TORTS CAN – FALL 2010 - GOOLD
Lecture 1:
Introduction to the Law of Torts
Tort= area of law that deals with wrongdoing. Criminal=public wrongs, tort=private
Tort= law concerned w/ rights & remedies associated with legal relationships between individuals.
- What is wrong with this definition of torts? Fails to take into account key aspects of tort law.
Three ways to define torts:
(1) Areas of law recognised by courts as torts (e.g. the subjects in the syllabus)
(2) Area of law concerned with private wrongs other than contracts.
(3) In terms of its aims and objectives – i.e. compensating plaintiffs for private wrongs
According to Osborne there are three main differences between criminal and tort:
(1)
Criminal=punishment, tort=compensation (DF must be worth suing! (Evaniuk v Manitoba)
(2)
Protection: criminal=society, tort=private individuals
(3)
Standard of proof: criminal=beyond a reasonable doubt, torts=balance of probabilities.
The differences between torts and contract:
(1) Source of primary obligations (tort=circumstances, contracts=imposed by parties themselves)
(2) The notion of privity – torts don’t need prior relationship/agreement.
(3) Purpose of compensation: tort=backward looking, contracts=forward looking
Lecture 2:
The Foundations and Objectives of Tort Law
Why do we have torts? What is it that the law of torts sets out to do?
Descriptive Account – aims tort pursues and what tort does in practice
(1)
Compensation: Most important function = compensate losses caused by unacceptable conduct.
Restore pf to prior position. Tailored to individual’s particular loss.
Reflective of a broader commitment to what is often referred to as corrective justice.
- Corrective justice views tort law as a system of first- and second-order duties:
(1)
Duties of the first order are duties not to injure - establish norms of conduct.
(2)
2nd order: duty of repair from breach of 1st-order duties. Principle of corrective
justice: people have duty to repair wrongful losses their conduct causes.
Note: Wrongdoer doesn’t need to be morally wrong. Loss=incident to violation of
victim's right not to be injured — correlative to first-order duty not to injure.
(2)
Punishment: Express society’s disapproval of conduct of wrongdoers who cause harm to others.
Osbourne: award of damages is not only to compensate pf, but also acts as sanction on df.
(3)
Deterrence: Influence conduct of citizens to promote certain social goals (e.g. public safety)
i)
Specific Deterrence – Aims at changing behaviour of df
ii)
General Deterrence – Aim to change behaviour of class of potential defendants,
to prevent future harms. (e.g. medical malpractice is a message to doctors)
iii)
Market Deterrence –Aims to change behaviour of producer of goods so as to
prevent future harms and to ensure that producers properly internalise costs.
(4)
Education- Aims to influence behaviour of society at large, not just actions of potential dfs.
Normative Account – what tort could pursue and what it should do
Main critique of corrective justice made by fans of distributive justice: torts should pay more attention to
principles of distributive justice, be less sympathetic to claims of those who already have a great deal.
In addition to the distributive justice critique, there are two alternative normative theories of torts:
(1) Retributive theory: Torts should impose liability on blameworthy dfs to penalize for moral fault.
(2) Economic theory: Torts should minimize costs of accidents. Liability should only be imposed
when it leads to rational economic behaviour and efficient allocation of resources.
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Lecture 3:
Basic Principles of Liability for Intentional Torts
Osbourne: key distinctions between intentional torts and tort of negligence:
(1) Intentional torts have long history (seen as static/unchanging), negligence is fairly modern.
(2) Intentional torts: precise, narrow, rigid rules. Negligence= general, discretionary principles.
(3) Intentional torts: relatively stable over time. Negligence: state of development last 80-100 years.
(4) Intentional torts: characterized by convention, orthodoxy, conservatism. Negligence: dynamic,
expansionary, reflective of current public attitudes and policies.
(1)
Intention, volition, and motive
Solomon: “In tort law, the term intent is used to refer to an actor’s desire to bring about the result or
consequences of his act, rather than his desire to do the physical act itself.”
Put another way, we say that A intended X when he wanted X to result from his actions.
Key: Intentional torts: central issue is usually whether df desired to bring about specific consequence
that gave rise to the tort. Df’s intent doesn’t need to be hostile or blameworthy.
Difference between voluntary act and intentional act. Voluntary act is means df exercised control, not
usually enough to establish liability, except in strict liability. Df also had to intend the consequences.
Good example: English case of Smith v. Stone (1647). Smith sued for trespass. Stone
argued he was not on land voluntarily, but had been chased against his will. Stone won.
Relationship between motive and intent. They are distinct, primary focus being on intention over motive.
Key: Motive=not usually element of tort action (Smith v Stone). Pf must prove intent but not motive.
(2)
The distinction between constructive and transferred intent
Constructive intent: intent includes not only desired consequences, but also unintended consequences
that are certain or substantially certain to result from it.
Why might we be troubled by the idea of constructive intent?
- Allows us to hold people responsible for things that they may not literally have intended
Justification? Protect pfs/public from those who don’t give thought to likely consequences,
Note: Problem is more difficult when talking of difference between objective/subjective intent.
Transferred intent: df intends to commit intentional tort against one party, but unintentionally commits a
tort against another (the plaintiff).
Note:
Also applies where df sets out to commit one intentional tort, ends up committing another.
Osbourne: transferred intent is justified on grounds that df’s conduct is culpable, pf is innocent.
- we should respond to wrongful intention & harm caused even if df doesn’t achieve his aim.
(3)
The meaning of capacity in tort
Generally assume all adults have capacity, however, some exceptions: children, mentally disabled.
Basic rule:
Df can’t be held liable if he did not understand the nature and quality of their act.
Note: Df can be liable even if they didn’t realise act in question was wrong or unlawful.
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Lecture 4:
Assault and Battery
Assault: Any direct and intentional act that causes a person to apprehend immediate harmful or
offensive bodily contact. (Holcombe v Whitaker)
ELEMENTS:
(1) The act complained of was direct and intentional; and
(2) Caused pf to apprehend immediate harmful or offensive bodily contact
(1) The act complained of was direct and intentional
Directness: Interference was immediate/direct result of df’s action.
Onus on defendant to prove he did not intend to cause pf to apprehend immediate harmful contact
because of df’s anti-social conduct and violation of pf’s right to personal autonomy.
However: What about where pf misunderstands df’s acts and intentions? E.g. fake hijacking
General view:
Once it has been held that the defendant has the apparent intent and apparent
capacity to carry out the threat (judged by the standards of a reasonable person), they can be liable.
(2)
Caused the plaintiff to apprehend immediate harmful or offensive bodily contact – 3 parts:
(i)
Caused the plaintiff to apprehend (use but-for – would they have apprehended w/o df?)
(ii)
Immediate (must prove pf expected attack to be capable of happening right after threat)
(iii)
Harmful or offensive bodily contact
Two important points:
(1) The apprehension must be reasonable; and
(2) Threats of future violence will not suffice
Canadian courts have yet to consider whether to adopt use R. v. Ireland (1997). Court held that:
 Psychiatric injury was capable of being bodily harm.
 Words alone (and silence in some circumstances) can constitute an assault.
 Assault requires fear of immediate application of force.
Battery: Direct, intentional, and physical interference with the person of another that is either
harmful or offensive to a reasonable person. (Bettel v Yim)
Four key elements:
(1) Physical interference
(2)Directness
(3) Intention
(4) Harm
(1) Physical interference - there has to be some form of contact or physical interaction with the plaintiff.
Plaintiff does not need to be aware of the battery when it takes place.
(2) Directness - same general meaning as in assault. (Traps/poison not direct, don’t count).
(3) Intention - same meaning as in assault, you only have to intend to bring about physical contact –
you don’t have to intend to cause harm or be socially offensive. Burden on df to show absence of intent.
(4) Harm – Doesn’t need to be physical. Harm to one’s sense of bodily integrity will be enough.
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Lecture 5:
Sexual Battery and the Role of Consent
Notes from: Feldthusen, B. (1993) “The Civil Action for Sexual Battery: Therapeutic Jurisprudence?” 25 Ottawa Law Review 203;
and Adjin-Tettey, E. (2006) “Protecting the Dignity and Autonomy of Women: Rethinking the Place of Constructive Consent in the
Tort of Sexual Battery” 39 University of British Columbia Law Review 3
No tort of sexual battery - Cases w/sexual conduct dealt w/according to traditional rules of battery.
SCC decision of Non-Marine Underwriters, Lloyd’s of London v. Scalera [2000]: pf in sexual battery
case must prove physical contact of sexual nature but isn’t required to prove lack of consent.
Note:
Scalera: by confirming that absence of consent is presumed, court made clear that df’s fault
arises from intentional violation of pf’s bodily security, and df bears onus of proving consent.
McLachlin: it would be wrong to have sexual battery tort requiring pf to prove lack of consent.
Purpose of battery is to protect personal autonomy so it’d be wrong to expect person
whose bodily integrity has been violated to have to prove contact was non-consensual.
Rejection of the formal equality of pfs and dfs that underlies most civil litigation.
Instead: recognized power imbalance present in sexual abuse and its gendered
nature, inherent wrong to victims of sexual abuse, and generally persons who have
suffered intentional invasions of their personal autonomy and dignity.
Note that court can refer to constructive consent when faced with absence of clear evidence.
- Objectively determined based on whether the complainant's conduct in the particular
circumstances lent itself to a reasonable inference of consent to sexual contact.
Note: court will consider the pf’s demeanor as well as the surrounding circumstances
Now:
Victory for feminists: by rejecting a subjective assessment of belief, court also rejected idea that a
honest, mistaken (but unreasonable) belief could be a defence.
However:
As Scalera didn't go into great detail on the question of constructive consent, there are a
number of problems with this approach:
(1) Unclear if df needs to adduce evidence about reasonable efforts to get consent
(2) Objective approach=pf’s perception irrelevant if df shows reasonable basis for belief
(3) Constructive consent could lead to courts blaming victims for inducing dfs into
believing consent or failing to resist when reasonable person would have protested.
There are a number of potential advantages of suing for sexual battery in tort:
(1) Pf controls case, chooses which facts are used, and what expert evidence is presented; and
(2) Taking a civil approach may have therapeutic benefits for the plaintiff, and promote healing.
There are also a number of possible disadvantages:
(1) Cost, delay, stress of civil litigation may undermine the therapeutic benefits.
(2) When the action is defended, there is a real risk of secondary victimization (cross-exam).
(3) Civil litigation is expensive, and the plaintiff may not receive full, or even partial, damages.
Note:
One solution: new tort of sexual battery which mirrors the approach taken in the criminal law –
i.e. does not allow for the defence of implied consent (as per Ewanchuk [1999] 1 S.C.R. 330).
Ewanchuk limits situations where accused can claim honest/mistaken belief in consent.
Rule: Mistaken belief only used to negate mens rea for sexual assault where accused
shows they believed complainant communicated consent to sexual contact.
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Lecture 6:
False Imprisonment and Malicious Prosecution
False imprisonment is the direct and intentional imprisonment of another person. (Bird v Jones)
In the case of false imprisonment, the plaintiff must prove intent.
Main Points: (1) The tort is actionable without proof of damage; and
(2) There must be a complete restriction on the plaintiff’s physical liberty.
Imprison in room unnecessary. Can be barrier, implicit/explicit threat of force, assertion of legal authority.
Imprisonment can be psychological. If person goes freely and voluntarily, doesn’t count.
Note:
Issue of if imprisonment was lawful (or false) is treated as a defence (not an element).
No Canadian authority on whether pf must be conscious of imprisonment. Reasonable to assume
(English case law) that awareness is not necessary. Gives remedy to infants and mentally disabled.
Malicious Prosecution: Elements that pf must prove (Nelles v Ontario):
(1) Defendant initiated the proceedings against the plaintiff
(2) The proceedings terminated in the plaintiff’s favour
(3) There was no reasonable and probable cause for the proceedings
(4) There was malice on the part of the defendant
(5) The plaintiff sustained damage. (Miazga v Kvello Estate)
According to Osbourne, two interests are in tension in the tort of malicious prosecution:
(1) Freedom from groundless criminal prosecution, damage to rep, loss of liberty, financial loss
(2) Public interest in the effective and uninhibited prosecution of criminal wrongdoing.
(1)
Instigation of the Proceedings by the Defendant (or was actively instrumental)
Note: Giving info to cops insufficient unless falsely to prompt wrongful prosecution.
(2)
Termination of the Proceedings in the Plaintiff’s Favour (if not set aside, prevents action)
(3)
Lack of Reasonable and Probable Cause
 Subjective element = an actual belief in guilt (df had to not have honest belief in guilt)
 Objective element = rational basis for belief (reasonable person wouldn’t have believed)
BUT: In Miazga v. Kvello Estate, court found "reasonable and probable grounds" concerned with
Crown's professional, not personal opinion. Court should only consider facts available to
prosecutor at time decision was made. Rule: No need to consider subjective belief
(4)
Malice (includes the notion of spite, ill will, and vengeance)
But:
Extends to any improper purpose (not to bring offender to justice, enforce law).
Held: Miazga v. Kvello: Malicious intent requires an improper purpose inconsistent with
office of Crown attorney. Honest but mistaken belief that there were reasonable
and probable grounds does not support a finding of malicious intent.
Also: While lack of subjective belief of reasonable/probable grounds is relevant
in determining malice, doesn’t automatically mean malice. Inexperience,
incompetence, negligence, are not the same as malicious intent.
(5)
Damage:
Rule: Malicious prosecution is not actionable without proof of actual damage
Examples of actionable damage: Loss of reputation, loss of liberty, financial loss
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Lecture 7:
Intentional Infliction of Nervous Shock
Intentional Infliction of Nervous Shock. Elements pf must prove (Wilkinson v Downton):
(1) Outrageous or extreme conduct coupled with actual or constructive intent to cause a severe impact on
the plaintiff’s psychological well-being; and
(2) Nervous shock, defined as recognizable psychiatric illness or physical harm.
(1)
Outrageous or extreme conduct
Question of fact, to be determined by court by reasonableness.
Court is more likely to find that conduct is outrageous if pf was vulnerable (and df knew that).
Does not need to be an isolated incident – can be a course of conduct (Clark v. R.)
(2)
Intent (or constructive intent) to cause
Conduct must have been intended to have serious consequences for P’s psychological health.
Note: Intent often inferred from seriousness of D’s conduct or where mental distress to
P was reasonably foreseeable or from extent/duration of harassment (Clark).
(3)
Nervous shock
Nervous shock: defined in this context as a recognizable psychiatric illness or physical harm.
Note: Anguish, worry, and emotional distress are usually insufficient (Radovskis v. Tomm)
However: Rahemtulla: Can have IINS even if no medical evidence of mental illness, provided
symptoms of depression are present and behaviour of D is “outrageous”
Lecture 8:
Stalking, Harassment, and Discrimination
Discrimination
Should there be a freestanding tort of discrimination? Some courts have been attracted to the idea. It
could complement existing equality protections established by federal/provincial human rights legislation.
