LAW
140
TORTS
Condensed
Annotated
Notes
LEGEND
CASES
Rules
Definitions
Statutes
Tests
TABLE OF CONTENTS
1. INTRODUCTION TO THE LAW OF TORTS............................................................................................................ 5
2. BATTERY ........................................................................................................................................................... 7
BETTEL v YIM [1978] Ontario CC ........................................................................................................................................... 7
MISKA v SIVEC [1959] Ont CA ............................................................................................................................................... 8
NON-MARINE UNDERWRITERS v SCALERA [2000] SCC ......................................................................................................... 9
3. ASSAULT ........................................................................................................................................................... 9
MAINLAND SAWMILLS LTD v USW LOCAL 1-3567 [2007] BCSC ............................................................................................ 9
4. FALSE IMPRISONMENT ................................................................................................................................... 10
BIRD v JONES [1845] UK ...................................................................................................................................................... 10
WRIGHT v WILSON [1692] UK ............................................................................................................................................. 10
CAMPBELL v SS KRESGE CO [1976] NSSC ............................................................................................................................ 10
HERD v WEARDALE STEEL, COAL AND COKE CO LTD [1915] UK .......................................................................................... 10
5. INTENTIONAL INFLICTION OF MENTAL SUFFERING (NERVOUS SHOCK)........................................................... 11
WILKINSON v DOWNTON [1897] UK ................................................................................................................................... 11
PURDY v WOZNESENSKY [1937] Sask CA ............................................................................................................................ 12
BIELITSKI v OBADIAK [1922] Sask CA ................................................................................................................................... 12
RADOVSKIS v TOMM [1957] MB QB ................................................................................................................................... 12
FRAME v SMITH [1987] SCC ................................................................................................................................................ 12
RAHEMTULLA v VANFED CREDIT UNION [1984] BCSC ........................................................................................................ 12
6. PRIVACY ......................................................................................................................................................... 13
MOTHERWELL v MOTHERWELL [1976] AB SC ..................................................................................................................... 13
HOLLINSWORTH v BCTV [1999] BCCA ................................................................................................................................. 14
7. DEFENCE OF CONSENT .................................................................................................................................... 15
WRIGHT v McLEAN [1956] BCSC ......................................................................................................................................... 15
AGAR v CANNING [1965] MB QB ........................................................................................................................................ 15
R v PAICE [2005] SCC ........................................................................................................................................................... 15
FACTORS VITIATING CONSENT ...................................................................................................................... 15
R v WILLIAMS [1923] CA...................................................................................................................................................... 16
PAPADIMITROPOULOS v R [1945] HCA ............................................................................................................................... 16
GUIMOND v LABERGE [1956] ONT CA ................................................................................................................................ 16
LATTER v BRADELL [1880] UK.............................................................................................................................................. 16
NORBERG v WYNRIB [1992] SCC ......................................................................................................................................... 16
8. DEFENCES RELATED TO PROTECTION OF THE PERSON .................................................................................... 17
MARSHALL v CURRY [1933] NS CA ...................................................................................................................................... 17
MALETTE v SHULMAN [1989] ONT CA ................................................................................................................................ 17
WACKETT v CALDER [1965] BCCA ....................................................................................................................................... 18
9. DEFENCES BASED ON APPORTIONMENT OF FAULT ......................................................................................... 18
GAMBRIELL v CAPARELLI [1974] ONT CO CT ....................................................................................................................... 18
R v DUPPERON (1984) SK CA ............................................................................................................................................... 19
10. DEFENCES OF LEGAL AUTHORITY .................................................................................................................... 19
NICHOLS v WAL-MART CANADA CORP (2003) ONT SC ....................................................................................................... 19
11. INTRODUCTION TO THE LAW OF NEGLIGENCE ................................................................................................ 20
M’ALISTER (OR DONOGHUE) v STEVENSON [1932] UK ....................................................................................................... 20
ANNS v LONDON BOROUGH OF MERTON [1977] UK.......................................................................................................... 20
12. THE COOPER TEST: DUTY OF CARE IN CANADA ............................................................................................... 21
KAMLOOPS v NIELSEN (1984) SCC ...................................................................................................................................... 21
ELEMENTS OF AN ACTION IN NEGLIGENCE .................................................................................................... 21
DUNSMORE v DESHIELD [1977] Sask QB............................................................................................................................. 22
COOPER v HOBART [2001] SCC ........................................................................................................................................... 22
REASONABLY FORESEEABLE RISK .................................................................................................................. 23
MOULE v NB ELEC POWER [1960] SCC ................................................................................................................................ 24
AMOS v NB ELEC POWER [1976] SCC .................................................................................................................................. 24
REASONABLY FORESEEABLE PLAINTIFF ......................................................................................................... 24
PALSGRAF v LONG ISLAND RAILWAY [1928] US NY ............................................................................................................ 24
HASKETT v EQUIFAX CANADA INC [2003] ONT CA .............................................................................................................. 24
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ODHAVJI ESTATE v WOODHOUSE [2003] SCC ..................................................................................................................... 24
13. DUTIES TO CONTROL THE BEHAVIOUR OF OTHERS ......................................................................................... 25
JORDAN HOUSE v MENOW [1973] SCC ............................................................................................................................... 25
CROCKER v SUNDANCE NORTHWEST RESORTS LTD [1988] SCC ......................................................................................... 26
STEWART v PETTIE [1995] SCC ............................................................................................................................................ 26
CALLIOU ESTATE v CALLIOU [2002] AB QB .......................................................................................................................... 26
CHILDS v DESORMEAUX [2006] SCC .................................................................................................................................... 27
14. DUTIES TO CONTROL OR PREVENT CRIME ...................................................................................................... 28
JANE DOE v METROPOLITAN TORONTO COMMISSIONERS OF POLICE [1998] ONT GEN DIV ............................................. 28
15. DUTIES TO PERFORM GRATUITOUS UNDERTAKINGS ...................................................................................... 28
SOULSBY v TORONTO [1907] ONT HC ................................................................................................................................. 29
ZELENKO v GIMBEL BROS INC [1936] US NY ....................................................................................................................... 29
16. DUTIES TO THE UNBORN ................................................................................................................................ 29
PAXTON v RAMJI [2008] ONT CA ........................................................................................................................................ 29
ARNDT v SMITH [1994] BCCA .............................................................................................................................................. 30
BOVINGDON (LITIGATION GUARDIAN OF) v HERGOTT (2008) Ont CA ............................................................................... 30
UDALE v BLOOMSBURY AREA HEALTH AUTHORITY [1983] UK ........................................................................................... 31
ROE v DOBBS [2004] BCSC .................................................................................................................................................. 31
KEALEY v BEREZOWSKI [1996] ONT GEN DIV ...................................................................................................................... 32
DOBSON (LITIGATION GUARDIAN OF) v DOBSON [1999] SCC ............................................................................................ 32
17. NERVOUS SHOCK (OR PSYCHIATRIC HARM) .................................................................................................... 33
DULIEU v WHITE AND SONS [1901] UK CA .......................................................................................................................... 33
HAMBROOK v STOKES BROTHERS [1925] UK CA................................................................................................................. 33
MCLOUGHLIN v O’BRIAN [1982] UK HL............................................................................................................................... 33
ALCOCK v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1991] UK HL ........................................................................ 33
MUSTAPHA v CULLIGAN CANADA [2006] ONT CA .............................................................................................................. 34
VANEK v GREAT ATLANTIC & PACIFIC CO OF CANADA [1999] ONT CA ............................................................................... 34
MUSTAPHA v CULLIGAN CANADA [2008] SCC..................................................................................................................... 34
HEALEY v LAKERIDGE HEALTH CORPORATION [2011] ONT CA ........................................................................................... 34
RHODES v CNR [1990] BCCA................................................................................................................................................ 35
DEVJI v BURNABY [1999] BCCA ........................................................................................................................................... 35
18. HEALTH PROFESSIONAL’S DUTY TO WARN ..................................................................................................... 36
REIBL v HUGHES [1980] SCC ................................................................................................................................................ 36
HAUGHIAN v PAINE [1987] SASK CA ................................................................................................................................... 37
19. MANUFACTURER’S DUTY TO WARN ............................................................................................................... 37
HOLLIS v DOW CORNING [1995] SCC .................................................................................................................................. 37
LAMBERT v LASTOPLEX [1971] SCC ..................................................................................................................................... 39
LEM v BOROTTO SPORTS LTD [1976] AB CA........................................................................................................................ 39
GOOD-WEAR TREADERS v D & B HOLDINGS LTD [1979] NSCA (NOTE 20) .......................................................................... 39
20. THE STANDARD OF CARE ................................................................................................................................ 40
M’ALISTER (OR DONOGHUE) v STEVENSON [1932] UK HL .................................................................................................. 40
ARLAND v TAYLOR [1955] ONT CA ...................................................................................................................................... 40
RYAN v VICTORIA [1999] SCC .............................................................................................................................................. 40
BOLTON & OTHERS v STONE [1951] UK .............................................................................................................................. 40
VAUGHN v HALIFAX-DARTMOUTH BRIDGE COMM [1961] NSSC ........................................................................................ 41
PARIS v STEPNEY BOROUGH COUNCIL [1951] UK HL .......................................................................................................... 41
PRIESTMAN v COLANGELO AND SMYTHSON [1959] SCC .................................................................................................... 42
WATT v HERFORDSHIRE COUNTY COUNCIL [1954] UK CA .................................................................................................. 42
LAW ESTATE v SIMICE (1994) BCSC ..................................................................................................................................... 42
21. EXCEPTIONS TO THE STANDARD OF CARE ...................................................................................................... 43
CARROLL v CHICKEN PALACE LTD [1955] ON CA ................................................................................................................. 43
HALEY v LONDON ELECTRIC BOARD [1965] UK HL .............................................................................................................. 43
WENDEN v TRIKHA [1991] AB QB ....................................................................................................................................... 43
FIALA v CECHMANEK [2001] AB CA ..................................................................................................................................... 43
JOYAL v BARSBY [1965] MB CA ........................................................................................................................................... 44
MCELLISTRUM v ETCHES [1956] SCC ................................................................................................................................... 45
WILSON v SWANSON [1956] SCC ........................................................................................................................................ 45
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WHITE v TURNER [1981] ONT CA ........................................................................................................................................ 45
TER NEUZEN v KORN [1995] SCC ......................................................................................................................................... 46
WALDRICK v MALCOLM [1991] SCC .................................................................................................................................... 46
22. NEGLIGENT MISREPRESENTATION .................................................................................................................. 47
HEDLEY BYRNE v HELLER [1963] UK HL ............................................................................................................................... 47
QUEEN v COGNOS [1993] SCC............................................................................................................................................. 47
HERCULES MANAGEMENT v ERNST & YOUNG [1997] SCC ................................................................................................. 48
21. CAUSATION .................................................................................................................................................... 49
KAUFMANN v TTC [1959] SCC ............................................................................................................................................. 49
RICHARD v CNR [1970] PEI SC ............................................................................................................................................. 49
ESTABLISHED EXCEPTIONS ............................................................................................................................ 49
COOK v LEWIS ..................................................................................................................................................................... 49
HOLLIS V DOW CORNING .................................................................................................................................................... 49
REIBL v HUGHES .................................................................................................................................................................. 50
POSSIBLE MODIFICATIONS OF THE STANDARD TEST ..................................................................................... 50
WALKER ESTATE v YORK FINCH GENERAL HOSPITAL [2001] SCC ........................................................................................ 50
HANKE v RESURFICE CORP [2007] SCC ................................................................................................................................ 50
SNELL v FARRELL [1990] SCC ............................................................................................................................................... 51
CLEMENTS v CLEMENTS [2012] SCC .................................................................................................................................... 52
22. DEFECTIVE (DANGEROUS) STRUCTURES ......................................................................................................... 53
WINNIPEG CONDO CORP NO 36 v BIRD CONSTRUCTION [1995] SCC ................................................................................. 53
23. RELATIONAL (THIRD PARTIES) ECONOMIC LOSS ............................................................................................. 54
CNR v NORSK [1992] SCC .................................................................................................................................................... 54
BOW VALLEY HUSKY v SAINT JOHN SHIPBUILDING [1997] SCC .......................................................................................... 54
24. LIABILITY OF PUBLIC AUTHORITIES ................................................................................................................. 56
INGLES v TUTKALUK CONSTRUCTION LTD .......................................................................................................................... 56
WELBRIDGE HOLDING LTD v WINNIPEG [1970] SCC ........................................................................................................... 56
EXCEPTIONS .................................................................................................................................................. 56
JUST v BC [1989] SCC........................................................................................................................................................... 57
25. ESTABLISHED CATEGORIES & NOVEL SITUATIONS .......................................................................................... 58
26. REMOTENESS .................................................................................................................................................. 59
OVERSEAS TANKSHIP (UK) LTD v MORTS DOCK & ENGINEERING CO LTD .......................................................................... 59
AKA THE WAGON MOUND (NO 1) [1961] UK PC ................................................................................................................ 59
MODIFICATIONS TO THE WAGON MOUND TEST ........................................................................................... 59
HUGHES v LORD ADVOCATE [1963] UK HL.......................................................................................................................... 59
REMOTENESS & THE THIN-SKULL RULE ......................................................................................................... 60
SMITH V LEECH BRAIN & CO [1962] UK QB ......................................................................................................................... 60
A FINAL RETREAT: PROBABILITY VS. POSSIBILITY .......................................................................................... 60
OVERSEAS TANKSHIP (UK) LTD v THE MILLER SS CO PTY LTD ............................................................................................. 60
AKA THE WAGON MOUND (NO 2) [1966] UK PC ................................................................................................................ 60
MUSTAPHA v CULLIGAN OF CANADA LTD. [2008] SCC ....................................................................................................... 61
INTERVENING FORCES OR CAUSES ................................................................................................................ 62
BRADFORD v KANELLOS [1973] SCC .................................................................................................................................... 62
INTERVENING MEDICAL ERROR ..................................................................................................................... 62
PRICE v MILAWSKI [1977] ONT CA ...................................................................................................................................... 62
SECOND ACCIDENT........................................................................................................................................ 63
WIELAND v CYRIL LORD CARPETS LTD [1969] UK QB .......................................................................................................... 63
DUDEK v LI [2000] BCCA...................................................................................................................................................... 63
INTERVENING WRONGFUL/ILLEGAL ACTION ................................................................................................. 63
HEWSON v RED DEER [1976] Alta TD .................................................................................................................................. 63
27. DEFENCES ....................................................................................................................................................... 64
CONTRIBUTORY NEGLIGENCE ....................................................................................................................... 64
RAUTINS v STARKEY [2004] ONT SC .................................................................................................................................... 64
BUTTERFIELD v FORRESTER [1809] UK KB ........................................................................................................................... 64
DAVIES v MANN [1842] UK ................................................................................................................................................. 64
SCURFIELD v CARIBOO HELICOPTER SKIING [1993] BCCA ................................................................................................... 65
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SEAT BELT DEFENCE ...................................................................................................................................... 65
GAGNON v BEAULIEU [1977] BCSC ..................................................................................................................................... 65
GALASKE v O'DONNELL [1994] SCC ..................................................................................................................................... 65
VOLUNTARY ASSUMPTION OF RISK .............................................................................................................. 66
DUBE v LABAR [1986] SCC ................................................................................................................................................... 66
ILLEGALITY .................................................................................................................................................... 66
HALL v HEBERT [1993] SCC .................................................................................................................................................. 66
INEVITABLE ACCIDENT .................................................................................................................................. 67
RINTOUL v X-RAY AND RADIUM INDUSTRY LTD [1956] SCC ............................................................................................... 67
28. ISSUES AROUND PROOF ................................................................................................................................. 67
ONUS OF PROOF ........................................................................................................................................... 67
WAKELIN v LONDON & WESTERN RAILWAY [1886] UK HL ................................................................................................. 67
STATUTORY SHIFT ......................................................................................................................................... 67
MACDONALD v WOODARD [1973] ONT CO CT ................................................................................................................... 67
DIRECTLY CAUSED INJURY (UNINTENDED TRESPASS) .................................................................................... 68
DAHLBERG v NAYDIUK [1969] MB CA ................................................................................................................................. 68
MULTIPLE NEGLIGENT DEFENDANTS ............................................................................................................. 68
COOK v LEWIS [1952] SCC ................................................................................................................................................... 68
MULTIPLE NEGLIGENT PARTIES ..................................................................................................................... 68
LEAMAN v REA [1954] NBCA ............................................................................................................................................... 68
WOTTA v HALIBURTON OIL WELL CEMENTING CO [1955] SCC........................................................................................... 69
RES IPSA LOQUITUR (EXPIRED) ...................................................................................................................... 69
FONTAINE v BRITISH COLUMBIA (OFFICIAL ADMINISTRATOR) [1997] SCC ......................................................................... 69
29. VICARIOUS LIABILITY ...................................................................................................................................... 70
BAZLEY v CURRY [1999] SCC ................................................................................................................................................ 70
SUBSEQUENT APPLICATION OF THIS APPROACH .......................................................................................... 72
JACOBI v GRIFFITHS [1999] SCC .......................................................................................................................................... 72
KLB v BRITISH COLUMBIA [2003] SCC ................................................................................................................................. 73
BLACKWATER v PLINT [2005] SCC ....................................................................................................................................... 74
POSSIBLE CHANGES TO THE BAZLEY APPROACH ........................................................................................... 76
B(E) v ORDER OF THE OBLATES OF MARY IMMACULATE IN THE PROVINCE OF BC [2005] SCC .......................................... 76
FIRST STAGE IN ANALYSIS AROUND VICARIOUS LIABILITY ............................................................................ 78
671122 ONTARIO LTD v SAGAZ INDUSTRIES CANADA INC [2001] SCC, 945 ....................................................................... 78
NON-DELEGABLE DUTIES............................................................................................................................... 79
LEWIS (GUARDIAN AD LITEM OF) v BC [1997] SCC, 951...................................................................................................... 80
31. STATUTORY PROVISIONS AND TORT LIABILITY ............................................................................................... 81
TRACHSLER v HALTON [1955] ONT HC ................................................................................................................................ 81
STERLING TRUSTS CORP v POSTMA [1965] SCC .................................................................................................................. 81
R v SASKATCHEWAN WHEAT POOL [1983] SCC .................................................................................................................. 81
GALASKE v O'DONNELL [1994] SCC ..................................................................................................................................... 82
RYAN v VICTORIA (CITY) [1999] SCC .................................................................................................................................... 82
32. DEFAMATION ................................................................................................................................................. 83
BACKGROUND .............................................................................................................................................. 83
ELEMENTS OF THE ACTION ............................................................................................................................ 83
BOOTH v BCTV BROADCASTING SYSTEMS [1982] BCCA ..................................................................................................... 84
DEFENCES ..................................................................................................................................................... 84
WILLIAMS v REASON [1988] UK CA ..................................................................................................................................... 85
BANK OF BRITISH COLUMBIA v CANADIAN BROADCASTING CORPORATION (1995) BCCA ................................................ 85
HUNG v GARDINER [2003] BCCA ......................................................................................................................................... 86
MCLOUGHLIN v KUTASY [1979] SCC ................................................................................................................................... 86
HILL v CHURCH OF SCIENTOLOGY [1995] SCC ..................................................................................................................... 87
CHERNESKEY v ARMADALE PUBLISHERS LTD [1979] SCC .................................................................................................... 88
WIC RADIO LTD v SIMPSON [2008] SCC .............................................................................................................................. 88
GRANT v TORSTAR [2009] SCC ............................................................................................................................................ 89
JONES v BROOKS [1974] SK QB ........................................................................................................................................... 91
EXAM FLOWCHART .............................................................................................................................................. 92
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1. INTRODUCTION TO THE LAW OF TORTS
Occasionally, individuals going about their affairs contribute to injuries suffered by others. The law
of torts attempts to construct an ordered regime regulating these matters, determining whether
(and how much) compensation should be paid for the injuries suffered.
- Aimed at regulating interpersonal activities (which can include the 'personal' activities of
companies, institutions and even the government)
- Aimed generally at addressing 'harm' (though some harm may not come with any
discernible injury, in the sense of damage)
- One party injures or harms another - harm means damage to interests, and these interests
need not be physical
- With the right kind of relationship present, the injured party may be able to sue the injuring
party, with possibility of receiving compensation (usually financial)
- Not every kind of injury is going to involve liability, and therefore not every injury is
actionable
PURPOSES/FUNCTIONS
Compensation
A number of failings here:
1. Torts only provides compensation in a very limited set of circumstances to a limited set of
victims.
2. Victims must make significant financial investment to initiate the process - high barrier to
entry.
3. Plaintiff must prove fault rather than need.
4. The victim will recover only if injured by a tortfeasor with assets or insurance.
NZ has an insurance system for accidents generally. This takes lawyers out of the picture to a
significant degree. But if we were really serious about compensation, then replacing law of torts with
a general insurance system would avoid the preceding four issues.
In Canada, lawyers may work on contingency - only paid if the plaintiff's action succeeds.
Appeasement/vindication
Punishment/retribution
Deterrence
Attempt to discourage defendant (specific deterrence) and others (general deterrence) from
repeating bad behavior. Similar to punishment, but looks forward in time rather than backward penalty for optimum deterrence =/= optimum punishment. In order provide effective deterrence,
tort law must (1) clearly define the undesirable conduct and (2) then provide sufficient
inducements for discouraging it. Only applies to premeditated behavior, and not spontaneous
careless behavior. Deterrence won't be accomplished if a tortfeasor believes that it is cheaper to
pay various costs associated with liability (eg. Litigation, damages and bad publicity) than to change
their behavior.
Market Deterrence
(contrasted with claims of efficiency, goals of loss spreading, and the 'deep pocket' justification for
allocating losses)
5
Some economists describe tort law as a system of loss allocation - costs of accidents should be
incorporated in the prices of the activities that generate them. Alternately, loss allocation has been
described as holding actors liable when the costs of harm exceed the costs of prevention squandering scarce social resources (R. Posner). Alternately again, loss allocation is used to
describe a loss spreading mechanism, whereby losses are imposed on the parties best able to
distribute over time (deep pocket approach).
Justice
Retributive vs. Distributive vs. Corrective
Concurrency:
BC CHECO INTERNATIONAL LTD v BC HYDRO & POWER AUTHORITY (1993) SCC
RATIO
If there is a contract between two parties as well as a tortious issue (eg.
negligence), there is nothing stopping the P from pursuing action on a
contract basis, a torts basis, or both. If both are pursued, P can only
recover on one basis, not on both.
Evolution from causation to fault:
SCOTT v SHEPHERD [1773] UK
FACTS
D’s squib – thrown into Yates’ stall, thrown out by Willis, lands in Ryal’s stall,
thrown out by Ryal, hits P, explodes, takes out eye.
RULING
3 for finding of liability, one for finding of no liability. BLACKSTONE’S DISSENT
becomes ratio, but doesn’t matter as it’s no longer good law.
RATIO
Not even menaces from others are sufficient to justify a trespass against a
third person, much less a fear of danger to either his goods or his person;
nothing but inevitable necessity
LEAME v BRAY [1803] UK
FACTS
D drove horse-drawn carriage "with force and arms" into the plaintiff's carriage,
causing P's horses to panic. P jumped off his carriage and broke his collar bone
and sued D in trespass. D argued that because the injury was the product of
negligence, and not willful, the proper remedy was by action on the case and not
trespass.
RULING
Ruled in favor of P, based on Blackstone's distinction.
RATIO
The defendant himself was present, and used the ordinary means of
impelling the horse forward, and from that the injury happened. And
therefore there being an immediate injury from an immediate act of force
by the defendant, the proper remedy is trespass.
WILLIAMS v HOLLAND [1833] UK
FACTS
Gave P choice between trespass and action on the case when there was a direct
negligent act .
RULING
Ruling for P.
RATIO
If injury caused by carelessness, then even if act is immediate the plaintiff
can chose to bring action on the case. Shift from directness to fault
(intentional actions and careless actions).
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HOLMES v MATHER [1875] UK
FACTS
P was knocked by a pair of horses which suddenly went out of control though
the defendant tried his best to control it.
RULING
Ruling for P.
RATIO
Allows P to join trespass and action on the case lawsuits, rather than
having to choose one or the other.
COOK v LEWIS [1952] SCC
FACTS
Friends hunting. Lewis was hiding in a bush, got shot and lost an eye.
Determined that one of friends’ shots that hit him, but could not decide whose. C
of A ordered a new trial. Cook appealed.
RULING
Ruling for Lewis – appeal dismissed.
RATIO
Once the P shows that he was injured by the direct act of the D, the burden
of proof shifts to the D to prove it was not their fault - must show both lack
of intent and lack of negligence.
2. BATTERY
Battery
Battery is any direct and intentional infliction upon the body of another of a harmful or offensive
contact. (from BETTEL)
Q: What constitutes ‘harmful or offensive contact’?
A: Not solely direct or indirect contact without consent. Also incorporates objective aspect reasonable person standard. Dignity and physical integrity are core concepts as well.
BETTEL v YIM [1978] Ontario CC
FACTS
Store owner shook P & accidentally head-butted him. D argued that he intended
only to grab the child, not to hit him, and was therefore not liable.
RULING
Ruling for P.
RATIO
Tortfeasor in trespass action is responsible for all consequences of
intentional tort, not simply those consequences which are foreseeable.
Q: Why?
A: If liability was restricted to only reasonably foreseeable consequences, it would unfairly
advantage those people who commit battery and unintentionally damage victims and place
excess costs on the innocent person.
Intent
Refers to desire to bring about the results or consequences of defendant’s act, not necessarily the
initial act itself.
Need the intent be blameworthy (in itself)? No, the defendant's intent need not be hostile or
otherwise blameworthy.
If the defendant did not actually desire to bring about the results or consequences of his/her acts,
does not mean there is no intent found (or created)? No, intent can be imputed (or constructive, as
in by the Court) if the consequences were substantially certain to result, or transferred if the
defendant intended to commit a tort against one party and unintentionally committed a tort against
another party.
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Motive
The reason for wanting an event or consequences to come about.
Is this relevant in a trespass action? Generally, no. The Court is concerned with intent and
directness of force and consequences. There are exceptions:
- Element of the defence of public necessity (often associated with police officers, fire
fighters, paramedics, etc.)
- Possible impact on damage assessment - how much damages are awarded. Aggravated or
punitive damages can be awarded in cases with egregious or high-handed behavior
(component of motive).
Provocation
MISKA v SIVEC [1959] Ont CA
FACTS
P is driving, D cuts him off. D runs at P with a bar and knife. D goes home, gets
gun and fires warning shots, hits P. D argues provocation. Guilty at trial. Appeal
because court didn’t consider provocation when considering damages.
RULING
Ruling for P.
RULING
To qualify as provocation, a reasonable person (RP), in light of the conduct
of the P (at the time of or shortly before the assault), must have lost
his/her power of self-control.
Aggravated Damages
Aggravated damages (eg. injury to dignity, non-visible interests, etc.) are a subset of compensatory
damages (making the plaintiff whole again).
Punitive Damages
Punitive damages are not focused on the victim, but on the tortfeasor. Punishment is not usually
seen as a focus in the law of torts. But there are some situations where the Court seeks to punish
the defendant, and punitive damages are awarded to the victim. Why not to the state? Because torts
is private law, introducing the state would insert an element of public law.
Volition
General condition: that the tortious act be an act of the will of the defendant. Volition is necessary
for intent. This is the question of volition – was the act directed by the conscious mind of the
(alleged) tortfeasor?
Q: How is duress addressed in the context of an intentional tort action?
GILBERT v STONE [1648] UK
FACTS
D stole horse under threat of armed men.
RULING
Ruling for P. Duress did not relieve him of liability (though he would have claim
in assault against armed men).
RATIO
Duress will negate neither volition nor intent, but will be a factor in
assessing damages.
Q: Where does consent fit into assault and battery?
A: Courts assume lack of consent, including in sexual assault. This is not the case in all common
law jurisdictions. Defendant can raise consent as an issue, and try to use it as a defense.
8
Q: Is consent a sub-element of "harmful or offensive contact" or a separate element?
A: It is a separate element that can occur as a possible defense on the part of the D. Consent is
intimately tied with the notion of harmful or offensive contact but is a separate concept rather
than a component of the definition of "harmful or offensive contact."
NON-MARINE UNDERWRITERS v SCALERA [2000] SCC
RATIO
Once P demonstrates direct or indirect force was applied, they are under
no obligation to establish that they did not consent - lack of consent is
assumed. Burden shifts to D to assert and prove consent.
Mental states like consent are difficult to prove. No matter where the burden lies, it will predispose
the case in one favor or the other.
Q: What about torts committed by children and the mentally disabled?
