Tort Law

Updated for 2010 Changes to the Professional Engineers Act

These web pages have been updated to include both enacted and pending changes due to the Open for Business Act, 2010. Note that some changes will not be in force until proclaimed by the Lieutenant Governor; for example, the
putting into force the end of the industrial exemption has been delayed numerous times.

Disclaimer
All information on this website is provided without any warranty to its correctness. The material on these pages reflects Douglas Wilhelm Harder's best judgment in light of the information available to him at the time of its
preparation. Any use which a third party makes of these pages, on any reliance on or decision to be made based on it, are the responsibility of such third parties. Douglas W. Harder accepts no responsibility for damages, if any,
suffered by any third party as a result of decisions made or actions based on these pages.

A set of PowerPoint slides are available at Tort.pptx, but the reader is advised that the discussion
related to the presentation is just as important as the slides themselves.

To explain the concept of tort, we must first understand the place of the Criminal Code of
Canada and other statutes.

Crime
When an individual or organization contravenes an article of the Criminal Code, it is the
responsibility of the government to try that party in a court of law. A breach of the Criminal
Code is said to be a crime and the trying of such an offence at a criminal trial may end in a
verdict of guilty and a conviction at which point the court must decide upon an appropriate
sentence. When the verdict in a criminal trial is not guilty, the defendant is said to be acquitted.
When an innocent person is wrongly convicted, it is said to be a miscarriage of justice.

Offences
Statutes such as the Professional Engineers Act, on the other hand, govern the relationship
between individuals and the states. A contravention of a breach of a section or clause of a statute
is guilty of an offence (as opposed to a crime). For example, Section 40(1) of the Professional
Engineers Act reads:

Penalties
40.(1) Every person who contravenes section 12 is guilty of an offence and on conviction is
liable for the first offence to a fine of not more than $25,000 and for each subsequent offence to a
fine of not more than $50,000.

The penalty for an offence is usually a fine. The balance of section 40 lists other offences
relevant to the Professional Engineers Act.

Breaches in Contract and in Tort

Finally, laws which govern the relationship between individuals within the state cover contracts
(legally enforceable agreements) between individuals and a duty of care between individuals.
Contract law is discussed elsewhere; however, it is possible for one party to injure another
outside of a contract and such an injury is said to be a tort. The party causing the injury is said to
be the tortfeasor.

Purpose of Tort Law

The purpose of tort law is to compensate the injured party; it is not to punish the tortfeasor.
There are circumstances, however, where an individual may be liable both in tort and at the same
time may be guilty of an an offence or a crime. The penalty for causing an offence or a crime
may be a fine or a sentence, but this will not compensate the injured party for the injury caused
by the tortfeasor. We will consider the case, however, where a party may be concurrently liable
in both contract and in tort.

Intentional and Unintentional Torts

There are two forms of torts: intentional torts and unintentional torts. The first category includes:

torts of nuisance where one individual interferes with another's enjoyment of that person's
real property,
torts of defamation including written or broadcast (libel) or verbal (slander) where untrue
statements damage the reputation of another, and
occupier's liability.

Marston discusses these other intentional torts on pp.64-65. All of these intentional torts are the
result of a purposeful action on the part of one party against another.

The Unintentional Tort of Negligence

However, there is one unintentional tort: negligence. Whereas intentional torts have been the
cause of actions for many centuries if not millennia, the possiblity that one party may
unintentionally injure another is relatively new:

The 1932 case of Donoghue v. Stevenson is a case where the plaintiff, May Donoghue brought an
action against the manufacturer of a bottle of ginger beer produced by the defendant David
Stevenson which contained a decomposed snail. The ginger beer was purchased by Ms.
Donoghue's friend and therefore Ms. Donoghue did not even have a contract between her and the
owner of the Wellmeadow Cafe. Ms. Donoghue consumed part of the beverage as part of a
sundae before the snail was discovered which was before her friend had consumed any of the
drink. Thus, her friend who had a contract with the establishment was not ill. The determination
by the House of Lords that Mr. Stevenson was liable to Ms. Donoghue resulted in a new form of
product liability.

This form of product liability has since evolved into the unintentional tort of negligence.
In a tort action of negligence where an injured party (the plaintiff) brings an action against a
defendant for liability in tort, the test to determine whether or not the defendant is liable in tort
depends on three conditions. Marston, on p.39, provides a useful rewording of a the concept of
tort liability within English law:

1. the defendant owed the plaintiff a duty of care,

2. the defendant breached that duty by his or her conduct, and
3. the defendant's conduct caused the injury to the plaintiff.

If any one of these three conditions is not satisfied, the tort action will fail.

Negligence and the Professional Engineer

A professional engineer in the practice of his or her profession may be negligent in their actions.
Ontario Regulation 941 defines negligence within the scope of professional engineering in
Section 72(1):

72. (1) In this section..."negligence" means an act or an omission in the carrying out of the work
of a practitioner that constitutes a failure to maintain the standards that a reasonable and prudent
practitioner would maintain in the circumstances.

This is based on an extract from Halsbury's Laws of England (referenced by Marston):

It is trite law that an engineer is liable for incompetence, carelessness or negligence which results
in damages to his employer and he is in the same position as any other professional or skilled
person who undertakes his professional work for reward and is therefore responsible if he does
or omits to do his professional undertaking with an ordinary and reasonable degree of care and
skill.