Note: Key challenge: balance equality, right to be free from discrimination, with other legal interests.
Osbourne:
Argues existing legislation could serve as guide for balancing process
However: For now, appears SCC unwilling to recognise tort of discrimination. (Bhadauria):
Key point:
Trial court said no cause of action. Ontario C.A. held pf had common law right not to be
discriminated, independent of statutory obligations and remedies. Wilson J pointed out
tort law isn’t static and mere fact a claim is novel should not bar pf to get a remedy. If
legislation recognizes these rights, no reason why common law shouldn’t as well.
However:
Laskin in SCC overturned CA, on basis that Ontario Human Rights Code already
provided a comprehensive and exhaustive vehicle for protection against discrimination,
so there was no need to recognize and develop a complementary tort remedy.
Solomon agrees with Wilson – statutes can and should affect the development of the common law.
Note:
Important: Seneca decision only excludes tort actions founded on breach of human rights code.
Stalking
Stalking is where a person knowingly (i.e. intentionally) or recklessly harasses another person in a
manner that leads that other person to fear for her own safety – referred to as criminal harassment in
the Criminal Code and prohibited by under section 264(1).
Note: There is no independent common law tort of stalking.
Rule: Although victim of stalking could possibly sue in tort for assault, battery, IINS, trespass to
land, nuisance, or defamation, it can be argued that piecemeal approach does not really
address real nature of the wrong - putting attention on various discrete acts may have
result of making them appear relatively insignificant when examined in isolation.
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Harassment
Main distinction between stalking and harassment: if conduct makes person fear for her safety, it is
stalking. If conduct is seriously annoying, distressing, pestering, and vexatious, it is typically harassment.
Key point here is that the activities are disturbing and upsetting, but not necessarily frightening
Now:
Problem: this sort of conduct isn’t really covered by traditional intentional torts (maybe IINS).
Key point: Courts are only willing to consider question of harassment where pf is clear target of
harassment, suffers severe mental distress. Even then, the approach taken varies between:
 Basing liability on a previously recognized tort
 Providing a remedy through consumer protection legislation
 Recognizing a new tort of harassment.
Osbourne: current situation produces uncertainty and confusion, as in Chapman v. 3M Canada Inc.
Lecture 10:
Intentional Interference with Land
Trespass to land: direct, intentional/negligent, physical interference with land in possession of pf.
Elements (Turner v Thorne):
(1) The intrusion onto the land must be direct
(2) The interference must be intentional or negligent
(3) The interference must be physical
Note also that trespass to land is actionable without proof of damage.
Osbourne: originally to protect from violent intrusion, reduce violence, protect enjoyment of property.
Now: power to control entry essential so possessor can use the land in whatever way they want.
3 ways:
(i)
(ii)
(iii)
Where a person enters land in possession of the plaintiff without permission.
Where a person places objects on the plaintiff’s property.
Possessor of land revokes a visitor’s permission or licence to be on the property.
Tort available to anyone in legal possession (not owner of leased property, person w/license to enter).
Exception: trespass by relation. Sue if not in possession, if no one else was + you then take possession.
(1)
The intrusion onto the land must be direct direct result of df’s actions – indirect is nuisance)
(2)
The interference must be intentional or negligent (burden on df to prove lack of these)
Not necessary to prove df intended to harm– only that they had intention to intrude or interfere.
Mistake is no defence. (Turner v. Thorne, (1960) (Ont. HC)).
(3)
The interference must be physical (e.g. smoke would be dealt with in nuisance instead)
Defences:
(1)
Consent: liability where possessor has consented to another entering his land (i.e. gave license)
(2)
Necessity: If trespass is necessary to prevent harm to df, public, possessor of land, or 3rd party.
Also: Wrongful acts must be prompted by imminent peril & must be necessary in light
of advantage to be gained and absence of other options.
And: Df must be able to show that the danger significantly outweighed damage or loss
caused to the innocent plaintiff by the trespass.
(3)
Legal Authority: Entry onto land authorized by statute – e.g., search warrant (S. 488 of CC).
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Lecture 11:
Intentional Interference with Chattels
(1) Trespass to Chattels (Intel Corp v Hamidi)
Where df directly & intentionally (or negligently) interferes with chattel in possession of pf.
Protects possession rather than ownership – even someone wrongly in possession can sue.
Key points about the tort:
(1)
Any direct interference with a chattel is actionable (damage, destruction, taking, or movement)
(2)
Once pf has established interference with possession, it is for df to prove absence of intent.
(3)
Knowledge that the interference is wrongful is not required. Mistake is no defence.
(4)
Not clear if trespass is actionable per se (would protect against touching/moving/temporary use).
(5)
Remedy is damages. Reduction in its market value or the cost of repairs (where that is less).
(2)
Detinue (Penfolds Wines Pty Ltd v Elliott)
Available where pf – who has right to immediate possession – has asked df to return it.
Key Rules:
(1) Pf must first ask for item back (and df must refuse) before action can be brought before the court.
(2) Remedies: order from court requiring df to return it or award of damages for its value and detention.
Note: Fact that court may order return of chattel is what distinguishes it from trespass and conversion.
Pf should sue in detinue rather than conversion/trespass when good is unique or not easily replaced.
Note: An action in detinue will fail if the defendant returns the chattel before judgment is given.
Also: Damages are assessed at time of judgment, not date of refusal to return (unlike conversion).
(3)
Conversion (Fouldes v Willoughby):
Defendant intentionally interferes with chattel in way as to seriously harm pf’s rights to it.
Key test is whether the interference was sufficiently serious to warrant a forced sale to df.
Key Rules
(1)
Restricted to intentional interferences with possession - not available for negligent interferences.
(2)
Must so seriously interfere with pf’s rights to chattel that df should be held liable for its full value.
In effect:
Conversion allows for forced judicial sale of chattel to df.
(3)
Mistake is no defence. (Innocent seller and purchaser of stolen goods can be liable.)
Packing/storing/carrying not conversion if person responsible unaware of lack of title.
(4)
Damages are assessed at time of conversion or when pf became aware of the conversion
(5)
Plaintiff must attempt to mitigate his loss by replacing the chattel as soon as is practical.
(6)
When considering if temporary taking/movement/use is conversion, court looks at surrounding
circumstances, including duration, kind of interference, purpose, and amount of damage inflicted.
(4)
Action on the case to protect a reversionary interest (Penfolds or Mears v London...)
Chattel has been destroyed or permanently damaged by intentional or negligent act of df.
Pf doesn’t have possession or immediate right to possession, but wants to protect their goods.
(1)
Ways of recovering a chattel other than through success in a detinue case:
Replevin:
Order of return of chattel prior to resolution of tort if pf has right to immediate possession.
Recaption:
Person with strongest right to possession can use reasonable means to recover chattel.
(2)
Defences from trespass to land apply to trespass to chattels
(3)
Need to be aware of the remedy of distress damage feasant
Rule:
An occupier of land can seize a chattel that is on his land if it has caused or is
causing damage. Basic idea is that the chattel can be held until compensation is
paid. Note that the occupier of land is not allowed to sell the chattel – only hold it.
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Lecture 12:
Intentional Interference with Economic Interests
If possible, stay out of market - contrary to broader proposition that torts is about corrective justice.
Deceit - four elements (Derry v Peek):
(1) The defendant must have made a false statement;
(2) The defendant must have known statement was false (or [objectively] reckless to the truth);
(3) Df must have made statement with intention of misleading pf (or substantially certain it would deceive);
(4) The plaintiff must have suffered a loss as a result of reasonably relying on the statement.
(1)
(2)
(3)
(4)


The defendant must have made a false statement
Usually spoken/written, liability can be imposed for misleading action (Abel v. McDonald)
Silence is not actionable, but there are cases where law imposes obligation to speak up.
Defendant must have known statement was false (or was [objectively] reckless to truth)
Note: Based on Derry, means pf must show df acted dishonestly to succeed in the action.
Proving someone was (objectively) reckless as to truth of a statement can satisfy
this requirement. (Derry) If you are reckless.careless, you couldn’t believe it was true.
Also: Mistaken belief can be defence (Derry suggests doesn’t have to be reasonable mistake).
Must make statement w/intention to mislead pf (or substantially certain it would deceive)
Note: Derry: doesn’t have to be intention to cheat.injure person to whom statement was made.
However:
Not enough if df merely suspects person may rely on it. Pf must also
prove that df intended for them to act on or rely on their false statement.
Also: If event is reasonably foreseeable result, court will assume df intended consequence.
The plaintiff must have suffered a loss as a result of reasonably relying on the statement
Court will ask whether a reasonable person would have relied on the statement in question.
 Reasonable people recognise salespeople exaggerate, future predictions are often false,
opinions are subjective and open to interpretation
If df can show pf would have acted in same way without the fraudulent representation, action in
deceit will be dismissed. Rule is that attempt to deceive must be successful.
No requirement that representation is sole statement on which pf relied –must be a contribution
Passing off (Ciba-Geigy Canada Ltd. v. Apotex Inc)
Protects unregistered trademarks, customers from being deceived, goodwill.
Elements of the tort:
Reckitt & Colman Products Ltd v Borden Inc [1990] (cited in Ciba-Geigy Canada Ltd.), pf must prove:
(1) Good-will or reputation attached to pf’s goods/services in mind of purchasing public by association
w/identifying "get-up" (brand name, trade description, label/package feature, etc);
(2) Deception of public due to misrepresentation by df (intentional or not) leading or likely to lead
public to believe that goods/services offered by him are goods or services of the plaintiff; and
(3) Pf has suffered or is likely to suffer damage by reason of erroneous belief brought by df's
misrepresentation that source of df’s goods or services is same as source pf’s goods.
(1)
(2)
Goodwill - defined as the power to attract customers and the power to retain loyal customers. Is
held to exist where goods or services can be identified as belonging to the plaintiff.
Deception of the public due to a misrepresentation - does not need to be intentional.
Note: Court asks: Did df present his goods as being associated with or from the plaintiff?
However:
Courts held that deception will not apply where only person likely to have
been misled is a “moron in a hurry”. (See Morning Star Cooperative
Society v Express Newspapers Limited [1979] and Newsweek Inc. v.
British Broadcasting Corp. [1979] R.P.C. 441 as per Lord Denning)
Examples of passing off:
 Misrep. that df’s goods are pf’s goods, origin of goods, df’s goods are same standard as pf’s
goods, df has business relationship with pf, pf’s goods or services are goods or services of df.
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Lecture 15:
(1)
Intentional Torts: Defences (1)
Consent
(1) Freestanding defence, not element of a tort – for df to plead/prove.
(2) Typically framed in terms of tort at hand. Df must show pf consented to the specific act. .
Note: Generally assumed they consented to risks normally associated with an act.
(3) Once established, consent is a complete defence.
(4) Explicit: writing, verbal, gesture. Implicitly through participation, demeanour, or behaviour.
Implied consent
Basic rule:
Participation, demeanour, or behaviour can provide basis for claim of implied consent.
Failure to object to an act, failure to withdraw from a situation, or passivity also.
Now: No clear rule - courts have generally held it is necessary to look at all facts before deciding.
Note: Wright v. McLean (1956) If no malice, anger, or mutual ill will, court will assume those
participating in sport or game consent to ordinary risks.
Now: Question in Solomon: do spectators implicitly consent to injuries gotten while watching sports?
Rule: Depends if pf was aware of risks and protections customarily provided. Key case: Elliott [1934]
Exceeding consent
Situations where consent is exceeded - action at issue allegedly goes beyond what was agreed to.
E.g. Sports: does participation amount to implied consent to conduct outside the ordinary rules?
General rule (Agar): someone who plays a sport is assumed consent to ordinary risk of
injury. Because conduct is often instinctive and unpremeditated, it should not be judged
by standards of “polite social intercourse.” However: Must be a limit on immunity from
liability, must look at facts in each case to determine if conduct was beyond normal.
Competency to consent
Rule: To be valid, person giving consent must be capable of understanding nature/consequence of act.
Key:
If can’t understand due to age, physical/mental illness, intoxication, etc., consent is invalid.
Now: Consent can be invalidated as a result of D’s actions. E.g. fraud, mistake, duress, public policy.
(1)
Fraud (Deceit): Two main requirements to see if D’s fraud “cancels out” consent from the P:
(a)
Df must have been aware of (or responsible for) the plaintiff’s misapprehension; and
(b)
The fraud must be directly related to the nature of the act, not a “collateral matter”.
R. v. Williams [1923] Deceived as to nature of act – didn’t know it was sexual.
See also:
Hegarty v. Shine (1878) (Ireland CA):
Fraud as to harmful
consequences of D’s act do not vitiate consent. [STD transmission]
However:
Rejected by SCC in R v Cuerrier (1998): Fraud vitiates consent
if df concealed “significant risk of serious bodily injury.”
(2)
Mistake: Consent only vitiated by mistaken belief if df is responsible for creating the belief.
Note: Distinguish b/w P consent due to mistaken belief and D mistakenly believes P consented.
Toews v Weisner (2001)(BCSC): Nurse injected kid, mistaken belief parents consented - liable.
(3)
Duress: Consent procured by duress (use of force) is not valid (Latter v. Braddell (1880))
(4)
Public Policy
General Rule: Consent can be vitiated in some cases for reasons of public policy. E.g., person
can’t consent to being killed or seriously injured (Lane v. Holloway; R. v.
Jobidon). Also, a person can’t consent to someone exploiting a position of
authority (as in the case of sex with parents, doctors, teachers, etc.)
According to the court in Nelitz v. Dyck (2001) (Ont. CA), there is a two-part test to determine
where a power imbalance vitiates consent. Must provide:
 Proof of inequality, usually in context of a “power dependency” relationship;
 Proof of exploitation – consider type of relationship in light of community standards.
10
Lecture 16:
Intentional Torts: Defences (2)
Self-Defence
To invoke the defence of self-defence, defendant must establish on a balance of probabilities that:
(1)
He or she honestly and reasonably believed that as assault was imminent; and
(2)
The amount of force that he used to avert the risk was reasonable in the circumstances.
Note: Self-defence is a complete defence, on grounds that it is one of justification, not excuse.
To determine if force used was reasonable, courts look at nature of force used, and all of the surrounding
circumstances. Basic idea is that the force should be proportionate to the threat or likely harm.
Note:
In Wackett, court was clear that defendant is not required to weigh the niceties of the blow.
However:
Unclear if df must consider injuries likely to occur from force. Brown v. Wilson
(1975) suggests that if force is reasonable, df not responsible for consequences.
Also: Test has objective and subjective dimensions. Look at situation from D’s perspective,
judge if reasonable person would have used same level of force. (Beckford v. R [1987]).
Defence of another / third parties
Same as self defence, requirement force be reasonable. Gambriell v. Caparelli (1974) (Ont.Co.Ct.)
