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TORT CAN
Path of a tort
o Have to prove all elements of tort are there eg negligence have to prove relationship in
some way and harm, harm is proximate (due to the negligence) – on the plaintiff to prove
this
o If an element is not satisfied, no tort – defendant wins
o Defences: Justification, Out of bounds, out of time
o Justification – I have authority (eg ambulance or police car with sirens on)
o Out of bounds – what is claimed is not within the boundaries of tort (too remote)
o Out of time – limitations act
Limitations Act
o Is for all civil claims (tort, contract, fiduciary)
o Section 3(1) – 2 years after tort or 10 years after claim – defendant immune from action
o So you can’t hold threat to sue over someone’s head for so long
o What’s the point after 10 years? Obviously your life has been fine since you haven’t
brought it forward
o Harder to prove after a long time
o Gives plaintiff a bit of a grace period to wait for damages to mature
o Limitations act is a defence (on defendant to raise it)
Nuisance
 Unreasonable interference of an indirect or consequential nature with occupier’s use or enjoyment
of their land
o The right to enjoy your own land
 Tortfeasor not necessarily a neighbour/adjoining land owner
 Is it reasonable that the interference be tolerated by the occupier
 Occupier must have interest in land
 Most nuisances actions involve intentional/reckless acts, though in some cases of accident –
especially with municipalities, the court will spread the loss
 Damage must occur in order for nuisance to exist
 Material damage is generally considered unreasonable
 Damage to the senses, to convenience and enjoyment, (eg block view, bad smell) what is
reasonable depends on considerations including (but not limited to)
o Nature of the neighbourhood
o Delicacy of the plaintiff (eg plaintiff is sensitive due to allergies)
o Utility
o Frequency
o Degree of harm
 Limits to private nuisance
o Simple interference with view or air flow – no fundamental change to plaintiff’s use of
land
o Plaintiff’s connection to land
o Delicacy of plaintiff
o Damage – has to be damage
o Accident
 A private (tort) action in public nuisance – specific tort
o A public nuisance plus
o Plaintiff suffers unique, substantial and specific damage
o Principled policy? Or quirk of history?
 Eg Bagger’s case 1535 – strew animal entrails on road in front of neighbour –
allowed a private action even though no interference with land
 What amounts to nuisance?
o Unreasonable interference causing damage
 Personal injury (tangible or intangible)
 Damage to property
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 Economic loss
 Inconvenience and delay
o What is unreasonable?
 Nature of neighbourhood
 Pollution
 Same factors as for private nuisance
Remedies for Nuisance (both public and private)
o Injunction
 Number of kinds of injunctions:
 Interlocutory – short interim injunction while waiting for lawsuit to be
settled
 Mandatory – have to stop
 Delayed – gives the defendant time to fix the problem before injunction
comes in
 Courts usually don’t like giving injunctions, especially to businesses –
convenience v risk of harm test – is the utility more important than the risk of
harm of the nuisance?
o Damages
 Money: where there is personal harm, economic loss
 Punitive damages – when behaviour is particularly heinous
 Nominal damages – recognition that tort occurred, but no serious damage or loss
 Court will take into account insurance and collateral benefits
 Some duty on the plaintiff to mitigate – have to attempt to prevent loss if
possible – if not, deducted from damages awarded
o Abatement
 Ability to self-help – allowed to go on someone else’s property to stop nuisance
(eg if you can shut off a water tap)
Defences
o Statutory immunity
 Defendant created nuisance, but statute says he’s immune from the action
 statutes that say particular agencies (particularly government) are immune from
liability in nuisance
 Can do this 2 ways: industry will build this and is immune from any action in
nuisance; or the organization is immune from nuisance
 Usually an alternate compensation scheme – if they are not following the
required practices – don’t go to court, go to government
o Acts of God
 Has to be severe
 Not liable unless there is some foreseeability
o Limitations of Action
 Statutes provide limitations - 2 years once tort is discovered
o Property rights acquired by prescription
 Causing a nuisance to property for so long, that you obtain the right to do it (ie
for 10 years)
 Really technical thing to establish
 Have to show the plaintiff never objected to activity
 Every time a new owner of the land takes over, the limit starts over again
o Statutory Authority
 Defendant creates nuisance, but was authorized by statute to carry out that act
 The court will always interpret statute against defendant
 If the statute completely authorizes all the activities, it’s a full defence, but if
there is a way to carry out action under statute that would not create a nuisance,
that is not a defence
o Contributory negligence/fault
 Arises when you do something that increases or aggravates the harm
 Full or partial defence
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o
o
Alberta contributory nuisance Act – when a fault of two or more people cause
damage to one or more of them, then the liability will be portioned among them
Acquiescence/Estoppel
 Plaintiff consented to it
 Has to be clear consent (ie doing nothing is not enough)
Third party acts
 If a third party commits the act on someone else’s property
 If you knew or ought to have known that person was there, then you may be
liable – but if not, then not liable
Bamford v Turley
 Necessity, or for the public good, is not a defence to nuisance
Pugliese
 Definition of private nuisance?
o Interference for a substantial length of time with the use or enjoyment of land that is
unreasonable
 The nature of private nuisance?
o Adding or subtracting (as is in this case) are both nuisances
 The test for unreasonable interference?
o What is reasonable according to the ordinary use by mankind in that society?
o Look at average person in that community
 What factors are considered in determining what a neighbour must bear?
 Degree of harm
 Sensitivity (is the plaintiff being oversensitive)
 The character of the neighbourhood (residential or industrial?)
 Substantial length of time
 Taking reasonable care is not a defence against nuisance
 One must ask whether his conduct is reasonable CONSIDERING the fact that he has a neighbour
Tock
 Definition of private nuisance?
o An act where one is unlawfully disturbed in their enjoyment of their land
o Unlawfully – in the test of nuisance aka unreasonable (not statutory unlawful)
 Material damage v interference with enjoyment?
o Sometimes interference with enjoyment can be acceptable, but almost 100% of the time,
if there is physical damage, it will be unreasonable
o What is material damage?
 Serious physical damage is unreasonable
o Is this a hard and fast rule?
 Not always, if the damage is minor then it may not be nuisance
 What about relationship between plaintiff and defendant?
o You don’t have to be adjoining land owners (neighbours) – not fundamental to nuisance
 Defendant doesn’t even have to be a land owner
 Ratio
o If there is substantial material damage, there is a nuisance (unreasonable interference
with enjoyment and use of land
Russell Transport
 Material damage v interference with enjoyment?
o Doesn’t matter if you come to the nuisance or the nuisance came to you
o Same as Tock – physical damage results in nuisance
 “Ineffectual defences”
o Not a defence to say I was here first
o It was so unreasonable that no one should have to put up with it
o Taking all reasonable care and skill is not a complete defence (could be taken into
account)
o Public good is not a complete defence (could be taken into account)
o No defence that that is the only suitable place
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How are use, care, utility taken into account?
o Factors in determining what is reasonable, but not complete defence
 It is no defence that the plaintiffs themselves came to the nuisance
 It is no defence that the defendants took reasonable precaution because it is not negligence, it is
nuisance and therefore no longer reasonable if it hurts someone
 There was material damage
 There was no real reasonable attempt to avoid it
Nor-Video
 Issue:
 Is there a nuisance?
 Was there unreasonable interference with enjoyment and use of land?
 Decision:
 Defendants held liable for nuisance, but awarded only minimal damages because there was no
proof of any large losses
 Reason:
 The nuisance is the inability to use and enjoy property to the same extent and with the same
result as before Hydro’s intervention – prevents plaintiff from feely enjoying its property
 Even though a previous judge rules that recreational facilities don’t constitute nuisance, TV in
Canada is an important part of enjoying ones property
 Defendant’s could have avoided the harm
Canary Wharf
 Canary Wharf – Shadows and radio waves
o Built a skyscraper next to another building, blocking view and tv signals
o No liability
o Is it nuisance to block light, airflow, tv signals?
 No real direct damage to the other person
o Distinguish Nor-Video from Canary Wharf
 No interference in business
 Nothing emanating from Canary Wharf
 Mere presence of a building doesn’t consist of a nuisance, there has to be an
activity going on
 In Canary Wharf case, there was no fundamental change in the business and
people in the area
o If you build the building so that it will significantly interfere with the land next to you
then it will be a nuisance
 Eg the building blocks a green house from light
Hickey v Electric Reduction
 Nuisance committed against all the people, no specific damage for the plaintiff
 Economic loss without direct damage is not usually recoverable at law
Appleby v Erie Tobacco Co
 Facts:
 Plaintiff is a merchant who complained of noxious odours coming from the defendants’
factory and interfering with the plaintiff’s enjoyment of his premises.
 The plaintiff claimed an injunction in respect of these odours
 Issue:
 Is this a nuisance, with respect to the local standard of the neighbourhood?
 Is an injunction a proper remedy?
 Decision:
 Injunction granted
 Reason:
 The odours cause material discomfort and render the premises less fit for the ordinary purpose
of life, even making all possible allowances for the local standard of the neighbourhood
 Money cannot adequately make up for the inconvenience and annoyance caused by the
nuisance
Strict Liability
 What is strict liability?
o Liability for any harm arising from an enterprise/activity – regardless of cause (accident,
unintentional)
o Not a tort, A means of damage/risk allocation
 Strict liability – NO FAULT need to be proven – there is strict liability for damage to property or
persons arising from certain activities – specified in common law or statute
 Strict Liability in Canada
o Rylands v Fletcher – escape of substance from property, where use of land is unusual –
strictly liable for damage caused by escape
o Vicarious liability – certain employers liable for certain acts of employees without proof
of fault of employer (may need proof of fault of employee)
o Workers Comp – plan liability without proof of fault
o Products liability – industry liability for kinds of risk/damage without proof of fault –
very limited in Canada compared to the US
 But can bring action under consumer protection legislation (replaces products
strict liability)
o Animal cases – if your animal escapes and hurts someone, you are liable
o Fire cases – if a fire escapes from your property you are liable
 Two doctrinal approaches to Strict Liability
o Narrow – instance by instance – look at each case individually compared to common law
o Broad – eg. US and some commonwealth cases
 Strict liability for damage caused by carrying abnormally dangerous
(ultrahazardous?) activity – if you carry out a “dangerous” activity on your
property, you are liable if it hurts someone else
 Policy considerations
o Moral aspects of behaviour?
 The more selfish the behaviour, the less it is a benefit to the community, the
more likely you are to see strict liability
o Historical development?
o Convenience of administration?
 Easier to just have enterprise pay than to prove fault
o Capacity to bear loss?
 A big corporation defendant is more able to bear loss than a private defendant
 Big corporation is in a better position to prevent loss by adjusting manufacturing
and production systems
 Judges more likely to favour plaintiffs
o Prevention and Punishment?
 Punishment is normative – courts can say “stop this”
 Elements of Strict Liability (Rylands v Fletcher)
o Non-Natural Use
o Ultrahazardous
o Escape
 Unintentional discharge
 Defences to R v F
o Same as defences to nuisance:
o Consent of plaintiff
 Judges hesitant to find this
o Default of the plaintiff – contributory fault
 In Alberta, our legislation would probably allow this, but in a purely R v F case,
it is an accidental discharge, so how can you contribute to that?
o Act of God
 Serious, unpredictable, unforeseen circumstances (not just a storm, has to be a
hurricane for example)
o Deliberate act of third parties – provided it is unforeseeable

If defendant knows there is a high probability of someone tampering with your
property, you could be held liable under R v F
o Legislative authority
 Courts will go to great lengths to examine the exact wording of the legislation –
is the activity exactly described or no other practical way to carry out this
activity (then no liability) – if there is another way - liability
o Statutory immunity
o Limitations
 2 years from the time you discovered it or 10 years from the time the court heard
it, whichever is shorter
 For animals and fires
o Fires law predates Rylands
 Separate actions from Rylands – direct claim for fire – but you can use Rylands
for fires
 Strict liability for fires that leave your property to another (unless fire started by
third party or act of god) – original common law
 Statute says you are not responsible for accidental fires – interpreted really
strictly by courts – accident is fires by acts of god or third parties – not different
from original common law
 Fairly strict liability for fires
 Plaintiff has to prove that the defendant or someone in their control started the
fire now (didn’t have to before – used to be assumed defendant was responsible
and had to prove innocence)
o Is not Rylands
o Animals
 Strict liability for dangerous animals (ie lions, tigers and bears) for their escape
 If a third party interferes with your control, then there is no liability
 Would also sue for nuisance and negligence
 If you know your domestic pet is likely to harm someone, then there is strict liability
Rylands v Fletcher
o Court of Exchequer – Blackburn J - The person who for his own purposes brings on his
lands and collects and keeps there anything likely to do mischief if it escapes is prima
facie answerable for all damages which is the natural consequence of its escape
 First part of test
o House of Lords – Lord Cairn – said that the rule by Blackburn J is if there is an unnatural
use of land
 Second part of test for strict liability
o Prima facie liability for property damage and personal damage if
 Bring something on your property which is likely to cause damage if it escapes
 It escapes
 Causes damage
 And the defendant is using land in a non natural way (ie non ordinary)
 Ratio:
 The person who for his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes is prima facie answerable for all damages which is
the natural consequence of its escape
Smith v Inco
 Elements of Rylands v Fletcher?
o Escape?
 Has to be unintentional to be strict liability according to Rylands v Fletcher – if
its intentional, would have to be negligence or nuisance
 Escape can happen over a long period of time (doesn’t have to be a one off)
o Non natural use? (Ultrahazardous activity)
 Court took narrow approach – not going to make decision of dangerous activity
– that is a policy decision

Following regulations, so not really an ultrahazardous activity – even if you say
Rylands v Fletcher applies to ultrahazardous activity, still can’t be used in this
case
 The fact that the activity is authorized by statute makes it natural
 Use for direct benefit of community is natural – the Inco refinery was not there
for the direct benefit
 If conforming with local laws, you are more likely to be using it for ordinary use
 Doesn’t matter if the stuff does not naturally occur on the property, but if you
are hoarding it, then it could be a non-natural use
 The nature of the risk posed by the activity is taken into account
 If the substance occurs naturally, less likely to be held liable
o Foreseeability?
 If there is any foreseeability in Rylands v Fletcher, its not the foreseeability of
the escape (hence the unintended escape)
 The only thing that might have to foreseeable is the damage – kind of damage,
extent, etc
o Personal and property damage?
 Both property and personal damage are covered under Rylands v Fletcher
 By following all the regulations, the defendants were not using land in an extremely hazardous
way
 The risk described in Rylands v Fletcher is an unintentional escape, while in this case it is
intentional (intentionally released over 60 years)
Read v Lyons
 Escape is a mandatory element (no escape here) – 1) an escape from a place the defendant has
control over to a place where they don’t or 2) escapes from defendant’s land to the anothers (land
rights)
 The rule in Rylands is that it doesn’t have to be two neighbours
Eckstrom
 Defendant’s truck stalls and goes to Plaintiff’s garage
 When a light got close to gas tank, there was an explosion
 Escape of the gas from defendant’s property (truck) was found sufficient under Rylands
Conversion
 Intentional tort, strict liability
 A positive and intentional act of interference with a person’s right to possession of chattels (all
your stuff that is not land)
 Elements
o Denial or serious interference with possessory right (not necessarily an ownership right)
o Positive act that causes the denial or interference
o Goal of the act must be changing the possessory right
 Intentional tort – intention to do the act – not necessarily intent to do something bad (eg in Boma
CIBC intended to take the money out and into the other account)
o The act can be purely innocent
o No need to prove fault, but must prove intentional
o Accidents don’t count as intentional act
 Policy – why is this law fair?
o It’s about stuff
o Protection of property and possessory interest – make sure right to property stays with the
owner
 Statutory limitations eg.
o Banking legislation – limits banks liability for conversion
o Sale of Goods Acts – there is a warranty that the person who sold the goods has the right
to sell them
o Factors Acts – covers mercantile merchants – if a factor is holding property and sells it to
an innocent purchaser, the sale is deemed to be valid for the innocent purchaser
 Single act of causing possession change – Valuation of damage at time of conversion
Portage Credit Union Ltd. V D.E.R. Auctions Ltd
 Guy took loan from credit union to get a truck
 If he defaults on the loan, the truck passes to Portage
 He defaulted, but took the truck to DER Auctions and sold the truck
 The Auctioneer was liable for conversion
Boma Manufacturing Ltd v Canadian Imperial Bank of Commerce
 Boma’s accountant forged cheques and deposited them in her bank which were then sent to
Boma’s bank (CIBC)
 CIBC accepted the cheques and paid them out to the accountant’s bank account
 CIBC was liable in conversion
Vicarious liability
 Employers liable for the tortious acts of employee acting within course of employment
 NOT A TORT – a part of strict liability
 Policy – why is this a fair law?
o She who creates the enterprise that creates the risk should carry the cost of the risk.
OR he who benefits takes the risk (ie employer)
o Availability of remedy to the victim/”deep pockets”
o Ability to carry the cost – via prices, insurance, taxes etc
o Deterrence and prevention
 Elements
o Employer/employee relationship
 Does not include
 Parent-child
 Union –members
 Franchise-franchisee
 Independent contractors
 Control test (Sagaz)
 Control of how they do their work, go about their business
 Who controls this? Employee or employer?
o Acting in the course of employment
 Strong Connection Test – Bazley
 A strong connection between what the employer is asking for and
the wrongful act
 Connection is determined by looking at
o Opportunity for the wrong
 Created by the employer/enterprise?
 Or created by the employee or some other force?
o Link with employer aims
 Did the wrongful act have something to do with
the aims of the employer?
o Related to intimacy, conflict
o Power balances
 Between employee and victim
o Vulnerability
 Of the victim
o Time and place
 Liability for children in Care….
o Alternate strategies
 Mass settlement
 Eg residential schools settlement
 One or two test cases with horrendous damages
 Usually preceded by a criminal case against accused
 Ex gratia payments
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KLB
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
If a child is abused in care, the government skips the lawsuit
process and gives payments
 Parens patriae and alternative to money
 Sometimes a lawsuit is not the best thing for a child
 Put the child into counselling, prosecute the wrongdoer
 Avoidance
Other points about VL
o Must be tortious activity
 Definable tort in order for VL to kick in
o What if employee is immune from suit?
 Certain legislation saying they are immune for a certain reason
 If there is a tort committed by the employee, the employer may still be
liable even if employee is immune
o More than one employer
 Both VL for employees
o Employee liability
 Employers can generally collect back from employee
 Employee may not have the resources to pay back
 There was a case where the court disallowed the claim of the employer
Related rules
o Non-delegable duty
 “the duty may be a duty to ensure care is taken”
 Usually found in interpretation of the underlying statute
 Lewis v Govt of BC
 Court said no – there are some duties in a statute that cannot be
delegated to an independent contractor
 BC had a duty to maintain the roads, therefore they are liable for
damage – not VL, direct liability
 Can’t shift liability along with the work
 Independent contractor was also liable in separate action
 Hammer and foster parent cases
 Student said school board had a non-delegable duty to ensure
safety of students
 Court said no, they do not have a non-delegable duty
 Similarly in the foster parent cases, the plaintiffs said Gov’t
responsible for foster homes and have a non-delegable duty to look
after the children (after unsuccessfully proving VL)
o Statutory VL
 Drivers and Car owners
 Owners are liable for the tortious acts of the people who are
driving it
 Other – legislation
 Certain human rights legislation where employers are VL for acts
of discrimination by their employees
Wrong was sufficiently connected to the wrongdoer’s assigned tasks that the wrong can be seen as
a “materialization of the risks created by the enterprise”
No vicarious liability because foster homes/parents are independent from the government in terms
of control
New aspect of the connection test: Look at the degree of control as well

Jacobi
 What was authorized was not connected to intimacy
 His job was not to bring kids to his house or touch them in any way
 Hence no vicarious liability
Hammer
 Janitor who abused children
 Not sufficient connection between wrongdoing and job
 His job did not technically involve any interactions with children
 No vicarious Liability
Products Liability
 Liability for dangerous chattels
 Canadian
o Based on contract and tort (negligence)
o “Fault” based – at least in part
o Plaintiff proves either
 There was a contract or warranty of safety and it was breached or
 Negligence (failure to conform to duty)
 American is based on strict liability
 Dangerous Chattels – Canada
o Contracts or warranties
 Look at terms of contract between parties
 Look at statutory warranties (eg. Sale of Goods Act)
 No fault need be proven, just breach and damage
o AND/OR
o Negligence
 Two kinds of products
 Inherently dangerous – poison
 Becomes dangerous – design, manufacture or delivery defect
 Negligence and dangerous chattels
o All products (products that become dangerous/dangerous per se)
 Duty of care to anyone who may use the product
 Arising in 1932 – Donoghue v Stevenson
 We are liable to those we owe a duty of care (no more privity)
 Before 1932 you had to have privity (some contractual relationship
with the “victim”)
o PLUS
o Products dangerous per se
 Ultrahazardous
 Duty of care almost amounting to strict liability
 Was law pre D v S
 Exception to the old privity rule
 For negligence – have to determine foreseeability of the risk and is the damage proximally related
to the defect of the product – have to be proven by the plaintiff – does not fall under
ultrahazardous products rules
 Negligence is about the consequences of your actions – have to reasonably try to take care to not
harm anyone – duty of care
 Strict liability, its more about your action rather than the consequences (as long as you did the act,
you are responsible for all the consequences)
Intentional Torts (Trespass to person, property)
 Plaintiff doesn’t have to prove intent, can prove intrusion and the onus shifts to the defendant to
prove their was no intent – if successful, no tort
 Intention is to perform the act, not intention of the consequences
 Continuum of Intent
o accident
 shoot, reasonably believing no one is there
o careless / negligent
 shoot, without bothering to check
o
deliberate
 shoot, knowing someone is there
 transferred Intent: Carnes v Thompson
o tried to hit farmer but hit farmer’s wife
o just as liable because actual intent to hit someone
 liability for mistake in 1681 - Basley v Clarkson
o trespass to land
o Clarkson mowed the grass on Basley’s property and took it away
o Clarkson offered to pay, but Basley sued him
o courts said it doesn’t matter it was a mistake, he is still liable for trespass to his land
 liability for mistake in 2007 - Young v Arneyk
o trespass to land
o Arneyk went to Young’s property and cut down trees by mistake
o Young sued Arneyk and court said the same thing, doesn't matter if mistake, still liable
o mistake is not part of the action
Goshen v Larin
 in a case of battery, if inflict unintentionally, not liable - difference between trespass to land and
battery
 in battery there is an assumption that the contact occurred that raises element of intent - assumes in
batter that there was some wrongdoing by the defendant
 if you can prove that you were negligent and didn’t have intent, then no tort
Assault
 1)… The intentional creation in another person of a reasonable apprehension of imminent harmful
or offensive conduct. … it can be said that assault is the creation of a reasonable apprehension of
imminent battery.
 2) The defendant’s conduct must have caused a reasonable apprehension of imminent harm.
 3)… intentional creation of the apprehension of imminent harmful or offensive contact.
 4) (1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of
the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1,a) does not
make the actor liable to the other for an apprehension caused thereby although the act
involves an unreasonable risk of causing it and, therefore, would be negligent or reckless
if the risk threatened bodily harm.
 Elements
o Intention
 Must have volition
 Motive is irrelevant
 Whether can or intends to actually do harm – irrelevant, as long as the plaintiff
thinks you might do him harm, its good enough
o Creation
 Direct
 Cause -> effect
 “But for” test – if there is an intervening act that causes the effect, no
liability
 Word, deed, or combination
o Reasonable Apprehension
 Plaintiff’s POV
 Plaintiff has to be awake/conscious
 “Reasonable person” test – reasonable to assume harm will ensue
 Fear not required, Just need apprehension of offensive contact
 May be conditional – your money or your life
 Illegal conditions