A: Volition requires the control of the conscious mind - children and mentally disabled could
display volition. Courts aren't comfortable with that and so carve out an exception test: did the
D understand the consequences of their actions? Did they know their actions were wrong? This
is called ‘appreciating the nature and quality of one’s acts’. Parents and supervisors have limited
liability for the wrongful acts of their charges, unless they were a party to the wrongful conduct
or negligent in their supervision or control.
3. ASSAULT
Assault
Assault is the intentional creation in the mind of another of a reasonable apprehension of
immediate physical contact of a harmful or oppressive nature.
MAINLAND SAWMILLS LTD v USW LOCAL 1-3567 [2007] BCSC
FACTS
Ongoing strike involving multiple unions. Provincial government introduces
impending back-to-work legislation. When union hears this, decide to go back to
work. Other local unions were upset, argued strike was over when legislation
was tabled. Several hundred people show up at the running mill, push their way
into the mill and intimidate workers out of working. Some of the people who
suffered intimidation but were never physically touched sued for assault.
RULING
Ruling for P.
RATIO
1. The tort of assault, which is a trespass to the person, involves a threat
by the D to apply some degree of force to the P. It has been described as
intentionally causing another person to reasonably fear or apprehend
imminent contact of a harmful or oppressive nature.
2. One cannot impose conditions upon another when one has no legal
right to do so.
Q: What about threats that are entirely verbal (not accompanied by any overt physical acts)?
A: Generally, courts are reluctant to allow that these might constitute assault, but they are more
and more likely to consider the verbal threats in the over-all context of the situation, asking the
central question: are the threats (in this context) such as to raise a reasonable apprehension in
the mind of the plaintiff of immediate physical contact? Broadness of definition for assault
allows for this.
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Conditional threats constitute assault when they impose a condition on the defendant that
the plaintiff has no legal right to do so.
4. FALSE IMPRISONMENT
Is it necessary that one’s complete freedom be restrained in order that false imprisonment be
available?
BIRD v JONES [1845] UK
FACTS
Bird, the P, attempts to cross a bridge, Jones, the D, orders him to stop and take
another route.
RULING
Ruling for D.
RATIO
False imprisonment requires total restraint – ‘imprisonment of the body’
is necessary, not ‘mere loss of freedom’.
WRIGHT v WILSON [1692] UK
RATIO
But what is total restraint? Does it require physical contact?
Return to reasonable person standard - if there is a means of reasonable
escape, there is no total restraint.
Total restraint:
Total restrain means one has no means of reasonable escape.
CAMPBELL v SS KRESGE CO [1976] NSSC
FACTS
Campbell, the P, was detained by a security guard/police officer for questioning
after he suspected her of shoplifting.
RULING
Ruling for P. Hart J. finds that plaintiff, in order to avoid embarrassment, and in
being confronted by a member of the police force, felt compelled to reenter the
store, and this constitutes a kind of psychological imprisonment – she was
psychologically compelled to ‘voluntarily’ go with police officer.
RATIO
Expands tort of false imprisonment by more narrowly defining reasonable
escape – now it excludes situations of psychological imprisonment. Was
there a reasonable sense of psychological compulsion?
Q: What sorts of situations might pose problems in applying this approach?
A: Occurrence of this action in Canada breaks down (roughly) to cases where police are
defendants (60%) and storeowners are defendants (30%), with most of the rest involving
involuntary confinement in mental institutions
An example of a situation inviting questions around the presence of ‘consensual restraint’:
HERD v WEARDALE STEEL, COAL AND COKE CO LTD [1915] UK
FACTS
Coal miner goes down into the mine, doesn't want to work due to unsafe
conditions and asks to come up from the mine. Company refuses to raise
elevator until the end of his shift. Coal miner brings action on false
imprisonment.
RULING
Ruled for D. False imprisonment does not apply in this case.
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RATIO
When a person chooses to do x, it may be the case that movement is
thereby limited (when, for example, this person has put him/herself into a
situation from which ‘escape’ is limited). This person can then only
demand freedom within the terms of the agreement the person accepted
in choosing to place him/herself in this position (absent any other
statutory or legal right).
Situations where people are unconscious and falsely imprisoned – courts will allow these
claims.
The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful
interference with that liberty it should remain actionable even without proof of special damage.
Malicious Prosecution
Malicious prosecution stems from action on the case and comes in when directness fails, even if
defendant initiated the action of detaining the plaintiff. Something like negligence, but has become
an intentional tort all the same.
Directness fails when judicial discretion and intervention intervene between the original complaint
and the detainment. It is not enough that an arm of the judiciary (for ex. the police) carry out the
request of the plaintiff – they must exercise discretion.
Tort is difficult to succeed under, given required four elements:
(i) proceedings initiated by the defendant;
(ii) proceedings must terminate in favour of plaintiff;
(iii) proceedings must have been instituted without reasonable cause; and
(iv) defendant must have acted maliciously.
Last two are very challenging for the plaintiff to establish. Must focus on more than honest belief
(on reasonable grounds) of guilt of accused – rather, focus must be on presence of ulterior
motive on defendant’s part.
5. INTENTIONAL INFLICTION OF MENTAL SUFFERING
(NERVOUS SHOCK)
WILKINSON v DOWNTON [1897] UK
FACTS
D falsely tells P that her husband has been gravely injured in an accident and
both his legs have been crushed. P suffers a nervous shock and permanent
physical consequences and brings an action on this basis.
RULING
Ruling for P – causes shift in common law.
RATIO
Unlike other intentional torts, intentional infliction of mental suffering
requires the defendant to possess some intent to do harm, or have that
intent be imputed to them.
Test for Imputed Intent
If you did X, was it certain or substantially certain that Y would have followed? If so, intent is
imputed. This is an implicit reasonable person test.
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PURDY v WOZNESENSKY [1937] Sask CA
D should have foreseen that causing P to witness husband’s attack would have led to nervous
shock – imputed intent.
BIELITSKI v OBADIAK [1922] Sask CA
D failed to explain his conduct, so Court imputed intent.
What seems to set this apart from other intentional torts we have looked at to this point? Intent in
assault, battery and false imprisonment is intent to do the physical act - intent here is intent
to cause a particular negative consequence.
Intentional Infliction of Nervous Shock in Canada
WILKINSON seemed to set out new ground, for prior to this ‘bold’ move, a plaintiff could only recover
for nervous shock if there was some physical injury to something other than the nervous system,
and it was that physical injury for which compensation was directed, with the attendant mental
suffering added onto that.
Canadian courts have (for the most part) taken from WILKINSON the rule that if nervous shock
equates to measurable harm (i.e. something that amounts to physical injury), then intentional
infliction comes into play.
RADOVSKIS v TOMM [1957] MB QB
FACTS
P was an infant who was raped by the D. D was convicted criminally.
RULING
Ruling for D.
RATIO
Emotional distress is not compensable (harm has to be visible and
provable to be compensable).
FRAME v SMITH [1987] SCC
Supreme Court of Canada requires that there be some ‘recognizable physical or
psychopathological harm’. In this way WILKINSON remains the foundation of the law in Canada.
Possible loosening up of requirements:
RAHEMTULLA v VANFED CREDIT UNION [1984] BCSC
FACTS
P was accused of theft and fired from her job.
RULING
Ruling for P – D’s behaviour was reckless. Lack of expert evidence was not fatal
to P’s claim.
RATIO
The requirement in Wilkinson that the D’s act must be plainly calculated
to cause harm can be met if the D acted in reckless disregard to this
possibility or if it was foreseeable that profound distress would ensue.
Are we going down the U.S. route, to a tort of harassment? Not settled until the SCC rules on the
matter.Circumstances for harassment are a bit different than those for intentional infliction of
nervous shock - in the later, there must be intent (real or imputed) to cause harm, while in the
former the defendant's pattern of behaviour makes life unbearable for the plaintiff.
DIRECTNESS
Directness is still required in actions in Canada - must be a directness between the actions of the
defendant and the consequences that are the basis of the complaint.
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6. PRIVACY
What is ‘privacy’?
As definition expands, more conflict with other interests. Simply, a right to be left alone.
Is there a ‘right’ to privacy?
There is no recognized tort of privacy in Canada. Privacy interests are protected in a piecemeal way
by a number of civil actions and statutory provisions.
The following are 4 ways in which a person's privacy may be infringed:
1. Intrusion upon a person’s seclusion or solitude, or into his/her private affairs;
2. Public disclosure of embarrassing private facts about the person;
3. Publicity which places the plaintiff in a false light in the public eye;
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
Within nuisance:
MOTHERWELL v MOTHERWELL [1976] AB SC
FACTS
D suffered from paranoid condition and continually harassed P via phone and
mail. After D ignored repeated requests to stop, P brought action for invasion of
privacy and nuisance. P won, D appealed on the basis that the P had no basis to
restrain her lawful communications.
RULING
Ruled for the P on a limited basis - claims in private nuisance for invasion of
privacy through abuse of telephone are upheld. Claims based on harassing mail
did not constitute a nuisance. Appeal dismissed.
RATIO
Some electronic forms of invasion of privacy can fall under the tort of
private nuisance.
Private Nuisance
Private nuisance is when a neighbor interferes with the ordinary enjoyment and use of your land.
If property interests were not in the circumstances of the action where else could one go to find
possible forms of action? Intentional infliction of mental suffering? A tort of harassment? No,
according to MAINLAND SAWMILLS: Court holds that there is no tort of harassment in BC.
Harassment
Harassment is outrageous and intolerable conduct of the defendant - something against the
generally acceptable standards of decency and morality.
Q: Is there a stand-alone tort of invasion of privacy?
A: Not really, according to LORD v MCGREGOR [2000] BCSC: There is no standalone tort of
privacy in Canada or BC in the common law. There is a statutory tort of privacy in BC. Mr.
Justice McKinnon found that ‘on the facts’ arguments made by counsel/plaintiff did not support
contention that common law supports a right to privacy.
Statutory right to privacy
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HOLLINSWORTH v BCTV [1999] BCCA
FACTS
Hollinsworth, the P, was bald and had a surgical hair implant. He allowed a
camera person to film the procedure for medical instructional purposes only.
Seven years later, BCTV broadcast the tape in a feature on baldness. The P sued
the surgical company and BCTV and the trial judge found claims against the
former and dismissed the claim against latter. P appealed.
RULING
Appeal dismissed – D’s action was not an intentional act intended to violate
privacy of another person. Nor was BCTV's action without a claim of right –
based on an honest and reasonable belief.
RATIO
The statutory tort of privacy in BC is very narrow - requires intention (real
or constructed) to violate privacy and without a legal claim of right.
Is privacy defined in the Privacy Act, RSBC 1996?
The nature and degree of privacy to which a person is entitled in a situation or in
relation to a matter is that which is reasonable in the circumstances, giving due
regard to the lawful interests of others.
Privacy Act
Violation of privacy actionable
1 (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of
right, to violate the privacy of another.
(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a
matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of
others.
(3) In determining whether the act or conduct of a person is a violation of another's privacy, regard
must be given to the nature, incidence and occasion of the act or conduct and to any domestic or
other relationship between the parties.
(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or
surveillance, whether or not accomplished by trespass.
Exceptions
2 … (2) An act or conduct is not a violation of privacy if any of the following applies:
(a) it is consented to by some person entitled to consent;
(b) the act or conduct was incidental to the exercise of a lawful right of defence of person or
property;
(c) the act or conduct was authorized or required under a law in force in British Columbia, by a
court or by any process of a court;
(d) the act or conduct was that of
(i) a peace officer acting in the course of his or her duty to prevent, discover or investigate crime or
to discover or apprehend the perpetrators of a crime, or
(ii) a public officer engaged in an investigation in the course of his or her duty under a law in force
in British Columbia,
and was neither disproportionate to the gravity of the crime or matter subject to investigation nor
committed in the course of a trespass.
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7. DEFENCE OF CONSENT
Consent is not conceived of as an element of the action, but as a defence. The defendant must
prove consent on the balance of probabilities. In intentional torts, lack of consent is presumed.
The party allegedly giving consent must be capable of consenting - must be capable of volition.
Once that is established, the common law will not assess the reasonableness of consent given
(any individual capable of giving consent can act foolishly or recklessly).
Consent must be argued in relation to the specific action that led to the tort - relevant to how
consent can be vitiated (negated). Two possible forms of consent that can be found: explicit and
implicit. Explicit consent has some physical form. Implicit consent is denoted by the
circumstances. This is where Courts often struggle. Many of the most difficult cases concern implicit
or implied consent – what actions/circumstances are sufficient to establish that the plaintiff
implicitly consented to the specific acts of the defendant?
Implied Consent (in context of ‘sport’)
WRIGHT v McLEAN [1956] BCSC
FACTS
Four boys were throwing mud at each other. Another boy stopped by and joined
their game. This last boy threw something which injured one of the original
boys.
RULING
Action dismissed – implicit consent in sport is sufficient.
RATIO
Implied consent is sufficient to establish a defence of consent – consent all
reasonable consequences. Lack of malice, anger and ill will is sufficient to
establish implied consent in a sporting context.
Going beyond implied consent:
AGAR v CANNING [1965] MB QB
FACTS
During a hockey game, the D body-checked the plaintiff and skated away with
the puck. P hooked the D and hit him on the neck. D stopped, turned and hit the
P with his stick and blinded him in right eye.
RULING
Ruling for P – evidence of malice.
RATIO
Where there is intent to cause serious injury, implied consent is vitiated.
R v PAICE [2005] SCC
FACTS
Criminal case where deceased killed by A in fistfight. A was challenged
RULING
Clarification of R v JOBIDON [1991].
RATIO
Consent will only be negated if the accused both intends and causes
serious bodily harm.
THIS IS PRECEDENT FOR CRIMINAL, NOT TORTS.
FACTORS VITIATING CONSENT
Fraud
Fraud requires that: (1) D must be aware of, or responsible for, the fraudulently induced belief, and
(2) the fraud must relate to the nature and quality of the act (and not a ‘collateral’ matter).
In relation to the second requirement, ask whether plaintiff knew the nature and quality of the act on
the basis of which s/he is suing the other. Most cases end up focusing on the second requirement
when consent is an issue.
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R v WILLIAMS [1923] CA
FACTS
Music teacher told student sex was a procedure to improve her voice.
RULING
Ruling for D.
RATIO
Example of fraud that relates to the nature and quality of the act.
PAPADIMITROPOULOS v R [1945] HCA
FACTS
A fraudulently convinced illiterate woman they were married, had sex.
RULING
Ruling for A.
RATIO
Example of fraud that goes to a collateral matter and does not vitiate
consent.
Mistake
Recall that generally mistake is not a defence (and so for the most part irrelevant to the legal
analysis of the facts).
The exception: a mistake going to the formation of consent on the part of the plaintiff, if the
defendant was responsible for the mistaken belief upon which consent purportedly rests.
GUIMOND v LABERGE [1956] ONT CA
FACTS
Dentist phrased question poorly, mistakenly took out P’s teeth.
RULING
Ruling for the P.
RATIO
A mistake going to the formation of consent on the part of the plaintiff, if
the defendant was responsible for the mistaken belief upon which consent
purportedly rests.
Duress
LATTER v BRADELL [1880] UK
FACTS
Woman thought her servant was pregnant, implied she had to submit to a
doctor's examination or she would be fired. Servant brought action.
RULING
Ruling for the D – insufficient evidence of force, violence or any threat thereof.
RATIO
Duress is only present when there is a threat of force, violence or illegal
action – a high standard.
Public Policy
NORBERG v WYNRIB [1992] SCC
FACTS
The D, a doctor, offered to supply an addicted patient with painkillers in
exchange for sexual favors. P eventually kicks addiction and then sues the D.
Trial judge ruled P consented and there was no remedy. P appealed to SCC.
RULING
Ruling for the P – unequal bargaining power and exploitative nature of the
relationship made “meaningful consent” impossible.
RATIO
 Consent must be genuine (not obtained by force or threat of force or be
given under the influence of drugs. Consent may also be vitiated by fraud
or deceit as to the nature of the defendant’s conduct).
 Consent must be voluntary. Imports standard of unconscionability from
contracts, requiring: (1) unequal relationship, often in context of special
dependency, and (2) exploitation.
Paralleling contract law, there will be two stages to proof to test of ‘unconscionability’:
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1. “Proof of inequality between the parties, which ... will ordinarily occur within the context of
a special ‘power dependency’ relationship.”
2. “Proof of exploitation” (wherein community standards of conduct may come in to assist in
determining whether such has occurred)
8. DEFENCES RELATED TO PROTECTION OF THE PERSON
Consent in relation to treatment, counseling and care
MARSHALL v CURRY [1933] NS CA
FACTS
P went in for a hernia operation. Surgeon, the D, finds a diseased testicle and
removes it in the course of the operation. P argues he did not consent and sues
under battery.
RULING
Ruling for the D – instead of attempting to create imputed consent, Court
decides to find an exception to consent and find that in the course of surgery,
surgeons have a duty to preserve life.
RATIO
If there is consent to a surgery, surgeon does not require consent to do
what is necessary to preserve the life of the patient.
Other exceptions
Under general consent, for those subsequent tests, procedures or treatment sessions deemed
necessarily incidental to what was agreed to, consent will be put aside.
“Therapeutic privilege” (now fading into common law history)
It used to be the case that the Doctor can withhold information from the patient for therapeutic
purposes. Since the late 80's and early 90's, this has not been a successful defence.
MALETTE v SHULMAN [1989] ONT CA
FACTS
P was injured in a car accident. Surgeon, the D, finds a card indicating the P is a
Jehovah's Witness and will refuse blood transfusions. P's condition begins to
deteriorate and D begins blood transfusions until she recovers. P recovers and
sues under negligence and battery.
RULING
Ruling for the P – facts bear out validity of the Jehovah's Witness card and
therefore D should have accepted it as an expression of P’s wishes.
RATIO
Valid expressions to refuse medical procedures must be respected.
The issue that arises here is what rights a competent patient has to accept or reject medical
treatment, and how far these rights might extend. The guiding principle in Canada: selfdetermination of the body. No special exceptions made for medical care other than emergencies.
At common law medical intervention in which a doctor touches the body of a patient would
constitute battery if the patient did not consent to the intervention. What of the special exception of
a medical emergency (i.e., Marshall-type situation)? Depends on whether patient refused medical
treatment or simply failed to provide consent.
So in an emergency situation, when a patient is incapable of either giving or withholding consent,
the doctor may proceed without consent. Two approaches or positions can explain this stance: the
doctor has implied consent to give emergency care, or the doctor is privileged, by reason of
necessity, in giving aid, and not held liable.
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Generally accepted conditions:
 patient must be unconscious or without capacity to make a decision
 no one legally authorized to act as an agent for the patient is available
 time is of the essence; and
 a reasonable person would, under the circumstances, consent
Self-defence
For a defendant to make use of this defence they must establish that:
1. They honestly (subjective) and reasonably (objective) believed an assault was imminent,
and
2. The amount of force they used to avert the risk was reasonable in all the circumstances
If successful, self-defence acts a complete defence, completely absolving D of culpability.
WACKETT v CALDER [1965] BCCA
FACTS
P challenged D to a fight and assaulted him, though drunkenly and futilely. D hit
the plaintiff and knocked him down, P got back up and attacked D again, D
knocked the P out.
RULING
Ruling for the D – P was capable of “doing serious physical damage to others”,
and that he was “in a belligerent and obviously dangerous mood”. With these
findings they could reasonably find the defendant honestly and reasonably
believed in an imminent assault.
RATIO
Self-defence requires the honest and reasonable belief that an assault is
imminent and that the amount of force used to avert the risk is reasonable.
In Canada one cannot justify the use of deadly force simply on the basis one was acting in one’s own
home. It is not necessary that the defendant wait to be struck – it is sufficient that there be a
reasonable and honest belief in an imminent attack.
9. DEFENCES BASED ON APPORTIONMENT OF FAULT
Defence of Third Parties
GAMBRIELL v CAPARELLI [1974] ONT CO CT
FACTS
Altercation between P and the son of the D. D, the mother, asks P to stop three
times, then assaults the D with a garden tool.
RULING
Ruling for the D.
RATIO
Where a person in intervening to rescue another holds an honest … belief
that the other person is in imminent danger of injury, they are justified in
using force, provided that it is reasonable.
Note that she may have had a mistaken belief – the question is whether the defendant had an
honest and reasonable belief, and so mistakes can be overlooked in some circumstances
Discipline
From s 43 of the Canada Criminal Code:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by
way of correction toward a pupil or child, as the case may be, who is under his care, if the force does
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not exceed what is reasonable under the circumstances. Courts have accepted that this provision
should be applied to both criminal and civil defences.
R v DUPPERON (1984) SK CA
RATIO
Defendant must prove: force used solely for purposes of correction; and
that force was objectively reasonable.
10. DEFENCES OF LEGAL AUTHORITY
For the most part, this is a matter of criminal liability, and most cases involve possible charges laid
against individuals. Generally, when civil liability comes up it is dealt with in conjunction with the
provisions found in criminal law statutes.
Generally, for an individual to argue the defence of legal authority they must show:
1. That their act(s) were authorized by either statute or the common law, and;
2. That their authorized act(s) were privileged –that the factual circumstances fit the scope of
the authority set out by the statute.
For the most part, ss 494 and 495 of the Criminal Code serve to authorize act(s) that lead to
questions of liability (sections that describe conditions around arrests – reproduced on page 255),
and section 25 of the CCC serves to grant privilege to certain act(s) (justifying the act(s) authorized,
so long as only so much force as was necessary for that purpose was employed and the actor(s)
acted on reasonable grounds – reproduced on page 258). But sometimes the criminal law approach
is not the same as the civil law approach.
NICHOLS v WAL-MART CANADA CORP (2003) ONT SC
FACTS
D was shopping at Wal-Mart with landlord, stopped on the way out by store
security. As they were held in the back waiting for the arrival of the police two
cameras were found in the landlord’s coat pockets (both stolen). The store
officials believed D may have stolen some mascara, but charges around that
were later dropped. P sued for false imprisonment (and malicious prosecution).
RULING
Ruling for the D – successfully established defence of legal authority.
RATIO
Defence of legal authority requires:
1. A crime must actually have been committed by someone (not
necessarily the plaintiff),
2. Defendant must have reasonable grounds to believe P was guilty of
the crime.
Negligence Act
Apportionment of liability for damages
1 (1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the
liability to make good the damage or loss is in proportion to the degree to which each person was at
fault. [emphasis added]
(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to
establish different degrees of fault, the liability must be apportioned equally.
(3) Nothing in this section operates to make a person liable for damage or loss to which the
person's fault has not contributed.
In other words, if you can show that the plaintiff was also in the wrong (negligent), then that can
alter the apportionment of liability and thereby the amount of damages owed. In BC, only the
language of fault in the statute – so the statute includes intentional torts, not just negligence.
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11. INTRODUCTION TO THE LAW OF NEGLIGENCE
The Concept of Duty
In the early part of the 20th century momentum built to develop a systematic approach to the
question of when someone owes a duty to another. As momentum built, concern arose around how
the law of negligence may be bounded – the concept of duty emerges as the tool by which the law of
negligence can be limited. In the first half of the 20th century, a ‘theory’ of negligence (a ‘principled’
approach) develops.
The core of this new approach: focus on the notion of a duty of care, identifying a linkage or
relationship between parties otherwise viewed by the common law as separate, atomisticallyunderstood, private individuals (or parties). Break from earlier common law where individuals
were held not to have any legal relationships unless explicitly stated.
M’ALISTER (OR DONOGHUE) v STEVENSON [1932] UK
FACTS
P bought ginger beer, found snail found in bottle. P sued.
RULING
Ruling for the P – D owed P a duty of care because of “the general injunction –
based upon a general public sentiment of moral wrongdoing – that you must not
injure your neighbor.”
RATIO
There is a duty of care based on the presumption that one must not injure
their neighbor.
ANNS v LONDON BOROUGH OF MERTON [1977] UK
FACTS
In 1962 the local council of Merton, the D, approved building plans for the
erection of a block of apartments. In 1970 apartments started deteriorating due
to faulty foundations. In 1972 the P commenced action, claiming that the
damage was a consequence of the block having been built on inadequate
foundations not as deep as required under bylaws. P claimed damages in
negligence against the council for approving the foundations and/or in failing to
inspect the foundations.
RULING
Ruling for the P.
RATIO
Set out the ANNS test:
1. Was there should be a sufficient relationship of proximity between
the parties that damage was reasonably foreseeable from
carelessness?
2. If yes, are there any considerations that should negate, reduce or
limit duty of care? [eg. Scope of the duty, class of person, damages)
NOTE: This test doesn't apply when there is physical injury, as there is an existing common law
framework already in place.
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12. THE COOPER TEST: DUTY OF CARE IN CANADA
Canadian courts have (for the most part) wholeheartedly embraced the ANNS approach.
KAMLOOPS v NIELSEN (1984) SCC
FACTS
A house in Kamloops had insufficient foundations which were discovered upon
inspection by the city. Stop work orders were issued but not enforced. The
house was sold to the P, the Nielsens. On discovering the construction
deficiencies, the Nielsens sued the city for negligent performance of inspection.
RULING
Ruling for the P - the vendor of the house, Hughes, assumed liability as well.
75% of the liability was delegated to Hughes and 25% was given to the city.
RATIO
Endorsed ANNS test in Canada. Finds liability in relation to public
authorities.
After the English courts had disavowed ANNS, the Supreme Court of Canada (SCC) unanimously
agreed to stick to this approach in:
CANADIAN NATIONAL RAILWAY CO v NORSK PACIFIC STEAMSHIP CO [1992] SCC
FACTS
A tug owned and operated by the D negligently struck a railway bridge owned
by Public Works Canada near the mouth of the Fraser River. P was one of
several railway companies which held contracts with PWC to use the bridge. P
sued the D for the additional cost incurred as a result of the bridge closure. The
D claimed that there was no right to recover, as P was not the owner of the
bridge and suffered no direct physical or property damage - their losses were
purely economic (based on lost profits and increased operational costs, no
damage to property), which were not generally recoverable in tort law.
RULING
Ruling for the P - the vendor of the house, Hughes, assumed liability as well.
75% of the liability was delegated to Hughes and 25% was given to the city.
RATIO
Reaffirmed SCC commitment to the ANNS test, after it had been replaced in
the UK.
ELEMENTS OF AN ACTION IN NEGLIGENCE
1. Existence of a duty
Sub-question: what is the standard of care?
2. A breach of this duty
3. The claimant must suffer some damage (physical? economic?)
4. Damage suffered by the claimant must be caused by the negligent conduct of the defendant.
(‘cause-in-fact’)
Crucial consideration on exam questions.
5. Conduct of the defendant must be the ‘proximate cause’ of the loss [question of remoteness:
only comes up in very limited circumstances, where it seems like the D did something trivial
that developed in an unexpected fashion to a major injury. In other words, there should be
proportionality between negligent action and damages]
6. Should be no prejudicial conduct on the part of the plaintiff [contributory negligence,
voluntary assumption of risk, etc.]
First 5 are plaintiff's burden to establish, last is the defendant's burden to prove.
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DUNSMORE v DESHIELD [1977] Sask QB
FACTS
P buys a special type of lenses (Hardex) from the D who is an optometrist. The
lenses were manufactured by the second D, Imperial Optical, specifically to be
used for sports as they were more impact resistant than regular glasses. They
are not actually Hardex lenses and are regular lenses instead. The P gets hit in a
game of football and the glasses break, doing damage to his eye.
RULING
Ruling for the P. Both Ds (doctor and Imperial) owe a duty of care to P –
Imperial to provide actual Hardex lenses, Deshield to test them.
RATIO
Doesn't stand for anything, used as example of typical action in negligence.
COOPER v HOBART [2001] SCC
FACTS
Eron Mortgage Corporation was a mortgage broker. Cooper, the P had advanced
money to Eron. Eron's mortgage license was suspended and they went out of
business when it was discovered that they used money of over 6,000 investors
for unauthorized purposes. Cooper alleges that the registrar, the D, breached a
duty of care that it allegedly owed to her and other investors as it had been
aware of the serious violations of the Act committed by Eron and not suspended
its license soon enough. Cooper was successful at the lower court which D and
the Crown appealed.
RULING
Ruling for the D. ANNS test still applies, but this new category of negligence is
not recognized because of public policy concerns. The court focuses on the
statutory obligations of the Registrar – “That statute is the only source of his
duties, public or private”. Sufficient to dispose of the P’s claim. Also obiter
concerns at the second stage of the ANNS analysis around the quasi-judicial
nature of the functions of the Registrar, the policy-operational distinction in the
context of public authority liability, indeterminate liability, and the impact of a
duty in this context on the taxpayer (would amount to creating a form of
insurance for investors, paid by taxes).
RATIO
Sets out latest version of ANNS/COOPER test.