R v. Lavallee [1990]: Expert evidence on battered wife syndrome is admissible. Wilson J: evidence can
be adduced where jury may be inclined to refer to myths/ stereotypes. Also argued its appropriate for jury
to consider womans experience/perspective when deciding reasonable person's standard for selfdefence.
Defence of discipline
Basic Rule:
Parents and guardians can use force when dealing with children (s. 43 of CC):
“Every schoolteacher, parent or person standing in the place of a parent is justified in
using force by way of correction toward a pupil or child, as the case may be, who is under
his care, if the force does not exceed what is reasonable under the circumstances.”
Note:
Now:
According to Solomon (p213), Canadian courts have tended to assume
that Section 43 governs both the civil and criminal defences of discipline.
According to decision in Dupperon, to establish the defence, the defendant needs to prove:
(1) That the force was used “by way of correction” – i.e. for benefit of education of child; and
(2) That the forced used was reasonable in the circumstances.
Note: Has been held that S. 43 should be interpreted in light of prevailing social standards and
customs, rather than according to those of the defendant (R. v. Baptiste (1980))
Most recent case: Canadian Foundation for Children, Youth and the Law [2004], whether S.43 is
unconstitutional by violating child’s right to security or equality, or constitutes cruel/unusual punishment.
The majority held that Section 43 was constitutional. In particular, the court held that:
(1) To be within S.43, use of force must be sober, reasoned, and address actual behaviour. It
must be intended to restrain, control, or express symbolic disapproval. Child must also
have capacity to understand and benefit from correction. As a consequence, force
against children under 2 (or those w/particular disabilities) cannot be justified under S. 43.
(2) In order to be “reasonable under circumstances”, the force must be transitory and trifling,
must not harm or degrade child, and must not be based on the gravity of the wrongdoing.
Note:
Based on this reasoning, court also concluded that force should not be used on
teenagers, as there is danger it will induce aggressive or antisocial behaviour.
(3) Force may not be applied using objects (such as rulers or belts) or applied to the head.
(4) Corporal punishment is not reasonable in schools, although teachers may use force to
remove children from classrooms or to ensure that they follow instructions.
11
Lecture 17:
Defence of Legal Authority
Can be raised for actions in battery, trespass to chattels or land, conversion, and other intentional torts.
Note: Established by a range of statutes, used to protect officials (cops) for actions in torts.
If peace officer violates Charter right – e.g. S.8 (right to be secure against unreasonable search and
seizure) or S.9 (not to be arbitrarily detained/imprisoned) – it is for govt to justify that violation under S.1.
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.”
Note: If govt can’t satisfy S.1, judge can grant remedy under s.24(1) or exclude evidence under s.24(2).
Section 24:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by
this Charter, the evidence shall be excluded if it is established that, having regard to
all the circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute.
Section 1:
Some of the rights and obligations in the arrest process:
Key case:
Koechlin v. Waugh and Hamilton (1957)
Some rules that emerge from this case:
(1) Police do not have general right to ask people to ID themselves. They must
rely on a recognized power, such as that inferred from S.450 of CC (need to
have reasonable and probable grounds to suspect individual questioned).
(2) Police need to tell individual why they’re being arrested.
(3) Failure to give reasons for arrest can give rise to false imprisonment claim.
(4) If the individual is not informed, they are entitled to resist the unlawful arrest.
Note that amount of force that can be used to affect an arrest is stipulated in S.25(1) of Criminal Code.
Section 25(1):
Everyone who is required or authorized by law to do anything in the
administration or enforcement of the law:
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or
authorized to do and in using as much force as is necessary for that purpose.
Important to note the qualifications provided in subsections (3) and (4):
25(3) Subject to subsection (4), a person is not justified for the purposes of subsection (1) in using force
that is intended or is likely to cause death or grievous bodily harm unless he believes on
reasonable grounds that it is necessary for the purpose of preserving himself or anyone under his
protection from death or grievous bodily harm.
25(4) A peace officer who is proceeding lawfully to arrest, with or without warrant, any person for an
offence for which that person may be arrested without warrant, and every one lawfully assisting
the peace officer, is justified, if the person to be arrested takes flight to avoid arrest, in using as
much force as is necessary to prevent the escape by flight, unless the escape can be prevented
by reasonable means in a less violent manner.
Note: Courts have held that police may be entitled to use deadly force to prevent escape of a fleeing
suspect (Solomon, p251-252)
12
Lecture 18 – Remedies in Intentional Torts (1)
Judicial remedies
(1) Damages
Available for most torts. Keeping w/corrective justice, damages usually aim to return claimant to
position they would have been in had tort not occurred. Damages usually divided into two types:
(i)
General (non-pecuniary) damages: Damages for non-monetary harms –compensate pf
for pain, suffering and loss of amenity, etc.
(ii)
Special (pecuniary) damages: For monetary losses –compensate pf for quantifiable
losses. E.g. compensate for lost earnings, cost of repairing/replacing damaged property.
Now: Can divide the class of special damages into five main headings:
(a) Nominal damages
(b) Compensatory damages
(c) Aggravated
(d) Punitive Damages
(e) Disgorgement (restitutionary) damages (i.e. pf gets df’s profits)
(2) Injunction
An injunction is a court order that requires a person to do something. There are two types:
(i)
Prohibitive injunctions – requires a person to stop doing a particular act.
(ii)
Mandatory injunction – requires person to do a certain act - like specific performance.
Note: Failure to comply with an injunction places a person in contempt of court.
Key Point:
Injunctions are an equitable remedy so they are subject to the principles of equity. In
practice, this means two things:
(1) Discretionary –court not obliged to give injunctions, even if liability is established;
(2) The clean hands principle applies - i.e. the court will not assist a claimant who is
himself in the wrong or acting for improper motives; and
(3) An injunction will not normally be granted where damages would be adequate.
(3) Declaration
Court issues formal statement setting out person’s rights or legal status. Usually only granted in
very specific circumstances – e.g., dispute over paternity in a family law case, or a question of
whether a particular event is covered by insurance policy. Don’t usually see this remedy in torts.
(4) Order of Specific Restitution
Court makes an award that aims at preventing someone from profiting from a wrong. Based on
idea of unjust enrichment, a restitutionary award may be granted where df has profited as a result
of the tort, and the profit may exceed the amount that would have been paid in damages.
Extra-judicial remedies
(1) Recapture of chattels
Basic rule: pf is allowed to use reasonable force to regain or recapture personal property when df
tortuously took the chattel from pf’s possession, or obtained it as a result of duress or fraud.
(2) Re-entry onto land
Basic rule is that a plaintiff is allowed to use reasonable force to re-enter land where the
defendant has - by way of trespass – entered and taken possession of the land.
(3) Abatement of nuisance
Basic rule is that a plaintiff may use reasonable force to prevent or stop a nuisance. Note that the
privilege must be exercised within a reasonable time, and that the plaintiff should give notice to
the defendant. Plaintiff is also obliged to avoid any unreasonable or unnecessary damages.
13
Lecture 19 – Remedies in Tort (2)
(1)
Aggravated Damages: compensate for additional injuries to dignity and similar feelings.
(T.W.N.A. v Clark, 2003 BCCA 670: aggravated damages are to compensate for “intangible
emotional injury” where there has been aggravation of an injury by df’s high handed conduct.
Note: Aggravated damages augment award of compensatory damages for non-pecuniary loss.
Now:
In order for an award of aggravated damages to be made, the court has to be satisfied that:
(1) The plaintiff suffered some damage to his or her feelings as a result of the tort; and
(2) Df’s conduct not merely tortious, but also highly offensive or repugnant (if 2 assume 1)
Vorvis v. Insurance Corp. of British Columbia [1989]. Follows earlier decision of Rookes v. Barnard
[1964] HL: aggravated damages are compensatory in nature, may only be awarded for that purpose.
McIntyre, J.: “Aggravated damages… take account of intangible injuries … augment damages
assessed under general rule.”
Key question: Should award of aggravated damages be based on subjective assessment of pf’s loss?
Probably. Consider fact that aim is to compensate for additional harm caused to pf’s feelings.
However:
Rookes (endorsed in Vorvis): must look at damage to pf’s “proper feelings of
dignity or pride.” Suggests hurt feelings must be proper or reasonable.
(2)
Punitive Damages
Vorvis held that punitive damages are “punitive in nature and may only be employed in circumstances
where the conduct giving the cause for complaint is of such nature that it merits punishment.”
Point: Cdn courts tend to limit punitive to situations where df’s conduct warrants punishment.
However:
Can be argued that courts are increasingly using them for deterrence.
Note: As a general rule, punitive damages are only awarded very rarely, and only if the award of
compensatory and aggravated damages is insufficient to punish the defendant.
Consider the decision in B.(P.) v. B.(W.) (1992), where the Court awarded damages as follows:
(1) Non-pecuniary damages (100k) - victimization/shame/harm to self-esteem/self-worth.
(2) Aggravated (75k) for violation, loss of trust – essentially for gross breach of trust.
(3) Punitive damages ($50,000) for the unsanctioned rape.
 Aggravation can be part of non-pecuniary general damages or considered separately; and
 Must not create double jeopardy - avoid punishing df for act received criminal sanction for.
Also look at general principles laid down in Whiten v. Pilot Insurance Co. [2002]. Binnie, J.
makes a number of points about operation of punitive damages in contract and torts:
(i)
Unlike UK, punitive damages in Canada not limited to certain case/scenario
types. Can be given to punish, deter or denounce df (& others) or strip df of profit.
(ii)
Doesn’t believe that characterising defendant’s misconduct as malicious, vicious,
or high-handed is helpful. However, it is clear that only very serious misconduct
warrants punishment or deterrence – and therefore punitive damages.
(iii)
Punitive damages are most likely to be awarded in intentional torts, but can also
be used in nuisance, negligence, and other tort actions.
(iv)
The fact that the defendant may also have received a criminal sanction does not
preclude an award of punitive damages.
(v)
Punitive damages should be awarded with restraint, and only if an award of
compensatory and aggravated damages is insufficient to punish the defendant.
(vi)
No cap on punitive damages, but the award must be based on the underlying
goal and should be the lowest sum necessary to accomplish that end.
(vii)
Juries should be informed of the function of punitive damages, as well as the
factors that determine the award and final amount of the damages.
(viii)
Appellate courts can intervene if an award of punitive damages “exceeds the
outer bounds of a rational and measured response to the facts of the case.”
14
Lecture 20 – Defamation
Defamation: Pf must prove on balance of probabilities impugned statements were (Sims v Stretch):
(1) Defamatory;
(2) Made reference to the plaintiff; and
(3) Were published or disseminated
Based on 2 previously separate torts: slander and libel. Slander confined to words (spoken defamation),
whereas libel covers “concrete forms of expression” (such as written defamation, films, and pictures).
Note: Slander only actionable on proof of damage (some exceptions), libel generally actionable per se.
Note:
SCC in Hill v. Church of Scientology [1995]: once pf proves df’s statements were defamatory,
they are presumed to be false and burden of proof shifts to df to prove otherwise. The tort does
not require any proof of intention (in effect strict liability).
Also: Tort of defamation is unusual in that it continues to make use of civil juries.
(1) Helps to guard against the prospect of indirect censorship by the state; and
(2) Often demand reference to community standards and whether df’s remarks would
have damaged the plaintiff’s reputation “in the eyes of a reasonable person.”
(1)
Defamatory material: 3 ways pf can establish that material in question is defamatory:
(i)
Allege that the statements were defamatory in plain and ordinary sense
(ii)
Reference to circumstances known to those receiving the publication
which would give it defamatory meaning (“legal/true innuendo”)
(iii)
Establish ordinary person would infer bad meaning from statement,
without special knowledge (“false innuendo”) (Sim v. Stretch [1936].)
Sim v. Stretch [1936]: test for determining if material is defamatory or not: “[W]ould the
words tend to lower the plaintiff in the estimation of right thinking [i.e. wide] members of society?”
Note: Whether the material is capable of being defamatory is a question of law. As a result:
(i)
Judge decides if there is evidence of tort (is material defamatory?); and then
(ii)
Jury decides whether the material is in fact defamatory in the particular case.
However:
Criticism: “right thinking” is impractical in a modern pluralistic society.
Also: Osbourne argues Cdn courts have replaced right thinking person with ordinary
person test. Only authority: ON C.A. in Color Your World Corp. (1998)).



(2)
Courts look at both context and mode of publication. (Slim v. Daily Telegraph Ltd. [1968]).
Radio/tv, consider gesture, expression, tone (Vogel v Canadian Broadcasting Corp [1982])
Non-intention to be defamatory irrelevant, as is good motive (Dennis v Southam Co (1954)).
Reference to pf: Pf must show on probabilities, defamatory statement made reference to pf.
If statement doesn’t say pf’s name, court asks 2 questions (Knuppfer [1944]):
(i)
Can statement be regarded as capable of referring to pf? (Q. of law)
(ii)
Would reasonable person (who knows pf) conclude it refers to him? (Q. of fact)
(3)
Publication: Defamatory remarks not actionable unless communicated to someone other than pf.
Pf must show, on balance of probabilities, statement was communicated to 3rd party who understood it.
Important:
Every repetition is a new publication and actionable (Lambert v. Thomson [1937]).
Also: Any party who played a part in communication may also be held liable. The person who
made original statement will only be liable for these repetitions if it can be shown they:
(i)
Gave express or implied authority for the remarks to be republished; or
(ii)
Made remarks to someone with moral/legal/social obligation to republish them; or
(iii)
Republication is a natural and probable consequence of the original publication.
 No publication if you make derogatory remark about spouse (Wennhak v. Morgan (1888)).
 No publication if statement is overheard entirely by accident (McNichol v. Grandy [1931]).
15
Defences to Defamation
In each case, burden of proof is on defendant to establish the defence (on a balance of probabilities).
(1)
Justification: Df has justification (complete defence) if they prove statements were true.
Note: Df must show whole of matter is substantially true (Meier v. Klotz (1928)).
Also: Doesn’t matter if df acted maliciously or there was no public interest at
stake: intention not relevant to operation of justification
(2)
Absolute privilege: A complete defence if df shows statements are in one of these categories:
(i)
Statement by an executive officer relating to affairs of the state;
(ii)
Statement made during parliamentary proceedings; or
(iii)
Statement made in the course of a judicial or quasi-judicial proceeding.
(3)
Qualified privilege: The defendant will have a defence of qualified privilege (complete defence)
if they can show that they had a moral, social or legal duty to make the statement.
Solomon (p954) says there are no clear rules as to when qualified privilege
applies. You can ID number of situations in which it is likely to be available:
(i)
Statements made by pf to protect own interests (ie defend reputation);
(ii)
Statements made to protect the interests of another person;
(iii)
Statement in public interest. Key here: existence of some duty to publish
the info. In addition, recipient must have duty to receive the information.
There is an additional form of qualified privilege: “fair and accurate reporting.” Solomon (955),
applies to proceedings open to public, available at common law if reporting is fair and accurate.
