Table of Contents
1. Introduction ...................................................................................................................................7
1.1 Responses to Harm ..............................................................................................................................................7
1.2 Identifying Those Responsible for Harm ............................................................................................................7
1.2.1 Joint Tortfeasors .......................................................................................................................... 7
1.2.2 Vicarious Liability ......................................................................................................................... 7
1.2.3 Joint and Several Liability ............................................................................................................. 9
1.2.4 Victim Contribution (Contributory negligence) ........................................................................... 9
2. Negligence ................................................................................................................................... 11
2.1 Introduction ....................................................................................................................................................... 11
2.2 Duty of Care ...................................................................................................................................................... 11
2.2.1 Origins of Duty of Care ............................................................................................................... 11
2.2.2 The Current Approach to Duty ................................................................................................... 12
2.2.3 Examples of Proximity ................................................................................................................ 13
2.2.4 The Duty to Warn ....................................................................................................................... 15
2.2.5 Medical Malpractice .................................................................................................................. 15
2.2.6 Rescuers and Good Samaritan ................................................................................................... 16
2.3 Standard of Care ................................................................................................................................................ 16
2.3.1 Unreasonable Risk...................................................................................................................... 16
2.3.2 The Learned Hand Formula........................................................................................................ 17
2.3.3 Indices of Reasonableness ......................................................................................................... 17
2.3.4 Departure from Custom ............................................................................................................. 17
2.3.5 Statutory Standards ................................................................................................................... 18
2.3.6. Professional Standards ............................................................................................................. 18
2.3.7 Determining Reasonable Behaviour .......................................................................................... 19
2.3.8 Special Standards: Children and the Mentally Ill ....................................................................... 19
2.4 Causation ........................................................................................................................................................... 20
2.4.1 The ‘But For’ Test ....................................................................................................................... 20
2.4.2 The Difficulty of Proof ................................................................................................................ 20
2.4.3 Multiple Wrongdoers and Contribution ................................................................................... 21
2.4.4 Material Contribution ................................................................................................................ 21
2.4.5 Failure to Warn and Causation .................................................................................................. 22
2.4.6 Lost Chances and Medical Malpractice...................................................................................... 22
2.4.7 Causation and Industrial Torts: The English and US Experiments: ........................................... 22
1
Table of Contents
2.5 Remoteness ........................................................................................................................................................ 23
2.5.1 The Thin Skull Rule ..................................................................................................................... 24
2.5.2 Novus Actus Interveniens .......................................................................................................... 24
2.5.3 Manufacturers, Distributors, Contractors and Remoteness ...................................................... 24
2.5.4 Multiple Medical Errors ............................................................................................................. 25
2.6 Defences to Negligence Actions ........................................................................................................................ 25
3. Liability for Psychiatric Harm (Nervous Shock)............................................................................... 26
3.1 Historical Development of the Law ................................................................................................................... 26
4. Liability for Pure Economic Loss .................................................................................................... 27
4.1 Recognized Categories ...................................................................................................................................... 27
4.2 Negligent Misrepresentation .............................................................................................................................. 27
4.3 Negligent Provision of a Service .................................................................................................... 28
4.5 New Categories ............................................................................................................................. 30
5. The Tort Liability of Government ....................................................................................................................... 31
6. The Immunity of Mothers .................................................................................................................................... 33
7. Negligence and Reproduction .............................................................................................................................. 34
8. Torts Descended from the Action in Trespass ................................................................................ 36
8.1 Protecting Physical Integrity .............................................................................................................................. 36
8.2. False Imprisonment .......................................................................................................................................... 36
8.3. Defences to Intentional Interference with the Person ....................................................................................... 37
8.3.1. Infancy ....................................................................................................................................... 37
8.3.2 Self Defence and Defence of Others .......................................................................................... 37
8.4. Medical Treatment and Consent ....................................................................................................................... 38
8.5 Sexual Wrongdoing and Intrusion ..................................................................................................................... 39
8.5.1 Limitation periods ...................................................................................................................... 39
2
Introduction
671122 v. Sagaz industries Canada Inc. () ............................................................................................8
Allen v. New Mount Sinai Hospital.................................................................................................... 38
Assiniboine School Division No. 3 v. Hoffer (Man. C.A. 1971) ............................................................ 23
Athey v. Leonati (SCC 1996) .............................................................................................................. 20
Athey. v. Leonati (SCC 1996) ............................................................................................................. 24
Avco Financial Services Realty Ltd. V. Norman (Ont. C.A. 2003) ......................................................... 28
B.D.C. Ltd. v. Hofstrand Farms Ltd (SCC 1986) ................................................................................... 29
B.M. v. British Columbia (Attorney General) (BCCA 2004) .................................................................. 21
Babiuk v. Trann (2005 SKCA)............................................................................................................. 37
Barker v. Corus UK Ltd, (UKHL 2006) ................................................................................................. 22
Bazley v. Curry (SCC 1999) ..................................................................................................................8
Bevilacqua v. Altenkirk (BCSC 2004) .................................................................................................. 34
BG Checo International Ltd. v. British Columbia Hydro and Power Authority (SCC 1993) .................... 27
BG Checo International Ltd. v. British Columbian Hydro and Power Authority (SCC 1993) .................. 11
Bird v. Jones .................................................................................................................................... 36
Bishop v. Art & Letters Club of Toronto et al. (Ont. H.C. 1978) ........................................................... 24
Bolton & Others v. Stone (England 1951) .......................................................................................... 16
Bradford v. Kanellos (c.o.b. Astor Delicatessen & Steak House)(SCC 1974) ......................................... 24
Brenner et. al. v. Gregory et. al.(O.R. 1973) ....................................................................................... 18
Brito (Guardian ad litem of) v. Woolley (BCCA 2003) ......................................................................... 15
Brown v. Rolls Royce (? 1960) ........................................................................................................... 17
Canada v. Saskatchewan Wheat Pool (SCC 1983) .............................................................................. 18
Chester v. Afshar (UKHR 2004) ......................................................................................................... 22
Child, Family, and Community Service Act (BC) ................................................................................. 38
Childs v. Desormeaux (SCC 2006) ...................................................................................................... 14
Cook v. Lewis (SCC 1951) ...................................................................................................................7
Cook v. Lewis (SCC 1951) .................................................................................................................. 21
Cooper v. Hobart (SCC 2001)............................................................................................................. 12
Cooper v. Hobart (SCC 2001)............................................................................................................. 31
Crocker v. Sundance Northwest Resorts (SCC 1988) .......................................................................... 13
Design Services Ltd. v. Canada (SCC 2008) ......................................................................................... 30
Devji v. Burnaby (District) (BCCA 1999) ............................................................................................. 26
3
Introduction
Dobson (Litigation Guardian of ) v. Dobson (SCC 1999) ...................................................................... 33
Dooghue v. Stevenson (HL 1932) ...................................................................................................... 12
E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia (SCC 2005) ..........8
Ediger (Guardian ad litem of) v. Johnston (BCSC 2009) ...................................................................... 34
Fiala v. Cechmanek (AB C.A. 2001) .................................................................................................... 19
Freeman v. Sutter (M.J. 1996)........................................................................................................... 35
Good-Wear Treaders Ltd. v. D & B Holdings Ltd. et al. (N.S. C.A. 1979)............................................... 25
Gorris v. Scott (Exchequer 1874) ....................................................................................................... 18
Haskett v. Equifax Canada Inc. et al. (Ont. C.A. 2003) ........................................................................ 28
Health Care and Care Facility Act (BC) ............................................................................................... 38
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (HL 1964) ............................................................... 27
Heisler et al. v. Moke et al. (Ont. H.C. 1971) ...................................................................................... 19
Hercules Managements Ltd. v. Ernst & Young (SCC 1997) .................................................................. 28
Hill. V. Hamilton-Wentworht Regional Police Services Board (SCC 2007) ............................................ 32
Hollis v. Dow Corning Corporation (SCC 1995) ................................................................................... 15
Home Office v. Dorset Yacht Company (HL 1970)............................................................................. 12
Horsley (Next friend of) v. MacLaren (SCC 1971) ............................................................................... 16
Hughes v. Lord Advocate (HL 1963)................................................................................................... 23
Infants Act (BC) ................................................................................................................................ 38
Jaman Estate v. Hussain (2002) ...........................................................................................................9
Jeeves (Guardian ad litem) v. Swanson (BC 1995) .............................................................................. 37
Jordan House Ltd. v. Menow (SCC 1973) ........................................................................................... 13
Just v. British Columbia (SCC 1989) ................................................................................................... 31
Kamloops (City) v. Nielson (SCC 1984) ............................................................................................... 12
Kamloops (City) v. Nielson (SCC 1984) ............................................................................................... 31
Katzman v. Taeck (Ont. C.A. 1982) .................................................................................................... 25
Laferrier v. Lawson (SCC 1991) .......................................................................................................... 22
Lauritzen v. Barstead (Alta S.C. 1965) ............................................................................................... 23
M. Hasegawa & Co. v. Pepsi Bottling Group (Canada), Co. (BCCA 2002) ............................................. 29
Malette v. Shulman (Ont. C.A. 1990) ................................................................................................. 38
Martin v. Capital Health Authority (ABQB 2007) ............................................................................... 22
McGhee v. National Coal Board (? 1972) ........................................................................................... 20
4
Introduction
Mercer v. Gray (Ont. C.A. 1941) ........................................................................................................ 25
Mulloy v. Hop Sang .......................................................................................................................... 38
Mustapha v. Culligan of Canada Ltd. (SCC 2008) ................................................................................ 26
Nancy B. v. Hotel-Dieu de Quebec (Hospital) .................................................................................... 38
Negligence Act (BC) ............................................................................................................................9
Negligence Act, R.S.B.C. 1996, c. 333 ................................................................................................ 10
Nespolon v. Alford et al. (Ont C.A. 1998)........................................................................................... 19
Nolan v. Toronto (Metropolitan) Police Force (Ont. 1996) ................................................................. 37
Non-Marine Underwriters v. Scalera (SCC 2000)................................................................................ 36
Norberg v. Wynrib (SCC 1992) .......................................................................................................... 39
Odhavji Estate v. Woodhouse (SCC 2003).......................................................................................... 13
Overseas Tankship Ltd. v. Morts Dock & Engineering (The Wagon Mound No. 1)(JCPC 1961).............. 23
Palsgraf v. The Long Island Railroad Co. (NY CA 1928) ....................................................................... 11
Paris v. Stepney Borough Council (England 1951) .............................................................................. 16
Paxton v. Ramji (Ont. C.A. 2008) ...................................................................................................... 34
Pope v. RGC Management (AB QB 2002) ........................................................................................... 19
Preston v. Chow (2002 Man. C.A.) .................................................................................................... 33
Reibl v. Hughes (SCC 1980) ............................................................................................................... 15
Reibl v. Hughes (SCC 1980) ............................................................................................................... 38
Rentway Canada Ltd. v. Laidlaw Transport Ltd. (Ont. C.A. 1989) ........................................................ 17
Resurfice Corp. v. Hanke (SCC 2007) ................................................................................................. 21
Ryan v. Victoria (City) (SCC 1991) ...................................................................................................... 18
Sindell v. Abbott Laboratories (US) ................................................................................................... 23
Smith v. Inglis Lts. (? 1978) ............................................................................................................... 24
Snell v. Farrell (SCC 1990) ................................................................................................................. 20
Stansbie v. Troman (? 1948) ............................................................................................................. 25
Stewart v. Pettie (SCC 1995) ............................................................................................................. 14
T.O v. J.H.O (BCSC 2006) ................................................................................................................... 37
ter Neuzen v. Korn (SCC 1995) .......................................................................................................... 18
Van Mol (Guardian ad Litem of) v. Ashmore (BCCA 1999) .................................................................. 16
Vaughan v. Menlove (England 1837) ................................................................................................. 19
Videto et al. v. Kennedy (Ont. C.A. 1981) .......................................................................................... 15
5
Introduction
Waldick v. Malcolm (SCC 1991) ......................................................................................................... 17
Walker Estate v. York Finch General Hospital (SCC 2001) ................................................................... 21
Warren v. Camrose (City) (AB C.A. 1989) ........................................................................................... 17
Watt v. Hertfordshire (England 1954) ............................................................................................... 17
Wilhelm v. Hickson (? 2000) ............................................................................................................. 28
Wilshire v. Essex Area Health Authority (HL 1988) ............................................................................. 20
Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. (SCC 1995) ............................... 29
Yepremian v. Scarborough General Hospital (OCA 1980) .....................................................................9
6
Introduction
1. Introduction
1.1 Responses to Harm
Who can be found liable in tort law?
 Natural or 'juristic' persons (e.g. corporations, occasionally government)
1.2 Identifying Those Responsible for Harm
1.2.1 Joint Tortfeasors
-
-
Joint tortfeasors are people involved in common tortious action, though only one of them need have
committed the actual tort.
Requires a special relationship between tortfeasors:
1. One instigates/encourages another to commit tort;
2. Employer/Employee in scope of employment;
3. Principal/Agent;
4. Guilt by Participation (specific to fact pattern).
If the relationship holds, proof of tortious action against one establishes liability to all (joint and several
liability—each DF is liable for full damages, though courts now apportion blame for ease of future
lawsuits)
Cook v. Lewis (SCC 1951)
No damages where the tortfeasor indeterminable;
Issues:
-
In the case that fault cannot be assigned, can damages be awarded?
Facts:
Ratio:


Cook and others were hunting and had agreed to share their kills; Cook and other fired at roughly the
same time, and Lewis was shot in the eye.
Jury could not determine who fired the shot that hurt Lewis, and trial judge dismissed the action
Appeal judge rejected the notion that they were joint tortfeasors
When one of two parties is certain to have committed the tort, but it cannot be decided which one, then
neither can be responsible.
People joined in lawful pursuits with no reason to expect negligence and no opportunity to control others
are not jointly responsible.
1.2.2 Vicarious Liability
1.
Vicarious liability is policy based, giving the pf an alternative, potentially more solvent df.
It is a strict liability (requires no proof of wrongdoing by vicarious party, only requisite relationship)
Key to a tortfeasor is establishing the proper relationship between tortfeasor and vicarious party.
Employee/Employer relationship
 Policy concerns:
o Practical remedies to pf
 Employers take benefit, thus should absorb losses created
 Employers are in a better position to pay judgments.
 Employers can better spread the loss.
o Deterrence of future harm
 employer can select, train, and control employees to minimize risks.
Test for vicarious liability:
1.
Is there a requisite relationship? (Sagaz)
If no, there is no vicarious liability.
If yes, go to b.
7
Introduction
2.
Was the tort committed in the course of employment? (E.B.)
Requisite Relationship:

Employees are different from independent contractors (Sagaz). Independent contractors do not give rise
to vicarious liability.
Control test to differentiate: (inadequate)
Does the employer exercise sufficient control over the employee/contractor?
671122 v. Sagaz industries Canada Inc. ()
Requisite Relationship Factors—No Universal Test
Facts:

Held:

Ratio:
A consultant for an automotive supplier bribed a Canadian Tire employee to win the contract for the
supplier.
Consultant was in business for himself, thus Canadian Tire was not vicariously liable.
Functional Test to differentiate employees from independent contractors
Is the "person in business on his own account"? Consider these factors (not exhaustive)
 Control test
 Who provides equipment?
 Who hires helpers?
 Financial risk?
 Degree of responsibility over investment/management
 Opportunity for profit?
Bazley v. Curry (SCC 1999)
Scope of Employment Test
Ratio:
-
Vicarious liability holds when:
a. An employee performs an act authorized by the employer
b. The act is connected to an authorized act such that it is a mode (even if improper mode) of doing
the act.
General Approach to Vicarious Liability
-
To justify vicarious liability, a court should see:
(1) if precedent unambiguously determines if vicarious liability holds. If not,
(2) strict liability policy rationale will determine if vicarious liability is appropriate.
E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia (SCC 2005)
5 Factors in Vicarious Liability (retreat from Bazley)
Facts:
-
Man who is a general handyman for a residential school abuses boys. Recovery sought from school.
-
5 Factors in Determining Vicarious Liability:
1. opportunity to abuse power
2. extent act may further aims of employer
3. relation to friction, confrontation, or intimacy inherent to enterprise
4. power conferred over victim
5. vulnerability of potential victims
Ratio:
Yepremian v. Scarborough General Hospital (OCA 1980)
8
Introduction
Liability of Doctors:

3:2 decision: Hospitals do not have a non-delegable duty towards patients in relation to doctors with
hospital privileges. In other words, hospitals are not vicariously liable for doctors with hospital
privileges.
Jaman Estate v. Hussain (2002)
Vicarious Liability of Hospitals: Policy Considerarations

Note:
-
Vicarious Liability Might be appropriate for Hospitals when the patient has no choice of doctor (e.g.
emergency care).
Policy considerations:
1. Public relies on hospitals and and typically cannot question competence of staff.
2. Patients cannot discern employees from those with privileges. It is unfair to ask patients to sort
this out when bringing an action. Presentation at hospital=should be able to sue hospital.
Parents are not vicariously liable in common law, but sometimes by statute for intentional property
damages.
1.2.3 Joint and Several Liability
Several liability (separately [individually] liable)
Multiple tortfeasors causing indivisible damage are joint tortfeasors or several concurrent tortfeasors. If
there is contributory negligence, the pf must collect from each individually (only severally liable).
Negligence Act (BC)
-
Where more than one df is liable, they are made jointly and severally liable.
4.2(a) More than one defendant joint and severally liable can be individually responsible for the global
damages awarded.
4.2(b) Where one party pays the global damages, that party can collect or bring an action to collect
against the other liable party or parties.
s. 4 does not apply where there is contributory negligence (remedy must be sought from one party at a
time)
1.2.4 Victim Contribution (Contributory negligence)
-
Contributory negligence is a partial defence against a negligence claim.
Contributory negligence is the failure of a plaintiff to take reasonable care for his own safety, which
contributes to the harm.
Rule of Last clear chance: if the defendant had the last clear chance to avoid the incident, he is wholly
responsible for it. Now, legislation apportions losses in the case of contributory negligence (see
Negligence Act, below).
3 Sorts of Contributory Negligence:
1.
2.
3.