1. Reasonable foreseeability and proximity
a. Was the harm the reasonably foreseeable consequence of the
defendant’s act?
b. Was there a sufficient relationship of proximity to impose a duty
of care? Are there reasons, notwithstanding the proximity
between the parties established in the first part of this test, that
tort liability should not be recognized?
2. Residual policy matters
The burden rests on the D to establish that policy concerns should
reduce or negate the prima facie duty established.
Proximity is something above and beyond reasonable foreseeability. The question of proximity is
one that invites considerations of policy – it is a question that asks whether it seems ‘fair’, given the
nature of the relationship that does exist between the parties, to impose liability on the defendant
in relation to the plaintiff.
The second stage is thereby altered, as some policy concerns are dealt with at the first stage: at the
second stage the focus now shifts to ‘residual policy considerations’.
22
THE COOPER TEST
1. Reasonable foreseeability and proximity
a. Was the harm the reasonably foreseeable consequence of the defendant’s act?
b. Was there a sufficient relationship of proximity to impose a duty of care? Are there
reasons, notwithstanding the proximity between the parties established in the first part
of this test, that tort liability should not be recognized?
Should reasonable foreseeability and proximity be established, a prima facie duty of care is said to
arise.
Proximity is examined through an investigation into questions around: expectations,
representations, reliance, and the property or other interests involved. Essentially, these are factors
that allow us to evaluate the closeness of the relationship between the plaintiff and the defendant
and to determine whether it is just and fair having regard to that relationship to impose a duty of
care in law upon the defendant. Proximity may be usefully viewed, not so much as a test in itself,
but as a broad concept which is capable of subsuming different categories of cases involving
different factors.”
2. Residual policy matters
The burden rests on the defendant to establish that such policy concerns should, in some
fashion or other, reduce or negate the prima facie duty established.
Residual policy matters are not concerned with the relationship between the parties, but with the
effect of recognizing a duty of care on other legal obligations, the legal system, and society more
generally. Does the law already provide a remedy? Would recognition of the duty of care create the
spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that
suggest the duty of care should not be recognized?
When must one use the Cooper form of analysis? Whenever confronted with a new duty of
care.
Examples/Illustrations and Clarifications
ODHAVJI, CHILDS & DOBSON
CHILDS v DESORMEAUX indicated that talk of ‘categories’ was meant to signal the place for precedent
in analysis – if a case arises that fits a class that has previously been recognized as involving a duty
on the defendant, there is no need to go through an extended analysis – one can safely assume that
proximity has already been established.
Since as well the Court in COOPER stated that one should expect analysis would rarely get as far as
the second stage, it is reasonable to hold that only reasonable foreseeability would typically come
up as a concern when asking about when a duty exists (in dealing with most cases).
Reasonable Foreseeability
Broken down into two separate questions:
1. Would it be reasonable to say that a party in the position of the defendant should have been
aware of the risk of harm generated through its activities, and;
2. Would it be reasonable to say that the defendant should have been aware that someone like
the plaintiff might be injured as a result of the risk they created?
REASONABLY FORESEEABLE RISK
Two cases in the text with similar facts, but in one the outcome is a denial of RF, and no duty of care
while in the other the court is willing to find RF, and so the defendant is found liable to the plaintiff
23
MOULE v NB ELEC POWER [1960] SCC
FACTS
Boy climbs tree and is electrocuted.
RULING
Ruling for the D - facts do not support the finding of a risk, given that the young
appellant had to first climb one tree, then cross over to the other, and then climb
higher than any witness admitted anyone else had ever gone, before his actions
led to injury as a result of the power lines.
RATIO
RF is dependent on judicial intuition.
AMOS v NB ELEC POWER [1976] SCC
FACTS
Boy climbs tree and is electrocuted.
RULING
Ruling for the P - unlike in MOULE, here “… the boy, by climbing what seemed to
be a normal poplar tree, caused the tree to bend so that it contacted high tension
wires which it should not even have been near … [T]he accident in the present
case … was almost inevitable.”
RATIO
Nearer proximity correlates with more reasonable foreseeability.
REASONABLY FORESEEABLE PLAINTIFF
PALSGRAF v LONG ISLAND RAILWAY [1928] US NY
FACTS
Woman is hurt by a ridiculous sequence of events.
RULING
Ruling for the D.
RATIO
One only owes a duty of care to kinds of people who might be said to have
been reasonably foreseeable as put in risk of harm by a party’s possibly
negligent dangerous activity.
HASKETT v EQUIFAX CANADA INC [2003] ONT CA
FACTS
Credit rating agent had negligently handled credit rating, P was denied loans.
RULING
Held for the P – this new category is analogous to negligent misrepresentation.
RATIO
 Analogy is a way to avoid the COOPER analysis of a new duty of care, but
fuzzy in its application.
 Negative and positive policy considerations - policy considerations can
weigh in favor of recognizing a duty of care.
 Policy considerations need an evidentiary base, in order to avoid pure
speculation.
ODHAVJI ESTATE v WOODHOUSE [2003] SCC
FACTS
Odhavji shot by cops, investigation went nowhere b/c cops stonewalled. Re
negligence: must prove harm was foreseeable, duty was present b/c of
proximate relationship, and there was no policy reason to consider otherwise.
RULING
Ruling for P – Cops are liable: It was foreseeable that cops’ stonewalling would
hurt P; easily a causal link between cops’ stonewalling and harm to P; statutory
obligations exist which also create duty; no policy reasons for restraining it.
BUT the police board/AG were NOT liable – no duty to ensure cooperation, no
causal link between them and the alleged harm; no statutory obligation, etc.
RATIO
It is possible to sue public officials and recover psychiatric damages.
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13. DUTIES TO CONTROL THE BEHAVIOUR OF OTHERS
General Background Considerations
Misfeasance (inappropriate or negligent action)
Nonfeasance (non-action)
Malfeasance (bad action)
Reminder: our general focus when discussing duty of care is on relationships - determining when
(and with what particular governing rules) the common law recognizes a relationship as sufficient
to uphold the finding of a duty of care on the defendant in the action.
Categories of relationships have developed over time, each with their own quirks about who
actually has a duty, and what the contours of the duty may look like.
First discussion: challenges in finding a 'positive' duty - a duty befalling a party when they
themselves are not directly responsible for the generation of the condition wherein the other party
finds him/herself at risk of injury (and is consequently injured).
Focus: Duty to control the conduct of others
The common law generally has no problem with finding a party has a duty when that party plays a
direct role in generating the risk that leads to the injury of the injured party - such a defendant is
said to fall under a negative duty (to have done x, y or z, to minimize the possibility of harm
befalling the party that was actually injured).
But historically the common law did not find a party under a duty to assist someone, when that
someone found themselves in a dangerous situation, if the party in question did not directly bring
about the risk.
In some circumstances, however, the common law may find that the conditions are such that a
party that did not, strictly speaking, create the situation of risk may still fall under a positive duty to
act.
The kind of situation we are first looking at is one in which the defendant is found to have a positive
duty to control the activity of a party (i.e., to prevent someone in an inebriated state from driving a
vehicle).
There is a strong presumption in the common law against the existence of duties on those
(‘innocent bystanders’) who might be able to intervene in a situation, so as to control someone who
might harm themselves or others. Over time a number of exceptions to the general presumption
have developed, and then slowly expanded.
Drinking Establishment Cases
JORDAN HOUSE v MENOW [1973] SCC
FACTS
Regular patron gets intoxicated, was ejected from the bar and was hit by a car
on his walk home.
RULING
Ruling for the P – there is a duty on the hotel to take positive action based on the
following factors: inviter-invitee relationship; hotel was aware of Menow’s
propensity to drink and his intoxicated condition; hotel provided the
intoxication and did so in violation of liquor license/legislation.
RATIO
Positive duty to control the conduct of intoxicated patrons in some cases commercial, inviting people in, knowledge of propensity to drink,
knowledge of intoxication, and violation of liquor legislation.
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CROCKER v SUNDANCE NORTHWEST RESORTS LTD [1988] SCC
FACTS
Crocker, the P, participated in a tubing competition at a ski resort in a very
intoxicated condition and was rendered quadriplegic. Crocker was not
prevented by the resort staff despite his intoxication.
RULING
Ruling for the P – the Sundance resort had: set up an inherently dangerous
competition; was in control of how this event functioned; provided liquor to
Crocker; knew of Crocker’s inebriation and first injury before the second event;
and knew that Crocker’s condition heightened the chance of further injury.
All this points to an inability on the part of Sundance to say it was a ‘stranger’ to
Crocker – it must take responsibility due to the special relationship.
RATIO
Positive duty to control the conduct of intoxicated patrons in some cases
so they don't harm themselves or others under certain conditions:
commercial, inviting people in, knowledge of intoxication.
Interesting look into voluntary assumption of risk (note how this functions – plaintiff must be
clearly seen as assuming the legal risk, not just the physical risk) - Courts have narrowed this defence
to the point of being nearly unusable. As not clear at all that Crocker knew what waiver was about,
no clear signal of assumption of legal risk.
STEWART v PETTIE [1995] SCC
FACTS
4 adults at dinner theatre. One served many drinks. He drinks, drives. Action
against the dinner theatre.
RULING
Ruling for the D – there is no foreseeable risk.
RATIO
Serving patrons past the point of intoxication does not, in itself, pose a
foreseeable risk. Need knowledge conditions.
Commercial houses can be held responsible for injuries to third parties.
Long-term impact of ruling is unclear due to unique circumstances and
convoluted analysis.
Commercial house may have an obligation not only to the people they serve but also the
people who are injured by the people they serve (STEWART v PETTIE).
CALLIOU ESTATE v CALLIOU [2002] AB QB
FACTS
D provides beer as part of return for entry into tournament.
RULING
Ruling for the D – court finds no evidence of knowledge of intoxication of this
guest, who drank and drove.
RATIO
Knowledge conditions are necessary in addition to negligence in serving
alcohol to establish a duty of care and to find liability.
Proximity
Is there a close enough relationship that it would be just and fair that the one party would owe a
duty of care to other? Consider (non-exhaustive) causal connections, representations and reliance,
expectations, statutory regimes, types of interests involved etc. Policy considerations (those arising
from the relationship between the parties) enter here for the first time. See p. 313.
26
CHILDS v DESORMEAUX [2006] SCC
FACTS
BYOB New Year’s party. Defendants knew that DD was a bad drunk, with DUI
convictions.
RULING
Ruling for the D – good example of application of COOPERS test.
TJ: Finds prima facie duty, but negated for policy reasons.
CA: Does not get so far, finding there is insufficient proximity.
SCC: Agrees with CA, insufficient proximity.
SCC downplays knowledge element in two ways: first, focused on other aspects
of the relationship, and second, failed to see that even with the knowledge the
defendants could be said to reasonably foresee the accident/injury.
Court also distinguished this kind of scenario from commercial contexts on
three levels: CH have greater ability to monitor patrons, SH are not heavily
regulated, and SH do not profit from their activities.
RATIO
Social hosts don't have positive duty to control intoxicated.
The effect and operation of stare decisis in the context of duty of care analysis: no need to pursue
COOPERS test unless the action falls under a new category.
Existing categories where proximity has been recognized on p. 306:
 Defendant's act foreseeably causes physical harm to the plaintiff or their property
 Negligent misstatement
 Misfeasance in public office
 A duty to warn of the risk of danger
 Municipal duty to inspect housing developments without negligence to prospective
purchasers
 Governmental authorities undertaken a policy of road maintenance owe a duty of care to
maintain in a non-negligent manner
 Economic loss related to a contract's performance
OTHER SITUATIONS BRINGING IN DUTY TO CONTROL OTHERS
There are many, varied situations. Some examples are:
 Supervising prisoners, or institutionalized mental health patients
 Employers in relation to abuse/harassment in the workplace
 Coaches in relation to participants, with different forms of duty (to warn of risks, for
example)
 Schools controlling various activities within (for example, bullying)
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14. DUTIES TO CONTROL OR PREVENT CRIME
JANE DOE v METROPOLITAN TORONTO COMMISSIONERS OF POLICE [1998] ONT GEN DIV
FACTS
Police knew of a rapist's pattern. Didn't warn women in the area because of
stereotypical concern about hysteria. Jane Doe was victimized by rapist and
sued the police. Focus here is on the claim for a duty to warn, on the police in
relation to possible future victims of crime. No policy within police force at this
time – dealt with on case-by-case basis. The real reason the police did not warn
(the court determines): stereotyped beliefs about women, and fear of not being
able to catch rapist.
RULING
Ruling for the P – sufficient relationship between police and Jane Doe: statutory
duty to prevent crime (protect the public); common law duty to protect life and
property; and requisite knowledge was present.
RATIO
Police were under duty to warn women in this area of threat of rapist (a
group of which Jane Doe was a member).
See in note 5 that the UK is reluctant to go down this path due to policy concerns over ability of
police to conduct their investigations as they determine best (though in case in that note there is
also problem around extent of knowledge, and strength of relationship between unidentified serial
killer and this potential victim).
Also see that Americans are very unlikely to impose civil liability on police forces (note 10). In the
U.S. courts ask whether (a) the police made the situation worse for the plaintiff, or (b) they made
the plaintiff more vulnerable, or (c) the prevented alternative forms of assistance.
Within these narrower circumstances US courts might find liability
 Security guards?
 Private individuals? [landlords and security issues, and neighboring property issues]
 Protection of children from abuse: parents, social workers, police officers, school
administration
 Large class-actions initiated the shift in focus onto the history of abuse in residential schools –
note, though, that the main focus in those cases was in efforts to draw the Crown (and
occasionally the Churches) into the range of liability, through arguments around vicarious
liability
 What of therapists, counselors, and others caring for potentially violent individuals?
Obligations around confidentiality complicate matters
No clear finding in Canada of an obligation on such individuals to breach their
confidentiality-obligations in certain circumstances (which would ground a duty of care),
unlike in America. In SMITH v JONES [1999], the SCC held that a therapist could choose to breach
confidentiality in the public interest to avert a clear risk of imminent death or serious injury to an
identifiable person or group - but there is no obligation to do so.
15. DUTIES TO PERFORM GRATUITOUS UNDERTAKINGS
Once an individual gratuitously undertakes to assist another, distinguish between:
1. situations in which the P is no worse off (from act of assistance), and;
2. situations in which the D worsens the P’s condition
28
No worse off means that the plaintiff was not (as a result of the act of the D) put in a situation
within which their prospects were diminished or impaired – for example, the D did not do
something that prevented the plaintiff from availing him/herself of some other opportunity.
SOULSBY v TORONTO [1907] ONT HC
FACTS
Toronto normally posts a gate attendant at a railway crossing, who opens the
gate when it is safe to cross. One day there is no attendant, and the gate is left
open. The plaintiff assumes all is clear, crosses, and gets hit. Is the city liable?
RULING
Ruling for D – putting the train-crossing system in place was a gratuitous
undertaking, and this did not make the situation of the plaintiff any worse off.
There was an intervening cause – the train – which made the P worse off.
RATIO
If a person undertakes to perform a voluntary act he is liable if he
performs it improperly but not if he neglects to perform it.
‘Worse off’ then refers to the other sort of case.
ZELENKO v GIMBEL BROS INC [1936] US NY
FACTS
P’s intestate took ill in D’s store. D tried to render medical aid, but to no avail. P
argued that if D had left the intestate alone, someone would have summoned an
ambulance.
RULING
Ruling for P - the actions of the defendant made the P worse off.
RATIO
If a person undertakes to perform a voluntary act he is liable if he
performs it improperly but not if he neglects to perform it.
In ZELENKO situation, the plaintiff was made worse off as a result of the gratuitous actions of the
defendant, and furthermore they did not act reasonably in following through on their actions.
In situations where one gratuitously undertakes to assist another, and makes plaintiff no
worse off, there is no liability.
16. DUTIES TO THE UNBORN
Four categories:
1. Pre-conception wrongs
2. Wrongful birth/wrongful life
3. Wrongful pregnancy
4. Prenatal injuries
I. Pre-conception wrongs
X does something negligently to parent(s) of unborn child, that affects the unborn child, and when
born the child suffers from disabilities/harms.
PAXTON v RAMJI [2008] ONT CA
FACTS
Mother’s partner had had vasectomy, doctor did not expect pregnancy. Mother
on anti-acne prescription prior to conception and through pregnancy. Doctor
knew of dangers to fetus of this drug. Infant P argued that doctor should have
prescribed extra birth control.
29
RULING
RATIO
Ruling for D.
TJ: doctor owed duty to potential child, but due to vasectomy, mother’s extreme
interest in dealing with acne, doctor did not fall below standard of care.
CA: Lack of proximity between doctor and ‘future child’ (due to policy concerns
– there should be only one primary obligation on a doctor, and that is to the
mother; conflicting duty would interfere with her autonomy and privacy).
Doctor's duty of care is to the mother, no duty to a future child (a child not
yet conceived).
A (A MINOR) v A HEALTH & SOCIAL SERVICES [2010] NIQB [Northern Ireland]
FACTS
Baby, the D, has different skin colour as a result of negligent use of IVF
treatment.
RULING
Ruling for D – no actionable harm in relation to different skin colour due to
policy considerations: law should not send a (reinforcing) signal to children to
the effect that they are harmed. The skin colour is not a harm – the actions of
others constitute the (non-legally-recognized) harm.
RATIO
Doctors don't have a duty to future children, but to their parents.
II. Wrongful Birth/Wrongful Life ‘Birth’ claim is in relation to mother
‘Life’ claim is in relation to the born-child. Health professional has negligently failed to inform of
risks of birth with disability/defect, pregnancy leads to birth that otherwise would have been
terminated.
Q: What is the loss/injury complained of?
A: In case of wrongful birth, there is a lost opportunity to make informed choice/decision.
In case of ‘Wrongful Life’, some jurisdictions deny sense of the claim [for ex.: Australian case of
MCKAY v ESSEX AREA HA [1982], wherein court challenged idea that born-child could launch claim
on his/her own, on basis of some form of 'harm']. Child is claiming that the harm in this tort is their
very existence, as compared to counterfactual where they don't exist - common law is hesitant to
recognize this harm due to principle of inherent value of life.
In Canada:
ARNDT v SMITH [1994] BCCA
FACTS
Chickenpox in pregnancy. Doctor, the D, failed to warn of risks.
RULING
Ruling for D. Court happy that child’s claim was dropped. Mother’s claim failed
on causation – she could not show that reasonable woman in her position would
have had an abortion if informed of small risks of serious birth defects. SCC
upheld this finding on causation (BCCA had ordered new trial on this issue – SCC
felt analysis by TJ was adequate).
RATIO
1. In wrongful birth cases, must establish causation of a lost opportunity
to make different choice.
2. No clear SCC decision on wrongful birth.
BOVINGDON (LITIGATION GUARDIAN OF) v HERGOTT (2008) Ont CA
FACTS
Fertility drug leads to twins. Doctor failed to warn of increased chances of
multiple pregnancies. Birth of twins tied to premature birth, ensuing disabilities.
30
RULING
RATIO
Ruling for P. TJ accepts that mother would not have taken fertility drug if she
had known of risks. Twins also succeed in claim. But note the basis of success:
TJ sees doctor’s actions as generating a ‘pre-natal injury’. This is a different sort
of action – so TJ finds no ‘wrongful life’ in this case. TJ sees twins as disabled as
result of failure to warn mother of risks.
CA reexamined conceptual structure of the arguments of the twins, finds their
claim is essentially one for ‘wrongful life’, dismisses on that basis. Finds there
should be only one duty on doctor in relation to the mother, to fully inform of
material risks. It would be inconsistent, they reason, to add second duty on the
doctor (to the children) to have stopped the mother from taking the fertility
medication (so that the children would not have then been born = wrongful life).
Also, this second duty would interfere with the mother’s autonomy.
Only one duty on doctor in relation to the mother, to fully inform of
material risks.
III. Wrongful Pregnancy
Parents take steps to avoid pregnancy, but due to negligence of health professionals, a child is
conceived (but healthy). If terminated (for example, if sterilization procedure or abortion
negligently performed, and woman deems it necessary to undergo second procedure), woman can
recover for economic loss, pain and suffering, and emotional harm. If not terminated courts struggle
with determining what the ‘loss’ might be (since the comparison is between world without a child
and world with a healthy child).
Some jurisdictions (i.e., Australia) have begun to recognize impact on parents of raising even
healthy child – for example, changes to lifestyle, loss of other opportunities.
House of Lords (UK) turned to ‘conventional award’ of $30k for violation of right to choose
size of family.
UDALE v BLOOMSBURY AREA HEALTH AUTHORITY [1983] UK
(No longer followed in the UK for its ratio, but provides summary of some of the reasons courts
provide as to why the common law should not allow recovery for costs of raising a child)
- the undesirability of a child learning that a court has declared its birth to be a mistake;
- little or no damages would be awarded for loving mothers but generous compensation
would flow to those who disparaged and rejected their child;
- physicians would be under pressure to encourage late abortions to avoid claims;
- the birth of a child is a blessing and an occasion for rejoicing.
In Canada:
Courts tend to hold that damages may be recovered, but confined to immediate damage to mother,
loss of consortium for father, expenses and loss of earnings immediate to the pregnancy, plus any
additional costs if child born with disability, or to parents with disability. General principle: healthy
child is a positive outcome, raising of healthy child does not constitute legal harm.
ROE v DOBBS [2004] BCSC
Recent decision that mentioned such losses as ‘loss of other opportunities’, but focused award on
‘distress’ to mother, and so placed award under non-pecuniary heading.
31
KEALEY v BEREZOWSKI [1996] ONT GEN DIV
FACTS
A couple, the P, had a third child when a tubal ligation failed because the clip
was incorrectly applied.
RULING
Ruling for D – court characterized child-rearing costs as pure economic loss.
RATIO
Child rearing costs may be recoverable when primary motivation in
limiting family was financial.
KYLE’S OPINION TIME
Does this make sense? Yes. Why should parent’s motives be determinative? Because the original
motives of the parents are the primary determinant of the extent of the harm of an unwanted child!
Will parents respond by claiming their primary motive was financial? Yes, but this is a common
issue in torts.
Generally, Canadian law not settled in this area.
IV. Prenatal Injuries
Common law recognizes that person may owe duty to avoid negligent actions before birth of a child
that might result in loss upon birth. So, for example, someone negligently causing auto accident may
be liable to the unborn child in accident, if that child is born with injuries as a result of this accident.
Challenge lies with situation where the mother is the party that negligently causes injury to unborn
child.
DOBSON (LITIGATION GUARDIAN OF) v DOBSON [1999] SCC
FACTS
P was injured in utero due to negligent behaviour of the mother – pursued
friendly action against mother in order to recover from her insurance company.
RULING
Ruling for D – prima facie duty found but negated by policy considerations:
intrusion on women’s autonomy, possible liability for mundane activities,
choices outside the mother’s control may be actionable (addiction), subjecting
pregnant women to unacceptable level of scrutiny.
RATIO
There is currently no duty of care owed by the mother to her unborn child.
V. Issues in this area of the law
Wrongful Life: Courts reluctant to find any form of ‘damage’ when healthy child born, when claim
advanced by the child him/herself.
Wrongful Pregnancy: courts reluctant to allow parents to recover for full costs of raising child,
when child is born healthy (‘blessing’, not loss)
Prenatal Injuries: Courts create distinction that poses problems (third party versus mother). Is
there really concern over ability to draw line between tortious and non-tortious conduct? Would it
be impossible to calculate losses? Would claims generate unacceptable tension in family? Should
the state intervene to protect the unborn foetus? What are some possible and reasonable
legislative solutions? What might be best options and recommendations?
32
17. NERVOUS SHOCK (OR PSYCHIATRIC HARM)
Canadian courts traditionally restrict ‘nervous shock’ to events that manifest in some form of
physical, psychiatric or psychological disorder. Example: BEAULIEU v SUTHERLAND [1986] BCSC.
Why is there a struggle in this area?
 Difficult to assess harm
 Fabrication of torts
 Flood gates opening
Up until DULIEU, could only recover for psychiatric harm if it was accompanied by physical harm.
A tracing of the law as it has evolved through the 20th century:
DULIEU v WHITE AND SONS [1901] UK CA
RATIO
Can recover when there is reasonable fear of immediate physical injury even if injury doesn't occur.
HAMBROOK v STOKES BROTHERS [1925] UK CA
FACTS
Mother watches children get into accident.
RATIO
Can recover when there is reasonable fear of immediate physical injury to
yourself or your immediate family members.
MCLOUGHLIN v O’BRIAN [1982] UK HL
FACTS
Several hours after accident, woman visits injured family members at hospital.
Switch from slight opening of tort to adopting basic approach of negligence:
reasonable foreseeability. Have to go beyond just reasonably foreseeability need to further restrict the range of people who can sue because RF is too broad.
RATIO
Was it reasonably foreseeable on the part of the defendant that the close
family members of the injured parties would suffer psychiatric harm? If
so, then consider the following 3 factors (analyzed in relation to the
particular facts):
1. the class of persons whose claims should be recognized
2. the proximity of such persons to the accident, and
3. the means by which the shock is caused
What is the purpose of using these three factors? To limit recovery.
ALCOCK v CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1991] UK HL
FACTS
Soccer riot in UK. 95 people crushed to death. Class action suit of parties who
were not personally injured or killed. Illustrates the 3 factors being put to use
(in a different way?): relational, locational, temporal proximity.
RULING
Discussion centers on strength and proximity of relationships. Primary category
in McLoughlin was immediate family, but in this case discussion acknowledges
categories but analyzes cases on a factual basis - how strong was the
relationship, based on the facts. Third consideration was also analyzed on a case
by case basis. Court leaves open the possibility that electronic communications
can cause immediate shock.
RATIO
A person suffering nervous shock must have reasonable proximity
(relational, locational and temporal) to the event that caused the shock in
order to claim for damages.
33
ALCOCK has been accepted in Canada for the proposition that nervous shock is an established
category of negligence. Aside from that, the law of nervous shock in Canada is inconsistent.
MUSTAPHA v CULLIGAN CANADA [2006] ONT CA
FACTS
Mustapha had purchased bottled water from Culligan for 15 years. The last time
he witnessed the delivery he saw a dead fly, and parts of another dead fly in one
of the unopened bottles. This image severely scarred him, causing significant
psychological harm. He is suing for the psychiatric harm resulting from the
negligence of Culligan claiming he could no longer drink, shower, or have sex.
RULING
Ruling for D – P was successful at trial, but this was overturned by the Court of
Appeal stating that the injury was not reasonably foreseeable. Not comfortable
with the primary/secondary victim distinction, but allows that the
foreseeability rule is subject to limits determined by policy considerations.
RATIO
 Can recover if physical harm was reasonably foreseeable, even if
physical harm doesn't manifest.
 Can recover for psychiatric harm if all requirements for negligence are
met, in addition to proximity considerations in ALCOCK.
 Psychiatric harm will be seen as too remote if the breach would not have
resulted in the psychiatric harm of a person of “reasonable fortitude”.
VANEK v GREAT ATLANTIC & PACIFIC CO OF CANADA [1999] ONT CA
FACTS
Daughter drank a small amount of contaminated juice, but suffered no harm.
Parents pursued action based on psychiatric harm.
RULING
Ruling for D – foreseeable consequences are consequences that the “event and
its aftermath might engender in the reasonable person”. Described as a
‘threshold’ test, and so not in conflict with the thin-skull or egg-shell skull
doctrine. P displayed a ‘particular hypersensitivity’.
RATIO
Recovery for psychiatric harm requires:
1. psychiatric damage was so serious that it resulted in a recognized
psychiatric illness
2. psychiatric damage was foreseeable consequence
MUSTAPHA v CULLIGAN CANADA [2008] SCC
RULING
Upheld Court of Appeal decision, but on a different basis. SCC shifted focus in
this kind of case from question around duty of care to question around
remoteness. Found a duty in this context (on manufacturers to consumers – the
very sort established in DONOGHUE v STEVENSON). But then examined the
extent of this duty, and held that the damages claimed would be too remote (as
not reasonably foreseeable, due to the ‘hypersensitivity’ of the plaintiff) for the
defendant to be liable for them.
HEALEY v LAKERIDGE HEALTH CORPORATION [2011] ONT CA
FACTS
2 separate outbreaks of non-latent Tuberculosis in health facility. Evidence that
outbreaks were handled negligently, that this led to possibility of infection in
others. Health facility issued warnings to those who might have been infected,
suggested testing to check for infection. Several classes of individuals sued,
arguing that they suffered nervous shock.
RULING
Ruling for D – court found that a duty of care fell into well-recognized category:
hospitals should take steps to prevent TB transmission. Whether the plaintiff
has sustained compensable damages is a separate and distinct issue not to be
34
RATIO
conflated with the question of whether a duty of care exists. This analysis is
problematic because it allows an analysis of duties of care without consideration
of the actual harm suffered - seems to contradict a fundamental principle of tort
law that the particular type of injury must be foreseeable (p. 415). There are
strong policy reasons for imposing some sort of threshold.
