious conduct has to be committed by the employee in the course of
employment
SCC looks @ 2 main policy considerations for finding VL:
1. an employer put the risk out into the community – they should be responsible
for the harm they put out there. Employer also likely better able to compensate
victim than their employer.
2. Deterrence – employers are in a better position to ensure that similar incidents
do not happen in the future (training etc.)
Analysis:
- in this case they said: just because a K says an employee is an independent
contractor doesn’t mean a court will follow this – they will look at the NATURE
OF THE RELATIONSHIP
- in this case, Sagaz didn’t have enough CONTROL over their contractor for them
to be VL
- who has the opportunity to make profit?
- Who has control over the work being done?Who controls how the work is done?
- The ownership of tools/equipment
- Does the tortfeasor have the ability to hire helpers?
- Who has the risk?
- ….etc.
Bazley v. Curry
Facts: The Children’s Foundation provides homes for emptionally troubled children
aged 6 – 12. They provide substitute parents for the children that practice “total
intervention” in all aspects of the lives of the children it cared for. The organization
authorized it’s employees to act as parent figures and were to do everything a parent
would do, from general supervision to intimate duties like bathing and tucking in at
night.
Issue: Is the Children’s Foundation vicariously liable for their employee’s sexual abuse of
children in his care?
Holding: Yes
Rule: SALMOND TEST: employers are vicariously liable for:
1) employee acts authorized by the employer; or
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2) unauthorized acts so connected with authorized acts that they may be
regarded as modes (albeit improper modes) of doing an authorized act
(the SCC said that employer can be VL for intentional torts under 1) [but unlikely to
authorize intentional torts] and 2))
1) are there precedents that say that this type of relationship forms
VL? (if yes, you could stop here and say YES, VL)
2) Is there a sufficient connection between the act that was committed
and the type of work?
- A) look for: a connection between the creation or enhancement of
risk and the wrong that accrues
- B) Time, place, foreseeability all play a role (imposing costs
unrelated to risk turn the employer into an “involuntary insurer”
- (This is where we look @ Bazley factors to determine sufficient connection between
employment and harm). (non-exhaustive list of things the court will look at:
BAZLEY FACTORS:
a. Did the employer give the employee an opportunity to abuse
their power?
b. To what extent did the wrongful act further the employer’s
aims?
c. To what extent was the wrongful act related to “friction,
confrontation or intimacy” inherent to the employer’s
enterprise?
d. What was the extent of the power conferred on the employee
in relation to the victim?
e. How vulnerable are potential victims to the wrongful exercise
of an employee’s power?
Analysis: VL is a form of “strict” or “no-fault” liability b/c it is imposed in the absence of
fault of the employer
- the more an enterprise requires the exercise of power or authority for its successful
operation, the more materially likely it is that an abuse of that poer relationship can be
fairly ascribed to the employer
- special attention should be paid to the existence of a power or dependency
relationship, which often creates a considerable risk of wrongdoing.
Jacobi v. Griffiths
Facts: Griffiths was the program director of a club with the objective “to provide
behaviour guidance and to promote the health, social, educational, vocational and
character development of boys and girls.” Griffiths developed friendships with the
children at the club, but this developed into sexually assaulting one male and one
female child.
Issue: Is the club vicariously liable for Griffith’s sexual assaults that occurred with the
children who participated in the club?
Holding: No (court applied the test from Bazley, court split 4-3)
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Rule: there must be a STRONG LINK between the enterprise and the opportunity for
abuse in order to impose vicarious liability.
Analysis: In Bazley, there was a much more intimate relationship than there was here.
McLachlin’s DISSENT: (4-3 judgment) found the Club to be VL b/c the Club introduced
the offender to the community’s children and gave him special responsibilities and
powers over those children who were most vulnerable – they created an sustained the
risk that materialized. They would find that compensation for the harm that followed
should fairly be viewed as a cost of the club’s operations. The policy rationales
underpinning vl: compensation and deterrence, would support this conclusion
Negligence – Duty of Care
- the “duty of care” question does not usually arise in most tort cases b/c of precedent
(but more work if it’s a NOVEL situation)
EXAMPLES OF PRECEDENT DUTIES:
- motorist owes duty to others on the road
- physician owes a duty to patients
- manufacturer owes a duty to consumers (Donoghue v. Stevenson)
- a store or mall has a duty to invitees
particular duties of care:
- rescuers
- affirmative/positive action
- duty to warn
- duty to obtain informed consent
Donoghue v. Stevenson
- moved the law of negligence from a “closed list” of relationships that allowed liability
to an “open-ended and general concept of a relationship of proximity” that could be
applied to new situations  allowed expansion and development of the law of
negligence
Donoghue v. Stevenson The neighbor principle
Facts: Snail in bottle of ginger beer – bottle was opaque & sealed so that you couldn’t
see what is inside.
Issue: Does a manufacturer owe a duty of care to the ultimate purchaser/consumer to
take reasonable care that the article is free from defect likely to cause injury to health?
Holding: Yes – a duty of care is found by applying the neighbor principle
Rule: NEIGHBOURHOOD PRINCIPLE: “you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbor.”
Anlaysis: Who, in law, is a neighbor?  those who are closely and directly affected by
one’s actions who ought reasonably to have them in contemplation as being so affected
when their mind is directed to performing those actions (misfeasance) or omissions
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(nonfeasance)…that are reasonable foreseeable to cause injury (foreseeability)…to
persons who are closely and directly affected by my act that I ought to reasonably have
them in contemplation as being so affected (remoteness).
Cooper v. Hobart
Facts: Appellant (class of over 3,000 investors) brought an action against the registrar of
mortgage brokers claiming that they breached the duty of care that was owed to the
appellant and other investors. Appellant asserted that the registrar was aware of the
broker’s serious violations of the BC Mortgage Brokers Act and should have suspended
his liscence earlier and notified investors that he was under investigation.
Issue: Does a statutory regulator owe a private law duty of care to members of the
investing public for (alleged) negligence in failing to properly oversee the conduct of an
investment company liscenced by the regulator?
Holding: No, the registrar did not owe a duty of care to its investors.
Rule: SCC in Cooper v Hobart modified the Anns test to the following test for
determining whether there is a DoC:
1) PRECEDENT: Do the facts of the case bring it within an established category of
relationship where a duty of care has been recognized or does it fit in a closely
analogous category? If YES = prima facie duty exists (Childs v. Desormeaux).
IF NO, ask:
2) Do the circumstances disclose (burden on P):
(i) reasonably foreseeable harm;
(ii) sufficient proximity between a P and D (including “broad” policy
factors)? If YES, a prima facie duty exists
- Fraser v. Westminer gives us considerations for establishing
“proximity”:
- relationship btwn the parties
- physical proximity (nearness is space)
- assumed or imposed obligations
- close causal connetion btwn act/omission and harm
suffered
3) If a prima facie doC exists, can the D show any “residual” or “remaining” policy
factors that nonetheless justify denying liability? If YES, no duty of care will be
held to exist. (burden on D)
- “serious,” “overriding,” “convincing,” “compelling” policy reasons that
are “more than speculative” ; a “real potential for negative
consequences”
- note, once a prima facie DoC is established, it’s RARE for the court to
NEGATE that DoC due to policy reasons – but regardless, still have to go
thru this step
Anlaysis: Even if the loss was forseeable, there was no proximity. The registrar is a
statutory creation and therefore, there must be a DoC explicitly created in the statute.
Does not pass 1st stage of A/C test here.
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-
-
agency set up to benefit public as a whole – if they’re always going to be looking
over their shoulders to protect individuals, it won’t be protecting the public as a
whole.
Keep in mind “GROSS NEGLIGENCE” often found in statutory provisions limiting
liability
R. v. Imperial Tobacco Canada DoC in a special relationship
Facts: Imperial alleged that Canada negligently misrepresented the health attributes of
low-tar cigarettes to consumers and that they made negligent misrepresentations to the
tobacco companies. The facts pleaded to not bring either claim within a settled category
of negligent misrepresentation.
- Although HCC was a regulator, but the claim went beyond that – this was essentially a
commercial relationship.
Issue: Does Imperial Tobaccos third-party claim against Canada pass the stage 1 analysis
of the Anns/Cooper analysis, giving rise to a prima facie duty of care?
Holding: Yes, they passed this stage (ended up failing @ stage 2)
Rule: A “special relationship” between the parties will likely satisfy the foreseeability
and proximity aspects of Anns/Cooper.
 with a public authority involved, duties may arise (a) via statute or (b) via specific
interactions or (c) both
 factors to consider in establishing a “special relationship”:
- direct financial interest by defendant;
- professional skill or knowledge of defendant;
- advice provided
o in the course of business;
o deliberately; and/or
o in response to a specific request
 foreseeability does not include the precise means (or “vehicle” by which liability may
arise – only that harm of some sort could result from the negligent act or omission.
Anlaysis: Keep Kamloops case in mind for how this applies for public authorities
- btwn private parties, legislative scheme probably not important, but in schemes with
public bodies, looking @ legislation is important
- met reasonable foreseeability aspect b/c it’s R.f. that if you give bad/negligent advice
to the tobacco companies, they can be expected to follow it
Summary of Anns/Cooper Jurisprudence
Duty of Affirmative Action – Nonfeasance and Misfeasance
Horsley et al v. MacLaren et al. – boater falls overboard
Facts: boater falls overboard.
Issue: Did boater have a duty to rescue Horsley?
Holding: Yes – an exception to the general rule that there is no duty to rescue at CL:
where there is an “invitor/invitiee” relationship.
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Rule: General rule is that there is no duty to take positive action in aid of another no
matter how helpless or perilous his position is.
