INTRODUCTION TO ECO
JOSHUA KRANE
ECO occurs in cases where there has been an injury/loss in a situation without a
contract; if there is a good reason to shift the injury to someone else, then the
injury falls onto the other person through compensation (usually monetary)
ECO have been made more prominent as there are more ways to cause harm, as
people are less willing to put up with fate, and as the existence of liability insurance
has left injurers feeling protected and left victims seeking compensation through
suit.
Financial compensation provides the principal response for resolving “accident”
cases shifting the loss suffered by the victim to someone else (ex. The offender,
society) who must bear the burden of the injury. The reason to shift the loss would
stem from the behaviour of one party.
We can situation ECO within two systems of law:
1. Common Law – It has been developed since the Middle Ages and has become
uniformly applied throughout the whole UK, through an accretion of precedents.
The law has developed in an unplanned and incremental fashion, based on
judgements. Certain written statutes, however, take precedence in legal
decision-making.
Common Law courts have tended to separate areas of liability and that each
protects a particular form of breach of obligation.
2. Civil Law – This law has been organized through codification based on Roman
Law. It takes the form of written reason where the starting point is the text.
The judge applies the law but also relates the cases to precedents. The Code
Napoleon and the Burgeliches Gesetzbuch are the two founding documents of
modern civil law.
Civil Law courts regard ECO as part of a larger set of law of obligations. All rights
are protected and the breach is seen as a starting point (a.1457). Nevertheless,
ECO have developed mainly through case law.
ECO
Aims to compensate for injury/loss
Seeks remedy via compensation
Pursues individual justice
Character of behaviour is less
important
Necessitates the presence of
damage/injury
Criminal Law
Aims to repress/punish offenders
Seeks remedy via loss of freedom,
fine
Pursues “public interest”
Character of behaviour is central
No necessity for damage/injury to
arise
Responses Provided by ECO
The same victimization event might lead to both criminal prosecution and an Extra
contractual obligation claim. They both share common goals: deterrence,
prevention, vindication of the victim’s rights, punishment, and preservation of order
in society. However, these goals are secondary to ECO which primarily seeks to
remedy injury via compensation.
The rules of ECO are morally-based which place responsibility primarily on the
individual, that emphasize the respect of the dignity of an individual, and that
oblige a person to conduct himself reasonably. The basic ECO model:
This model assumes that we can repair harm with money, but referring to
Restoring Dignity victims often have other needs: acceptance, recognition,
treatment, apology, etc. We also assume that debtors can repay the victim. The
injury may not be able to be repaired with money if it is physical/emotional.
This model may promote more litigation because accidents are treated as
insurance claims.
Of course, we look to compensate the immediate victim, but we also seek to
compensate the community of the victim, which is very limited in scope
(generally the immediate family). However, in the case of the Huron, the victim
and his family can re-take as many possessions from the thief’s house.
Categories of Analysis
1. Individualistic/moralistic approach: focuses on the wrongdoer(s) and places
responsibility on who acted wrongly. The focus is on identifying the person or
group who participated in the production of the damage. The group could be
society as a whole. It promotes accountability of wrongdoers and is based on
morals.
2.
Communitarian/social approach: claims that despite the actions of an
individual wrong-doer, the collective will bear the burden of damage, since it
was the beneficiary of the activity1. The loss should not be shifted to the
wrongdoer.
3.
Egalitarian approach: focuses on rectifying inequalities through law by
protecting the interests of the weak against the powerful.2 They
assist/advantage the weak in their claims.
4.
Instrumentalist approach: we specify particular goals and ask where do we
need to shift our focus to achieve the goal?
Those goals/aims [ECO, Instrumentalist model] might be:
A.
Compensation in which the victim must be helped by the courts. This is
the predominant conception in ECO. Note: Judges may often be prompted
to grant compensation where the rules may not apply because of the
debtor’s liability insurance that provides a source for compensation. In other
cases, UI or VC Funds may replace the need to resort to ECO.
1
For example: victims of state-wide vaccination programs may receive
compensation from a special fund, because the risk of harm should not rest on the
vaccinator, because the social interest in the program.
2 For example: victims in product liability claims (where a consumer sues a
corporation) are aided by the law’s presumption of fault that the product is
assumed to have caused the harm. This applies in Quebec only.
B.
Deterrence and prevention seek to avoid undesirable conduct in the
future; warning other offenders by providing an example to others. Note:
Deterrence is manifested through the media, but ordinary citizens with no
legal knowledge may not be deterred. The existence of insurance [see
Viney text] makes it less effective since people don’t pay their own penalty.
Large organizations can spread the loss by increasing taxes/prices of goods
to be reimbursed for the loss.3
C.
Punishment is less of a function, since the criminal law is intended to do so.
Damages might be restricted to just what is needed to punish the wrongdoer
but the focus is on the wrongdoer and not so much on the victim. The
conduct should transcend ordinary negligence to the point of wilful intent to
harm. Note: Money may not harm the debtor. Not enough safeguards in
ECO to ensure that punishment is fair.
D.
Economic efficiency (see Posner); Education, Vengeance,
Appeasement, etc.
Summary – Economic Analysis of the Law [Posner]
Legal decisions often mask decisions of an economic character (37). It posits that
common law should prioritize economic growth and wealth maximization by
protecting those who are instrumental in the economy (ie. Corporations,
government) from being liable in cases of ECO. Economists would be
interested in preventing future damage to the economy – and the judge cannot
simply limit his focus to the present injury since his decision will impact future
behaviour.
The law is a rational system for allocating resources, and tort law is governed by
the postulates of efficiency. Therefore ECO should attain an efficient system
of resource distribution.
Summary – Juridical Facts [Brierley and MacDonald]
JURIDICAL FACT – the law attaches juridical effects independently of the will of the
interested person (outside the obligations of contract); a DELICT – intentional
and illicit act/omission of an extra-contractual nature which causes damage
whereas QUASI-DELICTS – are characterized by negligence
A person cannot contract for liability insurance to cover intentional acts. Exemplary
damages may be awarded for delict actions. TUTORS are protected from
damage caused by persons in their charge unless they are deliberately at
fault.
The root of all civil liability claims stems from the wrongful actions of the defendant.
1.
3
Damage: No liability without damage (see chart above). It is broadly defined
as loss sustained/profit deprived. Compensatory damage is generally seen as
material (pecuniary) or moral (non-pecuniary). There are limitations:
dependents cannot receive an award for a death, shortening of life is not
compensable on its own.
Accidents also happen spontaneously and therefore deterrence may not apply.
Losses must be certain (for both present an for future). In cases where a
person is dead, only immediate ascendants/descendents/spouse may claim
a.1056.
2.
Causation: The damage must be established to have been caused by the
defendant. It is through this principle that judges can control civil liability. The
plaintiff must prove by the balance of probabilities the relationship between the
delict and the harm.
Causation as matter of law: (1) one/few conditions played a crucial role or (2)
plurality of causes impacted the extent of liability. Judges will look to “break
the chain of causation” in which an act of G-d or a third party or of the victim
may exonerate the defendant. An act of “superior force” may break the chain
[external event was the sole cause of the damage]
3.
Factual bases of Liability (Fault): the code provides a general definition of
liability (a.1457) and leaves its interpretation to the judges.
a) Liability caused by personal acts or omissions are central to the concept
of determining liability. We look to the reasonable person (abstract)
where fault lies when a party fails to exercise care by this standard.
Children, mentally disabled (permanent/temporary) cannot be held liable
as they cannot discern right/wrong.
b) Liability caused by others in one’s care
c) Liability for damage caused by things includes liability assigned to owners
over the misconduct of the animals; ruin of buildings.
There are four components for attributing liability under NEGLIGENCE OR 1457:
Common Law
Duty of Care
Civil Law
Breach of Standard of
Care (Fault)
Injury
Fault
Causation
Causation
Injury
Concerned with:
Relationship between
Plaintiff and Defendant
Behaviour of defendant
Focus on the plaintiff
and his injuries
Relationship between
fault and injury
INJURY: THERE MUST BE A LOSS IN ORDER TO SHIFT THE LOSS TO ANOTHER
What is the difference between damage and damages? A ‘damage’ or préjudice is
the injury the victim suffers during the event. ‘Damages’ or compensation
represents the money that the victim can claim if the four components are
demonstrated.
The court can award exemplary or punitive damages, if the action violates a law
that prescribes punitive damages. The action must be intentional and unlawful.

[a.1621] specifies guidelines regarding punitive damages: Where the
awarding of punitive damages is provided for by law, the amount of such
damages may not exceed what is sufficient to fulfill their preventive purpose.