The weight of authority supports a recognized psychiatric illness as a
condition for liability.
Not clear what the approach to psychiatric harm is in Canada. It’s clear that Canadian courts don't
like UK approach in ALCOCK or primary/secondary decision, and only want to allow recovery
where psychological harm is serious.
RHODES v CNR [1990] BCCA
FACTS
Son died in a train crash in Alberta, caused by the negligence of the D. The P, the
dead son’s mother, heard of her son’s death from other persons and did not see
her son’s body.
RULING
Ruling for D. Because the mother heard of her death from other persons and
was not at the scene of the accident, the court refuses to recognize liability for
her psychiatric harm as it was either not sufficiently proximate or reasonably
foreseeable.
RATIO
MACFARLANE: Adopts proximity considerations of relational, locational
and temporal proximity from ALCOCK to limit liability.
WALLACE: Proximity provides the evidentiary base from which the court
may conclude, as a question of law, that there was sufficient reasonable
foreseeability to give rise to a duty of care.
WALLACE: Excludes liability based on the aftermath theory.
DEVJI v BURNABY [1999] BCCA
FACTS
Daughter killed in traffic accident. Family brought to identify body at hospital,
which was bandaged and bloodied but not significantly disfigured, and each
suffers symptoms of psychological damage.
RULING
Ruling for D – test for liability for nervous shock is based on reasonable
foreseeability, restricted by control mechanisms from RHODES. The initial shock
was learning of the daughter’s death, and the grief, sorrow and regret suffered
by viewing her body are not actionable.
RATIO
Damages for psychological injury lie only where the injury is sustained in
the “aftermath” of the incident (implicit adoption of temporal proximity
control mechanism from ALCOCK).
35
18. HEALTH PROFESSIONAL’S DUTY TO WARN
REIBL v HUGHES [1980] SCC
FACTS
D was in the process of competently performing an endarterectomy on his
patient, the P, when P suffered a massive stroke. Paralysis and impotence
resulted. P alleged that he had not truly given informed consent, and as such the
surgery constituted battery. Although P was aware that the surgery was not
without risks, he felt that D had implied that the risks of not having the surgery
were greater. P was eighteen months away from obtaining a lifetime pension,
and the stroke prevented him from earning that pension. He stated that if he had
been aware of the risks in the surgery, he would have waited the year and a half
to earn his pension before the procedure, even if it meant a shorter life.
RULING
Ruling for P – D did not properly inform the P of the risks involved in surgery. In
relation to a health professional’s duty to warn, a modified objective test is
appropriate:
What would a reasonable person, in the situation of the P, have done if
properly informed?
This modified test is necessary because the court can’t trust the common test for
causation in these circumstances by asking the P what they would have done if
properly informed – there is too much incentive to lie.
RATIO
1. Court decided that cases where the patient does not consent to actions
of the doctor, or consent exceeded, or consent obtained through fraud,
battery is an appropriate legal recourse. Could also use battery if there
is intent to do something wrong.
2. If the problem is with doctor’s failure to provide all relevant
information about the procedure in question, battery is not the proper
action – rather, the proper civil law avenue is that of negligence (in
failure to provide adequate information, or to warn), because the
doctor has not done what a good doctor would. This duty exists in
addition to the general obligation doctors fall under to exercise
reasonable care in treating patients.
What counts as a material risk depends for the most part on two factors:
1. seriousness of the possible harm that might ensue, and
2. probability of harm that might ensue.
Additionally, doctors must consider the impact of failure to warn of particular risks in relation to
the particular patient they have before them. The patient can waive their right to full information,
but must do so clearly and to the doctor.
How is the test from REIBL meant to function? From para 9, 425 of ARNDT v SMITH [1997] SCC
Which aspects of the plaintiff’s personal circumstances should be attributed to the
reasonable person? There is no doubt that objectively ascertainable circumstances,
such as a plaintiff’s age, income, marital status, and other factors, should be taken
into consideration. [The Court in REIBL] … went on and stated that “special considerations”
affecting the particular patient should be considered, as should any “specific questions”
asked of the physician by the patient. … [T]his means that the “reasonable person” who sets
the standard for the objective test must be taken to possess the patient’s reasonable
beliefs, fears, desires and expectations. Further, the patient’s expectations and concerns
will usually be revealed by the questions posed. Certainly, they will indicate the specific
36
concerns of the particular patient at the time consent was given to a proposed course of
treatment. The questions, by revealing the patient’s concerns, will provide an indication of
the patient’s state of mind, which can be relevant in considering and applying the modified
objective test. [emphasis added]
Developments since REIBL:
HAUGHIAN v PAINE [1987] SASK CA
FACTS
P underwent disc surgery that left him paralyzed. A second operation partially
alleviated the paralysis. P argued that the D did not give him full discussion of
the options: (1) leaving the ailment in question untreated or; (2) undertaking
‘conservative management’. No evidence that the existence of options was
adequately discussed. Also, doctor did not discuss possibility of paralysis as
outcome of surgery, on the grounds this was a very remote possibility.
RULING
Court extends REIBL: statistics are only one matter to consider when
determining ‘materiality’.
The court blends these two considerations together “These two elements of
informed consent have … a strong bearing on each other.”
1. Doctor should have discussed alternatives
2. In light of alternatives, doctor should have brought up very slight chance
of paralysis
RATIO
Informed consent requires the adequate disclosure of medical risk with
sufficient information to the person consenting.
Note: many cases listed in note 3 (page 423) illustrate how the scope of ‘material risk’ has
broadened (though there is still some limit).
19. MANUFACTURER’S DUTY TO WARN
Contrast the treatment of causation in health professional cases to causation in the context of
manufacturer’s duty to warn.
HOLLIS v DOW CORNING [1995] SCC
FACTS
Dow Corning manufactures breast implants. Ms. Hollis makes use of the
product. Due to design/manufacturing defects they rupture. She suffers serious
medical problems (and has to have several surgeries to remove the implants). It
seems Dow Corning knew of the dangers for the kind of user Ms. Hollis was.
Would Ms. Hollis have consented to the operation if properly warned of the
risk? What test should be used here?
RULING
CA used test from REIBL: would RP in P’s circumstances have acted otherwise?
SCC disagrees – this case is one of product liability, not medical advice.
LaForest J. explains (at page 675) why the distinction is important:
. . . the duty of the doctor is to give the best medical advice and service he
or she can give to a particular patient in a specific context. It is by no
means coterminous with that of the manufacturer of products used in
rendering that service. The manufacturer, on the other hand, can be
expected to act in a more self-interested manner. In the case of a
manufacturer, therefore, there is a greater likelihood that the value of a
product will be overemphasized and the risk underemphasized. It is,
therefore, highly desirable from a policy perspective to hold the
37
RULING
manufacturer to a strict standard of warning consumers of dangerous
side effects to these products.
Dow Corning argues that:
(a) the warnings it gave to Dr. Birch were adequate to satisfy its duties to
Ms Hollis, and;
(b) even if it did breach its obligations, this did not cause her injuries – her
physician’s negligence did (competing but-for test).
Court rejects (a) because manufacturers have more knowledge of defects
and risks of using the product. The imbalance is rectified by imposing a duty of
care on manufactures to warn users of risks, even after the initial sale of the
good, so the standard of care for medical products is high. When there is a
learned intermediary, duty of care to consumer can transfer from manufacturer
to intermediary. However manufacture still has duty of care to the intermediary.
Dow’s warning to surgeon was inadequate. Dow had knowledge of risk of postsurgery rupture (Dow had received a number of unexplained rupture reports).
Court rejects (b) because it would require the P to prove a hypothetical.
There is no onus on the plaintiff in this case to prove that surgeon would have
warned her if Dow had properly warned surgeon.
1. Manufacturers are held to a higher standard of care because of
informational asymmetry and their self-interest.
2. Manufacturer must, in essence, put the learned intermediary in the
same state of knowledge they are in vis-à-vis dangers/risks.
3. In application of but-for test, manufacturers cannot escape liability by
the negligence of alternate hypothetical actors.
COMPETING BUT FOR TESTS
In cases where multiple independent negligent parties cause an injury, applying the but-for test
individually creates a perverse result where no party is held responsible. This is a conceptual and
procedural problem with but-for test. In some contexts, solution could be to reverse onus of
causation onto defendants to disprove they were a cause, as in COOK v LEWIS. Procedural solution
could be to combine actions against negligent parties so that the application of but-for test
implicates them as well as exonerates them – but this would complicate other aspects of the action.
The real concern here is the possibility of the general test for causation running into conceptual
problems (middle paragraph, 432). Possible problems or complications that can come up around
the duty to warn:
 Note that the duty is such that manufacturers are obliged to warn about material risks
they know of or ought to know of - objective standard incentivizes research into
possible dangers.
 Note that the duty can extend to ‘speculative’ knowledge about dangers – but how far
and to what extent does this reach? See discussion of known cases of rupture in 1983
in HOLLIS – what if Dow Corning had only had reports of a few ruptures, and only had
a newly-formed and highly speculative suspicion that non-traumatic activity might in
fact cause a significant number of ruptures? Court says the duty of care can extend
to speculative knowledge.
One might still wonder, however, why there is a more defendant-friendly test in the context of the
duty to warn that falls on health professionals. OPINION: the court is more willing to defer to the
expertise of health professionals than manufacturers.
38
LAMBERT v LASTOPLEX [1971] SCC
FACTS
The P, a mechanical engineer, used Lastoplex's lacquer sealer in his basement
when he was installing new floors. There were warnings on the can that risked
that the product was flammable, and should be kept away from open flame. The
P did not turn off his furnace or his hot water heater, both of which had natural
gas pilot lights, as they were in a different room. The vapor of the sealer caused
an explosion that burned the P and damaged the house. The warning labels on a
competitor's product were more direct and stated to turn off all pilot lights
before using. TJ found for the P but this was overturned at appeal.
RULING
Held for the P. The court finds that manufactures owe a duty of care to the users
of their products and this duty does not end simply because a warning was
given. He says that warnings must be very explicit and general warning will not
suffice to eliminate liability where the likelihood of injury may increase
depending on the surroundings.
RATIO
Manufacturers have a duty to warn in situations where:
1. The product is for use by general public,
2. The product dangerous when used as intended,
3. The manufacturer knows of danger, and
4. The public does not have awareness of danger.
America deals with manufacturer's liability more forcefully by imposing strict liability.
Q: What if the consumer of the product misuses the product?
LEM v BOROTTO SPORTS LTD [1976] AB CA
FACTS
The P injured himself while using a shotgun shell re-loader. The product did not
appear to be difficult to use, provided the instructions were followed.
RULING
Held for the D – the court assumed that the P was aware of the warning in the
instruction booklet, even though he had not read it.
RATIO
Manufacturers and suppliers have a duty to warn about ordinary uses and
about reasonably foreseeable uses (even if these are ‘misuses’).
Conversely, there are large sets of uses that might count as misuses, but
which pose such obvious risks that the manufacturer is not under an
obligation to warn of them (i.e., that a sharp blade might cut you).
GOOD-WEAR TREADERS v D & B HOLDINGS LTD [1979] NSCA (NOTE 20)
FACTS
Supplier knew purchaser was going to ignore warnings about use of re-treaded
tires for front of a heavy gravel truck, sold them anyway. One of the unsuitable
tires blows out, truck kills 3 people.
RULING
Held for the P – the warnings absolved the supplier of liability to the purchaser,
but not to third parties. The supplier should have sold the tires to someone he
knew would misuse them and thereby endanger other users of the road.
RATIO
Supplier found to have obligation not to sell to purchaser that he knew
would misuse the product, when that might create danger to others. Duty
was ultimately on the supplier, in relation to the third-parties injured, to
control the activities of another (the purchaser).
39
20. THE STANDARD OF CARE
A. Introduction
The standard of care is essentially how people should and should not act in an interactive society.
M’ALISTER (OR DONOGHUE) v STEVENSON [1932] UK HL
‘… you must take reasonable care to avoid acts or omissions which you can reasonably
foresee will be likely to injure your neighbor’
Once a duty of care has been found, the question shifts to the quality of the action itself - did it meet
the standard of behaviour set by the law in that context? If not, it was negligent (or careless)
behaviour.
In negligence, the focus is on the conduct of the person:
 not directed toward the mental state of the individual
 not directed toward a subjective assessment of the person’s conduct
 directed toward conduct, when measured against an ‘objective’ standard – the ‘standard of
care’
The standard of care is a question of law – whether the standard was breached was a question of
fact (breach). This is relevant for appeal proceedings and the standard of review.
ARLAND v TAYLOR [1955] ONT CA
It is not proper for the trier of fact to consider, after the event, what s/he would have done in the
circumstances. In other words, don't tell the jury to ask themselves "What would you have done?"
The standard is supposed to be objective and based on the hypothetical reasonable person.
RYAN v VICTORIA [1999] SCC
Conduct is negligent if it creates an objectively unreasonable risk of harm… The measure of
what is reasonable depends on the facts of each case, including:
1. the likelihood of a known or foreseeable harm,
2. the gravity of that harm, and
3. the burden or cost which would be incurred to prevent the injury.
In addition, one may look to external indicators of reasonable conduct, such as custom,
industry practice, and statutory or regulatory standards.
B. Degree of Risk Contemplated
What, exactly, is the standard of care in particular circumstances?
BOLTON & OTHERS v STONE [1951] UK
FACTS
P hit by cricket ball while wandering down quiet road. Should the cricket
ground have done something to prevent this?
RULING
Held for the D – there is no special duty of care owed by land owners to persons
on an adjoining highway. The landowner is held to the standard of care of a
reasonable, ordinary, prudent person.
If the land owner's conduct is not unreasonable, he has not breached any duty to
his neighbor. What a person must not do is to create a risk that is substantial.
What is a substantial risk? Things that aren't fantastically improbable, but
don't have to be likely or probable. Have to consider the severity of the
consequences as well as their probability in determining if a risk is substantial.
RATIO
A reasonable person should be concerned with any material risks of their
behaviour.
40
Two factors contributing here to determine the standard of care:
1. How remote the chance that a person might be struck
2. How serious the consequences are likely to be
C. Cost Avoidance
How does one act in face of determination of material/substantial risk? We have, in effect, one side
an equation meant to relate two concerns: material risk and cost of avoidance. In other words, what
about risk mitigation strategies?
VAUGHN v HALIFAX-DARTMOUTH BRIDGE COMM [1961] NSSC
FACTS
Bridge operated and maintained by D was painted. Flecks of paint blew off by
wind onto nearby cars. Owner of one of those cars sued in negligence. D argued
that it took all necessary measures to prevent or minimize injury to the P.
RULING
Held for the P – while the D took some steps to mitigate the risk to the P, there
were a number of other steps they could have taken at little cost: posting signs,
warning car owners, wiping paint off cars promptly.
RATIO
A person is liable in negligence when they do not take reasonable steps to
address/avoid the risks of their actions.
In UNITED STATES v CARROLL TOWING CO [1947] (531), we see an attempt to convert this into a
mathematical equation (Learned Hand J):
“If the probability be called P; the injury, L; and the burden, B; liability depends on
whether B is less than L multiplied by P: i.e., whether B is less than PL.”
This is a shift from BOLTON, as the HL did not concern itself with measurement of the burden and
how this should intersect with the probability of harm times the severity of possible harm:
“If cricket cannot be played on a ground without creating a substantial risk, then it
should not be played there at all.” [520]
This approach becomes problematic if the risk mitigation strategy is more expensive than the
eventual litigation, especially when people die...
D. Application
PARIS v STEPNEY BOROUGH COUNCIL [1951] UK HL
FACTS
Man was employed hammering metal. Company knew he only had one good eye.
Accident occurs, metal gets in remaining good eye.
RULING
Held for the P – HL overturned a lower court ruling that the provision of goggles
for a one-eyed worker was not required (under the proper standard of care), as
not a ‘trade’ practice. Lower court had held that the P’s disability would only be
relevant in determining the standard of care if it increased the risk of harm. But
Bolton had made it clear that an increase in the seriousness of potential harm
could also change the finding of the standard of care. Here HL felt there was
standard of care in relation to the one-eyed worker that might be different from
that typically owed to two-eyed workers.
RATIO
Employers have a duty to take reasonable care for worker safety with
particular regard to each of their employees’ circumstances.
41
E. Social Utility
One final consideration that can be, on occasion, added into the mix:
PRIESTMAN v COLANGELO AND SMYTHSON [1959] SCC
FACTS
Police chase in Toronto. While travelling at high speeds, the officer in the front
passenger seat leaned out the window and fired at the rear tire of the suspect's
car in an attempt to stop it. The bullet hit the car frame, ricocheted and struck
the driver, rendering him unconscious. The car went out of control, mounted the
curb, hit a hydro pole, and struck and killed two saps waiting for the bus.
RULING
Held for the D – Police officer relieved of contributory negligence by Locke J., on
basis that his acts were “... in the present matter ... reasonably necessary in the
circumstances and no more than was reasonably necessary.” The
‘circumstances’ went beyond the fact he was a police officer acting under
authority of s. 25 of the CCC. Rather, important factor was that the purpose of
the D’s acts was to apprehend a criminal before his speeding car could get to a
crowded intersection.
RATIO
Social utility considerations can shift the standard of care.
Social utility considerations are also at work in non-police context in
WATT v HERFORDSHIRE COUNTY COUNCIL [1954] UK CA
FACTS
P, a firefighter, responded to an emergency call requiring the use of a special
jack, that had only be used in the last 15 years. The truck that was fitted for
carrying the jack was unavailable and so the jack was loaded in the rear of
another vehicle. When the driver braked suddenly, the jack became dislodged
and seriously injured the P.
RULING
Held for the D – while the D knew the heavy jack could not be adequately
secured in vehicle, they had to use it to get to the emergency. The fact it rolled
and injured the P was excused as “Commercial end … is very different from the
human end to save life or limb.” We might, in some circumstances, need to
modify ‘equation’ from Learned Hand at p. 531: on some (rare) occasions the
burden (B) may also take into account the ‘object’ or ‘purpose’ of the acts.
RATIO
Social utility considerations can shift the standard of care.
LAW ESTATE v SIMICE [1994] BCSC
FACTS
P sued the defendant doctors in negligence, claiming that her husband died
because of their failure to provide timely, appropriate and skillful emergency
care. Among other things, they had not initially taken a CT scan of the patient.
The case dramatically raised the issue of the allocation of limited and costly
medical resources.
RULING
P argued that it was unreasonable as a part of the treatment not to have the
scan done early on. D argued that the scan was too expensive, and their
responsibility to be a steward of healthcare resources outweighed their duty to
the P. Court rejected this argument, held for the P, as the severity of the harm
that can occur to an undiagnosed patient is far greater than the financial harm to
the healthcare system of scheduling an unnecessary CT scan.
RATIO
A physician’s responsibility to individual patients outweighs their
responsibility to the medical system overall.
42
21. EXCEPTIONS TO THE STANDARD OF CARE
A. Mental (And Physical) Disabilities
CARROLL v CHICKEN PALACE LTD [1955] ON CA
Would the reasonable person test for determining the defendant's duty of care take into account
visual disability? Yes, adjust the standard of care.
HALEY v LONDON ELECTRIC BOARD [1965] UK HL
FACTS
Workers leave hole with ankle-high warning, blind person falls in and is injured.
RULING
Held for the P.
RATIO
Court found that there is a single standard for the appropriate duty of
care, but it includes people with physical disabilities – in other words,
higher barriers in this case.
WENDEN v TRIKHA [1991] AB QB (OVERRULED)
FACTS
The D suffered from the delusion that his soul was being taken away by a comet,
and that his car was a time machine. He sped through an intersection; the P was
hit and seriously injured.
RULING
Held for the P. In criminal negligence acquitted on grounds of insanity. But
liability could be established in the law of torts, as proof is just on BOP.
The expert psychiatrists held that:
 Trikha did not understand nature and quality of his acts, and
 nor did he understand that he owed a duty of care to others (not relevant)
 Even if he did understand, he was incapable of discharging this duty
The court found that the delusion (even though it faded after) submerged the
D’s sense of reality – but this was not sufficient to vitiate liability because:
 Tort law is not concerned with punishing the tortfeasor, or with
determining culpability, but with compensation
 The standard applied is external, that of the reasonable person
 There are exceptions (young and physical disability), but these are extralegal matters of policy
RATIO
Pre-2001 approach in Alberta made no special accommodations for
defendants with mental illnesses.
At that time (1991) there was only one other approach in Canada for dealing with mentally disabled
Ds. Because negligence presupposes ability for rational choice-action, if D is mentally disabled such
that cannot choose (or act), they will be released from liability (seen in HUTCHINGS v NEVIN, which
had followed BUCKLEY AND TTC v SMITH TRANSPORT LTD).
FIALA v CECHMANEK [2001] AB CA
FACTS
This case served to bring the law in Canada into a more coherent state. The
court overturns earlier principle/approach from WENDEN. MacDonald, one
of the D, was running, and had a manic episode (due to his bipolar disorder). He
jumped on roof of other D’s (Cechmanek) car, broke through sunroof and
started choking him. Cechmanek inadvertently pressed on gas pedal and ran his
car into P, who was injured.
RULING
Held for the D, based on an underlying general principle in torts: a negligent act
must be shown to have been the conscious act of the defendant’s volition.
43
RATIO
In order to adjust the standard of care, the D must show either of the
following on BOP:
1. As a result of their mental illness, they had no capacity to understand or
appreciate the duty of care owed at the relevant time; or
2. As a result of mental illness, the D was unable to discharge his duty of
care as he had no meaningful control over his actions at the time the
relevant conduct fell below the objective standard of care.
If so, then standard of care doesn’t apply to the D as they aren’t a full actor.
CORRECTIVE v DISTRIBUTIVE JUSTICE
Do we concern ourselves within law of torts with notion of ‘wrong’ and the need to meet a wrong
with a ‘correction’, or do we concern ourselves with the notion of distributing goods amongst the
members of society (shielding everyone from the devastating effects of a sudden (great) loss)?
Arguments for a single objective standard (distributive justice):
1. when two ‘innocent’ persons involved in accident, the one that caused the accident should
pay (falls under general compensation vision of tort law)
2. practical difficulties in determining whether and to what extent mental disability made it
difficult for the D to meet their obligations – to allow exception invites fraud
3. using objective standard would encourage care-givers to be more vigilant (to avoid liability)
4. slippery slope – allowing for variation moves us away from objective standard
Arguments for modified standard (corrective justice):
1. The law of torts still grounded in notion of fault – we do not want to say so quickly that we
have two ‘innocent’ persons involved in an accident
2. Only when both are clearly free of fault in sense of acting in accord with standard do we
want to say they are both innocent
3. Children are excused if incapable of acting negligently (lack capacity = lack sufficient
capacity to form judgments about reasonable care)
4. Courts work with instances of sudden physical incapacity – should be capable of dealing in
like manner with mental incapacity.
5. Medical expertise is now sufficiently advanced to deal with practical issues around
determining extent of mental difficulties.
6. Caregivers should be encouraged to be more careful through development of liability issues
around their actions (directly).
7. this treatment would actually encourage a more dignified societal perspective on the
mentally disabled – does not lead to situation where society thinks ‘this person is escaping
liability’, encourages people to look more deeply into why they are able to escape liability.
B. The Young
JOYAL v BARSBY [1965] MB CA
FACTS
Truck approached child with horns sounding. Child, 6 years old, moved towards
truck without looking for traffic in other direction. D slowed. After thinking the
child stopped, kept driving. Child ran into D’s vehicle and was injured.
RULING
Held for the P. The child appeared not to be above average intelligence. They
were trained about highway but less experienced than city children. P’s actions
were reasonable for that age, intelligence and experience.
RATIO
Children who lack above average intelligence and experience cannot be
held contributorily negligent.
44
MCELLISTRUM v ETCHES [1956] SCC
FACTS
Boy of 6 years killed crossing the street.
RULING
Two levels to the inquiry.
1. The court looks at the particular child and asks if s/he is capable of
being found negligent. That is, the court does a completely subjective
examination of the child and asks if this individual has the abilities
required to know what duties are expected of him/her, and how to
discharge these duties – whether it makes sense, in other words, to hold
this child responsible for his/her acts.
2. The court asks whether the child was negligent, and if so to what degree
(assuming a positive answer to the first question). Key question at this
level: what standard to apply. Test: look to “a child of like age,
intelligence and experience” - a heavily modified objective standard.
RATIO
The standard of care is based on a hypothetical reasonable child of like
age, intelligence and experience.
Courts often struggle with this notion, for it requires that they construct a hypothetical reasonable
person unique to each case, one built on the model of this child, with this age, this level of
intelligence, and this amount of experience.
NOTE: when children engage in ‘adult’ activities they are held to objective reasonable person
standard (RYAN v HICKSON [1974] ONT HC: 10-12+ years old, driving ATVs and held liable). Why?
Because they are engaged in a dangerous activity and so should be held liable. What qualifies as
adult activities? Generally, mechanized vehicular transport. The parent could also be held liable,
regardless of what standard the court applies.
C. Professional Negligence
Duty of care is determined by the average competence of a person in that profession. How does the
court determine this, as non-members of the profession in question? For the most part, courts will
defer to the experts in that field.
WILSON v SWANSON [1956] SCC
Surgeon undertakes that he possesses the skill, knowledge and judgment of the average of
the special group or class of technicians, and will faithfully exercise them.
WHITE v TURNER [1981] ONT CA
“… if [the defendant’s] work complies with the custom of his confreres he will normally
escape civil liability for his conduct, even where the result of the surgery is less than
satisfactory”
45
TER NEUZEN v KORN [1995] SCC
FACTS
Ter Neuzen (the P) contracted HIV as a result of artificial insemination. The risk
of such infection was not widely known when the procedure was performed.
Korn (the D physician) was responsible for screening semen donors. Expert
evidence established that the physician adopted standard medical practice.At
trial, the jury found Korn liable. On appeal, the court held that the jury was not
acting judicially in finding that doctor should have known the risk.
RULING
Held for the D. Doctor complied with standard practice (that was beyond the
understanding of the lay person and not obviously negligent), can’t establish
liability on this basis. Insufficient evidence regarding existence of a standard
practice for screening for STIs. If there was no standard practice, then the jury
could find that the defendant had been careless. Courts do not have jurisdiction
to settle scientific disputes or choose among divergent opinions. They can only
find fault where a violation of universally accepted rules of medicine has
occurred (conformity with general practice / common practice). This deference
to the medical profession does not extend to allowing medical professionals
determine when there is a duty to warn, as the patient’s interests are crucial in
answering this question.
RATIO
 Where a procedure involves difficult questions of medical treatment or
complex technical matters that are beyond the ordinary understanding
of a judge or jury, it will not be open to find a standard practice negligent.
 HOWEVER, if a standard practice fails to adopt obvious reasonable
precautions which are readily apparent to the ordinary finder of fact,
then it is no excuse for the practitioner to say that they were merely
conforming to the common practice.
WALDRICK v MALCOLM [1991] SCC
FACTS
Supposedly (claimed by the D) there was a ‘local custom’ not to put sand or salt
on icy parking areas. Impact on the standard of care determination? Creates at
least a modified objective test. Argument for taking custom seriously: this
injects a certain element of community standards, based on community
expectations, into the law.
RULING
Held for the P. A general custom does not necessarily act to decisively
determine the issue of negligence. The court has the responsibility to evaluate
customs, not to blindly accept them. If it is unreasonable to do x, the fact that
others commonly do x is not relevant.
RATIO
Courts will not defer to community standards as they do to professional.
46
22. NEGLIGENT MISREPRESENTATION
HEDLEY BYRNE v HELLER [1963] UK HL
FACTS
Hedley (a firm) wanted to know if it would be advisable to extend credit to a
customer, Easipower. Hedley asked Heller whether it would be advisable. Heller
advised Hedley that it was appropriate to extend credit to Easipower. Hedley
extended credit and Easipower went out of business. Hedley sued Heller.
RULING
Held for the D. No duty of care based on the facts. In obiter, allowed for the
possibility that a duty of care can arise with respect to careless statements that
cause pure economic loss. Requires misstatement + the condition that “…
expressly or by implication from the circumstances the speaker or writer has
undertaken some responsibility”. If words alone could establish liability on the
neighbor principle (i.e., if reasonable foreseeability alone were sufficient), one
would only have to worry about showing that the utterer of the words could
reasonably foresee that harm might ensue.
RATIO
A duty of care can arise with respect to careless statements that cause
pure economic loss.
Response in Canada: focus on ‘special relationship’ that grounds liability.
QUEEN v COGNOS [1993] SCC
FACTS
Respondent Cognos advertised an accounting position. Appellant already had a
good job, but applied and got an interview. Respondent said the job was
associated with a big project, even though project had yet to secure funding.