Though it may be the gun is not loaded – doesn’t matter, all that matters is if the
plaintiff thinks it
o Imminent
 Immediate
 From the plaintiff’s perspective
 Not over the phone, across a counter, tomorrow, etc
 If you get a phone threat – not imminent
 Text saying I’m only a KM away – probably not imminent
 If they are banging on your door yelling – probably imminent
o Harmful or offensive conduct
 Physical contact – with body or an object
 Physically harmful OR
 Offensive – spit, lewd approaches, licking, goosing, fondling
 Actual damage Is NOT an element of trespass torts, including assault
Stevenson v Myers
 Defendant said because people were holding him back, there was no way he would be able to hit
him – therefore no reasonable apprehension or imminence
 Court said no, contact was imminent (had he not been held back, he would have hit him)
Bruce v Dyer
 Bruce committed an assault both by blocking Dyer’s car and when he stopped and got out –
reasonable apprehension of harm for Dyer
Mainland Sawmills v USW
 Fear not required for their to be assault – just reasonable apprehension
Battery
 a person who intentionally causes harmful or offensive contact with another person is liable for
battery
 battery is...bringing about intentionally an offensive or harmful contact with [to] another person
 Policy: Personal security, discourage violence
 Elements
o 1. Intentional
 motive is irrelevant
 same reverse onus – defendant must disprove they had intention
o 2. cause / directness
 the harmful or offensive contact must be the direct consequence of the act
 the compensation is only for the harm that is directly resulting
 limits of the trespass actions - can only get damages for stuff caused by direct
act - limits the harm that is compensable in a way that negligence doesn’t
o 3. harmful or offensive contact
 actual injury OR
 offensive contact
 all contact is prima facie offensive
 the harm is to the integrity of the person’s body
 delicacy
 beneficial, offensive conduct
 Plaintiff does not have to be aware of contact (unlike assault)
 Do not need actual damage
 Cause theory: Yes, I intended the act which caused the interference with rights. “I intended to step
where I stepped.” Therefore I am responsible for all damage/harm flowing from the interference.
 Fault theory: I intended the act which caused the interference with rights, but I am only legally
responsible for damage/harm I deliberately or carelessly caused (deliberate or recklessly) “I
intended to step where I stepped, but only stepped by honest mistake or by accident”
 Cause theory increases liability – worse for tortfeasors than fault theory
 Cause theory better for victims


Intention: - defendant has to disprove all the following:
o Deliberate?
o “substantially certain”?
o Careless and foreseeable?
o Careless and not foreseeable?
o Accidental or mistaken?
Volition Test: Did he know the nature and quality of his action?
Sexual Battery
 No elemental difference from regular battery
 Is it worth suing for sexual battery?
o Control of process, issues, get actual compensation, vindicating
o But is hard on the victim, may not yield anything
o Better or worse than criminal process?
o Advances the law – M v M and Norbert
o Changes social perceptions eg M(K) and incest – changed society’s views on the victims
of incest
 Standard of proof
o Like all battery actions,
 Balance of probabilities = clear and convincing evidence
 Less than Beyond a reasonable doubt
 Just enough evidence to show the tort occurred (tip the balance)
 No corroboration needed
 Ancient rule of evidence that a husband cannot testify against his wife
and vice versa
 Difficult to corroborate story – accused unlikely to corroborate victim’s
story – therefore not needed
Norberg v Wynrib
 Unconscionable and against public policy to allow “Consent” defence because of power
imbalance
 “Battery is actionable without proof of damage. Moreover, liability is not confined to foreseeable
consequences.”
 Characteristics of fiduciary relationship
o Fiduciary has scope for exercise of a discretion or power
o fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's
legal or practical interests and
o the beneficiary is vulnerable to the fiduciary holding the discretion or power.
M(K) v. M (H)
 Discoverability of Harm
o Limitation starts running on discovery or discoverability of harm
 She knew the wrongful nature when she was 16, but not the causal nexus – she
didn’t discover that until she was in her 30s and working with a therapist and
realized she was in fact the victim of abuse and it was not her fault
Intentional Affliction of Nervous Shock
 Definition: Direct and deliberate infliction of emotional anguish, nervous shock or severe
emotional injury
 Primary Policy – inviolability, personal security, dignity
 Created to fill a gap – allows you to sue for situations where there is not imminence (needed for
assault)
 Elements
o Intentional, or willful misstatement of fact, or a threat or an act
o Intended or could be reasonably foreseen to cause mental anguish/pain
o Direct – against the plaintiff
o Damage? – if you don’t have damage, you don’t have a tort – but how much?

1. Deliberate lie or act
o Misstatement of fact – lie
 Wilkinson v Downton – told dead husband
 Bielitiski v Obadiak – told son suicide
 Ginsber – didn’t tell about AIDS, hiding sexual orientation
o Direct Act
 Timmermans v Buelow – telephone threat of harm – became sick due to threats
(but they were not imminent – hence no assault)
 Purdy – strike husband in presence of wife – wife got physically sick - sued
 Radovskis v Tomm – witness rape of a child – mother couldn’t prove she had
measurable damage, hence denied compensation
 Edmonds v Funeral Home – Autopsy performed on deceased – created upset in
the plaintiff
 2. Intention
o The act was deliberate or could be foreseen to cause mental anguish
o Not cause based… high on the “deliberate” scale
 3. Direct
o The lie or act must “come” directly to the plaintiff
 Directed at the plaintiff
 4. Damage?
o Not clear whether legally is an element
o Practically speaking, must show
o What kind of damage?
 Nature of the damage
o Not “mere” grief or fear
o Embarrassment? – probably not enough
o Do you need physical harm?
 Probably not
 Need PROVABLE harm – eg depression, physical illness – recognizable harm
 Need serious, sustained harm
 Eg. Hair turning white, depression, physical ailments, etc
Wilkinson v Downton
 Decision, ratio
o Deliberate, willful misstatement of facts
o Intended or foreseeably likely to cause mental anguish and physical pain
False Imprisonment
 Policy
o On one hand
 Personal Freedom, inviolability
 Liberty, dignity and reputation
o On the other
 Public safety
 Need to clear up suspicious circumstances
 Economic/business interests
 Elements
o Confinement
o Intention
o Direct/caused by defendant
 Once elements are proven, onus shifts to defendant to prove lawful excuse
 Confinement
o 100% confinement – physical or psychological
o No force needed
o No “jail” needed – just need to restrain in some manner (physical or psychological)
o May be psychological
 Objectively reasonable to feel restrained eg embarrassment, uniforms
 Has to be objectively confined
o Eg. Bird vs Jones – Hammersmith Bridge – bridge path blocked - court said there was an
alternative way out – no confinement
 Intention
o Intention of defendant to confine
o Deliberate – generally is deliberate
 Direct
o Direct/caused by defendant – police doing confinement on laying of information – not
direct
o Intervening judicial discretion breaks the chain
o However, if police acted without discretion, then maybe
o See Otto v J Grant Wallace
o Defendant was the storekeeper, no the police. No crime committed. Police imprisoned
over word of shopkeeper, nothing more
 Not Required
o Plaintiff’s awareness
 But how much compensation will plaintiff get in this case?
o Actual Harm
 Defence
o A private person who arrests an individual must satisfy the court on a balance of
probabilities:
 A) that someone committed an indictable offence, and
 B) That the private person effecting the arrest had objectively reasonable
grounds for believing and actually did believe the person arrested had
committed that indictable offence.
Otto v J Grant Wallace Ltd
 Reasonable grounds and belief but no proof someone committed crime
 Therefore, false imprisonment
P.(M.) (Guardian ad Litem) v Port of Call Holdings Lts
 No belief that plaintiff committed crime
 Proof someone committed crime, but shopkeeper did not believe plaintiff was the one (or did not
express belief) – False imprisonment
Malicious Prosecution
 Policy
o One hand
 Personal dignity and freedom
o Other hand
 Public interest in the prosecution of crime
 Protection of prosecutorial discretion (from political or other forces)
 Elements
o Criminal Proceedings initiated by the defendant (prosecutor)
o Criminal Proceedings must be terminated in the plaintiff’s favor
 At any stage of criminal proceedings
o Criminal Proceedings must be instituted without reasonable cause
 No reasonable and probably grounds to convict
 No honest belief in the grounds
o Defendant (prosecutor) must have been malicious
 Not just lack of grounds
 Prosecutor deliberately intended to subvert or abuse the office of the Attorney
General
Nelles
 Evidence during investigation showed it could not have been Nurse who killed the kids – Still
went forward with prosecution

SCC said this was a case with no reasonable grounds to believe that you get a conviction, and
were so negligent and blind that it was malicious (not intentionally malicious)
Kvelles v Miazga
 Daycare workers accused of being Satanic Cult
 Children later recanted statements
 Court said there was no honest belief in the grounds – may have been reasonable grounds, but
prosecutor did not actually believe it – but it was NOT malicious – not deliberate intention to
abuse the office of the Attorney General
Proulx
 Party in civil matter used improperly as investigator/witness in civil matter
 Prosecutor used witness in civil matter (police officer) as investigator in criminal matter
 Court said it was malicious prosecution
Invasion of Privacy
 Intrusion upon plaintiff’s seclusion or solitude or into his private affairs
 Elements
o 1) Intentional or Reckless
o 2) Wrongful Intrusion
o 3) Upon Plaintiff’s private affairs or concerns
o 4) Invasion is highly offensive to a reasonable person causing distress, humiliation or
anguish
 Harm does not have to be proven
 Compensation will be modest
Jones v Tsige
 Ontario CA – introduced the new tort
Trespass to Land
 Direct interference with right to possession of land by going onto land or
placing/throwing/erecting something on land
 Reverse onus – defendant must prove justification
 Elements
o Plaintiff has possessory right to land (not necessarily the owner)
o Defendant physically interferes with it
o Direct action
o Intention?
 Possessory right to land
o Not necessarily ownership
 Right to possession – lease, licence, right of way
 Landlord trespassing on tenant
o Only has to be better right than defendant
 Defendant may have just right/justification to be on the property, but plaintiff
has a better possessory right (eg Landlord trespassing on tenant)
o If owner is completely out of possession, may have no right of action
 Very extreme situation
o Possessor must have sufficient control to entitle exclusion all others?
o Shopping mall picketing cases
 Grosvenor Park Shopping Centre v Woloshin (1964) - common law rule
 In Saskatchewan (no petty trespass law)
 Court agreed with plaintiff – you are the owner, your property you can
kick people off if you want to
 R v Peters (1971) - statutory rule
 Ontario (has petty trespass legislation)
 Court said you have invited people onto your property and therefore
you cannot exclude them

Possessor of property did not have sufficient control under the petty
trespass legislation

Interference
o The merest interference? – Trespass
o De minimus applies – no suit for trivialities – hence petty trespass law
 Direct
o Has to be direct chain of action between plaintiff and defendant
 Intention
o 2 lines of authority
 Costello
 Strict liability tort
 Intention to trespass doesn’t matter, as long as there was volition to act
 Minsky
 Court said plow operator did everything he could reasonably do, so no
trespass
 Did not directly intend to knock out transformer (so no intent) and was
not reckless/negligent – no tort
 Says no strict liability in trespass to land
o Difference between the two – intention in Costello of city to expropriate land (intention
of the interference, even though they didn’t know it was interference) while in Minsky,
there was no intention to hit transformer (accident)
 No damage required
o But de minimis standard applies
 Trespass legislation
o Petty Trespass Act
 Limited to land
 Fence is enough to prohibit entry – don’t need “no entrance” sign
 Not enough to kick people out of shops – there is invitation to enter there
o Trespass to Premises Act
 Includes buildings (not just the land)
 Charter violation? – police use it to kick homeless out of LRT
o These Acts do not give cause of action
 Continuing Trespass
o Every day is a new trespass (new tort)
o So limitations act “begins” when plaintiff wants it to
 However can only recover from when they start action
o Unlike Nuisance, which is considered just one tort – limitations period starts when
Nuisance starts
Didow v Alberta Power Co
 You possess the airspace you can reasonably or actually use or need to enjoy your property
 Possessory right to land
Trespass to Chattels
 Improper interference with possession of goods
 Elements
o Interference with possessory right to chattel
o Direct
o Intentional
o Damage?
 Interference
o Does not have to be permanent
o Moving, touching, damaging, destroying chattel
o Possessory right better than defendants
o If attached to land, no longer a chattel
 Direct


o Must be direct act
Damage
o Accidentally touching a good without damage is not sufficient to maintain action for
trespass (Everitt v Martin)
o Policy: If there is no damage, there is no loss
o Difference between trespass to person and to chattel
Intention
o Not sure if cause based (strict liability) or fault based (liable only if intentional or
negligent)
o If cause based, then accident/mistake no defence
Detinue
 Wrongful detention of goods
 Policy – property protection
 Elements
o Plaintiff has better possessory right to goods than defendant
o Plaintiff asks for return of goods
o Defendant refuses
 NOT A TRESPASS TORT
 Continuing act of deprivation – valuation of damage at the end of trial (return of good)
Defences to Trespass and Intentional Torts
 Consent
o Policy
 If I have control over my person, I can consent to invasion of person
o Forms of Consent
 Express
 Oral or written
 Can be combined with implied
 Implied
 Through participation
 O’Brien v Cunard
o Objective test: for a reasonable person, her actions spoke of
consent
 Sports – consent to reasonable touching that occur during game
(including minor infractions)
 Mistake will go in favour of plaintiff usually
 If there is force or underlying confinement, consent is vitiated
o Scope of Consent
 Reasonable to the activity
 In Sports, includes minor rule breaking
 If there is intent to injure – liability
 Agar
o Action was beyond scope of the consent – intention to injure
 Wright
o Mudball hurt kid, but judge ruled it was within scope of the
game
o Onus of proof is on defendant to prove there was consent
 Scalera
 Onus is always on defendant to prove there was consent, not on
plaintiff to prove there was no consent
o Reality/validity of Consent
 Fraud vitiates consent
 Fraud must be to the nature of the act, not the consequences
 Bell Ginsberg
o


Husband was bi-sexual, her consent was vitiated because of
non-disclosure of related health risks
Duress
 Violence or threat of force vitiates consent
 Undue Influence
 Power imbalance – eg Norberg v Wynrib
 Indicia of power imbalance – eg doctor-patient
 Indicia of exploitation – eg what would a reasonable doctor do? – did
they take advantage?
 Youth
 Mature minor rule – do they understand the actions and consequences?
If so, can potentially give consent (unless it is a life or death situation)
 Illegal activity
 Now can consent to illegal activity and therefore not sue based on the
illegal act consented to, but can sue for consequences that flow from
the act that you did not consent to
o Consent in Medical Context
 Basic policy – inviolability of human body and dignity
 Withdrawal/refusal of consent
 Malette v Schulman (refusal)
o Doctor was aware of patients beliefs due to card, so knew
there was no consent (clearly communicated to him) – liable
 Nancy B (withdrawal)
o If woman has capacity, can withdraw consent to treatment
o Doctor decides whether they have capacity – if not, no
withdrawal
 Capacity
o Fortey
 Was drunk, clearly did not have capacity to withdraw
consent – doctors who left him alone were liable
 Emergency Treatment
 Doctor’s protected from liability by statute (Adult Guardianship and
Trusteeship Act)
 Patient must not have denied consent (eg Malette)
 Treatment must be necessary, not just convenient
o Marshal v Curry
 Testicle removal was necessary part to treatment – ok
even though no specific consent
 Must be an immediate, not future need
o Murray
 Doctor tied up fallopian tubes at same time as tumour
removal
 Was not necessary to immediately tie up – could have
waited and asked if patient wanted it (no consent in
this case – liable)
 Consent on behalf of Minor, adult incapable of consent
 Must be in their best interests
 Court can step in if guardian’s decision is dangerous
 Doctrine of Informed consent
 Duty to inform patient of risks/consequences
 Failure to inform does not vitiate consent to trespass, but fraud does
Self-defence
o Defendant not liable for trespass if:
 Defendant had reasonable apprehension of harm – even if mistaken
 Used no more force than necessary
o
o
o



Only for defence of person, not property
If can escape/retreat, must attempt to do so – in Canada
Defence of others
 Extends to family and those with duty to protect
 Same rules as defence of self
Defence of Property
o Right to defend your property if someone else comes on it by telling them or using
reasonable force – not much force is justified in protecting your property
o If someone comes on you’re property legally, you must tell them to leave first
o If someone comes on you’re propery illegally, you can use reasonable force right away
o Defence of defence of property
 A defendant who has trespassed is justified if she was doing so to protect against
wrongful interference of her property
 Defendant must show plaintiff wrongfully interfering with property and
 Reasonable force used in response
o If entrance is peaceful, must use words first, not action
 Green v Godard
 A defendant may take reasonable steps to defend his property.
 - This extends to taking reasonable steps to eject a trespasser (which
might mean first asking the trespasser to leave)
o Some statutory authority to remove someone or something from your land
Necessity
o Elements
 Plaintiff is without involvement or fault
 Significant external threat – weather, emergency, (Not war)
 Imminent peril
 Onus on Defendant to prove
o Necessity in Private Interest
 Elements:
 external threat
 imminent peril, need for survival
o Southwark v Williams
 squatters were kicked out because even though they
needed a place to live, the peril needs to be limited
 squatting in property is not imminent peril
o Vincent v Lake Erie
 boat was crashing against dock
 imminent peril
 all reasonable steps must be taken by the defendant
 but don’t have to do things that would put you in
peril in order to save the plaintiff’s property
 All reasonable steps taken
 Defendant did not contribute to the risk
o two lines of authority:
 partial defence
 if no damage, then a defence; if there is
damage, defendant pays
 Vincent v Lake Erie
 complete defence
 plaintiff bears all the risk
 dissent in Vincent
o results dependent on facts and equities
 courts might choose one policy over another
depending on the case
Legal Authority
o
o
Mainly statutory authority – gives authority to trespass
Issues
 Adherence to procedural requirements
 Eg. Costello
o Not enough notice given, therefore no expropriation
 Constitutional Validity
 Charter Validity
Negligence
 Definition
o Two meanings
 Negligent conduct - Careless, thoughtless, bad, wrongful conduct; not
deliberate as to consequences, not totally accidental (Reckless behavior)
 Cause of action for negligence - a plaintiff is entitled to a legal remedy when
(Legal Elements needed to sue)
 A. Defendant has a duty of care
 B. Defendant breaches the duty
 C. Damage has resulted
 Policy – purposes, values, interests
o Compensation for faulty conduct
o Deterrence
o Normative - reinforces values (gives us rules to live by/normalizes behavior)
 Respect, responsibility etc
 Fairness
o Compare to “single interest” torts – defamation, trespass to land or chattels,
nuisance
o Negligence protects multiple interests and people
 History of the action for negligence
o Pre 1900 – no general “duty”
o Liability for negligence only within defined relationships
o Policy: Legal duty should not be imposed on someone unless they agree to it.
Needed privity of contract (or something similar)
o Industrial revolution put pressure on this principle
 Especially in products liability – want to solve the problem of “innocent
purchasers” being injured, as well as employee injuries
o Donoghue v Stevenson
 1932 – house of lords in England
 Facts: Ginger beer bought for a friend and a snail was in it
 Friend became sick, wanted to sue manufacturer
 But no privity since they did not buy it
 Destroyed privity rule
 Narrow rule: New category of duty (manufacturers of dangerous
products are liable regardless of privity)
 Wide Rule: the neighbour principle
 You owe a duty of care to anybody who you can reasonably
foresee will be affected by your actions
o Rapid Expansion of liability based on neighbour principle
 E.g. Expanded to direct economic as well as physical loss
o Growth slowed down in in the last few decades as SCC and HL limited development
of new duties of care
 Klar/Linden/Feldhuesen elements
o 1. Damage - Claimant must suffer damage
 Physical? Mental? Economic?
o 2. Causation - Damage must be caused by the defendant’s conduct (Cause in Fact)
 Show on a balance of probabilities that the defendant caused the damage
3. Breach of legal standard of care - Defendant’s conduct must be negligent
 Have to know what the standard of care is and that there was a breach
o 4. Duty - Must be a recognized duty to avoid the damage
o 5. Proximate cause - Conduct must be a proximate cause of the loss (i.e. damage not
too remote) (Cause in Law)
 Legal, not factual question
o 6. (is this an element?) Defences - Plaintiff’s conduct should not be a bar to recovery
Element 1- Damage
o The harm caused by the breach of duty (i.e. negligence) – compensable harm is
limited to what was actually caused, physical harm, and “proximity/remoteness” of
the harm.
o Damage is quantified by damages.
Element 2 – Cause in Fact
o Liability arises if the damage would not have happened “but for” the breach of duty
(i.e. negligence).
o Except, if it is impossible to prove causation because there is more than one possible
tortfeasors, the “material risk of injury” test applies.
o