Plaintiff negligence causes accident
Plaintiff negligence does not cause accident, but places the plaintiff in the position of foreseeable harm
from Df’s negligence.
Plaintiff fails to take protective measures in the face of foreseeable dangers.
Determined by the objective standard of the reasonably prudent person.
Considered factors for Contributory Negligence:
1.
2.
3.
4.
5.
Foreseeability of harm
Likelihood of damage
Seriousness of threatened damage
Cost of precautionary measures
Exigent circumstances
9
Introduction
6.
Utility of pf conduct. (i.e. police officers)
Courts tend to give small reductions (up to 30%) in most cases.
Negligence Act, R.S.B.C. 1996, c. 333
-
s. 1: liability is apportioned by fault; where fault cannot be determined, liability is apportioned equally
between parties.
s. 2: damage is in $, and liability in %; pf can claim % apportioned to each party;
10
Negligence: Duty of Care
2. Negligence
2.1 Introduction
Elements of a Negligence Action: (in addition to damages above diminimus)
1.
Duty of Care: (binary)
There must exist a legally recognized duty to avoid harm to pf. This both expands and limits
negligence. ( ~duty of care -->~negligence).
The existence of a duty is typically a judicial decision, with limited legislation.
2. Breach of Standard of Care: (Threshold)
Df conduct must fall below standard of care.
3. Causation:
Df’s action must have caused the damages.
4. Remoteness:
The damages cannot be too far removed from the action of the df.
Another way to look at it:
Core Elements:
Negligent Act (threshold)
Causation
Damage (above diminimus)
Control Devices:
1. Duty of care (binary)
2. Remoteness of damage
Defences:
1. Contributory Negligence (partial)
2. Voluntary assumption of risk (complete)
3. Illegality (complete)
4. Inevitable accident (complete)
BG Checo International Ltd. v. British Columbian Hydro and Power Authority (SCC 1993)
Summary of Negligence tort.
Modern Negligence Action:
Negligence makes no reference to state of mind. It is simply a cause of action that refers to conduct that
falls below a usual standard.
Negligence may be either an act or an omission; but in either case, injury must result from this exposure,
rather than simply exposure to risk.
The 'reasonable person' is the standard against which the df’s actions are held.
2.2 Duty of Care
2.2.1 Origins of Duty of Care
Palsgraf v. The Long Island Railroad Co. (NY CA 1928)
Specific Duty of Care Necessary for Negligence action
Facts:
-
PF was at a railway station where a passenger being helped onto a moving train dropped a package of
fireworks which exploded and dislodged a scale which hit the pf.
Held:
Df did not owe a duty of care to the pf, even though the jury thought he did.
Ratio: (Cardozo)
There must be a specific duty owed to an injured person in order to assert negligence.
11
Negligence: Duty of Care
Dissent: (Andrews)
Wrong is established through exposing others to risk; deciding factor is whether the wrongdoer should be
held liable.
Dooghue v. Stevenson (HL 1932)
The Neighbour Principle
Facts:
Ratio:
Note:
-
Decomposed snail in an opaque container of ginger beer.
Persons have a general duty based on reasonable foreseeability.
Neighbor principle: Duty of care arises from some relation or proximity between the parties (could be a
class of people rather than a specific individual)
Courts retreated quickly from this position, and it redeveloped slowly.
Home Office v. Dorset Yacht Company (HL 1970)
Exception to Neighbour Principle: Good Policy Reason
Facts:
Ratio:
-
Young men escape juvenile detention and damage some yachts.
The neighbor principle is in full force except when there is a good policy reason not to apply it. No good
policy reason here.
Kamloops (City) v. Nielson (SCC 1984)
Anns/Kamloops Test for Duty of Care
Facts:
Ratio:
-
City does not stop builder from building house on foundation not up to code. Foundation subsides after
new owner buys house.
Anns/Kamloops Test
1. Is there a sufficient relationship of proximity such that damage to the pf is reasonably foreseeable by
the df?
2. If 1 is satisfied, is it nonetheless negated by any policy consideration?
2.2.2 The Current Approach to Duty
Cooper v. Hobart (SCC 2001)
Anns/Cooper Test (reformed Anns/Kamloops)
Facts:
Ratio:
-
Party sues Registrar of Mortgage Broker for damages from a company that the Registrar had licensed. (i.e.
claim is that registrar failed to oversee conduct of licensed company, resulting in damage).
Anns/Cooper Test
1.
(a)Was the harm that actually occurred a reasonably foreseeable consequence of the df’s act?
(b)Is there a proximate relationship between the parties? Notwithstanding, are there good
reasons that liability should not be recognized here?
 Note that physical, social, circumstantial, causal closeness can be considered, as well as
closeness created by representation, assumption of responsibility, reliance, reasonable
expectations (Osborne).
12
Negligence: Duty of Care

2.
In general, how do we differentiate the relationship to the pf from the relationship to
the world?
(If the duty is novel) Are there other policy factors that should negate the duty?
2.2.3 Examples of Proximity
Proximity:
Nearness in space, time or relationship.
Foreseeability:
Being aware beforehand or predicting.
Note: Misfeasance = dangerous conduct; nonfeasance = failure to negate independently created dangers.
Odhavji Estate v. Woodhouse (SCC 2003)
Police Chief owes duty to family of person shot by police
Facts:
-
Officers under supervision of Woodhouse failed to comply with an investigation into the fatal shooting of
the pf. Family suffered distress as a result of the negligent investigation.
Reasoning:
1) Police chief can reasonably foresee that failure of his officers to comply with an investigation could
harm the pf.
2) There is a relatively direct causal link between alleged misconduct and the harm complained about.
3) There is already statutory obligation on the part of the chief to comply, thus no policy factors negate
it.
Crocker v. Sundance Northwest Resorts (SCC 1988)
Resort owes duty to participant in a dangerous event it sponsors
Facts:
Drunken pf was allowed to compete in a dangerous tubing activity, resulting in quadriplegia.
Held:
75%/25% split because of contributory negligence.
Reasoning:
1. Was a duty of care owed?
a. Yes. Commercial nature of competition, recognition of incapacity, with the foreseeability of
danger to pf.
2. What was the standard of care? Was it met
a. DF had many opportunities to prevent the pf from competing, none of which were a serious
burden on the DF, but none were taken. Standard was not met.
3. Did failure to meet the standard of care cause the injury?
a. Yes. An intoxicated person was clearly at greater risk.
4. Was the risk voluntarily assumed by the pf?
a. No. Only applies where both physical and legal risks are assumed.
5. Did the waiver create a contractual defence?
a. PF did not realize he was signing a waiver—he thought it was an entry form.
6. Was the pf contributorily negligent?
a. Yes.
Jordan House Ltd. v. Menow (SCC 1973)
Alcohol serving establishment owes duty of care to drunk patrons
Facts:
Ratio:
Intoxicated driver failed to heed warning of another motorist.
Hotel was aware of intoxication, but continued to serve (in violation of liquor laws).
13
Negligence: Duty of Care
-
An alcohol-serving establishment owes a duty of care to patrons who become intoxicated and cannot look
after themselves.
Stewart v. Pettie (SCC 1995)
Commercial host serving alcohol owes duty to third parties
Facts:
Ratio:
-
Man gets drunk at an establishment and crashes car; however, two other women who were not drinking
were with him.
A duty is owed as a natural extension of the duty to one who is drinking, since harm of another is
reasonably foreseeable.
Though a duty is owed, it is negated in this instance because:
a. Drunk man was in care of 2 sober women (risk was therefore not foreseeable)
b. Causation not proven.
Childs v. Desormeaux (SCC 2006)
Social Host does not owe duty to 3rd party injured by guest; Onus for duty test; Nonfeasance
Facts:
New years eve BYOB; guest leaves intoxicated and crashes, injuring and killing parties in other car.
Reasoning:
1. Is the duty novel?
a. Yes.
2. Anns Test:
a. Sufficient proximity—what links the hosts to 3rd party drivers?
i. Foreseeable? No; if hosts did not/ought not know df was impaired, therefore no
foreseeability.
ii. Failure to act: (nonfeasance)
3 Categories for Positive duty:
1. Df attracts pf to inherent/obviously risky endeavour df creates/controls.
Party w/ alcohol not inherently risky.
2. Paternalistic relationship of supervision/control.
3. Public function or Commercial Enterprise with implied responsibilities to public
at large.
This case does not fall into these categories, nor is there justification for a
positive duty otherwise; therefore no positive duty.
No need to move on to second stage of Anns test.
Ratio:
“Hosting a party at which alcohol is served does not, without more, establish the degree of proximity
required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an
intoxicated guest.”
Question is left open whether there would be a duty if the host continued to serve alcohol to visibly
intoxicated guest.
Clarification of Duty Test:
o Reasonable foreseeability not enough in nonfeasance.
o Onus on pf for new duty analysis.
o If stage 2 is reached, df bears onus of showing negation by policy.
14
Negligence: Duty of Care
2.2.4 The Duty to Warn
Hollis v. Dow Corning Corporation (SCC 1995)
Learned Intermediary Rule
Facts:
Ratio:
-
Woman is not sufficiently warned of dangers of implant which later materialize. Dow failed to discharge
its duty by not giving the attending physician adequate information.
Learned intermediary rule allows medical manufacturers to warn physicians where they will probably not
be able to contact the consumer directly.
The duty to warn in this case is continuing, and must be complete to be a discharge of the duty.
2.2.5 Medical Malpractice
Reibl v. Hughes (SCC 1980)
Physician’s duty to disclose Material and Special risks (informed consent)
Facts:
Ratio:
-
Pf was left half paralyzed from a stroke that came during or after an elective arterial surgery. He was not
warned of this consequence by physician.
For informed consent, surgeon has to answer any specific questions asked about risks, plus disclose the
nature of the material and special risks. (This includes risks with low probability but severe results like
death or paralysis).
Videto et al. v. Kennedy (Ont. C.A. 1981)
Elements of Physician’s duty of disclosure for informed consent
Facts:
Ratio:
1.
2.
3.
4.
5.
6.
7.
8.
-
Catholic woman undergoes laparotomy sterilization. Her bowel is perforated, leading to potentially fatal
sickness, future surgeries and unsightly scars. She was not informed of this possibility.
Professional standards are a factor, but not conclusive of whether a risk is material/should be disclosed.
Duty depends on what surgeon knew/should have known about the patient's concerns.
'Mere possibility' risks need not be disclosed. (Exception is if serious consequences follow, which makes
these material risks.)
Patient is entitled to an explanation of nature/gravity of operation.
Dangers of surgery generally (i.e. anaesthetic, infection) do not have to be disclosed (subject to above).
Scope of duty must be decided on the facts of the case.
Emotional condition may warrant physician’s generalization/withholding of specific information.
Whether a risk is material and whether a duty is breaches are questions for the trier of facts.
In this case, disclosure was adequate because the surgeon did not know of the pf’s concerns about
scarring, and case did not focus on possibility of death.
Brito (Guardian ad litem of) v. Woolley (BCCA 2003)
Low risk-bad consequence test
Facts:
Ratio:
-
Mother sues Dr after cord prolapsed on second twin; thinks she should have been offered C-section.
Risk should have been disclosed (low risk-bad consequence test)
Modified objective test—failure to disclose did not contribute to injury. Disclosure would not have
changed decision for regular birth.
15
Negligence: Duty of Care
Van Mol (Guardian ad Litem of) v. Ashmore (BCCA 1999)
Full capacity person entitled to know about alternative procedures
Facts:
Ratio:
-
16 yr old girl left paraplegic after heart surgery; might have been avoided by newer technique not offered.
Someone of “full age and capacity” is entitled to know about alternative methods with risks/advantages,
and entitled to offer of a second opinion.
2.2.6 Rescuers and Good Samaritan
Horsley (Next friend of) v. MacLaren (SCC 1971)
1st Rescuer owes duty to 2nd rescuer if 1st rescuer’s rescue attempt is negligent
Facts:
Ratio:
-
Boat operator follows improper procedure in rescue attempt; as a result, another passenger attempts
rescue. Rescuer and rescuee both die.
If rescuer is negligent in performing rescuer, he owes a duty of care (foreseeability) to another rescuer.
Majority: Improper rescue attempt, but not negligent.
Dissent: rescue was negligent; duty owed to pf.
2.3 Standard of Care
2.3.1 Unreasonable Risk
4 Factors Considered:
1. Probability of harm
2. Seriousness of potential injury
3. Cost of preventive measures
4. Utility of the risk-creating activity
Bolton & Others v. Stone (England 1951)
Foreseeability not sufficient; must be enough that reasonable person would take precautions
Facts:
Ratio:
-
Cricket ball hit out of field injures bystander; ball had been hit out of field ~6 times in 30 years.
Test: not enough for something to be foreseeable. Instead, risk must not be so small that a reasonable
person would still refrain from taking further safety measures.
Paris v. Stepney Borough Council (England 1951)
Standard of care depends on risk of degree and possible consequences
Facts:
Ratio:
-
One-eyed man left totally blind when eyes is struck by metal fragment at work.
Amount of care that is reasonable depends on degree of the risk and the possible results that flow.
16
Negligence: Standard of Care
2.3.2 The Learned Hand Formula
Formula: If Seriousness x Likelihood > cost of Avoidance, then risk is unreasonable.
Rentway Canada Ltd. v. Laidlaw Transport Ltd. (Ont. C.A. 1989)
Learned Hand Formula for Product Liability
Facts:
Ratio:
-
Two trucks collide when one's tread separates and headlights blow as a result of design defect.
In product liability, the courts balance the risk and utility of the design against cost/availability of safer
alternatives (essentially the learned hand formula.)
Watt v. Hertfordshire (England 1954)
Balancing risk against measures to eliminate and ends sought
Facts:
Ratio:
-
Car jack taken for emergency in vehicle not equipped for it; subsequently shifts and injures fireman.
Risk must be balanced against measures needed to eliminate it; risk must also be balanced against end
sought. Significant risks are reasonable when life/limb is to be saved.
2.3.3 Indices of Reasonableness
Warren v. Camrose (City) (AB C.A. 1989)
Industry standards are convincing, but not binding on courts
Facts:
Ratio:
-
Diver injured in municipal swimming pool.
Uniform industry practice/expert consensus are not binding on courts, but very strong evidence.
Pf cannot simply rely on possibility of other precautions when they are not commonly used and not
unreasonable.
Waldick v. Malcolm (SCC 1991)
Custom not binding on court
Facts:

Ratio:

Pf slipped on icy driveway visiting df.
Custom is not decisive; unreasonable customs are no answer to the duty of care owed.
2.3.4 Departure from Custom
Brown v. Rolls Royce (? 1960)
Negligence not inferred from failure to follow common practice
Facts:

Ratio:


Pf developed dermatitis from consistent contact with oil. Claims failure to provide cream was negligent.
Failure to follow usual practice may raise a prima facie case, but negligence is not inferred from it;
negligence must still be proven.
In this case, departure from custom is reasonable.
17
Negligence: Standard of Care
2.3.5 Statutory Standards
Canada v. Saskatchewan Wheat Pool (SCC 1983)
Breach of Statute ≠ Breach of Standard of Care
Facts:

Ratio:

Infested grain necessitated fumigation; infestation was breach of statute.
Breach of statute does not automatically imply breach of standard of care; this must be assessed on a
case-by-case basis.
Gorris v. Scott (Exchequer 1874)
Breach of statute can be evidence of breach of standard
Facts:

Ratio:

Sheep washed from ship; ship owner breached statutory duty relating to sanitation
Statutory violation is not evidence of breach of care unless the statute aims to prevent the evil which
actually occurred.
Ryan v. Victoria (City) (SCC 1991)
Compliance with statute not a defence to negligence
Facts:

Ratio:

Motorcyclist injured while crossing railway tracks; city argues that the tracks were in keeping with
legislation.
Compliance with a statute is not a sufficient defence against negligence; reasonable care must still be
taken.
2.3.6. Professional Standards
Brenner et. al. v. Gregory et. al.(O.R. 1973)
Reasonably Competent Professional standard
Facts:
Ratio:
-
Soliciter fails to order survey in property exchange, which ultimately reduces amount of land available to
pf’s.
Only negligence if solicitor failed to do what “an ordinarily competent solicitor” would do, unless specific
instructions are given.
ter Neuzen v. Korn (SCC 1995)
Facts:
Ratio:
-
Pf contracted HIV from artificial insemination procedure. It was not known generally at the time that HIV
could be contracted in this way.
Judge or jury cannot find negligence in regards to technical or complex procedures beyond their
understanding, so long as there was conformity with professional standards.
Exception is where standard practice fails to adopt obvious and reasonable precautions apparent to fact
finder.
18
Negligence: Standard of Care
2.3.7 Determining Reasonable Behaviour
Vaughan v. Menlove (England 1837)
Reasonable Person Standard Affirmed
Facts:
Ratio:
-
Hay caught fire and burned down adjacent cottages.
Reasonable, ordinarily prudent person is the standard measure of care.
2.3.8 Special Standards: Children and the Mentally Ill
Heisler et al. v. Moke et al. (Ont. H.C. 1971)
Negligence Test for Children
Ratio:
-
Two questions for children:
1. Does this particular child have the faculty to be found negligent?
2. Did this child act like a reasonable child of her age?
Pope v. RGC Management (AB QB 2002)
Adult Standards when youth engaged in “adult activity”
Facts:
Ratio:
-
12 year old hits woman in the face with a golf ball.
When a child is engaged in an ‘adult activity’, the reasonable person standard applies.
Nespolon v. Alford et al. (Ont C.A. 1998)
“Adult Activity” must refer to specific activity, not overall activities
Facts:
Ratio:
-
-
Friends drop off drunk kid on side of the road where he wants to be dropped. He is later hit by a car and
killed, causing the driver a psychological breakdown.
Must ask not if overall activity is normally an adult one, but if specific activity giving rise to negligence
allegations is an adult one: in this case, dropping off a friend is not an adult activity, and people in their
position would not have reasonably foreseen the danger of nervous shock.
Dissent: kids should have walked deceased to the door.
Fiala v. Cechmanek (AB C.A. 2001)
Negligence for the Mentally Ill
Facts:
Ratio:
-
Undiagnosed bipolar man has episode, chokes a woman in her car, causing an accident.
To escape liability, a sudden and without warning mental illness must:
1. Deprive person of capacity to understand/appreciate duty of care, OR
2. Deprive person of ability to discharge duty of care (i.e., lose control of actions.)
19
Negligence: Causation
2.4 Causation
2.4.1 The ‘But For’ Test
Note:
-
Factual causation is capture by the concept of causation in torts.
Legal causation is captured by the concept of remoteness in torts.
Athey v. Leonati (SCC 1996)
“But for” test for causation; df need not be sole cause
Facts:
Ratio:
-
-
Back injuries from a combination of car accident and stretching exercise.
“but for” test (general test for causation):
1. Identify harm.
2. Isolate specific act(s) of negligence by df.
3. Adjust df action to meet standard of care.
4. Determine if damages would still occur.
where it is unworkable, material contribution is used instead.
Onus is on pf to show that df caused injury.
Not necessary to establish that df negligence was sole cause of injury; no basis for reduced liability from
preconditions.
McGhee v. National Coal Board (? 1972)
Reverse Onus once Material Contribution established
Ratio:
-
If pf can show that the df materially increased risk of injury which has been realized, onus shifts to df to
show they did not cause the injury.
Wilshire v. Essex Area Health Authority (HL 1988)
Narrowing of McGhee
Facts:
Ratio:
-
Child born with incurable eye condition potentially as a result of too much oxygen that was negligently
given.
McGhee read narrowly.
2.4.2 The Difficulty of Proof
Snell v. Farrell (SCC 1990)
Inference of Causation: Scientific precision Not Necessary for causation (limited to medical context?)
Facts:
Ratio:
-
-
Woman goes blind in one eye after cataract surgery. Experts could not pin down exact cause, though a
stroke had occurred in the eye, and there had been some complications in the cataract removal.
Onus to show causation is on pf, and properly applied, the legal test is not too onerous.
Causation “need not be determined by scientific precision” (para 29). Even if the pf’s evidence does not
establish causation with certainty, failure to rebut by a df (especially one professionally able to do so like a
doctor) will lead to an inference of causation.
In other words, courts can infer causation without proof on balance of probabilities.
This inference of causation does not shift any onus to the df, as in McGhee.
20
Negligence: Causation
2.4.3 Multiple Wrongdoers and Contribution
Cook v. Lewis (SCC 1951)
Shift Burden of Proof in Causation?
Facts:
Ratio:
Note:
-
Pair are hunting; while both shoot, only one shot injures pf. Unable to prove which shot caused injury.
Df’s not only caused injury, but made it impossible for the pf to determine which df caused injury
(remedial right to establishing liability).
Given this, the presumption of proving which did not cause the injury is on the df’s.
This rule is infrequently used, and only with a small number of pf’s (2-3)
B.M. v. British Columbia (Attorney General) (BCCA 2004)
Material Contribution test Outlined (minority)
Facts:
Ratio:
-
Pf brought suit against an officer for failing to prevent an assault causing a murder and trauma to others
involved.
Majority (Smith and Hall)
No indication that prior legal sanctions had much deterrence; harm resulted from a discrete event; prior
events were not causal.
Donald J.A (dissent): test for inference of negligence (material contribution):
1. Breach of duty occurred
2. Damage occurs in area of risk created by breach
3. Breach materially increased risk of damage of type that occurred.
4. Practically impossible to show if breach caused or did not cause loss
2.4.4 Material Contribution
Resurfice Corp. v. Hanke (SCC 2007)
When to use Material Contribution
Facts:
Ratio:
-
Man puts water hose in zamboni gas tank; gas fumes explode and he sues manufacturer.
Use material contribution instead of ‘but for’ when:
1. Impossible for pf to prove injury with but for test. Impossibility must be because of something
outside pf control (e.g. limits of science)
2. Pf’s injury must fall within area of risk created by breach of duty by df
Walker Estate v. York Finch General Hospital (SCC 2001)
Material Contribution for tainted blood cases
Facts:
Ratio:
-
Pf’s are people who have contracted HIV from Canadian Red Cross blood transfusions. Question at trial
was whether proper screening would have prevented donation.
SCC says that proper test in similar tainted blood cases is material contribution test, though this case will
be decided on “but for” test, since trial judge asked the wrong question at trial.
Material Contribution test: apply when “but for” test is unworkable.
21
Negligence: Causation
2.4.5 Failure to Warn and Causation
Martin v. Capital Health Authority (ABQB 2007)
Determining if Duty to Warn has been met
Facts:
Ratio:
1.
2.
Retired RCMP has a tumor to be removed; he is informed of some risk, and maybe of all, but not in
understandable language. Stroke results, paralyzing him.
Was there adequate disclosure?
a. No: language was not clear enough to the layman to indicate the risk. (N.B. on appeal, the
judgment was overturned on this point).
If no, would a reasonable person if the pf’s situation have consented to surgery had he been informed of
the risks? (causation) (Left intact by appeal).
a. No: he had good reason to postpone. The fact that the surgery may have occurred later is
irrelevant.
Chester v. Afshar (UKHR 2004)
Temporal Issue in medical duty to warn
Facts:
Ratio:
-
Woman undergoes back surgery and is left crippled; she was not informed of that risk, and claims she
would have delayed surgery if she had known.
As a matter of policy, it doesn’t matter whether a patient would have permanently declined the surgery
or only postponed it. Only the fact that they would have declined at the time is important, and satisfies
causation.
2.4.6 Lost Chances and Medical Malpractice
Laferrier v. Lawson (SCC 1991)
Loss of chance for favourable outcome in medical malpractice not compensable
Facts:
Ratio:
-
-
(After Reibl v. Hughes)
Doctor negligently fails to inform patient of malignant tumor which ultimately killed her; it highly
uncertain if earlier treatment would have prevented death.
Loss of a chance of a favourable outcome is not compensable. (I.e. since negligence was established, but
causation was difficult, pf sought compensation on the basis that she had lost the chance for a more
favourable treatment. This approach is rejected.)
See also Gregg v. Scott (UK 2005)
2.4.7 Causation and Industrial Torts: The English and US Experiments:
Barker v. Corus UK Ltd, (UKHL 2006)
Facts:
Ratio:
-
Pf develops mesothelioma from exposure to asbestos in various places. Self employed, and had failed to
take adequate care of himself.
Damage should be apportioned and is several (not joint). It’s fair to defendants but leaves the plaintiff
uncompensated.
Legislature in the UK didn’t like the result and passed legislation saying that the plaintiff can recover
everything except the portion for which they are personally responsible.
22
Negligence: Causation
Sindell v. Abbott Laboratories (US)
Market Share Liability
Facts:
Ratio:
-
Drug causes cancer to daughters of takers. Many companies manufacture same drug with same formula,
and cancer happens after many years, so it is difficult to establish causation.
Court develops “market share liability”, where companies are responsible for the damages to the extent
that they are likely to have provided the drug. The companies then have the onus to show that they did
not supply the drug in a particular case.
2.5 Remoteness
Overseas Tankship Ltd. v. Morts Dock & Engineering (The Wagon Mound No. 1)(JCPC 1961)
Foreseeability is the test for remoteness; excludes highly improbable effects.
Facts:
Ratio:
-
Oil spillage and subsequent welding causes a fire that damages a ship and dockyard. The chain of events
leading to the fire are seen as highly improbably.
Liability depends upon reasonable foreseeability.
Liability does not hold for highly improbable effects, even if they are directly or naturally caused by his
actions. Similarly, even if an effect is not a direct result, if it is reasonably foreseeable, liability holds.
Essentially overturns directness test from Polemis is favour of a foreseeability test
Hughes v. Lord Advocate (HL 1963)
Specific consequences that come about need not have been foreseeable
Facts:
Ratio:
-
Boy trips over lamp near open manhole left by workers on break; lamp explodes, boy falls in and is
burned.
Precise details leading up to or of an accident need not be foreseeable, so long as an injury of the same
type is foreseeable.
Assiniboine School Division No. 3 v. Hoffer (Man. C.A. 1971)
General foreseeability of a sort of damage is sufficient for liability
Facts:
Ratio:
-
14 yr old boy loses control of “auto toboggan” while starting it. It his a gas pipe near a school, causing gas