Appellant moved to Ottawa. 18 months later, the Respondent terminated the
Appellant’s employment. Appellant sued for negligent misrepresentation, won
at trial and appeal.
RULING
Held for the P. HEDLEY BYRNE test requires (not exhaustive):
1. There must be a duty of care based on a ‘special relationship’ between the
representor and the representee; (HERCULES focused on this – was
reasonable reliance between the parties in general?)
2. The representation in question must be untrue, inaccurate, or misleading;
3. The representor must have acted negligently in making said
misrepresentation;
4. The representee must have relied, in a reasonable manner, on said
negligent misrepresentation; (was there reasonable reliance in the
particular situation? This seeks to establish causation)
5. The reliance must have been detrimental to the representee in the sense
that damages resulted.
RATIO
The HEDLEY BYRNE test for negligent misrepresentation applies to
representations made by an employer to a prospective employee in the
course of an interview.
Start analysis with the test from HEDLEY BYRNE test as described in QUEEN – this is the general
framework for action under negligent misrepresentation. Don’t have to go through COOPERS test.
47
Recent adjustment (moving toward ANNS framework) happens in
HERCULES MANAGEMENT v ERNST & YOUNG [1997] SCC
FACTS
H hired E to prepare financial statements, which were required by statute. H
claimed that E was careless in preparing the statements and as a result H
suffered economic loss as a result of relying on the statements in other
investments and based on existing shareholdings. E won at trial and appeal.
RULING
Held for the D – a duty of care was owed, but negated for policy reasons. The
court incorporates QUEEN v COGNOS into the ANNS framework.
Stage 1: Prima Facie duty of care
Need to find reasonable reliance in order to find a prima facie duty of care.
Five indicators of reasonable reliance (a proximity consideration):
1. The D had a direct or indirect financial interest in the transaction in
respect of which the representation was made.
2. The D was a professional or someone who possessed special skill,
judgment, or knowledge.
3. The advice or information was provided in the course of the D’s business.
4. The information was given deliberately, and not on a social occasion.
5. The information or advice was given in response to a specific request.
RATIO
Stage 2: General policy considerations
The auditor reports may be reasonably relied upon by many parties, not just the
appellants. Further, the reliance had to be for the purpose by which the
statements were made. Widening liability also has a number of social costs
(lower economic efficiency: higher insurance costs, opportunity costs and
general costs to protect themselves – therefore, the supply of accounting
services would decrease, and costs to consumers would increase).
In cases of negligent representation, the reasonable foreseeability that
creates a prima facie duty of care in the ANNS test is determined by
reasonable reliance, which requires that:
1. The D should reasonably foresee that the P will rely on their
representation
2. The reliance by the P representee, in the particular circumstances of the
case, should be reasonable
There should also be mechanisms that control the threat of indeterminate
liability (knowing the parties that use the information, knowing what the
information is being used for, and so on).
What is crucial here is how the groups and their relationship are specifically characterized. If
groups were characterized at the general level of people who heard X relied upon people who said
X, then the Court would almost certainly not view this as reasonable reliance. If groups are
characterized at a more particular level, it's more likely that the Court will find a sufficient
relationship to ground reasonable reliance.
On Concurrency
From BC CHECO INTERNATIONAL LTD v BC HYDRO & POWER AUTHORITY [1993] SCC
“The rule is not that one cannot sue concurrently in contract and tort where the contract
limits or contradicts the tort duty. It is rather that the tort duty, a general duty imputed by
the law in all the relevant circumstances, must yield to the parties’ superior right to arrange
their rights and duties in a different way.”
48
21. CAUSATION
KAUFMANN v TTC [1959] SCC
FACTS
Lady falls on escalator when those above her fall in a chain-reaction. Ends up
seriously injured. Claim is against TTC because they have the money.
RULING
Held for the D. Court did not find that “… the type of hand rail in use at the St.
Clair station was a contributing cause of the plaintiff’s unfortunate and
consequent falling” using the but-for test.
RATIO
An example of how causation is defined, and how it is resolved in a case
where it is an issue: but-for test. Test is reliant on evidence and expert
testimony.
‘Framing’ or drafting issue

The link to be established is between the injury claimed and the negligence asserted

The P should be careful, then, how the negligence is described (in drafting the claim)
RICHARD v CNR [1970] PEI SC
FACTS
P had alleged, inter alia, that CNR had been negligent (through its actions of its
employee) in removing the nylon rope at the end of the ferry before it had
completely docked. P had fallen asleep, ferry worker said they had arrived, P
drove car off the ferry and into the water.
RULING
Held for the D. C Court did not find this to be a cause of the injury. Negligence
and the harm were found to be insufficiently connected. Negligence was
described as untying the nylon rope before the ferry had docked - that rope
wouldn't have stopped the car from going over! Claim then fails but for test.
RATIO
Example of the necessity of connecting negligence and the harm in order
to succeed in establishing causation through the but-for test.
What might have happened if the plaintiff had alleged that CNR had failed to install an adequate
system for keeping cars from disembarking until the ferry had completely arrived? More likely to
succeed at but-for test and therefore in their action.
ESTABLISHED EXCEPTIONS
MULTIPLE NEGLIGENT DEFENDANTS
COOK v LEWIS
RATIO
When:
 there are multiple negligent parties,
 it is known that one of them caused the plaintiff’s injuries, and yet
 it is impossible for the plaintiff to demonstrate which one, then
The burden of proof would shift to both Ds to try to disprove causation
(and failing this, the P would find relief from both).
LEARNED INTERMEDIARY
HOLLIS V DOW CORNING
RATIO
Courts won't allow multiple negligent actors to use competing but for tests
to cancel out their respective liabilities - will assume a link in the causal
chain to avoid this (assume a reasonable doctor in this case).
49
INFORMED CONSENT
REIBL v HUGHES
RATIO
Causation test in medical context is a ‘modified objective’ or mixed
subjective/objective test: Would a reasonable person, in the situation of
the P (with their rational subjective fears, beliefs, interests, etc.), have
consented if s/he had been adequately informed of the material risks?
Note: Irrational beliefs, fears, etc. are not considered.
POSSIBLE MODIFICATIONS OF THE STANDARD TEST
1. Material Contribution Test
WALKER ESTATE v YORK FINCH GENERAL HOSPITAL [2001] SCC
FACTS
Case dealing with blood supply. Canadian Red Cross in the mid-1980s are not
fully screening blood, relying instead upon questionnaires from blood donors.
Robert M is a fairly regular blood donor; he contracts HIV but doesn't know it.
HIV enters blood supply and Mrs. Walker contracts the disease through a blood
transfusion and dies. Her estate sues the hospital, CRC, etc.
RULING
Held for the P. Some of the real challenges in this case dealt with what CRC had
to work with, in terms of pamphlets. There were 3 options. The SCC decides that
the reasonable standard of care was to use the third type of pamphlet, of the
type used in the USA and the D was found to be negligent.
But what if Robert M had also been negligent (not clear in actual facts) - who
would the Court hold responsible? The but-for test is unworkable now if the
ARC pamphlet wouldn't have prevented Robert M from donating blood.
P 570, top of the page: Court acknowledges that the but-for test could operate
unfairly in such circumstances, leaving legitimate victims uncompensated. Test
shifts from whether negligence was necessary condition, to whether test was a
sufficient condition: the material contribution test. Not clear what this means,
exactly, maybe: if a party contributed to the plaintiff's harm in a material sense,
they will be held liable. A contributing factor is material if it falls outside the de
minimis range. This is a lower standard than sufficient, though...
RATIO
If the defendant’s negligence materially contributed to the plaintiff’s
injury, then it establishes causation.
NOTE: Why not use the COOK v LEWIS approach? Seems preferable since there is no innocent actor
who will be held liable...
HANKE v RESURFICE CORP [2007] SCC
FACTS
Zamboni had two input valves, one for fuel and one for antifreeze, right beside
each other. Accusation that this was negligent design, made it too easy for a
reasonable person to mix them up.
RULING
Held for the D. Evidence supports TJ’s finding that the P was not confused by the
two tanks (by H’s own admission). The seriousness of H’s injury and the relative
financial positions of the parties were not matters relevant to foreseeability.
H’s own carelessness was responsible for his injuries, not the design defects,
based on the but-for test. The standard test for causation is the but-for test.
Material contribution test only applies in cases where:
1. It is impossible for the P to prove the D’s negligence using but for test,
50
RATIO
2. due to factors outside of the P’s control, and
3. it’s clear that the D breached a duty of care owed to the P,
4. thereby exposing the P to an unreasonable risk of injury, and the P must
have suffered that form of injury in fact.
The court problematically described COOK v LEWIS as an instance of the
operation of this test, despite it being an established exception to but-for test.
The but-for test is the standard test for causation, even in cases with
multiple causes.
2. Materially Increased Risk
MCGHEE v NATIONAL COAL BOARD [1972]
FACTS
String of cases in the UK dealing with toxic agents - this case established an
approach which the UK abandoned in the 90s. McGhee was covered in coal dust
at the end of work every day and there were no showers at work. Claimed lack
of showers contributed to McGhee eventually developing a lung disease.
RULING
Lord Wilberforce: once P makes out that the D’s conduct materially increased
the risk of injury, onus of proof shifts to the D to prove on a balance of
probabilities that s/he did not cause the injury.
Other 4 Lords: deem D to have caused the injury, if it is shown that the D
materially increased the risk.
RATIO
Example of British approach to causation ~1970 to ~1990s. The first is
preferable, procedurally. But the two approaches will have very similar
outcomes, because if the P would have difficulty showing causation, it will
be difficult for the D to disprove causation once the onus has shifted.
NOTE: Apportionment of liability is based on apportionment of fault, NOT causation.
Canadian courts decided not to go the MCGHEE route, in SNELL.
SNELL v FARRELL [1990] SCC
FACTS
Surgeon operating on eye, noticed bleeding and decided it was acceptable and
continued surgery. P's eye continued bleeding and lost sight. While the P could
show that the surgeon was negligent, they couldn't show that the eye wouldn't
have gone blind without the surgery. P's counsel argued for McGhee approach
to reverse onus of proof onto doctor to disprove causation.
RULING
SCC decides not to follow the MCGHEE approach, as it undermines basic
principle of tort law: common law only punishes the D where it has been
established that they are at fault. Judges don't need to rely on scientific experts
to establish causation, just look to their own "practical common sense" to
determine whether there was causation based on the evidence. Based on
distinction between level of certainty required in science and medicine (close to
100%) and level of certainty required in civil liability (51%). Trial Judges have
the discretion to weight the varying pieces of evidence that they are offered this allows them a vast amount of discretion to decide cases where causation is
an issue (they can vastly overweight the P's testimony, for instance).
RATIO
MCGHEE approach hasn't been adopted in Canada, so the ultimate burden
lies on the P – just because the D materially increased the risk doesn't
reverse the burden of (dis)proving causation. Burden is on BOP, so
scientific certainty is not required.
51
Q: What is a ‘tactical’ burden?
A: Analogy to tennis match - the ball is in your court, you have to hit it back or you lose the point. If
P provides evidence of causation, then D has tactical burden to respond to P's arguments. The
tactical burden shifts over the course of the trial, but the ultimate legal burden rests on the
plaintiff. "In absence of evidence to the contrary adduced by the defendant, an inference of
causation may be drawn, although positive or scientific proof of causation has not been
adduced.” [bottom of 577]
CLEMENTS v CLEMENTS [2012] SCC
FACTS
Couple travelling on a touring motorcycle, loaded with a lot of stuff. It was rainy,
and at some point previously the bike had picked up a nail in the back tire.
Motorbike attempts to pass another vehicle, nail gets dislodged and driver loses
control of the vehicle. Wife is seriously injured, and litigation guardian attempts
to establish that the driver was liable. D (likely insurance company) argues that
even had he been driving non-negligently the accident (and P’s injury) would
still have occurred. TJnotes the ‘impossibility’ of showing, through scientific
reconstruction of the accident, whether but-for the negligence of the defendant
the plaintiff would not have been injured. TJ dispenses with the but-for test and
applies the material-contribution test, and finds D liable. D appeals.
RULING
Held for the D, new trial ordered. TJ erred in using material contribution test
due to the scientific impossibility of reconstructing the accident. What does
‘impossible to prove’ really mean?
(a) ‘Logical’ or ‘conceptual’ impossibility (TOO HIGH OF A STANDARD)
(b) ‘factual’ impossibility (TOO LOW OF A STANDARD, POSSIBLY)
(c ) ‘scientific’ impossibility (SPECIES OF FACTUAL IMPOSSIBILITY)
Legal impossibility applies to specific situations outlined by precedent. The butfor test is the general test for causation, except for in the particular situations
when the but-for test breaks down. Otherwise Ps don’t have to fully prove
causation – recall COOK v LEWIS – one person would have to pay despite not
causing the injury, just because they contributed to the sphere of risk.
RATIO
Impossible doesn't mean difficult to prove. Materially increased risk test
applies in situations where:
1. There are multiple tortfeasors
2. It is established on a BOP that one or more in fact caused the injury
(requiring that the P show that the negligence of the actors was a
necessary condition for her injury to have occurred)
3. Each individual tortfeasor enjoys the ability to escape a finding of
causation in a but-for test by ‘pointing the finger’ at the other
Additional Requirement (in relation to ‘substratum of negligence’)
4. It must be shown that each individual tortfeasor did in fact contribute to
the risk of the injury that occurred.
In conclusion, the materially increased risk test will only apply where multiple negligent parties can
escape liability through “pointing the finger”/ competing but-for tests.
52
22. DEFECTIVE (DANGEROUS) STRUCTURES
WINNIPEG CONDO CORP NO 36 v BIRD CONSTRUCTION [1995] SCC
FACTS
There's a condo building, and at one point part of the outside falls off. Someone
notices and hires an inspector, who discovers that the building's side is
defective. P decides to sue to recover to redo the entire side of the building (not
just repairing the damage, but replacing the entire defective structure, making
this pure economic loss). In RIVTOW MARINE (defective structure was repaired
prior to accident) Laskin J. (in dissent) vigorously argued for this sort of
recovery – argument on basis of principle. RIVTOW was picked up in the UK in
ANNS (which was about foundations that were not deep enough).
RULING
Held for the P. In large part, this finding is based on policy considerations. Lack
of privity between the subsequent purchaser and the negligent building
designer or builder prevents action in contract.
The first stage: sufficiently close relationship?
 Buildings are (fairly) permanent structures, therefore there is
reasonable foreseeability of harm to subsequent purchasers
 Also, refers to Laskin J.’s reasoning in RIVTOW MARINE, and notes the
preventative function that would be served (POLICY ARGUMENT)
 Courts restricts consideration to dangerous and not merely shoddy
(on the facts) structures in order to prevent indeterminate liability
 Patent (immediately obvious) vs latent defects
RATIO
The second stage: Policy considerations
 What about warranties (existence of contract and contractual duties)
and the doctrine of caveat emptor?
 La Forest J. sees both as instances of responses to concerns over
indeterminate liability (warranties serve to limit potential liability of the
contractor/builder, caveat emptor serves a similar function)
 But, warranties should not rule the outcome in this sort of case (tort law
extends beyond explicit contracts, and warranties typically don't deal
with issues of safety and negligence), and caveat emptor should no
longer be determinative (due to informational asymmetry)
 No real indeterminacy issues because in terms of parties: limited to
subsequent purchasers; in terms of money: limited to reasonable cost of
repairing dangerous defects; and, in terms of time: limited to useful life
of the building.
There are no policy considerations that would exclude a contractor from
being held to owe a duty to take reasonable care to ensure that a building
does not contain defects that pose “foreseeable and substantial danger” to
the health and safety of occupants.
What about relational economic loss – could that provide a policy consideration that would negate
the existence of a duty of care? Possibly, so take your analysis there next.
53
23. RELATIONAL (THIRD PARTIES) ECONOMIC LOSS
Mentioned earlier:
CNR v NORSK [1992] SCC
FACTS
Norsk was towing a barge, which hit a bridge owned by Public Works Canada.
CNR uses this bridge (responsible for 80-85% of the bridge traffic), and it lost
lots of money in having to divert trains. There was no contract between CNR
and Norsk. Example of claim for relational economic loss.
RULING
The court split, 3-3-1.
MCLACHLIN W/L’HEUREUX DUBE AND CORY
Apply the ANNS/KAMLOOPS framework. Begin with the five categories, work
outward from them (and note that the categories are not closed). McLachlin J.
sees CNR and Public Works Canada akin to a ‘joint venture’ (consider those
parties as a single party) and this is sufficient to establish proximity and to
move us away from concerns over unlimited liability.
LA FOREST W/SOPINKA AND IACOBUCCI
Begins with exclusionary rule: no duty exists in cases of relational economic
loss. Then considers established exceptions:
1. Possessory or proprietary interest (if CNR had some interest in the bridge,
they could recover - but they don't)
2. General averaging cases (has to do with maritime law, applies to ships when
on the ocean)
3. Joint venture (if you can treat the third party as party to the physical injury)
La Forest J leaves open the possibility of new exceptions. La Forest J. would
prefer not to use ANNS/KAMLOOPS approach, because it lacks predictive power .
La Forest J. offers pragmatic and economically rational reasons why
exclusionary rule is preferable:
1. Puts incentives on parties to act to minimize losses
2. Only one party has to purchase insurance
3. Will save judicial time and resources
4. Eliminate worry about impecunious defendants, who might be forced to
pay both the primary party damaged and other ‘relational’ parties
5. Rule is definite (and exceptions allow for justice in other clear cases)
STEVENSON
Focuses on fact that Norsk knew CNR. And, it knew CNR relied on the bridge
and on the company exercising care in relation to the bridge. So, on the basis of
these facts, he allowed recovery.
RATIO
The state of the law on economic loss was unclear immediately following
the decision in NORSK, as neither McLachlin nor LaForest's judgments were
the clear majority. OVERRULED BY BOW VALLEY HUSKY.
Left with two approaches, uncertainty in the law? Things are patched up in
BOW VALLEY HUSKY v SAINT JOHN SHIPBUILDING [1997] SCC
FACTS
Husky contracts with Saint John Shipbuilding (SJSL) to build an oilrig. For tax
reasons, Husky and BVI doesn't want to own the oilrig, and create a company,
Bow Valley Bermuda Husky (BVBH), from whom they would rent the rig. SJSL
contracts with Raychem to build electrical system. Raychem uses Thermaclad to
insulate wiring, which is flammable. Eventually, the rig is out on the ocean and
54
RULING
RATIO
there's a fire due to the flammability of the wire insulation installed by
Raychem. The problem here is that BVBH is the party that suffers physical
damage, while BVI and Husky suffer purely economic loss (keep paying rent on
the rig while it is being repaired), and this loss is relational.
McLachlin notes that the heart of the dispute between herself and La Forest J.
was primarily one about simply whether there was in fact a joint venture on the
facts in CNR, broad agreement otherwise. It might be in some circumstances that
the liability the D owes the actual injured party is clearly not enough to promote
the ends of deterrence – but here that is not the case, as BVHB suffered $5m in
property loss. It might be in some circumstances, because of the nature of the
transaction or an inequality in bargaining power, that the P was unable to
effectively allocate risk through the contract (which is assumed to be possible in
most contexts) – but here, the Court notes, BVI and HOOL actually created
BVHB, and so they had every opportunity to satisfactorily allocate risk!
Resolves judicial conflict in CNR by stacking two approaches on top of each
other. There is a presumption against contractual relational economic
loss, subject to recognized exceptional categories:
1. Where the claimant has a possessory or proprietary interest in the
damaged property;
2. General average contribution cases; and
3. Where the relationship between the claimant and the property
owner constitutes a joint venture.
If you don't fit into any of these exceptions, then new exceptions must be
evaluated using ANNS/KAMLOOPS approach.
SIDE DISCUSSION: JOINT VENTURES
Recall that under CNR v NORSK, the best way into recovering under the law of torts in this sort of
contractual relational economic loss scenario is if the damaged party and the party related through
contract (the ‘third party’) are in something like a joint venture.
Williston on Contracts discusses the general nature of a joint venture:
A joint venture is an association of persons, natural or corporate, who agree by
contract to engage in some common, usually ad hoc undertaking for joint profit by
combining their respective resources, without however, forming a relationship in
the legal sense (of creating that status) or corporation; their agreement also
provides for a community of interest among the joint venturers each of whom is
both principal and agent as to the others within the scope of the venture over which
each venturer exercises some degree of control.
This text also provides a list of necessary features:
 A contribution by the parties of money, property, effort, knowledge, skill or other asset to a
common undertaking;
 A joint property interest in the subject matter of the venture;
 A right of mutual control or management of the enterprise;
 Expectation of profit, or the presence of ‘adventure’, as it is sometimes called;
 A right to participate in the profits;
 Most usually, limitation of the objective to a single undertaking or ad hoc enterprise.
NOTE: McLachlin’s finding of a joint venture in CNR only very loosely fits this concept and loosely
fits within the list of necessary features. But recall as well that she only spoke of finding something
‘akin to’ a joint venture – her focus was in finding the sort of relationship that would function to
limit liability of the tortfeasor, so that indeterminacy was not such an overwhelming consideration.
55
24. LIABILITY OF PUBLIC AUTHORITIES
INGLES v TUTKALUK CONSTRUCTION LTD
In the context of claims against public authorities, the Supreme Court of Canada draws no
distinction between cases involving physical damage and pure economic loss.
Public authorities have 3 functions: legislative, judicial and administrative.
WELBRIDGE HOLDING LTD v WINNIPEG [1970] SCC
SCC held that generally public authorities cannot be held liable in tort for activities that fall
under the umbrellas of legislative and judicial (or quasi-judicial) functions.
EXCEPTIONS
Legislative:
1. While activities of legislators protected by statute (for example, Legislative Assembly
Privilege Act), this immunity does not extend to actions of a legislator that are not directly
or indirectly related to legislative activities
2. Note that in affirming WELBRIDGE in SIBECA INC v FRELIGHSBURG (MUNICIPALITY) [2004], the
SCC mentioned that the municipality (a public legislative body) will not be liable “… for
the exercise of its regulatory power if it acts in good faith or if the exercise of this
power cannot be characterized as irrational.”
3. Judicial review, of course, persists – a court can review the validity of the products of
legislative activity (pursuant to, for example, the Charter)
Judicial:
1. While activities of judges (and other levels of adjudicators) are statutorily protected (for
example, Provincial Court Act), this legislation usually leaves judges open to tort action if it
can be established that the judge/adjudicator acted maliciously and without reasonable and
probable grounds (though note uncertainty around status of ‘malicious’ acts – some courts
would still hold judges protected, so long as s/he was acting within their jurisdiction)
2. Lack of clarity around Attorney-Generals and Crown Attorneys. In NELLES v ONTARIO, the
court held that the Crown was protected by state from civil claims based on how it
discharged its judicial responsibilities, but denied immunity to the AG and Crown
Attorneys personally.
3. Lack of clarity around how far along the spectrum of judicial officers the protection extends.
Some quasi-judicial functionaries have been granted immunity, others haven’t.
General Crown Immunity
Note the history: general immunity tempered by various Crown Proceedings/Liability Acts
in mid-20th century. Make-up of the Crown:
 Executive governments of Canada and the provinces
 Crown Ministries, departments and boards
 Servants and agents of the Crown (note vagueness at this point – not all public
authorities (what some might characterize as ‘servants and agents’) are considered
Crown agents – test is focused on the degree of actual or potential control enjoyed by
the Crown over these individuals)
Negligence Liability of Public Authorities
56
 In context of exercise of statutory duty, public authority cannot be liable for doing what
it is required to do, but if it acts carelessly in performing this duty (or fails to perform its
duty) it may be found liable
 In the context of the exercise of a discretionary power, courts are more concerned with
the fact that they are being called upon to measure or evaluate how the public authority
acted, as some of what the public body does in such a situation is quasi-legislative (in
that it is fleshing out policy decisions, through the exercise of its discretion)
 Nevertheless, if a court can separate out ‘policy’ matters from ‘operational’ matters, it
can proceed to measure or evaluate the operational side of the situation
JUST v BC [1989] SCC
FACTS
P was driving to Whistler with his daughter. Rockslide causes boulder to land on
his car while he is stuck in traffic, killing his daughter and seriously injuring the
P. P sues government, charging that they were negligent in their road
maintenance.
RULING
Held for the D. The Crown is not a person and must be free to govern and make
true policy decisions without becoming subject to tort liability. On the other
hand, complete Crown immunity should not be restored by having every
government decision designated as one of ‘policy’. The dividing line is very
difficult to fix.
From a case from the Australian High Court (applying the ANNS approach):
The distinction between policy and operational factors is not easy to
formulate, but the dividing line between them will be observed if we
recognize that a public authority is under no duty of care in relation to
decisions which involve or are dictated by financial, economic, social or
political factors or constraints (possible definition of policy
decisions). Thus budgetary allocations and the constraints which they
entail in terms of allocation of resources cannot be made the subject of a
duty of care (possible definition of operational decisions). But it may
be otherwise when the courts are called upon to apply a standard of care
to action or inaction that is merely the product of administrative
direction, expert or professional opinion, technical standards or general
standards of reasonableness.
Cory J. goes to explicitly fit analysis within ANNS/KAMLOOPS. Note background
concern (public authority must be acting within bona fide exercise of
discretion). Leads then to distinction between ‘policy’ and ‘operations’ within
second stage of the ANNS/KAMLOOPS framework. Summary of accommodation
within framework is found in last full paragraph on page 766.
RATIO
It's not appropriate to hold the government liable for acting as the
government (policy decisions). But there should be liability when the
government acts negligently under the policy (operational decisions). But
this distinction is incredibly difficult to apply!
Finally, note the (possible) effects of COOPER v HOBART, especially in relation to the apparent focus
it had on the existence of a statutory duty (to the point where the Court seemed to suggest the
common law duty – at least in that case – rested on the existence of a statutory duty). Also
need to determine whether or not the government body is proximate enough to the plaintiff to
ground a duty of care – this is where the policy/operational analysis lies.
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25. ESTABLISHED CATEGORIES & NOVEL SITUATIONS
One question (of many) remained after COOPER: does one work through the full analysis whenever
a question comes up about whether a duty of care exists, or only when a ‘novel situation’ arises?
In CHILDS v DESMOREAUX [2006], the SCC clarified matters (somewhat):
The reference to categories simply captures the basic notion of precedent: where a case is
like another case where a duty has been recognized, one may usually infer that
sufficient proximity is present and that if the risk of injury was foreseeable, a prima
facie duty of care will arise. On the other hand, if a case does not clearly fall within a
relationship previously recognized as giving rise to a duty of care, it is necessary to
carefully consider whether proximity is established.
When you have a case in an established category, precedent allows you to infer sufficient
proximity and establish a prima facie duty given reasonable foreseeability.
Now consider negligent misrepresentation and HERCULES MANAGEMENT. The category of negligent
misrepresentation had already been long established (HEDLEY BYRNE opened the door, and cases in
Canada shortly thereafter accepted that one party could sue another for negligent
misrepresentation when the losses are purely economic) - BUT the Court still went through an
Anns/Coopers analysis to attempt to integrate established category into that conceptual
framework.
But within such a broad category there will be many possible sub-categories (many different
sorts of situations, involving many different sorts of parties).
In HERCULES MANAGEMENT, for example, the question was about whether a duty of care would fall
on auditors in relation to shareholders of companies for whom they prepare yearly reports. If
there had been pre-existing case-law involving these sorts of parties, with sort of subject matter,
stare decisis would apply (see CHILDS) and questions of proximity would be presumed to have
already been dealt with.
The SCC also said in COOPER that rarely would analysis ever have to reach the second stage,
implying that if proximity has been dealt with it would be presumed that that also means the
second stage is not a concern.
Note that this does leave open the usual tools of legal maneuvering (i.e., distinguishing cases) which
allow Courts to decide cases based on the facts, not simply precedent. Where plaintiff counsel will
search for precedents to establish that the tort falls within an established duty of care, defendant
counsel will try to distinguish the tort from established categories, thereby necessitating a full
COOPER analysis.
On exam, rely on cases we've seen before to determine established categories, but to be cautious do
a COOPER analysis.
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26. REMOTENESS
Remoteness is a tool used by courts to limit liability - in certain circumstances it may not seem fair
to make the defendant liable for all the consequences of their negligence, as some of the
consequences may be too remote for liability to attach. This concern does not always arise in
negligence cases. Generally arises when there is an imbalance in the scale of the negligence of the
defendant and the harm suffered by the plaintiff.
Historical tidbit: Directness [versus Foreseeability]
RE POLEMIS AND FURNESS, WITHY & CO [1921] UK KB
Used to be how remoteness was understood: the defendant is liable for anything they
directly caused.