Klar suggests 5 exceptions, where “rescue” or “affirmative action” cases generally fall
into these categories:
1) Relationships of economic benefit (Jordan House)
2) Relationships of control or supervision; (discussed by Klar in casebook)
3) Creators of dangerous situations (Oke v. Weide Transport)
4) Reliance relationships; and/or Zelenko v. Gimbel Bros
5) Statutory duties
(there may be some overlap amongst these categories)
 note that even if initially no duty to rescue, once you begin a rescue, you must take
reasonable care in performance of that rescue
1) Jordan House Ltd. V. Menow and Honsberger – positive duty imposed on the bar to
assist drunk patron getting home safely
Facts: Menow went to a local hotel, got drunk, got ejected from a bar right by a
Highway, and got hit by a car. The driver who hit him was sued in negligence for hitting
him, but the driver goes after ordan House (the bar that ejected him) b/c they overserved him and pushed him out into the night.
Issue: Did Jordan House owe Menow a DoC?
Holding: Yes!
Rule: In a commercial relationship where the party is profiting from the person who gets
injured, there can be found a positive duty of care.
 Laskin J said that JH had a positive duty to take charge of Menow and make sure he
got home safely. (POSITIVE DUTY)
 Ritchie J said JH had a duty to stop serving him. His reason was a more traditional
duty to refrain FROM HARM. (NEGATIVE DUTY)
Anlaysis: Factors looked at in this case: Menow was frequently known to come to the
bar and get too drunk. JH also had the economic benefit to over serve him b/c they
make money from serving him. The tavern owner specifically told his staff not to serve
Menow alcohol unless he was with someone responsible (they over-served him
anyway).
 apportionment of damages here was split equally btwn Jordan House, driver and
Menow (contributory negligence).
Childs v. Desormeaux social hosts
- main difference with social hosts = they are not making a profit from their drunk guests
- NO real test for social hosts – but look at indicia
(would most likely hinge on a standard of care question)
Facts: Childs was hosting a BYOB party. Desormeaux, impaired, left the party and drove
away. He got in an accident that seriously injured Childs.
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Issue: Di social hosts who invite guests to an event where alcohol is served owe a legal
duty of care to third parties who may be injured by intoxicated guests?
Holding: Does hosting a party where alcohol is served (without more) create a positive
DoC on the host to members of the public who may be affected by the guest’s conduct?
Rule: No  no reliance on host to monitor. Social host neither undertakes nor is
expected to monitor the conduct of guests on behalf of the public.
 IF ON EXAM: discuss indicia. Could argue that a host who continues to serve alcohol
to a visibly inebriated person knowing that they will be driving home has become
implicated in the creation or enhancement of a risk sufficient to give rise to a prima
facie duty of care”
3 categories where a positive duty to prevent drinking & driving imposed:
1) intentionally attracts and invites third parties to an inherent and
obvious risk that he or she created or controls;
2) Paternalistic relationship (parent-child, teacher-student)
3) Ds exercise a public function or commercial enterprise that
includes implied public responsibility
 note: 3 elements/concerns:
- what role did the D have in creation or control of risk?
- What impact would a DoC have on autonomy of person affected by a positive
duty to prevent drinking and driving?
o Right of ppl to engage in risky activities
o Permits third parties not to get involved
o Only where there is a “special relationship” is there a positive duty to get
involved
Anlaysis: Since this is a NOVEL DoC, they went thru the Cooper v. Hobart test:
1) Prima facie DoC? Injury was not reasonably foreseeable. Lack of evidence that
hosts knew of Desormeaux’s intoxication.
2) Proximity?  nonfeasance vs. malfeasance.
- facilitating consumption of alcohol does not in itself create risk
- SCC says: real argument is – having organized the party, hosts permitted
their guest to drink and then drive.
2) Relationships of Control or Supervision (Klar, “Tort Law”)
(another situation where courts may impose an “affirmative action” DoC)
- voluntary assumption of duty of positive action
- duty to prevent others from harming them. Ex:
o parent and child
o teacher and pupil
o employer and employee
o landlord and tenant
o hospital and patient
o prison and inmate
o (in all of these scenarios, “the freedom of action of the subservient party
is limited by the dominant party”
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EX: Seatbelts
- The Traffic Safety Act
o If a person under 16 in vehicle, there is a statutory duty of supervision
and control of the driver to ensure that the person under 16 is wearing a
seatbelt.
 For failing to ensure minor wearing a seatbelt, the driver may face
 Statutory penalties under the Traffic Safety Act
 Liability for injuries suffered by that minor
 Note that statute provides guidance for what society should do in
assessing whether or not there should be a DoC
3) Oke v. Weide Transport – Creator of dangerous situation
Facts: D accidentally struck a road sign – leaving pole exposed, and did not notify
anyone. Next day another driver was impaled. MBCA said no liability for lack of
foreseeability.
Issue: Was the driver under a duty (statutory or otherwise) to the deceased or to
highway users generally to do anything about the broken sigh post?
Holding: No (dissent discusses), but case wasd decided on the issue of foreseeability and
remoteness.
Rule: If you cause a danger, even through no fault of your own, you have a duty to take
reasonable steps to remove that danger where it is reasonably foreseeable that a
person may be harmed as a result.
4) Zelenko v. Gimbel Bros.- Reliance Relationships
Facts: P’s spouse became sick in the D’s store. The D undertook to administer first aid
and kept the spouse for 6 hours in the store’s first aid room with no further medical
attention.
Issue: Did D owe P a DoC?
Holding: YES – the store created a duty through a positive action. If they would have just
left her there and not tried to help/interject, they would not have had a DoC.
Rule: Where a person takes on the responsibility to rescue/help/act, that person now
has a duty to do that act. By helping/interjecting, they prevented others from helping
her. They created RELIANCE that they would take care of her.
Anlaysis: General rule is that the D would not have been under a legal duty to assist a
sick person, but the fact that he began helping her created a reliance relationship.
Mercer v. SE&C Rwy Co. – ex. of a reliance relationship
Facts: D had made a practice of eeping a wicket gate locked to pedestrians when a train
was passing. Gate was left unlocked due to “carelessness” (i.e. negligence) of the D’s
employee. P was injured.
Issue: Did D create a reliance relationship that caused him to have a DoC?
Holding: Yes.
Rule: “If a self-imposed duty is ordinarily performed, those who knew of it will draw an
inference (i.e. will act in reliance) if on a given occasion it is not performed.”
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 to prevent that inference of reliance, you would need to give notice
R. v Nord-Deutsche et al.
Facts: The Crown was under no duty to put up range lights, but they had always had
them up, but Crown employees negligently permitted a set of the lights to become
displaced. The lights created a reliance among ship pilots to navigate.
Issue: If an accident happens, would the Crown be liable?
Holding: Yes
Rule: Although there was no statutory duty to maintain those lights, there was a
“breach of duty on the part of the servants of the Crown responsible for the care and
maintenance of the range lights…upon which lights mariners were entitled to place
reliance.”
Analysis: Like the Good Samaritan discussion under rescuers…normally don’t have a
duty to rescue, but if you do go and help someone and mess it up, you could be held
liable. But if you never even tried to help in the first place, you can’t be held liable.
Rescuers and Psychiatric Harm
Hay v. Young
Facts: P was getting off a bus. On the other side of the bus an accident happened, killing
a cyclist. She did not see the accident, but she heard it. After the cyclist’s body was
removed, she say blood on the road which she said led to a nervous shock which caused
her to have a stillborn child.
Issue: She sued cyclist’s estate for negligence. Did the cyclist owe her a duty of care?
Holding: No. this was not a reasonable effect that could have been foreseen.
Rule: Nervous shock of a third party walking by and seeing blood was not reasonably
forseeable to a reasonable person.
Anlaysis: Note that this is an objective test – not subjective to the claimant.
- therefore the question to ask for reasonable foreseeability is: could a reasonable
hypothetical observer have reasonably foreseen that anyone “placed as P was” could be
affected in the manner in which she was? …answer here was no.
Reasonable Foreseeability (re DoC stage vs. Remoteness stage)
 Note that this concept appears both under Duty and under Remoteness
◦ The line is not clear, but:
 At the “Duty” stage, it’s about whether the relationship between
the parties is sufficiently close
 At the “Remoteness” stage, is about whether the injury is
foreseeable by the reasonable person
 Of course you only consider at the “Duty” stage for a novel claim
 Does this mean that once a precedent is established the
remoteness inquiry is irrelevant – that R.F. is assumed?
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 In Mustapha, as far as mental injury is concerned, the person of “ordinary
fortitude” is considered at both stages
Mustapha v. Culligan of Canada Ltd.
Facts: Shop owner sees a dead fly in his Culligan water cooler bottle before he was
about to use it. P claimed that as a result, he was depressed and incapable of working.
Issue: Did Culligan owe Mustapha a DoC?
Holding: Yes.  established category of a manufacturer owing the consumer a DoC
(Donoghue)
Rule: Test for establishing a Duty in regards to psychiatric harm: Is it reasonably
foreseeable that a person of normal fortitude or sensibility is likely to suffer some type
of psychiatric harm as a consequence of the defendant’s conduct? (objective test)
- if yes, a duty is established
Anlaysis: This case establishes that a duty of care can be owed with respect to
someone’s psychiatric harm.
- Culligan won this case on other grounds even though a DoC was established to
Mustapha
- for Psychiatric Harm, establishing causation and quantifying damages can be difficult
- all Mustapha had to do was establish that a reasonable person could have experienced
SOME kind of psychiatric harm, then the fact that he was extra sensitive is fine (thin
skull rule  take victim as you find them) to establish a DoC.
Reasonable foreseeability = a threshold test
 Mustapha lost @ the remoteness step: He failed to show that it was reasonably
foreseeable that a person of ordinary fortitude would suffer serious injury from seeing
the flies in the bottle of water he was about to install.
Horsley v. MacLaren
Facts: McLaren was driver and owner of a boat. Matthews fell overboard. MacLaren
attempted to maneuver the boat to matthew’s position, who appeared unconscious.
After Matthews fell in, Horsely jumped in the water to attempt to rescue him.
Matthews’ body not recovered. Horsley pulled from water but could not be
resuscitated. Water was extremely cold; Horsley died of cardiac failure resulting from
exposure to cold water. Boat operators testified that MacLaren’s maneuvering of the
boat after Matthews fell was not up to the standard of a properly-trained boat captain.