Element 1: Damage
o There is no tort of negligence unless there is damage.
o Why is damage an element of negligence?
 Otherwise there would be lots of unnecessary lawsuits which would be
successful
o Policy
 Improve deterrence, prevents floodgates
 If you have to pay for your negligence, you will do your best to not
be negligent
 Defendants should not pay where no damage
 Restitutio in integrum
 Plaintiff who is wrongfully injured should be restored to their
position before the tort occurred
 Corrective Justice
 Damage (the Element)
o Limitations Act
 Discoverability of negligence
 2 years from the time they discovered (or was discoverable) that
the harm is attributed to the actions of the defendant
 Agreements and Suspension – Concealment, persons under disability,
agreements (ss 5,7,9)
 As a defence v barring starting an action
 Limitation does not extinguish the claim
o Eg. Set off
o Eg. Epcor Power
 Took too long to bring forward arbitration
 The court said the claim to go to arbitration was
still alive
 10 year rule starts when the last conduct in the claim occurs
 The 10 year rule is suspended if the defendant fraudulently conceals the
fact that there was an injury
 If plaintiff is under a disability, time does not run during the disability
 If plaintiff is a minor, time is suspended until they reach the age of majority
 An agreement cannot reduce the limitations period, only extend it
 Whether damage is “proximate”
o AKA whether damage is “too remote” to be compensable
o
Factual and Policy issue
 Foreseeability of the injuries
 Biggest issue – was the damage foreseeable?
 Probability
 Severity of injury
 Nature and degree of defendant’s conduct
 Relative financial positions
 Behaviour of plaintiff in response to injuries (mitigation)
 Compensation of plaintiff for blameworthy conduct
 Predictability and certainty of the law
Element 2: Cause in Fact (aka Causation)
o The “but for” test and the material risk test
o Not the proximate cause (that’s a legal question) but factual cause
 Cause in Fact
o The “But For” test
 The injury would not have occurred “but for” the negligent act of the
defendant
 Proof of cause, not negligence!
 Still have to prove breach of duty, standard of care, etc
 Balance of probabilities
 Doesn’t have to be the sole cause
o Kauffman and TTC’s lack of railings
 They couldn’t prove that “but for” having better railings the injury would
not have occurred – even though not having the railings was negligent, it
was not the cause
o Mclaren’s heart attack
 Rescue attempt was negligent, but it was not the cause of the death
(damage)
o Most commonly used!
 Applying “But For”
o Athey v Leonati
 Facts
 Received a herniated disc doing yoga
 Wouldn’t have happened but for the negligence in two previous
motor vehicle accidents
 General Principles
 Have to prove on balance of probabilities but for the defendant’s
action the damage would not have occurred
 Multiple Tortious Causes
 Divisible Injuries
 If there is two separate harms, then there is two separate torts
 Adjustments for Contingencies
 Eg. Insurance – can lessen the damages paid out then if there is
something to help cover costs already
 Independent Intervening Events
 Thin Skull, Crumbling Skull
 Thin Skull: If you injure someone with a thin skull, you take your
victim as you find them
 Crumbling Skull: Going to end up all or partly in the condition
anyway, that is taken into account
 Cannot apportion liability between innocent and negligent causes.
 When “But For” does not work
o Clements v Clements 2012 SCC 32
o
o
o
o
Facts
 Couldn’t prove the but for test even though there was negligence
Plaintiff claims “material contribution” test rather than “but for” - i.e. that defendant
“materially contributed to the risk of injury”
Why? She could not prove defendant’s negligence caused the harm.
The rules of cause in fact: Clements v Clements at 46
 “(1) As a general rule, a plaintiff cannot succeed unless she shows as a
matter of fact that she would not have suffered the loss “but for” the
negligent act or acts of the defendant. A trial judge is to take a robust
and pragmatic approach to determining if a plaintiff has established
that the defendant’s negligence caused her loss. Scientific proof of
causation is not required.
 “(2) Exceptionally, a plaintiff may succeed by showing that the
defendant’s conduct materially contributed to risk of the plaintiff’s
injury, where
o (a) the plaintiff has established that her loss would not
have occurred “but for” the negligence of two or more
tortfeasors, each possibly in fact responsible for the
loss; and
o (b) the plaintiff, through no fault of her own, is unable
to show that any one of the possible tortfeasors in fact
was the necessary or “but for” cause of her injury,
 because each can point to one another as the possible “but
for” cause of the injury, defeating a finding of causation on a
balance of probabilities against anyone.”
Element 3: Standard of Care
 Negligence –
o Breach of a standard of care, where the defendant has a duty of care or
o Transgression of standards to be expected of a reasonable person or
o Failure to take the care which would have been reasonable in the circumstances
 What is “Standard of Care”
o A Standard of behaviour - conduct is blameworthy if it creates an unreasonable
risk of harm.
 Big issue is if the risk is unreasonable
o Objective Test
 What is reasonable in the circumstances? (What would a reasonable person
do?)
 What’s the likelihood of the harm?
 What’s the cost of eliminating the harm?
o Mixed question of fact and law
 Prove Standard of care by establishing certain facts and certain law
o Not a matter of morality, motive
 Can be “innocent” – didn’t mean to cause harm – and still be liable
o Intertwined with duty of care
 For S/C – have I created an unreasonable risk?
 For D/C – do I owe a duty to the plaintiff to adhere to the S/C?
 Identifying Standard of Care
o Unreasonable Risk of Harm
 Is risk of harm created by defendant un/reasonable?
 1. Degree of risk
o Probability (foreseeability), loss, utility of activity, cost of
remediation
 2. Reasonable person test
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3. Custom?
o Used to be that if you are following custom, not liable – not
necessarily true anymore
4. Statutes?
o Law has changed, used to be liable for breaching duty due
to statute, not necessarily the case anymore
Bolton v. Stone (1951)
o Cricket ball hit from cricket pitch owned by defendant hit the plaintiff outside the
pitch
o Was it an unreasonable risk of harm?
o Harm is reasonably foreseeable
 Is it mathematical probability?
 Reasonable probabilities v fantastic possibilities
 Looked at the past – how many times it had left the pitch before
o Plus - severity of harm
 What would happen if it hit someone? How bad would the injury be?
o Plus - Cost of compliance? Yes or no?
 Not looked at in this case, but should be a factor
o Probability of occurrence
 Once every three years? Once a day?
 Mathematical only?
o Magnitude of loss /Severity of harm
 Cricket ball or dynamite?
 Eg. One eyed mechanic
 Court said the risk was sufficient to have to supply with goggles
o Burden of remedial measures , Utility of activity
 Eg policeman slips while chasing a bad guy, may be thought to be
contributory negligent, but court could say it was an important activity
(utility taken into account) so not contributory negligent
 Example -Police chases
 Innocent bystander hit – sometimes utility of activity outweighs the
consequence
Economic Test?
o Is Probability of Loss greater or less than Burden of precaution?
 If cost of loss is less than the cost of precaution, then take the harm
 If cost of loss is greater than the cost of precaution, then use the precaution
o Critique
 Are all harms measurable in dollars?
 Can’t be case specific
 Avoidance of harm v responsibility for action?
o Economic test doesn’t get same results as reasonable test – reasonable test is what
is reasonable for moral, actual person (policy reasons), not just deal with money
The Reasonable Person Test
o Looks at probability, degree of harm, utility/remediation from the perspective of the
reasonable person
Vaughan v Menlove (1837)
o Menlove made a hayrick, which caught on fire and set plaintiff’s cottage on fire
o Plaintiff had told him to get rid of hayrick because it would catch one fire
o Menlove said he knew there was a chance, so he put in the chimney (which didn’t
help)
o At trial… prudent man test
 Liable – prudent man would have not put them at this risk
o On appeal … best efforts and bona fides test
 He really didn’t want the fire to happen and put a chimney in, so no liability
On further appeal… man of ordinary prudence test
 Liable again – this is the correct test
 Have to have some kind of general standard that applies to everyone
rather than on an individual basis
Reasonable Person test – Policy
o Subjective or objective?
 Objective
o What about stupid people or beginners?
 Reasonable person Standard of Care is a general test – applies to everyone
no matter what imperfections they have
o Standard of perfection?
 Don’t have to be perfect, just reasonable – if you cause harm but are being
reasonable, then not liable
o Proper to put judge or jury in the place of the defendant?
 No, it would be moving away from reasonable person to a real person – has
to be the fictitious person
Custom and the reasonableness test
o Custom = community or industry practice
o Conformity or non conformity with custom is some evidence of reasonableness
o Plaintiff must prove custom and (non) conformity
o Policy – promote good practice
 Both industry and community
 Encourages us to do the right thing
o Historically, conformity with custom was prima facie conclusive of reasonable care
 E.g. Klyne v Town of Indian Head (no hockey glass in the arena – other rinks
in the area didn’t have glass – no liability); Cowle v Filion (child struck by
car – parents in the neighbourhood all supervised their children the same
way, so parents were acting in compliance with custom, so not contributory
negligent); Ruch v Colonial Coach Lines (no warning re bumpy back seat –
no other bus lines gave warnings so lack of warning was industry practice,
complying with industry care)
 Not necessarily the case anymore
o Still a very strong indicia for professions and trades
 Doctors e.g.
Waldick v Malcolm (1991)
o Icy sidewalks
o Plaintiff must prove custom, no judicial notice
o Adherence to custom not necessarily proof of adherence to standard of care
o No amount of compliance with an unreasonable custom will make an action
reasonable
Penal statutes and standard of care
Saskatchewan Wheat Pool (1983) SCC
o Facts: Pool delivers infested wheat to Board in breach of statute. Pool acted
carefully (not negligent). Board sues for damages for “breach of statute. ”
o Issue: is there a tort of breach of statute?
o Court said there was no tort for breach of statute – if you are negligent while
committing the offence, then it’s a tort of negligence
o Breach of statute is some evidence of negligence
 Not prima facie, not absolute liability
 Court, not legislature, decides whether there is civil liability
 Except if statute sets the standard of care
 Onus still on plaintiff to prove all elements
o Consistent with
 Move away from strict liability
 Legislation creating specific duties and compensation schemes
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Improper to conflate (mix-up) civil and criminal sanctions/policy criminal is to protect society, civil is to compensate victims
Limitations on breach of statute as a measure of reasonable care
 1. breach of statute/compliance of statute
 2. offence must cause loss
 3. accident of type statute sought to prevent
 4. plaintiff in protected group
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Note:
o
Breach of statute can cause civil liability
 1. Damage
 2. Breach equals standard of care
 Often the statute is essentially the civil standard of care
 Classic example is traffic signals and rules of the road
o Compliance with legislation may not equal adherence to
standard of care
o Ryan v City of Victoria, Bux v Slough Metals (goggles)
 3. Breach of statute caused damage
 But-for test
o Johnson v Sorochuk: Car has defective brakes in breach of
statute but Court found that breach was not the cause of
the damage; woman darting out of her car did
 4. Common law duty of care owed to the same people the statute aims to
protect
 Hatch v Ford Motor Co (hood ornament)
o Ornament stuck out from front of vehicle; child tripped
and impaled on it; Court ruled that purpose of legislation
against huge hood ornaments was to protect other cars,
not children while car was parked
 5. The policy protected by the penal statute is the same as the policy
protected in negligence (proximate cause)
 Garris v Scott (sheep on ship got out of pens)
o Sheep supposed to be in pens on ship; ship owner
breached the statute and sheep were damaged/lost in
storm
o Court said the pens were to prevent disease so action fails
Standard of Care for Children and Disabled
For the Young
Tender years- no culpability in torts
o Youth- Standard of care for a reasonable child of like intelligence, experience, and
judgment (both objective and subjective); could be established through evidence
 Heisler v Moke
 Exception is adult activities
o Adult- normal foresight and prudence are expected
What are the cut-offs between tender years and youth?
o Heisler v Moke
 Test to be applied when determining whether an adult was negligent is
purely objective
 In the case of children:
 Test is basically, ‘have they become aware of any duty of care or
particular peril to be considered?’
 Can they conceive of duty of care? If so, more likely youth and
culpable to the standard of care of a reasonable child of like
intelligence, experience, and judgment
 To distinguish youth from adulthood:
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Age of Majority Act may not establish a proper cutoff at 18
o At 16-17, Courts would like switch to adult test anyways
because of mature minor or because they are adult
activities
 The elderly: should there be a new standard of care?
Joint and Several Liability:
o Joint liability = all tortfeasors are liable up to full amount of claim.
o Several (proportionate) liability = each is proportionately liable
o Joint and Several liability = each tortfeasor is liable up to the plaintiff for the full
amount of the claim and can sue (on the several liability part) each others for a
share.
In negligence law, tortfeasors are jointly and severally liable for the loss.
Contributory Negligence Act:
o Allows apportionment of damages amongst those at fault, including plaintiff; the
Court can apportion the damages.
o Default rule: defendants are jointly and severally liable and therefore no
apportionment!
 Except for contributory negligence:
 Eg. 2 tortfeasors both did wrong to the plaintiff. Plaintiff did something that
contributed to the injury. 30% of the loss belongs to the plaintiff. If
defendants are jointly and severally liable, the amount of damage that
tortfeasors are responsible is reduced by the amount that resulted as of the
contributory negligence of the plaintiff (i.e. 30%).
Governing principles:
o Restitutio in integrum (return the victim to the position in that they were just before
the tort occurred)
o Take the plaintiff as you find her
o “But for” cause-in-fact rule
o deterrence, promoting good behaviour
o compensation to innocent victims
Scenario 1: Single wrongful cause:
o One negligent act, resulting in damage. Negligent act the cause of damage. Damage
would not have happened “but for” the defendant’s negligent act.
o Result: Defendant liable for 100% for damages.
Scenario 2: Both wrongful and innocent cause.
o One negligent and one “innocent” act … resulting one harm. Negligent act a cause of
damage. Damage would not have happened “but for” the negligent act.
o Result: Defendant liable for 100% of damages. Innocent cause irrelevant.
Scenario 3: Multiple causes, all wrongful.
o Two or more negligent acts resulting one damage, no innocent act. Negligent act(s) a
cause of damage. Damage would not have happened “but for” the negligent act(s).
o Result: Each tortfeasor jointly and severally liable for 100% of damages. Plaintiff can
sue either or all tortfeasors. Defendants whose negligent act not a cause, not liable.
Scenario 4: Multiple causes: wrongful and innocent.
o Many negligent and innocent acts, resulting one damage. Negligent act(s) a cause of
damage. Damage would not have happened “but for” the negligent act.
o Result: 100% of liability borne by the tortfeasors. Innocent cause irrelevant.
Defendants whose negligent acts did not cause damage not liable. Athey rule- cannot
apportion liability between innocent and negligent causes.
o Example: The Syncrude fire lawsuit ($280 M damage):
 Assume all defendants had duty of care
 Which defendants breached standard of care? (i.e. were negligent)
 “But for” their breach would the damage have occurred?
 Did their breach in fact cause the damage?
“Joint and several” liability for joint tortfeasors of a maximum of $ 280M. As
between the tortfeasors, they would have to find a way to pay the amount
($280M). The plaintiff does not care how the defendants pay them.
 For 100% of damages
 Can be apportioned under Contributory Negligence Act
 Non-tortious causes irrelevant
Scenario 5: Separate harms.
o Two or more negligent acts each result in separate damage (two or more harms).
For each harm: Negligent act a cause of that harm. Harm would not have happened
“but for” the negligent act.
o Result: Each tortfeasor liable only for damage she causes. Not joint or several
liability. Argument: 2 separate unconnected torts and damage is unconnected.
Scenario 6: Finger pointing- material risk test.
o Two or more defendants, all are negligent (breached standard of care) and harm
resulted. Defendants’ negligence may have caused the harm. Each contributed to
material risk of injury. But cannot prove using “but for” because they can point at
each other –use material risk test.
o Result: “but for” test does not apply. Clements – All who contributed to the material
risk of the injury are jointly and severally liable.
 E.g. Cook v Lewis, asbestos cases- contribution to the material risk of harm
of defendants + harm resulted+ breach of standard care => while cannot
show but for you actions the damage would not have occurred, the material
risk test has been establish and therefore liable.
Plaintiff contributory negligence
Plaintiff negligently contributes to the damage caused by tortfeasor
o Result
 Damage is apportioned between tortfeasors and plaintiff
 Tortfeasors jointly and severally liable for their share
Plaintiff “innocently” contributes to the damage:
o Scenario 1: “Extra” vulnerable before the tort – (Thin Skull)
 More vulnerable than normal plaintiff
 E.g. youth, delicate, sensitive
 Result: Tortfeasor(s) liable for 100% of the damage
o Scenario 2: Damage innocently occurs after the tort occurred
 Result
 Was damage “but for” the negligent act? If it is, tortfeasor pays
assuming there is a breach of duty.
 Is the claim still alive and all the other elements (including
proximity) present? If claim’s been settled, cannot sue for damages
after claim’s been resolved.
 If yes, to both, tortfeasor 100% liable. Sometimes, even if you cause
damage, then by policy it can be held that it would be ridiculous to
allow for the claim to succeed.
Plaintiff already “damaged” before the tort – (Crumbling Skull)
o Tort made a bad situation worse
o E.g. Plaintiff had life expectancy of 6 months before tort, tort reduced it to 3. You
only have to return them to the situation that existed before the tort occurred.
o Result:
 Assessment of damages based on condition of plaintiff before the damage
occurred
 E.g. replacement of property is value at time of loss
o Same for people
 “Thin” and “crumbling” rules may both be involved
Contingencies:
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To be taken into account in quantifying damage (they can either increase or reduce
damages):
 Plaintiff has insurance, pension;
 Government programs available;
 Plaintiff has other resources (e.g. family);
 Plaintiff has unique expectations or potential.
Professional Negligence
o What is the standard of care for doctors, lawyers and other professionals?
 The care required by a professional person is that degree of care which is
shown by the reasonably prudent practitioner operating in like
circumstances. Klar Tort Law at 395
 Extra duty for doctors – duty to inform
 Take current state of knowledge into account
o An “error in judgment” may be negligent, but not necessarily
 Judgment must rely on professional knowledge, expertise and skill
 No expectation of perfection
o Guiding principles, issues
 General negligence principles
 There is always duty of care to clients/patients (Element 4 )
 Contractual relationship in addition to duty of care
 Origin of negligence tort
 Expert knowledge, unknowable by lay person – protection of client
 Allow professionals to practice
 Autonomy of clients
Doctors and Medical Practitioners
o Duty of care in respect to treatment
o Duty to disclose
Doctors: two standards of care
o 1. Standard of care for treatment
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Must conform to a fair, reasonable and competent degree of skill
 Example - Challand v Bell, citing Salmond, Fleming, Wilson v
Swanson (SCC)
o Plaintiff was working on a farm, broke his arm
o Doctor didn’t clean the wound, but checked it before
setting it in a cast
o Ended up contracting gangrene and arm had to be
amputated
o Doctor was a general practitioner and did what was
expected of him – exercised reasonable and competent
skill – not liable
o 2. AND Duty to inform; informed consent for treatment
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Riebl v Hughes – Must inform of material risks of treatment
1. Standard of Care for treatment
o Prudent and diligent physician in the same circumstances
 Reasonable level of knowledge , competence and experience
o Judged based on knowledge available at the time
o Custom, common practice is the standard of care, unless
 The particular action is not within professional activity
 Custom does not always equal proper standard of care – ie if its out of date,
then acting in custom still does not relieve liability
o Considerations
 Specialists
 Degree of care of specialists - including surgeons
 Conform to the standard for their specialties
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Beginners – junior docs
 No exceptions
 Same standard as a normal doctor
 Interns
 Reasonable care for interns
 Take into account that they don’t know as much – have to act as
they know they don’t know as much – should ask for help when
needed
 Location
 NO exception for location,
 Used to be an exception for rural vs urban centers – no longer the
case
o What about access to facilities?
o If facilities aren’t available/different, then can get a pass
Extent of tort standard of care
o Follow up on patient activity?
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What policy should apply here?
 Because there could be a risk to the public if people don’t adhere to
their post-treatment instructions
 But the rule is the patient has the responsibility to follow up
 So not responsibility for the doctor to follow up
o Doctor under a disability?
 Should they reveal to the patient?
 Don’t have to inform, but cannot allow disability to interfere
o Report child abuse?
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Statutory requirement – section 4 Child Youth and Family Enhancement Act
 As long as there is reasonable evidence
o Not performing treatment due to cost constraints
 Not a defence
 If a treatment is available, have to do it
o Not advising of alternative treatments
 Discussed under duty to inform
Other medical professionals
o Same standard of care: conform to standards of their profession
Proving negligent medical treatment
o Plaintiff must prove standard of care and breach
 Usually via expert evidence
 Unless self evident, then don’t need experts
o E.g. exploding patients and sponges in the gut
 Conspiracy of silence???
2. Doctors – duty to inform
o AKA – duty to disclose, duty to ensure informed consent
o Terminology warning – called a duty, but is a standard of care.
o IF you don’t inform, breach standard of care and are negligent
o Disclose
 the nature of the proposed operation
 its gravity
 any material risks and any special or unusual risks
Cause in Fact and Duty to Disclosure
o What if there is no proper disclosure?
o Question: did failure to disclose cause the damage? Did the damage occur “but for”
the lack of disclosure?
o Problem is, plaintiff will always say “had I been properly informed, I wouldn’t have
had the surgery”
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Breach of Duty to disclose as Cause in fact
o The “modified objective test” of causation
 1. Doctor informs patient of risks
 2. Patient consents and undergoes treatment
 3. Harm occurs as a result of treatment
 4. Question 1 – Was the information provided in accordance with
duty? If no, then
 5. Question 2 – Would a reasonable patient in the plaintiff’s particular
position have refused the treatment? If yes,
 6. Failure to inform caused the harm.
o Reibl v Hughes
 Man had surgery, during it he suffered a stroke
 Had he waited a year or two, he would have received pension benefits from
work
 Sued doctor, saying had he been properly informed, he wouldn’t have had
the surgery
 The court said the surgeon was vague about the risks and was clearly below
the level of proper informing the patient
 Causation test: Given there was a breach of the duty to disclose, would a
reasonable person in the plaintiff’s position have declined the medical
procedure?
 “modified objective” test for causation –
 Is it subjective or objective?
 Objective part is: what would a reasonable person have done
 Subjective: what would a reasonable person in the plaintiff’s
situation have done
 Policy balance: interests of doctors and patients
 Takes into account the Plaintiff’s fears but only his reasonable fears
and interests
Back to the issue of what must be disclosed
o Reibl v Hughes What must be disclosed?
o Information
 Nature of the treatment
 Material Risks of treatment
 Material Risks of not having the treatment
 Alternatives to the treatment
 Special or unusual risks of treatment
o Taking into account the patients emotional situation and intelligence
 Can generalize information
o “Material risk” –
 Likely and/or severe harm – then tell the patient
 If inquired about by patient - then tell the patient and explore the inquiries
 If Doctor knows or should know about patients interest
 Relevant to the patient’s decision to undergo the treatment
 Special or unusual = special or unusual?
o Establishing the standard of care for disclosure:
o Material risks different in each case
 Experts can testify the objective risks
 Practice standard – most of the time, good enough to set standard of what
to disclose
 What the likelihood is and what the physical severity is
o Patients and families establish impact of risk on plaintiff
 Provide evidence on impact of the risk for him/her
 What they told the doctor
 Eg. Reibl – financial interests, etc
Experimental and cosmetic procedures – more disclosure required
 Risks are unknown, may outweigh the benefit
o Disclose doctor’s inexperience, or disability?
 No
o “Everyday” risks do not have to be disclosed
 Because we are already familiar with them
Application of duty to inform
o Doctors
o Chiropractors
o Dentists
o Surgical and non surgical
Policy and practical issues in Medical negligence
o Concepts
 Subrogation: right to assume the plaintiff’s claim
 Hospital’s Act, insurers
 Pay the plaintiff, and then go after the negligent doctor
o Structured settlement
 Large sum of money designed to produce an income stream to plaintiff with
big damages
o Contingency fees
 Lawyer says if you win, I get a share of the damages
Professional Negligence generally
o The standard of care required by a professional person is that degree of care which is
shown by the reasonably prudent practitioner operating in like circumstances
 Access to facilities taken into account
 Juniors have same standard as seniors
 Experts must meet expert standard
 Locality is not a measure of skill
 Standard of care is the “industry standard” unless it is clearly unreasonable
 State of knowledge - at time of the tort
 Sound judgment, not perfection, is required
o Doctor’s and Dentists
 Two Standards of care
 Treatment: Doctors must provide treatment according to the
standard of a reasonably prudent doctor practicing in the same
circumstances and, if applicable, according to the same
specialization.
o Objective test
 Duty to inform: Before treatment, doctors must provide the patient with
sufficient information such that the patient is able to make an informed
decision about treatment
 Taking into account the objective risks and the circumstances of
the patient
o Breach of standard of care for treatment = negligence
 Liable for damage caused by sub-standard treatment
o Breach of standard of duty to inform
 If there was harm from treatment (whether or not negligent)
 AND there was a breach of duty to inform
 AND a reasonable patient in the patient’s position would have refused if
properly informed
 Then, Breach of duty to inform= negligence
 i.e. Liable for any damage from treatment, if there was no informed consent
and patient (acting reasonably ) would have refused
o
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Lawyers – Standard of Care
Brenner v Gregory - a classic statement of the duty
o Client was aware that some of the property he was buying was outside the property
line
o The obligation of a solicitor to exercise due care in protecting interests of a client …will
have been discharged he has acted in accordance with the general and approved
practice …
 Client interests are central
 Expert evidence used
 Judges may take notice
o … unless such practice is inconsistent with a known risk, as where particular
instructions are given which the solicitor fails to carry out (Brenner v Gregory)
Issues
o The problem of duty in contract v duty in tort
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arises when there is a contract with the professional
 History
 Contract only
o Limited to just the contract – no broad test of reasonable
care
 Then contract or tort?
o Donohughe v Stevenson – developed negligence
o Some judges said you could only sue in contract, some said
the tort exists
 Central Trust v Rafuse (1986)
 Duty of care arises when there is a contract
o If you have a contract that provides services
o Because there is sufficiently close relationship
o Cannot circumvent contractual limits on liability
 If contract talks about tort liability, then that
applies and modifies the liability
o The question of lawyers who specialize
 Elcano
 Specialists will be held to higher standard
 Even though lawyers don’t have “official” specializations
 Court said you can be held on either the “specialization” standard
or “general” standard – either way, in this case would have been
