15.
Negligence ................................................................................................................................................ 4
I.
Elements of Negligence .......................................................................................................................................... 4
A. Duty of Care ............................................................................................................................................................................ 4
Donoghue v. Stevenson (H.L. 1932) – neighbour principle ................................................................................................. 4
Palsgraf v. Long Island Ry. (N.Y. Ct. Apps. 1928) – must be foreseeable harm to individual ............................................ 4
Stewart v. Pettie (S.C.C. 1995) – commercial hosts have duty of care to third parties ........................................................ 4
Childs v. Desormeaux (S.C.C. 2006) – social hosts do not have a duty of care to third parties ........................................... 4
Hill v. Hamilton-Wentworth Regional Police Services Board (S.C.C. 2007) ...................................................................... 5
B. Foreseeability and Standard of Care ........................................................................................................................................ 5
1. Generally .............................................................................................................................................................................. 5
Bolton v. Stone (H.L. 1950) – foreseeable risk must be somewhat likely............................................................................ 5
2. Proof of Negligence by Inference ......................................................................................................................................... 5
Leaman v. Rea (N.B.C.A. 1954) – negligence can be inferred; if degree uncertain, both sides equally liable .................... 5
3. The Doctrine Formerly Known as Res Ipsa Loquitur........................................................................................................... 5
Fontaine v. British Columbia (Official Administrator) (S.C.C. 1998) – res ipsa loquitor no longer in use ......................... 5
4. Statutes and the Standard of Care ......................................................................................................................................... 5
Gorris v. Scott (Ex. 1874) – no recovery for non-compliance with statute resulting in harm .............................................. 5
Canada v. Saskatchewan Wheat Pool (S.C.C. 1983) – breach of statutory duty is not a tort ............................................... 5
5. Young Children and Persons with a Mental Illness or Disability ......................................................................................... 6
Heisler v. Moke (Ont. H.C. 1971) – children may be found negligent on a modified objective standard............................ 6
Fiala v. MacDonald (Alta. C.A. 2001) – suddently insane are not liable if can prove unable to understand duty ............... 6
6. Professionals......................................................................................................................................................................... 6
ter Neuzen v. Korn (S.C.C. 1995) – medical negligence is based on doctor's work and professional standards ................. 6
C. Causation ................................................................................................................................................................................. 7
Athey v. Leonati (S.C.C. 1996) – "but for" test is primary test even if multiple causes of injury ........................................ 7
Fairchild v. Glenhaven Funeral Services Ltd. (H.L. 2002) – "material contribution" test is also available ......................... 7
Snell v. Farrell (S.C.C. 1990) – reverse onus on D to disprove causation (McGhee) or inference (Wilsher) ...................... 7
Hanke v. Resurfice Corp. (S.C.C. 2007) – "but for" is still primary test; "material contribution" test is restricted ............. 7
Cook v. Lewis (S.C.C. 1951) – reverse onus: D must disprove causal link ......................................................................... 7
D. Remoteness of Damage ........................................................................................................................................................... 9
The Wagon Mound (No. 1) (P.C. (N.S.W.) 1961) – foreseeability of type of injury ........................................................... 9
Hughes v. Lord Advocate (H.L. (Sc.) 1963) – need not foresee extent or manner of injury ................................................ 9
The Wagon Mound (No. 2) (P.C. (N.S.W.) 1967) – unlikely losses recoverable if potentially huge magnitude ................. 9
Sch. Div. Assiniboine South, No. 3. v. Greater Winnipeg Gas Co. Ltd. (Man. C.A. 1971) – "foresee in a general way the
sort of thing that happened" .................................................................................................................................................. 9
Corr v. IBC Vehicles (H.L. 2008) – psychiatric injuries are foreseeable and recoverable ................................................... 9
II.
Defences............................................................................................................................................................. 10
Contributory Negligence ............................................................................................................................................................ 10
Negligence Act (B.C.), s. 1-2 – apportioning liability, joint and several liability .............................................................. 10
A. Consent (volenti non fit injuria) ............................................................................................................................................. 10
Lehnert v. Stein (S.C.C. 1962) – volenti requires proof that P agreed to physical and legal risks ..................................... 10
B. Ex Turpi Causa ...................................................................................................................................................................... 10
Hall v. Hebert (S.C.C. 1993) – ex turpi causa narrowed significantly; doesn't apply to personal injuries ......................... 10
C. Limitation Periods ................................................................................................................................................................. 10
Limitation Act (B.C.), s. 3(2) and (5) – 2 years for most torts ........................................................................................... 10
Local Government Act (B.C.), s. 285 ................................................................................................................................. 10
D. Injury Covered by Workers Compensation ........................................................................................................................... 10
Workers Compensation Act (B.C.), ss. 2, 5-6, 10 – no concurrent claims against WCB and employer ............................ 10
III.
Particular Contexts of Negligence ............................................................................................................... 11
A. Duty of Care to Rescuers ....................................................................................................................................................... 11
Jones v. Wabigwan (Ont. C.A. 1969) – neighbour principle extends to rescuers .............................................................. 11
B. Products Liability ................................................................................................................................................................... 11
Hollis v. Dow Corning Corp. (S.C.C. 1995) – duty to warn; learned intermediary rule; subjective test ........................... 11
C. Occupier’s Liability ............................................................................................................................................................... 11
Occupiers Liability Act (B.C.) ........................................................................................................................................... 11
Skopnik v. BC Rail Ltd. (B.C.C.A. 2008) – lower standard of care................................................................................... 11
Tangent: duty to unborn ............................................................................................................................................................. 11
D. Duty of Care Associated With Public Functions ................................................................................................................... 12
1
Anns v. Merton London Borough Council (H.L. 1978) – two-step test for duty associated with public functions ........... 12
Kamloops (City) v. Nielsen (S.C.C. 1984) – Anns test is adopted in Canada .................................................................... 12
Just v. British Columbia (S.C.C. 1989) - distinction between policy (cannot review) and operations (can review) ..... 12
Odhavji Estate v. Woodhouse (S.C.C. 2003) – proximity must be established for police force ........................................ 12
IV.
Responsibility for the Negligence of Others ................................................................................................... 13
A. Vicarious Liability ................................................................................................................................................................. 13
B. Direct Liability and Non-Delegable Duty .............................................................................................................................. 13