to rise into the boiler room and cause an explosion and fire.
It is enough to establish liability if one can generally foresee “the sort of thing that happened”.
Specific extent and the way it occurs need not be foreseeable if the kind of damage is foreseeable.
Lauritzen v. Barstead (Alta S.C. 1965)
Recovery not contingent on foreseeing exact damages
Facts:
-
Df. Is driving his drunk foreman. Foreman grabs wheel and causes car to slip off the road. Df
subsequently drives car farther into ditch. The two are essentially stuck in the car for several days and
suffer frostbite. Pf’s wife leaves him as a result of his being crippled.
Ratio:
23
Negligence: Remoteness
-
Recovery not dependent upon both foreseeability of particular harm and sequence of events giving rise to
the harm.
(Awarded damages for frostbite, lost wages etc. but not the leaving of his wife, as this was too remote.)
2.5.1 The Thin Skull Rule
Bishop v. Art & Letters Club of Toronto et al. (Ont. H.C. 1978)
Thin Skull Rule: Once some harm foreseeable, liability not limited by existing condition
Facts:
Ratio:
-
Older haemophiliac is severely injured when he pushes too hard on a door and falls down stairs. Door
usually required a lot of force, but had recently been repaired.
Thin Skull rule: once harm to pf is foreseeable, df is liable for all consequences of negligence, even if
unexpectedly severe.
Athey. v. Leonati (SCC 1996)
Crumbling Skull Rule: not liable for injuries that would occur despite negligence
Ratio:
-
Limitation to thin skull (crumbling skull): df is liable for injuries caused, but not for effects of a preexisting condition that would have been experienced anyway.
2.5.2 Novus Actus Interveniens
Bradford v. Kanellos (c.o.b. Astor Delicatessen & Steak House)(SCC 1974)
Successful claim of “new intervening event”
Facts:
-
Ratio:
-
A fire breaks out on a restaurant grill because of negligence in cleaning. As a result, a CO2 fire
extinguisher is activated, making a hissing sound. The sound causes a patron to yell that there is a gas
leak, and everyone rushes from the restaurant. The pf is knocked off a stool and injured.
Majority (per Martland)
o Subsequent intervening event caused injuries, thus they were not foreseeable.
Dissent (per Spence)
o Actions of patron to yell “gas” was normal and foreseeable, thus df is liable.
2.5.3 Manufacturers, Distributors, Contractors and Remoteness
Smith v. Inglis Lts. (? 1978)
Unsuccesful claim of “new intervening event”
Facts:
Ratio:
-
A third prong cut off by delivery man allowed a defect in a refrigerator design to case the pf a severe
electrical shock.
Even though the negligence of a third party contributed, the manufacturer should have seen this
possibility, since the removal of the third prong was fairly standard practice. Therefore, the act was not
an intervening negligent act.
24
Negligence: Remoteness
Good-Wear Treaders Ltd. v. D & B Holdings Ltd. et al. (N.S. C.A. 1979)
Company will be liable to 3rd party IF IT KNOWS purchaser will ignore warnings
Facts:
-
Ratio:
-
Tire company sells tires not suited for weight and use of truck, with a warning against the use of the tires
but knowing full well they would be used in that way. Tires explode on a highway, causing an accident
and killing three people.
A company cannot escape liability to a 3rd party by warning a purchaser IF the company knows the
purchaser will use the product against the warning.
Stansbie v. Troman (? 1948)
Facts:
Ratio:
-
Contractor left alone in house leaves, shutting the door so that it does not lock. The house is burglarized.
A duty must arise from relationship between parties. Where relationship is contractual, duty must arise
within the scope of the contractual relation.
Though the thief was the direct cause of the harm, the contractor failed to take reasonable care to
prevent the very thing that happened, and is liable.
2.5.4 Multiple Medical Errors
Issue:
-
When a pf requires medical attention as a result of a df’s tortuous conduct, and the medical treatment
(through error or negligent error) worsens the harm, who should be responsible for damages?
Mercer v. Gray (Ont. C.A. 1941)
Traditional Approach: Negligent treatment for tort injury = novus actus interveniens
Ratio:
-
Complications/genuine medical errors: foreseeable as a result of the initial tort, thus the df is liable.
Negligent medical errors: novus actus interveniens, therefore initial tortfeasor not liable for negligent
treatment.
Katzman v. Taeck (Ont. C.A. 1982)
Modern Approach: Negligent Treatment = Foreseeable risk of tortious act; dr liable to df, not pf.
Ratio:
-
An intervening medical error might be seen as within foreseeable range of risk from initial tortfeasor.
Doctor’s negligence may not be considered a novus actus interveniens. If it is negligent, doctor may be
liable to pay df (not pf) for damages df pays to pf.
2.6 Defences to Negligence Actions
1.
2.
3.
Contributory Negligence:
Partial defence; applies where pf contributes to her own injuries.
Result: apportionment of damages.
Voluntary Assumption of Risk (volenti non fit injuria—“no injury is done to a person who consents”):
Applies where someone voluntarily consents to both the physical and legal risks.
i. Risk must be obvious and necessary to the activity.
ii. Agreement can be express or implied.
Full Defence.
Illegality (ex turpi causes non oritur actio—”from a dishonorable cause an action does not arise”):
Defence applies to: (Hall v. Herbert [SCC 1991])
i. Prevent profiting from illegal conduct
ii. Damages sought to evade criminal penalty.
25
Liability for Psychiatric Harm
3. Liability for Psychiatric Harm (Nervous Shock)
3.1 Historical Development of the Law
Devji v. Burnaby (District) (BCCA 1999)
Kamloops test for Psychiatric Harm (with Proximity Limits)
Facts:
Ratio:
-
Girl killed in car accident from negligent maintenance of road after broken water main.
Family is informed of her death, and subsequently visit the hospital to identify the body (which is not
mangled or deranged), and claim psychiatric shock.
Anns test is applicable.
Psychiatric Harm must be more than grief or surprise that naturally attend death.
Must be reasonably foreseeable that person of ordinary fortitude would suffer
3 Limits for Proximity:
1. Locational: pf must be present at or in immediate aftermath of accident.
2. Relational: Must have a close relationship (i.e. familial or other close rel’nship).
3. Temporal: onset of illness must be tied to accident.
Mustapha v. Culligan of Canada Ltd. (SCC 2008)
Leading case on Psychiatric Harm
Facts:
Ratio:
-
Man sees dead flies in sealed bottle of water; he subsequently develops a major depressive disorder.
He was awarded $341,000 in damages at trial, but overturned at both appeal levels.
Test for Liability (Anns Test)
1. Did the defendant owe the plaintiff a duty of care?
 Focuses on relationship between the two, tempered by foreseeability and policy.
2. Did the defendant’s behaviour breach the standard of care?
3. Did the plaintiff sustain damages?
 Psychological damages must be prolonged and more than the regular annoyances of life
to be compensable.
4. Were the plaintiff’s damages caused (at law) by the defendant’s breach?
 Remoteness concerns.
 Objective standard is applied; would a person of ordinary fortitude have suffered a
damage?
 This foreseeability can change if the df knows the particular situation of the pf.
26
Liability for Pure Economic Loss
4. Liability for Pure Economic Loss
4.1 Recognized Categories
-
The general question is whether courts should recognize liability where no physical/psychiatric harm has
occurred, only economic losses as the result of negligent behaviour.
Courts recognize such losses in five cases:
1. Independent liability of statutory public authorities;
2. Negligent misrepresentation;
3. Negligent performance of a service;
4. Negligent supply of shoddy goods/structures;
5. Relational economic loss.
4.2 Negligent Misrepresentation
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (HL 1964)
It is possible to claim damages from negligent misrepresentation
Facts:
Ratio:
-
Advertising company who has booked advertising slots on behalf of a client seeks through its bank to find
out if the client has good credit.
Representation given back about credit was unfounded.
Foreseeability is not a sufficient limit for economic losses.
There are concerns about negligent words (they can be broadcast, sometimes professionals give opinions
in social circumstances, etc.)
A special relationship is needed—of trust or reliance.
If reliance is reasonable in circumstances and one giving information knows it will be relied on, the
necessary relationship exists.
BG Checo International Ltd. v. British Columbia Hydro and Power Authority (SCC 1993)
Concurrent Liability in Contract and Tort
Facts:
Ratio:
-
-
Powerline construction company makes a bid based on certain information, which turns out to be
incorrect. They sue in tort and alternatively contract.
Majority (Per McLachlin and La Forest)
Right to sue in tort is not taken away by contract, though a contract may limit/negate tort liability.
Concurent action in tort and contract can be pursued unless a valid provision indicates that the parties
intended otherwise.
Three cases:
1. Contract more stringent than tort.
Probably wouldn’t sue in contract, though they can (i.e. for limitation dates, etc.)
2. Contract stipulates lesser duty than common law tort.
Little reason to sue in tort, since tort liability is limited by contract. However, the
provision must be clear and valid.
3. Contract and tort have coextensive duty.
Either avenue is available as the plaintiff chooses.
Dissent in part (Per Iacobucci)
Contract does not preclude common law duty of care.
If parties choose to stipulate duty expressly in the contract, consequences should be decided in contract.
27
Liability for Pure Economic Loss
Hercules Managements Ltd. v. Ernst & Young (SCC 1997)
Refinement of Anns/Kamloops for Negligent Misrepresentation
Facts:
Ratio:
-
-
Investors, relying on an apparently negligent audit statement, seek to sue auditors of a company that goes
bankrupt.
Underlying policy concern: indeterminate liability; no liability where it would become indeterminate.
Anns/Kamloops test is proper for negligent misrepresentation, with one modification:
o Under first branch, the reasonableness of reliance must be considered (since it is essentially
assumed in other cases.)
Duty of care arises under first stage of Anns/Kamloops where defendant ought to have reasonably
foreseen reliance by the plaintiff on the representation, and that such reliance is reasonable.
Avco Financial Services Realty Ltd. V. Norman (Ont. C.A. 2003)
Negligent Misrepresentation does not preclude Contributory Negligence
Facts:
-
Ratio:
-
-
Husband and wife get second mortgage on home with insurance. Mortgage is renewed each year, along
with insurance. Wife develops cancer, fails to qualify for insurance renewal, and subsequently dies.
Husband cannot pay back mortgage.
Mortgage rep. Made negligent misrepresentation about insurance.
Negligent misrepresentation and contributory negligence can co-exist. For example, even if a negligent
misrepresentation is made, but an extra step should reasonably be taken by other party and is not, this is
contributorily negligent.
There was not contributory negligence on the facts of this case.
4.3 Negligent Provision of a Service
Haskett v. Equifax Canada Inc. et al. (Ont. C.A. 2003)
Facts:
Ratio:
-