Issue: Does the master of a boat owe a duty to come to the assistance of a passenger
who falls overboard, even though this occurred through no fault of the master?
Holding: Yes, they must take reasonable steps, but the court still held judgment in
favour of the D MacLaren because he was not negligent – he simply made an error in
judgment.
- McLaren did not cause the fall into the water, and Matthews would have died
immediately upon impact with water. Thus, though the duty would have existed if
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Matthews had been alive, Matthews almost certainly immediate death means
MacLaren’s negligence in the rescue was not the cause of Matthews’ death.
Rule: ESTABLISHED DUTY OF CARE: where D affirmatively undertakes a rescue
operation, he has assumed a duty to act.
ESTABLISHED DUTY OF CARE: Where there is a special relationship between D and P,
there is a special duty to aid and to rescue. (special relationship here = invitor/invitee
relationship).
 there is NO general duty to rescue a person who is in danger through no fault of D
- BUT where D causes a situation of danger requiring another’s rescue, D has an
obligation to perform the rescue
Anlaysis:
 Moddejonge v. Huron County  As a result of the negligence of a school, 2 students
get into difficult swimming. A third student attempts to rescue them, but dies in her
attempt. Her family sues school for negligence in creating the need for rescue in the first
place (negligent in their supervision of the swimmers creating a situation of peril that
induced the girl to attempt to rescue them).
 although the general rule is “there is no general duty to assist anyone in peril” there
are 5 categories of exceptions where someone might have a positive duty of care to
rescue – there was a special relationship here.
 but Moddejonge’s family failed in their negligence claim to the school, because her
efforts constituted a rash and futile gesture (wehre there was no chance of the rescue
succeeding and the risk to the rescuer was very high)
Corothers et al. v. Slobidan et al. (1975, SCC)
Facts: Poupard was driving on the wrong side of the road and causes a collision – he’s
killed in the accident. Corothers attempts to assist the injured and leaves the accident
scene to flag down help. Slobidan, driving below the speed limit and with his lights on
low beam, sees Corothers and turns towards the ditch (thinking there’s an accident
ahead). Slobidan didn’t apply the brakes properly and the trailer jack-knifed, injuring
Corothers.
Issue: Did Poupard and/or Slobidan owe Corothers a DoC?
Holding: Poupard = yes! Mrs. Corothers acts in attempting to flag down approaching
traffic were perfectly normal reactions to the cry of distress and was a “reasonably
foreseeable consequence of Poupard’s negligence (for driving on the wrong side of the
road) that was the cause of Corothers’ injury.”
Slobidon = No! “faced with a gesticulating woman on the side of the highway…he was
acting in a moment of imminent emergency” so that “his error of judgment was not
actionable negligence. [like MacLaren’s rescue attempt in Horsley v. MacLaren!!]
Rule: A rescuer may be able to claim if injured in the course of rescuing if the person
they are rescuing was negligent and it was reasonably foreseeable that someone would
come to their aid to rescue them.
 you can remain a “rescuer” even if you leave the scene of an accident – the original
tortfeasor may still owe you a DoC and remain liable
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- (there are definitely scenarios where this link si broken, but it was not here,
since Corothers was attempting to get help for Poupard._
Duty to Warn, Intermediaries, and Duty to Obtain Informed Consent
-
-
Manufacturers of goods have a positive “duty to warn” b/c:
Consumers are in a position of reliance on manufacturers
A manufacturer can be in breach under any (or all of) these categories
o Its duty to warn consumers of dangers associated with its product
o Its duty to take reasonable care in design; and/or
o Its duty to take reasonable care in manufacture
(not worried about self-evident dangers like that a knife may cut, that one may
fall while skating etc.)
concern is dangers that the consumer has no way of discovering  the duty is
continuing one while the consumer uses the product
physicians have a duty to warn of the dangers of medications (they are “learned
intermediaries”) AND a positive duty to their patients to warn of the risks of
medical procedures
Duty to Obtain Informed Consent
Reibl v. Hughes
Facts: The P underwent surgery performed by the D. As a result of the surgery the P
suffered a stroke leaving him paralyzed and impotent. He sued for battery and
negligence, claiming lack of informed consent. That is, the doc did not properly inform
the P of the risks involved in undergoing this type of surgery. On the side battery issue,
found that your consent remains valid and therefore there is no battery, HOWEVER,
failure to disclose risks does not invalidate consent, but doctor may still be held
negligent.
 this particular procedure had around a 10% morbidity rate at that time
 there was no immediate need for the surgery
Issue: Was the doctor negligent in not telling the patient of the risks of the surgery?
Holding: Yes – a reasonable person (on a balance of probabilities) would not have
undergone this operation had they been warned of the full risks.
Rule: A surgeon has a duty to the patient to disclose all “material risks attending” the
recommended surgery. The more material the risk is, the greater the duty to disclose.
Generally, a risk that is a “mere possibility” need not be disclosed. What must be
disclosed under the surgeon’s duty will differ from case to case.
 Doctor also has a duty to disclose non-material risks when they know or ought to
know it would be of particular concern to P
Anlaysis: Tort of battery issue – in cases of “duty to disclose” – better to go for
negligence rather than battery b/c consent can quash batter claim but not negligence
claim.
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Duty to Warn: Learned Intermediaries
Hollis v. Dow Corning Corp. (1995, SCC)
Facts: Hollis had received breast implants – one ruptured while she was taking a baking
course that required rigorous upper-body movement. She was not warned by him of the
risks of post-surgical complications or of the possibility that the implants might rupture
inside her body. Was Dow liable to Ms. Hollis for failing to warn D. Birch adequately of
the risk of a post-surgical implant rupture?
Issue: Did Dow have a duty to warn its ultimate consumers of possible defects?
Holding: Yes – as early as 1979, Dow was aware that implant ruptures could cause
adverse reactions in the body arising from loose gel.
Rule: General rule: the duty to warn is owed directly by the manufacturer to the
ultimate consumer. BUT in exceptional circumstances, a manufacturer may satisfy its
informational duty to the consumer by providing a warning to a “learned
intermediary.”
Anlaysis: Learned intermediary rule came about through the tripartite informational
relationship btwn drug manufacturers/doctors/patients.
Application of learned intermediary rule here:
1) Did Dow have a duty to warn Ms. Hollis directly, or could it satisfy its duty to
warn her by warning a “learned intermediary (i.e. Dr. Birch)?
2) Assuming that Dow could properly discharge its duty to Ms. Hollis by warning
Dr. Birch, did Dow adequately warn Dr. Birch of the risk of post-surgical rupture
in light of its state of knowledge at that time?
Analysis: Buchan v. Ortho Pharmaceutical: The learned intermediary rule does not apply
in the case of oral contraceptives.  the manufacturers have an actual duty to warn
their consumers due to the substantial risks in the medication and the fact that the
physicians don’t really have an ongoing relationship with the patient in terms of this
medication.
Intermediate Examination
Ives v. Clare Bros Ltd. et al.
Facts: P bought a gas furnace from D. The furnace was defective – on 3 separate
occasions service people working for the installer failed to discover or remedy the
defect. P suffered carbon monoxide poisoning.
Issue: Did intermediate examination absolve the manufacturer entirely of liability?
Holding: No – the manufacturer and installer were joint and severally liable.
Rule: RARE to find courts holding the intermediary liable but not the manufacturer for a
defective product.
Smith v. Inglis (1978)
Facts: Smith was electrocuted by touching a stove and the fridge because of two
reasons: 1) defect in manufacture of fridge; and 2) lack of third prong on the fridge’s
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plug. Someone had cut the third prong off prior to Smith purchasing the fridge. The
manufacturer kew or ought to have known that it was common practice for someone to
cut off the third prong. The P was found to be contributorily negligent – he had
experience with such matters and should have checked the plug upon purchase or upon
installation.
Issue: Who owed Smith a duty of care here?
Holding: The manufacturer, Inglis. The repairer and the manufacturer were not held
negligent – Smith didn’t try to sue them, so their portion of their negligence was
imputed on Smith. Smith only sued Inglis, and the court said that since it was not
possible to establish degree of fault, they apportioned it equally btwn. Smith & Inglis.
Rule: In a case where there are intermediaries, P should sue everyone. Liability was
apportioned 50/50 here – Smith was held contributorily negligent.
Duty of Care, Economic Loss and Concurrent Liability
o Pure Economic Loss = financial loss without any corresponding injury, death or
property damage (ex: loss of investment, loss of profits, financial penalty)
o PEL claims are found in different categories
o Different policy considerations for different categories
o A policy argument that can be made for all pure economic loss categories 
courts don’t want to step in when the parties could have contracted for
something.
To decide if this could be a claim that falls into the precedent pure economic loss
category, need to see if it fits into one of these 5 categories or PEL:
1) Negligent misrepresentation
2) Negligent performance of a service
3) Defective products or structures
4) Relational losses
5) Public authority liability
 If doesn’t fall into one of thee 5 categories, or doesn’t meet the test, then move on
to the Anns/Cooper analysis to see if a duty is found. BUT NOTE: the textbook authors
say that in many cases, the courts will prefer not to find a duty owed, because they
would prefer the contractual allocation of risk (i.e. rather than create a new duty, it falls
upon the parties to contractually control their risk).
1) NEGLIGENT MISREPRESENTATION
o Different from fraudulent misrepresentation and innocent misrepresentation
o Prior to Hedley Byrne misrepresentation claims had to be founded in contract
o Hercules Management remains the leading case on neg. misrepresentation
o While courts don’t always use the 5-part test in Hercules Management, the key
elements for a duty of care in neg. misrep. Cases comes down to:
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o Reasonable foreseeability; and
o Reasonable reliance
R. v. Imperial Tobacco of Canada – Policy reasons that would negate a DoC
Facts: Same facts as above – this excerpt shows that Imperial Tobacco’s claim against
Canada FAILS at the “stage-two” policy consideration stage. (…i.e. #3 in Anns/Cooper
test). The defendant (i.e. CANADA) proved that there were serious policy concerns that
would warrant the finding that no duty exists.