Key Case:
(4)
Hill v. Church of Scientology [1995]
Held: SCC reaffirmed RWDSU v. Dolphin Delivery Ltd. [1986], argued that
although common law had to develop in line w/ Charter values (freedom
of expression, S.2), it needed to follow approach of US in New York
Times Co. v. Sullivan and require active malice for defamation cases.
Fair comment: Df has def. of fair comment (complete def) if they show material in question was:
(i)
A comment (as opposed to an accusation or allegation of fact);
(ii)
Made honestly and in good faith;
(iii)
Based on facts that are true; and
(iv)
On a matter of public interest
Note:
No need to actually show that the comments were actually fair. Instead, the focus is often
on the question of whether the defendant made the comments honestly and in good faith.
Key Case:
(5)
Cherneskey v. Armadale Publishers Ltd. [1979]
Held: Defence of fair comment was unavailable as editors didn’t agree
with opinion expressed in the letter, and there was no evidence
to suggest that the authors of the letter submitted it in good faith.
Note: Dissent: Dickson argued it’s unrealistic to expect news
papers to only publish opinions they agree with, and that
imposing such a requirement could have a negative
effect on “free and general discussion of public matters.”
Consent: Defendant will have defence of consent (complete defence) if they can show that the
statements originated with the plaintiff, or by someone acting on pf’s behalf.
Also: Defence will apply if the statements were made in response to the
plaintiff (i.e. where they were instigated by the plaintiff).
16
Lecture 21 – Privacy
Basic point: No consistent approach to privacy. Protected common law, statutes, Charter. Reasons:
(1) Privacy is a relatively modern idea;
(2) Privacy is an elusive concept based in part on personal expectations and attitudes;
(3) Protection difficult, requires balance b/w privacy, freedom of expression+information;
(4) Common law has been slow to recognise intangible personal losses;
(5) Difficult to define elements of privacy tort (many types of privacy/contexts)
Number of cases have specifically dealt with question of whether there is a freestanding tort of privacy in
Canada. For example, see Ontario (Attorney General) v. Dieleman (1994):
 concluded protection for privacy traditionally linked to other interests protected by other torts.
 need to accommodate broad counter-privileges associated with free speech and the vast
implications of living in a “crowded society.”
Traditional approach: protect privacy through well-established torts like nuisance, breach of confidence.
 Saelman v. Hill [2004]: Remedy invasion of privacy via tort of nuisance.
 Motherwell v Motherwell (1976 AB) – phone harassment put under private nuisance.
Some obvious problems associated with taking this approach to the protection of privacy:
 Assumes privacy is some sort of property interest, ignores fact that privacy is actually
more abstract interest. Rely on notion of privacy to ensure we are able to make private
decisions without interference from state or individuals (e.g. health, family – not property).
 Links privacy interests to a tangible interest in the enjoyment of land –raises questions
about how you protect the privacy of individuals and groups who do not own property.
 Roth v. Roth [1991]:
 Whether invasion of privacy will be actionable depends on circumstances of case and
conflicting rights involved” – here, damages should be awarded for overlapping action in harassment.
Now: Can argue there is strong presumption towards incrementalism –notion law should move slowly,
build on existing principles and established causes of action.
Courts have indicated there are certain interests and values they might be willing to protect through a
common law tort of privacy. Heckert v. 5470 Investments Ltd. [2008], BCSC defined privacy as:
“Right to be let alone, the right of a person to be free from unwarranted publicity... The right of an
individual (or corporation) to withhold himself and his property from public scrutiny, if he chooses.”
 Court was considering claim under BC Privacy Act (establishes statutory tort of privacy).
Under the BC Privacy Act, it is a tort “actionable without proof of damage, for a person, willfully
and without a claim of right, to violate the privacy of another” (s1(1)). People are only entitled to a
reasonable expectation of privacy (s1(2)) and that the “nature, incidence and occasion” of the act
complained of must, among other things, be considered (s1(3)).
Privacy protection under the Charter
S. 8: “[e]veryone has right to be secure against unreasonable search or seizure.”
Key case in this area is Hunter v. Southam Inc. (1984).
SCC: privacy as “right to be let alone,” s.8 protects person’s “reasonable expectation of privacy.”
Hunter: “... assessment must be made as to whether... public’s interest in being left alone by
government must give way to the government’s interest in intruding on the individual’s privacy in
order to advance its goals, notably those of law enforcement.”
 balancing exercise must occur before potential invasion to meaningfully safeguard privacy
R v. Dyment [1988]: how to balance s.8 rights with legitimate functions/demands of law enforcement.
3 main areas where s.8 privacy protections apply: “those involving territorial or spatial aspects,
those related to the person, and those that arise in the information context.”
Point: S.8 right to privacy "[g]rounded in a man's physical and moral autonomy...
essential for well-being of individual. For this reason, it is worthy of constitutional
protection, but it also has profound significance for the public order.”
 Suggests Court had shifted its position slightly since Hunter, and had begun
to see privacy as rooted in notions of individual autonomy and dignity.
17
Note:
Dyment expanded on test in Hunter and held that courts should apply a three-stage test when
considering if there has been an invasion of privacy. Specifically, a plaintiff may recover where:
(1)
Pf has a personal interest falling within one of the zones of privacy (a private object);
(2)
Df has, intentionally/recklessly, compromised private object (invasion of private object);
(3)
In circumstances, invasion of private object was unreasonable.
Based on Dyment, it can be argued that the idea of a “biographical core of personal information”
has become a central aspect of the Charter jurisprudence surrounding privacy.
Can see this in other SCC judgments. R. v. Mills [1999] McLachlin and Iacobucci JJ stated that:
“[P]rivacy concerns strongest where aspects of one’s individual identity are at stake, such
as... information ‘about one’s lifestyle, intimate relations, political or religious opinions.’”
Subsequent cases have expanded on Hunter and Dyment. Most important: R v. Wise (1992): laid down
2 stage test to determine if search/seizure violates individual’s reasonable expectation to privacy:
(1) Government activity in question violated the individual’s reasonable expectation to privacy; and
(2) Investigative activity that led to the violation (i.e. conduct complained of) was also unreasonable.
 R v Barnhill (2006)–When determining if investigative activity was reasonable look at all
circumstances, balance constitutional safeguards against unreasonable search/seizure with
need to ensure law enforcement officials can carry out duties in effective/responsible manner.
Now:
Return to question of what constitutes reasonable expectation of privacy under Section 8.
Series of judgments have sought to clarify what is meant by a reasonable expectation of privacy.
 R. v. Colarusso [1994]
Held: Need for privacy varies with nature of matter sought to be protected, circumstances
in which and the place where state intrusion occurs, and the purposes of the intrusion.”
 R. v. Edwards [1996]
Held: Reasonable expectation to be determined in light of totality of circumstances.
Also: Factors in assessing circumstances: accused’s presence at time of search,
possession or control of property or place searched, ownership of property/place,
historical use of property/item, ability to regulate access, existence of subjective
expectation of privacy, objective reasonableness of expectation.
 R. v. M. (M.R.) [1998]
Confirmed decisions above, stated key question is if pf had, in circumstances presented,
reasonable expectation of privacy, and if so, what was extent of expectation? Pf must first
establish that in circumstances he had reasonable expectation of privacy with respect to
relevant place. If not, there can’t be violation of s.8.
Note: Court draws interesting distinction between subjective & objective expectations:
“Existence of subjective expectation of privacy & objective reasonableness
of that expectation are important. A reasonable expectation of privacy,
however, may be diminished in some circumstances.”
Now:
Also need to consider the privacy protections provided by Section 7 of the Charter.
Section 7:
“Everyone has right to life, liberty and security of person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.”
Suggestion right to privacy can be founded on Section 7 largely speculative. From R v O’Connor (1995):
“Respect for individual privacy is essential component of what it means to be "free". Infringement
of this right undeniably impinges upon an individual's "liberty" in our free and democratic society.”
R. v. Morgentaler (1988): “Charter includes right to make fundamental personal decisions w/o state
interference - critical to liberty, gives autonomy in making decisions of fundamental personal importance.”
Main things to note:
(1) Morgentaler supports for SCC open to broad privacy right based on dignity/autonomy, (Dyment)
(2) FedCA in Ruby (2000) suggests s.7 may provide right to informational privacy –right to control
access to personal info, on basis such control is vital for individual decision making and liberty.
18
TORTS – SPRING 2011 - GOOLD
Lecture 1:
Introduction to the Law of Negligence
Origins of modern negligence = common law writs (formalised law statements giving cause of action)
(1) trespass vi et armis –strictly liable for direct, forceful interferences (close to intentional torts)
(2) trespass on the case, interference not direct/forceful. Must prove loss was direct result of
intentional/careless conduct of the df.
- Only available if facts fit category specified in the writ, or recognised by courts in a prior decision.
Individual writs became increasingly harmonised around a series of established principles of fault, and in
particular the idea individuals owed each other duties of care in certain, pre-defined circumstances.
By 1900, nearly all actions required pf to show df failed to meet standard of care + harm was direct result.
Key limitation: pf could only bring action if relationship b/w pf/df fell in recognized category.
The modern law of negligence
HoL in Donoghue v Stephenson: Lord Aitkin argued df owed pf general DoC as her neighbour:
Reasonable care to avoid acts/omissions reasonably foreseeable as likely to injure neighbour persons so closely and directly affected that I ought reasonably to have them in contemplation.
Now:
Argued Aitkin’s decision is judicial law making, drawing on Christian beliefs: Love your neighbor
However:
Can argue Aitkin recognised principle already established by courts –
neighbourhood as basis for liability - general principle of negligence from existing torts/writs.
Dissents in Donoghue:
(1) Buckmaster – Too wide. How could trade be conducted? (floodgate – how can it be limited?)
(2) Tomlin – Would cover every sort of product. (scope/remoteness, how to restrict claimants)
- Dissents anticipated two of the most recurring criticisms of the general approach to negligence.
 Aitkin’s judgment: Example of one person transforming law alone? But also thoughtful, reasoned.
Modern Law of Negligence
 Framework of negligence law is typical of fault-based civil liability system
 Theoretically: loss-shifting system based upon moral imperative that wrongdoers should be
individually liable for the damage they cause  corrective justice
 Practically: predominantly a negligence/insurance system that spreads or distributes losses
caused by negligent conduct to a broad segment of the community  distributive justice
Pre-Donoghue: question of how best to limit exposure to liability where harm results from carelessness.
Two obvious ways to do this:
(1) Base liability on the failure to meet a pre-existing duty or obligation; or
(2) Base liability on some other limiting factor, such as an interest in land
Aitkin finds basis of liability not based on physicality, but on idea of foreseeable pf – anyone
reasonably foreseeable as someone who could be harmed by my negligence is a potential pf.
Six elements in an action for negligence usually posed in the form of questions:
(1) The Duty of Care - Did the defendant owe a duty of care to the plaintiff? (Donoghue)
(2) Standard of Care & Breach – what was SoC owed by df to pf? Did conduct fall short of SoC?
(3) Causation – pf’s loss caused by df’s failure to meet SoC? Was breach cause of the loss?
(4) Remoteness of Damage – Loss sufficiently proximate? Reasonably foreseeable or too remote?
(5) Actual Loss; Was the loss in question recognized by courts as recoverable?
(6) Defences – Defences available to df (e.g. contributory negligence, voluntary assumption)
Palsgraf v Long Island Railroad– pre-Donoghue, court thinks about general DoC, foreseeable pf
Dunsmore v Deshield – example of basic negligence case
19
Lecture 2:
The Duty of Care (1)
Duty of care performs two main functions:
(1) Framework for situations in which liability for careless conduct may arise;
(2) Limits liability. Boundary on whether you can be liable for consequences of careless behaviour.
Can argue that DoC is a way the law allocates risks in society. Should pfs or dfs bear risk of injury?
Nova Mink v. Trans Canada Airlines [1951]: Judicial policy and social expediency involved.
Now:
Donoghue (OLD TEST): ask 2 questions in deciding if a pf is foreseeable and DoC exists.
(1) Pf must be someone df ought reasonably to have in contemplation –reasonably foreseeable;
(2) That pf was someone closely and directly affected by the act - proximity
Aitkin cites Heaven v. Pender (1883): Duty arises if you don’t use ordinary care/skill to avoid danger.
Cites Le Lievre v. Gould (1893): Duty if you’re in proximity so damage might occur if care not taken.
For Aitkin, proximity is the key to the 2nd criteria - “Proximity not confined to mere physical proximity,
but... extends to such close and direct relations that the act complained of directly affects a person.”
 Mere foreseeability not enough. PF must show sufficient proximity, not too removed from df.
Some say that foreseeability/proximity are the same. Useful to think of it in 2 parts because:
(1) Not restricted to people who are physically close. Key is a more general notion of proximity.
(2) Places emphasis on idea there needs to be some sort of direct connection between pf/df.
More expansive attitude with Hedley Byrne & Co Ltd and Home Office v. Dorset Yacht Co Ltd.
High point came with Anns Test for DoC: HoL in Anns v. Merton London Borough Council [1978]:
(1) There is sufficient relationship of proximity based upon foreseeability;  prima facie DoC
(2) There are no principled reasons why the court should not recognise a duty of care.
 Approach for analysing existing categories of negligence and recognising new categories, not a test.
Rolls foreseeability and proximity into one, limits through 2 nd stage policy Q instead of proximity.
Criticism: says court should find DoC first, then only deny it if they find a good reason to do so.
 presumption in favour of new DoC’s, opens floodgates (not proven), pf-oriented
In England, Anns was criticised, overturned by HoL in Caparo Industries v Dickman [1990]
Lord Bingham: court should only find that a duty of care exists where:
(1) Pf’s loss was a reasonably foreseeable consequence of df’s conduct;
(2) There was a sufficiently proximate relationship between the parties; and
(3) It would be “fair, just and reasonable” for court to impose a duty (policy considerations).
Difference b/w Caparo/Anns: Limiting 3rd req. –imposition of duty must be “fair, just, reasonable”.
 shifts presumption from in favour of finding duty to presumption against finding a duty.
General view; Caparo marks a deliberate return to a more conservative and incrementalist approach
to negligence and the question of duties of care –favours a slow expansion, strong presumption
against the development of new categories of liability. Return to proximity as a limiting principle.
 back to pre-Donoghue state – negligence organised about limited # of set duty relationships.
 an exaggeration, but Caparo did turn back the clock on negligence development
20
Lecture 3:
The Duty of Care (2)
In Canada, the courts have been less critical of the decision in Anns. For many years, leading case was
Kamloops (City) v. Nielsen [1984] - explicitly endorsed Anns. Kamloops says courts should ask:
(1) Sufficiently close relationship between parties … so that, in the reasonable contemplation
of the [defendant], carelessness on its part might cause damage to [the plaintiff]? If so,
(2) Considerations which ought to negative or limit the (a) the scope of the duty and (b) the
class of persons to whom it is owed or (c) the damages to which a breach may give rise?
SCC retreated from Anns. Cooper v Hobart (2001): more restrictive approach than Anns/Kamloops.