liable
o Clients who ask for rushes
 There is no lower standard of care for rushes (Elcano)
 It is smart for the lawyer to tell the client that a rush would mean they could
not do as good of a job and the client will bear the risk
o Advocacy and conduct of trial
 For a long time there was immunity for barristers (no longer the case)
 Proving “Better results”
 Forces “Trial of a trial”
 Basically just an appeal
 Loss of chance at a better result is not “damage” or “harm” you can
sue for
o Judges
 Immune
o Third parties
 What if I am not the client, but am injured by lawyer’s negligence?
 Wills and Succession Act s. 37,38,39
 The court can “rectify” the mistake made
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 Eg Lawyer writes will wrong (gives property to wrong person)
 For wills, they potentially could sue
 Problem: very broad liability – proximity issue?
Other Professions
o Same principles apply
Gross or Aggravated Negligence
o AKA willful or wanton misconduct, recklessness
o Legislative and contractual provisions
 Limiting liability of tortfeasors to gross negligence
 Eg. Snow on roads – can only sue for gross negligence – have to
notify municipality of suit within 21 days
 Does not change rules for quantification of damages
o Defined
 Marked departure from standard of care
 Very great negligence – SCC
 Negligence, gross negligence and recklessness - A fool, a damned fool and a GD fool Judge Magruder
o Can be one act or a compilation of acts
o Defines the act, not the result
Onus and burden of proof, Generally
Concepts
o Prove all elements
o Plaintiff proves, unless the onus is reversed
 Balance of probabilities
 Submit sufficient evidence to establish
 Damage
 Standard of care and breach
 Cause in fact
 Duty
 Proximate cause
o …In accordance with the legal test for each
Evidence
o Direct evidence of facts
 See it, feel it, hear it, smell it, touch it
 Saw the direct act
o Indirect evidence
 Things from which facts can be inferred
 Circumstantial evidence
 Car in ditch, skid marks, dead dear on road
 If there is no direct evidence, then you have to use indirect evidence to
prove (or infer) negligence
Role of Judge and Jury
o Trier of law - Role of the Judge
 Is there any evidence?
 Is there enough evidence to take this to trial?
 Can the law be applied to the evidence?
 What law should be applied?
o Trier of fact (jury, if there is one)
 What facts are proven?
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Whether the law ought to be applied.
 Eg Was there a standard of care and did the defendant breach that
standard?
Metropolitan Railway v Jackson (1877)
Facts: Train is overcrowded. No employees around to stop overcrowding. Mr J a
passenger, puts hand out of the train car the to keep others out, porter shuts door.
Hand badly injured. Judge sends case to jury. Jury awards damages.
o Issue: Did judge err?
o Decision: Yes. There was no evidence on which negligence of the defendant could
be established.
 Not enough facts to infer or suggest a claim for negligence
o Overcrowding may be negligent, but no evidence of causation. Porter shutting the
door is just doing his job: no evidence of breach of standard of care.
 Jury cannot decide whether there is enough evidence to apply the law
 Jury can decide what facts are shown by the evidence and whether law
ought to be applied.
Mixed Fact and Law
o Most negligence questions are mixed fact and law
 E.g. “what is the standard of care, and was it breached?”
 What is standard? – legal
 Was it breached? - Factual
 E.g. “but for the breach, would harm have resulted?
o Standard of appeal
 High deference for fact finding, and mixed fact and law - Appeal court will
not overturn unless palpable and overriding error
 Court of Appeal never hears evidence, they only get the transcript,
so high deference to the trier of fact in the original trial
 Less deference for error of law only – Appeal Court will overturn if
incorrect.
 Standard is correctness for error of law
Inferring Negligence
o Circumstantial proof and negligence
o Res ipsa loquitur
Proof of breach of standard of care
o Different from
o proof that breach caused the damage
o proof of damage
Inferring Negligence
o Byrne v Boadle
 Plaintiff was struck by barrel that fell out of window
 Prima facie negligence
 The term Prima Facie in law generally means the onus is
automatically reversed
 Reverses the onus
 Defendant then had to disprove negligence had occurred
o Fontaine v ICBC
 Circumstantial evidence of negligence
 Inference may be drawn
 May or may not be sufficient to prove case
o may de facto create a prima facie case
 Court said Res ipsa loquitur has no more use – BASICALLY KILLED THE
CONCEPT
 Some use of circumstantial evidence, but it must tip the scales enough to
make the trier of fact (jury) have to make a decision if it is over 50% or not–
didn’t in this case
o Plaintiff’s evidence
 Enough to infer negligence?
 Case can proceed
o
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 If not, then it is “non-suited”
Enough to prove negligence? – i.e. breached standard of care?
 Up to Jury after hearing all the evidence
 Weak inference may not = proof
 Does not reverse onus (formally)
 Defendant needs to provide evidence to neutralize
Res Ipsa Loquitur
o The thing speaks for itself
 A rule of circumstantial evidence
 Historically confused and confusing
 Most cases can be explained using circumstantial evidence analysis
Multiple defendants/ negligent acts – proof issue
Inferring breach of standard of care – multiple defendants
o Leaman v Rae
 Facts
 Two cars driving opposite directions, hit each other
 Not clear which side of the road they were driving on
 Result
 COA said both were to blame, both were negligent
o Different from Fontaine how?
 What was the evidence of breach of standard of care in Fontaine?
 There was less evidence in Fontaine
 What was the evidence in Leaman?
 Much more clear what happened, more evidence
o Must be sufficient evidence to infer breach of standard of care by one or both
 Wotta v Halliburton
 Court said there was not enough evidence to infer that anyone
breached standard of care
 Haswell v Enman
 Contributory negligence act says if the court finds more than one
person was at fault, then the fault is attributed jointly to all the
tortfeasors and the court can apportionate
 COA says trial judge erred in applying this legislation since he
had to find the tort first then apply it to the liability
Many possible defendants
o Ybarra v Spangard
 Negligent act, no proof of who did it
 All negligent
 Court said there was a big enough pile here to say that a broken
instrument in a patient is a breach of standard of care, so we’ll hold
you all liable
 A good idea?
 Good for compensating victims
 But not fair to defendants as the breach hasn’t been proven
 Difference between Ybarra and Clements
 Clements: but for Mr. Clements negligence, would Mrs. Clements be
injured?
o Issue here was proof of causation
 Proof of breach of standard of care v proof of causation
o Different, although similar
o In Ybarra, causation was proved, but breach of standard of
care (who did it) was not
 Material risk test not applicable to proof of breach of standard
of care
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Reverse Onus Created by Statute and Common Law
Reverse Onus created by statute
o Traffic Safety Act RSA 2000 c T-6
 ss185 and 186
 Onus shift where breach of Traffic Safety Act
 Breach of act = breach of standard of care
 Onus on defendant to disprove negligence
 Onus shift where pedestrian injured
 Onus on defendant (driver of car) to disprove negligence
 If it’s a collision between two motor vehicles, NOT a reverse onus
 Harder to tell who was in breach
Reverse Onus caused by common law
o Direct damage, negligence and the trespass action
o Onus shift in these cases to defedant
Element 4 – Duty of Care
 Pre-Donoghue – Categories of Relationships
o Parties in recognized category of relationship
o Breach of standard of care
o Cause in fact
o Property or Personal damage
o Examples
 Ultrahazardous products
 Service contracts – doctors, lawyers
o Policy – people don’t assume a duty except by acquiescence
 Post-Donoghue
o Parties in a “neighbour” relationship
o Breach of standard of care
o Cause in Fact
o Property or Personal damage
o Policy – people owe a general duty to take care
 Donoghue - My neighbour
o Those to whom there is a “Duty” to take care
o “Persons who are so closely and directly affected by my act that I ought reasonably
have them in contemplation as being affected when I am directing my mind to the
acts or omissions which are called into question”
 Limits of liability problems
o Who is my neighbour?
o For what damage am I liable?
o “Solved” by principles of
 Duty of care
 Proximate cause - Element #5
 Endless possibilities for neighbour status?
o The categories of negligence are never closed. The cardinal principle of liability is
that the [defendant] should owe to the party complaining a duty to take care and
that [plaintiff] should be able to prove that he has suffered damage in consequence
of breach of that duty. Where there is room for diversity of view is in determining
what circumstances will establish such a relationship between the parties as to give
rise on the one side to a duty to take care and on the other side to a right to have care
taken.
 Lord McMillan in Donoghue
 If there’s a general duty of care
o Question: who’s in and who’s out?
 Who’s in?
Neighbour rule applies 90% of cases
 Drivers and users of the road
 Relationship of service – doctors, lawyers, teachers, caregivers
 Neighbours
 Manufacturers and products liability
o ABC rule applies 90% – duty to maintain standard of care, breach, damage
Test for deciding who’s out
o Anns v Merton London Borough (1978) (the ”maisonette” case)
 Prima facie duty of care arises if there is a sufficient relationship of
proximity or neighbourhood such that it is reasonable that carelessness by
defendant will cause damage to the plaintiff
 Rebutted by policy considerations that may limit the scope of duty
 But onus is on defendant to prove policy considerations
o Problem with Anns – what does proximity/neighbourhood mean?
o Cooper v Hobart
 Duty if parties are in one of the already recognized categories
 OR New Duty found if
 Harm to Plaintiff reasonably foreseeable, and a proximate
relationship
 There is no external policy reason to oust a duty of care
 Stage 1  Foreseeability and proximity between parties
 If yes to Stage 1 - Prima facie duty of care
 Stage 2
 External Policy considerations that may oust duty
 Stage 1 policy considerations – as between plaintiff and defendant:
 What is it about the plaintiff and defendant that makes them close
enough to find a neighbor relationship?
 Physical proximity
 Reliance
 Representations
 Just and fair
 Property or person
 Relationship
 Stage 2 policy considerations – society’s interests
 Impact on legal system
 Other remedies available?
o Eg. Workers comp scheme
 Indeterminate classes?
 Improper interference with executive branch
o Policy v operational decisions in government
 Improper interference with judicial (quasi judicial) functions
o Cooper v Hobart - applying law to facts
 Stage 1 – as between the investors and the registrar
 Foreseeable? - perhaps
 Proximate? – no
o Reviewed Statutory powers
o Too far apart on a policy basis
 What was duty/power of Registrar?
o If you are suing a gov’t official, you are suing them as their
capacity as an official, not as a person – therefore go to the
statute to look at their powers
 Stage 2 – considerations outside the relationship?
 Imposing duty would impact
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The making of Policy and Quasi judicial decisions
regarding licences
o Duty owed to public and private interests
o Policy making power
o Unlimited class of plaintiffs
o Cost to taxpayers
o Whether taxpayers are insurers
Had there been a duty of care established in stage 1, registrar could have
rebutted it with policy considerations at stage 2
o
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Other issues
o Strategic consideration
 Who has the onus to prove Stage 2?
o First, look for precedent
 Has a duty been found in similar cases?
o Analysis is by categories of relationship
o Cooper is only there to tell you what to do if it doesn’t fit into an existing category
Childs v Desormeaux
o Facts
 Desormeaux had a BYOB new years party – someone left the party drunk
and drove into Childs, injuring him
o Issue – does a social host owe a duty of care to a person injured by his drunken
guest?
o Analysis
 Looked for precedent – none
 What about tavern owners duty?
o Clear for tavern owners – they do have a duty
o Compare to Commercial Host – do have a duty
 Can monitor consumption
 Have incentive to monitor consumption - make money
 Sale and consumption is regulated by law
 Shapes attitudes
 Special training
 Patrons, public and owners expect and respect regulation
 Bouncers and other means to regulate
 Don’t have ways to enforce rules in social situations
 Contract with patrons, benefits from overconsumption
 Don’t have this contract with patrons
Unforeseeable plaintiffs
Examples of unforeseeable plaintiffs
o Hay (Bourhill) v Young
 Hay was getting off a bus and a cyclist passed by, collided with a car and
died – Hay had nervous shock – court said not a forseeable plaintiff
o Childs v Desmoureaux
 Court said knowing someone is an alcoholic is not enough to make it
foreseeable he’ll leave the party and crash into someone.
Summary – Neighbour Principle
o Duty to those who are so closely and directly affected by my act that I should have
them in mind when acting
o Or, those who are in a relationship sufficiently close that it is reasonable to foresee
that they will be injured by my careless action
o Courts have established many categories where the duty applies.
o Most cases fit, or almost fit in existing categories
Summary – Anns/Cooper Principle
o For new categories of duty
Parties relationship doesn’t fit existing category
Stage 1 – Plaintiff proves neighbour test in two steps
 Is the harm to this plaintiff foreseeable?
 Is there a proximate relationship – policy test applied to party’s
relationship
 Stage 2 – onus on defendant
 Is there a policy reason there should not be a duty? Would
imposing a duty cause significant problem?
 For society, legal system, commerce, respect for division between
judicial and executive branch etc
Duty of Care to Unborn Children
o 1. Damage to fetus by third parties
 Duval v Seguin [1999]
 FACTS = fetus (child en ventre sa mere) was injured when mother
was in car accident
 ISSUE = How did court handle the fact that a fetus is not a human
being in law?
o Can sue for damages that will be suffered at the time of
birth and after the time of birth
o Can sue for damages when the child is born alive and
injured
 ISSUE = Is there a duty to the fetus?
o No duty to the fetus, but duty to the child once they are
born
o So if you injure the fetus that causes the child to be born
alive but injured = then duty of care arises then and child
can sue for damages
o Tort to child is perfected at time damage is experienced –
that is when the child is born
 Stage one = reasonable foreseeability of harm
o Procreation, pregnancy is entirely foreseeable so it is
reasonable that you will encounter a pregnant woman on
the road and possible that you could hit them and injure
them
o When child is born with injury resulting from prenatal
accident – cause of action is perfected
 Stage two = policy considerations for imposing duty of care on
mother to fetus
o Causes of damage may be indeterminate – negligence,
ignorance, intention, illness
o How do you remedy injuries that manifested when child
born? – prevention measures means imposing treatments
and certain behavior on mother.
o Policy of tort law achieved? Deterrence? Compensation?
o Legal status – fetus is not a person! Should they have
ability to sue?
o Family relations – very difficult on family when child sues
parents for damages
o Problems – sue mother for their failure to take certain
measures
o Indeterminate liability = how far will this duty go? – can
child sue mother for a congenital illness? For smoking
while pregnant? For being economically poor and not
being able to provide for child?
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o Insurance problems – will insurance of mother cover?
Dobson v Dobson
o FACTS = friendly lawsuit between child and mother; testing the insurance to see if
damages would be covered by insurance
o Court ruled = no duty of care owed to fetus
o No liability for mothers at common law
Material Tort Liability Act
o Pregnant Mother driving a vehicle and gets into accident – mother has insurance,
injuries sustained by the child upon birth, child can claim for damages upon birth
 Mother must be insured, injury to fetus from car accident, child born alive
but sustained injuries upon birth = child has claim upon birth
o Legislation makes one exception to the common law rule of no duty of care owed by
mothers to their fetus’
Failure to Act: Duty to Act
Is there a Positive duty to act?
o Duty of care – take care when acting
o General rule (nonfeasance)
 No duty to take positive steps act – to rescue, to prevent imminent injury
 Policy: Respect for personal freedom, personal autonomy – law cannot
force someone to act or impose a duty to act
o Exceptions (misfeasance) – when there is a duty to act
 When there is a service relationship
 Supervision relationship
 A person creates a danger
 Reliance relationship
Concepts
o Nonfeasance – non tortious inaction (no duty to act, so not acting in the situation
does not give rise to tortious liability)
 Good Samaritan – no moral duty to act
 Priest and Levite and Samaritan – no duty
o Misfeasance – tortious inaction (there is a duty to act in the situation, so not acting
gives rise to tortious liability)
 Policy reason for imposing a duty to act in certain situations – because it is
just and fair to
 Defendant created the danger
 Defendant created some reliance or expectation that s/he would
rescue
 Defendant/plaintiff in a relationship where rescue is expected
Policy reasons for supporting no duty to rescue
o Where rescue can be done safely and without inconvenience
o If rescuing would put the rescuer in danger themselves
o Supports rugged individualism
o Independence and autonomy – cannot force people to do something
o It is for legislature to decide when to impose positive duty, not courts
o Can’t enforce kindness, heroism, altruism
o Ridicule is a better deterrent
o Can’t enforce conferral of benefits
o Amateur, or too many rescuers, muck things up – negligent rescue could give rise to
even greater damage
o In a crowd of people witnessing the situation, none of which rescue – who do you
sue?
o What is the extent of required action/who is the rescuer? – what if there are
physical differences between rescuers (ex. 100lb girl vs. 200 lb man – different
ability to enact a rescue)
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Should duty to rescue be imposed by statute?
o No way to impose common law duty to rescue
 Common law cannot recognize because too many policy problems, too
much uncertainty and lack of limits/scope of duty
 Only way to impose a duty would be by statute – specific, carved out
situations where duty is owed at statute
o Quebec has enacted specific and narrow statutory duties to act
 Theoretical statutory duty to act
 Statute Requires minimal action, no personal endangerment to the rescuer
 Limit liability of the rescuer = no liability for poor job rescuing, no liability if
reasonable in circumstances not to rescue
Misfeasance – duty to act in relationship of economic benefit
Tavern owner duty where drunk patron injured after tavern owner ejected him = duty to act
arises
Host duty where drunk guest injured a third party on the way home from the party = no duty
to act arises
Because the bar owner benefits from the patron’s drunkenness and has the resources and
capacity to monitor his behavior = duty to take action to prevent the drunk patron from
driving upon leaving the bar
Host of a social party does not gain economic benefit from their guest’s drunkenness and do
not necessarily have resources/capacity to monitor guest’s behavior and to prevent them
from driving drunk afterwards = no duty on the host to take action to prevent their drunk
hosts form driving home after the party
Reluctance to impose a positive duty on social hosts who gain no benefit from drunken hosts
= should not impose a liability of those who throw and host social parties because that
would lead to huge liability and discourage social interactions
Jordan v Menow and Honsberger [1973]
o Imposed positive duty to act on the tavern managers/worker
o What was the inaction? – failure to stop him
o What was the finding of duty based on?
 Foreseeable that he would be harmed and
 Proximate relationship – indicia of proximity of relationship
 knowledge of Menow that he was drunk
 Menow’s instruction not to serve him
 Defendant breached statute in serving him anyways
 Awareness of intoxication by the parties
 Reasonable and safe alternatives to ejection
o Justice Laskin = tavern owner’s inaction - tortious inaction (misfeasance), did not
act to protect
o Justice Richie = tavern owner’s tortious act was feeding the inebriated person more
drinks when they shouldn’t have – was a matter of action not inaction that
constituted tortious conduct on the part of the tavern owner
Childs v Desmoreaux
o No positive duty of care on the social host
o No economic benefit/lack of economic relationship between the host and his social
guests
o Social hosts should not have to be liable for their guests actions after they leave
their parties – would discourage benign social relations and gatherings
Misfeasance - duty to act in relationship of control or supervision
Defendant acquiesced to the possible need for action, protection
Policy – dependency, reliance
Category includes
o Teachers /students
o Employer/Employee
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o Hospital/ Patient
o Carrier/Passenger
o Guard/Prisoner
o Category is not closed
Misfeasance - duty to act where you create a danger
Oke v Weide Transport [obiter and dissent]
o Man runs into pole on road and it interferes with roadway – he goes into local shop
(weide transport) and alerts them of the hazard and then shop fails to do anything
about it or remove the debris from the road. Debris then causes another driver to hit
and impale himself.
o Duty to act when danger was created
Misfeasance – where there is an undertaking by defendant and reliance by plaintiff
X creates an expectation/promise to Y that he will do something and then fails to carry it out
Y relies on that expectation and is injured by the failure to keep it
Promise/expectation created may create both a duty and standard of care
Failure is a breach of both duty and required standard of care
Example = start a rescue but bungle it
o Zelenko v Gimbel = Y gets sick in X’s store; X puts her in sick room for six hours, Y
dies in the room
o American position = liable if you undertake a rescue and do it negligently (you
assume a duty of care and standard is that of a reasonable rescuer in the
circumstances)
o Canadian position = unclear whether duty imposed once rescue has started
 No indication if you have to rescue to a standard of care once you undertake
a rescue initiative
 Policy doesn’t support imposing duty on rescuers = less
incentive/discourages people to rescue because they could be held liable
when they were just trying to help!
Policy Problems
o Impact of imposing duty of care for reliance
 Gov’t or industry – gratuitously starts a practice that customer relies upon,
would that gratuitous practice because a duty to act because of reliance and
expectation of users on that practice?
 Policy issues - cost to gov’t or industry to continue to provide practices
when they may no longer have funds in budget for it
o Reasonable expectation doctrine - if gov’t starts doing something, creates a
reasonable expectation in citizenry that it will continue doing so. If gov’t stops doing
that practice, may be barred from stopping because citizens have expected it and
relied on it
Statutory Protections on Good Samaritans
Emergency Medical Aid Act
o Those who undertake rescue – protected from liability stemming from the rescue
o Medical professionals who render aid outside of hospital or medical facility are
protected from liability for their aid
o Layperson who renders aid at scene of emergency is immune from tort liability
Element 5 - Proximate Cause AKA “remoteness” or “Cause in law”
 Proximate cause - limits liability by limiting the compensable damage
 Four approaches to proximate cause
o 1. Directness test: Liability for damage arising “directly” from negligent act
(Polemis),
o 2. Foreseeability test (specific): Liability if the specific damage is reasonably
foreseeable (The Wagon Mound #1),
3. Foreseeability test (general): Liability if the general type of damage is reasonably
foreseeable (Hughes v Lord Advocate)
o 4. “Possibility test”: Liability for damage that is reasonably foreseeable or for a highrisk event that is possible (though not probable) (The Wagon Mound #2) This test
is seldom, if ever, used
Issues with tests
o All these tests are difficult and unpredictable
o Little consistency in cases
o Approaches are easily confused with cause in fact, or standard of care
o Are “secretly” value based
o One standard is not more fair than another
The Foreseeability Test
o The Wagon Mound # 1
 Facts: Wagon Mound spilled oil in the water, someone welding on deck
asked if they could keep going, told yes, and then it caught fire
 Court found that something molten fell through the cracks of the wharf and
hit some oil soaked logs, which caught on fire and then ignited the oil on the
water and the ship of the plaintiff
 Should Wagon Mound be responsible for all that damage?
 Polemis test – yes
 Wagon Mound 1 – Courts below could not find for defendant due to Polemis
 HL overturned Polemis : It is a principle of civil liability, …that a [person]
must be considered to be responsible for the probable consequences of his act.
 To demand more is too much, less is not enough
 Held: for defendant
 Foreseeable consequences – what would a reasonable person in the
defendants position expect to see?
 Liable for damage that is reasonably foreseeable…
o Hughes v Lord Advocate
 Post office employees working in a man hole, had marked off the hole and
set up a shelter then went for a tea break – 8 year old went into the man
hole, knocked one of the lamps into the hole, causing an explosion and then
he fell into it causing severe burns
 Findings: Duty owed by workmen, breach of standard of care
 Damage resulted in fact, “but because a known source of danger acted in an
unpredictable way”
 Issue: Was damage foreseeable?
 Held: Can’t escape liability because exact concatenation is not foreseeable
 Some kind of damage was foreseeable – don’t have to foresee exactly
what happened, just a general danger
 Duty and breach of standard of care are already established – now
establishing proximate cause
o What policy might the court have had in mind in softening the Wagon Mound test?
 Ages of plaintiffs
 Deterrence
 Insurance
 Practicality
 Other
o R ( The Queen in Right of Ontario, as represented by the Minister of Justice) v Cote et al
(1974) SCC
 Facts: Winter, stormy day. Accident occurred on hwy 2 hours previous.
Police aware of danger. Cote trying to pass four cars. Had to pull in after
three. Hits an icy patch. Hits K’s car just slightly. K’s car crosses highway,
colliding with another car and killing 2, injuring 4. Known to be a trouble
spot in winter. Highways dept office a short distance away
o
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Liability?
 Cote? Police? Ministry of Highways?
 Minister of Highways – 25% at fault
 Foreseeable that road would be bad in these circumstances.
 Did not have to foresee exactly what happened, but that damage
was foreseeable
 Cote 75% at fault
 He pulled out on dry pavement, before ice
 Police
 No cause in fact: failure to warn did not a cause in fact
What policy works against the directness test?
o Consequences suffered by defendant out of proportion to his/her fault
 Small amount of fault – large amount of damage
o Ethical?
 Is it fair?
o Over-deterrent?
 Especially on industry – what’s the scope of the “direct chain”?
Unpredictable – therefore might keep people from expanding industry
o How do you insure for that?
 Indeterminate amount of losses
Examples where Damage was/not proximate
o Damage not foreseeable
 Doughty v Turner
 Breach of duty to prevent harm from vat
 Burning from splash foreseeable, but not from explosion
 Oke v Weide Transport
 Breach of duty to users of road
 Means of damage not foreseeable
o Damage foreseeable
 Lauritzen
 Guy was drunk, got his friend to drive him – then when his friend
said no to getting more beer, he grabbed the wheel and turned
them into a ditch
 Had to walk in the cold to a farmers house – friend had to get feet
amputated
 Breach of duty to not expose buddy to danger
 Frostbite foreseeable
 Weiner v Zoratti
 Defendant drove into fire hydrant, flooded plaintiff’s basement
 Breach of duty to users of road
 Extent of flood damage from breaking hydrant
Issues
o Depends on how duty is framed
o Doughty
 Standard of care: reasonable person would know acid would splash, and
therefore ensure vat is covered as otherwise some could be burned
 What damage could be foreseen?
 Splashing
o Hughes
 Standard of care: reasonable person would ensure young boys could not
play with paraffin lamps
 What damage could be foreseen?
 Depends on how you frame standard of care
o Concepts of foreseeability often confused
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Standard of care: the appropriate behaviour for a reasonable person
in the circumstances
 Duty: to those who I reasonably foresee will be harmed by my breach
of duty
 Cause in Law, Proximate Cause: the damage which can be reasonably
foreseen if duty is breached
Wagon Mound #2 – possibility test
o In #1, plaintiff was company that owned the wharf
o In #2, plaintiff was company that owned ship under repair that got burned
o Breach of duty of care to not spill oil in the harbor
 Established in both cases
o Liable to the ships that burned.
o Held: If there is a real, though small, risk that an event may occur, the
reasonable person would take steps to prevent it., therefore liability for the
damage
 Different from #1 where there was no liability
o The event must merely be possible.
o Not generally used or followed
Proposed Common Sense Test
o Justice Andrews (dissent in Pfalsgraf)
 Look at reality of the situation – exact cause and effect – is it a big risk, small
probability, or small risk, big probability?
o Consider
 A cause and effect sequence?
 Was conduct a substantial factor in result?
 A direct connection?
 Proximity in time and space?
 Is there
 Large risk of small danger?
 Small risk of large danger? (Wagon Mound)
 Cost sharing
o So, Linden et al propose
 Approach should be “unblinkered”
 Innocent victim v negligent actor –
 Risk and foresight