Issue: Were there significant policy considerations that warranted finding that Canada
did not owe a duty to Imperial Tobacco not to make negligent misrepresentations?
Holding: Yes! Rare for Ds to successfully prove this, but Canada did here.
Rule: claims for negligent misrepresentation against a government agency may be
struck at the second stage of the Anns/Cooper analysis if they are matters of
government policy.
- what is government policy? “true” or “core” policy, in the sense of a course or principle
of action that the government adopted
Anlaysis: 4 policy considerations that Canada relied on: (1) that the alleged
misrepresentations were policy decisions of the government; (2) that recognizing a duty
of care would give rise to indeterminate liability to an indeterminate class; (3) that
recognizing a DoC would create an unintended insurance scheme; and (4) that allowing
Imperial’s claim would transfer responsibility for tobacco products to the govt from the
manufacturer, and the manufacturer “is best positioned to address liability for economic
loss.”
IS THERE A DUTY TO ANYONE?
Hedley Byrne v. Heller & Partners
Facts: P wanted to know if it should lend $ to a specific individual. He asked his bank if
the 3rd party’s credit was good – they passed question onto another bank. This bank sent
letter back to P’s bank saying 3rd party was a good risk. P invested $ into it and lost it. P
sued the bank that did the check and made the statement that they wer good/ The
letter disclaimed all responsibility for the advice.
Issue: Was the bank that made the “misstatement” liable?
Holding: The disclaimer was valid so no liability. BUT the court said that had there not
been a disclaimer, then the bank would have been liable for PURE ECONOMIC LOSS.
Rule: negligent words must be treated differently from negligent acts = ESTABLISHED
DUTY OF CARE: a duty can be imposed for negligent advice
 this was the case that eliminated the restriction against recovery for damage caused
by negligent words to contract law
Queen v. Cognos
Facts: Person was being recruited for a position in Ottawa. He went to the interview to
oversee a special project. He was told by the recruiter that there was funding in place
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for at least 2 years + it had been approved by the company. Relying on this advice he
quit his job and moved to Ottawa. However, after 2 months he found out that the
funding was not there and he got transferred and later let go. He sued in tort for
negligent misrepresentation.
Issue: Did the interviewer owe the interviewee a duty of care not to misrepresent the
facts?
Holding: yes! Reasonable reliance was foreseeale and there was a close relationship.
“actual reliance is a necessary element of an action in negligent misrepresentation and
its absence will mean that the P cannot succeed in holding the D liable for his or her
losses”
Rule: Duty exists on these facts (elements for the “proximity” step):
6) It was reasonably foreseeable that the P would rely on his
interviewer’s statements
7) Such reliance would be reasonable
Anlaysis: This case accepted Hedley Byrne in Canada
TO WHOM AND FOR WHAT LOSS DOES THE DUTY EXTEND?
Hercules Management Ltd. v. Ernst & Young
Facts: Auditor prepares report for shareholders. Individuals who are shareholders rely
to their financial detriment on the report and sue auditor. The auditor clearly owed a
duty of care to the company that paid for the report.
Issue: Does the D owe a duty of care to shareholders?
Holding: No, because one cannot sue someone for negligent misrepresentation for a
purpose that the statement was not intended to be used for.
 Court held that E&Y did actually owe shareholders a prima facie duty of care, but
LOST at the policy stage – courts are very wary of indeterminate liability – audited
financial statements may be used by many different persons (customers, creditors,
shareholders, takeover bidders). Losses attributable to an auditor’s negligence could be
out of proportion to the level of fault.
Rule: SCC reworked duty issue to conform to the Anns/Cooper test:
1) …didn’t talk about, there is no precedent for this
1) Reasonably Foreseeable: that special relationship + reasonable reliance would
result. If so, a prima facie duty is established
o Factors to consider for “special relationship”
o Usual question of “should the D ought to have reasonably
foreseen that P would rely on statements?
o Factors to consider for “reasonable reliance”
(Professor Feldhusen’s list of indicia of reasonable reliance):
o The D had a direct or indirect financial interest in the
transaction in respect of which the representation was made
o The D was a professional or someone who possessed special
skill, judgment or knowledge
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o The advice or information was provided in the course of the D’s
business
o The information or advice was given deliberately, and not on a
social occasion
o The information or advice was given in response to a specific
enquiry or request
2) Policy considerations: Indeterminate liability, increased litigation, social costs,
the true purpose of the misrepresentation
Anlaysis: “proximity” in cases of negligent misrepresentation arises through reliance by
the P on the D’s words. These 2 elements must be met: 1) D ought reasonably to foresee
that the P will rely on his or her representation; and 2) reliance by the P would, in the
particular circumstances of the case, be reasonable
 this case narrows the category of cases where recovery for economic loss resulting
from a negligent statement will be allowed to those in a known class who use the info
for a known purpose
RELATIONSHIP BTWN CONTRACTUAL TERMS AND NEGLIGENT MISREPRESENTATION
General rule (from Rafuse): “Where a given wrong prima facie supports an action in
contract and in tort, the party may sue in either or both, except where the K indicates
that the parties intended to limit or negative the right to sue in tort.”
o Note: parties can always contract out of common-law duties
o This (says the court) preserves a sphere of individual liberty and
commercial flexibility.
BG Checo v. BC Hydro
Facts: Case dealth with concurrent liability and overlap of tort/contract. Tenders were
called for to erect transmission towers. P was one of the bidders, and in the pre-tender
package it was represented to bidders that the right of way would be cleared by a 3 rd
party. P entered into K, and K too said that the right of way would be cleared. The right
of way was not properly cleared = they lost $. So, they sued the company for both
contract and negligent misrepresentation.
Issue: Could Checo still sue in tort when the misrepresentation was included in a
contract?
Holding:
Rule: Majority of the court held that concurrent liability (P can choose either cause of
action) if:
1) Where contract stipulates more stringent obligation than the general law of tort
would impose
o P would want to sue in contract b/c they would be able to recover more
damages under the higher standard, but they are not precluded from
suing in tort.
2) Where K stipulates a lower duty than would tort
o Ex: exclusion of liability in the contract – generally, the duty imposed by
the law of tort can be nullified only by clear terms
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3) Where contractual duty and tort duty are co-extensive – P can choose the more
advantageous one.
Anlaysis: Why sue in both? Note that they can have different limitation periods,
different amounts you can claim, etc.
2) NEGLIGENT PERFORMANCE OF SERVICES
- Where the D negligently performs a service “by deed as opposed to statement.”
- One important difference is that reliance is not a key part of negligent
performance of services claim – the damages are inflicted “directly”
- Textbook suggests that “assumption of responsibility” is therefore the effective
test of the duty of care for such cases
- Ex: a lawyer negligently prepared a will (a beneficiary signed as witness,
rendering the beneficiary’s bequest void). – the residue went in intestacy and
the beneficiary received only a portion of the intended bequest
o The beneficiary recovered for the difference from the solicitor (or, rather,
from his malpractice insurance) despite lack of reliance.
3) ECONOMIC LOSSES CAUSED BY DEFECTIVE PRODUCTS AND STRUCTURES
- Economic losses flowing from defective construction (ex: repair costs)
- We’re also dealing with third parties who would not necessarily have contractual
remedy
- Different principles apply if a person is directly injured due to negligent
construction
Winnipeg Condominium Corp No 36 v. Bird Construction
Facts: Winnipeg Condo Corp built a condo (allegedly negligently) and after the original
building owners had sold it to someone else (Ps), a part of it collapsed.
Issue: may a general contractor responsible for the construction of a building be held
tortuously liable for negligence to a subsequent purchaser of the building, who is not in
contractual privity with the contractor, for the cost of repairing defects in the building
arising out of negligence in its construction?
Holding: Yes.
Rule: where a contractor’s “building is found to contain defects resulting from that
negligence which pose a real and substantial danger [to the occupants or other persons
or property in the community], the reasonable cost of repairing the defects and putting
the building back into a non-dangerous state are recoverable in tort by the occupants.”
A lack of contractual privity between the contractor and the inhabitants at the time
the defect becomes manifest does not make the potential for injury any less
foreseeable. (i.e. doesn’t matter if the building is owned by a subsequent purchaser @
time defenct manifested).
 court reaffirms that tort & contractual duties can co-exist
 the duty to construct a building according to reasonable standards and without
dangerous defects exists independently of contract
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Anlaysis: Note – only costs of repair can be recovered to a point of bringing structure to
a point where it is acceptable.
 policy reason for this case: dangerous structures create dangerous situations for the
community at large
 distinction between “shoddy” and “dangerous” – when it’s dangerous, it has the
potential to create actual harm to the community
 “shoddy” construction doesn’t bring that same policy concern – it doesn’t have the
same potential impact upon other ppl – there would be a contractual remedy for this
- court noted they didn’t want to find a duty of care to subsequent purchasers
for the cost of repairing non-dangerous defects, b’c it would be going down the road of
indeterminate liability for the D
4) RELATIONAL ECONOMIC LOSSES
CNR v. Norsk Pacific Steamship
Facts: Public Works and Government Services Canada owned a bridge. CNR was the
main use (86%) of it. CNR and Public Works had a K where CNR would help maintain the
bridge. Their was a clause in their contract saying that CNR could not sue Public Works
for any disruption of use. Norsk (tortfeasor) came along and damaged bridge, bridge
was closed for several weeks and CNR suffered economic loss (think: potential loss of
work, contracts, delay in delivery, disgruntled clients).
Issue: Can CNR sue Norsk directly in negliegence for their pure economic loss??