B.(K.L.) v. British Columbia (S.C.C. 2003) – ministry only directly liable to abused foster kids ..................................... 13
C. Parental Responsibility .......................................................................................................................................................... 13
Parental Responsibility Act (B.C.) – parents' liability and defences .................................................................................. 13
V.
Particular Protected Interests ......................................................................................................................... 14
A. Psychiatric Injury ................................................................................................................................................................... 14
Mustapha v. Culligan of Canada Ltd. (S.C.C. 2008) – psychiatric injury must be probable; susceptibility test ................ 14
B. Pure Economic Loss .............................................................................................................................................................. 14
1. Generally ............................................................................................................................................................................ 14
Hedley Byrne & Co. v. Heller & Partners Ltd. (H.L. 1963) – five-step test to recover for pure economic loss ................ 14
Cooper v. Hobart (S.C.C. 2001) – policy introduced into step 1 of Anns test.................................................................... 14
2. Negligent Construction or Manufacture ............................................................................................................................. 14
Kamloops (City) v. Nielsen – Anns test is adopted in Canada ........................................................................................... 14
Winnipeg Condominium Corp. (No. 36) v. Bird Const. Co. Ltd. (S.C.C. 1995) – builder's duty and liability .................. 15
3. Negligent Misstatement ...................................................................................................................................................... 15
Hercules Managements Ltd. v. Ernst & Young (S.C.C. 1997) – proximity relationship depends on reliance ................... 15
4. Contractual Relational Economic Loss .............................................................................................................................. 15
Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (S.C.C. 1997) - restrictions on recovery for relational
economic loss ..................................................................................................................................................................... 15
5. Pure Economic Loss from the Negligent Performance of Public Functions ...................................................................... 15
Kamloops (City) v. Nielsen (S.C.C. 1984) ......................................................................................................................... 15
6. Negligent Provision of Services ......................................................................................................................................... 15
Wilhelm v. Hickson (Sask. C.A. 2000) – where duty of care exists, possible to recover................................................... 15
13.
Nuisance ................................................................................................................................................. 16
I.
Public Nuisance .................................................................................................................................................... 16
Stein v. Gonzales (B.C.S.C. 1984) – private individuals may bring action for public nuisance ........................................ 16
II.
Private Nuisance ............................................................................................................................................... 16
Sutherland v. Canada (Attorney General) (B.C.C.A. 2002) – conduct may be both public and private nuisance ............. 16
Russell Transport Ltd. v. Ontario Malleable Iron Ltd. (Ont. S.C. 1952) - nuisance cannot be reasonable..................... 16
Sutherland v. Canada (Attorney General) (B.C.C.A. 2002) – cannot recover for nuisance of activity is authorized by
statute ................................................................................................................................................................................. 17
14.
Strict Liability (Rylands v. Fletcher) .................................................................................................... 17
Rylands v. Fletcher (Ex. Ch. 1866, aff’d H.L. 1868) – strict liability and defences .......................................................... 17
Transco plc v. Stockport Metropolitan Borough Council (H.L. 2003) – strict liability has been restricted ....................... 17
10.
Intentional interference with chattels ................................................................................................... 18
Trespass .................................................................................................................................................................................. 18
Detinue ................................................................................................................................................................................... 18
Conversion (trover) ................................................................................................................................................................ 18
Canlab v. Engelhard (S.C.C. 1979) – innocent third party is liable ................................................................................... 18
Hollins v. Fowler (H.L. 1875) – innocent third party is liable ........................................................................................... 18
Armory v. Delamirie (K.B. 1721) – right to possession is relative .................................................................................... 18
Kuwait Airways Corp. v. Iraqi Airways Co. (H.L. 2002) – damages measured by P's losses ........................................... 18
12.
Defamation ............................................................................................................................................. 19
I.
Slander distinguished from libel ......................................................................................................................... 19
Conyd v. Brekelmans (B.C.S.C. 1971) – slander requires proof of special damages ......................................................... 19
II.
A.
Elements of defamation ................................................................................................................................... 19
Defamatory matter .......................................................................................................................................................... 19
Youssoupoff v. Metro-Goldwyn-Mayer Pictures (C.A. 1934) – definition of defamation ................................................ 19
2
B.
C.
III.
Reference to the plaintiff ................................................................................................................................................ 19
E. Hulton & Co. v. Jones (H.L. 1909) – motive, reasonable belief, knowledge not necessary .......................................... 19
Gauthier v. Toronto Star Daily Newspapers Ltd. (Ont. S.C.J. 2003) – groups not protected............................................. 19
Publication ...................................................................................................................................................................... 19
Vizetelly v. Mudie’s Select Library Ltd. (C.A. 1900) – strict liability for publishing libel ............................................... 20
Defamation and freedom of speech ................................................................................................................ 20
Hill v. Church of Scientology of Toronto (S.C.C. 1995) - defamation not inconsistent with Charter rights .................... 20
IV.
A.
B.
C.
Defences............................................................................................................................................................. 20
Absolute privilege .......................................................................................................................................................... 20
Qualified privilege .......................................................................................................................................................... 20
Cusson v. Quan (Ont. C.A. 2007) – qualified privilege is interest/duty without malice .................................................... 20
Fair comment .................................................................................................................................................................. 20
WIC Radio Ltd. v. Simpson (S.C.C. 2008) – fair comment is opinion with good faith in public interest ......................... 20
3
15. NEGLIGENCE
1. Does the law impose upon the actor a duty to care so that the activity in question
does not harm the claimant?
2. Is there a foreseeable risk of harm to the P?
3. Did the D breach the standard of care by not acting responsibly?
4. Was this breach a sufficient cause of the P's injury?
5. Are the injuries sufficiently proximate to justify the imposition of liability?
6. Are there any factors in the P's conduct which would justify a reduction or
eliminate of the damages which otherwise would have been awarded?
I.
Duty
Foreseeability
Breach
Causation
Proximity
Quantifying damages
Elements of Negligence
A. Duty of Care