This was abandoned because the distinction between direct and indirect is undefined, as described
in THE WAGON MOUND, which heralded the shift to the modern approach:
OVERSEAS TANKSHIP (UK) LTD v MORTS DOCK & ENGINEERING CO LTD
AKA THE WAGON MOUND (NO 1) [1961] UK PC
FACTS
Bunker oil is leaking from a ship on one side of the harbor. D noticed that the oil
was leaking but didn't think it was flammable on the water. Oil slick blows
across the harbor over the course over a few days, to where a welder is working
on a dock and causes a fire which consumes the pier and some ships.
RULING
Held for the D. The court rejects the POLEMIS approach, as it “... does not seem
consonant with current ideas of justice or morality that for an act of negligence
... the actor should be liable for all consequences however unforeseeable and
however grave, so long as they can be said to be ‘direct’.” The common law will
henceforth base new position on ‘principle of civil liability’, “... that a man must
be considered to be responsible for the probable consequences of his act.”
Probable consequences reflects the reasonable foreseeability principle at the
heart of the law of torts.
RATIO
Replaces POLEMIS approach of direct consequences with remoteness test:
the D is liable for all damages that were foreseeable.
MODIFICATIONS TO THE WAGON MOUND TEST
HUGHES v LORD ADVOCATE [1963] UK HL
FACTS
D left a bunch of equipment around a manhole. Kids in the neighborhood get
into open manhole to go exploring. Find some paraffin lamps, and one of the
boys drops a lamp down the hole, causes an unlikely explosion, burning the boy
badly.
RULING
Held for the P. Lower courts’ findings of facts do not support their conclusions.
The boy’s injuries were mainly caused by burns, and these were foreseeable.
Don't use test in relation to just the particular harm suffered, but the type
of harm suffered: is a burn foreseeable harm from negligently leaving a lamp
lying around? Yes. While it was not reasonably expected that the injuries would
be this severe, this is not a defense. The D can only escape liability if the damage
can be regarded as differing in kind from what was foreseeable.
RATIO
Refines remoteness test:
D is liable for all damages of a kind that were foreseeable, no matter their
extent.
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See operation of rule in TREMAIN v PIKE
The court finds a clear distinction between different kinds of rat illnesses, those caused by rat urine
as opposed to those caused by rat bites and the like, thereby finds for the plaintiff.
The HUGHES rule essentially creates a broad grant of latitude for judges to make their decisions
based on their moral intuitions and the facts, rather than a systematic application of the law. The
more general the description of the type of harm, the more likely it will be found to be
foreseeable - the more specific the description of the type of harm, the less likely it will be
found to be foreseeable.
REMOTENESS & THE THIN-SKULL RULE
SMITH V LEECH BRAIN & CO [1962] UK QB
FACTS
Molten metal touched P's lip due to negligence of D, P developed cancer due to
pre-existing condition (the proverbial think skull) and dies.
RULING
Held for the P. WAGON MOUND was concerned with liability as it might attach
to types of damage, not with whether the extent of any particular sort of
damage should be limited by its foreseeability. The burn was just magnified, the
cancer and resultant death is not a new type of harm.
WAGON MOUND is consistent with recovering any limit to the extent of
damages, even if some of the extent is attributable to proclivities or constitution
of the victim.
RATIO
Refined remoteness test allows the thin-skull rule to persist, given
sufficiently general description of the type of the harm.
Furthermore, this includes ‘egg-shell personalities’: MARCONATO v FRANKLIN [1974] BCSC.
What about the crumbling skull doctrine (mentioned in ATHEY v LEONATI [1996] SCC), where a
pre-existing problem will be degenerative over time? This could offer the D an escape from liability.
Here the principle of compensation and the but-for test enter:
The thin-skull comes in to measure liability of defendant, but is itself
tempered by the fact that the crumbling-skull is ‘less valuable’ than an
ordinary one.
A FINAL RETREAT: PROBABILITY VS. POSSIBILITY
OVERSEAS TANKSHIP (UK) LTD v THE MILLER SS CO PTY LTD
AKA THE WAGON MOUND (NO 2) [1966] UK PC
FACTS
The defendants negligently caused oil to spill into the Port of Sydney. This spill
itself did minimal damage to the P’s ships. The oil subsequently caused a fire
when molten metal dropped into the water and ignited cotton waste floating in
the port. The fire destroyed the P's ships.
RULING
Held for the P. What should be done about degrees of foreseeability? Court
returns to reasoning from BOLTON v STONE (cricket case) and use language
from this earlier case (about a different context):
“If a real risk is one which would occur to the mind of a reasonable man in
the position of the defendant’s servant and which he would not brush
aside as far-fetched, and if the criterion is to be what the reasonable man
would have done in the circumstances, then surely he would not neglect
such a risk if action to eliminate it presented no difficulty, involved
no disadvantage and required no expense.”
In other words, it is true that the Wagon Mound’s operators would have
60
RATIO
foreseen that oil spilling into the harbor had a possibility of causing a fire, but
would have only a very low probability. A fire could only result under
exceptional circumstances. However, because the risk of fire was foreseeable,
the D bore a duty to prevent the risk, even if the risk was a remote possibility.
Something is reasonably foreseeable if it is a real risk (degree of probability
outside the de minimis range). P is liable for all consequences of real risk.
Note difference in how the facts can be presented/argued in these two cases – P could possibly be
considered negligent in the WM#1, but not in WM#2. Contributory negligence used to be a complete
defence, now it just leads to apportionment of liability except in some maritime law scenarios. So P
in WM#2 can make arguments that bunker oil can burn on water.
A second key difference – in WM#1 the finding was that bunker oil burning on water was not
foreseeable, and so questions about ‘degrees of foreseeability’ did not need to be explored, while in
WM#2 that is just the question at issue.
After the 1960s, CL world could follow either the WM#1or WM#2 approach to reasonable
foreseeability…
Some courts took WM#1to mean those things that are reasonable foreseeable are those
things which are probable consequences: "a man must be considered to be responsible for
the probable consequences of his act." Was it more than 50% likely that something would
happen? That's a very defendant-friendly standard.
Some courts took WM#2 to mean reasonable foreseeability means those things which are a
real risk, or possible consequences: "a real risk is one which would occur to the mind of a
reasonable man in the position of the defendant’s servant and which he would not brush
aside as far-fetched." More of a beyond the de minimis range standard - much more plaintifffriendly approach.
So how is this resolved?
MUSTAPHA v CULLIGAN OF CANADA LTD. [2008] SCC
FACTS
Fly in the water.
RULING
Held for the D. One should not focus on the term ‘possibility’, but on the notion
of ‘real risk’. Any harm that actually occurs is possible - this is not a fair standard
(straw man, no one argues for this).
In duty of care analysis one can inquire into whether P was a person of
reasonable fortitude (as this goes to whether the D should have had this sort of
person in mind as the kind of person who might be injured if they act
carelessly).
The Court transfers this to analysis around issue of remoteness. Court goes on to
suggest this is to arrive at a result that is ‘fair to both plaintiffs and defendants,
and that is socially useful’. D are only liable for the kind of injury that would
occur to a person of reasonable fortitude. This is meant to be a ‘threshold test’,
and so does not operate in a way so as to interfere with the thin-skull (which
deals with extent of damage, once damage is found). If the D knows of the lack of
reasonable fortitude of the P, that may change the calculation (as it may then be
that the harm incurred was reasonably foreseeable).
RATIO
Implicitly endorses the de minimis standard from WM#2.
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INTERVENING FORCES OR CAUSES
What happens when it seems plausible to argue that the negligence of A caused the (or a) injury to
C, but only through the intervening chain of events which included the actions of another party, B?
The underlying concern is what is reasonably foreseeable in the circumstances – conflict with
HUGHES and its focus on the type of harm’s foreseeability.
Operating principle of novus actus interveniens
For an act of another party (including the P) to intervene such as to trigger this sort of legal
argument, it must break the chain of causation, being a fresh, independent cause of the damage.
BRADFORD v KANELLOS [1973] SCC
FACTS
The P were at a restaurant owned by D when a fire broke out on the cooking
grill. Automated fire extinguishment system kicked in, which completely put out
the fire and no one was injured. However, the system made a hissing noise that
caused one of the patrons in the restaurant to shout out that there was a gas
leak. Chaos ensued, and the P were injured in the havoc and sued for damages.
The P were successful at trial, but this was overturned on appeal. Issue: what
should be the liability of the original wrongdoer in light of possible negligent
conduct of the second actor, the person shouting about escaping gas?
RULING
Held for the D. Majority agreed with Court of Appeal: It should not be held that a
person guilty of the original negligence ought reasonably to have anticipated
such subsequent intervening negligence and to have foreseen that if it occurred
then result would be that his negligence would lead to loss or damage. The
conduct of the second actor was not reasonably foreseeable by the D.
Dissent: The person guilty of the original negligence ought reasonably to have
anticipated such subsequent intervening negligence and to have foreseen that if
it occurred the result would be that his negligence would lead to loss or damage.
The person who yelled acted in a reasonable and foreseeable manner.
RATIO
If a consequence is not within the scope of what is reasonably foreseeable,
then there can be no liability. The more negligent the intervening act, the
more likely that courts will not find liability.
INTERVENING MEDICAL ERROR
PRICE v MILAWSKI [1977] ONT CA
FACTS
Young boy gets ankle injured in soccer game, goes for x-ray. X-ray is done on the
wrong spot, cast is put on improperly. Boy is still suffering, goes to second
doctor who relies on original x-rays and replicates original error. Ankle ends up
permanently damaged.
RULING
Held for the P. Court holds D liable for all reasonably foreseeable injury
subsequently caused by another (for example, a doctor), where reasonable
foreseeability described with language from WM#2. So long as a reasonable
person in the position of the original D could be said to have reasonably
anticipated that the subsequent conduct was possible (product of a real risk),
they are potentially liable for damages flowing from that conduct.
RATIO
The original wrongdoer is liable for all reasonably foreseeable injury
subsequently caused by another.
NOTE: This approach to intervening medical negligence protects the P, but also allows the original
wrong-doer to pursue the negligent doctor afterwards.
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NOTE: Some medical negligence cases explicitly hold that ‘gross negligence’ on the part of the
subsequent medical professional is not foreseeable.
SECOND ACCIDENT
WIELAND v CYRIL LORD CARPETS LTD [1969] UK QB
FACTS
P was leaving doctor’s office. The visit was necessitated by injuries suffered due
to negligence of D bus driver. P had a medical-collar on her neck and was being
helped down stairs by son. She was unable to see normally with bifocals and fell
on last few steps.
RULING
Held for the P. Mrs. Wieland was not behaving unreasonably in descending the
steps and so the chain of causation was not broken.
Similarly, where the D creates a dangerous situation that requires the claimant
to take immediate evasive action, the D remains liable even if, at the critical
moment, the P makes the wrong decision and suffers damage that could have
been avoided.
RATIO
All that arises reasonably in the ordinary course of events will not break
the chain of causation.
DUDEK v LI [2000] BCCA
FACTS
P was injured when Ms. Li, in negligently turning left on Granville Street, hit his
car. Months later, before trial, the P was negligently driving his motorcycle in
Washington State when he got in an accident and suffered further injuries.
RULING
Held for the P – new trial ordered. Key distinction: in cases like DUDEK the
plaintiff acts negligently (or ‘unreasonably’) on their own. BCCA finds liability
for harms suffered by P as they persist past the second accident, but only insofar
as they emanate from the original accident – any injuries that are identifiable as
emerging from the second accident are not compensable by the D.
RATIO
P’s later negligence does not cut off D’s liability for injuries stemming for
original tort – but D is responsible for those injuries only, and not for
damages stemming from P’s later negligence.
Q: What are the reasons for a rule in this kind of situation (but not others)?
A: To incentivize the P to mitigate their damages.
INTERVENING WRONGFUL/ILLEGAL ACTION
HEWSON v RED DEER [1976] Alta TD
FACTS
The D was transporting gravel using tractors. A worker left a tractor secured at
the top of a large mound of gravel. Upon returning, the worker found the tractor
had crashed into the P's house. The tractor was not secured as worker had left it
– there was evidence that an unknown person had been in the tractor.
RULING
Held for the P –the D should have made it more difficult for someone to get into
the machine and turn it on.
RATIO
Chain of causation is not broken when the thing that happened was
precisely what the D should have been guarding against, EVEN IF THE NEW
EVENT WAS ILLEGAL.
You have to watch out for language - remoteness is sometimes dealt with under the terms
legal cause and proximate cause.
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27. DEFENCES
CONTRIBUTORY NEGLIGENCE
Contributory negligence used to be a full defence, now it is generally a partial defence.
Three possible scenarios:
1. P contributes to accident that caused injuries
2. P exposes him/herself to risk of being involved in an accident
RAUTINS v STARKEY [2004] ONT SC: P allegedly exposed herself unreasonably to risk of
being involved in accident by going into and remaining in crosswalk in intersection with
malfunctioning traffic lights, at dusk, with darker clothes on.
3. P fails to take reasonable precautions to minimize injuries should an accident occur [ie.
seatbelt defence]
a. OLD RULE
Example of how harsh doctrine formerly fell on the plaintiff can be found in
BUTTERFIELD v FORRESTER [1809] UK KB
FACTS
The D, in midst of house-repairs, had left pole across roadway. The P, just
having left pub, at dusk, rides hard in this direction. The P could have seen the
pole at 100 yards IF he had been riding safely. However, he was riding
‘violently’, and so hits pole.
RULING
Held for the D –the P can’t avail himself of fault of another if he himself did not
use common and ordinary caution in trying to avoid injury.
RATIO
Example of old rule where contributory negligence offers a full defence.
b. ATTEMPTS TO TEMPER
Courts were reluctant to apply this approach across the board, which led to the development of
legal tools like the last clear chance doctrine.
DAVIES v MANN [1842] UK
FACTS
The P’s donkey fettered on edge of highway. The D’s servant driving wagon and
horses negligently, at a “smartish pace" and strikes donkey, kills it. The D argues
that the donkey was carelessly tethered, in the path of possible traffic.
RULING
Held for the P –“... the defendant might, by proper care, have avoided injuring
the animal, and [that he] did not he is liable for the consequences of his
negligence, though the animal may have been improperly there.”
RATIO
Last clear chance doctrine: If the D was in the last position possible to avoid
the consequences, then there was a last clear chance that needs to be
considered.
Parke B.:
”Without this sort of rule the defendant would be condoned in committing wanton damage, so long
as s/he were reasonably certain that the things being destroyed/injured were themselves
improperly cared for.”
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c. LAST CLEAR CHANCE DEFUNCT
Q: What remains of this rule or doctrine? It has been abolished by statute.
SCURFIELD v CARIBOO HELICOPTER SKIING [1993] BCCA
FACTS
The P was killed when he was skiing and swept away by an avalanche. He had
been dropped off at the top of the slope by the D, by helicopter. As he prepared
to begin his descent he observed an avalanche on another part of the area he
was looking down upon.
RULING
Held for the D – P argued for the court to dismiss the claim simply because Mr.
Scurfield could readily have avoided the avalanche would involve application of
the defence of 'last clear chance', an elusive doctrine statutorily abolished in this
province by Section 8 of the Negligence Act, R.S.B.C. 1979 Chapter 298, which
says:
This Act applies to all cases where damage is caused or contributed to by the
act of a person notwithstanding that another person had the opportunity of
avoiding the consequences of that act and negligently failed to do so.
P’s negligence found to be 100% responsible for his death.
RATIO
The last clear chance doctrine has been abolished by statute.
NOTE: Negligence Act now reads:
This Act applies to all cases where damage is caused or contributed to by the act of a
person even if another person had the opportunity of avoiding the consequences of that
act and negligently or carelessly failed to do so.
SEAT BELT DEFENCE
GAGNON v BEAULIEU [1977] BCSC
FACTS
P passenger and D driver were driving when D ran into a truck. D admitted
liability for accident, but P was not wearing seat belt, and suffered physical
injuries consistent with being thrown forward by the impact.
RULING
Held for the D – the D would need to show both that (a) seat belt had not been
worn by the plaintiff, and (b) that ‘injuries would have been prevented or
lessened if the seat belt had been worn’. In this case, P was contributorily
negligent.
RATIO
Established duty on passengers/drivers to wear seat belts. Rationale:
failure to do so generally increases severity of injuries and rate of
fatalities.
GALASKE v O'DONNELL [1994] SCC
FACTS
8 year old kid with dad, neither buckle up as passengers in D's truck, but D does.
D didn’t say anything because he didn’t want to yell at dad in front of kid, but
they get into an accident and dad is killed, kid is paralyzed.
RULING
Held for the P –drivers, in some circumstances, have a duty to take reasonable
care to ensure passengers are wearing seatbelts. The fact that the dad was also a
passenger and may have been negligent did not negate the D’s duty.
RATIO
1. Established a duty that the driver of a vehicle has to ensure that
children have their seatbelt on, even if they're not related.
2. Corollary: if an adult in your vehicle wasn't wearing a seatbelt and is
injured, and the driver wasn't driving negligently, they are not liable.
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VOLUNTARY ASSUMPTION OF RISK
Volenti non fit injuria used to be a “complete defence”, and still is available as such. But, with a
tightening of requirements for its deployment, it has become extremely rare.
DUBE v LABAR [1986] SCC
FACTS
P was a passenger in a car driven by D. Both had been drinking and picked up
two hitchhikers. The car veered as D turned to speak to one of the hitchhikers in
the back seat. P grabbed the wheel and tried to straighten out the car but his
attempts eventually resulted in the car's overturning. The P was unsuccessful at
trial as the jury found that volenti non fit injuria applied.
RULING
Held for the D – the court focuses on distinction between knowing of risks and
assuming or accepting the risks. Volenti principle will apply in the latter case.
Based on the facts, the court finds that the P voluntarily assumed risk when he
took the wheel.
RATIO
In order for the volenti non fit injuria defence to apply there must be an
agreement between the two parties, either express or implied, that the
plaintiff waives the liability owed to him by the defendant (both physical
and legal risk) for personal injury.
An interesting theoretical question to ponder:

Does consent come in to remove the very existence of any duty on the part of the defendant,
or does it come in after negligence to remove liability, as a defence?
ILLEGALITY
Ex turpi causa non oritur actio is basically the idea that if P’s actions violated legal or moral rules,
they should not be able to profit from this.
HALL v HEBERT [1993] SCC
FACTS
Car of D, with P at wheel, was being pushed to a start. The P lost control, went
into ditch, suffered serious head injuries. The D knew plaintiff was impaired, yet
allowed plaintiff to drive. The CA dismissed action by plaintiff on ground that
defendant owed no duty of care to plaintiff, and further that doctrine of illegality
applied [ex turpi causa non oritur actio].
RULING
The majority held that the defence only operated when the integrity of the law is
threatened, such as in situations where the P is attempting to profit from his
illegal conduct, or when a claim is used to subvert or negate a criminal penalty.
Further, the doctrine of ex turpi causa can only be used as a defence and cannot
be used to negate a duty of care, because it would inappropriately place an onus
on the P to show absence of illegal or immoral conduct.
The P in this case was not seeking to profit from his illegal conduct, nor was he
circumventing the criminal law. However, he was contributorily negligent.
RATIO
A person cannot recover in tort for the consequences of their own illegal
or immoral acts. Rather than negating a duty of care, ex turpi causa is a
narrowly defined defence that precludes recovery and is only applicable
to cases where the plaintiff is attempting to profit from illegal conduct or
evade criminal sanction.
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OUTCOME: As with voluntary assumption of risk, a plaintiff’s illegal or antisocial behaviour is now
likely to be treated as contributory negligence. It is very hard to use the ex turpi causa defence now.
INEVITABLE ACCIDENT
RINTOUL v X-RAY AND RADIUM INDUSTRY LTD [1956] SCC
FACTS
Employee of the D was driving a truck owned by D. At first, the service brakes
were working properly and had been applied 5 times successfully. Employee
found while crossing an intersection that his service brakes had stopped
working. After attempting to engage them several times, he pulled his hand
brake but was unable to stop in time. An accident ensued.
At trial: Failure of service brakes placed the D in emergency in which he acted
without negligence and that the collision was the result of an inevitable
accident.
RULING
Held for the P. In this case, the defence of inevitable accident is not available.
Inevitable accident requires that defence must show that something happened
over which he had no control, and the effect of which could not be avoided even
by the greatest care and skill. The D provided no evidence to prove that the
brake defect could not be discovered. The only evidence the D raised was a bald
statement that work had been done the previous day and that the brakes were
in working order. They didn’t address when car was purchased, how far it had
been driven, etc. The D also failed to show that even by the exercise of
reasonable care the accident could not have been avoided.
RATIO
For inevitable accident to operate as a defence, the defendant must
establish that damage was:
1. caused by event in which the defendant had no control (inevitable)
2. even with reasonable care, it could not be avoided (unavoidable)
28. ISSUES AROUND PROOF
ONUS OF PROOF
WAKELIN v LONDON & WESTERN RAILWAY [1886] UK HL
RULING
Held for the D. At best here we have two equally plausible accounts of what may
have happened (and the story that they might both have been negligent), and in
that situation P loses.
RATIO
It must be proven that the D’s negligence directly caused said injury and
not that the negligence was simply related to said injury.
STATUTORY SHIFT
MACDONALD v WOODARD [1973] ONT CO CT
FACTS
P, service station provider, stood in front of D’s car after boosting battery, is
then struck by D’s car.
RULING
Res ipsa loquitur is enacted via statute in s.193(1) of HTA: the owner or driver
is prima facie liable for damage caused by his motor vehicle unless he satisfied
the Court on a preponderance of evidence that he was not in fact negligent. The
P need only show that the collision, and not the conduct of the driver, was the
cause of the damage.
So essentially, s.193(1) shifts BOP onto defendant, as the P only has to show that
damage was caused by the motor vehicle, then the onus shifts onto the D to
67
RATIO
disprove negligence (i.e. that his conduct did not negligently cause the damage).
In this case, Woodward could not disprove negligence, and so held for P.
Once a P establishes that damages were caused by presence of motor
vehicle, then rebuttable presumption of negligence arises in relation to
the D.
Highway Traffic Act, R.S.O. 1970, c. 202 (section 133)
DIRECTLY CAUSED INJURY (UNINTENDED TRESPASS)
DAHLBERG v NAYDIUK [1969] MB CA
FACTS
D fired at a deer but missed and struck the P, who was working on his farm
250m away. The D had obtained consent to hunt from the owner of the land he
was standing on, but not from the P.
RULING
From COOK v LEWIS, if the P sues under trespass (intentional tort), onus falls
on the D to disprove both negligence and intent on his part. So D’s burden is
higher for trespass than for negligence – on the same facts, P’s action is more
likely to succeed under trespass than negligence.
At the bottom of page 735 we see that English courts have removed this oddity,
but here Dickson J.A. feels compelled to follow SCC, so works within this rule. In
this case, the D fails to disprove negligence and so held for the P under trespass.
RATIO
There is a difference in burden of proof depending solely on the whether
the force was indirectly or directly applied.
MULTIPLE NEGLIGENT DEFENDANTS
COOK v LEWIS [1952] SCC
FACTS
Friends hunting. Lewis was hiding in a bush, got shot and lost an eye.
Determined that one of friends’ shots that hit him, but could not decide whose. C
of A ordered a new trial. Cook appealed.
RULING
Ruling for Lewis – appeal dismissed.
RATIO
Once the P shows that he was injured by one or more negligent actors,
then the burden shifts to the Ds to disprove they caused the P’s injury.
MULTIPLE NEGLIGENT PARTIES
Interesting permutations can arise when one of the negligent actors is the P (from note 5, page 740)
LEAMAN v REA [1954] NBCA
FACTS
Collision between vehicles traveling in opposite directions on a straight stretch
of highway.
RULING
Held that both are to blame, damages apportioned equally.
RATIO
In absence of evidence that one or the other caused the accident, both are
to blame.
68
WOTTA v HALIBURTON OIL WELL CEMENTING CO [1955] SCC
FACTS
Collision between vehicles traveling in opposite directions on a straight stretch
of highway.
RULING
Distinguished from LEAMAN – that was a case where the facts supported an
inference of carelessness against both parties. In this case, neither party can
recover.
RATIO
LEAMAN is inapplicable to situations in which either the D or the P was
negligently responsible but the facts did not point to one or both parties as
being the probable cause of the accident.
RES IPSA LOQUITUR (EXPIRED)
Res ipsa loquitur means that the elements of duty of care and breach can be sometimes inferred
from the very nature of an accident or other outcome, even without direct evidence of how the D
behaved.
Conditions:
 Occurrence must have been one that does not, in the ordinary course of events, happen
without carelessness
 The instrumentality of harm must have been under the sole management and control of the
defendant or someone for whom the defendant is responsible, and
 There must not have been any direct evidence as to how or why the accident occurred
Possible Effect:
 Reverse the onus of proof
 Require defendant to present evidence sufficient to raise an inference of proper care at least
as strong as the inference of negligence raised by the plaintiff, or
 Provide basis upon which some inference of negligence might be raised
THE CASE LEADING TO THE EXPIRATION
FONTAINE v BRITISH COLUMBIA (OFFICIAL ADMINISTRATOR) [1997] SCC
FACTS
Edwin Fontaine and Larry Loewen went missing during a weekend hunting trip.
Three months later their truck was discovered in a river bed. Loewen’s body
was in the driver’s seat and Fontaine’s in the passenger seat. There was no
direct evidence as to what happened, only circumstantial evidence (rainy
conditions, car left the road at a dip). Fontaine’s widow brought an action under
the Family Compensation Act and sought to prove her claim using res ipsa
loquitur, arguing that the mere occurrence of the accident sufficiently
established that her husband’s death was attributable to Loewen’s carelessness.
RULING
Held for the D – the doctrine of res ipsa loquitur should be treated as expired
and no longer used in negligence actions. It is just an attempt to deal with
circumstantial evidence – better to leave the trier of fact to determine whether
the P has established on a balance of probabilities a prima facie case of
negligence against the D, using both direct and circumstantial evidence.
RATIO
Res ipsa loquitur has expired – trier of fact considers both direct and
circumstantial evidence to determine if P’s case has been made on BOP.
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29. VICARIOUS LIABILITY
Vicarious liability usually applies to organizations responsible for employees, and usually involves
cases where tortfeasor has access to children. Exception: parents are not vicariously liable for
their children’s torts. ON EXAM: Outline analytical framework from BAZLEY, then describe how
it's been tweaked by OBLATES. Vicarious liability is not a threshold test, but an analysis
independent from negligence – it is a form of strict liability.
STRICT LIABILITY
Requires 3 parties:
1) vicariously liable party
2) tortfeasor
3) victim/plaintiff
Vicarious liability usually arises from an employment relationship. Vicariously liable will not be
paying for a tort they commit; it will be a tort committed by someone else. The key question is
whether they are in right kind of relationship with the tortfeasor. The vicariously liable party might
also have obligations (like fiduciary duty) but have ignored them.
STATUTORY VICARIOUS LIABILITY
Statutory vicarious liability attaches to owners of vehicles. If you own a vehicle you are
responsible for the accidents it causes. This is because the insurance ties to the owner. Claimants
wouldn’t be able to recover if owner wasn’t responsible.
2 stages to the analysis
1. Relationship of tortious actor to the (possible) vicariously liable party
2. Nature of the act(s) committed by the tortious actor (in relationship to the
relationship)
EMPLOYMENT/MASTER-SERVANT RELATIONSHIP
This analysis enters when an employee is authorized by the employer to act, and does so in a way
that harms someone, but employer didn’t direct the actions of the employee. Basically, the tort
resulted from an improper attempt to do an authorized act.
For example, in the case of many abuse cases, the authorized act is to interact with the children.
BAZLEY v CURRY [1999] SCC
FACTS
Non-profit organization runs residential childcare facility. D worked in facility.
The P attended the institution and suffers sexual assault. Non-profit conducted a
thorough background check prior to hiring D and fired him as soon as his
criminal conduct was discovered.
RULING
Held for the P. The court notes it is often difficult to distinguish between an
unauthorized ‘mode’ of performing an authorized act that attracts liability, and
an entirely independent ‘act’ that does not.
TEST: After looking at how courts have tended to struggle with this difficult
matter, the SCC suggests a two-stage approach has emerged:
1. Look to precedent first: Are there “precedents which unambiguously
determine on which side of the line between vicarious liability and no
liability the case falls”? There is rarely precedent at this time.
2. If none, look to policy: If not, a court can “determine whether vicarious
liability should be imposed in light of broader policy rationales” (932)
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RATIO
Why hold vicarious party liable for tortfeasor’s actions? Does it make
sense given the fact pattern? Court first looks to precedent for a rule.