Plus
o Personal v property damage?
o Private citizen v industry
o Availability of insurance
 Macro and micro
o Deterrence
o Education
o Market forces
o Utility of activity
 Proportionate balance of degree of fault v magnitude of damage
o However  Is the Court equipped to manage these issues?
 Are they in a position to fairly assess whether or not the market
can bear the cost of deterrence (insurance)?
 Probably not
 Should evidence be required?
 Who should provide the evidence?
Recurring issues of proximate cause and their solutions
o Thin skull




Psychiatric Damage
Rescue
Intervening forces
 Second Accident
 Intervening medical negligence
 Intermediate Inspection
 Warnings and the Learned Intermediary
Thin Skull
o Take your victim as you find her
o That victim is fragile and suffers more harm – Foreseeability doesn’t matter
o Smith v Leech Brain
 Principle… Wagon Mound did not kill the thin skull rule
o Crumbling skull – if you kill someone who was going to die anyway, you are only
liable for the shortage (eg going to die in 6 months, kill them in 3 – only liable for the
3)
o Similarly – aggravation of previous psychological condition
o Plaintiff susceptible to psychiatric illness – can be thin skull situation
Psychiatric Damage – “nervous shock”
o Policy: faking? Bootstrapping? – people get better if they are told they are not sick
– placebo effect; Legitimate illness – hard to get good evidence
o Duty/neighbourhood is established by foreseeability of shock*
o Recognizable illness
 Prolonged
 Not Grief and sorrow
o *Plaintiff endangered
o *mostly restricted to “Loved ones”, but can include others
o Being informed probably not enough
Side bar – proof of mental illness
o Expert evidence generally required
Mustapha v Culligan (2008) SCC
o Facts: while replacing the Culligan water bottle to be used by his family, plaintiff
sees dead fly the water
o Triggers extreme psychiatric condition
o 1.Duty
 “Foreseeability, moderated by policy concerns”
 Determined by preexisting category or Anns/Cooper
 If there is a pre-existing category, then simple and move on – if
none, then apply Anns/Cooper test
o 2.Breach of Standard of Care?
 Did conduct create an unreasonable risk of harm?
 Standard – provide uncontaminated water to customer
 Breach – bugs in water
o 3. Damage?
 Physical injury that is serious trauma
 Prolonged, debilitating, significant impact
 Rise above ordinary fears – has to be serious
 In this case, Mustapha’s psychiatric damage was clearly above the test
o 4. Cause in Fact?
 “But for” test –
 But for seeing the flies, would he have suffered the damage? No – so passes
the test
o 5. Cause in Law –
 - “A risk which would occur to the mind of a reasonable person in the
position of the defendant”
o
o
o




Foreseeable “a risk which would occur to the mind of a reasonable person
in the position of the defendant”
 Wagon Mound #2 test
 Never mind “possible” v “probable”
 For psychiatric harm, defendant expected to look out for person “of
ordinary fortitude”
 Extreme reactions are generally not foreseeable – usually beyond what a
reasonable person would believe
 BUT if you know they are sensitive, then you will be liable as you
had that knowledge
 Test: Is it foreseeable that a person of ordinary fortitude would react this
way?
 What about thin skull rule?
 The foreseeability in this case is whether the event occurs at all –
thin skull rule applies when we can foresee the event but not the
consequences
Rescue – an issue of duty
o Issue: D negligently puts self or someone else in danger. Foreseeable that someone
will be injured in attempt to make a rescue?
o Rescuer is generally foreseeable -> duty of D to rescuer
o There is no duty to rescue
o There is, with some exceptions, a duty to the rescuer
Rescuer
o Variation 1
 A negligently puts B in danger. C, injured coming to the aid of B.
 Rule:
 “Danger invites danger”: A rescuer is generally foreseeable,
therefore there is a duty.
o Foreseeability in duty, not proximate cause
 Injury to rescuer that is foreseeable is therefore compensable.
o Rescuer (duty) and damage to rescuer (cause in law) are
generally foreseeable from perspective of wrongdoer
o Variation 2
 A, as a result of excusable error in judgment, causes B to be in peril. C is
injured in the rescue
 A did not breach standard of care, therefore no negligence.
o Variation 3
 A creates a situation where B seems to be in peril. C comes to rescue
 A not negligent vis a vis B
 C can argue that A has been negligent vis a vis C
 Not impossible to establish duty, standard of care, breach…
 Have to establish negligent act by A vis a vis C
 Must be reasonable for C to assume peril
o Variation 4
 B carelessly puts self in danger, C comes to rescue
 If all elements of negligence between B and C can be established, then B
liable to C
 Rescuers are a recognized category
 i.e. Rescuer is generally foreseeable - duty to rescuer
o Variation 5
 A negligently puts B in danger, B negligent in trying to extricate self
 E.g. failure to put on a lifejacket when jumping from sinking ship
 Appropriate portion of fault attributed to B
Rescuer Issues




Rescuer is foolhardy, wanton, reckless
 E.g. Motor boat negligently tips canoe, C dives off High Level Bridge to assist
canoeist
 No liability applying proximate cause analysis
o Futility
 E.g. victim already dead
 Reasonableness of rescuer’s perception of danger is key
 If they think victim is still alive, then reasonableness is determined from
POV of rescuer – if it was reasonable, then not beyond limits of proximate
cause
 If they think victim is dead, then completely different – not a rescue
anymore, recovering a body
o Rescuer voluntarily assumes risk
 Defendant must prove
 Must prove state of mind at time of decision – not in hindsight
 Tough, but possible, to prove
Intervening Forces
o “Intervening” refers to events that happen between a tort claim arising and
judgment (i.e. resolution) of that claim. (Tort #1)
o I.e. Plaintiff comes to trial on Tort #1 with a further injury from other tortious or
non-tortious cause
o Once judgment is entered on Tort #1– is it res judicata
 Case is done, finished
o Second or Successive Accidents - a cause in fact and proximate cause issue
 Resolved using application of tort principles
 Athey v Leonati
 Key question is whether Plaintiff’s injuries are treated as a single injury or
separate injuries (“divisible”) – if they are indivisible, then treat it as one
injury
 A question of fact – what does the evidence show about what caused the
injury? Then law - was it proximate?
o Divisible injuries
 If divisible and different injuries – and both tortious
 Each defendant liable for tortious injury s/he caused in fact and
law
 Thin skull and crumbling skull may apply
 Divisible and second injury tortious and same injury  E.g. D#1 breaks P’s leg, D#2 then cuts it off
o Thin skull creates unfairness
o Treat as if judgment on T#1 occurred before T#2
 Divisible injuries and second one non tortious
 Defendant liable for only injuries s/he caused in fact and law
 If non-tortious act caused same injury then D only liable up to
second event
o Not divisible - no proof of separate causation – treat as one injury – joint and
several liability
 Defendant should only be liable for foreseeable damage he caused
 If subsequent damage falls within the risk created by D#1, then
D#1 and D#2 jointly and severally liable
 If subsequent damage is divisible, D#1 pays for first D#2 for second
 If second tortiously caused injury is greater due to latent vulnerability of P,
thin skull applies (except psych damage - only liable for psych damage to
person of reasonable fortitude) therefore
o


For indivisible injury – taken in account in assessing compensation
(damages)
 For divisible injury D#2 may pay extra
 If second tortiously caused injury is an exacerbation of a pre-existing injury
or degenerative condition, crumbling skull may apply therefore
 For indivisible injury – taken into account in assessing
compensation (i.e. damages)
 For divisible injury D#2 may pay less
 All of the above balanced by principle of restitio ad integrum
 Don’t forget the Contributory Negligence Act allows apportionment after
liability is determined!
 Intervening medical negligence
o Same principles apply
o Plaintiff injured tortiously by T#1. Doctor’s negligent treatment of injury
exacerbates injury.
o Plaintiff may claim from T#1 for 100%
o Exception: “malpractice is completely outside “range of normal experience” (i.e. not
foreseeable )
o In practice T#1 would third party Doctor
 T#1 must prove Doctor’s negligence
o Implies that Doctor’s negligent treatment foreseeable/proximate
 Intermediate inspection
o Negligently manufactured or faulty product. Inspected by intermediary, but defect
not detected.
o Fact of Inspection does not absolve the manufacturer of liability
o It is taken into account in determining liability
o There may be something in legislation that limits liability and obligation
 Warnings and the Learned Intermediary
o Warnings
 Manufacturers have a duty to warn of dangerous aspects of products
 At common law and legislation
 Continuing duty
o i.e. Includes dangers discovered after distribution and sale
 Does not include obvious dangers
o “You may fall down when skating”
o Learned Intermediary
 Duty to warn may include duty to provide expert “learned intermediary”
with information
 E.G. Doctor, pharmacist
 Applies where ordinary consumer needs assistance in
understanding, applying the warning
 May be duty to inform both the LI and the consumer, or either
Defences
Defences to Negligence – Onus on Defendant
 Contributory Negligence (complete or partial)
 Seat Belt (complete or partial)
 Voluntary assumption of Risk (complete)
 Ex turpi causa (complete)
 Limitations (complete)
Contributory Negligence
 Plaintiff is entirely or partially at fault
 Historical Development (Stalemate Rule)
o Butterfield (1809): Plaintiff was riding horse to fast and ran into an obstruction on
the road created by the defendant
Both parties were at fault and at the time, Court decided plaintiff should get
no compensation (responsible for taking care of self)
 At the time, had “single cause theory” – one party was to blame (Stalemate
Rule)
 In this case, said the plaintiff was to blame, therefore no
compensation
o Deterring effect is that plaintiffs will have to look after themselves
 Counter is that defendants will be deterred less because won’t have to pay
any compensation if other party contributed to fault
o Davies v Mann (1842): Plaintiff leaves donkey on road, speeding defendant kills it,
plaintiff compensated
 Court determined that the defendant had a clear chance to avoid it
 “Last clear chance” rule applied; determined that the defendant was the
cause of the loss
Elements (Same as negligence)
o Plaintiff has a duty to self and neighbours
 Must act as a reasonable person and avoid foreseeable harm
 Duty is to self, not the defendant (otherwise, would be acting negligently
towards them and causing them damage)
 Plaintiff carrying out a statutory duty may override the duty to self (ie
police injured in pursuit)
o Breach of that standard of care is a negligent act
 Question of fact if a breach occurred, and the DEFENDANT has to show it
 What would a reasonable person in the circumstances of the plaintiff do?
 Exceptions for children, youth, mental incapacity, unless
performing an “adult act”
 Context will always be examined (knowledge, awareness of risk,
emergency, etc)
o Causation
 Plaintiff’s negligence must be a cause in fact
 Plaintiff’s negligence must be a proximate cause
Stalemate Rule (still exists in US, but dead in Canada)
o Good Policy
 Makes plaintiffs behave
 Encourages enterprise by defendants (less liable)
 People who are at fault should not be protected by the law
 Single causation theory is clear (don’t have to deal with proximate cause or
apportionment)
o Bad Policy
 Cruel to plaintiffs
 Does not deter defendants
 Disproportionate distribution of fault; ignores reality of multiple cause and
fault
Apportionment of Fault and Policy Issues
o Different view of what it should be based on
 Relative fault/blameworthiness (way the Court uses)
 Not based on the physical contribution to the injury
 If multiple defendants, look at relative fault of defendants AS A
WHOLE
o Easier than trying to separate into separate torts and then
figuring out apportionment for each one
 Actual physical causation
 Both
o Considerations during apportionment




 Nature of duty
 Timing of acts
 Number and nature of blameworthy acts
 Is there a statutory breach?
 Emergency?
 Extreme carelessness or a mere lapse?
o Each defendant is jointly and severally liable to plaintiff for ENTIRE share of liability
(except BC, several only)
 Plaintiff can recover total amount from one party and then make the
defendants sort it out amongst themselves
 Defendants are liable to each other in accordance with their proportion of
fault
o If both parties owe each other, not a set off
 A owes B 2000, B owes A 1000 (both cross centre line of highway)
 Under set off: A pays B 1000
 No set off: B pays 1000, A pays 2000 (done for insurance
payoffs)
o NO apportionment between negligent and non-negligent causes
 “But for” test says you are responsible for totality of damage unless another
negligent act
Contributory Negligence Acts (1937)
 Allows for apportionment of liability between the tortfeasors and the plaintiff
o Removes the Stalemate Rule
o If impossible to establish different DEGREES of fault, but are at fault, apportioned
equally
 Only liable to indemnify to the degree that you caused harm
o Liable to pay for all the damage, but can collect from the co-defendant if they do not
pay
 If 40/30/30 I could pay the 70 (as defendant) and then collect the 30 from
the other
 Amended in 1951 to disallow claims against your spouse (repealed in 2000)
 Quantum of damage, fault, and degree of fault are QUESTIONS OF FACT for the JURY
 *Does not apply to shipping, admiralty, and maritime law (Federal Jurisdiction)*
o But the rules are applied by common law
Seat Belt Defence
 Historically, when the law was being put in place, citizens resisted seat belt legislation
 Failure to wear a seat belt is GENERALLY evidence of contributory negligence (but not prima
facie)
 Must prove that wearing a seat belt in the circumstances met elements of negligence
o Courts may be less demanding on proof; duty is assumed
Volenti Non Fit Injuria (Voluntary assumption of risk)
 Very narrow defence
 Historically, was a complete defence
o Defendant not liable if plaintiff proven to clearly know and appreciate the risk AND
voluntarily incurred it
o Need proof by express words or implied action (like the defence of consent)
 Now, defendant must prove plaintiff agreed to exempt the defendant from liability
o Show they know all the risks, know there was a duty, and AGREED not to sue if they
breach the duty
 Express or implied
 Hambley v Shepley
o Too much immunity for blameworthy defendants
 “Willing passenger” issue
o Claims that entering a car was an acceptance of the risks; gone now