Cooper put forward new test for determination of a duty (CURRENT TEST FOR DUTY):
1) Does the case fall within an existing category, directly or by analogy?
a) If yes, there is a duty of care. Move forward to standard of care.
b) If no, continue to the next two questions.
2) Was the harm in question reasonably foreseeable, and is there a sufficient proximity between the
pf and the df to justify the imposition of a duty of care?
3) Is the situation in question one in which a new duty of care should be recognized?
 Policy questions – however, no guides given like in Caparo.



Different from Kamloops: combines foreseeability/proximity– Kamloops didn’t reference proximity.
Practical effect? Places burden firmly on pf of arguing that there should be a duty of care.
Sends a message that SCC favours an incremental approach to the expansion of negligence.
Stage Two of Cooper (was pf’s injury reasonably foreseeable):.
Moule (1960) – reasonably foreseeable pf: whether sequence of events was “so fortuitous as to be
beyond range of foreseeable results which a reasonable man would anticipate as probable consequence”
Note:
(1)
(2)
(3)
Court noted foreseeability of harm is relevant to 3 elements of a negligence action:
Duty of care imposed only if df’s conduct created a foreseeable risk of injury to pf;
Probability of injury 1 of several factors in determining if df breached standard of care;
Pf’s losses will be held to be too remote if not a foreseeable result of df’s breach of SoC.
Moule: If the particular coincidence of events was very unlikely, it was less foreseeable.
However:
Probability alone isn’t determinant of whether something is foreseeable
 rule in Haley v. London Electricity (1964))
Amos v NB Elec. Power Comm. (1976): in Moule, company not liable b/c kid had to climb up 1 tree,
cross over to another. In Amos, company liable for not trimming tree tall enough to touch power lines.
 If the accident is foreseeable, you will be liable.
Third Stage of Cooper:
 Effect of recognizing DoC on other legal obligations, legal system, and society?
 Does the law already provide a remedy?
 Would recognition of DoC create spectre of unlimited liability to an unlimited class?
 Other reasons of broad policy that suggest that duty of care shouldn’t be recognized?
Note that at this 3rd stage, must consider:
 Just v. British Columbia [1989]: distinction b/w policy & operations (only operations liable for
negligence), it is inappropriate for court to second-guess the government’s policy decisions.
 govt can choose to not implement a policy, but if they do, in implementing they must be non-negligent
21
Lecture 4:
Special Duties of Care: Affirmative Action
Df’s omission to act caused harm to pf  “duties of affirmative action” (e.g. to rescue, control others)
Common law generally avoids making people liable for failures to act (non-feasance) for 3 reasons:
(1) Requiring people to act in particular ways offends against notions of personal autonomy
(2) Capitalist notions of choice and minimal legal interference with individual choices.
(3) Positive obligations are necessarily more intrusive than negative obligations not to act
Now:
At common law, there is no general duty to rescue, as illustrated in Osterlind v. Hill (1928)
However:
(1)
Two major situations in which an affirmative duty to rescue might be imposed:
Duty established by statute
Matthews v. Maclaren; Horsley v. Maclaren (1969). Found df had duty to rescue pf by analogy.
(1) Even in absence of statutory requirement that provides basis of duty, once a rescue attempt
is made, the rescuer is then under a duty to act and will be liable for his negligence.
 voluntary assumption of responsibility
(2) Drunkenness of passengers is irrelevant to issue of duty of care.
(3) Burden on pf to show df’s negligence was the effective cause of the harm.
 Only liable if rescue conducted negligently – what would reasonable boat operator do?
Basic point: Courts open to possibility of recognising duty to rescue if it can be based on some
pre-existing obligation or a relationship created by the actions of one of the parties.
Note that a number of arguments can be raised in favour of a general duty to rescue:
(1) Reflects our common sense understanding of everyday morality
(2) Removes inconsistency in the law – why recognise duty to rescue only for special relationships?
Why penalise people who voluntarily assumed the duty, but not those who choose to do nothing?
(3) Utilitarian argument (Bentham) –provided the benefit derived from the rescue outweighs cost to
rescuer, it should be required – because society as a whole benefits.
(2)
Voluntary assumption of responsibility on the part of the defendant
Mostly where there’s a duty to control actions of others (e.g. intoxicated people).
Jordan House Ltd v. Mewnow (1973): DoC may be imposed where there is either a pre-existing
relationship (e.g. invitor-invitee relationship b/w hotel owner and patrons) or where intoxication
has been allowed to take place in breach of statutory requirement (e.g. overserving)
However:
Crocker v. Sundance Northwest Resorts Ltd. (1988): if someone creates a
particularly dangerous situation, they owe DoC to intoxicated participants.
Note: Childs v. Desormeaux (2006). Prima facie DoC (Anns test) negatived for policy reasons.
Social hosts different from commercial hosts for 3 reasons, which affect degree of proximity:
(1) Commercial hosts have a greater ability to monitor alcohol consumption;
(2) Social hosts are not heavily regulated like commercial hosts; and
(3) Social hosts do not profit from the sale of alcohol.
 But you have duty if you serve minors (Wince)
Police do not have a general legal duty to prevent crime, but they are under a duty to warn:
Jane Doe v. Metro Toronto Police (1998): Tort applies to operational, not policy decisions. Duty
to warn depends on case facts. Must be very specific pf group with very specific risk—tight limits.
 Here, distinct group of foreseeable victims  they were proximate, police had duty
22
Lecture 5:
Special Duties of Care: Miscellaneous
(1)
Duties owed to rescuers
Horsley v MacLaren (1972).
Key: whether negligent rescue created new/distinct danger inducing 2 nd rescuer to act.
(2)
Duties owed to unborn children
(1) Pre-conception wrongs: Df carelessly causes injury to parent that harms a subsequently
conceived and born child.
Rule: No duty of care to a child that has not yet been conceived
Paxton v. Ramji: No DoC from Drs to patients’ future kids. Conflict b/w mother & child.
(1) Insufficient proximity b/w physician and child (not legal entity until born);
(2) Law recognizes a woman’s complete autonomy over her body.
 Winnipeg Child and Family Services v. G. [1997]:
- Not a person until born- fetus suing mother = legal entity suing itself.
Two further points emerge:
(1) Duty of care could never be owed from physicians to future children of female
patients. Physician would have to choose b/w interests of mother and unborn child,
(2) Women do not owe duty to their future children (can’t sue mom for doing drugs)
 Mother not liable to fetus for “lifestyle choices” (Dobson v. Dobson, SCC)
(2) Wrongful birth and wrongful life: Dr fails to inform of high risk of child with disabilities.
Rule:
Dealt with by general DoC owed by doctors to inform patients of risks.
(3) Wrongful pregnancy: Careless abortion/sterilization  general med. negligence principles.
Damages for parents? For cost of raising child (to 18? Later?)? What if child has disabilities?
Original view: contrary to public policy to award damages for cost of caring for healthy child.
However:
Position changed: Joshi v. Wooley (1995); Suite v. Cooke [1995]
With regards to disabled children, the key case is Krangle v. Brisco [2002]
Court:
Parents entitled to damages for non-pecuniary loss for pain &
suffering associated w/giving birth to/raising disabled child
(4) Pre-natal injuries – is there a special DoC for pregnant women?
Bourhill v Young (1943): no special DoC owed to pregnant women (not foreseeable).
However: Since Duval v. Seguin [1972] law recognises pregnant women are foreseeable.
Note: Bourhill: if child born, it has no cause of action (not a legal person pre-birth).
Rejected in Canada: Montreal Tramways Co v Leveille [1933]: if child born,
can pretend it was independent legal person when careless act was committed.
 This approach ( “born alive” rule) endorsed by SCC in Duval v. Seguin
 b/c damages sued for were suffered by pf after their birth
Other special duty categories:
(1)
A Health Professional’s Duty to Inform
Rule: Haughian v Paine: duty to inform patients of material risks (big harm/low risk, low/big) of
treatment risks, nonmaterial risks of particular concern to patient (even if low/low).
However: Pf must show reasonable person would’ve refused treatment if aware.
(2)
Manufacturers Duty to Warn: must they warn of possible dangers associated with product use?
Rule: Hollis v Dow Corning Corp: warning must be communicated for risks of normal use.
Key:
Shift risk from consumer to manufacturer, who is in better position to know risks
Also: They have duty to be forthright as to all risks (Greater risk=higher duty)
 Learned intermediary rule –intermediary must be given manufacturer’s knowledge
(3)
Duty of Care Owed by Barrister
Rule: Civil case performance not immune from negligence. DeMarco v Ungaro: “must exercise
reasonable care, skill, knowledge in litigation... must be properly diligent in prosecution.”
23
Lecture 6:
Special Duties of Care: Negligent Misrepresentation (Pure Economic Loss)
Courts traditionally unwilling to allow neg. Mis. claims – proximity, indeterminate liability fears.
Also: Because main type of damages claimed likely to be pure economic loss. Two reasons:
(1) Indeterminancy: particularly acute in pure economic loss cases – floodgates.
(2) Prospect of tort interfering in market, compensating for everyday business losses.
Key Point: Law expects business to protect selves from losses through contracts and insurance.
Murphy v Brentwood DC (1991): causing economic loss does not need justification.
Now: Traditional position revised by 1963 decision of HoL in Hedley Byrne v Heller: concluded that
relationship b/w parties was "sufficiently proximate" as to create DoC.
Lord Reid makes it clear his judgment is not based on neighbour principle in Donoghue v Stevenson:
Says there’s no comparison between words/deeds. Question of whether there’s duty depends
on if you can make bank responsible without unlimited liability or opening up floodgates.
Now: Most argue Hedley gives 5-stage test for determining liability for negligent misstatement:
(1) Must be duty of care based on a “special relationship” b/w parties (Reid test) (DoC)
a) Possession of a special skill by the defendant;
b) Reasonable reliance on the exercise of that skill by the plaintiff; and
c) Knowledge or awareness of the possibility of reliance on the part of the defendant
 if all 3, court finds special relationship which could give rise to DoC (depends on facts)
(2) The representation must be untrue, inaccurate or misleading (SoC)
(3) The representor must have acted negligently in making the representation (SoC)
(4) The representee must have relied on the representation (Causation)
(5) The reliance must have resulted in detriment, and damages resulted. (Actual loss)
Canada: Hercules Management Ltd v Ernst & Young (1997 SCC). Negligent misstatement may require
courts to look at special considerations (stated in Hedley), but general rules of negligence still apply.
 La Forest applies the two-stage approach from Anns (pre-Cooper case), and asks:
(1) Did the defendants owe the plaintiffs a prima facie duty of care?
Note: Rejected idea df must have knowledge of particular pf, or requirement court should look
at use of statements when determining if there is DoC. Argued these are questions for 2nd stage
of test – i.e. questions of policy
(2) Were there policy reasons for restricting or denying the duty of care?
Now:
Number of ways to approach Hercules. Perhaps best way to understand it is as follows:
(1) Neg. Mis. not separate area (as in Hedley), should be approached using general Anns rules;
(2) He then draws on rules set out in Hedley when considering the first stage of the Anns test.
 IN AN EXAM FOR NEGLIGENT MISREPRESENTATION:
Cite: Hercules (following Hedley Byrne).
Do Anns/Cooper for DoC but when answering if pf was foreseeable, use Hedley 3-part Reid test.
Concurrent Liability (Tort + Contract)
BG Checo International Ltd. v. BC Hydro & Power Co. Could Checo sue in both tort/contract? NegMis
was contractual term– bc representation was part of contract, does it cancel ability to also sue in tort?
Held:
The K didn’t limit DoC owed & pf didn’t waive right to sue in tort. Parties should limit liabilities
in their contracts if that is their intention. SCC held pf could sue in both tort & contract.
Different if misstatement takes place during negotiations: Queen v. Cognos Inc. (1993).
 Court applied Hedley Byrne’s 5 general reqs. Argued fact that the NegMis was made
in pre-contractual setting did not prevent action in tort for damages caused by misrep.
24
Lecture 7:
Special Duties of Care: Pure Economic Loss
Feldthusen’s taxonomy of claims, divided claims for pure economic loss into five main categories:
(1) Negligent misrepresentation (page 6)
(2) Independent liability of statutory public authorities (page 17)
(3) Negligent performance of a service
(4) Negligent supply of shoddy goods or structures
(5) Relational economic loss
Categories not closed but SCC reluctant to expand –Martel Building Ltd v Canada (2000) – Anns test.
 5 justifications for why negligence should NOT be extended into pre-contractual negotiations:
(1) No econ. loss to society  just wealth transfer b/w parties – no need for court involvement.
(2) Useful/efficient social/economic relations discouraged – would prevent hard bargaining.
(3) Tort law should not be used as an insurance scheme for unsuccessful negotiations.
(4) Would result in courts examining pre-contractual negotiations – k doctrines cover this.
(5) Court was worried about encouraging unnecessary litigation.
 Pro arguments: predictability is good and efficient, level playing field, not all transfers are good
(1)
(2)
Negligent performance of a service
Normal rules of negligence – i.e. Anns/Cooper– no denial on policy grounds if sufficient proximity
between the parties. Key case: B.D.C. Ltd. v. Hofstrand Farms Ltd. (1986)
 claim denied because df didn’t know there was reliance and a deadline to meet
BUT: Unclear if position significantly altered by ruling in James v. British Columbia (2005).
 Says right test is Cooper, unnecessary to prove detrimental reliance (too onerous for pfs).
 Instead: w/o reliance, showing voluntary assumption of responsibility by df is enough.
Currently: Apply Cooper. Policy stage: reliance or assumption? If either, should allow recovery.
Negligent supply of shoddy goods or services
Usually when pf can’t show privity of k and suffered economic loss (not injury or property damage).
Note: Usually no privity bc pf never had contact w/df (df gave goods to A, who sold them to pf).
Key:
Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. (1995). Contractor
liable to future purchaser of building for repair costs? Anns test applied:
(1)Proximity: df should reasonably have known carelessness would cause damage to pf?
(2) If yes, are there any policy issues that should negate a finding of liability?
 no indeterminacy problem, liability limited to owner/residents of building
Also: (1) No risk of indeterminate amount: limited to reasonable amount to fix building defects.
(2) No risk of indeterminate time: limited to life of building. Eventually age will be blamed.
 Caveat emptor doesn’t apply, purchaser not in best position to bear risks of emergent defect.
(3)
Relational economic loss (REL)
Economic loss resulting from injury to property/person of a third party – claim traditionally denied.
However: Changed with Canadian National Railway. v. Norsk Pacific Ltd (1992) [SCC]
Court: Anns/Kamloops puts brake on indeterminacy+floodgates in pure economic loss.
However: Strong dissent: REL should be denied except cases previously recognised:
joint ventures, general average contributions, possessory interests.
This dissent=basis of Bow Valley Husky (Bermuda) Ltd v St John Shipbuilding Ltd. (1997).