Previous cases can be grouped into 3 categories:
o Employee acting in furtherance of employer’s aims [can be explained by
‘agency/authority’ rationale]
o Employer’s creation of a situation of friction [can be explained by ‘creation
of risk’] cases where employment context creates situation where
opportunity for employee to do something and they do and they harm
something – ie. pedophiles – this is BAZLEY.
o Employee theft or fraud [hard to explain by ‘agency/authority’ or ‘creation
of risk’] – intentional act of fraud vitiates a BAZLEY-type situation.
What could possibly tie these three categories together conceptually? Court can
only identify one common feature: “… [I]n each case it can be said that the
employer’s enterprise had created the risk that produced the tortious act”.
Failing to identify any clear and complete resolution to the key question through
analysis of precedent, the Court then turned to matters of policy.
There are 3 policy considerations in the literature that seem pressing and
substantial (from LaForest J., in LONDON DRUGS, 934-935):
1. the promotion of justness and fairness. (courts prefer this one)
 “First and foremost is the concern to provide a just and practical
remedy to people who suffer as a consequence of wrongs
perpetuated by an employee”
 connected closely to the notion that the employer should be held
responsible for materially increasing the risk that led to the
tortious act (the employer put the enterprise into the world,
expecting to reap its benefits, and so be held liable for its costs)
 This is a new way of being “not-innocent”. It expands the
picture of what constitutes liability. Employer put
something into the world that created the risk.
2. deterrence, and;
3. the internalization of costs.
When precedent is inconclusive, court should apply the following tests:
1. Is there a “significant connection between the creation or enhancement
of a risk and the wrong that accrues therefrom”?
2. In determining the sufficiency of the connection between the employer’s
creation or enhancement of risk and the wrong complained of,
subsidiary factors may be considered.
The SCC provided a list of five (non-exclusive) factors to consider, case-by-case:
1. opportunity the enterprise offered employee to abuse his/her power
2. the extent to which the wrongful act furthered employer’s ends
3. extent to which wrongful act related to friction, confrontation, or
intimacy inherent in employer’s enterprise
4. extent of power conferred on employee in relation to victim, and
5. vulnerability of potential victims to wrongful exercise of employee’s power
Two-stage approach to vicarious liability:
1. Are there precedents which determines on which side of the line
between vicarious liability and no liability the case falls?
2. If not, a court can determine whether vicarious liability should be
imposed in light of the broader policy issues.
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SUBSEQUENT APPLICATION OF THIS APPROACH
JACOBI v GRIFFITHS [1999] SCC
FACTS
‘Boys and Girls Club’ offered Griffiths only slight opportunity to abuse the slight
powers he enjoyed as a result of his employment. While part of his job was to
establish rapport with children, not part of position envisaged by Club that he
would be intimate to degree envisaged in BAZLEY.
RULING
MAJORITY (Binnie, with Cory, Iacobucci, Major)
The majority accepts the characterization of the facts from Court of Appeal:
Mr. Griffiths was the Program Director of the respondent Club, one of
two full-time employees… In that capacity he was encouraged to form
friendships with the boys and girls. That was the most the Club could
ask him to do. It had no power or authority over the children. It was
not their parent. Nor did it stand in loco parentis. The boys and girls
went home to their parents after every activity.
The majority distinguishes this case from BAZLEY, where:
… [t]he opportunity for intimate private control and the parental
relationship and power required by the terms of employment
created the special environment that nurtured and brought to
fruition Curry’s sexual abuse. . . Indeed, it is difficult to imagine a job
with a greater risk for child sexual abuse (emphasis added).
While any situation which places adults in contact with children creates some
possibility of abuse, an employer who encourages an employee to create no
more than a positive rapport with children is not the same as BAZLEY.
Binnie J. found that once the children were drawn into Griffiths home-based
activities he increased the level of intimacy, but that this was unauthorized, and
against the values of the club. There was not a sufficient connection between
Griffith's activities and the Boys & Girls club to enforce vicarious liability.
RATIO
MINORITY (McLachlin, L’Heureux-Dube, Bastarache):
The minority characterizes the facts differently than the majority:
The Club employed Harry Griffiths as Program Director... Among
others, the objectives of the Club were “to provide behaviour
guidance and to promote the health, social, educational, vocational
and character development of boys and girls”. As Program Director
… Griffiths was encouraged to cultivate positions of trust and respect...
In her vigorous dissent McLachlin went on to argue that:
“Almost all the relevant factors suggest that Griffiths’ torts were,
in fact, linked to his employment…”
She argued as well that policy considerations point to imposition of liability:
1. The Club “… created and sustained the risk that materialized …
2. Compensation for the harm that followed may fairly be viewed
as a cost of the Club’s operation
3. The rationales of risk distribution and deterrence support
vicarious liability in these circumstances.
Example of application of BAZLEY approach. Courts will be hesitant to
impose vicarious liability where abuse is only barely aided by the
authority granted by the employer. Need strong connection between
action and harm caused.
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One of the trilogy from 2003:
KLB v BRITISH COLUMBIA [2003] SCC
FACTS
The Claimants, KLB, PB, HB and VERB were siblings. All four were placed in two
separate foster care homes with the agreement of their mother. They suffered
abuse in both placements. There had been warnings about the first foster
mother made to social services. In relation to the second set of foster parents,
there had also been serious concerns notified to the authorities. During this
placement, KLB was sexually assaulted by an older adopted son. After a
disclosure of physical abuse, the children were removed.
RULING
“… the person may properly be held responsible where the risks
inherent in his or her enterprise materialize and cause harm,
provided that liability is both fair and useful” [at paragraph 18,
referring to BAZLEY and JACOBI]
Matters that make imposition of vicarious liability difficult to predict are the
questions of ‘fairness’ and ‘usefulness’. These, in turn, are said to be properly
addressed by close consideration of the policy goals served by the imposition
of liability. Both justice and deterrence are said to be served when there is a
close link between the enterprise created by the employer and the wrong
committed by the tortious actor. There is also an economic consideration:
“… [S]eems just that the entity that engages in the enterprise
(and in many cases profits from it) should internalize the full
cost of the operation, including potential torts.”
Court returns to the specifics of how to determine if connection is close enough
– the five (non-exclusive) factors from BAZLEY. Basically boils down to asking if
the employer significantly increased the risk of the harm by putting the
employee in their position and requiring them to perform the assigned tasks.
The Court fleshes out the analysis with examples of situations in which risk
materially enhanced by enterprise in context of sexual abuse:
Time/space opportunities:
 Where employee permitted/required to be with children
 Where required to be alone with them
 Where required to supervise in intimate activities
[Of lesser import, but capable of negating]
 Where activities occurred off-site, after hours
Relationship opportunities:
 Where employee put in position of power over the child
 Where employee put in position of
respect/emulation/obedience
Key: All this to be investigated with close attention to particular circumstances,
but also with constant regard for policy considerations in play. Held that the
government is NOT vicariously liable for foster parents’ wrongs, because while
they serve a public goal, foster parents are & should be independent of close
government control: “they must operate independently of day-to-day state
control if they are to meet the goals of foster care.”
RATIO
Example of vicarious liability analysis.
Arbour J. dissented, using much the same language as McLachlin J. used in dissent in JACOBI:
 Should the government be held accountable when it acts “in loco parentis”?
 When children come into care, should the state be held responsible for protecting them?
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SEVERAL MORE-RECENT CASES TO CONSIDER:
BLACKWATER v PLINT [2005] SCC
FACTS
William Blackwater suffered abuse while attending Port Alberni Indian
Residential School (torn down in 2009). He sued both the United Church of
Canada (the organization that ran the school) and the government of Canada.
RULING
A key stumbling block for the Court of Appeal was finding multiple parties
vicariously liable (Church and Canada). SCC saw no overwhelming problem in
this - other jurisdictions have also recognized that multiple parties can be held
vicariously liable, even if it was historically rare. The SCC found that Canada and
the Church were partners in this enterprise, as Canada created the residential
schools and paid for them while the Church operated them.
Negligence
Interesting to note that the standard to apply is found to be that of the day (i.e.,
that of the 40’s and 50’s). Court asks, then, about what would have been
foreseeable and knowable, given the standards applicable at that time.
Vicarious Liability
Dispute arises between TJ and BCCA about whether the Church was sufficiently
the employer such as to hold it liable for actions of Plint, the employee. Par. 22 –
30: SCC goes through 8 reasons offered by TJ in support of contention that
church was situated as employer
Ct App had several concerns/arguments:
a. That Canada had more control over the situation, which in effect
pushes the church out of the picture
b. That church’s mandate (about Christian education) precluded notion
that Plint was acting within its enterprise
c. Difficulty in holding multiple parties vicariously liable
SCC finds fault with all these, and in finding partnership between church and
Canada, both are vicariously liable. To do otherwise would neglect one of the
primary policy considerations behind vicarious liability: deterrence.
Immunity for Church
SCC holds it would be improper to allow for this, for it would remove the
incentive on parties like the church to work toward better and safer practices
and policies. The Court found that it seemed likely sympathy was behind this
move, but the law should never decide on the basis of sympathy.
Non-delegable duty
There are some duties that fall on some parties that they can't delegate to
others. The SCC held that non-delegable duties should only be found where
there is clear and unambiguous language setting this out in the statutory regime.
Fiduciary Duty
This is quickly passed by, but raises major background concerns (raised in this
case primarily by intervenors). Elsewhere the SCC has held that the relationship
between the Crown (the government) and Aboriginal peoples is properly
described as fiduciary. Some would suggest (as the intervenors did) that this
relationship should come into play in precisely this sort of situation, for legal
duties befall fiduciaries in relation to their beneficiaries when they are
exercising discretionary power in relation to the legal and practical interests of
the vulnerable party.
74
The interveners note that in this context the focus is on fundamental interests of
Aboriginal peoples in Canada – the ability to maintain cultural integrity, to
maintain collective identities reaching back countless generations. The state
initiated policies and statutorily defined regimes designed to undercut the
ability of Aboriginal peoples to maintain the sorts of mechanisms essential to
the perpetuation of their cultures.
All this was, the Court says, underdeveloped in the submissions presented to the
courts, and so it passes this by. LOLLERSKATES
Assessment of Damages
Here Court faces the challenges around the notion of ‘fault’, around the idea that
within a strict liability regime fault could play any sort of role.
RATIO
Effect of Prior Abuse
The TJ tried to pull apart the damage resulting from abuse at the school from
damage resulting from prior abuse, only making the church and state liable for
the latter. P tries to get prior abuse pulled under abuse at school, but while
there may be links to other government policies, Court holds these were not
sufficiently argued for liability to be established.
P tries to argue that not to include the prior abuse into award would be to allow
the D to benefit from their wrong, but SCC says this is not a matter of reducing
award (which would confer a benefit on D), but rather of simply fixing award to
particular damage clearly shown to be result of ‘fault’ of D (in sense used in
vicarious liability).
Still, in paragraph 86 the Court leaves it open that with better argued (and
supported) litigation, the law may be able to consider these sorts of
‘background’ injuries.
One final comment (from remarks on quantum of damages, paragraph 94):
Court upholds TJ finding that plaintiff lacks intellectual capacity to do any
more than the most menial jobs, but does not see that tied to the sexual
abuse (and says it cannot go to the possible effects of the school situation itself,
the other forms of abuse, the nature of the below-standard education provided
by the programs, and so on).
Example of vicarious liability and non-delegable duties analyses.
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POSSIBLE CHANGES TO THE BAZLEY APPROACH
B(E) v ORDER OF THE OBLATES OF MARY IMMACULATE IN THE PROVINCE OF BC [2005] SCC
FACTS
Mr. Sacksey, a custodial employee of residential school (on Meares Island, run
by a religious order), abused the P. This case actually doesn't lead to any finding
of vicarious liability - it has to do with the nature of the task and therefore the
relationship.
RULING
Binnie J. gets out of BAZLEY the core notion that this case affected a shift away
from confusing ‘modes’ talk to concern over policy issues, and to focus on the “…
materialization of harm from risk generated by engaging in an enterprise
established by the parent body”.
The question Binnie J. sees then as central: Is it fair and does it promote
deterrence to say the Order of the Oblates should compensate B.(E.), as the risk
generated by their enterprise materialized into harm committed by their
employee?
Precedent (the first stage of BAZLEY)
Does Binnie J. treat this as a matter of matching up fact-patterns, looking for fit?
From his judgment:
From his judgment:
1. Stage One: Is the Outcome of This Case Dictated by Precedent?
41 In reaching his conclusion that the outcome of this case was not
determined by existing precedent, the trial judge perhaps insisted on
too high a degree of correlation on the facts. It is true that this case
is not on all fours with decided precedents, but the courts have
now dealt with a sufficient number of cases of sexual abuse in
different residential settings to provide adequate guidance with
respect to vicarious liability in this context. There was no need
here to return to the first principles of a policy-oriented analysis. …
42 Of course one of the challenges in applying the case law is that
in different fact situations the evaluation of the several factors may
tug in different directions. This is evident in the cluster of cases
decided in this Court since BAZLEY. …
47 While the residential setting in which the abuse took place here
would favour a finding of vicarious liability, the limited duties and
role of Saxey militate against such a finding. None of the cases
reviewed above [omitted] contain the precise configuration of facts
that exist in this case. Reference was made to the dictum of Cameron
J.A. of the Newfoundland and Labrador Court of Appeal in her partly
concurring judgment in JOHN DOE v BENNETT [2002] NF CA (affirmed
by this Court):
Precedent is beneficial in this context only if the facts are very
similar and it unambiguously determines the issue of whether
vicarious liability applies. [Italics in original; underlining
added; para. 171.]
The view that “[p]recedent is beneficial in this context only if the
facts are very similar”, in my view, overstates the requirement.
While BAZLEY spoke of “precedents which unambiguously determine
on which side of the line between vicarious liability and no liability
76
the case falls” (para. 15), it must be remembered that BAZLEY was a
pioneering judgment that developed an approach to vicarious
liability across a broad swath of social and economic relationships.
In considering the particular context of sexual abuse by employees
in school or equivalent settings, the cases since BAZLEY provide
sufficient guidance for the disposition of this appeal. While a parentlike relationship is not required, the facts must connect the tort
sufficiently “to the tortfeasor’s assigned tasks that the tort can be
regarded as a materialization of the risks created by the enterprise”
(KLB, at para. 19 (emphasis added)).
RECAP
The impact of these paragraphs would seem to be an injunction to lower
courts not to be overly concerned with looking for perfectly matching
precedent with the case before them – rather, courts should use precedent
in this context just for ‘guidance’.
But this does not entail going back to policy. Binnie J. holds that courts should
not do so, and do not need to (as policy discussions are too unpredictable).
Instead, the law around vicarious liability is now sufficiently rich in precedent –
to act as ‘guidance’ – that courts can by and large avoid arguments based on
‘first principles’ or policy.
Binnie J. notes that the factors important in determining whether the right
connections exist can easily go off in different directions between cases with
different fact patterns. Binnie J. then goes through numerous cases. In OBLATES
the Court was faced with a residential school setting, indicating value in
vicarious liability, but the job-duties go in other direction.
Binnie J. goes on to directly investigate 5 factors from BAZLEY, in light of
precedents and their guidance (Para 48):
1. Opportunity: In contrast to other cases, here it is at low end
2. Furtherance of employer’s objectives: ignored
3. Intimacy promoted: not for Saxey in his role (Binnie J. focuses on his
defined duties)
4. Power conferred: no power conferred on Saxey (he had ‘certain status’
as an adult in Residential School setting, but not enough to make the
Oblates into ‘insurers’). Power from context, not from Saxey's position.
5. Vulnerability: Children were vulnerable, but this is found to be because
of school setting, not the power placed in Saxey’s hands
While careful deployment of precedent resolves the issue before the Court,
Binnie J. goes on to consider policy:
 reaches back to remark in JACOBI: this has to be a matter of
balancing (erroneously viewed in isolation the fairness issue would
seem to favour imposing liability on the employer - paragraph 54)
 This carries over to all policy matters – it all comes down to matter
of weighing pros against cons (social concerns)
 For example, general thoughts about deterrence should be weighed
in relation to the effectiveness of deterrence on the facts (para 55)
Here Binnie J. finds positive concerns around fairness and deterrence are offset
by the fact that the ‘strong connection’ test cannot be met (which indicates it
77
would not be fair to impose liability). So, the earlier analysis (a look into
precedent, focused on need to establish ‘strong connection’) now seems to come
into the second stage, as its result can impact on determination of the fairness
of an outcome.
RATIO
Query: Is Binnie J. suggesting that if the analysis says there should not be
vicarious liability at the first stage, that it might be a waste to go on to the
second stage?
1. There is sufficient precedent now for most
cases to be resolved via analogy at the first
stage of the BAZLEY analysis.
2. Vicarious liability requires a strong
connection between what the employer
was asking the employee to do and the
wrongful act (based on 5 factors).
Q: So, where are we today?
A: Since courts are now directed to use precedents much more freely – as indicating principles or
guides to use in future cases, based on what recent cases have indicated. Vicarious liability has
been narrowed in its application. The strong connection test has also seemed to gain
ascendancy (over any sort of analysis that goes directly to such underlying concerns as justice
and fairness).
Q: Is this a less-plaintiff-friendly approach?
A: Yes, the analysis is more concerned with the creation of a context in BAZLEY, more focus on the
individual's role and responsibilities in OBLATES. If the focus was solely on the creation of the
risky enterprise, this would be a very P-friendly approach as it would essentially turn the
enterprise-creator into an insurer in nearly every situation. Even though the P lost in this action,
they could possibly argue that Oblates was negligent in hiring/training Mr. Sacksey (he had been
previously convicted on manslaughter).
FIRST STAGE IN ANALYSIS AROUND VICARIOUS LIABILITY
671122 ONTARIO LTD v SAGAZ INDUSTRIES CANADA INC [2001] SCC, 945
FACTS
Both P and D manufactured synthetic sheepskin car seat covers. P sold more
than half of its supply to Canadian Tire. D hired a marketing company to obtain
Canadian Tire’s business, which it did via a bribe. P sued, and key issue was
whether marketing company was an employee or an independent contractor.
RULING
Court focuses on first stage of the analysis: is the relationship here
(independent contractor) sufficiently close for the imposition of vicarious
liability to be appropriate? Closeness is assessed in terms of the policy goals
that imposition of liability is meant to further:
1. Fair and effective compensation
2. Deterrence of future harm
Notion is that imposing liability when relationship is sufficiently close will serve
to further these two policy goals, while imposing liability otherwise would be
both unfair and ill-suited to the aims of deterrence.
In SAGAZ the question was about employer/contractor relationship
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(employer/employee relationship being one of the clearest examples of a
sufficiently close relationship). Previous tests focused on element of control it's always a key factor. Problem was that often in a contractual situation there
would be more control than in a regular employment context. Courts then
devised ever more complex tests – an ‘entrepreneur’ test, an ‘organization’
test, and finally an ‘enterprise’ test.
RATIO
The court reviewed the nature and concerns around these varied tests, and
finally concluded that no single test worked best in all situations. He reached
back to what he saw as best synthesis of tests/factors (from Cooke J., in Market
Investigations Ltd v. Minister of Social Security (1968) 3 All E.R. 732
(Q.B.D.)):
Focus was not just on control the employer has over the other party:
The central question is whether the person who has been
engaged to perform the services is performing them as a person
in business on his own account. In making this determination,
the level of control the employer has over the worker’s activities
will always be a factor. [949]
“… other factors to consider include:
 whether the worker provides his or her own equipment,
 whether the worker hires his or her own helpers,
 the degree of financial risk taken by the worker,
 the degree of responsibility for investment and management held by the
worker, and
 the worker’s opportunity for profit in the performance of their tasks”
This is (yet again) a non-exhaustive list.
Whether independent contractors are liable is dependent on a
multifactorial analysis of the contract and relationship itself.
NON-DELEGABLE DUTIES
Even in cases where the relationship between the employer
and the party carrying out the work is deemed not
sufficiently close for vicarious liability to flow, it is still
possible the employer may be found liable under the
doctrine of non-delegable duty.
A non-delegable duty is some work or task initiated by a particular party may be such that that
party cannot divest itself of liability simply by having another party actually do the work or fulfil
the task. A government, for example, may hire independent contractors to carry out certain work
(like the maintenance of a highway) and one might think then that the government would not be
liable for any tortious act committed by the contractor. But the common law may determine that
this work is such that the government can never completely divest itself of its responsibilities
simply by contracting out the task(s).
Q: How do you when someone has a non-delegable duty?
A: Based on precedents: duty to refrain from nuisance, provide lateral support, etc. There is no
bounding by principle, all contextual and piece-meal.
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LEWIS (GUARDIAN AD LITEM OF) v BC [1997] SCC, 951
FACTS
BC government overseeing road maintenance, which they have an obligation to
do (JUST). They contracted out some of this work to independent contractors
(likely why vicarious liability wasn't argued). So a question of a non-delegable
duty arises - does the government have an obligation not only to do road
maintenance, but also to do it non-negligently (creation of non-delegable duty)?
RULING
The non-delegable duty “… adds another obligation – the duty to ensure that
the independent contractor also takes reasonable care” [1/2 way down 952,
from McLachlin J.’s concurring judgment, emphasis added]
In her concurring judgment McLachlin J. found that:
“Rather than confirm or add to a hodgepodge of categories, we
should seek the underlying principles that justify the imposition
of a non-delegable duty on a person who hires an independent
contractor to have work done”
“Whether a non-delegable duty arises ‘will depend upon the
nature and the extent of the duty owed by the defendant to the
plaintiff’”
“…. will depend to a large extent upon the statutory provisions
involved and the circumstances presented by each case”
Key statutory provision: s. 48 of the Ministry of Transportation and
Highways Act, R.S.B.C. 1979, c. 280:
The Ministry “shall direct the construction, maintenance and repair”
of all highways
CORY J believes that this alone creates a non-delegable duty seems like an overreach.
MCLACHLIN J argues that this alone is insufficient to create a
non-delegable duty.
Key circumstances (according to McLachlin J.):
 Road maintenance is entirely within the power of the Ministry
 The public, then, is entirely vulnerable to the exercise of this power
(having no say over who performs this work, and how they do so)
 Safety and lives are at stake in this sort of situation
To what extent does the presence of a non-delegable duty reach in
contrast to a finding of vicarious liability?
The non-delegable duty only extends to tortious acts of the contracted party
directly related to the contracted work. So, for example, if a contractor is
charged with repairing a highway and negligently injures someone in the
course of that work, the injured party may be able to pull the authority that
contracted for this work into liability.
Vicarious liability, on the other hand, extends potentially to any act leading to
injury to a possible plaintiff if the ‘wrongful act’ were found to be ‘strongly
connected’ to ‘what the employer was asking the employee to do’ (OBLATES)
So, for example, if an employee were engaged in the task of repairing a highway
and negligently hit the car of a possible plaintiff while driving to the work-site,
the employer might be found vicariously liable. Note of caution: in many of the
vicarious liability cases we looked at post-2001 the SCC denied the application
of the doctrine of non-delegable duty (door seemed to open in LEWIS, but then
seemed to close shortly thereafter).
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RATIO
It should be possible to find a non-delegable duty without a statutory provision
in the background (in theory!). But all cases where NDD have been found
involved statutes thus far.
Whether independent contractors are liable is dependent on a
multifactorial analysis of the contract and relationship itself.
Q: Could NDD have applied in KLB or BLACKWATER? Does this suggest the continued application of
the approach in LEWIS?
31. STATUTORY PROVISIONS AND TORT LIABILITY
a) Introduction: Sources of law
A piece of legislation may create a statutory cause of action. This legislation will often also address
specific aspects of the statutory claim, such as standard of care or quantum of damages. The
judidicary has only to interpret the legislation.
 Legislation may affect the court’s analysis of the common law.
 Existence of a regulatory scheme may support finding a duty of care in negligence.
 Statutory provisions may help in determining the standard of care.
b) A few words about express statutory causes of action
For example, the Trespass to Property Act – most actions under s 2(1) of this act will also
give rise to an action in trespass to land. So a statute can create duty of care and define
standard of care.
c) Effect when the statute is directed toward government bodies
TRACHSLER v HALTON [1955] ONT HC
RULING
The Municipal Act creates a duty in municipalities to keep highways in a
condition that travellers using them with ordinary care may do so in safety.
RATIO
If the D can show they did all that could be reasonably expected to
discharge a statutory duty, they will not be held liable.
c) The Use of Statutes in Common Law Negligence
Q: What is the approach in Canada, up to this point (1983)?
STERLING TRUSTS CORP v POSTMA [1965] SCC
Breach of a statutory provision found to be prima facie evidence of negligence, unless
defendant can disprove negligence (shift in onus of proof).
R v SASKATCHEWAN WHEAT POOL [1983] SCC
FACTS
Wheat travelling by train to silos for storage. Boll weevils were infecting silos.
Wheat was put on the ship, noticed that it was infected, had to unload the ship
and disinfect the wheat, violating provisions of the Canada Grain Act.
Opportunity for parallel actions (common law and statutory). P wishes to
launch civil law action using breach of statute as a key element.
RULING
Justice Dickson, for a unanimous Court, dismissed the appeal of the Board and
held that there was no private right of action. Dickson examined the tort of
breach of statutory duty in both England and the United States. He concluded
that damages for breach of statutory duty should be subsumed by negligence.
First American approach (breach of conduct=negligence) is problematic
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RATIO
because there are statutes that are quasi-criminal, which have systematic
protections not present in the civil law regime - therefore, it makes the standard
of conduct too strict!
It is also better to avoid nominate 'tort of statutory breach'. Problems with both
nominate tort and ‘negligence per se’…
 Proof of statutory breach, causative of damages, may be evidence
of negligence
 The statutory formulation of the duty may afford a specific, and
useful, standard of reasonable conduct (1/3 down on 805)
Second American approach is preferable - grants the Courts discretion without
requiring problematic statutory interpretation.
The Court rejected the tort of breach of statutory duty. The courts should
only use breaches of a statute as evidence towards an established tort and
should not be trying to determine whether the legislature intended to
allow a private right of action.
Example of application:
GALASKE v O'DONNELL [1994] SCC
FACTS
8 year old kid with dad, neither buckle up as passengers in D's truck, but D does.
D didn’t say anything because he didn’t want to yell at dad in front of kid, but
they get into an accident and dad is killed, kid is paralyzed.
RULING
Remaining issue is whether the presence of the father alters the common law
duty. There is joint responsibility, but sharing responsibility does not negate
duty falling on the driver (as person in control). Note that question of standard
of care then comes up, and serves to temper what might otherwise be a strict
imposition on the driver.
RATIO
Obligation on driver to ensure children under 16 are wearing seatbelts.
Application of SASKATCHEWAN WHEAT POOL.
Compliance with Statutory Requirements:
RYAN v VICTORIA (CITY) [1999] SCC
FACTS
Ryan was riding motorcycle in downtown Victoria and had an accident due to
railcar lines in the street. Victoria argued that they were following all their
statutory duties regarding safe maintenance of the roads (flip-side of presence
of statutory provision).
RULING
“… By the same token, mere compliance with a statute does not, in and of itself,
preclude a finding of civil liability.” First full paragraph on 812 sets out basic
position vis-à-vis compliance. Note background requirement, similar to that
operating in context of statutory presence in relation to issue of duty: one must
consider the ‘scope’ of the statute.
RATIO
But as well in this context one should consider carefully whether the statute is
‘specific’ or ‘general’ (here unpacked in terms of whether the statute defines the
manner of conduct, or provides authority for action in a more or less undefined
manner):
“Where a statute authorizes…” (just past 1/3 down on 813)
Either the D or P can raise a statute in a tort action, but it only serves as
evidence as to the existence of and the standard for the duty of care, as per
SASKATCHEWAN WHEAT POOL.
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32. DEFAMATION
BACKGROUND
Defamation offers common law protection of reputation (not such things as feelings, pride or
privacy). The central challenge (heightened in the era of the Charter) is balancing the individual
interest in protecting a reputation against societal interests in the protection of free expression.
Form of strict liability – plaintiff not required to show intent or improper motive: actionable on
showing defendant made statements that
1. were defamatory,
2. made reference to the plaintiff, and
3. were published or disseminated (otherwise no reputational damage is possible).
Defamation is an easy action to launch, but not so easy to win as there are a number of ways for the
defendant to avoid liability. Should plaintiff show defendant made defamatory statements the law
in Canada presumes they are false (with the defendant charged with the burden of showing, if s/he
can, that they were in fact true).
Showing truth is one of several ways in which defendant can try to defuse a claim of defamation,
most of which touch on underlying interests in the protection of forms of free speech/expression.
Defences have been strengthened over the past 15-20 years. While generally speaking showing lack
of intent or presence of a ‘good motive’ does not function to protect defendants from liability,
malice can play a role in certain defences.
ELEMENTS OF THE ACTION
a. Defamatory statement(s)
Meaning of ‘defamatory’
From SIM v STRETCH [1936] UK HL (1005):
“… would the words [of the statement(s)] tend to lower the plaintiff in the
estimation of right-thinking members of society generally?”