Holding:
Rule: SINCE BOW VALLEY HUSKY, LA FOREST J’s “MINORITY” JUDGMENT PREVAILS:
*Exclusionary rule denies recovery for relational economic losses* 3 exceptions:
1) Where the claimant has a possessory or proprietary interest in the damaged
property;
2) in the “general average” cases (maritime law)
3) Situations where the P and property owner are in a relationship equivalent to
a “joint venture”
- McLachlin look @ certain factors for a “joint venture”: where the P’s
operations are so closely allied to the operations of the part suffering
physical damage and to its property that it can be considered a joint
venture with the owner of the property, the P can recover its
economic loss even tho the P has suffered no physical damage to its
own property. Ex: CNR was the bridge’s preponderant user, CNR was
recognized in the periodic negotiations surrounding the closing of the
bridge, CN supplied materials, inspection and consulting services for
the bridge.
McLachlin’s “majority”
- recovery in relational economic loss must be limited but should not be impossible.
Look for some connection (proximity) btwn. The P and D such that it is appropriate that
the D compensate P.
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Anlaysis: La Forest discusses the need for a firm exclusionary rule – to prevent the
“ripple effect” and indeterminate liability. A firm rule would allow parties to plan their
business affairs.
Bow Valley Husky v. St. John Shipbuilders (1997, SCC)
 used La Forest’s minority judgment – gave a CLEAR exclusionary rule + 3 exceptions
- if you are not in one of the 3 listed categories, you’re not getting compensation
for relational economic loss
Negligence – Standard of Care and Breach
 Common sense “test for breach”: Did the D depart from the standard of the
reasonable person? (Vaughan)
- look @ cases we’ve covered in class to assess the situation.
- Test is objective
- if there’s a custom in your society/community – it’s on the D to prove that to
the judge – ex: if no one salts their driveway in the area where you live and
someone slips and hurts themselves, it would be up to the D to prove that
-
-
exceptions:
Youth – must look @ whether the youth’s conduct would fall outside
the conduct of what a normal child in that category would do
Mental Disability or Illness
o If the D understood the duty of care s/he owed and was able
to discharge that duty, their actions would be voluntary and
capacity would exit.
o However, if the D can show that, as a result of their mental
illness:
 1) D had no capacity to understand or appreciate the
duty of care owed at the relevant time; or
 2) D had no meaningful control over their actions and
was unable to discharge their duty of care at the time
their conduct fell below the objective standard of care;
 the D will be relieved of tort liability
Physicians
o Held to a different standard – what would the “average
physician of the area that they work in” have done?
o “a duty to conduct their practice in accordance with the
conduct of a prudent and diligent doctor in the same
circumstances,” especially GP vs. specialist
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o urban/rural doctors – used to be held to different standards
but moving to rural docs being held to same standard as urban
docs
o Reibl v. Hughes: “duty to disclose”
Lawyers
o Lawyers are held to the standard of the “reasonably
competent”, “ordinary competent” or “ordinary prudent”
solicitor
o ELDER LAW CASE (McCulloch)
o Rural/urban “locality rule” doesn’t apply
Courts look at a variety of factors when faced with a SoC question:
◦ Probability of harm (Bolton v. Stone);
◦ Magnitude (or potential magnitude) of harm (Paris v. Stepney Borough
Council, Hollis v. Dow Corning); (a greater capacity to cause injury to
consumers = a correspondingly high SoC under negligence law)
◦ Burden of risk avoidance (Vaughn v. Halifax-Dartmouth Bridge Comm.);
(who’s in the better position to avoid the risk? What kind of $/effort is
going to be involved? – in Vaughan it wasn’t very much)
◦ Utility of the activity (Watt v. Hertfordshire County Council); (is it a
commercial setting for making profit? Is it a non-profit? Or was the risk
taken for the public good? (as it was in Watt))
◦ Existence of custom or guidelines; standard practice
 (though this has become a more limited factor, it is still relevant
in, e.g. medical malpractice) (ter Neuzen v. Korn); (don’t hang hat
on this argument – not as useful anymore)
◦ Existence of statutory standards (R. v. Sask. Wheat Pool, where the
statutory duty is breached; and Victoria (City) v. Ryan, where the
statutory duty is met).
◦ Bonus: if a deliberate decision regarding safety or risk (ex: Vaughn), can
talk about Hand’s mathematical formula
Vaughan v. Menlove
GIVES DEFINITION FOR THE REASONABLE PERSON:
“…such reasonable caution as a prudent man would have exercised under the
circumstances.”
“…the care which a prudent man would take…”
Bolton v. Stone
- Was the risk of damage…so small that a reasonable man in the position of the
D, …have thought it right to refrain from taking steps to prevent danger.”?
- “risk of harm” factor – one factor in determining what a reasonable person
would have done
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Bolton v. Stone analysis:
o 1) What is the possibility of injury?
o 2) What is the potential severity of a possible injury?
Watt v. Hertfordshire County – Fire Station Call, heavy jack inures P
Facts: D’s fire station had a heavy jack to be used for emergencies. The only vehicle
properly equipped to carry it safely was out when the fire station received an
emergency call to recue a woman trapped under a heavy vehicle. Officer in charge
ordered the heavy jack to be driven to the accident in a lorry w/o properly securing it.
En route, driver stopped suddenly & injured P.
Issue: Was D negligent in failing to use reasonable care in supplying safe appliances and
working conditions to P?
Holding: No.
Rule: In measuring standard of care one must balance risks against the en to be
achieved (the measures necessary to eliminate risk).
 Look @ the social utility (or disutility) of the activity
- the more socially useful the activity, the more unwilling the courts will be to impose a
high standard of care
Analysis: The saving of life or limb justifies taking considerable risk. If this accident had
happened in a commercial context w/o any emergency, there could be no doubt that
the P would succeed (b/c the commercial end to make profit is very different from
saving human life/limb).
R. v. Saskatchewan Wheat Pool – breach of statutory duty
Facts: Sask Wheat Pool delivered infested grain out of a terminal elevator contrary to s.
86(c) of the Canada Grain Act. Canadian Wheat Board incurred costs of >$98,000 b/c of
it and now are pleading statutory breach in a tort action against Sask Wheat Pool.
Issue: Where a party breaches a statutory duty causing injury, does the victim have a
civil cause of action against the first party?
Holding: statute itself may provide for a tort or other civil remedy for breach. In this
situation, the govt had not done so. P didn’t actually plead or prove negligence in this
case, so the action failed.
Rule: The mere fact of breach of a statutory duty does not, in itself, give a right to
recovery. But proof of the breach may provide evidence of negligence. The statute
may provide guidance re: the standard of reasonable conduct.
Analysis: Unless you’re negligent in fulfilling your statutory duty, the mere breach itself
is not sufficient – still have to go thru whole negligence analysis.
Ryan v. Victoria
Facts:
Issue: If someone complies with a statutory duty, can they still be held negligent?
Holding: Yes.
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Rule: Compliance with a statute does not necessarily satisfy the CL duty of care. So,
just as breach (sask wheat pool) does not prove negligence, compliance, in itself, does
not negative a finding of negligence.
Analysis: Other side of the coin from Sask Wheat Pool: What if there’s a statutory duty
and you comply with it? Can you still be liable?
Paris v. Stepney Borough Council – gravity of harm should be considered
Facts: P was employed in the D’s garage, and to D’s knowledge, P had the use of only 1
good eye. A chip of metal flew into D’s good eye while working resulting in total
blindness. Practice within the trade (“custom”) was not to provide goggles to workers. P
claimed damages alleging negligence by D failing to provide him with goggles.
Issue: To what shtandard of care should the D be held?
Holding: to an extra high standard.
Rule: The greater the magnitude of potential harm, the greater the standard of care
 an employer should take into consideration if a risk is higher for a certain employee
then therefore they need to have a higher standard to take care with that employee
Analysis: it does depend on the nature of the statute tho – if the statute has a very
rigorous regime that sets out what activities are authorized, it might be enough to
satisfy the standard of the reasonable person @ CL
Vaughn v. Halifax-Dartmouth Bridge Comm.
 Facts: Bridge painted, damaged cars parked nearby from flying paint
 Duty was to take all reasonable measures to prevent result or minimize damage
of falling paint
 Easily feasible to prevent damage (ie warning signs)
 Could have avoided this risk, particularly in gravity of harm and probability (could
have taken preventative measures at a relatively low cost)
 Conclusion: Liable because did not take necessary precautions (could have taken
preventative measures at a relatively low cost
McCullough v. Riffert (2010) – SoC of lawyers
Facts: Robert McCullough died 10 days after his lawyer to give instructions for a Will.
The Will, which was not signed, would have left his entire estate to his niece Sarah
McCullough. In this action, his niece Sarah, the disappointed beneficiary, claims against
his layer, Riffert, in negligence.
Issue: In the circumstances here, was the lawyer negligent in not attending to the
preparation and execution of the will before Robert died?
Holding: No negligence on the part of the lawyer in these circumstances.
Rule: Lawyers: A solicitor is required to bring reasonable care, skill and knowledge to
the performance of the professional service which he has undertaken. The requisite SoC
has been variously referred to as that of a reasonably competent solicitor, the
ordinary competent solicitor and the ordinary prudent solicitor (Central and Eastern
Trustco v. Rafuse)
In this situation, had to ask:
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1) What is the standard of care required of the solicitor in the preparation of a
will?
2) Is the solicitor liable to a disappointed beneficiary;
3) In the circumstances of this case did the solicitor fail to meet the standard of
care
Negligence – Causation
The element that links the defendant’s breach of the standard of care to the plaintiff’s
loss.
The “but for” test (or sine qua non – “without which not”)
◦ But for the breach, would the plaintiff not have been injured?
◦ (Not quite the same question as “did the defendant’s conduct cause the
loss”)
◦ The P must show that the D’s negligence was necessary to bring about
the injury (Clements).
 Causation is a question of fact – therefore, P must provide evidence supporting
causation
 evidence must be adduced supporting each allegation
Alternatives and Exceptions to the “but for” test (general rule):
1) Material contribution to risk
- Clements v. Clements
- Resurfice Corp
2) Refusal to allow reliance on the “learned intermediary” rule
- Hollis v. Dow Corning
3) Interference of Causation
- Snell v. Farrell
Kauffman v. TTC – but for test
Facts: While ascending an escalator in a Toronto subway station, P was injured after 2
youths ahead of her fell on a man who in turn fell back on her. Court asked the question
of whether TTC was negligent as well as 2 causation questions.