Agreements have to be clear and describe the risk involved
o Can be written or oral; express or implied
o Ambiguity is interpreted against the defendant
Still applies in sports cases; assumption of risk of negligence often through an express
waiver
o Limited to what is being agreed to (have to fit the boundaries of the sport)
Voluntary Assumption of risk in sports
o People commonly asked to sign waivers – only evidence of acceptance of risk, not
proof of acceptance of risks
o Always interpreted in favour of injured party (plaintiff) – carefully scrutinized
o Have to refer to the actual injury/risk that occurred
Sports Cases
o Volenti i.e. assumption of risk of negligence still available as defence
 Often an express waiver
 Limits of the defence
 What is being agreed to?
 E.g Did Plaintiff agree to intentional slash?
Alternate modes of analysis of volenti
o Plaintiff consents to the breach of standard of care
 Defendant negligent, but I agree not to claim
o Plaintiff not owed a duty of care, because he accepted a lower standard by
 Defendant not negligent, because I agreed his duty to me is lower than
normal
 E.g. Puck in the stands
o In both these analysis, volenti is a complete defence – either agreeing not to sue, or
accepting a lower standard of care, therefore no negligence
o Contributory negligence as alternate analysis to volenti
 Did plaintiff breach duty of care to self?
 By participating?
 By not sitting elsewhere?
 Advantage
 Not a complete bar: apportionment allowed
 Defendant prefers contributory negligence to volenti – less compensation
provided
Illegality Defence
o Plaintiff acting illegally
o Ex turpi causa non oritur actio
 from a dishonorable cause an action does not arise
o An overarching principle of law
 operates when the action would be disreputable, a distortion of the fabric of
the law
o Plaintiff acting illegally is not an automatic bar to compensation
o Plaintiff acting illegally… ways to limit
 Is Plaintiff contributorily negligent?
 Is defendant negligent? Is there a policy reason to limit defendant’s duty?
 Eg Lord Advocate, Coopers, Anns
 Ex turpi - Does Plaintiff’s action offend common decency, or the fabric of the
law?
o Examples of ex turpi
 No claim for lost wages caused by negligence if you are in jail, even if crime
was caused by defendants negligence
 BC v Zastowny
o He was abused by authorities when he was arrested the
first time and then he claimed that this abuse caused him



to commit further crimes. Court agreed this was the cause.
Then he tried to claim lost wages because he was in jail
(court said no)
 HL v Canada
o HL tried to sue b/c his life was so messed up from sexual
abuse as a child – tried to sue for damages for
incarceration – no causation proved – couldn’t prove abuse
by government employee caused incarceration
 What exception might apply?
o Wrongful conviction
Can’t inherit if you murder your parents
Can’t make illegal act a condition of inheritance
Can’t impose celibacy as a condition in a spousal support
Dispute Resolution
 Terminology
o ADR
 Appropriate Dispute Resolution
 Alternative Dispute Resolution
 Forms and Features of DR Processes
o Avoidance
 “voluntary” avoidance
 Personal choice to “move on”
 Other sources of compensation
 “involuntary” – can’t pursue claim because
 Unsophisticated
o Uneducated
 No funds
 No information
 No access to counsel or courts
 Power imbalance
 Cultural issues
 No time
 No support
 Defendant is gone, unknown or broke – no blood in the stone
o Negotiation
 Parties, in person, or with representatives discuss with a view to settlement
of dispute
 Types
 Interests based aka mutual gains bargaining
 Rights based
 Zero sum
o About how to divide the money
o Mediation
 Facilitated negotiation
 “Neutral” facilitates discussion between parties
 Evaluative or non evaluative
 Mediator gives opinion of what they believe the best solution
would be (evaluative)
 Binding or non binding
 Parties pay
 Outcome is private
 Types
 “Rights” based
o Parties’ legal rights form the basis of the discussion
o Who’s legal rights trumps who’s?
“Interests” based
o Parties’ wants, needs, concerns, rights form basis of
discussion
o Arbitration and Private Adjudication
 A private “adjudicator” hears each side
 Makes a ruling
 Ruling may be binding or not
 Parties bear cost
 Informal – “Rent a judge”
 Parties may agree to binding or non binding
o If binding, usually contractual only
 Outcome usually private
 Formal
 Default rules setting out power and jurisdiction in legislation
o Arbitration Act (domestic matters)
 Alberta act
o International Commercial Arbitration Act and a number of
international treaties,
 Enforces international arbitration treaties
o Collective bargaining legislation
 Parties agree to operate under these rules or vary them
 Arbitrator's ruling can have same force as judgment of Court
 Usually binding
 Outcome may be public
 Used for many civil matters - labor, family, commercial, wills…
 Parties pay for everything
o Litigation – Public Adjudication
 Neutral judge
 Cost of judge covered
 Outcome Public, usually
 Trial, hearing
 Full public hearing
 Rights based
 Before judge
 Binding and enforceable
o Outcome can be enforced by law
Considerations in Choosing DR Process
o All good dispute resolution…
 Parties aware of what they are involved in
 Parties agree to participate
 Parties are competent
 Respectful
 DR Process includes
 Notice and information to all disputants
 Opportunity to be heard
 Opportunity to hear the other side
 Neutral facilitator or adjudicator, as the case may be
o Parties can design their DR Process
 Considerations
 Is choice of DR process made pre or post conflict?
o If we are contracting to do something – should the contract
have a DR clause?
o A will, family court or other court order




Will the result of the process be legally binding?
o If so, can it be filed in court or merely enforceable by
contract?
 What kind of dispute is it?
o Finding of fact? Interpretation of contract Determination
of Charter validity?
 Timing, privacy, cost
o Full hearing, only written
 On line or in person?
 Do we need experts to hear the matter?
 Legal issues – fact or law?
 What do the parties need?
 Finding of fact so they can determine liability?
 Money?
 Ruling on a point of law?
 Repair relationship?
 Vindication?
 Forgiveness?
 For it to be over with?
How Courts Resolve Disputes
o Aim of Court Proceedings
 Rule 1.2(1) … provide a means by which claims can be fairly and justly
resolved in or by a court process in a timely and cost effective way.
 (2) In particular, these rules are intended to be used

(a) to identify the real issues in dispute,

(b) to facilitate the quickest means of resolving a claim at the least
expense,

(c) to encourage the parties to resolve the claim themselves, by
agreement, with or without assistance, as early in the process as
practicable,

(d) to oblige the parties to communicate honestly, openly and in a
timely way, and

(e) to provide an effective, efficient and credible system of
remedies and sanctions to enforce these rules and orders and
judgments.
o DR Processes available at Court
 Summary trial, summary judgment
 Ruling on specific issues, without trial
 Judicial Dispute Resolution
 Before trial
o May be mini trial, mediation, arbitration depending on
judge
o May be rights or interests based
o Outcome is private
 Mediation
 For Family matters
 For civil claims under $25,000
 Judges may refer to private mediation
 Case management
 Judge may supervise parties’ adherence to deadlines
 May recommend use of DR
 Notice of offer to settle
 Costs impact if party fails to accept reasonable offer
 Full Formal Trial – QB
 Full testing of evidence and arguments of law
 Rights based
 Public
 Less formal trial – Provincial Court
 Claims under $25,000
 Appeal
 Retesting of legal issues
 Rights vs Interests Based Resolution
o DR Paradigms
 Rights Based
 legal rights and remedies of each party
 zero sum
 balancing or trumping
 competitive, compromise
 Interests Based
 holistic
 wants, needs concerns, rights of all parties
 compromise, collaborate
Crown Liability:
History of crown liability:
o “King can do no wrong”
o No criminal or civil liability. Had to petition Crown to get permission to sue Crown (i.e. sue for
unpaid wages)
o Worked well when the Crown was only the monarch
What is the Crown?
o Federal Government: Government Departments, Agencies, Boards corporations (RTGDA),
Territorial governments
o Provincial Government: Government Departments, RTGDA, Municipal governments
What is the modern Crown?
Federal and Provincial
o Crown in right of Canada or Alberta
o Cabinet
o (MLAs and Parliamentary officers have special rules)
Government Departments
Any ABC that is an agent of the Crown
o Unique area of law governing who is an agent
o Depends on enabling legislation!
Proceedings against Crown Act:
http://www.canlii.org/en/ab/laws/stat/rsa-2000-c-p-25/latest/rsa-2000-c-p-25.html
1959 – Alberta
Commonwealth countries all same or similar
o Quebec similar via different path
U.S. Law in this area very different
Section 5(1) Except as otherwise provided… Crown is subject to tort liability
o for torts committed by its servants or agents
o for breach of employer’s duty ( negligence) to employees or agents of the Crown
o for negligence relating to ownership, occupation, possession of land or goods
o imposed by legislation
CPA does not apply to non-Crown entities!
For this discussion, this is not an issue. It’s a huge issue for some other purposes (suing the
Crown, etc.).
Who is government/public authority?
o The crown
o ABCs
If on reviewing their legislation, it is determined they are a government entity
They may be neither a Crown agent or government authority
Municipal government
Government tort liability…easy bits:
Generally, tort liability is same for all public authorities. Liability can be limited by statute.
When dealing with statutory bodies, always read the legislation!
No tort liability for judicial acts of superior court! Nil liability for quasi-judicial acts
of most tribunals (Some very small and weird exceptions).
No tort liability for legislative acts in good faith (At least not for legislation aimed at the
public interest).
For assault, battery, trespasses, defamation, nuisance –
o Generally, if act would be considered tortious if between private individuals, then it is tortious
if committed by an employee of a public authority
o E.g. Costello v City of Calgary, Goddard v Day
For negligence, if act of employee is negligent in the private law analysis, then negligent.
Examples:
o Snowplow driver falls asleep, runs over child
o Police drive to, but do not enter 911 caller’s home
o Meat inspector mistakenly diagnoses Mad Cow disease
The employee is the defendant.
Vicarious liability rules apply to ALL torts]
o SUBJECT to the limits of specific statutes
o Most tort actions involving government include a vicarious liability aspect
Negligent acts of employees
Government liability for negligence (not so easy bit):
What if the cause is not entirely the direct act of the employee?
o The driver fell asleep because municipality allowed him to double shift
o The police were told by superintendent to go to another emergency
o The government policy is to hire high school graduates to inspect meat
The problem of Duty of Care:
Prima facie duty of care owed by public authority if:
o Foreseeable that plaintiff will be affected by decision (not necessarily acts)
o Proximate relationship between citizen and gov’t
BUT:
o What if the decision in question is:
The provincial or federal budget
Land use plan
Environmental legislation setting up watershed protection areas?
Regulation of an industry
Part of community plan to deal with safe highways in blizzards?
Allocation of scare police resources?
Policy concerns:
o Is it legitimate for court to second guess government decisions?
o Government decisions often require balancing of public priorities, allocation of scarce
resources, for overall public good
o Potential conflicts of interests or duties
o Indeterminate or inordinate liability
o The Crown is not a person, cannot make pure private law analogies.
Statutory duty or power:
Is a power or duty conferred by statute:
o ‘A director of child welfare shall investigate.. “
o “The Minister may establish a program …”
o “The Lieutenant Governor in Council may enact regulations providing for… “
o “The EUB may order…”
A Public Authority is the sum of its statutory duties and powers … does not exist outside
these
Common law Duty of care – arises when
o In existing category of duty of care or
o it is foreseeable that my negligent act may harm another, and Anns/Cooper test is met
The breach of a statutory duty is not in itself a tort – it’s evidence but it’s not the tort!
Statutory duty is not the equivalent of common law duty of care
The duty of care of a public authority = the common law duty, found using common
law test
The statutory duty and its context is examined to assist in determining whether common
law duty exists
Remember – breach of statute is not a separate tort (Sask. Wheat Pool). Therefore breach of
statutory duty is not per se at tort.
Four ways to deal with the duty problem:
1. RTGDA – there may be a statutory exemption:
2. Policy/operational dichotomy:
o Just v BC, Anns, Kamloops
o A public authority is immune from negligence if the decision was made in good faith and was
a policy decision!
o This immunity does not apply to operational decision!!! – Since Just v BC, in exact or similar
facts, the same result did not occur. The analysis still applied.
Once it is determined that decision/act is operational, then plaintiff must establish
the rest of negligence elements
Determine standard of care
o Standard of care – what is reasonable for defendant in those circumstances
What was the inspection scheme? Was it reasonable?
If so, was there a breach of the scheme?
If not, was the scheme itself unreasonable?
Then establish cause in fact and cause in law:
o Did the breach in fact cause the damage?
o Was this damage reasonably foreseeable?
o If these are established, then liability is found!
Distinction works as a “flexible guide”
What is policy v operational “varies infinitely”
Cannot reliably predict whether decision will be characterized as policy or operational
Very contextual.
Wait a minute: What is a policy decision v operational decision?
Under this approach, all government decisions are either policy or operational.
Court will decide whether a decision is policy or operational!
If operational, then no immunity from negligence!
There is NO bright line test to determine what is policy v operational!
Tending toward policy:
o Decision made at high level of government
o Decision maker had lots of discretion
o Did decision involve resource allocation?
o General impact
Tending toward operational:
o Routine decision/act
o Deliberate injury?
o Close, ongoing relationship with plaintiff
o Specific impact
o Can decision be pinpointed to one actor?
o Similar to private law situation?
These factors are generally not determinative!
Additional considerations to “help” determinative policy v operational:
o Subject matter of the action
o Interests of plaintiff, government and others
o Precedent
Just v BC is very expansive case, courts have retreated
o Provincial, federal budgets; policy frameworks; large macro decisions are always policy
Total immunity for negligence for these
Terminology alert:
Policy:
o Policy as the “soup” of interests concerns that guide rule making
o Policy as the outcome of policy analysis: non legal rules that guide government action:
Proximity – as a means to deal with duty problem:
Cooper v Hobart
Novel duty of care determined by
Two stage:
o 1. Foreseeability and “proximity” between parties
o 2. Any external policy reason to limit duty?
What’s the difference?
Change in emphasis, burdens
o Emphasis on proximity – plaintiff must clearly establish it to proceed
o Onus – defendant has to prove the policy exception
What’s the same?
o At the Policy stage – the courts use policy/operational analysis
Policy and impact of Cooper:
o No impact on professional regulators:
Almost impossible for duty to be established
o Scope of duty is not expanding:
Almost nil for pure economic loss cases
Limited where plaintiff is asking for benefits
Categories where duty has been established – no Cooper or Just analysis needed
Building Inspection cases: inspectors have duty to owner and subsequent owners
o May be exceptions based on facts, legislation
Police Duties
o Duty to suspect to use due care in investigation
The tort of misfeasance in public office (an emerging remedy for plaintiffs?)
Generally: Aka “abuse of public office”
Elements of the tort
o Must be a public official
Official engaged in wrongful conduct in her capacity as a public official
Must be intentional – intended to harm or knowing that plaintiff would be harmed
MLAs are not public officials!
You have to know that the way you’re using the power is unlawful and the fact that the
harm will happen!
Roncarelli v Duplessis:
Public official specifically intended to injure a person.
Proof that person was using his power intending to injure plaintiff made out elements –
Roncarelli lost his liquor license for his restaurant.
Duplessis has deliberately done this to hurt Roncarelli.
Roncarelli has a huge deterrent effect.
Odhavji Estate v Woodhouse:
Allegation: Police knowingly breached statutory requirement to cooperate, plaintiff
injured.
On application to strike, SCC says tort made out if
o Conduct is deliberate and unlawful AND
o Defendant aware conduct is likely to cause harm to plaintiff
It focused the Court to say: ‘what’s the scope of the tort here’? On this case, we had
deliberate and unlawful conduct and despite no direct intention to hurt, plaintiff was aware that
injury would occur and they were reckless about it!
Impact:
o Odhavji nudged the law forward, triggered claims, which included both negligence and
misfeasance!
A new direction?
The duty analysis in Dorset Yacht, Anns, Cooper suggests immunity for policy decisions
made in “good faith”
o Bad faith arguably negates the “policy immunity” in negligence?
E.g. Kamloops
o Is it possible to stretch Odhavji such that the tort includes government action that is not in
good faith?
There is immunity for policy/legislative decisions that are made in good faith! What does
good faith mean? Increasingly, counsel are arguing good faith is a very broad concept and they
are linking it to concept of misfeasance.
 Liability of public authority
 Claim in negligence:
o Duty of Care
o Breach of duty
o Breach must cause damage
 Anns laid down two part test
o Foreseeability of damage
o Policy aspects that may negate foreseeability
 Controversy over foreseeability – Cooper – something more than just foreseeability needed –
now also look at proximity as well as foreseeability
o Look at existing categories to see if proximity has been established previously
 When you are using crown/government, statute itself may give rise to proximity
 SCC decided in Filoka – when you’re looking for a source of duty against the Crown, you have
to look at the statute. Also look at circumstances (not just statute)
 Imperial Tobacco
o Claims were against imperial tobacco, who then sued Canada saying Canada had
interacted with them and given them ok
o 2 ways to find duty of care
 Statute
 Dealings of the Crown with other party
 Dealings with Imperial tobacco gave rise to duty of care
o Extended the basis on which the Crown could be found negligent
o SCC went on to use the 2nd stage of Cooper test (policy) and argued that duty of care
in this case should be negated
 Roncarelli
o Discretion is not open ended
o Misfeasance of public office case
 Odjavi
o Family of deceased brought action for misfeasance in public office
o Court addressed test for misfeasance in public office – 2 ways to commit
 When somebody acts with intent to harm someone
Public officer acts with knowledge that they have no power to act and the
act is likely to harm the plaintiff
o Court used term “deliberate” for mental aspect of the action
o Also shows that misfeasance can be for omission, not just positive action like in
Roncarelli
o Not just unlawful extension of powers official has, but also powers they don’t have
Two ways to serve Crown – serve minister of justice or any lawyer who works for the
minister of justice
Since Just, Court has commented further on policy operational position – more generous to
government
Three points from Imperial
o 1. Private law duty must be found at stage 1 – can look at the statute, and the
relationship between parties
 Very difficult to find private law duty in a statute – virtually all, by definition
are in the public interest
 May find duty if there is an ongoing relationship
o 2. Policy/operational dichotomy at stage 2
 Weighing of social, economic, political issues is for government not courts
 Policy decisions - are a subset of discretionary decisions
 ie “discretionary legislative or administrative decisions and
conduct that are grounded in social, economic and political
considerations”
 Generally made by officials who are required to assess and balance
public policy considerations
 A decision representing a course or principle of action adopted by
government
o 3. Stage 2 is a general policy assessment, not limited to policy/operational
considerations
 Duty was denied at stage 2 on policy/operational test AND on
indeterminate liability




Negligence Causing Economic Loss
 Elements of negligence applicable to personal and property damage are adjusted for pure
economic loss
o Different scope of duty - different policy
o Same or slight variations in
 Breach of standard of care
 Cause in fact
 Foreseeabilty of damage (cause in law)
 Actual damage
 Negligence causing pure economic loss
o NOT property damage to plaintiff
o NOT personal damage to plaintiff
o No causal connection between loss of money and physical or personal damage to
plaintiff - it is just causal connection between negligent act and loss of money
 What’s the difference?
o Consequential economic damage
 Economic loss resulting from the physical or personal damage
 negligently felled tree damages outdoor restaurant – business
closed for repairs.
 Loss of earnings for personal injury
o VERSUS pure economic damage
 No physical or personal damage to plaintiff




Siding on condo building about to fall off because of negligent
build. Cost of repair is pure economic loss.
 Negligent advice given about solvency
Another way to look at it
o Pure economic damage
 Is a “mere transfer of wealth
 is a form of wealth transfer
 E.g. Loss of money on stock market
 Risk of economic loss can often be foreseen and managed by contract
o VERSUS Social damage
 Damage to person is more “heinous” than property damage or damage to
pocketbook; therefore higher duty should be owed
 Both personal and property damage involve permanent social loss
 Money is not a perfect replacement for this kind of loss
 Higher deterrent needed, therefore higher duty of care
Five actions for economic loss recognized by SCC
o Each is distinct
o 1.Negligent Misrepresentation
o 2. Negligent Performance of Service
o 3. Defective Products and structures/buildings
o 4. Relational Economic Loss
o 5. Independent Liability of Statutory Authorities for negligent inspection
1. Negligent Misrepresentation leading to pure economic loss
o AKA “Hedley Byrne” Application
o Normal rules apply
o History and Development
 Pre 1963 –
 Claim for misrep causing personal or property damage
o Normal negligence rules apply
 NO liability for misrepresentation causing pure economic loss until
Hedley Byrne
o Had to have a contract or
o Fiduciary relationship, or
o Fraud
o What are the concerns with expanding negligent misrep to include damage for pure
economic loss?
 1. Defendant can’t control where words go
 Can foresee that they will go everywhere and cause damage to
everyone
 Causes indeterminate liability to indeterminate class
 Indeterminate liability, by itself, is a strong policy reason for
limiting duty
 2. Most negligent misreps do not result in physical damage
 Therefore not a cause of “social harm”
 limited duty is justified
 3. Freedom of speech
 Defendants’ right should not be impeded without justification
 4. Something for nothing?
 Why should all who rely get the benefit of free service?
 What happens to business if advisors are warrantors to everyone
who might read their advice?
 5. The plaintiff chooses to rely
 Some responsibility belongs to her
o On the other hand…
6. Often reasonable to foresee that harm will be caused by reliance on
representations, some need for deterrence
Hedley Byrne 1963 (HL)
 Wanted to make sure their client would be able to pay them, so they talked
to the bank, and the bank gave them wrong information
 Court created right to claim for PEL resulting from negligent
misrepresentation
 Negligent words, even in absence of contract or fiduciary relationship, could
result in liability for PEL
 Created a specialized duty of care
Elements of Hedley Byrne application
 1. Duty of care based on “special relationship”
 different from other negligent actions
 2. Representation must be untrue or inaccurate or misleading
 3. Defendant must have breached standard of care ( i.e. negligent)
 4. Plaintiff did, in fact, reasonably rely
 5. Reliance was cause in fact of damage
1. Duty of care based on “special relationship”
 Analyze in stages
 A. Establish prima facie duty using “special relationship” test
 B. Look for policy reason to limit
 That is, apply Anns/Cooper analysis
 C. Consider impact of contract on duty
A. Is there a prima facie duty? (Stage 1)
 What is a “special relationship?”
 Narrow view – voluntary assumption of risk by defendant
o “normally in a business transaction”
o “relationship equivalent to contract”
o “assumption of responsibility” or “implied responsibility”
by defendant
 Wider view – Not dependent on category of relationship
 Plaintiff is foreseeable and it is foreseeable that reasonable reliance
would occur
 “Justifiable reliance”
 Queen v Cognos Inc 1993
 Hired CA, had clause in contract that CA could be fired at any time –
but based on the interview, he didn’t think that could happen
 CA successful in his claim for misrepresentation
 On facts it did not matter which view (narrow or wider)
o Reasonable reliance was foreseeable and there was a close
relationship
 Duty exists on these facts
o Foreseeable that plaintiff will rely
o Such reliance would be reasonable
 Hercules
 Auditor prepares report for shareholders. Individuals who are
shareholders rely to their financial detriment on the report and sue
auditor.
 Clearly a duty of care to company that paid for report
 Issue: Is there a duty of care to shareholders?
 Apply Anns analysis
o Stage 1 – Is the relationship such that defendant should
must be mindful of plaintiff’s legitimate interests?
o Stage 2 – is there a policy reason to limit duty?

o
o
o
o




Hercules Stage 1o Establish basic foreseeability
o Then proximity - What is it about the relationship that
makes it fair to impose a duty?
 Reliance is foreseeable by defendant
 (because It is a relationship where
reliance is expected) and
 Reasonable for a plaintiff such as this to rely *
 *note
o not “was reliance reasonable?”
o But “whether reliance would be reasonable”
 Narrow or wide view of the reliance?
o Narrow view – assumption of risk view
 Duty only if
 defendant knew specific identity of
plaintiff or class of plaintiffs and
 loss arose from transaction for which
reliance was prepared
 What did LaForest J say about this?
o Consider these factors (above) at stage 2 –
o Considered them as contributing to indeterminate liability
o Use wide view to establish prima facie duty
 Hercules - Stage 1
o Reliance by shareholders foreseeable – Yes
o Would it be reasonable for reliance to occur? Factors to
consider:
 Held: Considering these factors, reliance would be
reasonable
Would Reliance be reasonable? Factors to consider
 Klar’s List
o Skill of advisor
o Skill of advisee
o Nature of occasion
o Was it solicited
 More likely to be reliance
o Did Defendant get indirect or direct $ benefit
o Nature of advice
o Mere opinion? Based on fact or mere speculation?
 Feldthusen’s List
o Defendant had direct or indirect $ benefit
o Defendant had special skill or is a professional
o Rep provided in course of defendant’s business
o Rep given deliberately (not on social occasion)
o There was specific inquiry
Also consider:
 - Was there disclamatory language? E.g. Hedley Byrne
o Bank said not to rely on it
o If disclamatory language, it is less likely to find reliance
Notes and issues
 At stage 1 of the duty analysis, Canadian cases support the wide
“justifiable reliance” approach
o Is reliance foreseeable, and if so, would reliance be
reasonable?
 Clear that duty is not limited to professional advice givers
What difference, if any, if one takes “assumption of risk” v
“justified/reasonable reliance” approach at stage 1?
 Narrow
 limits prima facie duty to plaintiffs in categories or established
categories therefore, narrower scope of duty regardless of stage 2
o Less likely to get to stage 2 analysis
 more likely to limit to established professional categories
 disclamatory language more likely to be effective
 Wide – Approach we take in Canada
 wider prima facie duty – limits may be imposed at stage 2.
 More flexible, less predictable
 What is the difference if it was physical or personal damage, rather than
PEL?
 Foreseeable plaintiff can always reasonably expect defendant will
avoid personal or property damage.
B. How far does duty extend? Is there a limit on the duty? (Stage 2)
 Having established prima facie duty test, is there a policy reason to limit the
duty?
 Hercules Stage 2 - Are there policy reasons to negate duty?
 General policy concerns
o Avoiding Indeterminate liability – “liability in an
indeterminate amount for an indeterminate time to an
indeterminate class”
o deterrence and incentive to auditors
 Is there indeterminate liability?
o Class of plaintiffs was known… but
o Plaintiff relied on it for reasons other than the reason for
which it was prepared –
 Reason it was prepared was to look at
performance of CEO and company, and reason it
was relied on was to make investments – different
reasons, therefore no duty
o Therefore no duty to these shareholders
C. Relationship between negligent misrep and a contract
 BG Checo v BC Hydro
 Right of action in tort is not removed merely because there is a
clause in the contract touching on the matter
 Right to sue in tort can be contractually removed by specific
wording waiving the right to sue or limiting liability
o Will be narrowly construed against a plaintiff (especially a
faultless plaintiff)
 What policy factors must be balanced ?