Duty of care is question of law for judge to determine
P establishes prima facie duty of care, then evidentiary burden shifts to D to show countervailing policy
considerations

"Neighbour principle" establishes that "you must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour … persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation" (Donoghue v. Stevenson)
Manufacturers have a duty to the ultimate consumers (Donoghue v. Stevenson)
Privity is abolished; third parties can sue (Donoghue v. Stevenson)







A duty of care exists if there is foreseeable harm to specific individual (Palsgraf v. Long Island Ry.)
A duty of care may be owed to third party (Stewart v. Pettie)
Commercial hosts have duty of care (Stewart v. Pettie); social hosts do not (Childs v. Desormeaux)
Hosts do not owe a duty of care unless: intentionally attract third party to inherent/obvious risk, paternalistic
relationship, public function/commercial enterprise (Childs v. Desormeaux)
Police's duty of care is measured against modified objective standard (Hill v. Hamilton-Wentworth)
Donoghue v. Stevenson (H.L. 1932) – neighbour principle
F
I/H
R
Snail inside ginger beer, P sues manufacturer
Does manufacturer owe a duty of care? YES, can foresee carelessness might injure ultimate consumer
Establishes "neighbour principle": duty to anybody, where you can foresee that your carelessness might injure
them
Palsgraf v. Long Island Ry. (N.Y. Ct. Apps. 1928) – must be foreseeable harm to individual
F
I/H
R
Fireworks exploded at train station, ultimately injuring bystander
Was the train station negligent? NO, no duty because unforeseeable
A duty of care exists if there is foreseeable harm
Stewart v. Pettie (S.C.C. 1995) – commercial hosts have duty of care to third parties
F
I/H
R
Quadriplegic sued establishment where he/driver had been drinking before accident
Does a bar owe a duty to a third party? YES, but not breached here because not foreseeable that sober would
allow drunk to drive
A duty of care is owed to third parties where the risk of injury is real and foreseeable given the circumstances
 Justifying duty of care for bars: advantage in monitoring alcohol consumption, regulatory environment,
legitimate expectations of public, disincentive for profit-motivated behaviour
Childs v. Desormeaux (S.C.C. 2006) – social hosts do not have a duty of care to third parties
F
I/H
R
Willing passenger accepted ride from drunk driver, sued party hosts
Does a social host owe a duty of care to third parties injured by an intoxicated host? NO, guests responsible
for own conduct, no evidence knowledge or foreseeability on part of host
Social hosts do not owe duty of care unless:
 Intentionally attract/invite third parties to inherent/obvious risk that they have created or control
 Paternalistic relationship of supervision and control
4


Host exercises public function or engages in commercial enterprise
Ct will look at level of involvement, level of reliance
Hill v. Hamilton-Wentworth Regional Police Services Board (S.C.C. 2007)
F
I/H
R
Suspect ultimately acquitted, sued police
Do police owe a duty of care during investigations? YES, but did not breach the standard here
Police's duty of care is measured against standard of how a reasonable officer in like circumstances would've
acted
B. Foreseeability and Standard of Care
1. Generally




Foreseeability is a question of fact for the jury to determine
Foreseeability of risk of injury = duty question; foreseeability of type of injury = remoteness question
Objective test – foreseeable risk of injury to person in P's general class at the time of the activity in question
Risk of injury must be foreseeable and somewhat likely risk (Bolton v. Stone)
Bolton v. Stone (H.L. 1950) – foreseeable risk must be somewhat likely
F
Cricket ball hit bystander
I/H
Was cricket club negligent? NO
R
Foreseeable risk must also be likely risk and not fantastic possibility
2. Proof of Negligence by Inference


Can infer negligence from facts (Leaman v. Rea)
If cannot determine degree of negligence, both sides are equally liable (Leaman v. Rea)
Leaman v. Rea (N.B.C.A. 1954) – negligence can be inferred; if degree uncertain, both sides equally liable
F
I/H
R
Cars too close to centre line, unclear who caused accident
Who is liable? BOTH, proof of negligence is accident itself
Negligence can be inferred; if cannot determine degree of negligence, both sides equally liable
3. The Doctrine Formerly Known as Res Ipsa Loquitur


Res ipsa loquitor allows P to discharge evidentiary burden with circumstantial evidence
Doctrine no longer in use in Canada (Fontaine v. BC)
Fontaine v. British Columbia (Official Administrator) (S.C.C. 1998) – res ipsa loquitor no longer in use
F
I/H
R
Truck found with bodies, widow attempted to sue
Can widow recover? NO, no proof of negligence
Dismissed doctrine of res ipsa loquitor
4. Statutes and the Standard of Care


Cannot recover for breach of statute with another purpose that results in harm (Gorris v. Scott)
Breach of statutory duty is not a tort; statutory duty in themselves do not give rise to duty of care (Canada v.
Saskatchewan Wheat Pool)
Gorris v. Scott (Ex. 1874) – no recovery for non-compliance with statute resulting in harm
F
I/H
R
Sheep washed overboard when ship owner didn't comply with Contagious Diseases Act which required dens
Can sheep owner recover? NO, Act not intended to protect against such damage
Cannot recover for non-compliance with statute for another purpose that results in harm
Canada v. Saskatchewan Wheat Pool (S.C.C. 1983) – breach of statutory duty is not a tort
F
I/H
R
Infested wheat delivery
Can Wheat Board recover? NO
Breach of statutory duty is not a tort; statutory duties in themselves do not give rise to duty of care
5
5. Young Children and Persons with a Mental Illness or Disability


Children may be found negligent on objective standard ("reasonable child") with subjective input such as age,
education, experience (Heisler v. Moke)
Individual with sudden mental illness will not be liable if he can prove on BOP that he could not understand,
appreciate, or discharge duty of care (Fiala v. MacDonald)
Heisler v. Moke (Ont. H.C. 1971) – children may be found negligent on a modified objective standard
F
I/H
R
9 year old told not to put stress on injured leg, did so and caused further injury
Is child contributorily negligent? NO
Children may be found negligent. Use objective standard ("reasonable child") with subjective input (e.g. age,
education, experience)
Fiala v. MacDonald (Alta. C.A. 2001) – suddently insane are not liable if can prove unable to understand duty
F
I/H
R
M suffered manic episode from undiagnosed bipolar disorder, assaulted driver (C) who lost control of car and
injured F
Is M liable? NO
If a person is suddenly, without warning, afflicted with mental illness and can prove on BOP that he could not
understand or appreciate duty of care or was unable to discharge duty, he has no tort liability
6. Professionals

Medical negligence based on doctor's work and professional standards or judge's "common sense" standard (ter
Neuzen v. Korn)
ter Neuzen v. Korn (S.C.C. 1995) – medical negligence is based on doctor's work and professional standards
F
I/H
R
Woman contracted HIV during artificial insemination procedure
Was doctor negligent? NO, not in procedure or according to professional standards (i.e. medical community
unaware it was possible to transmit HIV this way)
Medical negligence based on doctor's work and professional standards
Jury should not be instructed about cap on recovery for non-pecuniary losses
6
C. Causation

"But for" test is primary test for causation: can it be proved on a BOP that the P's injuries would not have occurred
but for the D's negligence? If so, the causal connection is established

"But for" test does not require that the D's negligence was the sole causal factor, only a "materially contributing"
(beyond the de minimus range) (Athey v. Leonati)
o If other cases were non-tortious, D will bear the entire burden ("think skull" rule – take victim as you find
him)
o If other causes were tortious, D's fault will be apportioned
o If other causes were P's own fault, contributory negligence ("crumbling skull" scenario – condition with
measureable risk that may reduce damage award)
Possible to recover for loss of chance