Punitive damages are assessed in light of all the appropriate circumstances 4.
If sufficient punishment has been assessed, then the judge may not award
exemplary damages. Civil law and common law restrict these damages.
 Punitive damages are meant to be punishment for the defendant, while
exemplary damages are meant to be deterrence and a means of prevention.
George Papadatos v. James Sutherland [1987] (Quebec CA)
Facts:
 Sutherland was tortured by Papadatos for seven hours. Papadatos was already
sentenced to 10 years in prison (under the criminal law); appeals the judgment
that he must pay the respondent $18 000 ($7000 was for exemplary damages)
Issue: Should appellant pay exemplary damages if he/she has already been
punished according to criminal law?
Held:
No (reduce damages by $7000)
Reasoning:
 Kauffman ruled that the “unlawful” and “intentional interference” requirements
are met under a.49, but since the appellant was already sufficiently punished,
further punishment by way of exemplary damages was not required.
 Rothman ruled that [a.49] was not intended to permit a court to award
exemplary/punitive damages where the defendant has already been prosecuted
and punished for the same acts in the criminal courts. The objective is not to
compensate but to punish and deter others.
 Rothman refers to Common Law authorities (since this was their origin) to justify
his decision.
Rationale:
 Exemplary damages should not be granted if there has been sufficient
punishment by way of the criminal courts ; courts will not allow for
“double punishment”.
Exemplary damages have developed very differently. Civil Law has generally
focused on compensatory functions, but in Common Law they were always
In particular the gravity of the debtor’s fault, his patrimonial situation, the extent of
the reparation for which he is already liable to the creditor, and where such is the
case, the fact that the payment of the damages is wholly or partly assumed by a
third person.
4
accepted. The result today, however, both systems are similar in how they treat
them. Common law requires that exemplary damages require intent or serious
enough conduct to warrant those damages.
Civil Law allows for claims, but only:
1. If a specific statute allows for the claim (ie. Consumer Protection Act)
2. If the conditions in the statute are fulfilled.
In cases of unlawful and intentional interference [a.49.2 of Charter HR], the person
may be required to pay punitive damages.
Unlawfulness – there must a be a violation of a right protected by the Charter (ie.
right to freedom of religion, privacy). Intentional – desire to intend the wrongful
consequences or acted in full knowledge of immediate/natural (or an extremely
probable) consequences of conduct.
Usually the amounts are limited in Canada and they are rarely awarded. Generally
they are awarded when the behaviour is intentional and is severe.
 In civil law, there are fewer safeguards in ECO, and so it may be easier to punish
in this context. Another reason might stem from the possibility of punishing twice
(one penal and one compensatory).
Augustus v. Gosset [1996] SCC on appeal from QCA
Facts:
 Gosset arrests Augustus, who subsequently flees, and is shot in the head
(accidentally, according to the court) and dies; the safety was turned off by
procedure.The family is awarded 9000 in compensatory damages and 1795 for
funeral expenses, dismissing the appellants’ claims for solatium doloris or
compensation for the grief when someone close to us dies. The appellate court
revised the order, citing 15000 for solatium doloris and 1795 for funeral costs.
Issue: Is solatium dolores compensable under Quebec Law (to Augustus’s),
under 1053 and 1056 CCLC and if so, was the amount awarded sufficient?
Does the Charter allow a claim for loss of life under s. 1 (right to life) and s.49?
Did the court err in finding that there was no intention on behalf of Gosset to kill
Augustus (thereby negating the need to award exemplary damages?
Held:
The appellant could claim solatium doloris but no exemplary damages or
Charter-related damages.
Reasoning:
 This case drew on precedent from Driver v Coca Cola, but it avoids discussion of
consciousness. The fact that he was killed meant that he did not suffer and the
mother’s claim for her son’s right to life was denied because, the court ruled that
it cannot put a monetary value on life. It should only award money for
suffering before death.
 L’Heureux-Dube held that standards need to be put in place to gauge grief
(closeness to victim, age, etc.). Because this was a civil law case, the appellant
was entitled to claim solatium doloris for the death of their son.
 As Gosset never intended to kill his victim the interference was not intentional;
s.49 of the Charter only “unlawful and intentional interference” is subject to
exemplary damages when the wrong-doer knowlingly and purposefully is aware
of the harm that the conduct will cause (so it doesn’t have to be truly
“intentional”).
 Dube concludes that because it was standard police procedure to pull a gun, it
was not an “extremely probable” consequence of Gosset’s conduct that he would
be killed.
Rationale:
 The exemplary damages need not be a result of intent, but of the probable
consequences of one’s actions.
The damages can also be compensatory:
In Canada, we do not list or restrict the nature of the interests that are protected
under ECO. All interests are protected.
In civil law, the law protects from bodily (to your physical person), material (to
your property), and moral (extra-patrimonial interests, ie. to your feelings)
damages5.
In common law, the law protects from pecuniary and non-pecuniary damages6.
Pecuniary damages are compensation for an injury that can be evaluated is
monetary terms (loss of income, profit, damage to property, etc.). Non-Pecuniary7
damages cannot be assessed in financial terms, but compensation is for suffering
and pain, for loss of enjoyment of life and amenities, for psychological injuries,
disfigurement, and for shortened expectation of life. Placing a value on these
losses is a “more a philosophical/policy exercise than a legal/logical one”
(Andrews). In common law, the courts will award this damage only if it
accompanied by a bodily/material damages.
How do we determine damages?
Unlike pecuniary damages that are ‘easily’ calculable, non-pecuniary damages are
far more difficult to award. Restitutio in Integrum is the basic principle behind
compensation in tort law, where the injured person is to be restored to the position
he would have been in had the accident not occurred, insofar as this can be done
with money.
Plaintiff may have difficulty foreseeing loss in the future (ie. future earnings). There
may be problems translating an injury into monetary terms. Compensation must
be individualized to address the loss suffered by the plaintiff.
Hite v Jim Russel International Racing Drivers [1986] QCA
Facts:
 Hite’s face was damaged severely. The Quebec Superior Court awarded him
almost 54K for both patrimonial and extra-patrimonial losses. Russel appealed
the verdict, on the grounds that Hite still enjoyed a residual capacity to earn a
living.
Issue: Was the compensation awarded at trial justified, given the degree of harm
5
Waivers that attempt to exclude companies from assuming bodily or moral
damages in Quebec are not valid, since people cannot assume liability for those
types [a.1474]
6 Derived from the 1978 trilogy of cases: Andrews, Thornton, and Arnold.
7 A loss of a leg is considered non-pecuniary because it cannot be assessed in
financial terms.
inflicted on the plaintiff?
Held:
Respondent wins in so far as he is still awarded damages in the form of
patrimonial and extra-patrimonial damages, however, they are to reduced to
$33K.
Reasoning:
 The court considered what it meant for Hite to be disfigured: his means of
communication was placed in jeopardy. Physical damage to the body makes
assessing damages difficult, since not only does disfigurement reduces the
plaintiff’s capacity to earn a living, but it represents an invasion of the plaintiff’
bodily integrity.
 There is reluctance in Quebec law to rely on the functional approach, because
the court feels that loss of extra-patrimonial rights are deserving of compensation
– because the victim has suffered an injury, regardless if the victim can
appreciate it or not (or can enjoy the compensation or not). The court used a
personal approach, because the damage deserves an award and that a nonability to enjoy the award should not preclude the granting of damages.
 The civil law tradition has embraced the awarding for moral damage, and
therefore the personal approach will recognize the victim’s subjective sense of
loos and the moral injury/pain that he has suffered.
Rationale:
 Physical injury can translate and is linked to moral and material injury,
which may lead to financial compensation.
Oulette v Tardiff [2000] QCA
Facts:
 Tardiff had been injured in a lake after being run over by a boy in a boat. The
medical experts argued that his physical capacity was reduced by 31.5%;
however Tardiff was unable to continue his career as a missionary.
Issue: The court rules in favour of Tardiff, where the amounts of original award are
adjusted to include all relevant financial losses.
Held:
Reasoning:
 The court found that Tardiff did not lose anything, since he had taken a vow of
poverty (and his salary would be given to the congregation). The court will look
at the loss in real terms: as what Tardiff would have made as a university
professor [this was a legal fiction]: when the court looks forward, it was difficult
to assess (looking at the past it could not have determined an amount, so it
looked for the future).
 The fact that Tardiff chooses to give his money to a religious order in no way
affects the awarding of damages, the money is his to do with it as his pleasure.
 There is reluctance in Quebec law to rely on the functional approach.
Rationale:
 The plaintiff has right to be compensated for the loss of his future earning
capacity, even if he does not earn any salary at present.
Critique:
 The court wanted to award Tardiff, but this ruling appeared to be very arbitrary.
For non-pecuniary damages
When compensating a victim, how do determine the right amount of money? How
do we limit the amounts of non-pecuniary damages (to avoid US-like situations).
1. In Andrews, the court set a “cap” that represents the maximum award for the
worst possible injury. Civil law adopted the common law’s position. The court
said in Ter Nutzen, that if the injury is worse, then the cap can be broken.
Ter Nutzen v. Korn [1995] SCC on appeal from BCCA
Facts:
 The appellant underwent artificial insemination procedures in 1985; her doctor
did not inform her of the risk of HIV & no test was available in Canada at that
time.
 The defendant screened his donors, though the procedure was fraught with risk.
The judge charged the jury with determining whether Korn ignored “elementary
dictates of caution” (65).
 The jury awarded 460 000 to the appellant.
Issue: Should the trial judge have informed the jury of the rough upper limit
(~243 000 adjusted dollars)? Was this an exceptional case in which the rough
upper limit for non-pecuniary damages could be exceeded?
The Andrews Case set the precedent for awarding non-pecuniary damages for
pain and suffering, as the court cited that money can only help to alleviate but
never eliminate the pain. The court considered “policy issues” of limiting these
claims to protect society from the exorbitant social costs.
Held:
The damages should not exceed the limit.
Reasoning:
 It is appropriate for the jury to decide the issue/amount of compensation. The
trial judge should instruct the jury as to an upper limit if, if after considering the
submissions of counsel, he or she is of the opinion that the damages by reason
of the type of injury sustained might very well be assessed near the limit
(otherwise, don’t charge them).
 The judge should not have charged the jury, but should have adjusted the
amount subsequently to conform with precedent, because this case is no
different from other tragedies. It was no worse than the injury suffered by
Andrews.
Critique:
 The dissenting justice argued against informing the jury, so to prevent
influencing the outcome. Since no amount will ever restore the injury
completely, better not interfere with the jury’s reasoning.
2. The courts have also tried to developed conceptions about how to award nonpecuniary damages and how to calculate the damages.
Objective Conceptual approach – which considers the person in ‘objective’ terms,
in which parts of a person equate with a dollar amount [but this is not victimspecific, and it is independent of the usage made or pleasure derived by victim]. If
I see that you have an injury, you can be compensated: irrespective if you realize it
or if it does not affect happiness.
 In re St-Ferdinand, their right to dignity was infringed but they may not have
realized that loss. The victims have no consciousness of their injury & the
subjective approaches (personal, functional) would not award damages.
Quebec courts have favoured the objective approach for assessing the right to
claim.
Subjective Personal approach – The person has to feel the pain to assess
damages. We calculate compensation in terms of loss to the victim and thus
refuses to standardize justice (compensation that represents past, present, and
future losses of happiness).
Subjective Functional approach – compensation is meant to make life more
bearable; that is, it won’t replace the loss, but may make living life easier for the
victim by diminishing the effects of the injury.
 In civil law and in common law, re Augustus, the victim was shot and never
regained consciousness (and he probably did not suffer any mental anguish) so
the court did not award damages for loss of life. This is a very subjective
approach.
 In common law, re Trilogy 1978, it has generally used the functional approach to
assess both the right to claim and to compensate (so no loss of happiness results
in no award). Common law has been reluctant to compensate for feelings via
personal approach; money should only be awarded insofar as it can provide an
alternative form of satisfaction.
Civil law uses the personal approach to determine whether the court should
compensate, but then will calculate damages using all three approaches.
Curator v. Syndicat de L’Hopital St-Ferdinand [1996] SCC on appeal from
QCA
Facts:
 The hospital union went on an illegal strike, and as a result 703 patients lost care
and filed suit. They were awarded both material and moral damages. The
defendants appealed on the grounds that since the patients could not enjoy the
moral damages, they should not receive them.
Issue: What role does the functional approach play in evaluating moral
prejudice? What is meant by the concepts of “inviolability” and “dignity” from the
Charter for the purposes of awarding exemplary damages?
Held:
The appeal was denied and damages were awarded with costs to the
union.
Reasoning:
 L’Heureux-Dube ruled that compensation for moral damages is based on the
principle of restituo in integrum. There are three listed methods of calculating
moral damages (see above).
 Because the harm has been caused, the victim should receive compensation.
The awarding of moral damages results from the court’s capacity and willingness
to compensate – where punishment is fulfilled by punitive damages or the
criminal law.
 The strike represented an interference with the patients’ rights: though the
patients’ discomfort was temporary it was an affront to their dignity (the patients
were mentally ill, and although they could not subjectively appreciate that, there
was ‘objective’ offence to their dignity). The court used the conceptual
approach because the court insists that the sole fact that an injury
occurred is enough to compensate.
 The court found that the union knew that “deprivation of services would cause
inconvenience to the patients” (116) and because they could reasonably know
that their actions would cause harm, they could be held for exemplary damages.
 The interference was on a Charter right of personal dignity.
Rationale:
 The court punished the union possibly to deter such actions in the future.
How do we reconcile the compensatory scheme in Oulette and Hite with that of St
Ferdinand? There is no contradictions between the cases because the
approaches can be used to assess the rights to claim damages and to calculate
damages. You can only calculate once you have claimed them.
St. Ferdinand says all 3 should be used to calculate. Oulette and Hite start from an
objective approach but they use subjective approaches to calculate the damages
as well.
Additional Notes:
Although courts will not venture to place such a value on human life, they will strive
to determine a pecuniary value for suffering and non-pecuniary loss. The
inadequacy of compensation for non-pecuniary damage leads to questions
regarding its role in ECO. Although the Supreme Court in Andrews set a cap for
non-pecuniary damages, the calculation of those damages is unpredictable and
discretionary (ter Neuzen, Augustus). Sometimes the court will award nonpecuniary damages where the plaintiffs cannot even appreciate the compensation
(St. Ferdinand). Therefore, the presumption of the court that money can provide
an alternative source of happiness for a plaintiff is also highly contentious
(Conaghan), because by translating suffering, loss, and disability into a pecuniary
amount, the court fosters the perception that injured persons can compensate for
their disability and buy back social acceptance and “normalcy”. Disability is
treated as an injury and not as a part of social life.
The conceptual approach translates parts of the human body into dollar amounts.
The functional approach is inherently problematic because it can be “cheaper” to
kill someone or put them in a coma than to keep them alive and it can be “cheaper”
to injure a mentally disabled person than an able-minded person.
The discretionary compensation for non-pecuniary damages raises other questions
regarding the role of compensation in ECO. In Restoring Dignity, often victims
seek other redresses such as appeasement and recognition (Canada). The
individualized characterization of ECO precludes this kind of redress for the
victim. Perhaps courts should adopt Posner’s rationality and correct social
situations as to prevent injury, and shift the focus away from the current efforts
directed at remedying a victim’s injuries with money alone.
A no-fault for medical liability would provide compensation to a greater number
of claimants without the claimants having to prove breach of the standard of care.
This regime could apply to wrongful births and conceptions, so that the court
would not have to assess the validity of the plaintiff’s claim.
THE LIMITS OF RECOVERY
In Canada, we do not proceed on the basis of excluding some forms of damages
based on article 1457 and the tort of negligence8. We know already that there are
limits on how we can claim for non-pecuniary damages. But what compensation
for an injury to property, to finances, to future loss, or to any emotion? In practice,
no all losses are recoverable (and the courts have found indirect ways to limit
liability.
Limits may be indirectly imposed through
Duty of care (common law only) – we acknowledge that injury exists, but the law
does not oblige us to take care. If you are in the presence of pure economic
loss, the plaintiff’s financial loss flows from injury caused to another person9. Pure
moral damage is injury not associated with bodily or material injury, but with the
injury of the other10- or If the plaintiff suffers moral injury only.
Causation – this is a requirement for liability to exist. When the chain of causation
is broken then liability can be limited.
Policy, values, morals, etc. – non-juridical arguments can be used to justify
exclusions. Compensating certain types of damages may counter certain values
that the law seeks to protect. The cases of wrongful birth, conception and life are
examples.
Cases of Wrongful Birth, Conception/Pregnancy, and Life: A baby must be born
when he/she should not have been. These decisions are generally taken on
policy grounds and not on juridical principles.
Plaintiff
Alleged
Fault/Negligence
Health of the
Child
Possible claims
that can be made
Birth
Parents
Conception is
planned but the
doctor negligently
fails to inform the
child’s parents
regarding the
possibility of
bearing a
handicapped child
Handicapped
Conception
Parents
Doctor negligently
causes the
unplanned birth of
child (omitting to
diagnose
pregnancy,
unsuccessful
abortion, negligent
sterilization)
Usually healthy
Life
Child
Same allegations
as in wrongful
birth and wrongful
conception
actions
Healthy or
handicapped
Can claim costs relating to handicap, rearing, pain and
suffering during birth, loss of freedom of right to abort
Some torts have limitations: battery – injuries to physical integrity; nuisance –
injury to use and enjoyment of land.
9 It is not associated with damages to his person and property. For example,
someone cuts Hydro’s wire and a night club loses business. The club suffers pure
economic loss.
10 Mme Augustus suffers pure moral injury because her son dies. In Page v
Smith, the plaintiff suffered pure moral injury only, since it was psychiatric.
8
Status of the law
Canadians allow
these claims
Cases
N/a
Civil law are OK,
but Common law
will look at
motivations of
parents but courts
are more reluctant
McFarlane, Kealy,
Cooke
Rejected in
Canada, UK
McKay
Allowing damages for wrongful life and wrongful birth may undermine the life of the
handicapped child. If these claims are accepted, can we consider life as an
injury? The courts may be forced to judge parents’ motives for (not) wanting a
child. If doctors are held liable for wrongful birth, they may be more likely to
suggest abortions to avoid assuming liability. Finally, the courts must balance the
rights of the parents to plan their family with the rights of the child to life.
Quebec courts seem to be more willing to accept the rights of the mother to do
what she wants with her body. In Cooke, the courts recognize the right to an
abortion and to control the size of the family. These extremes show the degree of
leeway and discretion that judges apply in these cases.
When assessing damages for wrongful life and conception, we cannot calculate
the value of the injury, since we cannot compare life with non-existence.
McKay v. Essex Area Health Authority [1978] UK Court of Appeal (Wrongful
Life)
Facts:
 The plaintiff child was born disabled as a result of the mother’s rubella infection.
The mother would have knowingly had an abortion and claimed the doctor’s
negligence in failing to treat the disease caused injury.
Issue: Are the defendants responsible for the child being born in a disabling
condition? Were they under an obligation to terminate the child’s life?
Held:
No.
Reasoning:
 Stephenson ruled that there is no duty to take away life, nor is it the place of the
courts to measure whether the life of a disabled person is less valuable than
otherwise. The disability was brought about by the rubella, which was not
contracted at the fault of the defendants.
 The court favours the right to life over that of death. The court could not
determine that the child had lost anything by not being killed (that is, which
existence: death or disability is worse for the child). Therefore, it could not
determine that there was a breach of duty and therefore make the defendants
compensate the victim for an injury.
Rationale:
 Victims born unintentionally who bear disease and disability are not
entitled to receive compensation for not being terminated before birth.
Kealy et al. v Berezowski et al. [1996] Ontario Court (Wrongful Conception)
Facts:
 Mrs. Kealy underwent a tubal ligation, but gave birth to a baby and refused to
give it up for adoption or abort it. They sued claiming damages for negligence
and for costs to rear the child.
Issue: Should the plaintiffs be entitled to recover the costs of a wrongful
pregnancy?
Held:
No.
Reasoning:
 Lax rules that “the total recovery approach” does not bear any relationship to the
“injury”. He contends that the birth of a healthy baby is not an injury and that the
benefits of personal and familial satisfaction thereof should balance the costs.
The damage of the unplanned pregnancy does not preclude the Kealy’s from
being parents, it just makes life more inconvenient for a time.
 Damages were awarded for the imposition of the pain and suffering of the
pregnancy only. The parents’ reasoning was not good enough for awarding
damages for upbringing, as they were not “burdened” by another child.
Rationale:
 Victims of a wrongful pregnancy are entitled to compensation for the
inconvenience of the pregnancy. However, this ruling does not preclude
other situations where the plaintiff could claim rearing costs.
Cooke c Suite [1995] Quebec CA (Wrongful Conception)
Facts:
 This case is similar in fact to Kealy, where a tubal ligation failed to prevent a
pregnancy. In this case, however, Cooke was awarded 30 000 for costs related
to upbringing of the child. Cooke appealed the decision.
Issue: Should the plaintiffs be awarded costs related to the upbringing of the
child.
Held:
Yes. The appeal was rejected with costs.
Reasoning:
 The purpose behind compensation is to reconcile an injury. Couples have a
right to plan their families. Upon having a sterilization procedure, couples can
reasonably expect that the surgery will not go wrong. Civil law recognizes the
economic loss associated with an unexpected pregnancy and can call that loss
injury.
 In this case, wrongful conception can be recognized as a source of liability.
Rationale:
 In Quebec, the treatment of an unexpected pregnancy is different and
appears to be more willing to award for damages related to the child’s
upbringing.
McFarlane v Tayside Health Board (1999) House of Lords (Wrongful
Conception)
Facts:
 The plaintiff underwent a failed vasectomy, giving birth to a fifth child.
 The mother was compensated for her pain and suffering, but not for costs of
rearing. The defendants appealed this decision.
Issue: Is it morally unacceptable to allow a claim for compensation for the pain
and distress suffered during pregnancy?
Held:
Appeal allowed.
Reasoning:
 The defendants do not admit negligence (though this has to be proven) but
acknowledge that the child’s birth was a foreseeable consequence of
misinformation given after the surgery. The judge rejects the reasoning in Kealy,
because McFarlanes claim that they have incurred an additional liability.
 Millet reasons that: the birth of a child is not a harm and the costs of rearing are
a result of them keeping it and not exercising the abortion/adoption option. This
breaks the CHAIN OF CAUSATION.
 The plaintiffs should be awarded a sum, not for the conception and birth (which
is offset by the benefits of the baby) but for the loss of freedom to plan their
family.
Rationale:
 The loss of personal/familial autonomy is deserving of some
compensation; however, the benefits of a child outweigh any injury
suffered during its conception and birth.
Additional Notes:
Viney suggests that the growth in insurance has had two distinct effects: it has led
to a growth in no-fault regimes for injury as a result of emerging technologies and
industries, such as nuclear power. However, when victims file their claims, the
claim is made against the insurer, thus depriving the victim a sense of justice,
because the defendant does not have to accept responsibility.
THE OBLIGATION TO ACT WITH CARE (CVL) /DUTY OF CARE (CML)
Role of Duty in Civil Liability (ECO): Refers to a recognition that relationships are
omni-present, where one party may cause injury to another one. In society, a
certain average of reasonable conduct is necessary for the general welfare.
Who do I have a duty by law not to cause harm? The 1 st option would involve a
general obligation to take care of everyone. The 2 nd option would involve a more
specific obligation for only some people.
Is the Duty Generalized?
In Common Law: Only if there is a special relationship between two people will
there be a duty of care. This was the case until Donoghue, which changed the
principles of common law11.
However negligent you are, if there is no obligation to care then I am not
liable. This is why this is a starting point in common law, and not in civil law.
Donoghue v. Stevenson [1932] House of Lords
Facts:
 Appellant drank a bottle in ginger beer manufactured by the respondent;. The
friend bought it from the retailer (no contract between appellant and defendant).
The bottle contained decomposed remains of a snail that could not be seen
through an opaque bottle and she suffered from shock and severe gastroenteritis.
 She sued the manufacturer. Until this case, the manufacturer did not have a
duty of care.
Issue: Is the manufacturer of an article of drink sold by him to a distributor, in
circumstances which prevent the distributor or ultimate purchaser or consumer
from discovering by inspection any defect, under any legal duty to the ultimate
purchaser or consumer to take reasonable care that the article is free from
defect?
Held:
Yes, manufacturer owes duty of care to consumer. They could
reasonably foresee that the consumer could be injured,
Reasoning:
 Atkin ruled that a manufacturer of products (intended to reach the consumer and
for which the consumer cannot discover any defect by inspection) is under a
legal duty to the consumer to take reasonable care that the article is free from
defect likely to cause injury.
Rationale:
 The neighbour principle: You must take reasonable care to avoid acts or
omissions which you can reasonably foreesee would be likely to injure
your neighbour.
 Neighbour: reasonably foresee that our actions will cause harm; ought
reasonably to have contemplated that someone with which I have a
relationship may be harmed.
My neighbour will be the person that I foresee should be injured by my actions.
There are very few relationships that are excluded from the “list”.
11
No duty of care in pure economic loss.
In Civil Law: The duty is generalized. Civil law has never imposed relationships
between parties in an ECO claim. All people have an obligation to another to
cause harm. There are no limitations as to the classes of people that are protected
by law. Since it applies to everyone, the condition of obligation to act with care is
always satisfied.
Effective of the Notion of Duty on the Limits of Civil Liability
In Civil Law: there are no effects (it is not used to limit liability). It is only relevant to
common law and it is the principal limiting tool to limit liability in common law.
The first question the common law judge asks: Is there a duty of care? (If none,
then tort claim is dismissed). Judges use societal values here to determine if a
duty of care exists12.
Additional Notes:
12
Should we recognize a duty of care (ie. duty to rescue)? Will it open a floodgate
of claims? Should certain harms be prioritized over others? Should the state be
liable?
FAULT: BREACH OF STANDARD OF CARE
Fault
Liability for one’s own wrong-doing
Liability for the deeds of others
(employees and children)
Liability for things and animals
Modifications of Fault
Liability for the deeds of others
(employees and children)
Liability for things and animals
People hold a meaning to the vernacular of fault; however, there are legal
conceptions as the notion of fault. There are a variety of behaviours that harm:
from accidents to intentional actions. Through the concept of the REASONABLE
PERSON, we can assess fault.
REASONABLE “MAN” PERSON/”LE BON PERE DE FAMILLE” – it is an abstract concept,
not someone that corresponds to the highest level of proficiency, but the ordinary
individual with normal ordinary skills and intelligence, that has prudence but who
sometimes makes mistakes. But how do we apply the standard?
 How would the reasonable person have behaved in the same circumstances? 
a. Would the reasonable person have foreseen that his actions would
have caused injury (objective foresight)?
b. If yes, what kind of precautions would have the reasonable person
have taken to guard against causing injury?
L’Oeuvre des Terrains de Jeux de Quebec v Cannon [1940] QCA
Facts:
 Cannon girls are sent by their mother to play on an ice rink managed by
defendant. One girl slides down a slope, hits her head and requires stitches.
Father sues for damages.
Issue: Is the City responsible for the damages? Are they liable?
Held:
No
Reasoning:
 There must be a path between the chalet and the rink, though the lane was not
steep.
 The owners took reasonable care to maintain the rink and could not have
foreseen the injury. The court refers to the “bon pere de famille” and compared
the behaviour of the employees to what a good father would have done.
Foreseeability was not an issue, they did recognize that the employees took
precautions.
 Although the employees saw the kids playing, a reasonable person would have
let them play in that circumstance as they were having fun; however, they were
watching them and they were happy to see that the kids were having fun.
Rationale:
 The concept of fault is based on the reasonable person. What would a
person, placed in the same circumstances, have done?
Labelle v Corporation Municipale de la Ville de Gatineau [1960] QCA
Facts:
 An 8 year-old boy is injured by an un-extinguished fire in a dump. He and his
friends had visited the dump on several previous occasions, while the fence was
erected.
Issue: Is the city liable for the boy’s injuries?
Held:
Yes.
Reasoning:
 Justice Hyde ruled that knowing that the dump was an attraction for children, the
city should have foreseen the possibility of an accident and should have taken
reasonable measures to prevent it. The defendant is responsible for maintaining
a secure enclosure (fence), or some sort of reasonable safety standards.
 This judge implicitly used a balancing exercise. He considered that the city did
not undertake enough of a precaution given the dangerousness of the dump.
Rationale:
 Reasonable steps must be taken when the possibility of injury exists.
Critique:
 Taschereau stated that the children were trespassed on city property and
assumed the risk. The cost of the enclosure would have been too much to
negate the risk (precaution would have been 24-hour surveillance, which would
have been too much to ask).
After asking whether the defendant acted as a reasonable person, the courts can
ask a third question:
c. Would the reasonable person have run the risk anyway? We have to
measure the probability of the injury arising from the behaviour against
the gravity of the harm and the burden of being careful.
THE BALANCING EXERCISE – this exercise is conducted in common law, but it is not
used systematically in civil law (which tends to resort to the reasonable person
standard).
Probability (P). How probable is it that the damage that arose in the case would
normally flow from defendant’s behaviour? Did defendant’s behaviour make the
damage possible?
Gravity (L). What type of damage is the behaviour likely to cause? As the gravity
of the potential damage rises, the probability that it will arise does not have to be
so high.
Burden (B). How heavy a burden is it to take precautions against the harm?
Would the burden of prevention have been unreasonably heavy? Was the burden
of prevention negligible itself.
Social Utility of Conduct. What are the benefits of the conduct in question? This
allows us to ignore the probability, gravity, and burden.
This balance of probabilities has been expressed in the Learned Hand
Formula
If PxL > B = Fault (a reasonable person must have taken the precaution)
If PxL < B = No fault (a reasonable person does not have to take the precaution)
Bolton v Stone [1951] House of Lords
Facts:
 Stone was hit by a cricket ball on a private street adjacent to the pitch. The pitch
had put up an enclosure and balls were hit on the street on very few occasions.
Issue: Should the club be liable for the damages? Should it have foreseen the
risk of injury?
Held:
No. The court uses the balancing exercise to weigh probability/gravity of
injury against burden of stopping the matches.
Reasoning:
 Reid had ruled that the possibility of being hit by a ball was so remote, that the
chance of injury could not have been reasonably foreseen. The activity must not
be done at all if the risk is substantial, then it should not be played at all.
However, the club had taken reasonable steps to prevent injury and the risk was
so low that he ruled in favour of the club.
Rationale:
 If the risk of injury is very remote and it the club has taken reasonable
steps, then there is no grounds for liability. People do not need to guard
against mere possibilities of injury, because an infinite number of
possibilities an exist for injury.
Overseas v Miller (Wagon Mound II) [1967] House of Lords
Facts:
 The plaintiff’s two vessels were undergoing repairs in Sidney harbour. The
defendant (Wagon Mound) was filling oil at a nearby wharf but carelessly spilt oil
into water which flowed to the other wharf. The oil was ignited and set on fire,