- right to private ordering

- commercial flexibility

- predictability

- harm to pocketbook is not social harm


versus


- deterrence

- protection of innocent plaintiff

- harm to person or property is more heinous
 Can contract subsume pre-contract misrepresentations?
 E.g. “agreement replaces all prior representations”

o
o
The tort action lives unless specifically ousted by contract
 Cognos
 Misrepresentation was about different
matter
 Negligently misrepresented that the
project will last two years has nothing to
do with them being able to fire him at will
 Can post-contract misrepresentations alter contract?
o The tort action lives unless specifically ousted by contract
 J Nunes Diamonds
 Misrep was, inter alia, by a person
authorized to vary contract
 Issues and Notes
 Contract will be interpreted strictly, especially when bargaining
power is uneven
 Why pursue a contract v tort remedy (or vice versa) ?
o Limitations? Same for contract and tort
o Damage amount? - could be different
o Evidence? And trial strategy may be different
o Contracts may also apply a dispute resolution
 Concurrent liability for tort and contract apply to all tort actions
o Rafuse and BG Checo apply to tort actions generally – not
just negligent misrepresentation
2. Representation must be untrue or inaccurate or misleading
 Statements that are clearly untrue – straightforward
 Omissions or incomplete information may be negligent
 Particular area of concern for government
 Failure to inform of change of circumstances
 Eg De Groot v St. Boniface Hospital
o Plaintiff had position with hospital, had privileges as
surgeon – told that while going away on study leave he
could come back - changed while he was away, but nobody
told him
3. Defendant must have breached standard of care (ie negligent)
 Cognos
 The applicable standard of care should be the one used in every
negligence case, namely the universally accepted, albeit
hypothetical, “reasonable person”[in the circumstances]. The
standard of care required by persons making representations is an
objective one.” (parentheses added)
 Maker’s belief in the truth is not relevant.
 For professionals, the professional standard of care applies
4. Plaintiff did, in fact, reasonably rely
 The plaintiff must have known about the misrepresentation and reasonably
acted upon it
5. Reliance was cause in fact of damage
 Plaintiff must have relied to his/her detriment, and damage ensued
 Damage = pure economic loss
Negligent Misrepresentation and Contributory Negligence
 Plaintiff can be held partially at fault especially if
 Plaintiff could have relied on things other than the misrep
 If there are multiple causes of damage, may be CN in regard to one
of the other causes
o
o
o
o
o
o



Reliance was reasonable, but plaintiff could have done more to
protect self
2. Negligent Performance of Services
o Types of cases
 Plaintiff’s reliance on defendants undertaking to perform service
 Disappointed third parties – beneficiaries under wills
 Not good policy?
o Nobody has a right to receive anything – nothing to
establish duty of care between lawyer and beneficiary
 Subsumed in Alberta?
 New act rectifies this
o Apply the Anns/Cooper analysis
 Stage 1: Is there a foreseeable plaintiff and justifiable reliance?
 Stage 2: policy reason to limit duty?
o Look for contractual terms negating duty or limiting liability
o Similar to negligent misrepresentation, but instead of negligent words, there is an
undertaking to perform a service, and performance is negligent
o Best approach
 Duty based on foreseeable reasonable reliance
 Breach of standard of care
 Reliance causes PEL
 If I provide a service gratuitously (ie no contract) and the defendant can be
said to foresee the plaintiff, foresee the plaintiff will rely on service, and the
reliance is reasonable, then clear possibility of liability (reliance test)
o Still does not explain the disappointed beneficiary cases
 Can only say Lawyer owed duty to estate not to screw up
o Courts are reluctant to impose duty on volunteers or intermediaries
3. Negligent Supply of Defective products or structures
o Recall policy reasons for limiting PEL
 Maintaining commercial freedom
 caveat emptor
 Encouraging self reliance
 Value of private ordering and reliance on contract
 Parties can allocate risk of financial losses
 Insurance is available
 Deterring loss of wealth is not as important as deterring personal damage
 Need for predictability
 Avoiding indeterminate liability
 If there are gaps in protecting consumers, legislation can fill in
o Damage = damage to product itself, not damage resulting from external event
 Eg.
 1. Faulty foundations causes cracks in wall – PEL arising from
negligent building – part of product itself
 2. Falling tree causes cracks in wall – damage to property – normal
negligence rules apply
 Problem
 Where is the line between 1 and 2?
o Winnipeg Condo – condominium building was built in
1974, about 15 years later, a piece of limestone fell from
ninth floor onto sidewalk – nobody was hurt – court held
that it was apart of the faulty design of the building – since
no one was hurt, no personal/property damage – PEL
o What if stone fell down and crashed onto someone’s
balcony in the building – is that #1 or #2?
o
o
The rule in Winnipeg Condominium Corp – for defective structures (not products)
 Builder, architect and contractors may be liable to subsequent owners
for PEL if negligence results in a structure being dangerous
 Liability is limited to reasonable cost of repairs
 Facts:
 Condominium building designed and built by defendants in 1972 –
74. Subsequently, units all sold and Condo Corp came into
existence.
 In 1989 a piece of tyndall stone fell nine stories from the building.
Condo Corp had to repair building. $1.5M
 No contract between Condo Corp and builders
 Issue: can Condo Corp sue in tort?
 Answer was yes, they can sue in tort
 Reasoning – LaForest J
 Stage 1: It is reasonably foreseeable that subsequent purchasers
may suffer personal or property damage if a building is designed or
constructed negligently. Therefore, it is reasonable to extend
builders’ duty of care to include cost of prevention of personal or
property damage.
 Stage 2: Any policy reasons to limit this duty? No.
o Indeterminate liability? –
 No –
 Because subsequent occupiers are a
limited class
 Life of the building is limited
o Eventually, the building will
deteriorate anyway
 Cost of repair limited to reasonable cost
of restoring to non dangerous state
o Caveat emptor principle – common law says no implied
warranty of fitness
o Should not apply because subsequent purchaser cannot
always find latent defects in complex structures
 U.K. courts completely reject this view
 D & F Estates v Church Commissioners HL(1993) – defective plaster
in apartment building
o No liability for PEL for dangerous or defective buildings or
products
 Creates a warranty using tort law
 Legislature better suited to deal with this issue
 Cost of repair of defective chattel is not
recoverable in tort , Cost of repair
 Can be managed with insurance, contract
 No cases where Wpg Condominium principle applied to defective
products…
Issues and Questions
 Imminence of danger or harm – how imminent? What if the harm is
possible, probable, merely speculative?
 What are the issues here?
o Limitations of action policy
 Discoverability of harm
 Drop dead rule – 50 years to discover harm in
Alberta
 Repose for defendants
Social stability - don’t want lawsuits all over the
place
 Problems of proof – after a long time, lose proof,
witnesses
o Definition of “danger” or harm is difficult
In Winnipeg – Court said scope of recovery limited to reasonable cost of
removing dangerous defects – what should be covered?
 What are the issues?
o Scope of cost
 Loss of business? Cost of alternate
accommodation? Lower property value?
 How much do you have to cover?
o What if risk is low, but cost of repair is high?
o Contributory negligence or other causes –
 Eg danger aggravated by bad weather?
What is the difference between negligent performance of a service and
negligent creation of dangerous structure?
 Duty test - some nexus of reliance required for negligent
performance of service



Issues
 To call this category “defective products and structures” is overly broad
 May be liability for PEL for reasonable cost of repair of dangerous
structures in order to prevent damage to person or property
 Plaintiff must prove negligence
 Not clear that this applies to products
 Not applied to merely shoddy or defective structures
4. Relational Economic Loss
o 1. Property Damage causing relational loss
 A negligently causes property damage to B.
 As a result, C suffers a loss of business.
 Issues
 massive indeterminacy – if C’s only loss is purely economic – how
many Cs are there out there?
 disproportionate punishment – of A, who is at fault, but should they
have to pay for everybody in that class of payment
 over-deterrence
 floodgates – on court system
 do not use negligence to circumvent contract terms
 Clear the law will not allow claims for relational PEL based on foreseeability
alone.
 Liability must be determinable.
 Therefore, cases where there is no nexus at all between B and C creates too
much indeterminability to be considered.
 To even start analysis, the cases involve some nexus – usually a contract
between B and C
 CNR v Norsk SCC 1992
 CN has contract with Crown to use bridge. Norsk’s tugboat
negligently damages the bridge. CN sues for relational economic
loss
 Split court found prima facie duty at stage 1 and no indeterminate
liability (or other policy limit) at stage 2.
 The plaintiff was foreseeable and proximate, and liability could be
clearly limited to the contract holder’s losses. Therefore no reason
to limit duty
o

 Dissent: policy dictated against considering REL in this case
Two theories
 Negligence is only about foreseeable property and personal
damage
o Relational Economic Loss is outside the realm of
negligence law and even if there is foreseeable damage and
duty, should never be permitted except under very limited
exceptions
o Consistent with pre-Hedley Byrne and traditional tort law
o LaForest in Norsk
 Negligence is about any foreseeable damage
 If damage to plaintiff is foreseeable, and there is a prima facie duty
of care, then REL should be included unless there is a strong policy
reason to oust it. - McLachlin in Norsk
 Bow Valley Husky 1997
 “reconciled” the positions on the principles that
 1. REL is recoverable only in strict circumstances
o mostly due to problem of indeterminate liability
 2. Can be defined by reference to categories
o new categories are established via the Anns two stage test
 3. Categories are not closed
 Three established categories of possible REL arising from property damage
 1. Joint ventures between B and C
o Can argue that B and C are in same position
 Court can theoretically treat as 1
o Claimants are determinate due to joint venture
 2. Averaging cases (maritime law)
o common law of averaging risks
 3. C has possessory or proprietary interest in the damaged
property
o Claimants are determinate
o C has suffered some property loss
o In Bow Valley, not the case, but in Norsk, it was
2. Per Quod Servitium Amisit
 Relational economic loss to a third person as a result of negligence causing
personal harm
 I.e. A negligently harms C’s servant, B
 This action is abolished in some provinces. Technically still alive in Alberta
and others.
 Seems outdated and demeaning
 Servants as chattels
 Similar to per quod consortium amisit - the abolished action for loss of
consortium
 Historically for loss of wifely domestic services
 Extended to the loss of companionship, relationship
 Abolished or inconsequential in most provinces
 Alberta – Domestic Relations Act contained a right to sue for loss of
consortium, repealed in 2004.

o
Defamation
 Establishing Defamation
o 1. Would the material lessen the reputation of the subject of the statement in the
mind of a reasonable person?
 Including the context in which they were spoken
2. Does the material refer to the plaintiff?
3. Was it published? That is - communicated to at least one person who was not
defamed?
General Concepts
o Value protected: reputation
 Human dignity, moral autonomy
o Policy balance
 Freedom of speech versus protection of reputation
o Charter and defamation law
 Why is was this an issue?
 Early post Charter cases wondered about it
o Current law
 Charter does not apply to private parties
 Charter values do shape all common law, including defamation
 Charter values include freedom of expression and dignity of the person
 Courts are content that current private law of defamation law
properly balances Charter values
o If it were otherwise, what would happen?
o Could either pass legislation or be corrected through court
decision
o Lawyers’ reputations
 Hill: Scientology’s lawyer alleged that the Crown prosecutor had lied and
misled the court
 Lawyer’s reputations are very important
o Law Society Code of Conduct
 Rule 6.02 (1) A lawyer must be courteous and civil and act in good faith
with all persons with whom the lawyer has dealings in the course of his or
her practice.
 Commentary…A lawyer should avoid ill-considered or uninformed criticism
of the competence, conduct, advice or charges of other lawyers, …
 6.02 (6) A lawyer must not, in the course of a professional practice, send
correspondence or otherwise communicate to a client, another lawyer or
any other person in a manner that is abusive, offensive, or otherwise
inconsistent with the proper tone of a professional communication from a
lawyer.
o Defamation of dead people
 If plaintiff dead when defamation occurs, no action available
 Defamation is an action “in personam”
 If death occurs after defamation, but before claim resolved
 Survival of Actions Act allows action to be made or continued by
estate, scope of damage limited
o Defamation by dead people (before they died)
 Estate may be sued by plaintiff – plaintiff is still alive and suffering
o Defamation of/by Corporations
 Corporate entities have reputations and may be defamed
 Defamation by Corporations: Corporate entities may defame others
o Defamation of/by Governments
 Municipalities/gov’t agencies can be defamed
 Government officials can be defamed
o Time Limits
 Limitations Act applies
 PLUS Defamation Act s 13
 13(1) No action lies unless the plaintiff has, within 3 months
after the publication of the defamatory matter has come to the
plaintiff’s notice or knowledge, given to the defendant, in the
o
o






case of a daily newspaper, 7, and in the case of any other
newspaper or when the defamatory matter was broadcast, 14
days’ notice in writing of the plaintiff’s intention to bring an
action, specifying the defamatory matter complained
of.(2) The notice shall be served in the same manner as a
statement of claim.
 Allows for mitigation of damage by defendant
Defamation v negligent misrepresentation
o Careless words can cause damage – either pure economic loss or physical damage
o Can plaintiff claim in both negligence and defamation?
 On one hand, if there is a duty of care owed by defendant then no reason to
oust negligence claim just because there is also defamation
 On the other hand, if the harm is just to reputation, then why not use the
specific reputation tort?
o Law not settled in Canada, though leans to allowing both
o Double recovery of damages would not be allowed
Libel v slander
o Common Law
 Libel – written material
 Slander – spoken material
 Different elements – slander requires proof of special damage
o Alberta Defamation Act abolished the difference
 Damage is presumed in either case
If plaintiff can’t prove three elements (Would material lessen the reputation of the subject in
the mind of a reasonable person? And Does the material refer to the plaintiff? And Was it
published to another person besides the plaintiff?) then no tort
Defences
o Truth
o Absolute privilege
o Qualified privilege
o Responsible Communication…
o Fair comment
o Limitation of action
Element #1: What is defamatory?
o Overall threshold is very low
o Various formulations
 Murphy v LaMarsh, Youssoupoff v MGM
 Words, pictures, gestures that
 Bring the person named into hatred contempt or ridicule…or
causes them to be shunned or avoided
 Tend to lower the plaintiff in the estimation of right thinking …
society generally
 Right thinking persons can and probably will properly interpret …
as defamatory
 the reasonable reader… would conclude there was something
wrong with the person…
 Is a false* statement about a person to her discredit
o *falseness is presumed – defence has to rebut that
o Two stages
 1. Question of law: Is the material capable of a defamatory meaning?
 2. Question of fact: Would a reasonable person find the material
defamatory?
o The reasonable person
 Does not care


 whether there was actual harm to plaintiff’s reputation

about the bona or mala fides of the defendant (malice)
 Decides whether the material could harm a reputation
 Does not care
 whether the receiver believed it
 about the actual truth of the statement
 Decides whether material is generally believable
 Takes general context into account
 Was it heat of moment?
 Banter?
 Comedic intent?
 Public figure does not make it a higher standard
 Considers the ordinary, natural meaning
o Innuendo and meanings dependent on knowledge of specific facts
 If there is a “hidden” meaning – plaintiff must plead and prove this
 Must
 Allege the meaning in the Statement of Claim
 Bring evidence to prove the meaning
o Critique of test of defamation
 Favors plaintiff at expense of defendant
 Should there be a requirement of proof of damage?
 Should as LeBel J said in WIC Radio there be factual consideration of (ie
higher test)
 Whether plaintiff was known by public and how much
 Nature of the specific audience
Element #2: Material must refer to plaintiff
o A question of law and fact
 1. Law: Is the material capable of being applied to the plaintiff
 “Your mother is a hamster”
 What if the King is the Plaintiff? Mother?
o Not applicable to either – they are obviously not hamsters
 2. Fact: Does the material refer to the plaintiff
 Would a reasonable person conclude it referred to plaintiff?
o Can be express or implied
o What if the plaintiff is a member of a group, and the words are directed at the
group?
 Same test: are the words capable of being directed at the plaintiff? Would a
reasonable person in the circumstances they were intended to refer to the
plaintiff?
o Can a group sue for defamation?
 Unincorporated groups do not have the rights of a natural person
 What about hateful statements toward a minority?
 Gap filled by legislation, human rights law
 Eg. Sask Human Rights Commission v Whatcott 2013 SCC
 Penal statutes require intention
Element #3 Material must be published
o Crookes v Newton 2011 SCC
 Crookes was a politician, on Newton’s site there were hyperlinks leading to
material that described Crookes in a defamatory way
 Material must be published to at least one person who is not the plaintiff
 Issue: Is a hyperlink, by itself, publication?
 Held: a hyperlink to defamatory material is, in itself, not publication
o Analysis – Crookes (LaBella J)
The manner of publication is irrelevant provided the defendant has acted in
some way conveyed the material to someone other than the plaintiff
 E.g. Pointing at a sign
 Formerly, it did not matter the actor did not know of the material – e.g.
operator of print machine liable
 These people are not liable
 “Defendant must have knowing involvement in the process of publication of
the relevant words”
 Don’t have to know the material is defamatory, you don’t have to intend to
defame, just know what the material is
o Policy considerations – Crookes
 Telling people that content exists is distinct from controlling the content
 Eg. Say there is a letter in inbox – just telling you content exists (no
liability) but if I wrote it, then controlling content (liable)
 People do not necessarily control the insertion of hyperlinks
 People inserting the hyperlink do intend readers to move to the defamatory
content - however readers know and choose to move to a different site
 Hyperlinks are content neutral, they only direct to other content
 Reasonable balance of freedom of expression and protection of reputation
 Do not want information-sharing “chill”
 Plaintiff still has a remedy against creator of material
 Context surrounding hyperlink should be assessed – is there defamatory
material “surrounding” it?
o Final points on publication
 Each publication is a new claim DA s. 7
 Knowledge and fault of defendant is relevant at this stage
 Knows the content and
 knew or reasonable to know that the material will be conveyed
 Innocent conveyance is not publication
Damage is not required
o At common law and see s. 2 Defamation Act
o The purpose is general protection of reputation
o Intent – innocent or otherwise - of defendant not relevant
o Defendant need not even be aware of the plaintiff
o Actual damage is relevant at assessment of compensation stage
Defences
o 1. Truth
 All defamatory material is presumed to be false until proven otherwise
 If the defendant can prove the statement is true, that is a complete defence
 Also called “justification”
 Policy:
 Interest in truth is paramount to reputation
 Encourages fact checking
 Discourages publication from “unnamed sources”
 Factual Statements
 Straightforward – may be defamatory, but if true, then no liability
 Opinions
 Veracity not so clear
o 2. Absolute Privilege
 Regardless of truth, malice… some situations require absolute freedom of
speech and/or have other protection
 Absolute protection from liability for defamation
 1. Communications between spouses
 2. Statements during parliamentary, legislative proceedings