Thus, if any party is injured as a result of the negligent actions of a professional engineer, that
practitioner may be liable in tort to the injured party.

Allegations of Professional Misconduct

In the definition of professional conduct in Section 72 (2), the first first point is:

72. (2)(a) For the purpose of this Act and this Regulation, "professional misconduct" means
negligence, ...

Therefore, a professional engineer who, within the practice of his or her profession, is guilty of a
tort of negligence must be concurrently guilty of professional misconduct which has separate
penalties listed in the Professional Engineer's Act:

Powers of Discipline Committee

28. (4) Where the Discipline Committee finds a member of the Association or a holder of a
certificate of authorization, a temporary licence, a provisional licence or a limited licence guilty
of professional misconduct or to be incompetent it may, by order,...

Limitations on the Tort Liability

The concept that a party may be liable in tort as a result of a negligent misstatement is even more
recent. Previous to 1963, if a party makes a statement outside of a contract and another party
relies on that statement, the party making the statement did not owe a duty of care to the relying
party and therefore could not be liable in tort.

This changed in 1963 with the case of Hedley Bryne & Co. Ltd. v. Heller & Partners Ltd. where
the plaintiff requested information from the defendant about the credit-worthiness of a potential
client. The defendant responded with a statement that the potential client was "considered good
for its ordinary business engagements." No consideration was attached with this letter and
therefore it could not be considered a contract. A short time later, the client went into liquidation
and the plaintiff lost 17,000 and therefore initiated this action. In its ruling, the House of Lords
stated that

"I consider that it follows and that it should now be regarded as settled that if someone possessed
of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of
another person who relies upon such skill, a duty of care will arise. The fact that the service is to
be given by...words can make no difference. Furthermore, if...a person is so placed that others
could reasonably rely upon his judgment or his skill..., a person takes it upon himself to give
information or advice to, or allows his information or advice to be passed on to, another person
who, as he knows or should know, will place reliance upon it, then a duty of care will arise.

The only statement which prevented Heller from being liable in tort was the singular statement
"without responsibility on the part of this bank". The House of Lords found that

"...in my judgment, the bank..., by the words which they employed, effectively disclaimed any
assumption of a duty of care. They stated that they only responded to the inquiry on the basis that
their reply was without responsibility. If the inquirers chose to receive and act upon the reply
they cannot disregard the definite terms upon which it was given. They cannot accept a reply
given with a stipulation and then reject the stipulation. Furthermore, within accepted
principles...the words employed were apt to exclude any liability for negligence."

An Ontario Court Case Confirming Bryne v. Heller

The 1994 case of Wolverine Tube (Canada) Inc. v. Noranda Metal Industries Ltd. et al. confirms
that it is possible to limit the duty of care and therefore the liability in tort. The environment
consultant had produced a report regarding lands owned by Noranda for that company. That
report was later relied upon by the plaintiff when purchasing the land and when the report was
found to contain errors, the plaintiff launched an action claiming liability in tort. Again, the only
defence was a statement included at the front of the report:
This report was prepared by Arthur D. Little of Canada, Limited for the account of Noranda, Inc.
The material in it reflects Arthur D. Little's best judgment in light of the information available to
it at the time of preparation. Any use which a third party makes of this report, on any reliance on
or decision to be made based on it, are the responsibility of such third parties. Arthur D. Little
accepts no responsibility for damages, if any, suffered by any third party as a result of decisions
made or actions based on this report.

The court found that this disclaimer was sufficient to "insulate" the defendant from the liability
in tort; that is, the defendant had clearly stated the limitations of whom the report was to be used
by and clearly disclaimed any other responsibility.

Summary of other Tort Cases

In the case Unit Farm Concrete Products Ltd. v. Eckerlea Acres Ltd. et al.; Camama
Contracting Ltd. v. Huffman et al. (Marston p.46-48), the engineer made, without a disclaimer, a
positive comment on a set of plans which was accepted as a professional approval by the
recipient. The plans were deficient and the engineering was held, in the Camama case, partially
liable for 75% of the liability in tort.

In the case SEDCO and Hospital Laundry Services of Regina v. William Kelly Holdings Ltd. et
al., the plaintiff contracted an architect who subcontracted the mechanical design of a building to
mechanical engineers. The design was deficient (a faulty cooling system) through negligence and
the plaintiff was able to successfully bring an action for liability in tort against the mechanical
engineers for the breach of a duty of care to the future occupants of the building.

The 1993 Supreme Court of Canada case Edgeworth Construction Ltd. v. N.D. Lea & Associates
Ltd. demonstrates that a professional engineer is liable in tort for deficient designs through
negligence resulting in an injury to a contractor relying on those designs even if there is no
contractual relationship between the engineer and the contractor.

Other Topics Covered in Marston

To be finished.

References
D.L. Marston, Law for Professional Engineers: Canadian and Global Insights, 4th ed.,
McGraw-Hill Ryerson, Toronto, 2008.
Professional Engineers Act R.S.O. 1990, CHAPTER P.28
Professional Engineers Act General R.R.O. 1990, Regulation 941
Gordon C. Andrews, Canadian Professional Engineering and Geoscience-Practice and
Ethics, Nelson Education Ltd.,