The defamatory content can be shown through the literal (or "plain and ordinary") sense of the
statements. It's a modified objective standard ("right-thinking members of society"). Most courts
use "ordinary members of the audience" instead these days to avoid idealism about the makeup of
society (don’t stop snitching!).
It can also be shown through:
a. legal or true innuendo (if those receiving the statements know of context or extraneous
circumstances that would give the publication a defamatory meaning), or;
b. false or popular innuendo (if an ordinary individual receiving the statements, absent
circumstances noted in (a), would be able to infer something defamatory (the plain and
ordinary meaning, under this approach, would be said to include something beyond the literal
sense))
In SIM v STRETCH the HL could find only one reasonable interpretation of the statements at issue (an
interpretation which did not impute ‘meanness’). If there had been multiple reasonable
interpretations they did note that the law should not automatically lean toward the one that might
be defamatory – the test would involve an examination of the circumstances.
Note that ‘right thinking’ is allowed to change over time (as it must), so that what ‘right-thinking’
members of society might find defamatory a generation ago might well not be what ‘right-thinking’
members find defamatory today.
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b. About the plaintiff
1944 HL decision, KNUFFER v LONDON EXPRESS NEWSPAPER LTD, makes use of two-level analysis of
whether a statement refers to the plaintiff:
Question of law: can the statement be regarded as capable of referring to the plaintiff?
Question of fact: does the statement in fact (in the minds of reasonable people, who know
the plaintiff) refer to the plaintiff?
BOOTH v BCTV BROADCASTING SYSTEMS [1982] BCCA
FACTS
Segment on BCTV about prostitution in Vancouver. Interviewed prostitute who
spoke on camera spoke about kickbacks to the police. She refused to name
names, but said "there are a couple of people at the top who are involved". Mr
Booth was one of the few to launch a successful defamation claim (2 out of 11).
RULING
Court applies test from KNUFFER, finds that only Booth passed the question of
fact - other members of the top end of the unit did not because no reasonable
people who knew them would have seen the statement as referring to them.
RATIO
Incorporated test from KNUFFER into Canadian law.
In big groups, plaintiffs are very unlikely to succeed on the question of fact.
Note the lack of focus on intent (or reasonable care) in defamation – it is no answer for the
defendant to say s/he did not intend to identify the plaintiff (or that s/he took reasonable care to
avoid identifying the plaintiff).
[Bearing in mind that the statement, of course, must be communicated to an audience for
reputation to be damaged, and so a reasonable member of this audience must be able to
understand the statement was directed toward the plaintiff]
c. Published or disseminated
The defamatory statement(s) must be communicated to a third party. If the statement is only
heard by accident, that is not communication in this context (and so an element of fault creeps
into defamation at this point). Likewise, if statement noticed by third party in circumstances
defendant would not normally have anticipated, that is not communication
Those involved in the business of communication (newspaper/magazine/book/internet
publishers) should be cautious in dealing with possibly defamatory communications, as they too
can be caught up in lawsuits around defamation (and should be sued jointly along with the party
originally making the defamatory statement(s): see note 5, page 1012).
Note: The common law’s position on this seems to be loosening. In MENEAR v MIGUNA [1996] ONT
CA, the Ontario Court of Appeal signaled concern with joint liability, finding that it seems unfair to
hold printers liable when today they are not expected to read what they print.
If publisher takes link down as soon as they are informed they are defamatory, courts are more
likely to be sympathetic and see them as an innocent publisher.
Statements made in court can qualify as publication (PRICE v CHICOUTIMI PULP [1915] SCC).
DEFENCES
a. Justification
In establishing a claim the plaintiff need not show lack of truth – that is presumed when the basic
elements are established. The defendant then has an opportunity to show, under a burden of proof,
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that the statement(s) were true. Not sufficient that the defendant show that s/he believed the
statement(s) to be true.
With several statements being made, and often a set of possible factual underpinnings available, it
can be difficult to know whether a defendant has succeeded in showing a sufficient connection
between truth and the statements made.
WILLIAMS v REASON [1988] UK CA
FACTS
Here, the ‘sting’ of the libel (the heart of the defamation contained in the
statements) is that of ‘shamateurism’ (that the plaintiff was not really an
amateur athlete, but a professional pretending to be one, the allegation being
tied to ‘hypocrisy’ and ‘deviousness’), and was originally tied to the charge he
was going to make money off the writing of a book about his athletic career.
The evidence relates to the P having received money for being tied to a
particular shoe company.
RULING
WILLIAMS test:
Is the evidence [of truth of x] is relevant to the words [contained in
the defamatory statements], understood in any meaning which they
are reasonably capable of bearing?
The English CA finds the requisite degree of ‘relevance’ between the two for
justification to operate as a defence based on the later factual background, even
though the defendant didn't know about it originally.
RATIO
The D doesn't need to know that the statements were true at the time they
were made, they only need to establish that the statements are sufficiently
justified by evidence.
Note: it may not be sufficient in some circumstances for defendant to show literal truth of
statements if it is clear in these circumstances that the statements were made in a manner so as to
create the impression they were false. For example:
BANK OF BRITISH COLUMBIA v CANADIAN BROADCASTING CORPORATION (1995) BCCA
FACTS
Mid-80s, banks are unstable and CBC made a report about the instability of
Bank of British Columbia. In particular, there was a conversation with an
analyst that said the bank needed an emergency influx of cash. Bank of BC
argued that the CBC report was defamatory, while CBC argued that the report
was based on the truth.
RULING
Bank of BC argued that CBC had taken individually true statements and edited
them together to create a false impression, that the bank was fragile. The Court
of Appeal agreed, and held that CBC had to produce background documentation
to substantiate the claims made in the report, in order to apply the WILLIAMS
test. CBC settled out of court with the Bank of BC.
RATIO
Example of how the WILLIAMS test is present in Canadian law.
b. Absolute Privilege
Three categories:
1. Statements made by executive officers (‘high officials’) relating to affairs of the state;
2. Statements made during Parliamentary proceedings; and
3. Statements made in the course of judicial or quasi-judicial proceedings
Under the first category: DOWSON v THE QUEEN [1981] FCA, 1019
Note the role the underlying reason for this form of immunity plays in the line-drawing exercise in
this case (who counts as an executive officer or ‘high official’ so as to enjoy this protection?).
85
Ultimately (page 1021) the Federal Court of Appeal finds that statements made by RCMP Chief
Superintendent Vaughan to Ontario’s Acting Assistant Deputy Attorney-General McLeod fall under
this privilege, as both individuals were found to be akin to ‘agents’ of sufficiently high officials (the
first of the Solicitor-General of Ontario, the second of the Attorney-General of the province).
Note: malice said to play no role in this setting – it is said to be ‘irrelevant’ to the case of absolute
privilege. The suggestion had been made that the RCMP had seized on this opportunity to pursue
some other objective – the FCA found that possibility to be irrelevant.
A significant challenge under the third category (which as well protects all parties to judicial/quasijudicial proceedings from defamation claims, even in the presence of malice) is in determining the
range of ‘judicial and quasi-judicial’ proceedings.
HUNG v GARDINER [2003] BCCA
FACTS
Member the Law Society who is also a Chartered Accountant who is
investigated but not disciplined. Wanted to claim that the statements made
during these proceedings were defamatory. Issue: is this setting covered by
absolute privilege?
RULING
Court accepts the test from O’CONNOR v WALDRON [1935] UK, wherein Lord
Atkin found that:
The question therefore in every case is whether the tribunal in
question has similar attributes to a court of justice or acts in a
manner similar to that in which courts act.
Key attributes or functions of a court-like body include those of determining
legal rights and affecting the status of parties appearing before it.
RATIO
Test for absolute privilege: does the tribunal have the key attributes or
functions of a court-like body?
c. Qualified Privilege
Qualified privilege can be found when a court determines that the speaker had an interest or duty
(legal, social or moral) to make the statement(s), and the recipient had a reciprocal interest to
receive the statement(s).
Important sense in which it is ‘qualified’: the privilege functions to rebut any presumption of
defamation, but can itself be undermined by arguments by the plaintiff to the effect that the
statements were made out of malice, or in some other way the privilege was exceeded.
Interests that can be recognized:
1. An interest a speaker may have in protecting his/her own interests (allows for a certain
degree of reaction to an attack on one’s own character, governed by proportionality).
2. An interest a speaker may have in protecting the interests of a third party (if x attempts
to damage the reputation of y, z may be able to act under a qualified privilege to answer
these attacks with statements that might otherwise be considered defamatory to x, or z
may say something seemingly defamatory about x to y, in order to protect y’s interests).
MCCAIG v REYS: Telling wife about husband’s infidelity.
3. An interest the speaker may share with the audience receiving the statements
MCLOUGHLIN v KUTASY [1979] SCC
The defendant doctor made a report to a branch of the Ontario government
detailing the potential danger posed by a job candidate for a hazardous
construction project, and the Court agreed that it was in the interests of the both
the speaker and the audience that the report be made and delivered.
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4. A public interest: broad category, covering some cases of political speech (speaker must
have duty to publish the information and recipient have an interest in receiving it,
concerning matters of public interest, safety and/or health).
Seems to have been broadened in CAMPBELL v JONES [2002] NSCA
NS Court of Appeal took note of Charter-right violations (several students having
been strip-searched, arguably at least partly due to their race and social status),
and saw that as raising the matter to one in the public interest, so that defamatory
statements made in a press conference about the incident were covered by this
qualified privilege.
5. Fair and accurate reporting (covering reports of proceedings open to the public,
including judicial proceedings).
HILL v CHURCH OF SCIENTOLOGY [1995] SCC
FACTS
Church of Scientology intended to commence criminal contempt proceedings
against a Crown Attorney, Casey Hill, alleging he had misled a judge and had
breached orders sealing documents belonging to Scientology in R v CHURCH OF
SCIENTOLOGY OF TORONTO.
At the contempt proceeding where the appellants were seeking a fine or
imprisonment against the defendant, the allegations against Hill were found to
be completely untrue and without foundation. Thus Hill launched a lawsuit for
damages in libel against the appellants. Both appellants were found jointly
liable for general damages of C$300,000 and Scientology alone was liable for
aggravated damages of C$500,000 and punitive damages of C$800,000. The
judgment was affirmed in a 1993 decision by the Court of Appeal for Ontario.
The major issues raised in this appeal were: Was the common law of defamation
valid in light of the Canadian Charter of Rights and Freedoms and whether the
jury's award of damages could stand.
RULING
Court is willing to extend the scope of qualified privilege to encompass remarks
made concerning not just the proceedings of a court but about “pleadings or
other documents which had not been filed with court or referred to open court”.
The majority was willing to concede that in the modern era there exists a right
to report on court proceedings that extends to these sorts of documents (as in
the public interest).
The question here, however, is about the fact that such a privilege is qualified.
This sort of privilege is non-absolute in the sense that;
a. it can be exceeded, and;
b. it can be defeated by showing the presence of malice
Malice is:
1. The presence of spite or ill-will;
2. Any indirect motive or ulterior purpose (that conflicts with the sense of
duty or the mutual interest which the occasion created); or
3. The presence of dishonesty, or a demonstration that the defendant spoke
in knowing or reckless disregard for the truth.
RATIO
Exceeding the privilege:
“Anything that is not relevant and pertinent to the discharge of the duty or the
exercise of the right or safeguarding of the interest which creates the privilege
will not be protected” (ADAM v WARD [1917] UK HL)
Only defamatory statements that are relevant to the duty, right or interest
which creates the privilege will be protected.
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d. Fair Comment
Test for Fair Comment defence requires:
1. Comments (not allegations of fact or accusations);
2. Capable of being honestly (or ‘fairly’) held;
3. Based on facts;
4. That pertain to matters of public interest
CHERNESKEY v ARMADALE PUBLISHERS LTD [1979] SCC
FACTS
Law students at the University of Saskatchewan had sent a letter into the
Saskatoon Star-Phoenix, commenting on a report the newspaper published
about a presentation made at a meeting in a neighborhood about the possibility
of an alcohol rehabilitation center being opened in the neighborhood.
Cherneskey was both an alderman and lawyer present at the meeting, and his
presence at the meeting was remarked upon in the student’s letter. Their letter
was headed “Racist Attitudes”, and referred to comments made at the meeting
about the fear this center would turn the neighborhood into an ‘Indian and
Metis ghetto’.
RULING
The SCC upheld the trial judge’s decision not to allow the defence of fair
comment be submitted to the jury, as it could not be said that the comments
were honestly held by any particular person (the law students were no longer
in the province, and the editor and others at the newspaper actually testified
that they did not ascribe to the comments made in the letter they published).
RATIO
Old rule: to successfully plead fair comment the defendant must show s/he
had a subjectively honest belief in the defamatory statements.
WIC RADIO LTD v SIMPSON [2008] SCC
FACTS
Here: radio commentator (Rafe Mair) seemed to suggest advocate opposed to
introduction of materials dealing with homosexuality in public schools (Kari
Simpson) might ‘condone violence toward gay people’.
RULING
The SCC looked at the ‘honest belief’ requirement from CHERNESKEY and found it
troubling. If Mair were willing to insist he did honestly believe Simpson
condones violence this condition would be met, but he actually maintained in
court that he did not actually believe this (and so would likely fail then in
making use of this defence). The Court finds this an odd outcome, illustrative of
difficulties in the way the defence is understood post-CHERNESKEY. Court then
went on to consider alternatives, which included abolishing the requirement of
honest belief, or changing it to one of whether the comment (a) was ‘fairly’ held
(on the basis of the facts), or (b) was reasonably held, or (c) had a connection of
‘relevance’ to the facts (but finds all these deficient, in one way or another).
A concern with the subjective-honest belief requirement is that if it were
applied to disseminators of information (newspapers, for example), they
would be restricted to providing comments with which they honestly
agreed. SCC finally came down in agreement with Dickson J.’s approach (in
dissent in CHERNESKEY).
RATIO
Switch to from requiring honest belief, to objective test of whether any
person could honestly hold that belief.
Comment versus fact
88
A court views the matter from the perspective of a reasonable viewer/reader to assess whether a
statement was a comment (as opposed to an allegation of fact or an accusation). The comment need
not be ‘fair’ (in the sense that one could judge according to how fair it might seem), but rather it
needs to be judged to be ‘honestly held’ in an objective sense (in the sense that someone might
hold such a belief/opinion, given the known factual grounding). This ‘factual grounding’ must be
either sufficiently stated or otherwise be known to the listeners (so they can make up their own
minds about the comment).
The place of malice in this defence
The Court decides to leave malice as something to be shown by the plaintiff (if s/he can), once the
defence of fair comment has been made out. The possibility here is for the plaintiff to show that,
while it may be that some individual might honestly believe in the comment made in the defamatory
statement(s), the defendant did not actually believe in the contents of the comment (and was
actually motivated by malice).
Exception to the ‘true underpinning’ requirement:
While generally the defendant must show facts underlying the comment(s) are true, this does not
apply with imputations of ‘corrupt or dishonorable motives’ in statements made.
This is a historically-grounded exception that persists in the common law, originally based in an
interest in making sure that individuals of good honor and integrity are not kept out of pursuing the
public life (where they might be slandered along these lines).
a. Responsible Communication on Matters of Public Interest
Over the last few decades the common law in Canada came to perceive a gap in the defences
available for those making remarks about matters of public concern. Attempts at using a form of
qualified privilege often failed due to the lack of any ‘reciprocal interest’ in the public in receiving
the information/opinion provided. For the most part, qualified privilege has been seen as
unavailable to the media.
Further, many of the claims/opinions advanced were such as to have it be very difficult for the
defamers to be able to show the truth of the claims (or the truth underlying the opinions) in a court
of law [so, both justification and fair comment were often unworkable as defences].
So the media don't have many defences to defamation, and this isn't really in line with the Charter
and s 2(b).
GRANT v TORSTAR [2009] SCC
FACTS
The Toronto Star (Torstar Corp.), a newspaper and the defendant, published a
story concerning the proposed development of a golf course on land owned by
Peter Grant, the plaintiff. The stories contained comments by local residents
that were critical of Grant, alleging that he was using his political influence to
gain permission to build the golf course. In particular, a resident claimed that
the decision to allow the golf course was a 'done deal'. The newspaper contacted
Grant for comment, however he declined. The Toronto Star published the
article, and Grant sued for defamation.
RULING
Argument for crafting a new defence:
The perceived gap
1. See need to bring common law more in line with Charter values, and with
current understandings of the tension between these values and other
valuable protected interests
2. Guarantee of free expression in Section 2(b) seen as grounded in three
rationales: (a) democratic discourse, (b) truth-finding, and (c) self89
fulfillment [para. 47]
3. The third is here of ‘dubious relevance’, as reputation is itself essential to
self-fulfillment
4. The first two, however, have ‘profound relevance’ in this context
5. Democratic discourse: “Productive debate [in the democratic arena] is
dependent on the free flow of information”, though this freedom “does not
negate responsibility” [para. 52-53]
6. Truth-finding: Open debate seems required in many cases if the public is
ever to “learn the full truth on the matter at hand” [para. 54]
7. The competing value – protection of reputation – “recognizes both the
innate dignity of the individual and the integral link between reputation
and the fruitful participation of an individual in Canadian society”
8. The balance: “People in public life are entitled to expect that the media
and other reporters will act responsibly in protecting them from false
accusations and innuendo. They are not, however, entitled to demand
perfection and the inevitable silencing of critical comment that a standard
of perfection would impose.” [para. 62, page 1052]
This should not be a defence limited to ‘journalists’ narrowly construed – it
should be available to “anyone who publishes material of public interest in any
medium”.
It must be a publication on a matter of public interest:
Whether something is of public interest must be settled by a judge through a
broad examination.
“Public interest” is not what interests the public, but rather “Whenever a
matter is such as to affect people at large, so that they may be legitimately
interested in, or concerned at, what is going on; or what may happen to them or
to others; then it is a matter of public interest” [para. 104, quoting Lord Denning
in LONDON ARTISTS v LITTLER [1969] UK CA].
The Court is content to find overlap with jurisprudence around the ‘public
interest’ in the area of fair comment – there is a long history of struggle there
around what counts as discussion in the arena of the public interest.
That is ‘responsible’ (implicit standards of journalism):
1. The more serious the allegation the more the degree of diligence expected
of those who are expected to be doing what they can to ensure the truth of
the statements made
2. The greater the sense that the statements are connected to matter of
serious public import, the less care might be expected of the publisher(s)
3. Similarly, the more urgent it might be to get the statements out to the
public, the less care might be expected of the publisher(s)
4. The more untrustworthy a source of information for the statements might
be, the more likely it would be expected that the publisher(s) have been
diligent in attempting to verify the information provided
5. It would be normally expected that the publisher(s) would try to get ‘both
sides’ of a story (typically by giving the person(s) the statement(s) are
about an opportunity to respond to them before publication)
When invoking the ‘reportage’ rule (which allows for republication of certain
material, when the republication is itself a matter of the public interest, as the
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RATIO
new publication is merely seen as ‘reporting’ on a dispute already in the public
arena) the publisher(s) must take care that reportage is what is taking place
Establishes new defence of responsible communication on matters of
public interest.
e. Consent
In some circumstances the defendant may be able to show that the plaintiff consented to his/her
making of the defamatory statement(s).
JONES v BROOKS [1974] SK QB
FACTS
P hired private investigators to induce others to defame him.
RULING
Macpherson J. adopts an approach taken in the United States in TEICHNER v
BELLAN [1959] NYS:
Consent is a bar to a recovery for defamation under the general principle
of volenti non fit injuria or, as it sometimes put, the plaintiff’s consent to
the publication of the defamation confers an absolute immunity … upon
the defendant …. However, a plaintiff who had authorized an agent to
make an inquiry on his behalf is not to be charged with consent to a
defamatory statement made in reply to the inquiry, unless he had reason
to anticipate that the response might be a defamatory one…
Macpherson J. also accepts that even when one instructs someone else to obtain
statements from an individual, the making of the statements to the agents
constitutes publication.
There is, then, a finding of defamation – but it is entirely undercut with the
defence of consent. It operates as a complete (or ‘absolute’) privilege – whether
the defamatory statements were said with malice, or exceeded the privilege
(within the context of that occasion) is not relevant.
RATIO
P's consent to defamation is an absolute defence to a charge of defamation.
Agents inquiring on P's behalf don't qualify as consent unless the P
anticipated the statements would be defamatory.
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EXAM FLOWCHART
Map out parties that have been injured and their relationships in the first 15 minutes.
ACTIONS UNDER NEGLIGENCE
1. Parties & Damages
 Who are the parties?
 What is the type and extent of the damages – physical, psychiatric, economic?
2. Duty of Care
 Is this analogous to an established category of duty of care? Which of the following:
 Duty to control the behaviour of others
 Duty to control or prevent crime
 Duties to perform gratuitous undertakings
 Duties to the unborn
 Psychiatric harm
 Health professional’s duty to warn
 Manufacturer’s duty to warn
 Negligent misrepresentation
 Defective or dangerous structures
 Relational economic loss
 Liability of public authorities
 Misfeasance in public office (not covered, only mentioned in COOPER)
 Run through a COOPER analysis unless the facts is definitely an established category
i. Reasonable foreseeability and proximity
 Was the harm the RF consequence of the D’s act?
 Was there sufficient proximity to impose a duty of care? Policy reasons
to do with the relationship enter here.
ii. Residual policy matters
 The burden rests on the D to establish that policy concerns should
reduce or negate the prima facie duty established.
3. Standard of Care
 What is the standard of care?
 Has there been a breach?
RYAN v VICTORIA [1999] SCC
Conduct is negligent if it creates an objectively unreasonable risk of harm… The
measure of what is reasonable depends on the facts of each case, including:
1. the likelihood of a known or foreseeable harm,
2. the gravity of that harm, and
3. the burden or cost which would be incurred to prevent the injury.
In addition, one may look to external indicators of reasonable conduct, such as
custom, industry practice, and statutory or regulatory standards.
 Where there is physical harm, the standard of care analysis will be easier.
4. Causation
 The but-for test is the standard, with exceptions for:
 Multiple negligent defendants
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 Learned intermediaries
 Informed consent
 Could either the material contribution or materially increased risk tests apply?
 Is remoteness an issue? Not always present.
5. Defences
 Contributory Negligence
 Seatbelt Defence
 Voluntary Assumption of Risk
 Illegality
 Inevitable Accident
Reasonable foreseeability in three contexts
 In the duty of care analysis, RF is about relationships…in D&H — neighbours; transforms
in COOPER where there is RF and Prox; is there a legal relationship between the P and the
D; was the D a kind of person that should have been thinking a kind of person could have
been injured? Was she part of the group that was close enough?
 In the standard of care analysis, RF is about particular actions. Recall the cricket cases –
should they have done something to prevent balls hitting pedestrians. This analysis will
come down to the balance between material risk and burden of prevention.
 In the remoteness analysis, RF has to do with the extent of liability – liability can only
come up if you have the right kind of situation.
ACTIONS UNDER VICARIOUS LIABILITY
1. Outline vicarious liability
2. Look to precedent first: Are there “precedents which unambiguously determine on which
side of the line between vicarious liability and no liability the case falls”? There is rarely
precedent at the time of BAZLEY, but OBLATES has suggested that there is now sufficient
precedent to deal with many claims of vicarious liability at this stage. Previous cases, at the
time of BAZLEY, can be grouped into 3 categories:
a. Employee acting in furtherance of employer’s aims [can be explained by
‘agency/authority’ rationale]
b. Employer’s creation of a risky situation: cases where employment context creates
situation where opportunity for employee to do something and they do and they
harm something – ie. Pedophiles – this is BAZLEY.
c. Employee theft or fraud [hard to explain by ‘agency/authority’ or ‘creation of risk’] –
intentional act of fraud vitiates a BAZLEY-type situation.
What could possibly tie these three categories together conceptually? Court can only
identify one common feature: that the employer’s enterprise created or contributed to the
risk that produced the tort.
3. If there is insufficient precedent, look to three primary policy considerations, from LONDON
DRUGS: promotion of justice and fairness (connected closely to the notion that the employer
should be held responsible for materially increasing the risk that led to the tortious act, as
the employer put the enterprise into the world, expecting to reap its benefits, and so should
be held liable for its costs), deterrence and the internalization of costs. In light of these
policy considerations, the court formulates the following test:
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a. Is there a “significant connection between the creation or enhancement of a risk and
the wrong that accrues therefrom”?
b. In determining the sufficiency of the connection between the employer’s creation or
enhancement of risk and the wrong complained of, subsidiary factors may be
considered.
The court in BAZLEY provides a list of five (non-exclusive) factors to consider, case-by-case:
i. opportunity the enterprise offered employee to abuse his/her power
ii. the extent to which the wrongful act furthered employer’s ends
iii. extent to which wrongful act related to friction, confrontation, or
intimacy inherent in employer’s enterprise
iv. extent of power conferred on employee in relation to victim, and
v. vulnerability of potential victims to wrongful exercise of employee’s power
4. In OBLATES, the court identifies the key aspect of BAZLEY approach as its focus on the
relationship between the harm generated and the risk generated by the employer’s
enterprise – based on these factors, does imposing vicarious liability promote deterrence
and fairness? The Supreme Court in OBLATES suggests that courts should not insist on too
high a degree of correlation factually when it comes to precedents, but look to similarities
with other cases so that not every analysis returns to the first principles of policy. Precedent
can be beneficial even when the facts are not very similar and do not unambiguously
determine whether liability should be imposed. Therefore, the law of vicarious liability is
sufficiently rich in precedent that courts can by and large avoid arguments based on
first principles or policy. Rather, the court in OBLATES suggests that precedential analysis
should be guided by the same five factors guiding the policy analysis in BAZLEY, and that
vicarious liability requires a strong connection between what the employer was asking the
employee to do and the wrongful act, based on these five factors. Following OBLATES, courts
will use precedent much more freely as indicating guiding principles for their analysis, and
the strong connection test has displaced analyses of underlying policy concerns. This is a
less-plaintiff friendly approach, as the focus has shifted from the creation of context of risk
in BAZLEY to a focus on the tortfeasor’s role and responsibilities in OBLATES.
5. The nature of employment relationship is also crucial – is it an employee, or merely an
independent contractor? If the latter, go to SAGAZ. Also consider the role of non-delegable
duties, and the analysis from LEWIS.
ACTIONS UNDER DEFAMATION
Defamation is a form of strict liability, so the P is not required to show intent or improper motive,
merely that the D made statements that:
1. were defamatory,
2. made reference to the plaintiff, and
3. were published or disseminated (otherwise no reputational damage is possible).
As such it is relatively easy to get an action under defamation off the ground. Accordingly, there are
a number of defences to limit liability:
1. Justification
2. Absolute Privilege
3. Qualified Privilege
4. Fair Comment
5. Responsible Communication on Matters of Public Interest
6. Consent
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CLASSIFYING CASES
1. Cases to avoid (from other jurisdictions and/or not followed in Canada)
a. Murphy v. Brentwood District Council
b. McGhee v. National Coal Board
c. Junior Books Ltd. v. Veitchi
d. Re Polemis
e. Butterfield v. Forrester
f. Davies v. Mann
2. Cases overruled (at least in part) in Canada
a. Wenden v Trikha
b. CNR v Norsk (on the approach for relational economic loss, overruled by BOW VALLEY)
3. Cases from foreign jurisdictions adopted in Canada (or, from the U.K., pre-1949)
a. Anns v. Merton London Borough Council
b. Donoghue v. Stevenson
c. Zelenko v. Gimbel Bros Inc.
d. Bolton v. Stone
e. Palsgraf v. Long Island Railway Co.
f. United States v. Carroll Towing Co. (use Vaughn v. Halifax)
g. Paris v. Stepney Borough Council
h. Watt v. Hertfordshire County Council (use Priestman v. Colangelo)
i. Hedley Byrne & Co. Ltd v. Heller & Partners Ltd
j. Wagon Mound #1 and #2
k. Hughes v. Lord Advocate (use Tremain v. Pike)
l. Smith v. Leech Brain (use Maronato v. Franklin)
m. Wakelin v. London & South Western Railway Co.
n. McKew v. Holland (use Dudek v. Li)
o. Sim v. Stretch
p. Knuffer v. London Express Newspaper Ltd
q. Williams v. Reason
r. O’Connor v. Waldron
s. Adam v. Ward
t. London Artists v. Littler
4. Cases from other jurisdictions not followed, but not denied
a. A (A Minor) v. A Health & Social Services
b. McKay v. Essex Area Health Authority
c. McLoughlin
d. Alcock* (accepted in Canada for proposition that nervous shock is an established
category)
5. Cases of historical interest only (rules supplanted)
a. Dulieu v. White & Sons
b. Hambrook v. Stokes Brothers
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