Equifax continues to report bankruptcy even though it is no longer legal to do so.
Similar to negligent representation, since the effect to the pf is based on his reliance.
It should have been foreseeable that negligent misrepresentations could damage the pf.
Not overrun by policy considerations of indeterminate liability.
Reliance is close enough to be analogous.
Wilhelm v. Hickson (? 2000)
Lawyer liable for negligently drawing up a will
Facts:
Ratio:
-
-
Beneficiaries sue for loss since lawyer negligently drafted will that otherwise would have benefited them.
Problems with liability in this case:
1. Work done for testator, not beneficiary.
2. No reliance on lawyer by beneficiary.
3. Contractual relationship, which excludes third parties.
4. Even in concurrent liability, no duty owed to beneficiary.
5. Difficult of restraining a judgment in wills from application to inter vivos gifts.
6. Illogical to impose duty on lawyer where no duty exists on testator.
Responses:
1. If no duty imposed, no one can make a claim.
28
Liability for Pure Economic Loss
2.
3.
4.
Need to assert the right that a person can direct where their property goes after their death.
No injustice to the lawyer.
Public reliance on lawyers for wills.
B.D.C. Ltd. v. Hofstrand Farms Ltd (SCC 1986)
Facts:
Ratio:
-
Courier, not knowing what It is delivering, fails to deliver a Crown Grant document in time for registration
to fulfill pf’s contract. As a result, pf’s contract comes to an end, and pf must pay back sums paid to it.
Anns/Kamloops test is applicable.
On the facts, fails proximity, since courier had no actual/constructive knowledge of potential effects on
third parties.
Further, there was no reliance by the plaintiff on the courier (the risk to the pf arose from its agreement
with the Crown).
Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. (SCC 1995)
Real and substantial danger test; liability of contractors and others in building construction
Facts:
Ratio:
-
-
-
Appeal concerns a motion to strike out the suit as disclosing no cause of action.
Subcontractor does shoddy work that makes siding on condo dangerous. Non-original condo owners
spend money to make the building safe, then sue contractor, subcontractor, and engineers for damages.
There is a policy distinction between shoddy goods and dangerous ones.
A subsequent owner can claim in damages the reasonable cost of making a building safe where
contractors (or other parties) negligence causes the building to be in dangerous condition. (using real and
substantial danger as the test.)
This does not make contractors liable for an indefinite time, to an indefinite class, or for an indefinite
amount. Time will be limited to life of building, (an practically much shorter); class is limited to future
owners—totally foreseeable; cost is limited to amount necessary to make building safe.
Not defeated by lack of contract, since this does not concern shoddy goods, but unsafe ones.
Also not defeated by caveat emptor, since pf’s demonstrably not in the best position to discover defects
(which was the underlying rationale for the policy).
M. Hasegawa & Co. v. Pepsi Bottling Group (Canada), Co. (BCCA 2002)
No pure economic loss claims in tort for non-dangerous shoddy products.
Facts:
Ratio:
-
K for bottled water; some bottled were found to contain mould, thus not sellable in Japan. Pf sues for
damages for cost of the bottled water that it destroyed.
No real and substantial risk to human health, thus does not fall under existing decisions for pure economic
loss.
Risks were allocated in contract; this suit is an after-the-fact attempt at insurance, thus no good for policy
reasons.
Note on Relational Economic Losses:
-
Apply where df negligently causes injury or property damage to 3rd party, where the pf suffers economic
loss by virtue of relationship (usually contractual) it had with the 3rd party or damaged property
This is the only category into which a joint venture is recognized.
E.g. Norsk – barge damages bridge, causes economic damages to train company, as they had to be rerouted, since they normally used bridge route
29
Liability for Pure Economic Loss
4.5 New Categories
Design Services Ltd. v. Canada (SCC 2008)
No duty of care between owner and subcontractors in tendering process
Facts:
Ratio:
-
Construction company loses out on bid to a non-compliant bidder.
Not a case of relational economic loss, because no property was damaged.
Not sufficiently proximate.
Ultimately, liability would be indeterminate, since the chain from employers to employees,
subcontractors, etc. goes on and on.
No new duty of care recognized
30
Tort Liability of Government
5. The Tort Liability of Government
Kamloops (City) v. Nielson (SCC 1984)
Introduction of operational/policy decision distinction
Facts:
Ratio:
-
Note:
-
Alderman builds a house, violating orders issued by the city. House is sold to someone who does not know
about defects in foundation.
If the city had made serious consideration of taking action and decided not to, it would be a policy
decision. However, their complete failure to act and to consider the appropriate course of action is
operational.
After Nielson, Local Government Act now exempts municipalities from liability for unenforced bylaws, or
for building permits it issues. Limitation period is 6 months, with notice of damage to the city within 2
months of damage occurring.
Just v. British Columbia (SCC 1989)
Differentiating policy and operation decisions of Government for Liability
Facts:
Ratio:
-
Man’s car struck by boulder that fell from slopes of highway, killing his daughter and injuring him. He
sues the gov’t for negligent maintenance of the roadway.
General principles for Crown Liability:
o Does a duty of care exist?
1. Is there a sufficiently proximate relationship?
 Does statute exempt/obligate gov’t?
 Is a pure policy decision involved (not generally reviewable)?
o Policy generally dictated at high levels, but may be made at lower
levels of authority.
o Rests on nature of decision, not decision maker.
o Budgetary allotments are generally policy decisions.
o Even policy decisions are reviewable if they are not a bona fide
exercise of discretion.
 Is there an operational decision involved (reviewable)?
o Is the system reasonable?
o Has the system been reasonably carried out?
o Are budgetary concerns influencing the operational decision
reasonable?
Cooper v. Hobart (SCC 2001)
Statute determines scope of proximity for public authorities
Facts:
Ratio:
-
-
Investors who advanced money to company suspended by registrar brings suit against registrar.
At Stage 1 of the Anns test:
o If the defendant is a public authority whose authority flows entirely from statute, then proximity
is also delimited by statute. (e.g., does the statute serve to protect the pf or class of pf’s?)
At stage 2 of the Anns test:
o Is the decision a policy or operation one?
31
Tort Liability of Government
Note:
-
This will tend to make action against public authorities more difficult, since the proximate relationship
must be suggested directly by the statute.
Hill. V. Hamilton-Wentworht Regional Police Services Board (SCC 2007)
Application of Cooper to Police Investigations
Facts:
Ratio:
-
-
Allegedly Improper police investigation of a subject.
Only applies to police investigation of specific subject, not any other relationship.
Application of Cooper:
o Prima facie duty—yes, since foreseeable, proximate (dealing with specific suspect, not a whole
world of suspects)
o Policy considerations: floodgates, chilling effect; both fail.
In this case, pf loses on the question of whether the officer met the standard of a reasonable officer
32
Immunity of Mothers
6. The Immunity of Mothers
Dobson (Litigation Guardian of ) v. Dobson (SCC 1999)
Mother does not owe duty of care to fetus
Facts:
-
Woman being sued by her child who was injured in a car crash before he was born, allegedly due to the
mother’s negligence.
Ratio:
Majority (Per Cory J.)
A duty of care is owed by a mother to her fetus; however, policy negates this duty.
The concern is that every aspect of a pregnant woman’s life could come under judicial scrutiny, with no
rational limits. Further, it would be damaging to the relationship between mother and child to allow suits.
As a second justification, Cory J. points to the difficulty of articulating the “reasonable pregnant woman”
standard, and taking into account lifestyle choices of mothers.
Ultimately, this is a place where intervention needs to come from the legislature, not from the courts.
Dissent, per Major J.
A born child suing for prenatal injuries does not assert foetal rights, and is consistent with the right of a
born child to sue a third party for prenatal injury.
In this case, finding liability does not restrict the choice of the mother, since she already was under legal
obligations to drive with care.
“Where a pregnant woman already owes a duty of care to a third party in respect of the same behaviour
for which her born alive child seeks to find her liable, policy considerations pertinent to the pregnant
woman’s freedom of action cannot operate so as to negative the child’s prima facie right to sue.”
Concerns about familial unity would have to be equally applied, making it impossible for any child to sue a
parent or vice versa.
Note:
Maternal Tort Liability Act (AB): in response to this case, the Alberta legislature has allowed that a mother
can be liable to a child after birth for injuries sustained from the mothers use of an automobile, provided
that she was insured. Liability is limited to what could be recovered under insurance.
Preston v. Chow (2002 Man. C.A.)
No Apportionment of blame to mother for prenatal negligence
Facts:
Ratio:
Note:
-
Child suffers brain damage from exposure to genital herpes during birth; hospital is sued for negligence,
and tries to have blame apportioned in part to the mother.
Mother cannot be apportioned responsibility, as this is essentially the same as naming her a party to the
suit.
U.K. Legislatures have mandated that, where a parent shares responsibility for pre-natal injuries, liability
of other party should be reduced by the amount of responsibility of the parent
33
Negligence and Reproduction
7. Negligence and Reproduction
Paxton v. Ramji (Ont. C.A. 2008)
No duty of care owed by doctor to future child of patient
Facts:
Ratio:
-
-
Child born deformed as a result of mother taking accutane. Husband had had vasectomy 4 1/2 years
earlier.
No duty of care owed by doctor to fetus because:
o Although the harm is reasonably foreseeable,
o Potential for conflicting interests could put doctor in impossible position, and
o Relationship to fetus is indirect, since it goes through the mother.
Even if a duty of care were recognized above, residual policy considerations would negate the duty.
Ediger (Guardian ad litem of) v. Johnston (BCSC 2009)
Paxton only applies to unconceived; physician owes duty of care to fetus
Facts:
Ratio:
-
Dr. attempts forceps procedure during birth; caesarean section undertaken, but not quickly enough to
prevent serious brain damage.
Long history of judicial recognition that a physician does owe a duty of care to a fetus as a consequence of
his duty to the mother.
Anything in Paxton concerning a living fetus is obiter.
Bevilacqua v. Altenkirk (BCSC 2004)
Assessing Damages for Wrongful Birth
Facts:
Ratio:
-
-
-
Couple conceives after failed vasectomy; they seek the full cost of raising the unplanned child.
4 Potential Approaches to damages:
1. No recovery: child is seen as a blessing, with no damages warranted.