 At least in the chamber and in committees
 Not necessarily outside the House – e.g. with journalists
 3. Statements made in judicial proceedings
 During trial and court proceedings
 Pre trial communications
 Lawyer client communications
 Preparation of reports and proof of evidence
 Judges have AP, some broader than others
 4. Acts of high officials in the performance of their duties
 Statement by one officer of state to another
 Relating to state matters
 Made in the course of official duties
Section 12 of Defamation Act – absolute privilege is given for reports of judicial proceedings.
Only for newspaper and broadcasting
3. Consent
 Can consent to publication of a defamation
 But consent is narrowly construed and consent to one publication cannot equal consent to a
separate publication
4. Qualified Privilege
 Policy – sometimes the importance of communicating overrides the need to protect
reputation
 Qualified privilege = claiming you have a duty (social, legal, moral) to inform/broadcast
certain information to the public/certain classes of people
 Myriad situations where qualified privilege can be claimed =
o Situation where a reasonable person would agree that the publisher (defendant)
had a moral, social, legal duty to convey information and the recipient had a reason
to receive it
o Reciprocity is a key element
 Starting point for claiming QP = material is untrue, but plaintiff honestly believed it
 It is a question of law, not fact, whether the relationship of the parties and the conditions of
publication are sufficient to support the defence of qualified privilege
 ELEMENTS
o Honest belief in the truth of facts
o Reciprocity of duty
- Hill v Johnston and Canada Safeway
 “fan out” by pharmacy alerting of possible drug forgery
 situation of QP admitted by defendant
 pharmacist has duty to inform of abuse and let other pharmacists to know about it
 court said – pure legality or conformity with practice is the test for duty to inform
 QP requires only a general legal or social duty, no need for enforceable duty
- What are the boundaries of QP? When are they exceeded?
o Excessive publication
o Negligence
o Malice
 1. Excessive Publication - overreaching the duty, comments are outside the situation
protected
o A) Too much information - defendant published more information than needed to
fulfill the duty to inform
o B) Over-delivery - some recipients of the information should not have received
communication; duty to inform did not extend to such a large scope of recipients;
some recipients did not have duty to receive the communication
Publication to intermediaries in ordinary course of business does not defeat
QP
 If recipient has no duty to receive info and not an intermediary – QP is lost
 2. Negligence - QP defence not necessarily defeated by negligence of defendant
o negligence requires defendant’s recklessness or indifference as to the truth of the
material
o different from honest belief in the trust – if the belief is honest, does not matter how
it was reached
o but there can be independent negligence claim for damages if plaintiff can establish
duty of care, breach and damages
 3. Malice - reason for passing on the information was mostly ill-will towards the subject of
the defamatory information
o once defendant establishes qualified privilege
o onus shifts to plaintiff to establish defendant was malicious – must prove as a fact
o if there is proven malice – there is no defence of QP established, malice trumps it
o malice is a question of fact - in order for jury to consider malice, judge must find
probable cause – ie. Sufficient evidence that jury could find malice
o Malice is proven if
 Dominant motive is ill will or spite
 No honest belief in material; Or belief is real but unreasonable
 Indirect or alternate motive – the hidden motive
o Exceeding privilege trumps QP and can be a factor of evidence for malice, but is not
proof of malice
o Exceeding privilege is a matter of law raised in the course of establishing QP
defence – less onerous for plaintiff
- Other examples of qualified privilege - “Categories” of qualified privilege
 1. Protection of self – defendant has honest belief in false material; duty to protect self;
reciprocal relationship with those to whom attack was published
 2. Common interest/mutual concern - defendant has honest belief, social/moral duty to
further common concern; reciprocal relationship with those who share concern
o Shareholders of a company, business owners
o Creditors of a specific debtor
o Hospitals to labs and emergency rooms
o Allegations of abuse among family members or to therapist
o Church or fraternity affairs
 3. Moral/Legal duty to protect another - defendant had honest belief in false material;
reciprocal relationship between defendant and the one to whom duty/obligation owed
o job references
o not for profit credit agencies
o interests of children
 4. Public Interest – defendant has honest belief in false material; reciprocal relationship to
the public at large
o very peculiar category
o reporting crime to police
o teacher reporting to school board
o difference between a right and a duty – no “right” to publish defamatory material;
public’s right to know is not a sound justification for defamation
o public interest does not justify a free for all
 5. Reporting Public documents and Proceedings – statute qualifies this privilege
o by statute – privilege is automatic for reporting public documents and proceedings
o Defamation Act s.10
o Only for newspaper and broadcasting companies

o
o
QP is available at common law for reporting of public documents and proceedings –
defendant publishes account of public document or proceeding, has honest belief in
content of report even though report is not actually true
Responsible communication in matters of public interest
5. Responsible Communication For Matters of Public Interest
 Grant v Torstar – SCC created new defence for media publications against defamation claims
 Facts = Torstar publishes story unfavorable to Grant
 Issue = allegation in story is unprovable, not clear if allegation of fact or opinion, QP may not
apply
 Discussion
o QP is a difficult defence for media to establish – no reciprocity
o Reporters may have bona fide checked facts, but may
 Be unable to prove them in court or,
 Find facts are untrue, despite best efforts
o Creates chill for media and freedom of expression
o Law seemed to favoured reputation over free speech
 At cost to public debate, search for truth, democratic governance
o Court reviewed options, two ends of the spectrum
 Traditional QP defence
 US approach - public figures must prove malice to succeed in defamation
 Alternative “middle road” is new defence of public media including bloggers, online and
traditional media – including non-journalists
 Two aspects - publication in public interest; publication as responsible: diligent attempts to
verify
 Publication in public interest
o Legitimate interest about which public or some sector of public has substantial
concern – not just gossip
o Not just government, not just public figures
 Publication responsibly made - considerations
o Seriousness of allegation
 Diligence should be in direct proportion to severity
o Public importance
o Urgency

what did reporter know or ought to have known
o Status and reliability of sources
o Whether Plaintiff’s side was sought and accurately told
o Whether inclusion of defamatory statement was justifiable
o Reportage: did the public interest in the statement lie in the fact it was made or in its
truth?
6. Fair Comment
o QP and responsible communication – focus on fact
o Fair comments
 honest opinion based on true facts = fair
 fair does not mean reasonable
 comment = opinion/observation
 often hard to tell a comment from a fact
o republication and fair comment – created a problem for the media to have honest belief of
the original speaker
 Cherenesky v Armadale
 created a problem for the media to have the honest belief of the original speaker
 fixed by defamation act s.9 - person who republishes a defamatory comment may
rely on the honest belief of the original speaker to establish fair comment
o Elements of the defence of fair comment
WIC Radio v Simpson 2008 SCC
Comment must
 Must be on a matter of public interest
 Must be based on fact
 Known to the audience already or given by the defendant
 May include inferences of fact, but must be recognizable as comment
 Must satisfy the objective test: could any person honestly express the opinion on
the proved facts?
o Malice and Fair Comment
 Actual Malice by defendant defeats fair comment
 Onus on plaintiff to prove malice
 Evidence of malice
 Willfully misrepresenting facts
 Dominant purpose was spite, vindictiveness,
- Elements of Fair Comment Summarized
 Comments are actually opinions and not statements of fact or allegations of truth
 Comments are made honestly and in good faith – person making the comment honestly
believes the comment
 They are made regarding facts which are true – in order to be “fair” need to be based on state
of true facts
 The comment is made alongside statement of the true facts they are based upon – defendant
needs to establish the facts they are based upon
o Statement of the facts cannot be patently distorted or altered
o Do not need to include the facts if the audience already knows them
 Comments are a matter of public interest
- Objective test for Fair Comment Defence
 True set of facts that statement is based on must accompany the comment or already be
known by the audience – onus is on the defendant
 Reasonable and ordinary reader would interpret the comment as being an
opinion/comment based on fact and not an allegation of/statement of fact
 The opinion/comment is one that could be held by at least someone based on the facts – the
inference is one that could possibly be made from the facts
o if the opinion is one that no one could possibly hold based on/infer from the facts
then it is not a fair comment
Defamation Remedies
 Seldom any special damages – ie. Pecuniary, out of pocket expenses
 For general damages
o Hard to quantify loss of reputation
o Usually modest - Punishment, deterrence and restoration of dignity are policy
controls
o No caps however – Hill v Church of Scientology
o Mitigation encouraged
o Apology or withdrawal will reduce damage awards
 Punitive damages awarded if
o Malice, high-handedness, conduct of case
o Repetition of the defamatory statement
o Some punishment is already considered in general damages – court will not double
dip
o Grounds for punitive damages = “Insidious, pernicious, persistent malice” – Hill v
Church
 Injunction
o Occasionally granted to prevent repetition as interim measures
Slander of Goods – Sub-tort of Defamation
Elements of the Tort
o
o
1.
2.
3.
4.
Statement made concerning goods of plaintiff
Statement is false
Statement published with malice - improper motive or dishonestly
Special damage must occur – that is pecuniary loss
Occupiers Liability Act
 Statute sets out duty of care for occupiers of property – replaces common law
 Definition
o 1 In this Act,

(a) “common duty of care” means the duty of care of an occupier of
premises to visitors provided for in section 5;

(b) “entrant as of right” means a person who is empowered or permitted
by law to enter premises without the permission of the occupier of those
premises;
 eg. Police officer

(c) “occupier” means

(i) a person who is in physical possession of premises,
or

(ii) a person who has responsibility for, and control over, the
condition of premises, the activities conducted on those premises
and the persons allowed to enter those premises,

and for the purposes of this Act, there may be more than one
occupier of the same premises;
 (d) “premises” includes
 (i) staging, scaffolding and similar structures erected on land
whether affixed to the land or not,

(ii) poles, standards, pylons and wires used for the purpose of
transmission of electric power or communications or
transportation of passengers, whether or not they are used in
conjunction with the supporting land,

(iii) railway locomotives and railway cars,

(iv) ships, and

(v) trailers used for, or designed for use as, residences, shelters
or offices,
 but does not include aircraft, motor vehicles or other vehicles or
vessels except those mentioned in subclauses (iii) and (iv) or any
portable derrick or other equipment or movable things except
those mentioned in subclauses (i) and (v);
 (e) “visitor” means
 (i) an entrant as of right,
 (ii) a person who is lawfully present on premises by virtue of an
express or implied term of a contract,
 (iii) any other person whose presence on premises is lawful,
or
 (iv) a person whose presence on premises becomes unlawful
after the person’s entry on those premises and who is taking
reasonable steps to leave those premises.
 Applications of Act
o Effective date
o 2 This Act applies only in cases where the cause of action arose after January 1,
1974.
o Liability of employer
o 3 This Act does not apply to or affect the liability of an employer in respect of the
employer’s duties to employees.
Act inapplicable to highways or private streets
4(1) This Act does not apply to highways, other than leased road
allowances,
(a) where a Minister of the Crown in right of Alberta
has the administration of, or the management, direction and control of, the
highway,
o
(b) where the Crown in right of Canada has the administration and control of
the highway, or
o
(c) where a municipal corporation or Metis settlement has the management,
direction and control of the highway.
o (2) This Act does not apply to private streets as defined in… the Law of Property Act
Liability of Occupier to Visitors
o Duty of care to visitors [Common duty of care]
o 5 An occupier of premises owes a duty to every visitor on the occupier’s premises
to take such care as in all the circumstances of the case is reasonable to see that the
visitor will be reasonably safe in using the premises for the purposes for which the
visitor is invited or permitted by the occupier to be there or is permitted by law to
be there.
o When common duty of care applies
o 6 The common duty of care applies in relation to

(a) the condition of the premises,
 (b) activities on the premises, and

(c) the conduct of third parties on the premises.
o Recreational users [Bill 208, 2003]
o 6.1(1) The liability of an occupier to a person who uses the premises described in
subsection (2) or a portion of them for a recreational purpose shall be determined
as if the person was a trespasser unless the occupier

(a) receives payment for the entry or activity of the person, other than a
benefit or payment received from a government or government agency or
non-profit recreation club or association, or

(b) is providing the person with living accommodation on the premises.
 (2) Subsection (1) applies to the following:

(a) rural premises that are

(i) used for agricultural purposes including land under
cultivation,
 (ii) vacant or undeveloped premises, and

(iii) forested or wilderness premises;

(b) golf courses when not open for playing;

(c) utility rights-of-way excluding structures located on
them;

(d) recreational trails reasonably marked as such.
o Risks willingly accepted
o 7 An occupier is not under an obligation to discharge the common duty of care to a
visitor in respect of risks willingly accepted by the visitor.
o Variation of duty of care
o 8(1) The liability of an occupier under this Act in respect of a visitor may be
extended, restricted, modified or excluded by express agreement or express notice
but no restriction, modification or exclusion of that liability is effective unless
reasonable steps were taken to bring it to the attention of the visitor.
o (2) This section does not apply with respect to a visitor who is an entrant as of
right.
 Eg. Police officer
o Effect of warning
o 9 A warning, without more, shall not be treated as absolving an occupier from
discharging the common duty of care to the occupier’s visitor unless in all the
circumstances the warning is enough to enable the visitor to be reasonably safe.
o
o

Liability of independent contractor
11(1) An occupier is not liable under this Act when the damage is due to the
negligence of an independent contractor engaged by the occupier if
 (a) the occupier exercised reasonable care in the selection and
supervision of the independent contractor, and
 (b) it was reasonable in all the circumstances that the work that the
independent contractor was engaged to do should have been undertaken
 (2) Subsection (1) does not operate to abrogate or restrict the liability of an
occupier for the negligence of the occupier’s independent contractor
imposed by any other Act.
Liability of Occupier to Trespassers
o 11.1 …
o Trespassers
o 12(1) Subject to subsection (2) and to section 13, an occupier does not owe a duty
of care to a trespasser on the occupier’s premises.
 (2) An occupier is liable to a trespasser for damages for death of or injury
to the trespasser that results from the occupier’s wilful or reckless conduct.
o Child trespassers
o 13(1) When an occupier knows or has reason to know

(a) that a child trespasser is on the occupier’s premises,
and

(b) that the condition of, or activities on, the premises create a danger
of death or serious bodily harm to that child,
 the occupier owes a duty to that child to take such care as in all the
circumstances of the case is reasonable to see that the child will be
reasonably safe from that danger.
 (2) In determining whether the duty of care under subsection (1) has been
discharged, consideration shall be given to

(a) the age of the child,

(b) the ability of the child to appreciate the danger,
and

(c) the burden on the occupier of eliminating the danger or
protecting the child from the danger as compared to the risk of the
danger to the child.
 (3) For the purposes of subsection (1), the occupier has reason to know
that a child trespasser is on the occupier’s premises if the occupier has
knowledge of facts from which a reasonable person would infer that a child
is present or that the presence of a child is so probable that the occupier
should conduct himself or herself on the assumption that a child is present.
General
o Liability re personal property
o 14(1) Subject to subsections (2) to (4), the liability of an occupier under this Act to
a visitor or trespasser extends to destruction or loss of, or damage to, property
brought on to the occupier’s premises by the visitor or trespasser, as the case may
be, whether or not it is owned by the visitor or trespasser or by any other person.
o Application of other Acts
o 15(1) When the occupier does not discharge the common duty of care to a visitor
and the visitor suffers damage partly as a result of the fault of the occupier and
partly as a result of the visitor’s own fault, the Contributory Negligence Act applies
o 15(2) When an occupier is liable under [the trespasser or child trespasser
provisions] and the trespasser or child trespasser, as the case may be, suffers
damage partly as a result of the fault of the occupier and partly as a result of the
trespasser’s or child trespasser’s own fault, the Contributory Negligence Act applies
o (3) When in an action brought under this Act 2 or more occupiers of the same
premises are each found to be at fault, the Tort-Feasors Act applies.
o
o
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Crown bound
16 The Crown in right of Alberta is bound by this Act.
 Crown by law is not bound by statute unless the Act says it is bound – in
Alberta
 Crown owns vast tracts of land, hence why they are bound by this act
Class Proceedings
 Concepts
o Means for large number of plaintiffs with similar claims to efficiently pursue the
action
 Also means for defendants with similar defences to bring together common
defences
o NOT a substantive right, procedural rights only
o Used for all civil causes of action, not just tort
o Basically
 Representative case is pursued
 Remedy is binding on all similar cases
o Policy issues
 Efficient use of judicial resources
 Access to remedy for plaintiffs
 Not onerous for defendants
o Parties can design own system or use CPA
 Class Proceedings Act: History
o History
 Mass claims always been possible
 Inefficiencies identified
o The Class Proceedings Act passed in 2003, cif Apri1 1 2004.
 Process
o Identify potential common claims
o Obtain Court order to “certify” a class
 Based on commonality of claim
 Must be substantial similarity
o Notification to potential class members
 Membership is “opt-out”
 In Alberta, you have to opt-out – are automatically in
o Judicial management of the proceedings
o Representative case – decision binding for all members of class
o May be subclasses
o May be interjurisdictional
 Some Issues with Class Proceedings
o Once class is certified, often does not go to trial
 Few actual trials
 Usually settled
o Interjurisdictional issues
 Identification, notice and communication to parties
 Class actions in more than one jurisdiction
o Funding for plaintiffs – expensive to pursue
 Contingency fee arrangements
 Third party funding
 Defendant funding
o
o
Damages
 Generally
o restitutio in integrum – restore the whole
 Exceptions: death, dismemberment
To the condition that existed before the injury, not to perfection (before the
tort happened)
o Fairness to defendant – a limit
Main Heads of Damage – but not necessarily limited to these
o Realty and chattels
 replacement with real value at time of loss
 loss of use
 cost of repair
o Personal injury
 Special
 General
 Pecuniary
 Non-Pecuniary
o Reputation
 Damages at large
o Pure Economic
 Financial losses
Mitigation of Damages
o Plaintiff’s duty – limit damage
 Limit avoidable injury
 Seek medical help, turn off the water to the leaking pipe
 Minimize the injury if possible
 Eg. Bandage wound, follow doctors orders
o Damages: Once injury is established, must be reasonable about quantum
Contributory Negligence Act
o Joint and several liability of defendants
o Court can apportion fault amongst defendants and plaintiff
o Contributory fault/negligence causes defendants’ share to be reduced
o Calculate damage award first, then deduct the % of contributory fault
Tort-Feasors Act
o More than one tortfeasor
 Plaintiff can sue one for all the damages
 Can subsequently sue the others, but recovery cannot exceed
damages assessed in first action
 And no costs to plaintiff
 Tortfeasors can recover from each other
o Right to claim for loss of consortium if spouse is physically injured by tort
Compensatory Damages for Personal Injury
o Special damages
 Costs incurred before trial – loss of income, medical and other bills,
 Quantifiable
o General damages – These look forward
 Non fatal injuries
 Pecuniary - quantifiable
o Loss of income
o Cost of care
 Non-Pecuniary – non-quantifiable
o Pain and suffering
o Loss of enjoyment and expectation of life
o Damages for Non-Catastrophic Personal Injury
 Special and general damages
 “Tariff” system
 Goldsmith’s
o Damages for catastrophic injury
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The “trilogy” - Andrews v Grand &Toy, Teno v Arnold, Thorton v Prince
George are authority for
 1. Procedure for assessing General Damages for catastrophic injury
o Pecuniary and
o Non-Pecuniary
 2. Financial cap for Non-Pecuniary General Damages
o Young person with catastrophic injury = highest
 Pecuniary General Damages
 Future Care = (A x B x C%) + D
o [(Annual cost of care) x (Life expectancy )x (%discount for
contingencies)] + (Cost of special equipment)
 Loss of Earnings = E = (F x G x H%) - J
o Loss of earning capacity = [(years of earning capacity) x
(expected income ) x (% deduction for contingencies)] –
(cost of necessities)
 Adjustments - General Considerations
o Capitalization – inflation and interest income
o Tax allowance
Cost of Future Care = (A x B x C%) + D
 A = Annual cost of care
 Issue in Andrews: home care or institution?
 Principles
o Resitutio in integrum
o Includes caregivers, care, meds
o Includes necessities - food, clothes, shelter
o Look for reasonable options, in the circumstances, taking
into account
 Plaintiff’s preference
 Medically preferable
 Psychologically preferable
 Reasonable person
 Social cost – how much does insurer/taxpayer
pay?
o Reasonable = what a reasonable person with means would
pay for
 Not just basic subsistence
o Plaintiff does not have to accept less than what the harm is
worth
 Mitigation goes to reducing the injury, not the
damages
 B = Life Expectancy
 Test: What is plaintiff’s present life expectancy given current
situation?
o Based on evidence – question of fact
 C% = Contingencies
 Percentage deduction for contingencies
 Care contingencies - relate to health and matters of care, duration
of care (compare to employment contingencies)
 Life has ups and downs
 Contingencies could be positive or negative
 D = Cost of special equipment
 Use expert evidence to establish needs and cost
Loss of Earnings = E = (F x G x H%) - J
 E = earning capacity
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o
o
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o
o
o
Loss is not the loss of wages, it is loss of capacity
Assess as if an asset lost – earning capacity is an asset you can own
Based on plaintiff’s reasonable income expectations for working
life and retirement
 F = length of working life
 No deduction for shortened life expectancy
 Because it is an asset which he has lost – no deduction for “lost
years” – restore asset to what it was before
 G = expected income
 Matter of evidence
 H% = Contingencies
 Percentage deduction
 Contingencies relating to employment
o E.g. job injury, economic downturn
 Percentage amount varies by circumstances:
o Nature of plaintiff’s work
o Not all contingencies are adverse
o Some contingencies taken into account when assessing lost
capacity
o Precedent
 Should call evidence on this
 J = deduction for cost of necessities
 What plaintiff would have paid for necessities if no injury
 Cost of post injury necessities included in A

Prevents double dipping
Other considerations for Pecuniary General Damages
 Return on investments (interest) and inflation
 Call expert evidence
 Must consider both inflation and interest rates
 Tax impact
 No adjustments for income tax in this case
 Call experts to review
 Use self-extinguishing sum for cost of future care
 Not about building up estate for plaintiff’s heirs
 Annuity can be purchased
Non-Pecuniary General Damages
 Three possible approaches
 A “bot” or tariff system
 Personal – try to measure plaintiff’s loss of happiness
 Functional – “solace” approach - try to provide alternate means of
happiness
 Create opportunities, ease life
 Make up for damage to feelings, breach of trust
 Can include a component for “aggravated damages” – alleviation of
particular psychological harm or insult
 Impossible to quantify accurately
The “Cap”
 Cap for Non-Pecuniary General Damages = $100,000 in 1978
 Increased with inflation - 2013 – $340,000
 SCC has declined to revisit the concept
 Social cost is a dominant policy
 Applies only to personal physical injury claims
 Eg Did not apply in
o Hill v Church of Scientology – defamation
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o S.Y. v F.C.G. (BCCA) – sexual assault
o Young v Bella – a Hedley Byrne – type claim
Issues in Damages for Personal Injury
o Girl work or boy work? Assessment of loss of income capacity
 Take into account women earn less or have different job prospects?
minorities? – NO, doesn’t matter
o Volunteer caregivers – family and friends
 value of these services can be claimed
 Similarly – loss of opportunity to have spouse/AIP
o Cost of financial advisor recoverable
o Collateral Sources of support for victim
 May be private or public plan to assist
 May be legislative or contractual terms saying who is first/law
payor
 Should you
 Double recover? – plaintiff gets windfall
 Subrogate?
 Set – off? - gives defendant a windfall
 Subrogation
 There is an equitable right to subrogate based on equity
 Insurers are always subrogated by contract or statute
 Crown can recover against defendant for some costs
o E.g. Hospital bills – Crown’s Right of Recovery Act
o Periodic payments, annuities
 Structured settlement – amount can be invested to produce income stream
 Designed to terminate when plaintiff dies
 Formerly could only be done by consent of parties
 Court has jurisdiction to order - 2004 - Judicature Act s 19.1
o Damages for sexual battery – P.A.D. case (1989)
 Severe psychological damage
 Pecuniary Damages included
 Loss of past opportunity
 Loss of future opportunity
 Cost of therapy
 Non-Pecuniary General Damages
 Note use of precedent
 Note aggravated damage component
o “heinousness” considered
 $85,000,
o Dead Victims
 Fatal Accidents Act
 Special Damages until death
 Funeral expenses and grief counselling
 Fixed amount for grief to spouse, AIP and children
Punitive Damages
o Relatively rare, usually modest
o Outrageous or high handed behavior
 Malice, wantonness, insult, persistent, vindictive, capricious, remorseless,
mean
o Designed to punish - When aggravated and general are insufficient
o Whiten v Pilot Insurance
 $1,000,000 punitive damages upheld at SCC