causing damage to the plaintiff’s vessels.
Issue: Would a reasonable man, having the experience and knowledge expected
of the chief engineer of the Wagon Mound, have known that there was a real risk
of the oil on the water catching fire and therefore eliminated the risk? Did his
inaction constitute grounds for liability?
Held:
Yes, the reasonable engineer would have eliminated the risk. Yes, his
inaction constituted grounds for liability.
Reasoning:
 The probability of the furnace oil getting ignited was low; however, the
seriousness was very high. Reid also weighed the risk against the difficulty of
eliminating the risk, and in this case, the burden was not too high (as they had to
just close a valve).
 The engineer ought to have know that it was possible to ignite this type of oil on
water, and considering that its elimination could have be achieved at a very
minimal cost/difficulty, he was under a duty to do so. B<PxL therefore fault.
Rationale:
 If it is clear that a reasonable man would have foreseen and prevented the risk,
especially because it was easily and inexpensively achievable, then a defendant
is liable for injury resulting from the risk. This applies unless the risk is virtually
impossible to anticipate.
We cannot ignore a low risk, when the burden of resolving the risk is very
low. This is an ‘amendment’ to the test outlined in Bolton.
THE ECONOMIC APPROACH will use the learned hand formula. If the cost of avoiding
the accident ($100) is smaller than the chance that the harm will occur (5%) times
the cost of the accident ($1000). Posner’s version would appear as follows: $100
> 5% * $1000 then it is economically more efficient to not undertake the burden.
Financially, it would make more sense to let the accident happen. Fault will only
exist if the B<PxL.
We are not supposed to attribute flaws/strengths to the reasonable person.
However, we must ask ourselves whether the standard is really ‘objective’? To
what extent can the reasonable person become subjective. We must take into
account the circumstances, which means that we have to consider some
subjective elements. Do we consider age or mental capacity or drug use?
Additional Notes:
The choice of the reasonable person is an ideological one - based on the
liberal, corrective justice model and an individualist conception of responsibility
(Macdonald). Although the reasonable person standard speaks to objectivity, the
assessment of fault is often highly subjective and influenced by policy
considerations. There is no standard definition, only a consideration that attempts
to balance the interests of competing parties, by assessing whether the actions of
the defendant breached a reasonable standard of care that is owed to the other.
The defendant who breaches the standards becomes liable for the loss; however, if
the conduct does not breach the standard, the plaintiff will bear the entirety of his
injury (Conaghan).
Viney argues that the central problem in assessing fault using the reasonable
person standard lies when considering who is doing the assessment. Judges do
not seem to take into account inferiorities (unless they deal with children), but they
are more than willing to consider superior knowledge/skills in modifying their
objective standard, making the test appear more subjective. We see the judges
placing themselves in the situation and assessing the reasonable person to their
own standard, as they did in Cannon and in McHale (where the judges disagreed
as to the appropriate application of the modified reasonable person standard). The
idea of maintaining an “abstract standard for everyone” marginalizes the victim’s
needs because they entrench a standard about how people should behave,
reflective of the judge who applies the standard. Perhaps courts need to treat
each defendant uniquely by inquiring into the mind of the defendant, to assess
culpability.
The notion of fault stems from the assumption of a risk by the defendant. The test
of the reasonable person considers whether the average person would have
assumed the risk, and either acted or omitted to act (Bolton). Conaghan’s critique
of the reasonable man recognizes that cost-benefit analysis is central to the
understanding and application of this concept. The system, when applied through
an economic lens (Learned Hand Formula), weighs human life against the cost of
precautionary action devalues human life to a pecuniary amount.
Even the foreseeability of harm in common law is insufficient to evidence a fault
(Bolton). The court will assess the choice on policy grounds, where if the
conduct was “socially purposeful” then the court will dismiss the claim. Judges
determine whether the injury would have been foreseeable or if the burden is too
high. In cases where the burden of preventing the injury is too high, judges may
not find fault (Conaghan, Bolton, dissent in Gatineau). At what point do we know
when the burden is too high and why should judges and not politicians or members
of the community get to decide that point.
Conaghan also contends that the creation of the fault condition relieves many
defendants from assuming liability because it places the burden on the plaintiff to
prove unreasonable behaviour of the defendant and it may discourage many
plaintiffs with legitimate cases from filing. Compensation does not arise through
the proof of injury and causation alone. It transfers to cost of injury to the victim by
protecting the defendant (often an employer or a manufacturer). Today, the court
has established presumption regimes for these cases; however, those
regimes still involve the notion of fault to some extent, and they provide the
defendants with measures to challenge the basis for their liability other than
repudiation of injury or causation.
In Cannon, the judge identified with the reasonable person, making it clear that the
judge used his own subjective conceptions of the reasonable person, by placing
himself in the very same circumstance.
Summary – Tort Law and the Feminist Critique of Reason [Conaghan]
Feminist authors have recognized that people are not simply separate and
autonomous individuals but are connected. They highlight omissions for tort law:
no duty to rescue, the burden of proof for negligence, the assessment of damages,
a lack of protection from sexual harassment. Feminist thinking often adopts a postmodern approach that questions categories and that emphasizes a “multiplicity of
perspectives” (200).
Judges decide the standard of the reasonable man: an androcentric conception of
actions and behaviour by men. Feminists argue that the RM has male
characteristics; reinforcing female conceptions of irrationality and
disempowerment. There are conflicting viewpoints on this subject, where some
feel that the RM should be universal while others reject it.
A more feminine approach might take more approach of context: ie. defendant’s
handicapped, women’s version would want to preserve certain relationships
(valued only in duty of care).
Feminists argue that “reducing human tragedy to calculations” is contrary to our
very values. Tort doctrine should recognize inequities of power – placing proof on
the defendant (it should assume more legal responsibility).
THE DEFENDANT’S ABILITIES AND CONTEXT
 It is very difficult to apply the reasonable person test purely ‘objectively.’
Therefore, we feel that it is only just to apply some subjective qualities to the
reasonable person in each case.
Judges can use subjective approaches to the reasonable person test. They can
take the defendant’s situation into account. However, they can also take their own
beliefs and experiences into account (however, this approaches is frowned upon).
In common law, we can divide fault into two components: unlawfulness
(objective) and culpability (subjective). But to what extent should the reasonable
standard be changed by subjective factors (physical such as age or sex,
psychological such as intelligence or emotional state, cultural, and level of
education). The defendant may have special idiosyncrasies, but we are departing
from the single and objective standard of reference.
Children: Will not be assessed purely in terms of the reasonable person
McHale v Watson and Others [1965] High Court of Australia
Facts:
 McHale (9 year old girl) was hit in the eye by Watson (12 year old boy) when a
stone ricochet off of a post. Watson had been playing with the girls.
Issue: What standard should the boy be held to? Should his age be taken into
account?
Held:
The boy should be held to the standard of an ordinary 12 year-old boy; his
age should be taken into account.
Reasoning:
 Kitto takes into account only age, but exonerates the child. A reasonable boy
would not have foreseen that a piece of metal would not have adhered to the
pole.
 McTiernan also exonerates the child. He rules that the injury was not reasonably
foreseeable by the boy. Young children are not liable at all, while older children
are held to a reasonable standard. However, the boy acted in a manner that
was consistent with a reasonable standard for a 12 year-old boy (boys will be
boys) in the intermediary stages of development (therefore going further than
Kitto)13.
Rationale:
 A child is required to exercise the same degree of care which the great
mass of children of the same age ordinarily exercise under the same
circumstances, taking into account the experience, capacity, and
understanding of the child. This is the application of a modification of the
reasonable person standard.
Critique:
 Menzies is the dissenting judge and takes a completely objective standard (no
modification of the reasonable person standard). He adds an obiter dictum
stating that children of 12 should not throw rocks in the direction of others.
Ginn v Sisson [1969] QCA
Facts:
 Ginn’s daughter was struck by sharp stone and injured. He claimed that the
Sisson boy threw a rock as he has been known to throw rocks before. Howard
had been told by his father that it is wrong to throw rocks.
Issue: Was the boy, in view of his age, capable of discerning right from wrong so
that he can be declared responsible under art.1053? Was the father liable?
Held:
Yes, the boy was responsible for his actions. The father was not liable.
Reasoning:
 First the judge looks at objectively wrongful behaviour, finding that the boy did
not act reasonably since he should not have been throwing rocks – this is not a
reference to the reasonable person standard, but at an act that is
objectively wrong.
 The judge then had to determine whether the boy knew that his actions were
wrong (DISCERNMENT). Howard was responsible because he has learned from his
parents that throwing rocks is wrong. Even though Ginn was 6, he was mature
enough to know that throwing rocks was wrong, because he knew that he would
be punished.
We can see the impact of the judge’s personal views in their resolution of this
case.
13
 The father can only be liable under 1054 if it can be proven that he could have
prevented the wrongdoing from happening. The time and circumstances of the
accident meant that the father could not have supervised the child.
Rationale:
 The question of discernment is asked in conjunction with the question of
the RP test.
Although the RP test is supposed to speak to objective principles, the court will
employ some subjectivity when considering children and experts. Common law &
civil law have subjectively taken age into account, but in different ways.
In civil law, courts apply DISCERNMENT – rational choice capacity to distinguish
between right and wrong, with the result that most have this capacity; however
children below age 7 probably do not have discernment. Not always true as in the
case of Ginn. Knowledge of consequences may be sufficient to establish
discernment.
If discernment is absent then the child cannot be the author of the fault because
the child cannot be blameworthy because the child cannot choose how he or she
can act. There could still be an objective fault, but there will not be liability.
For Quebec law, the child will not be liable if there is no objective fault and/or if
there is no discernment; however, parents can be held liable with or without
discernment.
In common law, we use the modification of the reasonable person standard.
MODIFICATION OF THE REASONABLE PERSON STANDARD – applies in both systems.
What would the reasonable child of the same age have done? What about other
considerations, such as intelligence and experience?
Context
Courts will take into account external contexts: such as emergency, time and
place, weather, the activity and profession of the defendant (ie. Korn is compared
to another gynocologist).
Courts may also consider the character and abilities of the defendant: handicap will
be taken into account but there is a correlative obligation to avoid activities that go
beyond their capacities, superior skill and knowledge will be taken into account if it
is advertised to the plaintiff; however, substandard abilities will not be taken into
account.
Experts
Roberge v Bolduc [1991] SCC on appeal from QCA
Facts:
 A notary gave wrong advice, telling someone that the people who that person
was going to buy land from did not have title to it. The notary was negligent and
made a legal mistake in saying that no one owned it. A judgment validated the
title.
Issue: Was the notary liable for ignoring the authority of res judicata considering
that he was a notary (special legal skills)? Was the notary also liable for not
advising R that the third party would pursue legal action?
Held:
Yes and yes.
Reasoning:
 The notary was hired to give legal advice to Roberge. He therefore can be held
to a higher standard in terms of the expectations of his/her knowledge of legal
issues.
 Since the notary wrongly advised his clients that there was a defect in the
vendor’s title and that this defect was not overcome by res judicata, he erred in
law and the damages suffered by the defendants were the direct and immediate
consequences of this advice.
 The necessity to advise clients of the legal consequences of their actions is also
clearly an aspect of the notarial duty to counsel. The notary’s failure to inform
the Roberge of the likelihood of legal action by the vendor constituted a breach
of his obligations toward him.
Rationale:
 Professionals who admit to assume a specialized expertise are held to the
reasonable standard of practice in their profession.
Sometimes that you can be in a technical matter that does not go beyond the
knowledge of the judge, since it a legal matter. Therefore this case is dealt with
as a non-technical matter.
Cultural Norms
Sometimes, the court will try and find short-cuts to avoid using the reasonable
person standard. They may rely on the customs of a community to determine
whether a fault has occurred. Also, when a statute is in place, any departure from
a written statute will be unreasonable per se.
In standards that are not legislated, for example, the defendant is a doctor, and this
defendant belongs to a community of physicians that has developed standard
practices. They establish a more definitive course of conduct that reflects a
“prudent” pattern of action, and it has come to accept it as proper. In areas where
the court has little expertise, it may be more useful.
We can divide these cases by the technicality of matters being discussed. If the
court is dealing with a non-technical matter, it can be assessed against the
community standards, but it can question the reasonability of the standard itself.
In technical matters, the court will defer to expert evidence14, unless the court
already has expertise. This is especially true when the defendant is a professional.
Does the court accept expertise based on the rules of evidence, and if yes, the
court will find no fault since there is a body that would find the behaviour
reasonable. One expert is enough if the court accepts the validity of the testimony.
In standards that are legislated, statutes are guidelines and not automatically
bases for fault. Sometimes the statute will indicate whether there is fault; however,
most do not. The court can determine whether the breach is no evidence of fault,
provides some evidence of fault, or it is evidence that a fault has been
committed15.
14
There is a worry of self-regulation, in which a community can dictate its own
standards of conduct.
15 The cost/benefit and reasonable person standards are not considered.
Waldick v Malcolm [1991] SCC on appeal from OCA
Facts:
 Waldick went to visit Malcolm. She slipped on the ice on the laneway and
injured herself. The laneway was not salted (as it was “custom” not to salt
laneways). She sued both Malcolm and the owners, but that claim against the
owners was dismissed because they did not occupy the residence at the time.
Issue: Was the defendant negligent in not taking efforts to make the driveway
safe? Did she fail to meet the statutory duty of care?
Held:
Yes.
Reasoning:
 Iacobucci ruled that the statute, the Occupier’s Liability Act, places an affirmative
duty on the occupier of a premise to take reasonable care that persons/property
are not injured. A decision in favour of the defendant would mean that the OLA
would not serve its full force, as it was intended to prevent accidents like these.
 The court ruled that Waldick did not voluntarily assume risk (volenti) upon
entering the premises, because they cannot fully perceive the risks resulting
from the occupier’s non-compliance with the law.
 The court considered the foreseeability of the accident and the cost of
avoidance. In this case, it satisfied both conditions16.
 The alleged local custom of not salting or sanding parking areas and driveways
was unproved. Even if there had been adequate evidence in the record of such
a local custom, that custom would not necessarily be decisive against a
determination of negligence. No amount of general community compliance will
render otherwise negligent conduct reasonable.
Rationale:
 The occupier of a premise must take reasonable care to ensure that
visitors and property that enter the premise are not foreseeably damaged.
 Community standards are taken into account in evaluation fault; the
burden of proof for establishing a community standard rests on the party
that invokes it; no amount of community compliance will render otherwise
negligent conduct reasonable.
This case is one of occupier’s liability and not of negligence. It applies a body of
law to damage caused on a person’s property. In common law, it would make a
difference whether a person is invited or is trespassing; however, in civil law it
does not make a difference.
Ter Nutzen v. Korn revisited
Facts:
 Technical matter: Korn did not warn his patient of the risk of HIV through AI.
 Non-technical matter: Korn did not foresee transmission of STD (including HIV)
without adequate screening and follow-up methods.
Issue: Did Korn fail to adhere to standard practice?
Held:
Yes. He should have done a better job at screening his donors.
Reasoning:
 In a technical matter, it goes beyond the expertise of the court. Any matter
relating to diagnosis or treatment could not be second-guessed. However, if
there are obvious alternatives and so fraught with risk, then you will fall into a
non-technical matter.
 The conduct of physicians must be judged in the light of the knowledge that
16
Iacobucci uses a cost-benefit analysis.
ought to have been reasonably possessed at the time of the alleged act of
negligence. It was not possible for a jury acting fairly to have found that, in 1985,
the respondent ought to have known of the risk of HIV by AI. The court does
not use hindsight.
 In a non-technical matter, an ordinary person would see the issue as being one
of common sense. A reasonable person would have tried to avoid the risk.
 Screening and following up with donors about their risk profile was a standard or
a practice, the adoption of which was not premised upon technical knowledge
and expertise, but ordinary prudence. It was therefore open to the Court of
first instance to find negligence since the risk of contracting an STD was
obvious enough.
Rationale:
 A finding of negligence can be upheld where a defendant does not take
ordinary prudence since the court can find that the standard was
unreasonable.
Canada Wheat Board v Saskatchewan Wheat Pool [1983] SCC
Facts:
 The Pool purchases and holds the grain for the CWB in its elevators. One
shipment of grain was infested by larvae, but the cause was not known. The
wheat was loaded onto a ship and the infestation was detected. The CWB had
to divert the vessel for fumigation. The CWB sued for the damages alleging a
breach of the Canada Grain Act. The initial judgment ruled that not enough care
was assumed; however that judgment was reversed.
Issue: Does a breach in the Canada Grain Act constitute a breach in civil
liability? Can the CWB take actions against the Pool?
Held:
No.
Reasoning:
 Dickson ruled that the breach of the statute did not mean that the Pool
assumed absolute liability. There must be a reason to shift the loss and
since there was no negligence the defendant should not have to pay. Had
Parliament intended to impose absolute liability in the statute, it would have, but
the CGA did not contain such provisions. The elevator discharged its obligations
by delivering the grain as it received it.
Rationale:
 Civil consequences by the breach of a statute can be considered under the
tort of negligence. Proof of statutory breach, however, may be used to
establish negligence.
Morin v Blais [1977] SCC on appeal from QCA
Facts:
 Morin (car) and Blais (tractor) were driving on a dark highway, and a 3 rd vehicle
was approaching them in the opposite direction with his headlights on. Morin
crashes into Blais. The superior court found Blais liable, the Appeal court found
Morin liable.
 The red light on Blais tractor was not working (in breach of driving regulation)
and other light barely visible. The tractor equipped with the required fluorescent
triangle.
Issue: Does the breach of the statute constitute enough to impose liability?
Held:
Yes. Liability is incurred, though there was a dissenting opinion.
Reasoning:
 The statute in question establishes an elementary standard of care (reasonable),
and its breach is equivalent to a civil fault. The accident occurred because the
tractor was not seen: therefore the cause of the accident flowed from the breach
of regulations, because reasonable care was not taken.
Rationale:
 Breach of a statute that establishes an elementary standard of care. If an
injury results from a breach, we can presume that there was a causal link
between the fault and the accident, unless otherwise proven).
Critique:
 In a dissenting judgment: Grandpre found that the driver should have seen the
light on the back of the tractor and when he was blinded by the opposing lights,
should have slowed down. The reasonable man in this case should have
exercised more judgment when driving in ‘dangerous’ conditions.
In both cases, breach of the statute provided evidence of fault, but it was not used
as evidence per se. However, Parliament deeply considered this issue during its
drafting: why then should the court have the prerogative to determine the standard
of its application. It also raises questions as to the standard of enforceability (since
the statute may impose a criminal standard of care, and therefore, how do attach
civil liability to such violations).
MODIFICATIONS OF FAULT
Liability for Damage Caused by Another: Vicarious Liability/Responsibilite du
commettant
The law of ECO has shifted away from the idea of individual liability to a more social
ideal of liability. Until this point, we have examined fault as the central requirement
for an individual person’s wrongdoing (and it is governed by the tort of negligence
& a.1457). We can also be held liable for the action of others and the defendant,
personally, has done nothing directly to the defendant to cause the injury.
Defendant (committed no fault
in direct relation to the injury).
Relationship
Claim
(for one’s own deed)
Person who
Plaintiff
committed the fault
A third party enters into the extra-contractual
situation. The defendant has committed no fault in
direct relation with injury.
a.1459-1463 detail the provisions in the civil code.
However, in common law, the tort of negligence is
based on fault, and therefore we are considering
either statutory provisions (for children) or other
torts (tort of vicarious liability for employees).
These provisions move away from fault to be more
favourable to the victim. Since it is difficult to apply
the reasonable person standard to the actions of another.
PRESUMPTION is an evidentiary concept – the court takes for granted that a fact is
true, unless it is proven otherwise. Usually the plaintiff/victim has to prove it in
regular fault cases.
PRESUMPTION OF FAULT – the proof of fault is facilitated, because the fault of the
defendant is taken for granted, until the defendant shows that he has acted
reasonably. The defendant must show absence of fault. Therefore, the absence
of fault is a defence. In this case, the defendant cannot stay silent, since the
defendant has to show reasonableness on his part or disprove the other conditions
around liability (ie. a defendant can show that the child is not a minor in a parental
liability case).
PRESUMPTION OF RESPONSIBILITY (strict liability in common law) – there is no need to
prove fault, since it is already assumed. We are only left with causal link and
injury17. In this case, there is no opportunity for the defendant to prove the
absence of fault, because fault is no longer a condition: the defendant’s liability is
not imposed because he acted unreasonably. (ie. and employer can never plead
absence of fault). However, the defendant can raise ACT OF GOD or that the injury
was caused by fault of plaintiff (pleading absence of causation).
If a plaintiff cannot fit a case into parental liability, employers’ liability, or liability of
things, and he cannot establish presumption of fault/responsibility, then the plaintiff
can still sue the actor for the actor’s own deed, and the case is thrown out against
the defendant (general regime for liability for one’s own deed(s) is always a fall
back).
17
Duty of care is only a matter for tort of negligence.
A. Why should we move away from fault? We find that the victims are worthy of
protection by both making it easier for the victim to sue and because the defendant
will have deeper pockets for compensation. The defendant has created a risk of
injury and not the injury itself: since people who derive profit from the creation of
the risk, should also bear the consequences. It is not necessarily and
unreasonable risk.
B. If we do move away from fault, what is it replaced by (technical question) and
how is it modified? See cases and examples below as they relate to parental and
employer liability.
Injury Caused by an Employee: Imposition of a Regime of Strict Liability
[a.1463] among others, does not refer to the defence, is equivalent to not allowing
the defence. It’s equivalent is the tort of vicarious liability in common law.
A. The employee caused the injury and the employer can be condemned, even
though it may have acted reasonably. But why impose liability? Khoury presents
the following justifications:
(2) Legal substitution since actions of employee are extended to the actions of
employer; however, this justification has been pushed aside, since it is the fault of
the employee being transferred, (3) protection of victims, (4) employer benefits
from the business and therefore the employer should absorb the losses, (5) riskcreation.
Liability for risk  liability for fault. It regards the defendant as having created the
risk for some economic gain. Therefore, the loss should be transferred to the
defendant even though the defendant was not directly at fault for the behaviour of
the actor. Although liability is based on the idea of fault, risk-assessment is
incorporated in cases where the standard of proving fault is modified.
B. What is fault replaced by?
Civil Law (1463 CcQ)
Common Law (Tort of Vicarious
Liability)
Relationship between Principal &
Relationship between employer &
Servant/Agent
employee
Fault of Servant/Agent, but not of
Fault of employee, but not of
defendant/employer
defendant/employer
Fault in the performance of his duties
In the course of employment
=Presumption of responsibility regime
=Strict Liability regime
However, we must still prove causation and injury. No need to prove duty of care
(only in cases of negligence or liability for one’s own deeds.
We need to assess the relationship between the defendant and the employee. Is
the employer empowered to give precise orders to the employee on the aims
pursued in the employment, on how to do the work, and on when and where to do
the work. If no, then the employee is an independent contractor. Specialization of
tasks makes it difficult to apply this test [Asbestos].
The normal rules apply to establish the fault of the servant/agent (RP test, CB
analysis).
The hardest part of the test is derived from connecting the fault to the employee’s
duty. (1) In civil law courts, the justices ask whether the employee committing the
fault was pursuing the benefit of the employer or whether he was pursuing a
personal interest (what is the employee actually thinking?). As long as the
employee thinks it benefits, it is good enough to establish strict liability regime.
(2) The common law courts will draw a connection between the employee’s wrongdoing and employment using the SALMOND TEST. The court will assess whether the
acts were authorized, whether the acts were an unauthorized mode of committing
an authorized act (problematic category), or whether the conduct is so
unconnected to the employee’s job as to be separate from it (employer is not at
fault). An employee can act criminally, act negligently, or act intentionally in
performing his duties, but how do we tell whether this was in the course of
employment?
Ira Bushley v US [1968]
Facts:
 Bushley operated a drydock/repair-yard. A coast-guardsman returned drunk and
opened a valve letting water into the year, damaging the dock and causing the
ship to sink. Bushley sued the US government claiming that it was responsible
for the sailor’s actions.
Issue: Is the government vicariously liable for the actions of its employee?
Held:
Yes.
Reasoning:
 The court discusses issues of foreseeability, risk, and cost-allocation. Costallocation will be efficient only if transferring liability to the employer will achieve
deterrence. This argument cannot be the only argument. How we make the link:
was the risk that led to the injury was foreseeable to the employer? If so, then
you can attach it to the employer’s activities and it is good enough to attach
liability, even without direct fault.
 The risk that sailors going and coming from their ship might cause damage to
the drydock is enough to make it fair that the enterprise bear the loss. The
employer should expect to assume some risk based on the conduct of its
employees in and out of the workplace.
Rationale:
 Forseeability, risk, and cost-allocation are considered when transferring
fault to the employer.
Quebec Asbestos Corporation v Gedeon Couture [1929] SCC on appeal from
QCA
Facts:
 The plaintiff, an independent contractor, was working in the company’s mine.
The company supplied the dynamite, tools and accessories. The plaintiff
organized the staffing and operation of the mine. The plaintiff was injured by an
explosion of dynamite. The dynamite had been placed in the rock by the plaintiff
himself or one of his employers.
Issue: If Couture was an employee, would QAC liable for damages?
Held:
No.
Reasoning:
 He was not an employee of QAC and he assumed the responsibility for the
operation (and the safety) of the job site. Had anyone else been injured in the
same way, Couture would have been held responsible: Couture controlled the
mining operations.
 The accident was caused by the contractor’s own negligence (QAC’s
defence would have been valid as well).
Rationale:
 Employers are not held vicariously liable for the acts of independent
contractors.
Dube c Havre des femmes Inc. [1998] QCA
Facts:
 Dube sought help at Havre women’s shelter following her divorce. A counsellor
came into her trust and invited her to stay at her house and invited her to drink
alcohol. The counsellor contacted Dube’s daughter. The counsellor proceeded
to extort money from Dube. Dube sued the counsellor and her employer to
recover the funds. It does not matter that the act in question is criminal, nor that
it is outside the premises of the employment.
Issue: Is Havre responsible for the conduct of its employee? Is Havre guilty
under both the VL regime and negligence (under 1054, and 1053: that the
employer committed a fault).
Held:
No.
Reasoning:
 The court did not accept the argument under 1053. The organization did not act
unreasonably in the recruitment of the employees and all employees were
instructed not to take any clients home. No fault of employer.
The court uses a test to establish strict liability and exclude fault altogether: We
can assume the relationship and we can assume a fault.
 Does the violation occur through the general scheme of duties and
responsibilities of the employee? No: the counsellor clearly deceived Dube into
giving her the money and developed her relationship through the position at
Havre. Her disobeying orders was not sufficient to relieve Havre.
 However, the court asked whether the action benefit the employer? No, Havres
claimed that they are very careful in selection of employees and that their
employees were explicitly told to not shelter women in their homes. Only Dube,
herself, benefited from her actions.
Rationale:
 An employer is not liable for the actions of an employee that take place
outside of the course of their duties and it would be unfair to make nonprofits suffer for the actions of their employees (balancing of benefits and
detriments).
Bazley v Curry [1999] SCC on appeal from BCCA
Facts:
 The Children’s Foundation being sued is non-profit organization that ran
residential facilities for kids ages 6-12. It authorized employees to act as
parental figures for the kids, including bathing and caring for kids. Curry, a
pedophile (not known by foundation), sexually abused Bazley and was later
convicted of sexual abuse before he died. Bazley sued foundation for
compensation. The trial judge ruled that foundation was vicariously liable; court
of appeal dismissed the appeal made by foundation.
Issue: Should the Foundation be held vicariously liable for the actions of one of
its employees? Should non-profits be held exempt from vicarious liability. Can
the sexual abuse fall outside the authorized act or is it an unauthorized
mode or conducting an authorized act?
Held:
Yes.
Reasoning:
The court used the Salmond Test to determine vicarious liability:
1. Either the employee acts authorized by the employer (definite fault) or
2. Unauthorized acts are connected with the authorized acts that they may be
regarded as modes of doing an authorized act.
 McLauchlin found that Bazley admitted that his actions were part in parcel of his
responsibilities. The court must then approach the second test by considering
precedent and policy implications behind imposing no-fault/absolute liability. We
are dealing with “in the course of employment” component, because the
relationship has been established and because the employee’s fault was
established at trial:
Precedent
The court is looking for cases where the employer will benefit from the act,
where the employer creates the sort of situation or in cases with dishonest
employees; however the court found no cases that applied. There were no
precedents. Therefore, we must look to part II.
Policy
(1)
Policy showing connection to employment: The court adopts an
economic justification for the employment of the compensatory and deterrencebased approaches – a company that stands to gain from its services, should also
have to ensure that it covers its losses [risk theory]. The employer put the
community at risk by doing its business. When the risks materialize and cause
injury to member of the public, the employer should bear the loss. In this case,
the employer materially increased the risk of harm and thus should pay for its
fault.
McLauchlin enumerates a list on p.560 of the factors to ASSESS THE RISK. The court
considers benefit to the employer, opportunity to abuse, extent of power
conferred on employee, vulnerability of victims, and whether the act was related
to friction/confrontation/intimacy in the business.
(2)
Other policy objectives, but they are used to shift the loss: Compensation
is meant to right a wrong, while deterrence would prevent other employers from
failing to enact safeguards that could prevent future wrongdoing by their
employees. Finally, we should consider whether transferring the loss is fair to
the employer (to mitigate the severity of the test). McLauchlin does not make an
exemption for non-profits, because the victim should not remain remedy-less for
the “benefit” of society.
Rationale:
 In case of non-profit organizations, the employer can still be held liable for
the wrongdoing of the employees
Jacobi v Griffiths [1999] SCC on appeal from BCCA
Facts:

Griffiths formed a relationship with Jacobi and another that resulted in sexual
abuse. Griffiths was a role model but not a parent. Griffiths was later
charged and convicted of sexual assault but a civil action was filed against
him. All but one of the incidents took place off-site, where Griffiths was alone
with the kids.
Issue: Was the Boys and Girls Club vicariously liable for Griffiths’ actions? Can
the sexual abuse fall outside the authorized act or is it an unauthorized
mode or conducting an authorized act?
Held:
No. Appeal dismissed.
Reasoning:
Precedent

Strong reluctance to impose no fault liability on the behaviour of employees
that was deeply personal.
Policy
(1) Unlike Bazley, the Club did not place Griffiths in position of trust and
authority so much as he did it himself. Unlike the Foundation, the Club did
not pursue parenting so much as it was an activity centre. The Club must
have been able to foresee a strong connection between the goals of the
business, what it was asking its employees to do, and the wrongful act
committed by the employee.
There was too much disconnect between Griffiths’ role at the Club to the baiting
and sexual touching that occurred at his home. The opportunity to abuse was
slight, parents gave permission to Jacobi to go to the house of the employee
(not part of his job), no elements of intimacy as was the case in Bazley,
gradual increase of intimacy contravened the goals of the club.
(2) Though Binnie recognizes that it would be difficult to deter employees from
sexual abuse, while there are already criminal sanctions in place. Fair
compensation should not be a driving force to justify transferring liability.
Non-profits should be submitted to the law of ECO, but Binnie does not want
to deter them from working with kids.
Rationale:

When misconduct is too remote from the sanctioned activities of an
employee, the employer should not be held vicariously liable.
Critique:
(1) McLaughlin lists and identifies the factors in Griffiths’ employment situation
that would have heightened the risk of a sexual assault; she notes that
Griffiths’ developed trusting and intimate relationships with these kids that
facilitated their exploitation. The environment was charged with potential for
trust.

Although the Club does not strive to abuse kids; however, the Club’s
objectives did want their mentors to form intimate relationships with their
clients. The Club encouraged Griffiths to develop intimacy, since he had a
“God-like authority” over the kids. Finally, she finds that the victims were more
vulnerable, as they were troubled adolescents.
(2) The goal of compensation is not only to find a deep pocket, but also
internalizes the risk on the employer.
The same fact situation led to two very opposing interpretations of the test.
What is the role of risk? Is it appropriate for dealing with wrongdoing? Risk would
have been created by an employer and they would have benefited economically
from placing the risk in the community. The court is trying to show the connection
to the employer. Risk-assessment is a flexible technique: it allows judges to
impose a regime that holds an employer to a high standard, especially when
dealing with children.
What is the impact of policy? Is it appropriate to assign so much significance to
policy considerations? It seems unjustifiable to hold an employer at fault when
criminal law cannot deter the conduct of an employee.
Note: that when you have proven the conditions of 1463, then you automatically
prove the conditions for 1457. The only issue in dispute would be causation:
where causation under 1463 may require the establishment of fault to injury and
risk to injury. We can infer that there was a risk, because if a fault occurred during
the course of the employment, a risk would necessarily have been present to
create the fault.
Injury Caused by a Child (Indirect Liability):
Imposition of a Presumption of Fault Regime
In common law, the tort of negligence applies to parents and no special regime is
created. In Ontario and Manitoba, legislation allows for a presumption of fault
regime in those jurisdictions. However, [a.1459] establishes a regime to sue the
parents through indirect liability18.
Children cannot represent themselves before a court. The parents represent the
child; however, the child’s bank account is responsible for paying the indemnity
when the child is sued.
.
Why presume fault? The authority relationship that entails a certain degree of
power and control exists, and therefore parents should be compelled to exercise
their supervision in a more vigilant way.
.
Fault is replaced by the following conditions: (1) the link of filiation exists between
natural, adoptive, or divorced parents; (2) the child must be a minor under 18; (3)
the minor must commit an act or a fault then the presumption takes effect.
Discernment is not necessary to force the parents to compensate. Injury and
causation must still be proven. Parents are presumed at fault regarding general
and immediate education, custody, and supervision: they must prove
competence in all three factors to prove absence of fault.
Parents will usually challenge custody and supervision together. They will try and
demonstrate the parents’ parenting over the course of the child’s development.
The family situation will be used to evaluate the child’s education (role models,
communication, obedience, behaviour at school, etc.).
These considerations will be assessed in light of:
1.
age - more severe assessment when the child is younger
2.
character of child - disobedient children require more supervision
3.
foreseeability of the act
4.
tolerance that the parents demonstrate of the child’s use of
dangerous objects
Ginn v Sisson revisited
 The father can only be liable under 1054 if it can be proven that he could have
prevented the wrongdoing from happening.
 The discipline was found reasonable in the past and the father has shown that
the child had been told that he should be good to other people. The child knew
that he would be punished if he acted wrongly. The time and circumstances of
the accident meant that the father could not have supervised the child.
Reasonable supervision is relative to time and place. The father could not
reasonably foresee or prevent the child from acting.
Gaudet v Legace
Facts:
 Three boys went to Lagacé’s house took a beer bottle, filled it with gas, and took
a lighter; they went into the woods to start a fire; in the course of this activity
there was an explosion and the plaintiff was injured.
18
We can still sue the parents through a.1457 (liability for one’s own deeds).
Issue: Should their parents be liable?
Held:
No.
Reasoning:
 The parents provided sufficient evidence to rebut this presumption: they provided
a good education, they could not reasonably be expect to keep the objects in
question under lock and key, and there was sufficient supervision (parents
cannot be expected to watch their children 24/7).
What type of a child’s behaviour likely to attract parental liability (a.1459, 1462)?
Act of the child19  if a child is not endowed with reason (no discernment) then the
act must be objectively harmful (a.1462). The child will not be held be liable but
parents may be held liable; however, only if the act of the child would have
constituted a fault (and would have otherwise been negligent) if the child had
been endowed with reason. The court has to create a legal fiction by endowing
the child with reason to assess the fault of the parent; however, there is no
reasonable point of comparison20.
Fault of child  if child endowed with reason then the normal principles of fault
must be proven (a.1457).
The court presumes fault on the parent to facilitate the plaintiff’s claim, because the
onus is on the defendant to rebut the presumption by demonstrating reasonable
custody, education and supervision. Although this presumption seems more
difficult to rebut, as the parent defendant must demonstrate competence over the
course of the child’s upbringing, the court requires only a reasonable attainment of
that standard, allowing a defence of absence of fault. Under article 1462,
however, the fault condition is removed almost entirely, because by
considering acts that are objectively wrong, but not faulty on behalf of the child, the
court may assign liability to the parent, where the child did not commit a fault under
1457.
What type of a child’s behaviour likely to attract parental liability in common law?
Parental Responsibility Act requires that the child act intentionally and not simply
negligently. Therefore the parent can plead absence of intention on part of the
child. Damages are also limited to property damage (which can be claimed in
small claims court) and not bodily or non-pecuniary injury.
There is only presumption surrounding immediate supervision and not general
supervision, custody, or education.
19
There can be liability of a parent without fault, but how can we apply this?
Consider a two-year-old and endow it with reason? What is a reasonable twoyear-old? The court is forced to compare very young children; however, the court
will have difficulty assessing reasonable children under 6 years old.
20
Modifications of Fault: Liability for Damage Caused by a Thing
In civil law, we always have a general regime of liability based on fault (a.1457).
The special regime of liability for the deeds of things applicable to all things (1054
CCLC, a.1465 CCQ) imposes a presumption of fault. However, under a.1466 and
a.1467 apply a strict liability regime of liability for the deeds of animals and
buildings (1055 CCLC), which impose a presumption of responsibility. Therefore, if
you are injured by a building or an animal then you can sue under all three
regimes.
We are looking for a regime that made the proof of fault easier for the victim, for
things that are not buildings/animals. Using 1054 CCLC, paragraphs 2-5 present
presumptions of fault (and therefore, the defence can use absence of fault), as
stated in paragraph 6. Some authors have claimed that this paragraph also
applies to paragraph 1. Therefore paragraph 1 would create an autonomous strict
liability regime.
City of Montreal v. Watt & Scott [1922] JCPC (Quebec Case) on appeal from
SCC
Facts:

The city of Montreal constructed a sewerage system connected to the
plaintiffs’ cellar; During a heavy rain storm the sewer was filled with water
and flooded the cellar, causing damage to the property.

The court of appeal found that the storm was an act of god to overturn the
trial judge’s decision.
Issue: Can the city be held liable under a.1054 CCLC (a.1465 CCQ)?
Held:
Yes.
Reasoning:
 The city is liable per a.1054 – damage was caused by a thing, which was
under the control of the city. It establishes a presumption of fault unless
the party in question can prove that he/she was "unable to prevent the
act which has caused the damage" (absence of fault defence).
 The storm had not been a force majeure/act of god, and the sewer should
have been constructed to meet all reasonable expectations. A large
rainstorm should have been expected, and therefore the sewers were found
to be insufficient in preventing the damage. The sewers were under the
control of the defendant and the flooding was caused by the water overflow
from the sewer.
 However, the court held the trial judge’s reduction of the damages, since the
plaintiff has an obligation to minimize/reduce his loss, which could have
been done by installing a block valve to avoid overflow.
Rationale:

Unless you can absolve yourself, then the defendant is responsible
for damages caused by his thing/property.
Rubis c. Gray Rocks Inn Ltd. 1982 SCC on appeal from QCA
Facts:

The 4-year old appellant was injured by falling off the hotel’s window; she
climbed the radiator and leaned on the loose screen which gave way. Her
parents were in the adjoining bathroom at the time.
Issue: Was the hotel liable for the child’s injury due to the loose screen?
Held:
No. The screen did not cause the injury.
Reasoning:

1054 does not apply when the damage does not result from the
autonomous act of the thing. The child was leaning against the screen
and therefore the screen did not cause the damage, the child did.

1055 provides that the owner of a building is responsible for damage
caused by its ruin, where the ruin is caused by want of repairs or by an
original defect in its construction. The majority held that there was no
construction defect or want of repairs in light of the purpose for which the
building was being used. The purpose of the screen was to keep out flies
and not to keep children in. Accordingly, the screen was not defective
under C.c. 1055.
Rationale:

The screen did not act independently to harm the child.
In common law, we always have a general regime of liability based on fault
(negligence). In a separate clause (a.976), annoyances of neighbourhood
imposes a presumption of responsibility (but this is unclear). However, under the
tort of Rylands v Fletcher imposes a strict liability tort. Also, the tort of nuisance
imposes a strict liability regime.
Rylands v Fletcher [1868] House of Lords
Facts:

The defendant employed independent contractors to construct a reservoir
on his land; Due to the existence of disused mine shafts on the site, of
whose existence the defendant did not and could not have reasonably
known, the reservoir flooded the plaintiff’s adjoining land. The thing in
question is the “water”.
Issue: Is the defendant liable for the damage to plaintiff’s soil? What is the level
of liability that the defendant will be held to (strict or absolute)?
Held:
Yes. The defendant will be held to strict liability.
Reasoning:

Blackburn ruled that the (1) defendant brought something on his own
property (2) anything likely to do mischief/cause injury if it escapes, must
keep it. (3) If he does not do so, then he is answerable for all of the
natural damage that arises.

But for his act the damage occurred and he should be obliged to repair
the damage, which ensues if he does not succeed in confining it to his
own property. The defendant had an obligation to confine any changes to
his own property, as a duty of care is owed to a neighbour. The damage
was entirely incumbent on the actions of the defendant.
In the House of Lords

Carnworth adds that no matter how careful he has been, it does not
matter. Even if the defendant proves reasonable care/absence of fault, it
is not a defence (imposition of strict liability).

Cairns ruled that the plaintiffs took no part in the defendants’ undertaking.
Although the defendants are entitle to use their property as they wish, if
they use it for a “non-natural purpose” should consequences arise, then
the defendant must answer for the damages cause to another’s property.
Water caused damage, but we cannot sue water, since it cannot be at fault, nor
does it have a patrimony. Therefore, can we find someone liable for the actions for
the water, due to the relationship between the defendant and the thing.
1. Non-natural use – Blackburn had interpreted that mere importation onto land
would impose this term. However, Cairn’s ruling was later interpreted to mean
that the object was not used for a common activity. There must be a human
behaviour associated with the thing, and now, it means that the defendant has
made a dangerous use of the thing.
2. Likely to do mischief – since there has been injury, it is likely to do mischief.
However, the courts could use foreseeability to be more/less restrictive.
3. Escape – from a place that the defendant controls to one that the defendant
does not.
The torts of negligence and nuisance have gradually extended to cover most
of this subject matter. Nevertheless, the potential of Rylands great; however,
Rylands can be used for environmental liability. However, a narrow application
limits its application to polluters.
Both the Rylands and the 1054 regimes depart from the regime from fault, as
being a central condition. However, under Rylands, fault is not even a
requirement in this case; however under 1054, fault is still central since the
defendant can use absence of fault as a defence.
The point of Rylands was to hold proprietors responsible for the damage caused
by their property regardless of fault. Cost should be internalized to the proprietor;
however, by not applying this regime authentically, and by requiring an element of
foreseeability, it becomes more difficult for the plaintiff to prove his/her case. In
cases of industrial pollution, the courts reject the claims of the plaintiffs, who may
suffer injury because of the damage caused by the mischief, because the
standard of proof approximates that of fault, and the regime of strict liability
becomes difficult to apply.
Rylands v Fletcher
Strict Liability
Non-natural use of the
thing (not naturally
there)
Likely to do mischief if
it escapes
Escape
Rylands may be
somewhere in the
middle and that it does
not fall with in a purely
strict regime.
1465
Presumption of Fault
Have a thing
Defendant has custody of the
thing
Autonomous act of a thing (the
thing must move, therefore
slipping on ice does not count)
=Presumption of Fault
Injury, Causation must also be
proven
Derived from new types of
injury resulting from the
Industrial Revolution: a.1054
CcL-C.
Jurisprudential “discovery” of
general regime of liability for
injury caused by things. There
is a debate over whether there
is a presumption of fault or
responsibility.
1466, 1467
Strict Liability
Applies to buildings
(immovables) and
animals
Derived from a.1055
CcL-C and Roman
Law
Tort of Nuisance (Trouble de voisinage/neighbourhood annoyance a.976)
This body of law is concerned with the interference in the use and enjoyment of
land. Damages can be related to the land and to the occupiers’21 comfort/health.
The court is trying to balance the rights of neighbours. There is a certain amount
of interference that comes with living in society. The balancing exercise will have
to accept some annoyances (which neighbour to be prioritize?); liability is brought
to bear when the law decides that those annoyances are too much. Therefore not
all annoyances are nuisances (noise, others, and pollution).
In common law, the court will protect against UNREASONABLE INTERFERENCE. The
defendant is either the creator of the interference or the possessor of the land.
“Unreasonableness” relates to the extent and nature of the harm (however, this is
different from its use in negligence, because we are not focussing on the
reasonableness of the defendant’s behaviour, but here the court considers the
effect of the behaviour). Reasonableness (absence of fault) is not a defence.
The court will consider:
1.
Character of the neighbourhood (industrial, residential; downtown,
suburb); very close to the argument of “coming into nuisance”; that the
defendant was there first. The court will not accept it as a defence by the
defence; despite what Lord Denning says in Miller v Jackson.
2.
Intensity/Duration
3.
Time of Day, Day of Week
4.
Zoning designation (the focus should be on character of neighbourhood)
5.
Utility of the defendant’s activity (importance and value to community)
6.
Nature of the defendant’s conduct (we take this into account when
there is malice on the part of the defendant: causing the interference
intentionally)
7.
Sensitivity of plaintiff or land (abnormal sensitivity may limit a plaintiff’s
claim)
Appleby v. Erie Tobacco Co. [1910]
Facts:

Appleby complained that the noxious odours coming from the tobacco
factory were interfering with his enjoyment of his premises, damaging the
health of his employees, and hurting business.

Erie Tobacco argued that they were entitled to carry on business, even if
nuisance was created. They also claim that Appleby lost no customers and
that the odours did not make them sick. If there is injury, it is not serious
enough to warrant granting an injunction.
Issue: Does the nuisance brought on by the smells of the tobacco company
warrant granting an injunction or can the injury be compensated through damages?
Held:
Middleton granted the injunction to restrain the tobacco company from
operating in such a way as to cause a nuisance to the plaintiff. The injunction was
stayed for six months to allow for the company to try and reduce the nuisance or to
have the odour-causing part of the business moved.
Reasoning:
21
This includes non-owners as well.


The odour is an inconvenience materially interfering with the ordinary
comfort physically of human existence. The court said that it cannot set an
arbitrary standard that will cover all cases: the specific circumstances are
always relevant. The court takes the local standards of the neighbourhood,
and there was material discomfort. The annoyance was material enough to
render it less fit for Appleby to run his business.
The court did not accept ETC’s argument of absence of fault.

The use of the property by ETC does not impact on the plaintiff's rights
(Drysdale v. Dugas). Nuisances can both interfere with the comfort and
enjoyment of the property and decrease property value. An injunction may
be awarded as to the former since damages cannot be an adequate
remedy.
Rationale:

An injunction is an appropriate legal remedy in those cases where the
inconvenience and annoyance and loss of enjoyment to property is
found to have occurred and it is not felt that this can be either
adequately estimated or compensated through the awarding of
damages.
Miller v. Jackson [1977] QBCA
Facts:

The plaintiff buys a house next to a cricket ground and sues the club for
balls hit onto their property. The club claimed that it took all reasonable
measures to avoid hitting balls onto the property. Balls rarely left the pitch.
The plaintiff is seeking an injunction and damages.
Issue: Is the plaintiff entitled to damages and an injunction for nuisance?
Held:
The defendant is guilty; however, the plaintiff is entitled only for present
and some future damages.
Lane
CummingsBruce
Denning
Nuisance
The pitch creates a risk of
physical injury and comments
that coming into the nuisance
is no defence for the
defendants. Lane is
concerned with injury to the
persons and potential of
physical damage. Nuisance
can be used to reduce risk.
(dissent) He undertakes the
balancing exercise and weighs
in favour of the defendants in
terms of public utility, which
excuses the nuisance
otherwise. Denning cites that
the plaintiffs actively chose to
move next to a pitch and thus
came into the nuisance.
Remedy
(dissent) An injunction should be
awarded to allow the club to find a
remedy.
Injunction should not be granted
because of the interest of the public in
having cricket played in the
neighbourhood. Damages should be
awarded for present and future losses,
as to avoid the issuance of the
injunction.
In civil law, under a.976/1457, is linked to the idea of ABUSE OF RIGHT. If you could
prove that someone was abusing their property rights, then you could make a claim
against him. The Code lists the nature of the land and the custom of the
neighbourhood. Even though there is absence of fault, the defendant cannot
escape liability.
Canada Paper Co. v. Brown [1922] SCC on appeal from QCA
Facts:

Brown sued CPC for production of fumes that interfered with the
enjoyment of his property.
Issue: Is CPC liable for nuisance?
Held:
Yes. An injunction against CPC was granted.
Reasoning:

The plaintiff cannot be adequately compensated in damages for the
deprivation of the enjoyment of his property. Although granting an
injunction is discretionary, the court finds it to be an appropriate remedy.
What will happen if an injunction is granted?
 The judgment also addresses the issue of public v. private nuisance: "the
injury to plaintiff’s property is different from that of the inhabitants at large
– most of whom are dependant on the company and willing to tolerate
some personal annoyance.” But the judgment also takes into account that
the manufacture of the product in question is not essential to the viability
of the company; it can be bought or made elsewhere. This is an example
of balance of convenience.
Drysdale v. Dugas [1896] SCC on appeal from QCA
Facts:

The plaintiff, Dugas, brought action against the defendant, Drysdale, for
the odours, noise, and damage caused by the erection of livery stable.
The defendant argued that the stable is indispensable to the city, the
stable was built according to municipal regulations, and the respondent
acquired one of the properties in question after the stable was built.
Issue: Is the defendant guilty of nuisance? If so, what is the appropriate
remedy?
Held:
Yes. Damages are granted (no injunction).
Reasoning:

The judgment relies on a.1053 CCLC, which covered all abuse of property
rights: where rights must be exercised as to not abuse the rights of others.
The plaintiff suffered inconvenience in the enjoyment of his property,
and that his property has been damaged. In similar cases, this has
constituted a nuisance as it does in this one; this stable was in a
residential neighbourhood. Time, place, quantity/intensity were also
considered by the court.