 Fails to compensate for real costs incurred.
2. Total recovery: full cost of raising child; no deduction for benefits.
 At odds with tort principles; no reason to award damages while ignoring benefits.
 Also, no one-to-one ratio between dollars spent raising child and loss to parents.
3. Offset/benefits: costs of raising child minus benefits accruing to parents.
 Impractical: very difficult to assess cost of raising and value of benefit of a child.
 Undesirable: courts shouldn’t value the life of a child in terms of benefit.
4. Limited damages: damages for pregnancy, birth, setting up accommodations. No costs for raising
child.
 Fails to compensate for real costs and losses.
Instead, courts should address the issue as primarily non-pecuniary damage, taking into account:
1. Reasons for limiting family size
2. Actual circumstances at time of sterilization, pregnancy and childbirth.
Parents may choose how to raise the child, but those choices do not necessarily entitle them to
unreasonable compensation.
Woman gets 30K, man gets 20k.
34
Negligence and Reproduction
Freeman v. Sutter (M.J. 1996)
Doctor does not owe duty of care to father of patients child
Facts:
Ratio:
-
Man impregnates woman (not his wife), who subsequently has failed abortion.
While damage to father might be foreseeable, he received neither treatment nor advice (and apparently
had no knowledge of the mother’s intentions) and there is no claim by the mother.
In short, the relationship is too remote for the dr. to owe a duty of care independent of that which the dr.
owes to the mother.
35
Trespass Torts
8. Torts Descended from the Action in Trespass
8.1 Protecting Physical Integrity
Assault:
reasonable apprehension of imminent/immediate battery.
Only have to prove immediate apprehension, not fear, etc. No damage necessary.
Battery:
unwanted/offensive contact. Not necessrarily bodily contact (i.e. can knock a purse out of someone's
hand). Medical treatment w/o consent is battery.
Osborne: "direct, intentional, and physical interference with the person of another that is either harmful
or offence to a reasonable person." p. 238.
Pf only has to prove interference
Non-Marine Underwriters v. Scalera (SCC 2000)
Pf must prove only that contact occurred. No change in Onus for sexual battery.
See handout
Facts:
Df seeks protection of insurance against an allegation of sexual battery.
Decision:
Unanimous: exclusion clause applies.
Split: Which party has to prove consent in a trespass action for sexual battery (non-consensual sexual
contact)
McLachlin (majority):
o No reason to abandon traditional onus of proof in battery
o Battery is rights based, thus only the fact of the interference need be demonstrated for a prima
facie case.
o Changes to this tort would also be inconsistent with changes in the criminal law (i.e. for honest
but mistaken belief in consent requires that a df demonstrate he took reasonable steps to obtain
consent.)
o Further, if the df believed he had consent, he is in the best position to demonstrate why he
believed.
o df must prove consent to sexual contact (and all cases of battery).
o Constructive consent is a defence to sexual battery. (Note that mistake is traditionally not a
defence). If the reasonable person would have believed that consent had been given, there will
be no liability. (Note that the criminal standard requiring the df to take reasonable steps is not
imported into sexual battery.)
Iacobucci (Minority):
o A new tort of sexual battery with a different onus of proof is needed.
 In most battery, consent is not an issue, and we don’t expect consent to harm. Where
intent to harm is less obvious, consent is generally clear.
Sexual activity only becomes harmful when non-consensual. Therefore, it is different from other
forms of battery, and pf must prove non-consent to the sexual contact (instead of df proving consent)
as a part of proving the element of offensive physical contact.
8.2. False Imprisonment
Bird v. Jones
Must be complete restriction of physical liberty
36
Trespass Torts
Jeeves (Guardian ad litem) v. Swanson (BC 1995)
Reasonable perception of total restraint the same as total restrain in false imprisonment
Facts:
-
Woman and child locked in store when they did not pay for poor engraving.
-
Anyone either totally constrained from leaving fixed boundary or who reasonably feels so constrained
can claim false imprisonment.
Damages to small child who was upset but did not understand the circumstances are nominal.
Ratio:
-
Nolan v. Toronto (Metropolitan) Police Force (Ont. 1996)
Example of False imprisonment; intentional infliction of mental distress
Facts:
-
Note:
-
Man wrongfully arrested on warrant with same name/birthdate, but not aboriginal like pf. Officers ought
to have known they did not have sufficient grounds for arrest. Inflicted mental distress through racist
remarks. Pf suffers severe consequences in school etc. as a result of remarks.
Intentional Infliction of Mental Suffering:
1. Act/statement that is offensive.
2. Calculated to produce harm (can be inferred--Nolan)
3. Produces harm (physical or psychological).
8.3. Defences to Intentional Interference with the Person
8.3.1. Infancy
T.O v. J.H.O (BCSC 2006)
Only intent necessary for battery, not understanding of harm; Criminal Code age cut-off for consent
Facts:
Ratio:
-
Younger brother (somewhere between 4-12) sexually battered by oldest brother (somewhere between 816). Older brother argues he did not understand sexual conduct, and consent.
No age limit for intentional torts; age is only relevant to determine if child could form intent to commit
the tort.
A df who understands quality of sexual act still liable even if he does not understand potential harm.
(Rights based position)
Children incapable of consenting under criminal law cannot consent for sexual battery.
8.3.2 Self Defence and Defence of Others
For self defence, person may use reasonable force in order to stop actual battery or assault. Reasonableness
determined in all the circumstances.
Babiuk v. Trann (2005 SKCA)
Test for Defence of Others
Facts:
Ratio:
-
Rugby match; one player, apparently intentionally, steps on anothers face but is also punched by a
teammate to prevent the face-stepping.
Test for Defence of Another:
o Reasonable use of force to protect self or other from unlawful use of force.
 Unnecessary or disproportionate force is unreasonable.
37
Trespass Torts
-
Amount of force used does not have to be carefully tailored where there is urgent need to act; need only
be roughly necessary.
8.4. Medical Treatment and Consent
Malette v. Shulman (Ont. C.A. 1990)
Exception to Medical consent: unconscious with no directive in advance
Facts:
Ratio:
-
Jehovah's Witness woman unconscious and, despite a card indicating no transfusions and the protest of
her daughter, the dr. administers blood, potentially saving her life.
Consent to procedure always necessary, except in emergency situations where:
o unconscious/incapable patient;
o time of the essence to prevent death or serious bodily harm (i.e. can't wait for consent);
o reasonable person would consent.
Even if patient's choice is contrary to conscience or professional judgment of dr, consent is still necessary.
Notes:
Mulloy v. Hop Sang: doctor told not to cut off hand; dr. decides that it is necessary to prevent blood
poisoning (supported by other dr's.) Damages still awarded, because dr. did not follow directions.
Allen v. New Mount Sinai Hospital: dr. advised not to inject into left arm; did so anyways, and reaction
to anaesthetic occurred when needle slipped out. Damages awarded.
Nancy B. v. Hotel-Dieu de Quebec (Hospital): Right to withdraw consent/discontinue treatment
upheld.
Reibl v. Hughes (SCC 1980)
Battery only where no consent given, not where there is failure to inform of risks.
Facts:
Ratio:
-
Pf was left half paralyzed from a stroke that came during or after an elective arterial surgery.
Battery limited to where there is no consent (or procedure goes beyond what was consented to without
emergency).
This holds even where consent might be undermined by failure to disclose collateral risk.
Health Care and Care Facility Act (BC)
-
s. 4: right of adult to give/refuse/ revoke consent to treatment on any grounds;
s. 5: No care without consent. (Dr.--reasonable attempt to get consent before applying exceptions)
s. 6: Elements of consent.
s. 11: Substitutes for consent.
s. 12: Emergency consent.
s. 13: No consent for preliminary exam.
s. 14: Major health care w/o consent or substitute.
s. 15: Exceptions for minor health care without consent or substitute.
Infants Act (BC)
-
s. 17: infant may consent to health care if provider has explained the care and is satisfied the infant
understands it, and the care is in his best interest.
Child, Family, and Community Service Act (BC)
-
s. 29: if infant/parent will not consent to care that 2 dr’s think is necessary to preserve life or preevnt
permanent impairment, the court might step in and order care despite lack of consent.
38
Trespass Torts
8.5 Sexual Wrongdoing and Intrusion
Norberg v. Wynrib (SCC 1992)
2 Step Test for Genuine Consent in Sexual Battery; Fiduciary Duty of Physician
Facts:
Ratio:
-
-
Note:
-
Woman becomes addicted to pain killer. Doctor uses her dependency on him for the drug to sexually
exploit her.
Majority: (La Forest)
o Framed as a case of sexual battery.
o Consent to sexual relations must be genuine; apparently genuine consent is vitiated by an
analysis similar to unconscionability in contracts.
o Generally, if the relationship is sufficiently divergent from community standards, then consent is
not genuine. Specific test:
1. Power dependency rel’nship
2. proof of exploitation of rel’nship.
o In this case, the unequal power rel’n, vulnerability of the pf, and the dr’s knowledge of her
medical problem undermine the apparent consent.
Minority: (McLachlin)
o Characterized as a fiduciary rel’nship.
o Fiduciary rel’n= “one part exercises power on behalf of another and pledges himself or herself to
act in the best interests of the other.” (65)
o Characterizing a Fiduciary Relationship (From Frame v. Smith)
1. Fiduciary has some discretion or power
2. Power can be unilaterally exercised to effect beneficiaries interests.
3. Beneficiary is vulnerable to (at the mercy of) the power of the fiduciary.
o Because of the fiduciary relationship, consent is not relevant (since consent only looks at actions
of the pf, where fiduciary looks at obligation of df.)
Though McLachlin’s fiduciary analysis did not win out here, it has been more widely applied that the
majority.
Note also the application of Non-Marine Underwriters v. Scalera
8.5.1 Limitation periods
-
-
Limitation to bringing a tort action is 2 years from the date on which ability to raise the action arose
(s. 3(2)(a) of Tort Limitation Act). Action must be commenced (not finished)
3 reasons:
1. Certainty: defendant should at some point know that they are not going to be held liable for past
actions.
2. Evidence: memories fade, people die, etc. Businesses should not have to hold files forever,
3. Diligence: pf’s should be diligent in bringing actions. Limitation is an incentive to timely litigation.
But what if damage occurs many years before you become aware of the harm?
o Discovery date: liability period begins when damage is discovered (or should reasonably have
been discovered.
o For child abuse, no limitation begins until you are 19. (M. v. M.—for cases of incest, limitation
date does not start until the victim discovers the harm of the abuse)
39