Alternative test: "material contribution" test for more than one cause
"Material contribution" to a risk is treated as materially contributing to causation of injury (Fairchild v. Glenhaven)
Restricted use: only if impossible for P to prove causation or if D exposed P to unreasonable risk of injury (Hanke
v. Resurfice)

Other approaches:
o Putting reverse onus on D to disprove causation (McGhee) (Snell v. Farrell, Cook v. Lewis)
o Inference of causation (Wilsher) (Snell v. Farrell)
Athey v. Leonati (S.C.C. 1996) – "but for" test is primary test even if multiple causes of injury
F
I/H
R
Disc herniated during exercise, two car accidents and underlying disposition towards injury
Can causation be established? YES, use "but for" test
"But for" test does not require that the D's negligence was sole causal factor for injury; need only establish that
D's conduct "materially contributed" (beyond the de minimus range) to the injury
 If other causes were non-tortious  D will bear entire burden ("thin skull" rule)
 If other causes were tortious  fault will be apportioned
 If other causes were P's own fault  contributory negligence ("crumbling skull" scenario – condition with
measureable risk may reduce damages)
Possible to recover for loss of chance (e.g. doctor's negligence  loss of chance to recover) on BOP
Fairchild v. Glenhaven Funeral Services Ltd. (H.L. 2002) – "material contribution" test is also available
F
I/H
R
Multiple jobs where asbestos could have caused cancer
Can causation be established? YES
"Material contribution" test is alternative where injury has more than one cause
Materially contributing to risk is same as materially contributing to causation of injury
Snell v. Farrell (S.C.C. 1990) – reverse onus on D to disprove causation (McGhee) or inference (Wilsher)
F
I/H
R
Doctor negligently continued cataract operation despite bleeding, patient lost vision
Can causation be established? YES, enough evidence to infer
Two approaches: reverse onus on D to disprove causation (McGhee) or inference (Wilsher)
Hanke v. Resurfice Corp. (S.C.C. 2007) – "but for" is still primary test; "material contribution" test is restricted
F
I/H
R
Zamboni explosion, driver sued manufacturer for design defects
Can causation be established? YES
"But for" is primary test even if multiple causes of accident
"Material contribution" test is exception for special circumstances: if it is impossible (not merely difficult) for P to
prove cause; if D exposed P to unreasonable risk of injury
Cook v. Lewis (S.C.C. 1951) – reverse onus: D must disprove causal link
F
Gunshot injury during hunting, could not prove which D caused injury or that they were joint tortfeasors
7
R
Novel approach: onus of disproving causal link shifted to D
8
D. Remoteness of Damage

Modern test for remoteness: foreseeability of type of injury (Wagon Mound No. 1)
o Rejected Polemis test all damages traceable to negligent act
o Later limited by Wagon Mound No. 2

Foreseeability of type of injury, not of extent of injury or manner of occurrence (Hughes v. Lord Advocate)
o Generally, if some injury is foreseeable, ct will rule that all injuries are foreseeable
"It is enough to fix liability if one could foresee in a general way the sort of thing that happened" (


Loss will be recoverable if extent of possible harm is so great that a reasonable man would guard against it, even if
the chance of loss occurring was very small (Wagon Mound No. 2)
o "Possible" damage, not just "probable" damage
o Compare to Bolton v. Stone – possible to run small risk and not be liable
o Difference here is the magnitude of potential damage if it did occur and that there was no reason to run
risk (i.e. let oil into water instead of turning off)


Duty not to cause injury is extended to psychiatric injury (Corr v. IBC Vehicles)
Suicide is not volenti non fit injuria or intervening cause (Corr v. IBC Vehicles)
The Wagon Mound (No. 1) (P.C. (N.S.W.) 1961) – foreseeability of type of injury
F
I/H
R
Charterers negligently allowed oil to enter water, spark from welding caused fire damage to nearby ships
Can shipbuilders recover? NO, damages unforeseeable and thus unpreventable
Test from Polemis (all damages directly traceable to negligent act) rejected in favour of test of foreseeability
Hughes v. Lord Advocate (H.L. (Sc.) 1963) – need not foresee extent or manner of injury
F
I/H
R
Child fell into manhole, left uncovered but with surrounding structure and warning lights, explosion and burns
Can child recover? YES, injury was foreseeable
Foreseeability of type of injury, not extent of injury or manner of occurrence
Generally, if some injury is foreseeable, ct will usually rule that all injuries are foreseeable
The Wagon Mound (No. 2) (P.C. (N.S.W.) 1967) – unlikely losses recoverable if potentially huge magnitude
R
Limits Wagon Mound No. 1
Loss will be recoverable where the extent of possible harm is so great that a reasonable man would guard
against it, even if the chance of the loss occurring was very small ("possible" not "probable")
Compare to Bolton v. Stone – difference is magnitude of potential damage, no reason to run risk
Sch. Div. Assiniboine South, No. 3. v. Greater Winnipeg Gas Co. Ltd. (Man. C.A. 1971) – "foresee in a general
way the sort of thing that happened"
F
I/H
R
Toboggan crashed into gas pipe, school exploded
Should D be liable? YES
"It is enough to fix liability if one could foresee in a general way the sort of thing that happened"
Corr v. IBC Vehicles (H.L. 2008) – psychiatric injuries are foreseeable and recoverable
F
I/H
R
Workplace injury, years of surgery/symptoms/depression culminated in suicide; widow sued employer
Can widow recover? YES, employer breached duty to avoid causing husband personal injury, husband
suffered physically and mentally, injuries caused depression and suicide
Physical injuries foreseeable, psychiatric compensable, no contributory negligence
Duty not to cause injury extended to psychiatric injury
Suicide not volenti non fit injuria or intervening cause
9
II.
Defences
Contributory Negligence
Negligence Act (B.C.), s. 1-2 – apportioning liability, joint and several liability



Liability for damages is apportioned according to fault
If not possible establish different degrees of fault, liability is apportioned equally
Joint and several liability possible; liable to contribute and indemnify each other
A. Consent (volenti non fit injuria)

For volenti non fit injuria to succeed, D must prove P accepted physical and legal risks (Lehnert v. Stein)
Lehnert v. Stein (S.C.C. 1962) – volenti requires proof that P agreed to physical and legal risks
F
I/H
R
Passenger accepted ride from drunk driver
Can driver claim volenti? NO, P accepted physical risk but did not waive legal right of action
Volenti requires D to prove that P agreed to accept physical and legal risks
B. Ex Turpi Causa