Issue: Was TTC’s alleged negligence a contributing cause of P’s accident?
Holding: No.
Rule: a causal relation must be made out btwn the alleged negligence and the injury.
 P must be able to establish on a balance of probabilities that their injuries would not
have occurred “but for” the D’s negligence
Horsley v. MacLaren – but for test
 General Rule: the test for causation is the “but for” test, which requires the P to
show that the injury would not have occurred but for the negligence of the defendant
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Athey v. Leonati
Facts: P had a pre-existing back condition. D negligently caused a car accident that
injured P’s neck and back. One day while stretching as advised by a doctor, P herniated a
disk in his back.
Issue: Does a causally contributing cause limit liability of the D if other factors are
involved?
Holding: No – D is held fully liable when their negligence is a causally contributing cause.
Rule: Thin skull rule: D must take their victim as they find them.
(both Ds were held joint and severally liable b/c each contributed but independently
caused harm). – so each D is liable up to the full amount, but each D may recover, from
the other D, $ paid in excess of that D’s proportionate share
As long as the D is part of the cause to an injury they will be held fully liable even if they
are not the only cause.
Exception to the “but for” test for causation: Material contribution of risk test
 still state general “but for” rule!!!!!!!
Clements v. Clements – when “but for” test does not work – material contribution of
risk test
Facts: P suffered brain injury from motorcycle accident. She was unable to prove “but
for” causation, due to the limitations of scientific reconstruction evidence. P claims
“material contribution” test rather than “but for” – i.e. that D “materially contributed to
the risk of injury.”
Issue: Could the P use the “material contribution of risk” test here?
Holding: Yes – since she could not prove any one of the D’s caused the harm
Rule: “Material contribution of risk” test is typically used when:
- a number of tortfeasors;
- all of whom are at fault;
- one or more of whom has in fact caused the P’s injury;
- But it’s impossible for the P to show that any one D caused the injury because
the Ds can “point the finger” at each other
 P must meet the “but for” test globally  P must still show that the injury would
not have occurred but for the negligence of one or more of the Ds
 Each D who has contributed to the risk of injury (via owing a DoC, and breaching their
SoC) can be faulted
 Policy reasons and the goals of negligence law are thus satisfied:
- The P can obtain compensation
- D’s have been negligent and may in fact have contributed to the loss
- Deterrence is furthered
Cook v. Lewis – 2 negligent Ds but only 1 caused accident – REVERSE ONUS
Facts: P shot in the face by 1 of 2 hunters who had fired at the same time. Both hunters
denied aiming in P’s direction. P could not prove, on a BoP, who had shot him.
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Issue: Can P still claim in negligence even though she can’t prove which one caused her
injury?
Holding: Yes – but reverse onus on Ds to prove which one did it, or they’re both liable
Rule: Where P can prove there were two Defendants, one of which must have caused
his injury/loss, but cannot prove which one caused his injury/loss, then each D is liable
unless one can prove it was the other who actually caused the injury
- ***the burden of proving causation shifts do the Ds ***
- this onus-shift generally only works when:
- there is a small number of Ds
- all of whom are joined in the litigation; and
- all of whom have exposed the P to an unreasonable risk of the type of injury
that the P suffered = each D must have owed a DoC and have breached the SoC!!
Exception to the “but for” test: Refusing to allow manufacturer to rely on learned
intermediary rule
Hollis v. Dow Corning
 D argued P needed to prove that the doctor would have warned P had Dow Corning
properly warned the doctor
 SCC aid this would require the P to prove a hypothetical (that had been brought
about by D’s breach of its duty)
RULE: Where the manufacturer fails to inform the learned intermediary of the risks of
their product, it is no defence that P cannot prove the learned intermediary would
have passed the information to P
(if that was the case, the P would have no recourse at all – the learned intermediary was
not aware of the risks, so was not negligent, and the manufacturer would be immune b/
c P could not prove the learned intermediary would pass the information along).
- the STRICT application of the “but for” test is a strong argument to make – but
the court said no- part of that was based upon the imbalance of information
- the manufacturer is the only one who’s going to have information about this
- the court is not going to allow them to rely on the learned intermediary rule in
this case
- The exceptions and alternatives all relate to asking” who is in the best position
to know who caused the injury?
- It’s the Ds here who will be most likely to know who actually caused it (think:
Cook v. Lewis; Clements v. Clements)
- If you do force Ps to prove they wouldn’t have suffered injury “but for,” the
breach of the manufacturer, they won’t be able to find this information
Exception to the “but for” test: Using a modified objective test in informed consent
cases
Reibl v. Hughes
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must show that “but for” the failure to warn, the patient would not have
proceeded with the treatment
EXCEPTION: the court used a modified objective test: “but for the doctor’s failure
to inform, would a reasonable person in the P’s position not have undergone the
treatment?
Exception to the “but for” test: Inference of Causation
- Common in Medical Malpractice
- Not “reversing the onus” like in Cook v. Lewis, but rather recognizes that the
inquiry is a practical one, made on the entirety of the evidence
- (even if the P has not proven to a scientific certainty that a drug would have
prevented harm, a judge can still decide FOR the P that the drug would have
prevented the harm on a balance of probabilities). (Goodman)
- NOT reversing onus, just addressing that test is based on a BOP
Snell v. Farrell
Facts: An opthamologist is performing surgery on Mrs. Snell for cataracts. During
surgery he found a small amount of blood – he left it and then went on to continue
surgery anyway. 9 months later, her optic cord atrophied, causing her to lose vision in
the eye. Expert evidence was very important at the standard of care stage (what would
a reasonable opthamologist have done) and at the causation stage. In this case it was
difficult to know whether the pressure that caused the haemorrhaging and the eventual
atrophy was caused from her high blood pressure, or something else, or whether it was
caused from the opthamologist.
Issue: Who had the burden of proof for causation?
Holding: P. But D didn’t have sufficient evidence to rebut that inference. (while
blindness could have resulted from natural causes, there was sufficient evidence
indicating it was more likely a result of the surgery).
Rule: GENERAL RULE: the onus is on the party who asserts a proposition, usually the P.
EXCEPTION: where the subject-matter of the allegation lies particularly within the
knowledge of one party, that party may be required to prove it.
 P is in NO position to know what went on during the operation, but in these kinds of
cases where causation is NOT clear and where you have a technical question and the D
was in a better position to know what happened, the courts will allow inferences to be
drawn from what the D said and they won’t just follow the strict “but for” test.
I.e. primarily applicable to malpractice cases.
MULTIPLE CAUSES
o Causation becomes more complex when P’s loss has two or more causes.
o If they are divisible - if they can be divided into distinct losses attributable to
each tortfeasor – then there are separate causes of action.
o If they are indivisible, either tortfeasor may be sued for the full amount (joint
& several liability)
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o (Not easy to draw the line btwn divisible & indivisible injuries)
***Athey v. Leonati
 A D is liable for “any injuries caused or contributed to by his or her negligence.”
 The presence of other (non-tortious) contributing causes does not reduce the
extent of liability.
 So long as the D’s breach has “materially contributed” to the occurrence of the
injury, i.e. falls outside the “de minimis” range.
 Holding: Indivisible injuries: As long as the D’s negligence has materially contributed
to the injury, they’re going to be fully liable. The court found that the pre-existing
condition (that led to the herniated disk) would not have become an issue BUT FOR the
car accident. (the pre-existing condition was there, but it wouldn’t have become
symptomatic unless the car accident had taken place).
Apportionment of liability: (still from Athey)
 Multiple tortious causes
◦ Expressly permitted under negligence law, and does not reduce total
damages
 Divisible Injuries
◦ Really just means that D is only liable for injuries D’s negligence caused or
contributed to
◦ Adjustments for contingencies
◦ (D can recover from other tortfeasers after for their portion of
theliability).
 Adjustments for contingencies
o Adjust measure of damages based on likelihood of certain events
happening – this is about damages and not liability
 Independent Intervening Events:
o (eg. Pre-existing condition that would have become disabling
anyway in future)
o This is not apportionment; deals with putting P in the “original
position”
 “Thin skull”/”crumbling skull” doctrines
o Pre-existing condition that increases severity of injury
o D liable for injuries caused, even if extreme, but need not
compensate for effects of pre-existing condition that would have
happened anyway
Negligence – Remoteness and Foreseeability
-
tries to prevent “over-inclusiveness” (limits liability for negligent conduct)
remoteness analysis used to draw the line in individual cases where unusual or
disproportionate results flow from negligent conduct
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where unusual or disproportionate results flow from admittedly negligent
conduct
(in most cases, Remoteness won’t be a significant issue).
No “hard and fast” application
DEVELOPMENT OF THE LAW IN REMOTENESS
Polemis  Wagon Mound 1  Wagon Mound 2
 Wagon Mound changed the law on remoteness. BEFORE WM, Polemis was the
governing authority
-Polemis stood for the proposition that a D was liable for every “direct” consequence of
their negligent action – no matter how unforeseeable or bizarre
- in WM, the PC rejected Polemis and crafted a new test based on foreseeability
The Wagon Mound, No. 1 – changed law: foreseeability
Facts: WM carelessly dumpted oil into Sydney Harbour. The oil, which continued to
escape for over a day, wa carried by wind and tide udner R’s wharf. R’s employees were
using welding equipment. Some molten metal fell, igniting a rag floating on debris,
which ignited the oil, burning the wharf. R’s wharf and some equipment were heavily
damaged.
Issue: Was WM liable for the damage do the wharf for negligently spilling oil into the
harbor?
Holding: NO  the damage to the wharf was not foreseeable, so it was too remote for
liability
Rule: Foreseeability became the effective test, regardless of how unnatural” the
consequences of the act may be: Was the damage that occurred as a consequence to
D’s breach the damage that the reasonable person would have foreseen?