Court: REL recoverable only in special circumstances, reflected in recognition of key categories:
(1) Cases where claimant has a possessory or proprietary interest in damaged property;
(2) General average cases (averaging losses–specific to throwing goods in water);
(3) Cases where relationship between claimant and property owners is a joint venture.
Court said categories aren’t closed but incremental approach required. Basic approach is
Anns test but policy stage should be very restrictive & stick to pre-established categories.
25
Lecture 8:
The Standard of Care
Standard of care refers to behaviour required of df to satisfy DoC. Determines how df ought to act.
Understand distinction between the duty of care and the standard of care in the following way:
 Duty of care, ask: Who is my neighbour? Who should I think about when I act?
 Standard of care, ask: What do I need to do? How should I act towards my neighbour?
Questions about DoC are questions of law  answered by the judge alone.
Questions of SoC typically combination of questions of law and fact  answered by judge and jury.
(i) The General Standard of Care
Basic rule: df must act according to SoC expected of a reasonable person.
Early statement of the rule found in Blythe v Birmingham Waterworks (1856): ‘.. omission to do
something reasonable man would do or doing something a reasonable/prudent man wouldn’t do.’
SoC = way person should act to not breach DoC. Would a reasonable person in position of df have
acted same way? In Canada, leading case is Arland v. Taylor [1955] - affirms Blythe.
3 main factors in finding the standard of care:
(1)
The probability and severity of the harm;
(2)
The cost of risk avoidance; and
(3)
The social utility or value of the conduct
 Qualifications on general reasonable person test, to be considered in assessing df’s conduct.
 Determine limits of reasonableness, define reasonable behaviour in circumstances of case.
(ii) The Probability and Severity of the Harm.
Basic rule: Greater the risk/harm associated with a particular activity, higher the SoC.
(a) Bolton v. Stone [1955]  PROBABILITY
When determining whether df failed SoC to be expected, court should consider following test:
Was risk of damage was so small that reasonable person in df’s position considering matter
from POV of safety would have thought it ok to not take steps to prevent danger?
Bolton: Not liable if you take all precautions reasonable person would take in circumstances to prevent
damage likely to arise. Not reasonable to expect you to guard against “fantastic and far-fetched” risks.
Few important points to take away from this case:
(1) Life requires judging risks. No one can avoid creating some risks and accepting others.
(2) If risk associated with an activity is high/unavoidable, may be reason to prohibit it altogether.
(b) Paris v. Stepney Borough Council [1951]  SEVERITY
Affirmed Bolton, said if probability of harm/injury resulting is severe, there is unreasonable risk.
 you must consider not only the risk of the injury but the severity of it as well
(iii) The Cost of Risk Avoidance and the Social Utility of the Conduct
Basic rule: When determining SoC, consider cost of risk reduction & social value of the conduct.
 Even if probability/severity of potential loss are high, df may be excused if activity is socially important.
Key case: Watt v. Hertfordshire County Council [1954]
 Permissible for df to run high risk b/c social utility of conduct outweighed costs of df’s conduct.
Denning, L.J.: “In measuring due care you must balance the risk against measures
needed to eliminate the risk. You must balance the risk against the end to be achieved.”
Canadian case on this is Vaughn v. Halifax-Dartmouth Bridge Comm. (1961):
 If cost of precaution is low, more likely to find negligence.
26
Lecture 9:
(1)
Special Standards of Care
Standard of care expected of children
McEllistrum v. Etches [1956]: children should be held to a modified SoC – court (or jury) should
ask whether child exercised care to be expected of child of like age, intelligence and experience.
 Endorsed in Joyal v Barsby (1965). Cite this case for like age/intelligence/experience.
Different approach taken in Heisler v Moke (1971) [ON HC]:
 Court argued question of whether child can be held liable should depend on capacity,
not age. Suggested law should distinguish b/w tender age children and older children:
Tender age: Child not capable of appreciating reasonable risk. Can’t be liable.
No set age for this (maybe 5). Authority is Tillander v. Gosselin
Above tender age:
Modified objective test should be used. Did D exercise
care expected of child that age, intelligence, experience?
(2)
Note:
Courts have consistently held that child involved in adult activity will be required to meet
SoC expected of reasonable adult (Ryan v. Hicksson (1974))
Note:
Parents, guardians, and supervisors not usually held to be vicariously liable for torts
committed by kids under their care, but will be held liable if injury is result of their
failure to control or monitor child’s conduct. Standard is of a reasonable parent of
ordinary prudence. Thomas v. Hamilton (City) Board of Education (1994), (B.C. C.A.)
Standard of care expected of people with disabilities
Carroll and Carroll v. Chicken Palace Ltd. [1955] (Ont. C.A.):
 Physically disabled required to meet SoC of reasonable person with same disability.
However:
Person w/physical disability must recognize limits, not take unreasonable risks.
Note:
(3)
Rule has been applied for mental illness. Fiala v. Cechmanek (2001): if df is suddenly &
without warning struck w/mental illness, they’re absolved of liability if they show, on BoP:
(1) Because of illness, df had no capacity to understand DoC owed at that time; OR
(2) Df was unable to discharge DoC as they had no meaningful control over their
actions at the time the relevant conduct fell below the objective standard of care.
 i.e. lack of volition
Standard of care expected of professionals.
White v. Turner (1981) (Ont. C.A.): professional should be judged by SoC of his profession.
Layden v. Cope (1984) (Alta. QB): General practitioners required to exercise SoC of
reasonable, competent practitioner - includes knowing when patient needs a specialist.
Ter Neuzen v. Korn [1995]: SoC expected is that of a prudent & diligent doctor in same
circumstances. Specialists assessed in light of conduct of other ordinary specialists.
Killips Tv Services (2000): non-professionals (e.g. volunteers) are expected to have
proper training for particular activity, need to know limits and when to ask for help
27
Lecture 10:
Causation in Negligence
(1)
The difference between cause-in-fact and cause-in-law
Cause-in-fact/factual causation: pf must be able to prove df’s negligence caused his loss.
Focuses on connection b/w df’s act & pf’s loss, provides justification for imposition of liability.
Cause-in-law/proximate cause/legal causation: may be reasons to limit liability for reasons of
fairness, even though df may have been factual cause of loss. Questions of remoteness.
(2)
The But-for Test
Basic test of causation. “Would loss to pf have occurred but for negligence of the defendant?”
Kauffman v Toronto Transit Commission, Barnett v Chelsea & Kensington Hospital
Barnett v Chelsea & Kensington Hospital
(3)
Exceptions to the But-for Test: Four basic types of causal indeterminacy
(i) Notion of the evidential gap
Impossible to know on available evidence if pf’s injury was but-for consequence of df’s negligence
Walker Estate v. York-Finch General Hospital (2001) [SCC]: (HIV spread, bad warnings)
Held: But-for test remains general test but is sometimes unworkable. Test in donor screenings
is if D’s negligence materially contributed to harm. Material = out of “de minimis” range.
Now: Walker approach: material contribution test. Unnecessary for df’s actions to be sole
cause of pf damage. Material contribution met if actions caused/contributed to damages.
(ii) The problem of multiple insufficient causes
Several factors combine to cause pf’s loss, but where no single factor is itself the but-for cause.
Athey v Leonati (1996): preexisting back problem man hurt, dr tells him to exercise, he gets hurt.
Held: Df found to be fully liable. If one act contributing to the loss is tortious, it would be wrong
to apportion liability for portion that is non-tortious.
Instead:
Thin skull rule: but-for accidents injury would not have occurred.
Rule: Law does not exclude D from liability simply because other causal factors for which he is
not responsible helped produce the harm
(iii) The problem of multiple, independent sufficient causes
 The loss arises from two or more sufficient acts.
Significant or substantial factor test If act alone would’ve led to loss df liable (Lambton v Mellish)
(iv) The problem of materially increased risk
Pf suffers injury (e.g. disease) that may have been caused by negligent actions of df. May be
extremely hard to prove injury would not have resulted but-for actions of df – disease is complex.
Snell v. Farrell (1990) (D performs surgery on P’s eye, stroke in optic nerve months later.
Key Issue:
Should burden of proof for causation go to D (disprove med causal link)?
If burden on P can causation be inferred w/o conclusive med evidence?
Held: Pf won. But-for test inappropriate in medical malpractice cases if scientifically
impossible to prove causation and medical knowledge rests with D. Although
burden on pf to prove causation, inference of causation may be drawn if no
conclusive scientific proof exists. If D gives evidence to contrary, inference can
only be made if weight of combined evidence supports inference of causation.
28
Lecture 12:
Remoteness
Breach of duty & causation not enough to establish liability. Pf must also establish damage was not
too remote, and there weren’t intervening events/acts that should prevent df from being found liable.
Remoteness: how courts limit implications of finding factual causation, for policy, general fairness.
 Keep liability in fair/reasonable boundaries, even if df was but-for cause of pf’s loss.
 Exclude liability where loss suffered is so different to what is normally expected, or so
disproportionate to magnitude of fault, that it would be unfair to hold df responsible.
Now: Remoteness similar to DoC –invoked as way to define and limit extent of df’s liability.
However: Different language used when discussing limits of duty and idea of remoteness.
 For duties, typically talk about neighbourhood & foreseeability, confine policy discussions to
quite concrete – if often misguided – worries about floodgates and indeterminant liability.
 For remoteness, talk of directness, probable outcomes, close consequences, immediacy.
Reason: courts are trying to distinguish between two quite different types of limiting principles:
(1) Limitations based on concerns about scope of negligence (the duty problem); and
(2) Concern w/logical implications of strict adherence to factual causation (remoteness).
Now:
Initially, courts referred to directness in determining if outcome of a negligent act was too remote
 Rule in Re Polemis & Furniss, Withy & Co Ltd [1921] (note: no longer good law)
 According to directness rule, df is liable for all direct consequences of his negligence.
 In applying this rule, courts careful to distinguish b/w foreseeability and remoteness.
(1) Foreseeability was relevant to breach and duty
(2) Remoteness was relevant to the extent of liability
Distinction based on idea that questions of wrongfulness should be confined to duty and breach
stage, while more practical questions of extent of liability should be dealt with at causation stage.
Now: The directness test was abandoned in The Wagon Mound (No. 1)
Even though crew breached DoC, resulting damage not foreseeable by reasonable person.
“It is not the act but the consequences on which liability is founded. Would be wrong if a
man was held liable for damage unpredictable by reasonable man bc it was direct, equally wrong
that he should escape liability, however "indirect" the damage, if he could reasonably ...”
 New test based on foreseeability. Fairer, simpler, less weighted towards df.
Test: Df only liable for reasonably foreseeable consequences of his negligence.
 WM1 says probable events; WM2 changes this to possible events (a “real risk”).
Note:
Increasingly flexible approach to foreseeability & remoteness, arguably easier for pf to establish
that damage suffered was not too remote.
Have done this in three main ways:
(1) By shifting the focus from the manner of the accident to the type of harm;
Basic approach: Not necessary for precise manner of accident to be foreseeable.
 Instead, foreseeability relates to type of harm suffered by pf.
 Hughes v. Lord Advocate: Established principle that only type of harm suffered
needs to be reasonably foreseeable, not exact manner in which harm occurred.
(2) Can treat accidents as sequence of discrete events, then ask if each step was foreseeable –
 Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co. (1971)
(3) By focusing on fairness when deciding on the limits of foreseeability
One last thing to note about the idea of remoteness.
Weir makes point about operation of foreseeability in context of remoteness: Requirement of normality –
harm must be normal consequence, not so abnormal no-one would have thought it could have resulted.
Now: Courts don’t use language of normality but Weir is right when he suggests this is essence
of the approach. Desire of courts to ensure that finding of causation (factual/legal) not so
at odds with what we would ordinarily expect that it offends everyday notions of fairness.
29
Lecture 13:
Remoteness and Intervening Causes
Intervening act: one that causes or contributes to pf’s loss after df’s breach has taken place.
Historically, treated as break in chain of causation –original tortfeasor relieved of responsibility.
 Last wrongdoer doctrine: last tortfeasor in chain of causation solely responsible for pf’s loss.
Now:
Easy to see that doctrine of last wrongdoer – and idea of novus actus interveniens (intervening
act) – is also a product of a very artificial way of looking at the world.
 Derives from but-for test’s assumption that causes are linear –that events happen in
sequences, and we identify links in chain with voluntary actions of individual tortfeasors.
However:
Cdn courts abandoned this, tried to develop other ways of dealing w/intervening causes
in context of but-for test. Argued it’s possible to distinguish b/w types of intervening acts,
based on question of whether act could be regarded as natural or morally blameworthy.
Three kinds of intervening acts:
(1) Naturally occurring subsequent acts (eg storms). If not too unusual, does not break chain.
(2) Subsequent negligent acts of 3rd party. General rule: can maybe break chain of causation.
(3) Subsequent intentional, wrongful (or illegal) acts. General rule: always breaks chain.
 Abandoned for principles now used for remoteness, courts adopted new test based on foreseeability.
Test for Intervening Cause:
If intervening act is broadly within scope of foreseeable risk created by df’s negligence, then he
will remain liable for resultant damage.
Basically: Court asks if intervening act was within scope of risk created by df’s negligence.
Key case in this area is Bradford v. Kanellos (1973)
Held: If intervening act is unforeseeable, df not liable.
BUT for medical negligence:
Note:
Despite Bradford, courts continue to use conservative, classification-based approach in cases
involving intervening acts of medical negligence.
 Price v. Milawski (1977)
Held:
Now:
Both df liable. First tortfeasor still liable if both the subsequent negligent act & resulting
additional harm were reasonably foreseeable consequence of original negligence.
Also consider situation where intervening act is deliberate. Courts reluctant to hold original
defendant liable, as it makes no real sense given that the act of the third party was intentional.
However: Need to consider Hewson v. Red Deer (1976)
Facts: Df negligently left tractor unattended – 3rd party drove tractor and caused damage.
Held: Act of 3rd party not intervening cause - foreseeable that someone might drive it
Key point:
Support for argument that general rule of foreseeability still
applies, and that act of 3rd party still needs to be foreseeable
 note: just because 3rd party’s act was criminal didn’t negate their liability
30
Lecture 14:
Nervous Shock and the Thin Skull Rule
Liability for Nervous Shock
Key question: should pf be allowed to recover for psychiatric injury suffered as result of dfs negligent act?
Traditionally courts were extremely reluctant to allow recovery, for a variety of distinct reasons.
(1) Concerns about floodgates
(2) Problem of processing and testing validity of psychiatric claims
Argument psychiatric injuries are easier to fake, easier for pfs to make fraudulent claims.
(3) The continuing stigma attached to mental illness.
Argue courts were resistant bc they – like much of society– didn’t understand nature of
mental illness, didn’t think it should be classed as recognised form of damage.