Significantly narrowed and virtually eliminated (Hall v. Hebert)
Ex turpi causa not available as defence for compensation for personal injuries (Hall v. Hebert)
Hall v. Hebert (S.C.C. 1993) – ex turpi causa narrowed significantly; doesn't apply to personal injuries
F
I/H
R
Drunk Hall crashed Hebert's car
Is Hebert liable for negligence? YES, ex turpi causa doesn't apply
Ex turpi causa has narrow objective – to prevent person from profiting from illegal/wrongful act
Compensation for personal injuries caused in accident does not fall within the scope; defence not available
C. Limitation Periods
Limitation Act (B.C.), s. 3(2) and (5) – 2 years for most torts


s. 3 – limitation period of 2 years for most torts
s. 5 – limitation period of 6 years for any tort action not specified under s. 3
Local Government Act (B.C.), s. 285


Actions against municipality must be commenced within 6 months after cause of action first arose
Echoed in Vancouver Charter (S.B.C. 1953), s. 55, s. 294(1)
D. Injury Covered by Workers Compensation
Workers Compensation Act (B.C.), ss. 2, 5-6, 10 – no concurrent claims against WCB and employer


WCB laws state that if an accident is covered by WCB, no claim against employer
Form of "no fault insurance"
10
III.
Particular Contexts of Negligence
A. Duty of Care to Rescuers


Duty of care owed to anyone in immediate neighbourhood (Jones v. Wabigwan)
General rule: no duty to rescue or assist
Jones v. Wabigwan (Ont. C.A. 1969) – neighbour principle extends to rescuers
F
I/H
R
P electrocuted when entered field to rescue brother-in-law
Was brother-in-law negligent for hitting pole and causing line to fall down? YES
Duty of care owed to anyone in immediate neighbourhood, whether motivated by curiosity or attempt to rescue
B. Products Liability



Manufacturers may use "learned intermediary" rule to discharge duty. Communicate adequate warning to
intermediary, who will communicate to consumer (Hollis v. Dow)
Information must be reasonable communicated, describe specific dangers from ordinary use (Hollis v. Dow)
Consumer must prove (subjective test) that if info conveyed, injury would've been avoided (Hollis v. Dow)
Hollis v. Dow Corning Corp. (S.C.C. 1995) – duty to warn; learned intermediary rule; subjective test
F
I/H
R
Breast implants ruptured, P sued manufacturer, doctors
Who is liable? MANUFACTURER because failed in duty to warn
"Learned intermediary" rule allows manufacturers to warn experts, who will warn consumers
Info must be reasonably communicated, describe specific dangers from ordinary use
Consumer must prove that if info had been conveyed, injury would have been avoided (subjective test)
C. Occupier’s Liability
Occupiers Liability Act (B.C.)



Legislation deals with whether occupier (owner) took reasonable care to see that those who come onto property
are safe
Occupiers cannot absolve self of responsibility merely because person who comes onto property is trespasser
Legislation enacted to limit occupier's liability to be sued
Skopnik v. BC Rail Ltd. (B.C.C.A. 2008) – lower standard of care
F
I/H
R
Spinal injury during ATV accident
Is BC Rail liable? NO
Legislative amendments create lower standard of care – from "duty not to create danger with intent to do harm
or act with reckless disregard" to "person who enters is deemed to have willingly assumed all risks"
Tangent: duty to unborn


Tortfeasor owes duty of care to unborn child because foreseeable that victim is pregnant
Exception: mother herself, who will not be held liable for injuries to fetus as a result of negligence
11
D. Duty of Care Associated With Public Functions

Judiciary has been reluctant to expose certain activities of public authorities to scrutiny of negligence law – only
accountable to citizenry, pragmatic/administrative difficulties, flood of suits

Test for duty of care associated with public functions from ("Anns" test)
1) Is there a sufficient relationship of proximity such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter—in which case, a prima facie duty of
care arises? (Proximity branch)
2) If so, are there any considerations which ought to negative, reduce, or limit the scope of the duty, class of
persons to whom it is owed, or the damages to which a breach of it may give rise? (Policy branch

Policy/Operational dichotomy (Just v. BC)
o If policy (e.g. whether/how to implement program), not subject to negligence law review, as long as
authority's exercise of discretion in formulating policy was conscientious and in good faith
o If operational/implementational stages, especially when injury causing event was neither planned nor
anticipated, ordinary negligence law principles can be applied
Anns v. Merton London Borough Council (H.L. 1978) – two-step test for duty associated with public functions
F
I/H
R
Flats in 99 year leases develop structural failures within 10 years
Is local council negligent for failing to inspect/regulate? YES
Test for negligence combines "neighbour principle" from Donoghue v. Stevenson with policy considerations
 1) Is there a sufficient relationship of proximity such that, in the reasonable contemplation of the
former, carelessness on his part may be likely to cause damage to the latter—in which case, a prima facie
duty of care arises? (Proximity branch)
 2) If so, are there any considerations which ought to negative, reduce, or limit the scope of the duty,
class of persons to whom it is owed, or the damages to which a breach of it may give rise? (Policy branch)
Kamloops (City) v. Nielsen (S.C.C. 1984) – Anns test is adopted in Canada
F
I/H
R
Stop order on building with insufficient foundations issued but not enforced, sold to Nielsens
Is city liable? NO. Meets step 1 of Anns test but negated at step 2 for floodgates argument
Adopts Anns test in Canada. Step 1 is low threshold, Step 2 recognizes that even if test of proximity is met,
liability does not necessarily follow; must be considered in light of all relevant circumstances
"Floodgates" argument – municipalities can't be liable, responsibility on builders, taxpayers
Just v. British Columbia (S.C.C. 1989) - distinction between policy (cannot review) and operations (can review)
F
I/H
R
Boulder crushes car and daughter
Is BC subject to review? YES, inspection and operations are operational
Distinction between policy (ct cannot review) and operations (ct can review)
Odhavji Estate v. Woodhouse (S.C.C. 2003) – proximity must be established for police force
F
I/H
R
O killed in police chase, family sued police for not cooperating with investigation unit, misfeasance, negligence
Are officers and chief liable? YES
Two types of misfeasance of public office
 Public officials acting intentionally to injure P
 Deliberate unlawful conduct in exercise of public functions AND aware it is unlawful and likely to injure P
12
IV.
Responsibility for the Negligence of Others
A. Vicarious Liability
B. Direct Liability and Non-Delegable Duty