Analysis: Court emphasized that reasonable foreseeability is about FORESIGHT and not
hindsight
Hughes v. Lord Advocate – modified foreseeability test
Facts: Post office employees opened a manhole. They went for a tea break so covered it
with a shelter tent, pulled a cover over the entrance, removed the ladder and placed 4
paraffin lamps around it. When they were gone, 2 young boys came to explore the
manhole. On their way out, one of them tripped over the lamp, which fell into the hole
(when it broke @ the bottom, some paraffin excaped, creating an explosive mixture) &
caused an explosion severely injuring the boy.
Issue: Is the Post Office liable for the boy’s injuries or was the accident too remote?
Holding: Yes they were liable.
Rule: Modified foreseeability test: The KIND or TYPE of injury must be reasonably
foreseeable.
- The extent of the injury does not need to be reasonably foreseeable;
- The manner in which the injury was caused does not need to be reasonably
foreseeable
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If an injury is caused by a known source of danger, but caused in a way which could
not have been foreseen, D will still be liable.
The Wagon Mound, No. 2 – CURRENT AUTHORITY
Facts: Different P’s than WM1: shipowners rather than the wharf. Different evidence
presented and findings of fact here compared to WM1.
Issue: Was the damage to other ships in the harbor reasonably foreseeable?
Holding: Yes – the D ought to have known the risk of oil lighting on fire and damaging
boats.  The “reasonable chief engineer” would have foreseen the risk, and even
though the ignition would be exceptional, a “reasonable chief engineer” would not have
dismissed the possibility and not taken steps to prevent it.
Rule: A reasonably foreseeable risk (i.e. a REAL RISK) is one that is possible (not
necessarily probable).
 A “possible” injury is one that is “more than far-fetched” which a reasonable man
would not “brush aside.”
 Court talked about how the fact that something happed shows that it was possible
and there was a “real risk” – so, must ask whether a reasonable man, having the
knowledge and experience of the chief engineer, would have known that there was a
real risk of damage
(in WM1, the damage was not foreseeable at all, so there was no need to determine
what degree of foreseeability was necessary.
 If the consequence is very severe and the cost of avoidance is very low, then you are
liable if you take a remote chance (can even be liable for remotely possible activities if
the reasonable person would have taken steps to reduce or avoid risk of injury).
NOTES from class:
- The court spends a lot of time talking about why they’re not bound by Wagon
Mound #1
- Plaintiffs here are the ship owners - the evidence at trial here was significantly
different than the evidence in wagon mound no. 1
- Ps in wagon mound #1 didn’t really have a strong incentive to argue that the oil
was obviously flammable – since they let their employees keep working with
their blowtorches. Why? b/c at that time, contributory negligence was a
complete defence
- In Wagon Mound 1, they would have been arguing based on Polemis – they were
arguing that it was a direct result of the oil spill
- Change in precedent, new authority for Wagon Mound 2 (WM!)
- In Wagon mound 2, they were arguing that obviously this oil is as flammable as
possible, and it should have been reasonably forseeable that it would catch fire if
near a flame
- Dealing with what would the reasonable person have seen at the time of the act.
- PC in WM2 said that it’s oil – they should have realized it would be flammable
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Smith v. Leech Brian & Co. – thin skull rule
Facts: A man was hit by a piece of molten metal, burning his lip, due to D’s negligence.
The burn became worse and eventually became cancerous. He died from cancer.
Causation between the metal and the cancer was made out.
Issue: Was it reasonably foreseeable that the burn would cause death?
Holding: Probably not, but that is NOT the test.
Rule: Test for remoteness: whether the D could have reasonably foreseen the type of
injury that was suffered (in this case, the burn).
[thin skull rule] = when you cause an injury which normally would have caused no or
very minor damage, but caused severe damage to that person, the tortfeasor is liable
for all the damage.
 Leech Brain & Co. WAS liable here b/c the burn was not too remote (they were held
liable for all the injuries that flowed from the burn).
- CLASS NOTE: In Smith, court said that what has to be reasonably forseeable is
the TYPE of injury – court said that as long as the burn was reasonably
forseeable, all the consequences that flow from that – even though it’s based
upon a rare propensity, those damages will not be too remote and D will be held
liable
Marconato v. Franklin – thin skull plaintiff
Facts: A woman was slightly injured in a car accident (cervical strain) and developed
depression, hostility, anxiety, tension, hysteria and some characteristics of paranoia.
Underwent a complete personality change. These arose b/c of her pre-existing
personality traits causing her to have a peculiar susceptibility or vulnerability
Issue: Was the D liable for P’s bizarre psychological injury?
Holding: Yes.
Rule: This case extends thin skull rule to psychological injury.
If the KIND or TYPE of the injury was reasonably foreseeable, then if the injury
aggravates a latent psychiatric condition, D is liable for those psychiatric consequences.
Mustapha v. Culligan of Canada
Facts: Man ordered Culligan water bottle. Water bottle contained a dead fly. Man
became obsessed with it, developed anxiety and was unable to work.
Issue: Was the psychological harm that he developed a reasonably foreseeable as a
“real risk” to a reasonable person?
Holding: No  Mustapha lost @ this stage
Rule: The degree of probability of an injury occurring is whether such an injury is one
which would occur to a reasonable man in D’s position as a real risk, one not to be
brushed aside (CITES WAGON MOUND 2)
Any injury is possible, so ‘possibility of injury’ is not the test in Canada.
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For mental Injury: Where there is a psychological injury, it is only foreseeable if a person
of ordinary fortitude would have been injured (Onus on P to establish their mental injury
was normal) (objective test)
If D is aware of P’s ‘particular sensibilities,’ then ‘ordinary fortitude’ test not
applicable.
Analysis: This does NOT overturn thin skull rule  the principle applies to foreseeable
injuries which have greater consequences than expected.
- In Mustapha, the injury itself was not foreseeable, so nor were the
consequences
Price v. Milawski – Intervening causes
Facts: P injured ankle playing soccer. Went to doctor, who negligently x-rayed his foot
instead of his ankle, so diagnosis missed. P went to another doc, who relied on first
doc’s x-ray and also missed the diagnosis. Several weeks later, went to third doc who
correctly diagnosed it as a broken ankle. P suffered permanent injury.
Issue: Was it reasonably foreseeable that a subsequent doctor would negligently rely
upon the first doctor’s information?
Holding: Yes! The second doctor’s negligence in not ordering a new x-ray was in the
ambit of the first doc’s negligence, thereby did not interrupt the chain of causation.
Rule: Where later negligence compounds the injury from earlier negligence, the
consequences of the second negligence are within the scope of the risk created by the
first negligence.
A negligent person may be held liable for future damages arising in part from the
subsequent negligent act of another, and in part from his own negligence, where both
the subsequent negligence and the consequent damage were reasonably foreseeable
as a possible result of the first negligence.
 Note: modern approach from Athey places the apportionment back onto the Ds  P
can recover in full from the original D. Original D can then go and sue second negligent
Doc for his portion of negligence.
Negligence – Defences
5 main defences to Negligent Claims:
1) Contributory Negligence  Contributory Negligence Act – Partial defence
2) The “seat belt” defence – partial defence
3) Voluntary assumption of risk – Complete defence
4) Illegality – Complete defence
5) Limitation periods – Complete defence
Galaske v. O’Donnell – Seat belt defence
Facts: P (8 yr old boy) and his father were passengers in D’s truck. P was not wearing a
seatbelt. An accident occurred (thru no fauly of D) & P was injured, due to the fact that
he was not wearing a seatbelt. P sued D alleging negligence in not ensuring that the P
was wearing a seat belt.
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 there IS a statutory duty owed by drivers to ensure children under 16 are wearing a
seat belt. BUT this is NOT conclusive of civil liability – but it DOES provide further
support for finding that a duty of care rests on the driver to take all reasonable steps to
see that children are wearing seatbelts (sets the standard).
Issue: Was the driver of the truck (no fault accident) partially responsible b/c he didn’t
take all reasonable steps to ensure the child was wearing a seatbelt?
Holding: Yes – he could be held contributorily negligent (5-25%).
Rule: Failure to wear a seat belt may be a defence to negligent driver causing accident –
but only 5 – 25% of liability will go to P.
Burden on D to show:
a) that the seat belt was not worn, and
b) that the injuries would have been prevented or lessened if the seat belt had been
worn
Hambley v. Shepley – Voluntary Assumption of Risk
Facts: Police officer, after radio instructions, used his police cruiser to block an
intersection to stop the D, a motorist, from escaping arrest. He was in the cruiser and
was struck by D before he could get out.
Issue: Is the doctrine of voluntary assumption of risk applicable here?
Holding: No.
Rule: The defence of voluntary assumption of risk has 2 correlative effects:
1) it means that the P consented to bearing the injurious consequences of D’s
negligent conduct; and
2) That the D is relieved of any duty of care to the P in respect to the particular risk
of harm
Analysis: NOTE: VAR not as commonly used as a defence as it used to be since
Contributory Negligence has been changed by statute to a PARTIAL DEFENCE
Hall v. Hebert – unsuccessfuly ex turpi causa claim
Facts: P & D had both been drinking and were in D’s car – it stalled. They trid a “rolling
start” with P @ steering wheel. P lost control of car & rolled down a ditch. P suffered
significant head injuries and brought an action against D for D’s negligence in allowing P
to drive his care even though he know he’d been drinking.
Issue: Can P claim damages from D? Or does D have the defence of ex turpi causa
(illegality)?
Holding: Yes, P can claim damages (less any amount of contributory negligence).
Defence of ex turpi causa does not apply here. D’s actions were not to make a profit or
avoid the consequences of his illegal actions, but to be compensated for his injury. But
the court did reduce damages due to P’s contributory negligence.
Rule: The power of the court to grant the ex turpi causa defence is a limited one.
 Concern for the legal system or the rule of law trumps the idea that P should be
compensated.