Elements of Nervous Shock: Plaintiff must be able to show:
(1) The type of psychiatric injury complained of must fall into the category of nervous shock; and
(2) The injury must be reasonably foreseeable and there must be a sufficient degree of proximity
(1)
The type of psychiatric injury complained of must fall into the category of nervous shock
General rule: No liability for psychiatric injury unless it satisfies legal concept of nervous shock.
Basic rule:
Nervous shock defined as severe emotional trauma that manifests itself
in a physical disorder or in some recognisable psychiatric illness.
Note: Does not include things like emotional upset, mental distress, grief, sorrow,
anxiety, worry, or other supposedly transient or more minor psychiatric injuries.
(2)
The injury must be reasonably foreseeable
General rule:
Key:
Df only liable if it was reasonably foreseeable that negligent act would
produce nervous shock in a person of average psychological resilience
Not if triggered by abnormal sensitivity/predisposition to psych illness.
What contexts have courts concluded that nervous shock is reasonably foreseeable?
Useful to distinguish between two types of situations:
(1) Where act of df has direct effect on pf’s psychological well-being; and
(2) Pf is secondary/relational victim –nervous shock result of df causing harm to 3rd party
 Courts reasonably willing to allow recovery if there is a direct relationship between the parties.
Why? Because there is rarely a problem of indeterminacy, so floodgates arguments don’t apply.
Example: Courts in England have held DoC owed where df negligently causes nervous shock by:
 Directly threatening the plaintiff’s safety;
 Falsely telling someone that a family member has died
 Not taking steps to minimise trauma of telling pf they may have been exposed to HIV
Harder: pf=secondary victim, suffers nervous shock bc df causes harm to 3rd party (relational victims).
 Most typical scenario: pf sees, hears, or is told of a tragic or horrifying event.
Generally, courts refused to recognise them on grounds that such pfs weren’t foreseeable and there were
compelling policy reasons to deny recovery (floodgates arguments)
However:
Over course of last 50 years, courts have gradually begun to take a different approach.
Argued if injury is foreseeable & relational pf is sufficiently proximate, they can recover.
Key case here is Alcock v. Chief Constable of South Yorkshire Police [1991]
Gave number of conditions that must met for nervous shock to relational victims:
31
(1)
Relational proximity – Pf must show "sufficiently proximate" relationship to person injured/killed
by df’s negligence. Courts referred to need for "close tie of love/affection" (parents/kids/spouses).
 Key point: presumption in favour of recovery in such cases. Where relationship doesn’t
fall in that category (i.e. siblings) then ties of love/affection must be proved.
(2)
Locational proximity – Secondary victim must view "shocking event" with own unaided senses.
Must be either be eyewitness to event or hear event in person or view immediate aftermath.
requires min. physical proximity, stop recovery by victims who see it on TV/hear from 3rd party
(3)
Temporal proximity –Shock must be sudden, not from "gradual" assault on pf’s nervous system.
 Prevent recovery where pf gets psych condition from living w/relative debilitated by accident.
Now:
Court also argued that pf can only recover if it was reasonably foreseeable that a person of
"normal fortitude" would have suffered psychiatric damage.
Key point: closer the tie b/w claimant & victim, more likely it is he will succeed in this element.
 That is, court argued close family members were by definition more foreseeable.
Note: thin skull rule applies– if established that psychiatric damage was foreseeable,
does not matter if pf was particularly susceptible to that particular psychiatric illness.
Now:
Cases since Alcock have sought to clarify the position. Most controversial: Page v Smith [1995]:
Court: Distinction between primary victims (those in direct physical danger from negligence)
and secondary victims (not in physical danger)
 Liability for psychiatric injury possible if possibility of physical injury was foreseeable.
Key point:
Physical injury doesn’t have to occur– if it’s reasonably foreseeable, then any
subsequent psychiatric may be recoverable (even if unforeseeable)
Note: court held that secondary victims are covered by the Alcock rules
Canadian Position: ONCA in Mustapha v. Culligan Canada (2006) noted that though no Cdn courts
have explicitly endorsed Alcock, the policy considerations raised in that case were relevant ones.
Test for DoC: whether it is reasonably foreseeable that a person of normal fortitude or sensibility
is likely to suffer some type of psychiatric harm as a result of df’s negligence.
 objective test, not subjective: must consider “person of normal fortitude and robustness”
Also: Court explicitly rejected Page on the grounds that:
(1) It removes the need for foreseeability in regards to the psychiatric harm;
(2) Distinction b/w primary/secondary victims is artificial, hides policy choices to be made; and
(3) Misunderstanding of thin skull rule – which is about quantum of damages (not foreseeability)
– should only consider particular sensitivities of pf liability established based on DoC breach.
The thin skull rule
Smith v Leech Brain: If injury suffered by pf was foreseeable, pf can fully recover, even if they
suffered greater damages than ordinary pf (due to pre-existing condition/vulnerability)  quantum issue.
Note: Must distinguish the thin skull rule from the crumbling skull rule discussed in Athey
Crumbling skull rule: When onset or deterioration of a condition is hastened by df’s negligence,
they will only be responsible to the extent that they worsened the condition.
Example: If df’s negligence caused pf’s skull to crumble 2 years earlier than it otherwise
would
have,
then
df’s
liability
will
be
confined
to
that
period.
Marconato v Franklin
 wrongdoer must take victim as he finds him – w/peculiar susceptibilities and vulnerabilities
 df must pay for all the consequences of her negligence
32
Lecture 15:
Defences in Negligence
Four main defences available in negligence
1. Contributory negligence
2. Voluntary assumption of risk
3. Public policy and illegality
4. Inevitable accident
 Burden of proof on defendant. They can argue multiple defences simultaneously
(1) Contributory Negligence
Before, courts denied claim if shown pf contributed to harm. As courts didn’t allow apportionment of loss,
net result was if you showed contributory negligence, it was a complete defence and pf’s claim failed.
Now:
Courts recognised this could be unfair, so developed last clear chance (“last opportunity” rule)
Idea of the rule:
Pf can recover even if contributorily negligent if it could be shown that df
had a chance to avoid the accident and failed to take it.
However:
Weakness: perpetuated all or nothing approach – if it was shown that df failed to
take the “last chance” and avoid the accident, they would bear entire loss.
All-or-nothing approach eventually abandoned. Legislation allowing for apportionment gradually enacted.
SCC has effectively abolished old common law rule, held that it does not even apply in absence of
apportionment legislation – Bow Valley Husky (Bermuda Ltd. V. Saint John Shipbuilding Ltd. (1997)
Basic definition of Contributory Negligence:
Pf contributorily negligent if their conduct carelessly contributed to harm suffered from df’s negligence.
To establish the defence, the defendant must show:
(1) That plaintiff did not take reasonable care of himself; and
(2) That the lack of care contributed to the injury
Once defence is established, court apportions liability according to relevant statutory rules.
 In BC, the statute is the Negligence Act 1996
Key question: what constitutes reasonable care in the circumstances?
See: Walls v. Mussens Ltd. (1969) – NBCA;
 What is reasonable in that moment? Can’t judge in hindsight. Question is what
would a reasonably prudent man have done in that emergency situation?
Now:
Once df has established the defence, court must decide how to apportion damages. In most
provinces this is done according to rules from statute, typically on basis of fault.
That is: Legislation lets court divide responsibility & apportion liability according to relative degree of fault.
The main things to note in the BC Negligence Act are:
 Apportionment is on basis of fault. If distribution can’t be determined, liability split equally (S. 1)
 Damages can be offset if both parties are at fault (Section 2)
 Liability for legal costs are apportioned according to the principles set out in Section 1 (Section 3)
Mortimer v Cameron
 if there are negligent acts leading to the event but these acts don’t give rise to the harm, the
person who caused the acts will not be liable
 here, 2 guys are negligent in horseplay but the harm was caused by faulty construction on the
house wall they fall through, so they aren’t contributorily negligent
33
(2) Voluntary assumption of risk
Principle of volenti non fit injuria (“to one who is willing, no harm is done”): if person engages in an
activity and knowingly accepts accompanying risks, they cannot sue in negligence if subsequently injured.
Can divide situations in which the defence is likely to arise into 2 main categories:
(1) Express agreement – most common where pf enters into contract and expressly assumes risk.
(2) Implied agreement –no express consent
Important to note two things when considering defence of volenti:
 It is a complete defence, and precludes recovery;
 Hard to establish: courts prefer to apportion damages (principles of contributory negligence).
Defence now really only ever arises in context of sports - even then it is usually interpreted very narrowly.
Elements of Voluntary Assumption of Risk:
(1)
Defendant must prove that pf knew of and understood the risk he was incurring;
 generally pf must have knowledge of the precise risk, not just general risks of activity
(2)
That the plaintiff voluntarily assumed the risk
Key issue is usually whether (1) has been made out:
Dube v. Labar (1986 SCC): Df must prove pf consented to both physical and legal risk.
Rule: “Volenti only arises where.. it’s clear pf, knowing of the virtually certain risk of harm, bargained
away the right to sue for injuries incurred as a result of any negligence on the defendant’s part.”
(3) Participation in Criminal or Immoral Act – Ex turpi causa non oritur actio
Basic Rule:
However:
No cause of action is available in tort where the plaintiff is participating in an illegal act
Because it is a complete defence, the courts have tended to interpret it very narrowly.
Hall v. Hebert (1993) – SCC. Pf and df (both drunk) drive car, and have accident.
 P claims D should not have let him drive; D claims P acted illegally and cannot sue.
Majority held that ex turpi can be a defence to negligence, but only available where:
(1) The P stands to profit from his criminal behaviour; or
(2) Compensation would amount to an avoidance of criminal sanction
Cory J. argued that illegality should be dealt with at duty stage. Majority rejected this on grounds that by
keeping ex turpi as a defence, desirable degree of flexibility maintained in application of the principle.
(4) Inevitable accident
Basic rule: if you can show accident was inevitable, df will not be held liable
Rintoul v. X-Ray and Radium (1956) – SCC
Court: If relying on inevitable accident, must show something happened over which he had no control,
and effect of which could not have been avoided by greatest care and skill.
34
Lecture 16:
Tort liability of public authorities
Public authorities:
Govt depts, elected officials. Includes bodies exercising delegated gov authority.
 3 types of power: legislative, judicial, administrative  Key: which type of power are they using?
Note: Legislative immunity is from statuteonly for acts directly/indirectly related to legislative actions.
 SCC: municipal govt not liable for losses from by-laws, even if economic loss foreseeable.
General rule: Judges not liable for losses/damage flowing from exercise of judicial authority.
BC Provincial Court Act:
Section 27.3: Immunity protection
(1) No... damages lie... against a tribunal member because of anything done or omitted.
(a) in performance of any duty, or (b) in exercise of any power, in relation to an inquiry.
(2) (1) does not apply... in relation to anything done or omitted in bad faith.”
Section 42: Immunities from civil liability
“Judges have... immunities from civil liability... for things done/not done by... as judges...”
Note: Can’t compel judges to testify about their decisions. Unclear if quasi-judicial/mediators included.
Basic Rule for liability of public authorities:
Only liable for administrative/operational (not policy) decisions: Wellbridge Hld v Winnipeg (1970).
2 types of op. decisions: made (1) to fulfil statutory public duty & (2) under statutory discretionary power.
General Rule: If duty has no discretion, authority not liable for damages from proper exercise of the duty.
However:
If they perform task carelessly/fail to fulfil the duty, they can be liable for resulting losses.
(2) Decisions that are made under a statutory discretionary power
General Rule:
Won’t review policy decision but will review operational decision.
Key case:
Just v. British Columbia (1989)
Majority: Argued for narrow definition of policy decisions, referred to “true policy
decisions” – normally involve broad allocation of funding at high level of government.
Key: claim concerned manner inspections were done – frequency; how and when
 Court said this was policy implementation  operational decisions.
However:
Must look at all circumstances in determining SoC for DoC for operational decisions.
 Especially budgetary restrictions, availability of qualified personnel/equipment.
Note: Commentators argued Just shows willingness by SCC to expose government decisionmaking to greater levels of judicial scrutiny than has been the case in the past.
Just was arguably modified in Brown v. British Columbia (1994)
Corey J. clarified “true policy decision, ”noted policy decisions not necessarily made at highest
level of govt  important to look at nature of decision in deciding if it was policy or operational.
Court: Don’t focus on who, instead consider if social, political, economic, financial, personnel,
and union considerations were taken into account. Those factors point to policy.
Misfeasance in public office – Odhavji Estate v Woodhouse
 Requires an element of bad faith or dishonesty.
Two types of misfeasance:
(1) Conduct specifically intended to injure a person or class of persons
(2) Conduct where the officer knows their action is outside of the power granted to them by public
office and is likely to injure the plaintiff.
In both cases, pf must prove that the public officer must have:
(i) Engaged in deliberate & unlawful conduct in his capacity as a public officer; and
(ii) Been aware that his conduct was unlawful and likely to inure the plaintiff
Now: In (1) cases, proof of intention to harm will usually be taken by the court as proof of (i) and (ii)
However:
In cases of Type (2), plaintiff will have to prove both (i) and (ii) independently
Cooper v Hobart: Policy in 2nd stage of Cooper. Even if it is foreseeable and proximate, can decline DoC
b/c it was policy decision. Policy can also=not proximate. Cooper=restriction on pub. auth. liability.
35
Lecture 17:
Statutory Torts
Two main ways in which statutory provisions can affect tort liability:
(1) By creating an independent cause of action
Statute creates cause of action in tort – specifies DoC owed. Typically, gives SoC & remedy too.
 KEY: Based on statute, NOT the common law. Constrains judge’s ability to interpret.
(2) By creating, changing or limiting the operation of a common law duty or tort
Statute creates, modifies or restricts scope of a common law duty tort, usually indirectly.
 KEY: Requires judicial interpretation if it’s indirect.
 SCC in Sask. Wheat Pool (1983): courts can’t create implied statutory causes of action.
 If statute silent, must go SP – CLDC – CLCA (i.e. breach=evidence of negligence)
Galaske v O’Donnell: Breach of statute not conclusive of liability but provides support for finding DoC.
Statute=public sign that not following is unreasonable conduct falling below the standard required by the
community and is therefore negligent. Extent of duty varies w/circumstances.
Horsley v McLaren: Legislative declaration of policy in a law is a fortifying element in recognizing a duty.
Lecture 18:
Occupiers’ Liability
Level of care owed by occupiers in control of land (Palmer v St John) to visitors who enter premises
(1)
Licensees - visitor who had express or implied permission to be on the land
Occupiers’ responsibility (McErlean v Sarel):
Prevent injury from hidden dangers of which occupier had knowledge (relatively low SoC)
(2)
Invitees - visitor with express or implied permission & whom occupier had economic interest in.
Note: Distinction b/w social guest (licensee) and paying customer in a store (invitee)
Occupiers’ responsibility (McErlean v Sarel):
Reasonable care to prevent unusual dangers occupier knew about or ought to have known about
(3)
Contractual entrants - visitors whose right to enter the land was based on contract (eg ticket).