Ministry only liable directly for abuse of foster kids (B. (K.L.) v. BC)
B.(K.L.) v. British Columbia (S.C.C. 2003) – ministry only directly liable to abused foster kids
F
I/H
R
Foster kids abused, Minister had knowledge of families' troubled history, risks, failed to inspect regularly
Is ministry liable? YES, directly liable but statute of limitations bars all claims except sexual assault
 Directly liable? YES, high standard of care – "careful parent" test
 Vicariously liable? NO, govt/family relationship is employer/independent contractor, not /employee
 Non-delegable duty? NO, no duty after placement
 Fiduciary duty? NO, between parent/child or guardian/ward it is not acting in best interests, but avoiding
certain harmful actions that constitute a betrayal of trust, which didn't occur here
Ministry's liability significantly narrowed
G. (E.D.) v. Hammer – sexual assaults by janitor
B. (M.) v. British Columbia – abuse by foster father
C. Parental Responsibility
Parental Responsibility Act (B.C.) – parents' liability and defences


Parents liable for property damage of child up to $10,000
Defence: exercising reasonable supervision, made reasonable efforts to prevent/discourage child
13
V.
Particular Protected Interests
A. Psychiatric Injury

Mental injury recoverable if probable; test for susceptibility = person of ordinary fortitude (Mustapha v. Culligan)
Mustapha v. Culligan of Canada Ltd. (S.C.C. 2008) – psychiatric injury must be probable; susceptibility test
F
I/H
R
Dead fly in drinking water caused depression, phobias, anxiety
Can P recover? NO, damages too remote
Mental injury claims are recoverable if "probable" (not far-fetched) and "would occur in person of ordinary
fortitude" … Susceptibility = ordinary fortitude; injury = "thin skull" rule
B. Pure Economic Loss
1. Generally




General rule: no duty not to make careless statements … unless there is some relationship of proximity
Test for recovery of pure economic loss stablished in Hedley Byrne (see below)
Policy considerations introduced into step 1 of Anns test – are there any reasons, notwithstanding the proximity,
that tort liability should not be recognized here? (Cooper v. Hobart)
Concerns of indeterminate liability, difference between economic and physical injury, availability of insurance
Hedley Byrne & Co. v. Heller & Partners Ltd. (H.L. 1963) – five-step test to recover for pure economic loss
F
I/H
R
P relied on bank's assurances to extend credit to client, client defaulted, P sued bank for negligence
Can P recover for pure economic loss? YES, but not in this case because "without responsibility" clause
Requirements for successful claim
1) Duty of care based on special relationship between the parties
2) Statement/advice given must be untrue, inaccurate, or misleading
3) Representor must have acted negligently in making the misrepresentation
4) Representee must have reasonably relied on the misrepresentation (onus on P to prove, though it can be
inferred)
5) Reliance must have resulted in financial detriment
Relevant factors
 "Comparative knowledge, skill and judgment of the respective parties"
 Social/informal occasion compared with professional/business relationship
 Not necessary for there to be a request in order to impose a duty of care
 Nature of the advice – statements of fact, as opposed to opinion or forecasting
Cooper v. Hobart (S.C.C. 2001) – policy introduced into step 1 of Anns test
F
I/H
R
Investors sued statutory regulators for failing to oversee conduct of investment company and notify investors
when license suspended and asset freeze order issued
Does registrar owe a duty of care to investors? NO, statute governs registrar but does not impose a duty of
care; registrar's duty owed to public as a whole but not to investors b/c insufficient proximity
Introduces policy into step 1 of Anns test – are there any reasons, notwithstanding the proximity, that tort
liability should not be recognized here?
2. Negligent Construction or Manufacture



Recovery for pure economic loss occasionally permitted when suffered by non-privity users
Building constructors have a duty to take reasonable care in construction (Winnipeg Condominium)
Building constructors may be liable for reasonable cost of repairing substantial defects and putting building back
into non-dangerous state (Winnipeg Condominium)
Kamloops (City) v. Nielsen – Anns test is adopted in Canada
F
I/H
R
Stop order on building with insufficient foundations issued but not enforced, sold to Nielsens
Is city liable? NO. Meets step 1 of Anns test but negated at step 2 for floodgates argument
Adopts Anns test in Canada. Step 1 is low threshold, Step 2 recognizes that even if test of promixity is met,
liability does not necessarily follow; must be considered in light of all relevant circumstances
"Floodgates" argument – municipalities can't be liable, responsibility on builders, taxpayers
14
Winnipeg Condominium Corp. (No. 36) v. Bird Const. Co. Ltd. (S.C.C. 1995) – builder's duty and liability
F
I/H
R
Structural defect in apartment
Is general contractor of building liable for negligence to subsequent purchasers? YES
Duty to take reasonable care in construction of building AND liable for reasonable cost of repairing any
substantial defects and putting building back into non-dangerous state (but not wear-and-tear)
3. Negligent Misstatement


Possible to recover for losses due to negligent misstatements (Hercules Managements v. Ernst & Young)
Must establish proximity relationship based on reasonableness of reliance (Hercules)
Hercules Managements Ltd. v. Ernst & Young (S.C.C. 1997) – proximity relationship depends on reliance
I/H
R
Do accountants who do an audit of a corporation's financial statements owe a duty of care to shareholders?
NO under both Anns and Kamloops tests, fails at step 1; floodgates, no problem of indeterminate liability
In actions for negligent misrepresentation, must examine reasonableness of P's reliance at first stage
4. Contractual Relational Economic Loss


Occurs when injury to one person detrimentally affects financial situation of others
General rule: person cannot claim for relational economic loss based solely on test of reasonable foreseeability;
recover permitted only when concerns for indeterminate liability have been allayed (Bow Valley Husky)
Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (S.C.C. 1997) - restrictions on recovery for
relational economic loss
F
I/H
Fire caused another company to lose profits?
Can BV recover? NO, insufficient proximity
5. Pure Economic Loss from the Negligent Performance of Public Functions
Kamloops (City) v. Nielsen (S.C.C. 1984)
6. Negligent Provision of Services

Possible to apply Hedley Byrne and recover in other scenarios (Wilhem v. Hickson)
Wilhelm v. Hickson (Sask. C.A. 2000) – where duty of care exists, possible to recover
F
I/H
R
Beneficiaries denied shares because error in drafting will?
Can beneficiary recover from testator's lawyer? YES, under Hedley Byrne and policy considerations
(beneficiary can't recover, lawyer's role in community)
Possible to recover in other scenarios too
15
13. NUISANCE
I.