As for the defendant’s arguments: neither the "indispensable" argument,
nor the "accordance with regulations/absence of fault" are relevant; the
"we were here first/coming into the nuisance" argument is also rejected on
the basis of common law jurisprudence (Tipping v St. Helen's).
Since the plaintiff did not have to prove fault, this tort is easier to apply. The
plaintiff could have sued under the tort of negligent; however, fault would have to
have been proven.
Remedies can include: an injunction – which is an order of the court to do
something (mandatory) or to stop doing something (prohibitory). An interlocutary
injunction is imposed in the interim to make someone stop doing something when
there is an emergency (where if the activity does not stop, then permanent
damages will occur). The court are quite reluctant to award damages, because the
court would legitimize the creation of a nuisance by the defendant. An abatement
is accepted only in cases of emergency (and it precludes the plaintiff from seeking
damages).
If the remedy for nuisance were damages, it would allow industries with deep
pockets to buy a right to pollute or interfere.
Whether nuisance is based on fault or on risk?
In common law, it seems as if nuisance is a strict liability regime; however, in civil
law, the debate is less clear. See Gourdeau v Letellier.
We can point to a.950 to identify that owners run the risk of exercising the
right of ownership.
Fault
- The subjective intention of the
defendant – malice – can be
considered under tort of nuisance
(however, this requirement is not
necessary).
- The civil law used to rely on 1053,
which established a fault-based
regime (akin to 1457).
- however, to decide whether an
abuse of rights has occurred, we
would have to resort to the discourse
of “reasonableness” which brings us
back to 1457.
Risk
- Coming to the nuisance does not
absolve the plaintiff of liability.
- “unreasonable interference/abnormality
of the annoyance” considers only the
effect of the behaviour and therefore not
the unreasonableness of the behaviour
(they may allow us to presume fault)
- Taking all precautions is not a defence
(Drysdale), therefore it seems to imply
that we cannot plead absence of fault
- based on a.6, 7, 976: since it is outside
the section, it demonstrates that it falls
outside the 1457 regime.
Article 976 is separated from the book of obligations, in recognition of a legal
tradition in common law and in civil law that the court assesses the
unreasonableness of the interference (annoyance) and not the fault of the
defendant. In the civil code, 990, 991, 950, and 976 the Code does not require
land-owners to act in a certain way, but the Code will hold land-owners liable if the
risk created by their property is realized, either as a nuisance or an interference
with their neighbour’s property. Article 950 of the CCQ requires owners to bear the
loss of the risk created by their property, meaning that owners will have to ensure
that those risks do not materialize.
PRODUCTS LIABILITY
The law attempts to balance the risks undertaken by the consumer in using
products and the economic development of business. In civil law, the contract
claim must be filed ahead of any ECO claim;
Defendant (committed no fault
however, in common law, they can both be
in direct relation to the injury).
filed at the same time.
Claim
based on
contract
Third party
In the realm of products liability, Canadian
common law uses the tort of negligence.
However, Quebec civil law has adopted a
special regime (a.1468, 1469, 1473), which
has been greatly inspired by the European
Directive.
Plaintiff
Donoghue established that manufacturers22
have a duty to take reasonable care not to have defects. We link this concept to
reasonable foreseeability: could the manufacturer reasonably foresee that the 3 rd
party in question would be affected. Realizing that some products are not defects,
but they can be dangerous if not used properly. Lambert creates a duty to warn of
inherent dangers of products – this duty extends even after product has been sold.
The manufacturer does not have to warn about commonly dangerous products (ie.
knives, dynamite) and the manufacturer can supply a lesser warning for an
industrial/commercial/professional purpose since user is taken to have more
knowledge.
Lambert v. Lastoplex Chemicals [1972] SCC
Facts:
 Lambert buys lacquer and although the container has some warning about
flammability, Lambert takes some reasonable precautions to ventilate the
space. The pilot light on furnace ignites the fumes causing injury and property
damage. Unlike a competitor’s label, the warning did not advise
specifically about use near a furnace.
 Lambert was an engineer.
Issue: Should LC have made its product warning label more explicitly clear as to
advise any potential user of specific instances in which use of the product should
be avoided?
Held:
Yes.
Reasoning:
 Where manufactured products are put on the market for ultimate purchase and
use by the general public and carry danger, the manufacturer has a duty to
specify the attendant dangers, which it must be taken to appreciate in a detail
not known to the ordinary consumer or user.
Criteria imposed for consideration by the court.
(1) Product is dangerous when used for its intended purpose, (2) Manufacturer can
foresee danger, (3) Public does not have same awareness/non-professional, (4)
Sale for public
 A general warning, as for example, that the product is inflammable, will not
22
This duty extends beyond the manufacturer as well.
suffice where the likelihood of fire may be increased according to the
surroundings in which it may reasonably be expected that the product will be
used. The required explicitness of the warning will vary with the danger likely to
be encountered in the ordinary use of the product.
 The home owner (not working as an engineer) preparing to use the sealer could
not reasonably be expected to realize by reading the cautions that the product
when applied as directed gave off vapours to such a degree as likely to create a
risk of fire from a spark or from a pilot light in another part of the basement area.
Rationale:
 Manufacturers of dangerous products must provide explicit warnings
taking into account the knowledge of the average consumer.
In civil law, the Code establishes the following provisions:
 [a.1468, 1469] – we must assess one article in terms of another. This is a
CONSUMER EXPECTATION TEST: does this product provide a measure of safety
that a consumer can expect? The court will consider the design and
manufacture of the product, poor preservation or presentation of the thing, or
the lack of sufficient indications as to the risks and dangers it involves or as to
safety precautions.






23
If the court assumes safe products in every case (circular test), then the
court can hold the manufacturer to the highest standard. However, in
counter, if consumers are cynical about the quality of products, then the
standard becomes lower (consumers accept risk when he buys it).
Who is the typical consumer – this will vary with product, which may be
aimed at a special group, like children.
Manufacturers can create their own standard by shaping expectations of
consumers; the test seeks to avoid the industry setting its own standards.
This test shifts the focus away from the defendant manufacturer’s
behaviour; frees manufacturer for burden of dangerous products.
The term “entitled” may embody the term reasonable expectations
[a.1473] – lists the defences: (1) the victim knew or could have known of the
defect, or could have foreseen the injury, (2) RISK DEVELOPMENT DEFENCE - at the
time of putting this product on the market23, (3) if research shows a defect,
information was appropriately distributed to all consumers.

Recall ter Neuzen the court has to judge the quality of the product in the
context of the time; however, if knowledge of risks is found, then it must
be disclosed.

This defence encourages risk-taking in business and seeks to promote
development. It transfers the risk to the consumer.

Is this a disincentive for companies to research full risks, if the whole
industry decides not to do research. If all other manufacturers known,
then the defence cannot be applied (the defence “I did not know” does not
apply).