This defence can be used as a D where P has committed an illegal act, AND:
1) P is using their tort claim to profit from their illegal conduct; or
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2) when P is using their tort claim to evade the consequences of their criminal
actions
B.C. v. Zastowny – successful ex turpi causa claim
Facts: Prisoner was sexually assaulted in jail and after his release he developed a heroin
addiction and became a repeat offender – spent 15 years in jail. He sued govt for
vicarious liability relating to sexual assaults.
Issue: Can P recover for loss of income which he incurred during his lengthy periods of
incarceration?
Holding: No! An award for past wage loss due to incarceration would have to be
justified by “exceptional considerations of a compelling nature.” Crown successfully
used the ex turpi causa defence here.
Rule: Integrity of legal system trumps concern that the D be responsible.
Analysis: the court does not want to give with one hand what they had taken away with
the other hand.
The Contributory Negligence Act, RSS 1978, c. C-31
o s. 2  apportionment of damages
o s. 3  Apportionment of fault and contribution btwn tortfeasors
- Athey v. Leonati scenario: The P can claim from ANY of the Ds for 100%
of the damages. That D then would be able to seek damages themselves
from the other tortfeasors.
- also applies to a situation where P is partially liable – court will reduce
award from D accordingly
o s. 4  Contribution where one D cannot contribute
- here, you would take the share of the D that can’t contribute (i.e.
maybe they’ve died and there’s nothing in their estate) and add it to the
other parties, proportionate to their share of the blame
The Limitations Act, S.S. 2004, c. L-16.1
 Failing to meet limitation period (i.e. didn’t start proceeding until after the limitation
period passed) = absolute defence
o s. 5  unless otherwise provided in the Limitations Act, no proceedings shall be
commenced with respect to a claim after 2 years from the day on which the
claim is discovered
o s. 6  discoverability. These 4 things dictate the date discoverability occurred
and the limitations act will go from:
o (a) the day you knew the injury occured
o (b) the day they knew that the injury, loss or damage appeared to have
been caused by or contributed to by an act or omission that is the subject
of the claim;
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o (c) they day they knew that the act or omission that is the subject of the
claim appeared to be that of the person against whom the claim is made;
and
o (d) the day that, having regard to the nature of the injury, loss or
damage, a proceeding would be an appropriate means to seek to remedy
it
o  a claimant is presumed to have known of the matters in 1-d on the
day on which the act or omission on which the claim is based took
place, unless the contrary is proved (by the P)
Exceptions to 2 yr. limitation period
s. 7  Ultimate limitation periods
- 15 years is the maximum for most claims
- Regardless of discovery, it’s 2 years from date of conversion…note: this is only
against a good faith purchaser
- Same thing with cases involving death, the ultimate limitation period is only 2
years
s. 8  Can get more complicated when dealing with someone who is of legal disability:
ex: a minor or someone who lacks capacity – the way it works here is that the limitation
period is suspended for as long as they have the disability: ex: if the injury happens to
someone who is 14, the “clock” for the limitation period will begin when they turn 18,
and then the limitation period will be for 2 years after that… so have until they are 20 to
bring an action.
s. 14  sets out the limitation period for a claim with multiple defendants. The
limitation period begins at the time the FIRST defendant was served with the claim
- Usually not a huge issue, because if there are co-defendants, they’ll get dragged
in anyway
- This just says that you’re not bound by the initial date
s. 16  NO limitation period for sexual assaults & assaults where it occurs in a situation
of dependency (ex: residential school claim where physical abuse happened b/c of
dependency, potentially childhood abuse if occurred from a parent or someone who
they are dependent of).
s. 17  NO limitation period for concealment. If D actively conceals their involvement
or evidence or willfully misleads the complainant – in those kinds of situations, the
limitation period is suspended during any time where this info has been concealed
(otherwise ppl would just hide evidence for 15 years)
Damages
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o It TORTS, damages are about “returning the P to the position s/he would have
been in had the tort not been committed (as far as $ can do so)
Types of Damages (cite Andrews)
1) Compensatory Damages (Compensation)
o Capable of monetary compensation
o Aim to restore P to position they were in prior to D’s negligence
a) Special Damages
- backward - looking
- manifest prior to trial (ex: missed x number of days of work); and
- are therefore capable or precise calculation ex: medical bills, time off work
b) General Damages
- Extend into the future; and
- Must therefore be predicted and quantified (some element of speculation)
- Pecuniary damages – specific costs that will be incurred in future – ex: lost
earnings/capacity to work, repair costs, disability equipment, personal care aid
- Non-pecuniary damages – pain & suffering, loss of quality of life, humiliation, loss
of life expectance
c) Aggravated Damages – (RARE). Awarded to reflect P’s loss as a result of D’s
conduct. Ex: humiliation by D’s conduct, psychological harm
2) Punitive or Exemplary Damages (Punishment)
o RARE
o Not compensory
o Meant to punish D for their “outrageous” behaviour
3) Nominal Damages (Vindication)
o Damages “in name” only – not about compensating the P, about holding the
D responsible
o For a tort that is actionable w/o proof of damage
o Ex: Trespass claims
o The Court is recognizing the legal wrong, but there are no damages to
compense.
o Unusual to sue for this b/c of litigation expenses
Andrews v. Grand & Toy Alberta Ltd.
Facts: P injured by D while on motorcycle and was injured, becoming a quadriplegic. P
was held 25% contributorily negligent. At trial he was awarded $1M, CA reduced to
$0.5M. P appeals to SCC.
Issue: What was P able to claim for his future care costs?
Holding:
Rule: **Andrews establishes the method of damages analysis that continues to be
used in Canada (prior to Andrews in 1978, a “global” award was given)
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 Since damages are awarded in a lump sum @ trial, so the damage award must
compensate P for past loss and also provide compensation for losses anticipated in the
future
Analysis:
Pecuniary Loss – all things that can be calculated.
- For the catastrophic claims or people who are young and have their whole working
lives ahead of them – this can be very difficult to prove
- Looking at 2 main heads of damage here
Future Care – includes a lot of things that – had you not been injured, would have been
covered under loss of earning capacity. Where does this enter into the analysis? We
discount the loss of earning capacity by the estimate of the amount that you would pay
for basic expenses – and then leave the loss of future care as is.
“standard of care” (not like standard of care in negligence sense) – that means, what
level of care can a reasonable person expect to get. Is this the cost of institutional care
or care in their own home?
- The evidence SHOWED that it would be best for him to have care in his own home, and
not in a hospital
- Defence said that they should realistically only be given the “standard” care – an
institutionalized care
- The court found that the defendant is not off the hook for that just because there is a
cheaper alternative – P would be much better off at home
- The point is that they still have evidence establishing that it’s likely helpful for them to
live in home
- The court said that he might not need personal care ALL the time – so the court
deducted 20% from the pay b/c there would be reasonable times where he would be
spending in the hospital, and during that time, his costs for care would be significantly
reduced – again, not a magic number, just an argument made here that the court
accepted
Life Expectancy: The court said you can’t limit yourself based purely on statistics,
although they are a useful guideline (statistical average is helpful only if the appropriate
group is used)
- These cases are especially difficult when dealing with younger people
- Said quadriplegic likely to live 5 years loess than the average person
Contingencies can be quite difficult – ask: are there any likely contingencies that would
result in a loss? Ex: if it’s a female, could look at having kids…would take off a few years
of work for that.
- Expert evidence all along the way
Loss of Earning Capacity
(very difficult to calculate b/c he’s young)
Level of earnings – need to look at the circumstances. Ex: in Sask, there was a guy who
had been scouted for the NHL before he was injured
- Usually look at what they likely would have done…become a lawyer? Go to university?
Work as a trade? If young, can often look at the parents. Ex: would make a difference if
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both parents were neurosurgeons compared to both not working. Also look at things
like…if he was in university, was he at the top of his class?
- The younger the P is, the harder it is to determine level of earnings
Length of Working life: had the accident not happened, how long would he have worked
for? You can reduce it to take into account contingencies – so, it’s a very cyclical type of
sector he’d be working in? but this would go into contingency calculation.
- For Mr. Andrews, chances are he probably wouldn’t have had any actual income of his
own outside of this award
Capitalization and Tax Allowance
- Not supposed to PROFIT from this, supposed to be compensated. So the court takes off
a little bit for the interest they will gain from it
- Counter that though, is inflation – every year, the value of the dollar goes down a little
bit
- Court balances the investment profit you’ll receive vs. the loss of value based on
inflation
- Tax allowance – the amount you receive from an award is NOT taxable, but any
investment income you make later will be taxable. Should this be taken into account in
pecuniary losses?
- Watkins v. Olafson (1989) said that awards should be grossed up to take tax into
account
- Andrews actually didn’t apply the “gross up” to take ta into account
- Court says “gross up” – just have to make the best assessment you can with the info
you have and based on what the gross up rate should be
non- Pecuniary Loss – more of a philosophical/policy exercise than a legal or logical one
- still “compensatory losses” – but court is trying to compensate as much as $ can for
the loss of health and happiness that a non-injured person would have had
MacCabe v. Westlock R.C.S.S.D. No. 110 – role of gender
 In McCabe, it was found to be a reviewable error to use the “male tables” in
determining loss of earning capacity for a female P.
 It is (said the court) contrary to restitutio ad integrum.
◦ McCabe had suggested that she wanted several children and would take
time off work to care for them; the Court said these were not the “typical
male contingencies”
 Some courts have used the female tables, but grossed them up to account for the
(theoretically) narrowing wage gap.
- this case really tells us that courts can’t divorce data from the P in front of them
Whiten v. Pilot Insurance – Punitive damages
PUNITIVE DAMAGES:
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 “Malicious, oppressive and high-handed” misconduct that “offends the court’s
sense of decency”.
◦ Punishment; deterrence; denunciation
 Punitive damages, as the name suggests, are not compensatory.
 Awarded if but only if a compensatory award would be insufficient.
 Whiten is the high watermark for punitive damage (i.e. 1mill is max Canada has seen)
- will often find solicitor-client costs and punitive damages together…for when the D
really screwed up and the court wants them to pay.
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