Public Nuisance
Distinction between private and public nuisance outlined in Stein v. Gonzales
Possible for private individual to bring action for public nuisance through AG or by showing that his private rights
are affected or there is "special/peculiar" damage to him that is different from community
Stein v. Gonzales (B.C.S.C. 1984) – private individuals may bring action for public nuisance
F
I/H
P sought injunction to prevent D (prostitutes) from using public and private property around P's business
Can P receive injunction? NO, does not qualify to bring action for public nuisance
Private nuisance
Conduct of the D which unreasonably
and substantially interferes w/ the P's
use of their land
Protects an individual's "use and
enjoyment" of property
Civil wrong
Public nuisance
Conduct of the D which unreasonably and substantially interferes
w/ all members of the community or members of a class that
come w/in the sphere or neighbourhood of its operation
Not necessarily tied to property
Criminal wrong
Civil action for public nuisance can be brought by:
 A-G, representing public
 Private person, if he can show his private rights are affected OR "special/peculiar" damage upon him. Onus to
show that damage is different from community; special and unique
II.



Private Nuisance
Same conduct may constitute public and private nuisance (Sutherland)
Nuisance is not measured on standard of reasonableness of use; any use that causes substantial discomfort to
others or damages their property qualifies as nuisance (Russell Transport)
Liability for nuisance will not be imposed if activity complained of is authorized by statute and D can prove that the
nuisance is the "inevitable rresult" or consequence of exercising that authority (Sutherland)
Sutherland v. Canada (Attorney General) (B.C.C.A. 2002) – conduct may be both public and private nuisance
F
I

Residents claimed noise from nearby airport was private nuisance
Can P recover? YES, same conduct may constitute both public and private nuisance
Where P is occupier of land and nuisance causes damage to his use and enjoyment of land, P not barred from
recovery
Russell Transport Ltd. v. Ontario Malleable Iron Ltd. (Ont. S.C. 1952) - nuisance cannot be reasonable
F
I
Air pollution from D's foundry company damaged P's cars
Can P recover? YES, injunction granted
 Nuisance is not a branch of the law of negligence
o "Reasonable" in nuisance has different definition. Not merely "taking proper care", signifies what is
legally right b/t parties, taking into account all the circumstances of the case
o No use of property is reasonable which causes substantial discomfort to others or is a source of
damage to their property
 Smoke or fume control possible; P's auto business not delicate trade or operation
 Defence of prescriptive right does not apply
o Onus on P to show 20 year period
o Enjoyment of right must not be secret
o Servient owner must have either actual or constructive knowledge of it
NB: Ineffectual defences for nuisance
 P came to the nuisance
 Nuisance injures P, but is beneficial to public at large
 Place is suitable for operation and no other place available
16



All possible care and skill is being taken
Others acting independently of D, doing same thing, would not amount to nuisance
D making reasonable use of his property
Sutherland v. Canada (Attorney General) (B.C.C.A. 2002) – cannot recover for nuisance of activity is authorized
by statute
I
Does airport have defence of statutory authority, which bars P's recovery? YES, P cannot recover
 Liability will not be imposed if an activity is authorized by statute and D proves factual connection, that the
nuisance is the "inevitable result" or consequence of exercising that authority
o In short: an act that is authorized by statute cannot be tortious
o In this case, location, existence, use, operation identified in statute. Factual connection established 
nuisance is authorized by statute
 Statute must authorize work, conduct or activity complained of, either expressly or by necessary implication
o Statute includes subordinate and subsidiary laws e.g. Order-in-Council
14. STRICT LIABILITY (RYLANDS V. FLETCHER)



A person who brings something harmless onto his land that escapes and does mischief is prima facie answerable
for all the damage (Rylands v. Fletcher)
Defence: escape was due to P's default or an act of God (Rylands v. Fletcher)
Strict liability have been limited by statute and the existence of insurance (Transco plc)
Rylands v. Fletcher (Ex. Ch. 1866, aff’d H.L. 1868) – strict liability and defences
F
I

D built reservoir for mill, which flooded P's nearby mine workings. D was not negligent.
Can P recover? YES, strict liability
If a person brings or accumulates on his land which, though harmless whilst it remains there, will naturally do
mischief if it escapes, he does so at his peril
o If it does cause damage, he is prima facie answerable for all the damage which is the natural
consequence of its escape, however careful he may have been and whatever precautions he may
have taken
o Can excuse himself by showing escape was due to P's default or act of God
o Distinguished from damage by collision, in which others near it take upon inevitable risk
Transco plc v. Stockport Metropolitan Borough Council (H.L. 2003) – strict liability has been restricted
F
I


Nearby estate's water leak caused soil of embankment to wash away soil of embankment, exposing P's gas
pipe. P did repairs, sued estate's council for compensation
Does Rylands v. Fletcher apply? NO, statute + insurance can deal with this so P cannot recover
Rylands remains, but has residual role to play. Ct will "retain the rule, while insisting upon its essential nature
and purpose; and to restate it as to achieve as much certainty and clarity as attainable"
Restrictions on the rule:
o Statutory authority may limit liability
o Excludes liability for acts of God, third parties, escape for common reasons (e.g. vandalism)
o Excludes liability for claim wholly on land of single occupier, death, personal injury
o Exception for "natural" uses of land
17
10. INTENTIONAL INTERFERENCE WITH CHATTELS





Chattels are any tangible personal property other than real property
Title = ownership … Possession = physical control
Bailment = someone (bailee) is willingly and with authority in possession of chattels to which someone else (bailor)
retains better title
Right to immediate possession = demand person in possession to deliver up chattel upon demand
Right to possession is a relative concept (Armory v. Delarmie)
Trespass




Intentional direct, physical interference with a chattel of which P had a right to possession
Does not require intention to harm or awareness that P has right to possession; just the intention to do the act that
constitutes the interference
Unclear whether there is liability without damages (e.g. drive animals away but return them without injury)
Remedy: damages, possibly injunctions
Detinue




Wrongful failure or refusal by D to deliver up on demand, property of which P has the right to immediate
possession
Detinue sur bailment (older) – D either refuses to return chattel or cannot return it; D can be liable even if no longer
in possession of chattel; no liability of D lost goods without fault
Detinue sur trover – D refuses to deliver chattel; may be finder, thief, innocent party who acquired from third party
Remedy: order to return chattel OR damages for value of chattel at end of trial
Conversion (trover)