We are not interested in the producer’s specific foresight, but on the
industry as a whole. Whatever the reasons that the producer did not
foresee the risk is not sufficient.
If no research is completed, then the manufacturer can absolve itself of liability.
What type of regime do these articles create?
Liability depends on demonstration of safety defect, based on consumer
expectations test, injury, and causation linking injury to the defect. The
manufacturer can attack those three conditions or employ any of the defences
using a.1473.
Fault
- absence of knowledge is not strictly
fault based, since it is industry-wide
- as soon as they have the knowledge,
their behaviour becomes faulty once
they fail to inform the consumer of the
defect
- fault emerges in consideration of the
safety defect: what unreasonable
behaviour of the defendant was involved
in producing the defect, packaging,
informing consumers
Risk
- the CET does not focus on
defendant’s behaviour; therefore the
regime is not purely fault-based
- the defence of absence of fault cannot
be presented
Additional Notes:
As Howells explains, common law courts have been unwilling to accept a
purely strict liability regime, since courts do not want to discourage innovation or
place the economic consequences on the producers. The court will consider
whether the risk of placing the product into the market is unreasonable (Howells).
Likewise, the development of the risk development defences in civil law
undermines the effect of abolishing the fault condition. Strict liability regimes for
products and employers provide that the party benefiting from the risk incurs any
loss; however, the defences mitigate the effect of the regime. Where consumer
expectations are conditioned by the market and by the producers of the
products, the court’s decision will favour the producer.
The court has shifted the consumer expectation to one of reasonable expectation,
meaning that where the product causes injury, the court will assess the
consumer’s behaviour in using the product and not the quality of the product
itself.
FAILURE TO OBTAIN CONSENT - MEDICAL LIABILITY
Fault is addressed differently in these cases, since in some cases we can have
liability without fault. People are not allowed to infringe on others’ physical
integrity without another’s consent. Parties can also waive their right by exercising
CONSENT.
Consent must be (1) voluntary and (2) informed. Medical procedures always
infringe, and this is why consent is always required.
Usually there is a contract between doctor and patient; however, in common law
the torts of negligence and battery apply. In civil law, consent is assessed
contractually.
Failure to Obtain Consent
The doctor can commit two kinds of fault: (1) if the doctor does not obtain voluntary
consent, common law will apply the tort of battery or negligence, and civil law
will apply a.1457, 10, and 11.
 Under the tort of negligence, the plaintiff will have to prove fault. A reasonable
doctor would have obtained consent before undertaking the treatment. As a
result of not granting consent, the plaintiff must prove that he suffered an injury –
moral, material, or bodily.
 Under the tort of battery, the plaintiff will not have to prove that he suffered an
injury. The plaintiff will not have to prove fault. The plaintiff must only prove
direct, intentional, and physical interference without the plaintiff’s consent. The
plaintiff must prove simply that the defendant wanted to violate his integrity (see
Malette).
Malette v. Shulman [1990] Ontario CA
Facts:
 Malette, a Jehovah’s Witness, was in car accident and arrived at Shulman’s
hospital unconscious. She had a card with "no transfusions" instruction, but
finding that it was the only way to save her life, Shulman underwent the
transfusion anyway. At trial, Shulman was found guilty of battery, but not guilty
of negligence. He was worried about his liability since if he did not transfuse, he
could be sued.
Issue: Was their lack of consent to the transfusion, considering the card in
Malette’s wallet?
Held:
Yes.
Reasoning:
 The plaintiff had a right to control her own body. The tort of battery protects the
interest in bodily security from unwanted physical interference. Any nonconsensual touching which is harmful or offensive to a person's reasonable
sense of dignity is actionable. A competent adult is generally entitled to reject a
specific treatment or all treatment or to select an alternate form of treatment
even if the decision may entail risks as serious as death and may appear
mistaken in the eyes of the medical profession or of the community. While in an
emergency the doctrine of necessity may protect the physician who acts without
consent, the doctor is not free to disregard a patient's advance instructions.
 The plaintiff had conveyed her wishes in the only way possible, and indeed in
anticipation of the possibility that she could be unconscious as the result of a
medical condition. The advance instruction and consent on the card was
validated by the court. Her lack of consent to a blood transfusion was explicit
and unmistakable.
Rationale:
 No medical procedure may be undertaken without the patient's consent
obtained after the patient has been provided with sufficient information to
evaluate the risks and benefits of the proposed treatment and other
available options.
 This case sought to reassure doctors in future cases.
In an emergency (a.13), there is no need to obtain consent, if consent cannot be
obtained or from acceptable representatives. There are restrictions on the right to
refuse treatment if a person is a child or is incapacitated; those groups may also
not be able to grant consent.
Failure to Inform
If, however, the doctor obtains consent but does not disclose all of the appropriate
information and therefore consent is not informed, the contract is still formed and
therefore a.10, 11, and 1458 applies in civil law, (in common law, the tort of
negligence applies and injury must be proven).
In civil law, the rules of contract apply, not the rules of extra-contractual obligations!
When there is a contract and an ECO claim, contractual rules always apply.
In Riebl, the tort of battery is not an option, since common law recognizes that an
uninformed consent is still consent. In common law, the tort of negligence can
apply, even along with breach of contract.
How do we prove failure to inform?
Fault
Common Law
Civil Law
Courts do not use the professional
The reasonable doctor failed to
disclosure standard, but assess it by a
disclose the diagnosis, risks, nature
full-disclosure standard: what would
and goals of treatment, and
therapeutic alternatives [Drolet].
the reasonable patient, placed in the
same circumstances, would have
However, it leaves to the medical
wanted to know [Reibl, White]
profession the definition of the risks
that should be disclosed.
White v Turner [1981] Ontario High Court
The duty of the scope of disclosure for medical procedures is similar to the
manufacturer's duty to warn consumers about the dangerous properties of
products.
The test employed is not the professional medical standard, but rather the
reasonable patient standard. The question: What would a reasonable patient
consider to be the "material risks" or "unusual risks" that they would want
to be aware of before consenting to a medical procedure?
1. "Material risks" are significant risks that pose a real threat to the patient's life,
health, or comfort – one must balance the severity of the potential result and the
likelihood of its occurring.
2. "Unusual risks" are risks that are somewhat extraordinary and/or uncommon,
but are know to occur occasionally; the SCC had declared that they should be
disclosed to the patient despite their nature. There are some common risks that
do not need to be disclosed: infection, discomfort, etc.
***This follows the same logic as the Learned Hand Formula***
All of the risks must be disclosed for elective surgery. “No one will risk their
lives or health for beauty” – Baudouin. Otherwise not all risks do not have to be
disclosed.
Causation – injury must be the result of the non-disclosure. Would the particular
patient must argue that if he/she had known, then he/she would not have
undertaken the procedure. However, there is a danger of false-testimony and
hindsight.
Common Law
Civil Law
To correct for the matter of hindsight,
The court has not made an exception
for causation (Roberge, Drolet).
the court asks: would a reasonable
patient, in the same circumstances,
1. What would the particular patient
have consented to the procedure?
have done had he/she been
informed?
An objective test of causation is to be
The court adds:
employed in assessing whether the
2. Would the reasonable person have
patient would have consented to the
had the same reaction? (Only
operation if he/she had been properly
corroborated the plaintiff’s testimony
warned.
to confirm the credibility of witness)
Reibl v Hughes [1980] SCC
Facts:
 The plaintiff had surgery, but afterward he suffered a stroke. The surgery was
performed properly. He sued the defendant claiming that his consent was not
informed (i.e. he was not aware of the risk of stroke).
Issue: Was the defendant guilty of battery for failing to inform the plaintiff of all of
the possible risks from surgery?
Held:
No. He would have been guilty of negligence.
Reasoning:
 Actions of battery should be confined to cases where surgery or treatment has
been performed or given to which there has been no consent at all or where,
emergency situations aside, surgery or treatment has been performed or given
beyond that to which there was consent.
 Unless there has been misrepresentation or fraud to secure consent to the
treatment, a failure to disclose the attendant risks, however serious,
should go to negligence rather than to battery.
 Applying the reasonable patient test allowed the court to consider that if
he had known of the risk, he would have delayed the surgery until after he
retired. Therefore, it was important to know the risk and a reasonable
patient would have wanted to know it.
Rationale:
 When consent was given, the plaintiff cannot claim on battery.
Drolet v Parenteau [1994] QCA
Facts:
 Drolet had irreversible blindness in one eye after elective plastic surgery. The
plaintiff could no longer perform her duties and sued for damages.
 In 2 prior meetings, she was not told of risk of blindness. In the recovery room,
she complained of pain in eye and was given a prescription for painkiller and a
sheet of instructions, which did not mention risks or warn about unusual
symptoms.
 A call was put in next day to the doctor about her eye. He diagnosed her with
conjunctivitist but she set a meeting with an ophthalmologist. Drolet knew of the
risks never informed his patients since the risks were so low.
 Parenteau testified that if she had known of the risk, however small, she never
would have had the operation. She initiated action under negligence for postoperative diagnosis and care and absence of warning of risk.
Issue: Did Parenteau have a duty to inform patient of risks due to operation that
are so rare? Was he negligent in the information provided post-op?
Held:
Yes.
Reasoning:
 The doctor had a responsibility to advise his patient of “risk of blindness, remote
but serious, and to warn her that monocular pain was an urgent symptom of a
serious complication” (278). Had she and her family been adequately warned of
danger, the damage might have been avoided. She probably would have
refused to leave doctor’s office and a timely intervention would have been
possible.
 To succeed on the grounds that there was an intervening act that breaks the link
in causality, the plaintiff needed to prove that the damage had been caused by
something other than the operation, which he did not do.
Rationale:
 Duty to warn of risk varies inversely with its rarity, but directly with
severity. Duty to warn of rare complications is further heightened in cases
of elective or aesthetic surgery.
CAUSATION
The plaintiff must prove cause and effect, between the fault (or modification of
fault) of the defendant and the injury.
Approaches to the Assessment of Causation
FACTUAL CAUSATION – identifies factors that precipitate the injury (what is the story
of the injury: concerned with explaining what had happen)
LEGAL CAUSATION – operates a selection amongst the factual causes to retain those
that should lead to liability (limit liability).
Causa sine qua non or “but for test” – retains all of the facts without which the
damage would not have occurred. Would the injury have happened but-for the
defendant’s fault? We need to imagine a hypothetical situation without the fault
of the defendant to see what would have happened.
Barnett v Chelsea & Kensington Hospital [1968] QB
Facts:
 Barnett went to the hospital complaining of vomiting after drinking some tea.
The nurse phoned the doctor on call. The doctor told her to send Barnett home.
He died later the same day of arsenic poisoning: a rare form of cause-of-death.
Issue: Was the doctor negligent in his duties? Did he cause the death?
Held:
Yes. No.
Reasoning:
 Barnett died of arsenical poisoning, which is rare and difficult to diagnose. Even
if he had been examined and admitted to the hospital and treated, there was
little or no chance that an effective antidote would have been administered to
him before he died.
Rationale:
 A defendant cannot be held liable in negligence unless there is a probable
causal link between negligence and injury.
Burden of Proof (a.2803)
Standard of Proof (a.2804)
It is the responsibility of the plaintiff to
The court must be convinced that the
prove his claim: and therefore, the
elements on the basis of the claim
plaintiff must make this demonstration
exist more probable than not.
to show liability.
The rule in ter Neuzen does not apply to causation. The assessment of causation
is purely a juridical question in the domain of the judge and not to the experts.
Science will require about 95% certainty to find causal relationships. Therefore,
causation is addressed on the basis of common-sense, and this means judges
can choose between expert testimonies. This is exactly what happens in St
Jean.
Many difficulties will arise in the assessment of causation:
1. Unknown cause (McGhee) – the facts & expert evidence cannot provide
sufficient evidence. In McGhee,
2. Multiple causes (St-Jean, Gburek)
3. Unidentified defendant (Cook) – the injury may be the result of one defendant or
another
Mechanisms available for the Defendant to prove Causation Where Difficulties
Arise
REVERSAL OF BURDEN OF PROOF – if the plaintiff proves another element, X, then the
burden of disproving causation falls to the defendant. The only difference is that
the defendant must disprove causation based on the balance of probabilities
(therefore, if 50/50%, then the plaintiff wins)24. We can replace “X” by an
increase of risk25.
 This technique is used rarely, because of the severity toward the defendant. In
cases of uncertainty, the defendant may be unable to disprove causation as well.
FACTUAL PRESUMPTIONS/INFERENCES (circumstantial evidence) – an unknown fact
may be inferred based on a series of “clues” (a.2849) and is intimately linked to
the facts of the case. Hypothesis and conjecture is not sufficient. The clues
must make the existence of the unknown probable. The defendant may be able
to disprove causation – the burden still lies with the plaintiff. The plaintiff only
has to prove the “clues” and the defendant can provide an absence of causation.
 However, in cases of uncertainty, there are few facts that are available to draw
the factual presumption.
LEGAL PRESUMPTIONS26 – like Bazley, the presumption is based on policy reasons,
and it is set in advance (which is different that factual presumption). If the
plaintiff proves another element, determined in advance, the causation is
presumed. The plaintiff does not have to prove causation, but the burden lies
with the plaintiff. We can replace causation with increase of risk (McGhee) or
special knowledge where facts lie particularly with defendant (Snell).
 According to article a.2847, presumptions must be drafted by the legislator in
advance. This technique is therefore used reluctantly in Quebec (as in St Jean).
 In common law, however, courts have less reluctance to draft legal presumptions
(as in McGhee).
 Is this too generous for the plaintiff, because when a fault has occurred, the
increase of risk seems to be clear. The defendant will also be liable for 100% of
the damage, even though he only increased the risk.
LOSS OF CHANCE – as soon as the chance is less than 50%, the claim does not
satisfy the balance of probabilities. This is the loss of chance of obtaining
advantage or a benefit (creation of an “alternate” injury or damage).
 In Canadian Common Law and Quebec Civil Law, Laferriere rejects this
doctrine in medical liability. In theory, the balance of probabilities is all or nothing
– therefore if we introduce loss of chance with probabilities above 50%, we could
compensate 100% for a chance of 80%.
 Compensation of probabilities is very arbitrary. In the medical case, the
defendant has run the chance, and the result is determined – the plaintiff is often
24
When the probabilities are equal, then the person with the burden loses.
This goes against the traditional rule that the burden falls on the plaintiff.
26 a.1459 and a.1463 are examples of legal presumptions.
25
dead or injured. That injury should not be replaced by another sub-category. In
order to bypass the difficulty, we create another injury with causation that is
easier to prove.
Unknown Cause
McGhee v National Coal Board [1972] House of Lords (Unknown Cause)
Facts:
 McGhee worked in a coal mine and contracted dermatitis (injury). He alleges
that NCB’s failure to provide showers (fault) that would enable him to remove
dust from his body caused the disease. At this point, the cause of dermatitis was
not known – was one time abrasion sufficient (cause 1) or did it require long
term accumulation (cause 2) - so experts could not say that if he took showers
he would not have gotten dermatitis.
 If dermatitis occurs due to the 2nd explanation, we can link the fault to the
injury.
Issue: Is there a sufficient causal link between NCB’s failure to provide showers
and McGhee’s disease?
Held:
Yes.
Reasoning:
 Reid explains that causation can be inferred if NCB materially increased the risk
of injury (legal presumption). In common law, so long as the fault has
contributed materially to the injury then the defendant can be liable. In this case,
the causes were uncertain, and therefore we don’t know whether the fault had
contributed to the injury. BUT the court found that the defendant’s increased the
risk by not providing showers, which to the court, was sufficient to presume
causation to the defendant’s injury. He takes a common sense approach – for
policy reasons.
 Lord Wilberforce, in his dissent, argued that the creator of the risk should bear
the burden of disproving causation, based on policy reasons. A material
increase in the risk of injury on the balance of probabilities is equivalent to cause
in fact. Without the shower, the workers would have dust on their skin for long
periods. Therefore, multiplying the number of occasions where an abrasion can
occur is an increase of risk. Wilberforce then would transfer the burden to the
employer.
Rationale:
 The reversal of onus to disprove causation developed in this case, but it is
not followed in Canada (in Snell).
 On the basis of increasing the risk, causation is presumed, allowing the
defendant to prove only absence of causation or absence of increase of
risk.
Laferriere v Lawson [1991], SCC on appeal from QCA
Facts:
 Appeal from decision upholding patient's estate's claim against doctor on basis
of theory of loss of chance. Patient was diagnosed with cancerous lump in
breast (cause 1) but not informed of disease or given follow-up treatment (cause
2) with was faulty. Patient learned of her suffering of generalized cancer four
years later (injury was death).
Reasoning:
 Damages of $10,000 awarded for unnecessary psychological stress because of
appellant's failure to inform her of biopsy and $7,500 for denial of benefit of
earlier treatment. This was given on the balance of probabilities that but for the
defendant’s fault she would not have suffered.
 Appellant's fault did not cause death. Because the court could not find, on the
balance of probabilities, that the doctor’s fault made a difference in contributing
to the injury and that the fault did not make a different in reducing the loss of
chance of surviving of recovery or of avoiding injury; that is the death.
Rationale:
 No causation between fault and injury because on the balance of
probabilities, the doctor’s fault did not cause the injury (her death).
 The court cannot turn around after disproving causation in relation to the
death and then find causation for an injury related to loss of chance.
Farrell v Snell [1990] SCC on appeal from NBCA
Facts:
 The appellant, an ophthalmologist, was sued by the respondent for loss of vision
in her right eye following surgical removal of cataract performed upon her by the
appellant. Concluding that the respondent had proved that the appellant's
actions had caused her injury, the Trial Court found the appellant
ophthalmologist negligent and liable for the injury to the respondent's right eye
(injury).
 There were many causes at work in this case: (1) hypertension, (2) diabetes, (3)
doctor continuing the operation despite presence of blood linked to defendant’s
fault.
Issue: Does the plaintiff in a malpractice suit need to prove causation in
accordance with traditional principles or recent developments in the law justified
a finding of liability on the basis of some less onerous standard?
Held:
The court presumed causation based on policy reasons.
Reasoning:
 Causation need not be determined with scientific precision. In many malpractice
cases, the facts lie particularly within the knowledge of the defendant & by
continuing the operation, other doctors could not establish the cause (enough to
presume causation) who is usually in a better position to know the cause of the
injury than the patient. In those circumstances, very little affirmative evidence on
the part of the plaintiff will justify the drawing of an inference of causation in the
absence of evidence to the contrary.
 In this case, the appellant was found negligent in continuing with the operation
when bleeding of eye had occurred. This finding was not contested and was fully
supported by the evidence. The doctor continued the operation, the
appellant had made it impossible for the patient or anyone else to detect
the bleeding which allegedly caused the injury.
Rationale:
 The common law court accepts presumption of causation, when the
defendant has expert knowledge, making it difficult for the plaintiff to
prove the causal link.
Multiple Causes
Gburek v Cohen [1988] QCA
Facts:
 The antibiotic was the only way to save Gburek, but the antibiotic runs the risk of
causing deafness (injury). The antibiotic also accumulates in the kidneys
(cause 1), but it is preventable, as doctors can monitor this in patients.
However, faulty absence of testing did not rule out this cause. The deafness
could have been a spontaneous response to the antibiotic (cause 2).
Issue: Is the defendant liable for the injury?
Held:
Yes.
Reasoning:
 The doctor was at fault for not monitoring the patient’s functions. The doctor did
not perform the test to determine accumulation. The majority justices found that
they had enough evidence to presume causation – they know hearing loss is a
result of the treatment, antibiotic is toxic, if the test had been carried out the
problem could have been revealed. Therefore, the majority inferred
causation.
Rationale:
 Beauregard’s opinion was not followed in future cases.
 In a concurrent opinion, Beauregard decides the only fault that has been
committed is the absence of tests to reveal the retention of the antibiotics. He
recognizes that the risk of deafness would have been increased by abnormal
concentrations.
 Causation will be proven if an abnormal increase risk of deafness through an
abnormal concentration (no reversal of the burden). But, we did not know if
there had been abnormal concentration, because no tests were taken –
defendant’s fault. Beauregard transferred the burden to the defendant to show
that the doctor did not increase the risk.
St-Jean v Mercier [2002] SCC on appeal from QCA
Facts:
 St-Jean sustained open fractures to his legs in a car accident (cause
1). Mercier, an orthopaedic surgeon, performed an urgent operation on his
legs. St-Jean alleged that Mercier failed to diagnose that he had a contusion,
and failed to mobilize him (cause 2) prior to a second operation, causing him to
become paralysed (injury).
 The Court of Appeal found that the trial judge applied the wrong test as to fault,
and should have asked whether Mercier behaved in the same way as a diligent
fellow professional in the circumstances. The Court found that Mercier
committed a fault. The Court also held that the judge erred with respect to the
issue of causation by failing to choose between the opposing medical theories
presented respecting causation. However, in conducting its own analysis, the
Court found that causation was not established. It also refused to apply the
presumption of causation in favour of St Jean.
Issue: The injury did not manifest itself after the surgery: therefore, when was
the exact moment that the paralysis set in? Which fault can be linked to the
injury?
Held:
But for the accident, St-Jean would not have been injured.
Reasoning:
 Mercier was at fault for failing to examine St-Jean's spine once the urgent first
operation was done. The issue of causation was a question of fact so that the
standard of review was palpable and overriding error in the understanding of the
evidence.
 The accident, and not Mercier's fault, caused St-Jean's paralysis. Given the
divergent facts and expert opinion on the matter, the court need not apply the
presumption of causation in favour of St-Jean.
Rationale:
 The court rejects the legal presumption, and prefers to use factual
presumption instead. A legal presumption of causation, in Quebec, must
be drafted by a statute. Since none exist, the court will only defer to
factual causation.
Unidentified Defendant
Cook v Lewis
Facts:
 The plaintiff was shot in the face. Both defendants fired a shot in the direction of
the plaintiff at exactly the same time, thinking it was an animal (fault 1 or fault 2
since only 1 bullet hit and the court could not tell at the time where the bullet
came from).
 We know that there is a 50/50% chance that fault was linked to injury – but this
was not an appropriate result in this case, since either one of the defendants
were at fault (closed system, where 100% of fault can be identified from among
the parties).
Issue: How does the court establish the causal link?
Held:
Reasoning:
 If the court applied the traditional principles of but for no defendant would be
liable.
 The court did not presume causation (because the burden still lies on the
plaintiff, and each defendant could rebut the presumption by blaming the other).
Therefore the court reversed the burden (as in a.1480 in civil law) to allow the
plaintiff to win.
 The court established that partial causation is already proven – we know that
the injury came from the gun, but we do not know which fault was at work. The
court also established all of the defendants, who are all at fault. The faults
occurred at the same time (with no precaution has taken). They have both
created the risk that the gunshot would create an injury.
Rationale:
 Reversal of burden are rare.