Occupiers’ responsibility (Finigan v Calgary):
Governed by terms of contract, but courts made additional requirement of implied warranty
that premises were as safe as reasonable care could make them.
 Difference b/w this + licensees gone (Bartlett v. Weiche Apartments Ltd) – now like licensee
(4)
Trespassers - someone who had no express or implied permission to be on the land
Occupiers’ responsibility:
Occupier owed no duty to make premises safe for trespassers BUT could not intentionally or
recklessly injure a trespasser they knew was on the land (or was likely to come on the land)
Note: Courts relaxing rules to make them little less restrictive and friendlier to plaintiffs
(1) Treat child trespassers as licensees on basis of fictionalised consent
(2) Began to distinguish between different types of trespassers
Key case in this area was Veinot v. Kerr-Addison Mines Ltd. (1975) SCC
Rule: Occupier who knows of presence or that presence is likely must act within common humanity.
Note: The duty is not an especially onerous one
(1) No duty to inspect the property for danger
(2) Duty is dependent on variety of factors within the discretion of the court, such as:
(i)
The degree of danger on the land
(ii)
The age of the trespasser
(iii)
The reason why the trespasser was on the land
(iv)
The knowledge and resources of the occupier
(v)
The cost of preventative measures
36
The Occupiers’ Liability Act 1996 (BC)
Definition of Occupier:
Defined as a person with either:
(1) Physical possession of the premises; or
(2) Responsibility for – and control over – the condition of the premises, the activities conducted on
the premises, and the persons allowed on the premises
Key: control comes responsibility  don’t have to be owner or in physical possession.
Definition of Premises:
Defined broadly - not only land/buildings, also movable places like cars (when not in operation).
KEY: Section 3: Replaces the common law with a general standard of reasonable care.
S. 3(1): occupier owes duty of reasonable care to see visitor – as well as any
accompanied or unaccompanied property – is reasonably safe.
Act is attempt to bring occupiers’ liability in line with law of negligence –endorses the same SoC as CL.
Effect:
Increases level of care to trespassers+licensees, reduces level to contractual entrants
Note that under the Act, the standard of care is applied broadly, and is relevant to:
(1) The foreseeability of damage
(2) The degree of risk of injury
(3) The gravity of the threatened injury
(4) The kind of premises
(5) The burden of preventive measures
(6) The practice of other occupiers
(7) The purpose of the visit
Okay: Key question: should certain classes be excluded from protection of general DoC? (trespassers)
Now: General DoC owed to trespassers except w/criminal intent or on agricultural/rural ground.
Instead:
Duty: avoid injuring intentionally, not act w/reckless disregard for safety  mirrors CL.
Now: After Section 3, the next most important part of the Act is Section 4
Section 4: Allows occupiers to restrict, modify, or negate statutory DoC by express agreement or notice
There are, however, a number of limitations on this:
(1) Reasonable notice must be given of changes, only for people privy to express agreement.
(2) Can’t exclude/modify duty for those empowered to enter premise w/o occupiers’ consent
(3) Where occupier bound by K to allow entry to persons who are not parties to K (3rd parties),
those entrants are owed usual SoC – aren’t subject to exclusionary words in the K
Section Five:
DoC owed to independent contractors.
Rule: Occupier not liable for acts of independent contractor if it was reasonable
to have retained an independent contractor to do work in question and
reasonable care was taken in selection/supervision of the contractor.
Now: 1 old CL rule was that landlord could not be liable for any harm caused to visitors of his tenants.
Three reasons:
(1) There was no contractual liability because the visitors were not parties to the lease
(2) There was no occupiers’ liability because landlord (owner out of possession) was not occupier.
(3) No DoC could be owed in negligence because it was area covered by occupiers’ liability.
Section Six:
Note:
Seeks to remedy this by treating landlord as occupier for purposes of Act (provided
landlord has duty to maintain and repair premises under terms of lease).
Plaintiff can only recover if they can show that the injury was a result of the landlord’s failure to
carry out repairs as specified in the lease.
37
Lecture 19:
Nuisance
Aim of nuisance is to protect pf’s interest in and enjoyment of land from unreasonable interference
Two main ways in which nuisance differs from negligence:
(1) In negligence, court will look to reasonableness of df’s conduct. In nuisance, the court instead
looks to the reasonableness of the effects of df’s conduct.
 In negligence, the question is: Did the defendant behave unreasonably?
 In nuisance, the question is: Was the interference with pf’s enjoyment of land unreasonable?
(2) In negligence, proximity+limit of liability determined by general requirement of neighbourhood
(foreseeability). Nuisance: proximity+limit of liability determined by physical neighbourhood.
There are two types of nuisance: private nuisance and public nuisance
Private nuisance: protecting people from interferences with their use & enjoyment of land
Public: protects rights of public from interference – (Orange Productions; Hickey; Mendez)
Private nuisance
Two basic situations that can potentially give rise to a claim for private nuisance:
(1)
Where conduct of defendant causes physical damage to the plaintiff’s land
Very strict approach to physical damage to property  almost always unreasonable interference.
No need for interference to be continual – according SCC in Tock v. St John’s (City)
Metropolitan Board [1989], an isolated incident causing physical damage can be enough
Note: Mere proof of physical damage is not enough to succeed in an action for private nuisance
Must also be able to demonstrate that:
(1) The damage is not trivial –it is beyond bounds of reasonable tolerance. Courts will
not hold that the interference is unreasonable where the damage is minor
(2) The damage is not a result of the abnormal sensitivity of the plaintiff’s land.
 Robinson v. Kilvert (1889) 
Now: Second restriction –abnormal sensitivity of land – has been restricted quite considerably
Courts will take generous view if shown df knew pf’s land was sensitive & acted w/malice or spite.
 Hollywood Silver Fox Farm Ltd. v. Emmett [1936]
Note: BCCA pushed this further, imposed liability w/o malice (MacGibbon v. Robinson [1953])
(2)
Where the conduct of the defendant interferes with the plaintiff’s enjoyment of their land
Basic rule:
Must be fairly tolerant of occasional interference w/enjoyment of land.
However: Unreasonable interference depends on all circumstances of particular case.
 Can also ask: is the interference tolerable or not?
Factors courts take into account when determining reasonableness of interference with enjoyment:
340909 Ont. Ltd. v. Huron Steel Products (Windsor) Ltd. (1990)
(1) The character of the neighbourhood
Basic rule: Generally interference in rural neighbourhoods is more significant
(2) The intensity of the interference
Basic Rule: Interference must be of sufficient intensity to be intolerable to ordinary citizen.
Application: No liability for occasional loud noises, barking, BBQ smoke, transient bad smell
 For smell to count, must be nauseating/intolerance (Appleby)
(3) The duration of the interference
Basic Rule: Must be more than temporary or short-lived  must be persistent, long-term.
(4) The time of day and the day of the week
Basic Rule: Reasonable for people to expect less noise at night than during the day.
(5) Zoning designations
Basic Rule: Cdn courts tend to ignore zoning. Compliance w/zoning not treated as a defence
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However: Zoning restrictions can be referred to when determining character.
(6) The utility of the defendant’s conduct
Basic Rule: Fact df’s conduct/use of land is beneficial to public is not a defence.
However: Taken into account in determining if it should be tolerated/it is reasonable.
(7) The nature of the defendant’s conduct
Basic Rule: Less likely to protect df motivated by desire to cause discomfort /annoyance.
(8) The sensitivity of the plaintiff
Basic Rule: No liability if pf is abnormally sensitive –standard is reasonable/ordinary resident
in that particular area.
Most cases involve intrusion as nuisance. However: There is non-intrusive interference
 Pugliese v. Canada (National Capital Commission (1977)
Point: D liable in private nuisance even though interference caused by removal of water, not invasion.
Defences to Private Nuisance
(1) Statutory authority and immunity
Basic rule: If conduct complained of is carried out according to statute  no liability.
However: SCC in Took argued statutory authority only defence if statute gives no
discretion to df as to time, location, or performance of the statutory duty
Now: This approach criticised for being too uncertain –most statutory
authorities discretionary, hard to imagine situation where defence applies.
Fixed by SCC in Ryan v. Victoria [1999] – For defence to apply, df
must show it was practically impossible to avoid creating nuisance
Rule: Must prove nuisance was inevitable and unavoidable part of the activity
 Reasonable care is not enough.
Note: Statutory immunity: statute specifically abolishes liability in private nuis for an activity
(2) Consent
Basic rule: Very unusual for this defence to succeed. Defence to nuisance if you can show
that the defendant consented to the conduct or actively encouraged it
(3) Prescription
Basic rule: Where df has carried out activity continuously/uninterrupted for 20+ yrs– and pf
has been aware of it for that time & has not taken steps to prevent it.
Essentially: Amounts to court recognising/protecting an easement.
(4) Contributory negligence
Basic rule: Extremely rare– pf usually not in position to do anything. Court very unwilling to
require pf to take steps to reduce nuisance (e.g. to close windows).
Also: No defence to claim df came to the nuisance (Sturges v. Bridgeman (1879) HL)
Remedies for Private Nuisance
(1) Injunction
 Most common, courts look to all circumstances in making decision whether to impose injunction.
Three basic forms of injunction:
(i) Prohibitory: Requires the defendant to completely stop the activity
(ii) Mandatory: Requires df to adjust their activity to reduce or eliminate the nuisance.
(iii) Interlocutory: Interim– issued prior to hearing of case – normally requires pf to show there
are serious issues to be tried, that they’ll suffer irreparable harm if injunction not granted
(2) Damages
Most often awarded where the nuisance has ended, although can also be awarded in combination
with an injunction. Can be awarded for both past and future losses.
(3) Abatement
Essentially self-help remedy. Courts have held that in certain circumstances pf can take matters into
own hands and take steps to reduce/eliminate a nuisance (especially if nuisance is relatively trivial).
Limitations:
Where abatement requires entry into df’s property, pf must give proper notice
unless it’s an emergency (e.g. fire, something that threatens life or property)
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Lecture 20:
Strict and Vicarious Liability
Torts where liability can be imposed without need for proof of fault.
2 main forms of strict liability: Strict Liability (Rylands v. Fletcher) and Vicarious Liability
Strict Liability for Escape of Dangerous Substances
(1) The rule in Rylands v. Fletcher
Must show three main things:
(1) That there was a non-natural use of the land
Initially this meant artificial or non-natural uses of land, over time the requirement has changed
Now: Must show use was dangerous, extraordinary, and no general benefit to community.
Key question: did the particular use of the land create an increased danger?
Now:
Courts view certain activities as so inherently dangerous that it’s assumed that
the use of the land is non-natural (regardless of the surrounding circumstances).
Examples: Storage of water in bulk, manufacture and use of explosives, storage
of nuclear materials, storage or use of biological agents
If danger is less obvious courts assess dangerousness using range of factors, including:
 The degree of danger of the land use
 The utility and normality of the land use
 Circumstances of time & space (Gertsen v Toronto)
Once courts take these factors into account – even though they are considering them in
the context of Rylands v. Fletcher and in relation to strict liability –they are engaging in
what amounts to an assessment of fault very similar to that found in negligence.
(2) That there was an escape of something likely to cause mischief
Two basic elements here – mischief and escape
Requirement of mischief is largely redundant at this stage – if you can establish non-natural use
on basis of dangerousness, it almost inevitably follows that it was capable of causing mischief
However:
Requirement of escape is strictly applied: Reed v. J. Lyons & Co. [1947] (HL).
So if pf is injured on df’s land, they can’t claim under rule in Rylands v. Fletcher
However:
Pfs in Reed had interesting argument – claim key to liability was
harm from ultra-hazardous activity, as a consequence df should
be liable even if loss is on df’s property. Argument was rejected.
(3) Damage
Key question: whether there is some limit on liability once non-natural use & escape are established.
Originally no. Recent HL decision in Cambridge Water Co v Eastern Counties [1994] suggests
some remoteness applies. Held: no liability for unforeseen consequences of non-natural use.
Key defences to an action under the rule in Rylands v. Fletcher
(1) Consent
Rule: No liability where pf either expressly or impliedly consented to df’s non-natural use of the land
Note: Interpreted liberally – sufficient if pf knew of dangerous use, entered/stayed in place of danger.
(2) Mutual Benefit
Rule: If activity is of benefit to pf, then court is less likely to view it as a non-natural use.
 E.g.: SCC in Tock held that a sewer system was not a non-natural use of land
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(3) Default of the Plaintiff
Rule: Where escape is in part responsibility of pf no liability – mirrors CL contributory negligence.
Most legislation modifying rules of cont.neg. don’t apply  it remains a complete bar to recovery.
(4) Act of a Stranger or Act of God
Rule: Intervening events causing loss must be so unforeseeable df could not have guarded against
them –seems to contradict idea that rule in Rylands v. Fletcher is one of strict liability
Vicarious Liability
Not really a separate tort –refers to fact there are certain situations in which the law of torts holds one
person strictly liable for the acts of another.
 Most common situation: employer-employee relationships
To establish vicarious liability, plaintiff must show:
(1) That the individual who caused the harm was an employee and not an independent contractor
Basic Rule:
Employee is someone under the direct control and supervision of the employer
Courts look for evidence that the employer was empowered to tell the employee
how, when, and where to do the work
However:
Courts have supplemented the control test with other tests:
(a) According to Montreal (City of) v. Montreal Locomotive Works Ltd. (1946) (PC),
control test can be enhanced by reference to entrepreneur test – adds new factors
to be taken into account, including ownership of tools, chance of profit, and risk of
loss (these factors will be treated as evidence the person is independent contractor).
(b) Organisation test – extent employee is integrated into employer’s business.
Note: Relationship b/w the tests was considered in 671122 Ontario Ltd v Sagaz Industries Canada Inc.
Supreme Court: Central question is whether person who was engaged to perform the
service is performing it as person in business on his own account.
In making this determination, court can look to:
 Level of control employer has over the activity
 Whether the worker provides his own equipment
 Whether the worker hires his own helpers
 Degree of financial risk assumed by the worker
 Degree of responsibility for investment/management by the worker
 Worker’s opportunity for profit in the performance of the activity
(2) That the harm was caused by the employee in the course of his or her employment
Basic Rule: Employer only liable if there’s a connection b/w wrongdoing & employment relationship.
 TG Bright & Co v Kerr – “In course of his employment... Principal not liable for torts
or negligences of his agent in any matters beyond scope of the agency, unless he has
expressly authorized them or has subsequently adopted them for his own use & benefit.”
Key points to note:
(a) Even if the conduct is wrongful or unauthorised, it may still held to be within the course of
employment if it was carried out for the purpose of the employment
(b) Fact that the conduct is expressly prohibited by employer does not necessarily rule out liability
Rule: Express prohibitions that forbid any work being done are effective, but prohibitions on the
way in which the work is done are not
Example:
Employee is prohibited from driving a car as part of his work = effective;
Prohibition on driving an uninsured car = not (if harm caused, employer
will be liable)  Canadian Pacific Railway Co. v. Lockhart [1942] (HL)
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