Wilful interference, without lawful justification, with property in a manner inconsistent with P's right of possession of
it, whereby P is deprived of the use and possession of it
Remedy: damages for value of chattel at time of conversion PLUS any other foreseeable damages
Canlab v. Engelhard (S.C.C. 1979) – innocent third party is liable
F
I/H
R
Employee purchased platinum for fictitious client; sold back as scrap and pocketed money
Is D liable for conversion (because repurchased invalidly; had no title)? YES, but only for first few years before
notified of fraudulent transactions
Innocent third party may be liable for conversion
Hollins v. Fowler (H.L. 1875) – innocent third party is liable
F
I/H
R
P sold cotton to rogue, believing he was an agent, who then sold D; rogue defaulted, P sued D
Is D liable for conversion? YES
Innocent third party who obtains and disposes of goods that were fraudulently obtained is liable for conversion
Armory v. Delamirie (K.B. 1721) – right to possession is relative
F
I/H
R
Goldsmith won't return jewel that chimneysweep found
Is goldsmith liable for conversion? YES
Right to possession is relative; finder has better right to possession than thief
Kuwait Airways Corp. v. Iraqi Airways Co. (H.L. 2002) – damages measured by P's losses
F
I/H
R
Iraq invaded Kuwait and seized aircraft, four of ten returned; K airline sued I airline for conversion
What can P recover? Losses caused to P by excluding P from possession of chattel (e.g. cost of getting
planes back, hiring substitute planes)
Calculating damages is based on losses that D caused to P by excluding P from possession of chattel
 Less than value of chattel at time of conversion (e.g. P got it back, chattel would have perished anyways)
 More than value of chattel at time of conversion (e.g. P incurred additional expense while not in
possession of chattel or while getting chattel back)
18
12. DEFAMATION
I.


Slander distinguished from libel
Libel = print/written or recorded in some permanent form; to succeed do not have to show damages
Slander = verbal statements; to succeed must show special damages (Conyd v. Brekelmans)
Conyd v. Brekelmans (B.C.S.C. 1971) – slander requires proof of special damages
I
R
Fencer's funds reduced by committee after D's comments that P "did not make an honest living … he
will pocket it"
Can P recover? NO, no connection b/t D's words and committee's decision to withdraw $$
Criminal charges or speculation on future criminality are not applicable
II.
Elements of defamation
A.
Defamatory matter
F


Defamatory statement = a false statement about a man to his discredit (Youssoupoff)
Need not be intended to be defamatory (Youssoupoff)
Youssoupoff v. Metro-Goldwyn-Mayer Pictures (C.A. 1934) – definition of defamation
F
I
Russian princess claimed that movie scene depicted her being raped/seduced by Rasputin
Can P recover? YES, defamation through perceptions of limited circle is accepted (Cassidy v. Daily Mirror)
 Modification of definition of defamation
 Classical: hatred, ridicule, contempt
 Modified: shunned, avoided, discredited
B.
Reference to the plaintiff




Strict liability if words refer to person negatively (E. Hulton v. Jones)
Do not need to know person you defame or whether they exist (E. Hulton v. Jones)
Motive or reasonable belief is not important (E. Hulton v. Jones)
Reputation of groups is not protected by defamation law (Gauthier v. Toronto Star)
E. Hulton & Co. v. Jones (H.L. 1909) – motive, reasonable belief, knowledge not necessary
Newspaper published article about "Artemis Jones" … individual by same name brought action for defamation
Can P recover? YES, strict liability if words refer to person negatively
 Do not need to know person you defame or whether they exist
 Motive, reasonable belief is not important
F
I
Gauthier v. Toronto Star Daily Newspapers Ltd. (Ont. S.C.J. 2003) – groups not protected
F
I


C.


Newspaper published articles accusing police force of racial profiling. Force brought class action
Is this defamation? NO, reputation of groups is not protected by defamation law; no ref to individuals
Statistics, averages, patterns of conduct do not say sth defamatory about each member of force
Groups protected by other means e.g. CC's hate speech provisions
Publication
Absolute liability for publishing libel, repeating it, or distributing it
Strict liability for publishing libel; can be held not liable if you disclaim knowledge, show you weren't negligent or at
fault (Vizetelly)
19
Vizetelly v. Mudie’s Select Library Ltd. (C.A. 1900) – strict liability for publishing libel
F
I
Remarks found in library book
Can you be held liable if you did not write the comment but posted it? POSSIBLY
 Before, absolute liability for publishing libel, repeating it, or distributing it
 However, if you publish it, can be held not liable if you disclaim knowledge, show you weren't negligent or
at fault (onus on D to prove this)
 Significant for internet service providers; once attention drawn to it, action must be taken
III.
Defamation and freedom of speech

Defamation is not inconsistent with freedom of expression in the Charter (Hill v.Church of Scientology)
Hill v. Church of Scientology of Toronto (S.C.C. 1995) - defamation not inconsistent with Charter rights
F
I
Church and its lawyer held press conferences to publicize criminal contempt proceedings they wished to
commence against Hill. Alleged that Hill misled judge and breached order to seal Church documents
(disproved at hearing)
Can Hill recover for libel? YES, defamation not inconsistent with Charter freedom of expression
IV.
Defences
A.
Absolute privilege
B.
Qualified privilege


Qualified privilege = statement made by individual with an interest or duty (legal, social moral) to another who has
a corresponding interest or duty to receive it; reciprocity must be present (not present in Hill v. Church of Sc)
For qualified privilege to succeed, statement must have been made without malice; onus on P to prove malice
(Cusson v. Quan)
Cusson v. Quan (Ont. C.A. 2007) – qualified privilege is interest/duty without malice
F
I
C.


Series of articles about P, provincial police officer who assisted in ground zero 9/11. P disciplined for not
returning, lauded as hero, then series of articles portraying him negatively. P sued for defamation
Can D plead justification (true), fair comment, qualified privilege?
 Distinction b/t fair comment and qualified privilege
o Fair comment – value judgment (as long as factual, made in good faith, in public interest)
o Qualified privilege – saying something false if duty/interest, without malice … public interest
identified as sth public has right to know (not mere curiosity)
 C is only country in which media D are not given special protection, qualified privilege
 QP puts onus on P to prove malice, which is notoriously difficult to prove
 As seen from Hill, SCC not willing to adopt New York Times requirement of malice
 SCC doesn't want to shift from truth to conduct, but responsible media defence is predicated on that
Fair comment
Fair comment = value judgment or opinion based in fact made in good faith and in public interest
For fair comment to succeed, facts that the comments are based on must be correct … opinion does not have to
be "reasonable", just something that someone could possibly believe; very broad test (WIC Radio)
WIC Radio Ltd. v. Simpson (S.C.C. 2008) – fair comment is opinion with good faith in public interest
F
I
Talk show host called P bigot; she sued for defamation, he claimed fair comment (legitimate)
Can D claim fair comment? Fair comment only applies to comments, not to facts … defamatory "stuff" must be
comment
 Difficult issue: do you have to show you honestly believed what you said?
 Not entitled to defence b/c didn't honestly believe b/c didn't think he said it
 Minimal threshold – the kind of statement that could be believed by a person (para 49)
20